DETROIT — A high-profile Flint water crisis trial against two private engineering companies ended Thursday with a hung jury, a development that experts say makes a settlement less likely in the near future but lets the opposing attorneys learn lessons from the five-month-long case.
Eastern District of Michigan U.S. District Court magistrate judge David Grand declared the mistrial after receiving a note from the eight-member jury saying they did not believe they could deliver a verdict without putting the mental and physical health of the one holdout juror in jeopardy.
“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 note read.
The development came after a two-week deliberation and a five-month-long trial for a lawsuit brought by four children who lived in Flint during the city’s contaminated water crisis against Veolia North America and Lockwood, Andrews & Newnam (LAN) over their alleged role in the Flint water crisis. It was the first Flint water-related lawsuit to make it to trial since the man-made disaster began nearly a decade ago.
The case had been billed as a bellwether that could set a precedent for dozens of Flint water lawsuits against the two defendants.
The mistrial essentially puts the trial back at the beginning, but with some lessons learned from the first round, said Richard Marcus, a law professor at University of California Hastings.
“We’re back to square one with some additional information,” said Marcus, explaining that "both sides have now seen the other side put on a case at trial."
It also means the likelihood of a settlement is more distant, he said, adding that had the jury returned a liability verdict against that defendant, it might have prompted serious settlement considerations.
How decision was made
Grand opened Thursday's session by reading the note aloud to the attorneys before allowing both sides to make their arguments for how to proceed.
The plaintiff's counsel sought to pursue further inquiry before declaring a mistrial in order to better understand the well-being and stability of the jury, particularly after several emotional outbursts from one of the jurors raised concern about that juror's ability to continue serving. The attorney emphasized there could still reach a verdict, stressing the significance of the case warranted the additional effort.
"This case, as indicated by the very verdict form that we're looking at, is the first bellwether case, and it serves the interests of all of the parties to the Flint water crisis litigation to have guidance from jurors," said the plaintiff's lawyer, Moshe Maimon, a partner at the New York-based law firm Levy Konigsberg.
Defense attorneys for both LAN and Veolia argued in favor of declaring a mistrial.
“What they have said here is that it would be stressful to continue deliberations. But it is without any purpose,” said Cheryl Bush, an attorney representing Veolia. Busch described the circumstances in the note as the “epitome of a mistrial."
Ultimately, Grand sided with the defense counsel and ruled a mistrial.
“In my view, the jury has spoken,” said Grand, who described them as possibly “the most dedicated group of jurors to ever serve in the Eastern District.”
The development late Thursday morning came after two previous notes were sent by the jury over the course of deliberations saying they did not believe they could come to a unanimous verdict.
On July 28, the jurors wrote: “The jury is hung. We believe further deliberation will not produce a unanimous decision.”
Then again, on Thursday morning, they sent a note, saying: “We believe the jury will not come to a unanimous decision even with additional deliberation.”
After the first note was sent on Thursday, the judge held a conference with the jury and attorneys, and saw the holdout juror burst into tears for the second time since deliberations began. The jurors were then given additional jury instruction to again return to the jury room to deliberate.
“Realize that you are having some difficulty reaching unanimous agreement, but that is not unusual. And sometimes after further discussion, jurors can work out their differences and agree,” Grand wrote in the instructions.
A short time later, they sent back the third and final note explaining the toll the further deliberations would take on them.
What comes next
Thursday's hung jury marks the latest development in a case that has spent years winding its way through federal court and means the case will be retried in the coming months.
The plaintiffs are four young children who were living in Flint during the city's contaminated water crisis, which was caused by a botched water supply switch that left thousands of kids potentially exposed to high levels of lead.
Lead is a neurotoxin that can have severe impacts on brain development in kids. Attorneys for the four children have sought to show LAN and Veolia's work with the Flint water system at various points before and during the water crisis contributed to the mental and physical effects the water has had on their young bodies.
The city of Flint began using the Flint River water as its municipal drinking source in April 2014. For 18 months, the improperly treated water corroded the city's pipes, leaching heavy metals along the way as it flowed into people's homes, exposing the city's 100,000 residents to the contaminated water. The water source was switched in October 2015.
In 2013, about a year before the water switch, LAN was contracted to assist the city of Flint in preparing its water treatment plant for the new water supply. The company's staff members were aware that the city had decided against using orthophosphates as a form of corrosion control to treat the acidic Flint River water.
The lawsuit accused LAN of professional negligence and ”collective failure" in properly readying the city's water treatment plant to use the Flint River as the primary source of drinking water and failing to report the dangers of not using corrosion control.
Veolia was contracted by the city in early 2015 to help the city address the water quality problems in the aftermath of the switch to the river. Emails show that company's staff internally discussed concerns about corrosion and lead problems. Ultimately, however, Veolia did not make any formal recommendations to the city about correcting those issues. The city continued using the Flint River for another eight months without addressing the corrosion problems and continuing to put thousands of Flint children at risk of lead poisoning.
In court, Veolia has argued that city officials failed to disclose important information, leaving the company without sufficient information about potential lead issues in the system.
But the mistrial is not usual, according to one expert.
“Mistrials happen. Jurors don’t always agree,” said Jay Tidmarsh, a law professor at Notre Dame with a background in complex civil litigation.
But the purpose of a bellwether trial is to help establish the baseline for potential liabilities of the defendant, what the case is worth and what the risks are to both sides, Tidmarsh said.
The lessons learned involve each side learning what witnesses worked best, he said.
“It's not that you learn nothing (from a mistrial), but in terms of getting information, they are the least helpful,” he said.
