Case 5:16-cv-10444-JEL-MKM ECF No. 1786, PageID.63797 Filed 05/25/21 Page 1 of 31
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`In Re Flint Water Cases,
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`No.: 5:16-cv-10444-JEL-MKM
`(consolidated)
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`Hon. Judith E. Levy
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`Magistrate Mona K. Majzoub
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`CO-LIAISON COUNSEL’S RESPONSE TO THE WASHINGTON AND
`CHAPMAN PLAINTIFFS’ MOTION TO EXTEND THE 90-DAY
`DEADLINE REGARDING BONE SCANNING
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`Co-Liaison Counsel hereby submits this memorandum of law in opposition to
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`the Washington and Chapman Plaintiffs’ Motions to Extend the 90-Day Deadline
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`Regarding Bone Scanning and Medical Linking Reports (Dkt. Nos. 1714, 1717)
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`(hereinafter the “Motions”). As explained more thoroughly herein, Co-Liaison
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`Counsel respectfully requests that the Court enter an order denying the Motions and
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`for such other and further relief the Court deems just and proper.
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`Dated: May 25, 2021
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` Respectfully submitted,
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`NAPOLI SHKOLNIK
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`By: /s/ Hunter Shkolnik
`Hunter J. Shkolnik, Esq.
`270 Munoz Rivera Avenue
`Hato Rey, Puerto Rico 00918
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`LEVY KONIGSBERG, LLP
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`By: /s/ Corey M. Stern
`Corey M. Stern, Esq.
`800 Third Avenue
`Suite 11th Floor
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1786, PageID.63798 Filed 05/25/21 Page 2 of 31
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`(833) 271-4502
`hunter@nsprlaw.com
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`New York, NY, 10022
`(212) 605-6200
`cstern@levylaw.com
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`Co-Liaison Counsel for Individual
`Plaintiffs
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1786, PageID.63799 Filed 05/25/21 Page 3 of 31
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`TABLE OF CONTENTS
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`INDEX OF AUTHORITIES .................................................................................... iii
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`PRELIMINARY STATEMENT ............................................................................... 1
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`FACTUAL BACKGROUND .................................................................................... 1
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`ARGUMENT ............................................................................................................. 4
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`I. MOVING COUNSEL HAVE FAILED TO ADEQUATELY REPRESENT
`THEIR CLIENTS. ............................................................................................ 4
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`II. MOVING COUNSEL HAVE NOT MET THEIR BURDEN IN
`ESTABLISHING GOOD CAUSE FOR EXTENDING THE DEADLINE. .. 6
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`A. The 90-day Deadline for Bone Scans and Medical Causation Reports
`is a Material Term of the AMSA and Should Not Be Extended. ......... 8
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`B. Good Cause to Extend the 90-day Deadline for Bone Lead Testing
`Does Not Exist Under Fed. R. Civ. P. 6(b), or Otherwise. ................... 9
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`i. Moving Counsel’s delay, despite possessing prior knowledge and
`experience in bone scans, should not be rewarded. .......................11
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`C. Additional Time is Not Needed to Verify the Safety and Reliability of
`Bone Scans. .....................................................................................14
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`III. THE XRF BONE LEAD TESTING PROGRAM IS SAFE AND
`PROPERLY PERFORMED SAFELY AND TRANSPARENTLY. ............17
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`A. Declaration of William G. Bithoney, MD, FAAP. .............................18
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`B. Declaration of Walt Cofer.. .................................................................18
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`C. Declaration of Ben Crump, Esq. .........................................................19
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`D. Declaration of Ari Kresch, Esq. ..........................................................20
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`E. Declaration of Yuwonia Speights-Beaugard .......................................20
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`F. Declaration of Paul Napoli, Esq ..........................................................21
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`G. Report of Jon Merz ..............................................................................22
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`H. Declaration of Reginald Davidson ......................................................23
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`I. Declaration of Claudia Perkins-Milton, Dewaun Robinson, Lisa
`Hairston, Timothy Johnson, and Virginia Nolan. ...............................23
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`CONCLUSION ........................................................................................................24
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1786, PageID.63801 Filed 05/25/21 Page 5 of 31
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`INDEX OF AUTHORITIES
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`Cases
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`Bostick Foundry Co. v. Lindberg, Div. of Sola Basic Industries, Inc., 797 F.2d 280
`(6th Cir. 1986) ......................................................................................................... 8
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`Brokaw v. Comm'r of Soc. Sec., No. 2:15-cv-13914, 2017 U.S. Dist. LEXIS 39983
`(E.D. Mich. Mar. 21, 2017) ..................................................................................10
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`Downey v. Clauder, 811 F. Supp. 338 (S.D. Ohio 1992) .......................................... 9
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`Family Indep. Agency v. AMB (In re AMB), 248 Mich. App. 144, 640 N.W.2d 262
`(2001) ...................................................................................................................... 5
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`Frank Penna and Lisa Penna v. The United States, 16-cv-01545, (Fed. Cl. 2021) .. 6
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`Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) ........................................ 9
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`Holmes v. Cont’l Can Co., 706 F.2d 1144 (11th Cir. 1983) ...................................... 9
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`McCormick v. Brzezinski, No. 08-10075, 2010 U.S. Dist. LEXIS 36106 (E.D.
`Mich. Apr. 13, 2010) .............................................................................................. 7
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`Middlebelt Plymouth Venture, Ltd. Liab. Co. v. Moe's Sw. Grill, Ltd. Liab. Co., No.
