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Veolia Says Flint Complaint ‘Odyssey’ Should Be Chucked

July 6, 2016
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Law360, New York (July 6, 2016, 4:45 PM ET) — Veolia North America asked a Michigan federal judge Tuesday to toss claims against it in a proposed class action over Flint’s lead contamination crisis, saying the “oversized” complaint was rife with repetition and irrelevant allegations that make a “coherent response next to impossible to provide.”

The engineering firm said the “340-paragraph odyssey” of a complaint, brought by a proposed class of Flint residents against two engineering firms, the state of Michigan and a host of individuals allegedly responsible for the tainting of the city’s water supply, failed to meet the requirement  that a complaint be a short, clear description of the allegations against each party.

“Among other things, plaintiffs repeat allegations over and over again, make non sequitur allegations describing matters such as Flint’s socioeconomic history and 18th century scientific journals, and fill their complaint with lengthy quotations and inflammatory rhetoric better left for jury argument,” Veolia wrote.

The company said the complaint is the sort of document the Ninth Circuit  described in its 1996 McHenry V. Renne opinion as “something labeled as a complaint but written more as a press release.”

“When a complaint like that gets filed, the only proper response is to dismiss it,” Veolia wrote.

The engineering firm said that such a lengthy, repetitive complaint could have repercussions throughout the rest of the case, making it costly for the accused parties to respond and difficult for the court to manage the case.

For instance, Veolia said, the complaint alleged 13 times that the company failed to conduct a root cause analysis of Flint’s contamination problems and alleged five times that ferric chloride is acidic.

Veolia also said the proposed class improperly lumped it together with another engineering firm, Lockwood Andrews & Newnam Inc., made “muddled” allegations against both, and then further grouped the two with the other defendants and “proceeded to assert several claims against this 19-member hoard.”

“Because plaintiffs have failed to inform [Veolia North America] of the specific claims against it, and because plaintiffs have buried those same claims beneath a mass of unnecessary allegations, the court should dismiss all the claims against VNA,” Veolia wrote.

Also on Tuesday, several of the individuals targeted in the suit filed motions to dismiss the claims against them. Daniel Wyant, former director of the Michigan Department of Environmental Quality; Bradley Wurfel, MDEQ’s former communications director; and a group of five other MDEQ employees told the court that they are immune from the claims, and that many are preempted by the Safe Drinking Water Act.

The suit, one of dozens seeking redress for the lead contamination crisis, was filed in March on behalf of a proposed class of people who have lived in Flint since April 25, 2014.

The claims include negligence, gross negligence, intentional infliction of emotional distress, violations of the Safe Drinking Water Act and the U.S. Environmental Protection Agency‘s Lead and Copper Rule, diminution of property values, trespass, nuisance, unjust enrichment and violations of due process rights.

Counsel for the plaintiffs did not respond to a request for comment Wednesday.

The proposed class is represented by Kit A. Pierson, Joseph M. Sellers, Emmy L. Levens, Robert Cobbs and Theodore J. Leopold of Cohen Milstein Sellers & Toll PLLC; David J. Shea of Shea Aiello PLLC; Bradford M. Berry, Khyla D. Craine and Anson C. Asaka of the NAACP; and Vineet Bhatia, Shawn Raymond, Stephen Morrissey, Jordon Connors and Kathryn P Hoek of Susman Godfrey LLP.

Veolia North America is represented by Cheryl A. Bush and Michael R. Williams of Bush Seyferth & Paige PLLC.

Stephen Busch is represented by Philip A. Grashoff of Kotz Sangster Wysocki PC.

Liane Shekter Smith is represented by Thaddeus E. Morgan and Michael H. Perry of Fraser Trebilcock.

Adam Rosenthal, Patrick Cook and Michael Prysby are represented by Charles E. Barbieri ofFoster Swift Collins & Smith PC.

Daniel Wyant and Bradley Wurfel are represented by Michael J. Pattwell of Clark Hill PLC.Wurfel is also represented by Jay M. Berger and Christopher B. Clare of Clark Hill PLC.

The case is Gilcreast et al v. Lockwood Andrews & Newnam P.C. et al, case number  5:16-cv-11173, in the U.S. District Court for the Eastern District of Michigan.

–Editing by Catherine Sum.

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