Attorney for Flint kids vows to ‘keep trying until I die’ in water crisis case

FLINT, MI — A mistrial apparently won’t be the end of a civil lawsuit filed by four children against two engineering companies that worked for the city of Flint during its water crisis.

Corey Stern, an attorney for the children, said the trial that ended with a hung jury on Thursday, Aug. 11, was deadlocked because a single juror would not find against Veolia North America and Lockwood, Andrews & Newnam and said he’s committed to trying the case again in front of a new jury.

“We learned a ton (and) the jury was with us,” Stern said after the mistrial was declared by US Magistrate Judge David Grand and after interviewing members of the jury on Thursday. “If I (were the companies), I’d be scared to death. I’ll keep trying until I die.”

Stern’s comments came nearly six months after jury selection in the first trial began.

In the months that followed, two jurors were excused from the marathon trial, dozens of witnesses and experts offered often conflicting testimony, and US District Court Judge Judith E. Levy stepped away from the case because of a personal medical issue.

In a message to Grand on Thursday, the remaining eight members of the jury declared they had reached a stalemate that could not be broken after having been sent back to deliberate further on two prior occasions.

“For the physical and emotional health of the jurors, we don’t believe we can continue with further deliberations,” the jury’s note to Grand said. “Further deliberations will only result in stress and anxiety with no unanimous decision without someone having to surrender their honest convictions, solely for the purpose of returning a verdict.”

The mistrial means that the first trial of the professional Negligence case is over. But the mistrial doesn’t prevent another trial with a new jury.

Stern said he would “try the case again tomorrow” despite the two companies spending what he estimated was more than $30 million defending the case.

Representatives of Veolia and LAN thanked the jury for its service in statements issued after the mistrial was declared and said Stern failed to hear the message it sent.

Veolia said it was “fully prepared to continue defending the good job VNA did in Flint” as a consultant if a second trial happens.

“As one of the lawyers pocketing $200 million of the $626-million state settlement, we get that he is upset he is not getting another big payday,” Veolia said in a statement to MLive-The Flint Journal. “We know he is looking for more money instead of searching for the truth about who is truly responsible for the crisis in Flint, but this strategy failed today and it will fail again in the future.”

Wayne Mason, an attorney for LAN, said the company spent a “considerable sum of money to defend against the allegations which plaintiffs were unable to prove to the jury by a preponderance of the evidence.”

“Should plaintiffs continue to pursue this litigation we will stand by our employees and vigorously defend the unsupported allegations,” Mason said.

“It is obvious that the plaintiffs were unable, after almost six months of trying, to meet their burden of proof,” Mason said in his statement. “The fact that the plaintiffs could not make their case to this jury underscores what the state’s own investigation found: there was an epic failure of government.”

Attorneys for LAN and Veolia stuck by that position throughout the bellwether trial, contending that government officials in Flint, Lansing and Washington, DC, were solely responsible for the Flint water crisis, and that their clients provided sound advice to the city about its water problems , only to see most of their advice ignored.

“Responsibility for the Flint water crisis lies with these government officials who made the decision to switch Flint’s water source to save money at the expense of residents’ health and well-being, and who have so far escaped all accountability for their actions,” Veolia said in a statement. “That is clear to all who seek justice for the people of Flint and not just outsized legal payoffs.”

The Veolia statement said the company “would have preferred a unanimous verdict and we believe that if the government officials responsible for the Flint water crisis, including Governor Snyder, had answered our questions instead of pleading the Fifth, the jury would have been in a better position to reach a unanimous verdict.”

Snyder was one of five witnesses who invoked his Fifth Amendment right not to incriminate himself by testifying at the civil trial.

Although Levy ruled the officials must testify because they previously gave sworn deposits in the case, Snyder and others appealed that decision to the US Court of Appeals, which has not ruled on the question since hearing oral arguments in late July.

With the Fifth Amendment question unsettled, Levy allowed for portions of the witnesses’ videotaped deposits to be played to the jury during the trial.

The children’s case against Veolia and LAN was centered on a professional Negligence claim against both companies, whom the children claimed were partially responsible for injuries they suffered, including brain damage, after drinking Flint water.

LAN did not properly recommend an appropriate corrosion inhibitor for Flint water and did not adequately warn of the consequences of operating the city’s water treatment plant without doing so, according to court filings by the children.

LAN has said it was hired to perform a limited scope of work in Flint in 2013, including the design of a replacement power substation and the replacement of an existing pump starting in 2013.

“We were never assigned to operate the Flint water plant, we were never assigned to connect the water plant to the Flint River, and we were never assigned to test water quality,” Mason said.

Attorneys for the children claimed in court filings that Veolia officials knew that lead in Flint’s water was a problem but chose not to disclose it when it worked briefly for the city in February 2015.

They claimed the company should have clearly and strongly recommended employing a corrosion inhibitor to prevent lead from leaching into city drinking water.

Veolia has said its work in Flint was limited to making recommendations about water quality issues, specifically focused on limiting chlorine byproducts in the city’s water.

Read more at The Flint Journal:

Deadlocked jury leads to mistrial in Flint water crisis civil case

Judge facing medical issue steps aside in Flint water crisis civil trial

After 21 weeks and 43 witnesses, Flint water crisis case finally in jury’s hands

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