Opinion: A new offense – water settlement objections denied by federal judge

By Rev. Deborah D Conrad

A new offense has insulted Flint this week, in the form of a court ruling — this time from District Judge Judith Levy.

At issue was the Flint Water Settlement, the financial compensation for the residents of this city of 90,000 poisoned by state action in 2014, finally acknowledged in 2015, and yet to be reconciled.

Flint Water Tower (Photo by Tom Travis)

People died. Pregnant people miscarried. Children experienced neurological damage — the effects of which may still be ahead of them as they develop or fail to. Others suffered in various ways — provable or not, but maybe just a realization that it wasn’t this way before: my memory wasn’t this awful before, my ability to focus wasn’t this off before, my body didn’t ache this way before, my vision didn’t do this before.

And still others (and the groups are overlapping Venn diagrams, you know), others had financial setbacks from appliances that had to be replaced, water that couldn’t be used but still had to be paid for, evictions real or threatened, missed work.

The stress of it all has been a weight on the city, a specter haunting the people of this city for nearly eight years.

President Obama said —  I heard him say it in a town hall —  “Listen, you’ll get through it. We all drank lead in the water when we were young and we lived through it.”

U.S. President Barack Obama drinks a glass of filtered water from Flint, a city struggling with the effects of lead-poisoned drinking water, during a meeting will local and federal authorities in Michigan, May 4, 2016. (Photo source: REUTERS/Carlos Barria)

Except for the ones who didn’t, who weren’t there to hear Obama say it, the ones who died, or “failed to thrive,” or the Freddy Grays who were so damaged as to live in danger and die by violence, including state violence.

Pres. Obama’s Assistant Secretary for something related to public health emergencies said — to me at a meeting — that lead is not an issue for otherwise healthy adults; nothing to worry about. (The NIH, the CDC, the Mayo Clinic, the Cleveland Clinic and multiple other health experts disagree.)

Gov. Snyder’s staff member reminded, tenderly, famously, that it is called the Safe Drinking Water Act, not the Tasty Drinking Water Act. And one government official noted to a worried mom, “It’s just a few IQ points.”

The Flint River running out of downtown Flint past the historic Carriage Town Neighborhood and Water St walking bridge. (Photo by Tom Travis)

They tell us the water is safe now. But they don’t live in our houses, don’t live with our fears. Plus, they said that before, and trust is really low, you know?

So, now there’s a settlement, which is surely insufficient for all the harm. Despite objections, Judge Levy gave final approval anyway, $626 million to make whole an entire city of 90,000 people. “Historic settlement” boasted the headlines.

But another settlement also made the news this week — $380 million  for some 300 gymnasts who were victims of Larry Nassar and the infrastructure of Olympic gymnastics. Assuming attorneys get one-third as is typical, that averages about $850,000 for each victim. Surely too little for the harm they’ve suffered.

By contrast, the water settlement, adjusted for attorneys fees, will average about $4,600 per person.

I’m not equating the crimes nor the damage done to victims. I wouldn’t know how to begin. Sexual assault v. brain damage or miscarriage in the worst case? Only insurance actuaries can create math out of that.

But even if the only harm was the necessity of adding a faucet filter and changing it monthly — just about the very least folks might have experienced — the cost over three years (the most conservative timeline of a problem) exceeds the average settlement.

Flint Water Warrior and local activist, Claire McClinton speaks at the 7th anniversary of the Flint Water Crisis. (Photo by Tom Travis)

Stretch that over seven years, and add health costs, tutors, a new water heater or washer/dyer, filters or bottled water, delivered or picked up … well, you get the idea. The average rises to $8,200 if we count only the 50,000 who Judge Levy reports have registered; but that is cynical way to artificially raise the threshold, and is still less than 1/100th the average of the Nassar settlement.

