Photo by Jeffrey Luke
Steve Morrissey and his team have recovered $626M from government entities over the Flint water crisis. Now They've got their sights on the engineering firms.
In March 2016, residents of Flint, Mich., filed suit against two engineering firms and multiple government entities, alleging they were liable for their roles in exposing the predominantly Black community to toxic levels of lead in its drinking water. Since then, the litigation over the Flint water crisis has swollen to epic proportions, with more than a dozen law firms, and more than two dozen attorneys, representing plaintiffs claiming exposure to the contaminated water. To date, their efforts have yielded a $626M settlement with the State of Michigan, the City of Flint and other government entities – the largest civil settlement in Michigan history.
A class trial of professional negligence claims against one of the engineering firms, Veolia North America, is scheduled for February. According to the plaintiffs, Veolia failed to link the lack of corrosion control to contamination, and made the problem worse by recommending that the City of Flint double the dose of highly corrosive ferric chloride that it added to the water supply. Jurors in August 2022 were unable to reach a verdict over the liability of Veolia and another engineering firm, Lockheed, Andrews & Newman, causing a mistrial in a case brought by individual plaintiffs. LAN reached a settlement of the claims against it early last year.
Steve Morrissey, a Seattle, Wash.-based partner with the national litigation firm Susman Godfrey, has been involved in the plaintiffs’ team almost since the beginning of the litigation. As a member of the Executive Committee for Interim Class Counsel and co-chair of the Expert Committee, he has helped shape the legal strategy for challenging the conduct of the engineering firms and government officials and seeking compensation for lead poisoning, property damage and other injuries resulting from the contaminated water.
Morrissey is no stranger to complex litigation. He’s currently serving as co-lead counsel in ongoing class actions for North Carolina residents seeking compensation from Chemours and DuPont for the contamination of the water supply in the Cape Fear River area with PFAS. He’s also representing members of the Chicago Mercantile Exchange and Chicago Board of Trade, claiming rights in CME’s electronic trading floor. He’s represented Flutter in a multi-billion-dollar arbitration with FOX over FOX’s right to invest in FanDuel, won a jury trial against Beats Electronics involving the design for Beats headphones, and sued Spotify for infringing the rights of music copyright owners.
Morrissey also recently helped win a confidential settlement worth hundreds of millions of dollars for investors in a cryptocurrency and blockchain startup. He has also defended clients in complex litigation matters, including the NASDAQ stock exchange in a fraud action brought by the Jefferies & Co. investment firm.
In terms of toxic tort litigation, though, it doesn’t get much bigger than the Flint water crisis cases. Lawdragon caught up with Morrissey as he prepares for the Veolia trial.
Lawdragon: How did you become involved in bringing legal claims on behalf of Flint residents?
Steve Morrissey: It was kind of convoluted but another lawyer we work with picked up on the role of the engineers [in the Flint water crisis]. We investigated that claim for a number of months and were initially planning to focus on a class case against the engineering firms. But then over time, as the case got organized, we added the claims against the state and city defendants as well, took on a role as part of the lead group for the class plaintiffs, and the team here has managed large aspects of the litigation since, including the governmental claims and the engineering claims. And now we have a certified issue class against the Veolia engineering firm that is set for trial in February.
You had lead at these concentrations affecting children in a concentrated area for a discrete period of time with no real explanation for how anyone could have let it happen. You had levels of incompetence and terrible advice at various levels.
LD: How did you figure out that the state had a big role here and had liability?
SM: Well, it was clear the state had a big role to play from the beginning. Navigating the qualified immunity issues was difficult and we obtained a good ruling from the appellate court on that several years ago. And that prompted the legislature to push toward a settlement of the claims against the governmental defendants. It took, I think it was 18 months, for the whole settlement process to work itself out. And then once the settlement was approved, there was an appeal process from objections to the settlement that took another couple of years. So it's been a very drawn out process.
LD: Why was this was such a protracted struggle?
SM: My cases all seem to tend to take a long time. We have a case in North Carolina where I’m co-lead, involving chemical dissemination of the water supply in the Cape River Basin from a DuPont plant. And that case has been going on since 2017, I think. So it’s not unusual for these environmental cases to take a long time. And the Flint water crisis, when it happened, was front page news nationwide. You had lead at these concentrations affecting children in a concentrated area for a discrete period of time with no real explanation for how anyone could have let it happen. You had levels of incompetence and terrible advice at various levels that led to it happening. And there was the failure to deal with it once it started happening. It all sort of cascaded and led to it being very high profile and obviously a lot of litigation.
LD: What were some of the hurdles that you encountered in the case and how did you overcome them?
SM: There were hurdles in terms of where the case would be litigated – state court versus federal court, what kinds of claims would be litigated, state claims versus federal claims. There were various remands and removals and then fights over how it would be organized and structured and which group would end up having it. That all took more than a year, maybe closer to two, for it to sort itself out. Then there were motions to dismiss. There was an appeal from a decision finding that claims against the state officials could proceed notwithstanding their qualified immunity defense. There's obviously a lot of discovery. There are parallel criminal proceedings in state court that everyone had to pay attention to. As a result, we had witnesses who would show up for depositions and take the Fifth because they were subject to the criminal case. And then Covid happened, so that obviously slows down discovery and everything else. There was the settlement process and figuring out when cases would be tried.
The court ultimately certified a class for portions of the case, but then others were not in a class. So we're working together with co-liaison counsel who are representing individual personal injury plaintiffs. And we've generally worked together well with them, but we haven't always agreed on how to proceed. Ultimately the judge decided to have a bellwether case with four of the individual plaintiffs and set that as the first case to go to trial. It did ultimately go to trial in 2021. The trial took about six months and then the jury hung, and that was after the settlement of the case against the governmental defendants. So now the bellwether case is going to be retried after our trial in the Veolia case, which is set for February.
