FLINT, MI -- The jury in a civil Flint water crisis trial that started more than five months ago has told a federal judge it is deadlocked in its deliberations, creating the potential for a mistrial.
A source familiar with the case told MLive-The Flint Journal that the jury told U.S. District Judge Judith E. Levy about the stalemate in a note on Thursday, July 29, and that Levy instructed jurors to continue trying to reach a verdict.
The five-woman, three-man jury is scheduled to resume deliberations when it returns to court after a 12-day break on Tuesday, Aug. 9. If it remains divided, Levy could be faced with a mistrial in the case, which was brought by four Flint children who accuse two city of Flint water consultants of professional negligence.
A mistrial would be a setback for the children and their attorneys, who would be faced with the prospect of trying the case again in front of a different jury with no assurance that they recoup their upfront investment in another trial.
In addition to the years attorneys have spent preparing for the case, the four children and the companies -- Veolia North America and Lockwood, Andrews & Newnam -- have each invested in multiple expert witnesses and prepared scores of legal motions, costs that could be duplicated if the case is litigated again.
Corey Stern, an attorney representing the children, declined to comment on the jury’s reported stalemate but said he believes “we are going to have a unanimous verdict” in the trial. Stern said it’s not uncommon for jurors to feel they are at an impasse before finally reaching a consensus.
The Flint water jury, which was seated on Feb. 23, has deliberated for four days since closing arguments in the water case.
Representatives of LAN and Veolia declined to comment on this story.
Mark Dotson, a Flint native and professor of law at Western Michigan University’s Cooley Law School, said he would expect Levy to continue to press the jury to reach a required unanimous verdict given the court’s investment in the case, which is being treated as a bellwether because it has the potential to influence how other pending water crisis lawsuits are resolved.
“She will try her best to facilitate a decision,” Dotson said. “She can wait them out,” continuing to advise jurors that they have a duty to continue deliberations despite an impasse.
“This is a battle of wills,” he said. “There’s no way she wants to start (the case) all over again.”
In addition to Levy’s instruction for jurors to go back to work last week, the judge could also issue a stronger directive known as an Allen charge if the stalemate continues. The formal directive is sometimes used in federal courts to encourage deadlocked jurors to reexamine the grounds for their opinions.
During its deliberations so far, the jury has sent several notes to Levy, requesting clarifications, definitions and requests for exhibits, according to court records.
In the first three days of deliberations last week, jurors requested exhibits including reports issued by Veolia to the city of Flint, a draft report written by Miguel Del Toral of the U.S. Environmental Protection Agency about lead in Flint water, emails written by employees of Veolia and LAN, and copies of the engineering code of ethics.
As of Wednesday, Aug. 3, the federal court docket did not reflect any correspondence between the jury and judge on the subject of the stalemate.
Veolia and LAN have so far declined to settle water crisis lawsuits pending against them in state and federal courts, choosing instead to let a jury decide its liability for Flint’s water problems.
Four other entities -- the state of Michigan, the city of Flint, McLaren Regional Hospital and Rowe Professional Services -- took a different course, agreeing to a $626 million settlement of pending lawsuits against them. The settlement was given final approval by Levy in November.
The companies have each denied responsibility for high levels of lead in Flint water in parts of 2014 and 2015 and deny responsibility for any injuries, including brain damage, that the children claim they have suffered because of their exposure to city water.
Veolia worked briefly in Flint in February 2015, advising the city primarily on issues related to rust-colored water and elevated levels of chlorine byproducts in the water system.
Attorneys for the children maintain the company was aware of the potential for lead in Flint’s water system but never mentioned that risk in reports to the city and never warned the public of what they knew.
The children also claim in court documents that LAN did not properly recommend an appropriate corrosion inhibitor in treating Flint River water and that Veolia also failed to clearly and strongly recommended the use of a corrosion inhibitor to prevent lead from leaching into the public drinking water supply.
LAN’s involvement as a water consultant in Flint dates back to at least 2011, when the company worked with Rowe Professional Services on a report regarding the viability of upgrading the city’s water treatment plant.
Like Veolia, LAN claims government officials are solely responsible for the water crisis and have challenged testimony from witnesses for the children who claim they suffered acquired brain injuries as a result of their exposure to lead.
The children --Emir Sherrod, Aundreya Teed, Riley Vanderhagen and Daylaana Ware -- never appeared before the jury during the trial but members of their families have been among 43 witnesses who have testified.
Those witnesses have also included medical doctors, engineers and water experts who have disagreed about whether the children suffered injuries because of Flint water and whether the advice they provided to city officials was sound.
Attorneys for the children must show that the companies committed professional negligence by breaching the standard of care for a professional engineer, that the children sustained injuries resulting in damages, and that the companies’ alleged breach of the standard of care was a proximate cause of the children’s injuries and damages.
Levy has defined the standard of care as what a water engineer of ordinary learning, judgment or skill would do or not do under the same or similar circumstances faced by Veolia and LAN.
If the jury finds either Veolia or LAN violated the standard of care, it must then determine whether each of the four children has proven the injuries they claim and to what degree the companies are responsible.
Thursday’s exchange over a deadlock among jurors is not the first time the potential for a mistrial has been discussed during the trial.
In May, Levy dismissed a request for a mistrial from Veolia, calling it “wholly without merit.”
The call for a mistrial was supported by LAN and concerned the companies’ claim that they were incurably prejudiced by testimony from Gary Crakes, an expert witness who testified about the difference between “discounted” and “undiscounted” damage awards.
Crakes testified about the difference between the two types of future-damage awards and provided estimates of the four children’s potential lost earning capacity because of damages they claim they suffered because of Flint water.
In each case, future damages amounted to millions of dollars for each child.
Read more:
After 21 weeks and 43 witnesses, Flint water crisis case finally in jury’s hands
Jurors will resume deliberations after 12-day break in Flint water crisis trial