It is worth noting too that at least one non-profit reports that there are hundreds of households in Spanish-speaking communities who have never yet had their water tested, consistent with the dismissive reality that Lt. Gov Calley had to be goaded to provide informational materials in other-than-English from the beginning. Another meeting I sat in, appalled.

More problematic still is the barrier to proving harm. I was already suspicious of the intake forms to register for the settlement — forms that asked a bunch of questions about pre-existing conditions, which seemed like a way to disqualify folks rather than make them whole;  forms that required opting in to be included, or opting out to keep your options open; or opting something else to do something else. Doing nothing at all was a formula for disqualification from any current settlement or future action.

Flint Resident, Vicki Marx, had her car decorated with signs. (Photo by Tom Travis)

I consulted an attorney to discuss the pros and cons spelled out in dozens of pages of this stuff; how many could afford to do that?

Then there was the requirement of proving harm. How do you know your water heater was ruined by lead? How do you know your vision problem was because of lead? Or your memory issue? Or your joint pain? Or your chronic fatigue? Can you prove your pregnancy ended as a result of the water or that your child’s developmental issues are related?

And what about issues that may come? Opt out now to reserve the right to sue later? If you can’t prove causality now, will you be able to later? I was advised early on by my doctor to get a lead level test that was not a blood test. Lead, we all discovered, doesn’t stay in your blood beyond 30 days; but it doesn’t leave your body. It migrates to your bones, to your organs, where it wreaks havoc.

My doc advised I should get a hair/nail test, even wrote it down on a prescription pad. “Take it to the health department,” she said. And I did. Where they were unable to help, and unable to refer me to anyone else. I called many folks: doctors, clinics in and out of state, county health departments. No one had any idea where to get such a test. I gave up.

Some of the hand made signs decorating the backdrop of the seventh anniversary of the Flint Water Crisis event. (Photo by Tom Travis)

Which brings us back to a very specific objection raised by some residents: the bone lead level test that was most likely to show a problem was only available in New York City or West Lafayette, Indiana, and the cost of the test was $500.

At Woodside Church, we respond constantly to people who cannot pay rent and are trying to stave off eviction; who cannot buy groceries; or who are drowning in unpaid water bills — bills for water they could not use. Flint is a city where 40 percent of households experience poverty;  the unemployment rate pre-COVID was above 25 percent. To this city, to the people here in such a condition, to the objection of out-of-town testing, Judge Levy said this, as reported in Flint Beat:

“The notion that Flint residents would be “daunted” by traveling out of state to obtain a test that could potentially affect their recovery level is rejected…” and

“From the Court’s perspective, $500 per test is not prohibitive and is not a reason to reject the settlement.”

People already struggling day by day, already paying among the highest rates in the nation for water that is still not trustworthy, people dealing with medical bills for questionable conditions, people living on the edge, people in these economic circumstances should be able to come up with $500 for a test, plus overnight travel costs, time off work and perhaps child care — in Judge Levy’s  mind.

Water warrior and local activist Claudia Milton-Perkins and Rich Jones stand at press conference today in front of Flints water plant. Photo by Tom Travis)

And in this city where 20 percent of families don’t own a car, with household income at less than half the national median, traveling to Indiana or NYC (600 or 1400 miles round trip, respectively), should not be daunting, Judge Levy said.

But even then, even if they could front those costs, the results would not warrant a settlement that suffices — or perhaps even recoup those test costs.

The judge’s decision is 178 pages. I didn’t read it. I’ve become cynical, among those who believe justice will not come and people will not be made whole. Nothing I’ve heard in any level of government has been sufficient to convince me otherwise.

Judge Levy has served as District Judge or US Attorney in the Eastern District of Michigan since 2000.  Her ignorance of the circumstances of the people of this district  is disgraceful. It is more insult piled on top of a lot of injury.


(Photo provided by Deb Conrad.)

Rev. Deborah D Conrad, EdD, is pastor of Woodside Church in Flint, and director still of UrbanSpirit, a faith-based non-denominational poverty education center.

Author: Tom Travis

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