LD: It sounds like the defense side tried to use some procedural feet-dragging tactics. Do you think there an element of waiting it out, hoping people would stop paying so much attention?
SM: I think that's a part of it. With the governmental defendants, the settlement was really driven by the change in government in Michigan. When [Gov. Gretchen] Whitmer won and the legislature turned over, there was suddenly a real impetus for coming up with a reasonable amount of money to help solve this problem.
As for Veolia, there are really a couple parts to their strategy. One is just delaying things as long as possible and hoping people get tired, move on to other things. Another is pointing the finger at everyone else and saying, “Look, our role is very narrow. The government wouldn't have listened to us even if we'd given different advice.” There’s also the way tort law is structured in Michigan. There's something called a non-party at fault statute where a tort defendant can allocate responsibility for damages among other people who were involved in the incident. A big fight we're having right now is over how this non-party at fault issue will be narrowed down for the trial.
There are parallel criminal proceedings in state court that everyone had to pay attention to. As a result, we had witnesses who would show up for depositions and take the Fifth because they were subject to the criminal case.
LD: You're a member of the Executive Committee and you co-chair the Expert Committee. How were you appointed to those roles?
SM: Ted Leopold at Cohen Milstein and I initiated the case together and decided he'd take one of the co-lead roles, and then the class plaintiffs’ group decided, with the court’s approval, to have two co-leads, the other being Mike Pitt. Pitt's group had initiated the first case against the governmental defendants. Our group had brought the first engineering case. So it kind of made sense to split it up that way. And then on the Executive Committee, it's a group of folks. We have a team of lawyers from Susman Godfrey who have been doing various aspects of the case and I think have handled much of the key briefing arguments working with experts. My partner, Sean Raymond, was particularly involved in the settlement negotiations with the state. We're looking forward to playing a key role at the trial that comes up in February.
LD: How would you describe your leadership role in these cases?
SM: We do a lot of cases where we're the only firm involved. So it's different to have to engage in this sort of herding of cats that has to happen in complex litigation like this, where you have a bunch of different lawyers and law firms with different kinds of cases and different thoughts on how the cases should be handled. It requires much more diplomacy between us and other lawyers to smooth over disagreements. Fortunately, part of our firm's culture is to get along well with everyone, both opposing counsel and co-counsel. And I think that helps a lot in this context.
It's really a model of how teams need to be put together in complex litigation and how you can bring together a diverse group of people for a common end. And here we've got a mix of people from all over the country trying to get to a good result for this community at the end of the day.
LD: Was there a race to be the first firm to file a case?
SM: No, it wasn't really a race. Cases had been filed against governmental defendants and the lawyer I'd worked with had this idea from reviewing the materials that “It doesn't look like anyone sued this engineering firm. They clearly play a significant role.” And so I followed up on that along with others here and we crafted that theory of the case based on Veolia's involvement. We were the first ones really to bring a case about Veolia’s conduct. And then it ultimately got consolidated with everything else and litigated in parallel.
LD: Can you give me an overview of your practice these days?
SM: It's a mix, split fairly evenly between complex commercial litigation, just one plaintiff suing one defendant or any sort of commercial dispute and environmental cases like Flint and the Cape River Basin case. I also have a takings case in the Court of Federal Claims involving Navy Growler aircraft on Whidbey Island [in Washington State] that involves the increased noise and its impact on property values. And the biggest commercial case I've had recently is an arbitration between the Flutter online gaming company and Fox's sports betting business.
LD: Is this the type of practice that you imagined that you were going to have back when you were in law school?
SM: I knew I wanted to do complex litigation but I didn't really appreciate that I would like trial lawyering as much as I do. I actually like being in court, cross-examining witnesses, making arguments, and have gotten a chance to do it more often than I thought I would. I initially went to Munger Tolles out of law school and was on the defense side of a lot of antitrust cases. The reason I decided to come to Susman is it looked like the plaintiff side of cases was a lot more fun and I ended up going to trial more often and had a more entrepreneurial sort of approach to the practice of law.
LD: Has it lived up to what you thought it would be?
SM: Yes, it's been fantastic. Can't imagine being anywhere else.
LD: Can you talk about how your past wins are going to be helpful pursuing the Veolia firm in the Flint litigation? Or is it very different?
SM: It's not really that different. The claim is a professional negligence claim. They had a contract. The contract has provisions that are helpful to us on their scope of duties, there’s a bunch of documents that are helpful. So piecing together the case and our story and how to present it to a jury is the same as any other complex case. And we’ve been figuring out which of their witnesses are going to be the ones we want to call at trial, we’ve been taking depositions in a way that you can use them at trial. We need to tell our story through adverse witnesses, and you often need to develop that case for trial through the depositions rather than at the trial itself. And so we've gone through the depositions thinking of them as putting together our case in chief for trial.
LD: The national media conversation about Flint often came back to racism and how this is a majority Black community. Is that something that you use in your legal strategy at all?
SM: It's definitely an undercurrent. This is a predominantly Black community, a very poor city, under-resourced. We do have that kind of David-and-Goliath aspect to this trial. We have a community of people who were harmed by poisoned water that corroded pipes, damaged homes, destroyed their community, and Veolia is a French company that's worth billions of dollars. They were hired to help the city try to fix the problem, and we claim they gave bad advice that led to this problem and they could have averted it had they given the correct advice.
LD: Do you have any takeaways in terms of getting diverse groups to work together towards a goal?
SM: It's really about communicating regularly, respecting everyone's input, and if there's ever a problem, speaking up earlier rather than later.