Get the Lead Out: Lead Contamination Class Actions the Next Blockbuster or Next Bust?

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A shocking new report released by the Natural Resources Defense Council (NRDC) June 28, 2016, indicates that more than 18 million Americans may be drinking from water systems containing lead content that exceeds the amount allowed under federal law. Utilizing digital maps and data maintained by the Environmental Protection Agency’s Safe Drinking Water Information System, the NRDC determined that more than 5,363 water systems, including 34 in Minnesota, violated the EPA’s guidance on lead and copper content. The council also determined that many of these water systems failed to properly treat and test water, failed to report impurities to residents, or used flawed or suspect testing methods to avoid the detection of high levels of lead. Some of these suspicious testing methods include selective testing of homes, the flushing of taps prior to inspection, or the taking of water samples slowly, which is known to produce a misleading reading of lead levels. The new report comes amid heightened concerns regarding lead and pollutants in water systems and national outrage over lead contamination scandals in Michigan, Pennsylvania and New York. The report contains all the signs of a blockbuster mass tort. First, all claims, especially mass tort claims, benefit from sympathetic plaintiffs. It is scientifically and medically undisputed that lead exposure leads to devastating effects on the brain and central nervous system and has especially long-lasting and irreversible effects on brain development in children. There are potentially thousands of affected citizens, many of whom are children, who ostensibly did nothing to contribute to the onset of these conditions other than to take a shower or drink a glass of water from their own taps. Mass tort claims also benefit from having a condemnable “villain” as a defendant. Here, the NRDC report suggests that thousands of purported public servants tasked with ensuring public safety, acted carelessly, incompetently and indifferently as toxins gushed out of its citizens’ taps. Despite some of the obvious strengths of a lead-water classaction lawsuit, there are significant legal hurdles facing any plaintiff who wishes to prevail on these claims.

The primary legal obstacle is the constitutional doctrine of sovereign-immunity. Under the age-old doctrine, based in maxim that “the king can do no wrong,” individual states are authorized to shield themselves via statute from lawsuits brought in either tort or contract. For example, the state of Michigan, which has recently been involved its own high-profile lawsuit involving lead contamination, immunizes its government agencies from tort liability if the entity was engaged in the exercise or discharge of a governmental function. Similarly, Minnesota has its own statutes that shield state agencies and municipalities for loss caused by the performance or failure to perform a discretionary duty, whether or not the discretion is abused. Specific causation issues are also likely to throw a wrench into any class action effort. For example, lead exposure, unlike products such as asbestos, does not cause a “signature disease.” Developmental delays, cognitive issues and brain-function irregularities are known to be caused by a host of other factors including genetics, abuse and malnutrition.

Plaintifflawyers do however, have legal options in their arsenal. The sovereignimmunity doctrine traditionally does not protect a state entity in cases where it has infringed on a citizen’s constitutional rights. The argument could be made that the presence of lead in drinking water denied citizens of their 14th Amendment right to bodily integrity and their constitutional right to be free from state-created danger. The approach is innovative, but admittedly untested. No federal court has ever applied the sovereign-immunity doctrine in an analogous fact pattern, and only recently have lawyers in Michigan filed complaints alleging similar, constitutionally based causes of action. Yet another alternative for plaintifflawyers is to claim that government conduct was so opprobrious that it rises to the level of gross negligence. Indeed, many states’ sovereign-immunity statutes create carveouts in cases of intentional or grossly negligent conduct. Because the NRDC report suggests nationwide rigged testing, the strategy could be effective.

Despite the legal hurdles facing those who seek to bring class action lawsuits against state and local governments, lead contamination class action lawsuits are unlikely to go away quietly. Attorneys who are structuring class action lawsuits have sympathetic plaintiffs, condemnable public servants and potentially compelling legal arguments on their side. The NRDC report is also likely only the tip of the iceberg. Some of the most acknowledged and grievous lead-water violations, including those experienced by the city of Flint, Michigan do not even show up as having violations for lead in the EPA’s drinking water tracking data. This suggests that millions more Americans, beyond the 18 million estimated in the new report, could be at risk of drinking unsafe water but are not being tracked. At the very least, the new NRDC report should garner increased scrutiny and healthy debate into the methodology, responsibility and obligation of state and municipal lead policies.

Eric Lindenfeld

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