`07-12190, 2011 U.S. Dist. LEXIS 125947 (E.D. Mich. Nov. 1, 2011) ...............10
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`Myers v. Greene Cty. Bd. Of Educ., No. 2:16-cv-00096, 2018 U.S. DIst. Lexis
`194681 (E.D. Tenn. Nov. 15, 2018) ....................................................................... 8
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`Nafziger v. McDermott Int'l, Inc., 467 F.3d 514 (6th Cir. 2006) ............................... 7
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`Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157 (5th Cir. 1978) ................. 9
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`Rainey v. United States Bank Nat'l Ass'n, No. 11-12520, 2011 U.S. Dist. LEXIS
`119905, at *4 (E.D. Mich. Oct. 18, 2011). ...........................................................11
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`RE/MAX Int’l, Inc. v. Realty One, Inc., 271 F.3d 633 (6th Cir. 2001) ...................... 8
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`Rules
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`Fed. R. Civ. P. 6(b) ..................................................................................................10
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`Mich. R. Law. & Jud. 1.1 - 1.18 ................................................................................ 4
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`Mich. R. Law. & Jud. 1.3 ........................................................................................... 6
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`Mich. R. Law. & Jud 1.1 ............................................................................................ 5
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1786, PageID.63803 Filed 05/25/21 Page 7 of 31
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`PRELIMINARY STATEMENT
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`Co-Liaison Counsel hereby submit this memorandum of law in opposition to
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`the Washington and Chapman Plaintiffs’ Motions to Extend the 90-Day Deadline
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`regarding Bone Scanning and submission of medical linking reports (Dkt. Nos.
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`1714, 1717) (hereinafter the “Motions”). Movants’ motion highlights the failures of
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`Marc Jay Bern, Mark Cuker, and other individual attorneys in adequately
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`representing their clients in this litigation for the last five years. Moving Counsel
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`have had the knowledge and the means to confirm their clients’ injuries, but their
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`law offices failed to provide clients that service in a timely fashion. Moving
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`Counsel’s papers corroborate that these offices took no steps to verify their clients’
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`injuries until recently.
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`Moving Counsel have failed to meet their burden of showing that the 90-day
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`deadline for bone scans and medical diagnosis is not a material term of the AMSA
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`(Dkt. No 1319-1), or that good cause exists to extend the deadline. Nothing
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`prevented the movants from seeking these proofs over the last five (5) years. In fact,
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`thousands of children and adults have already timely obtained their injury proofs.
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`FACTUAL BACKGROUND
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`On April 5, 2016 and February 27, 2018, the Washington and Chapman
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`Plaintiffs respectively, by and through their Counsels Marc J. Bern & Partners, LLP1,
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`1 The Court should be aware that Mr. Bern’s co-counsel, Ari Kresch, Esq., has submitted a
`declaration opposing the Washington and Chapman Plaintiffs motions. Exhibit D
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1786, PageID.63804 Filed 05/25/21 Page 8 of 31
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`and the Cuker Law Firm, filed individual cases in the Flint Water Crisis Litigation
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`claiming personal injury from exposure to lead contaminated water. Combined these
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`two law firms filed over 5,000 cases. Despite having retained these clients and filing
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`cases years ago, movants failed to take a single step to try to substantiate their clients
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`claims. Moving Counsel, who advertise themselves as environmental law lawyers2
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`3and as experienced trial attorneys, knew (or should have known) that proof of
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`exposure and causation are critical elements in any environmental toxic tort case. In
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`cases of lead poisoning understanding the true extent of exposure is essential.
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`The Master Settlement Agreement (“MSA”) was filed on November 17, 2020.
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`ECF No. 1319-1. The Amended Master Settlement Agreement (“AMSA”) was filed
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`on January 15, 2021. ECF No. 1393-2. The 90-day deadline for bone lead tests and
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`medical causation reports, expired on April 27, 2021. See Exhibit 8 of the AMSA
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`(Dkt. No. 1319-2). The Movants incorrectly state that the 90-day deadline was not
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`“provided for in the MSA. . .” Motion, Dkt. 1717, PageID.62484. However, a
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`cursory review of the Flint Water Cases (FWC) Qualified Settlement Fund
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`Categories, Monetary Awards, and Required Proofs Grid, 11/11/20, attached to the
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`MSA as Exhibit 8 (ECF No. 1319-2, PageID 40791), clearly shows that the parties
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`contemplated and agreed upon the 90-day deadline. See ECF No. 1319-2, Page ID
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`40791 (“Test must have been taken between May 16, 2014, and 90 days after the
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`2 https://bernllp.com/environmental-law/;
`3 https://www.cukerlaw.com/practice-areas/contaminated-water/
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`2
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1786, PageID.63805 Filed 05/25/21 Page 9 of 31
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`date of the Preliminary Approval Order. . .”)
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`Even when Movant’s Counsel became aware that bone lead testing was an
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`option under the AMSA last year, they did not give their clients the required attention
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`and preparation they are entitled to. Instead, Moving Counsel launched a series of
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`baseless and conflicting attacks on Co-Liaison Counsel and the proposed settlement
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`as it pertains to bone scans.
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`First, on December 10, 2020, in his opposition to Motion for Preliminary
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`Approval, Mr. Cuker demanded access to the bone lead tests for his clients. Cuker
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`argued that the court should hold a full and open hearing about the availability of the
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`bone lead testing to individual plaintiffs. See Dkt. No. 1341. After the Court
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`preliminarily approved the Settlement, Mr. Cuker filed thirteen (13) objections on
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`behalf of several of his clients stating there was no availability for bone scans while
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`simultaneously calling into question the safety, reliability, and accuracy of the
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`examinations he was seeking for his clients in the same objection. See ECF Nos
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`1469, 1478, 1479, 1484, 1485, 1488, 1489, 1492, 1493, 1534, 1536, 1537, 1538.
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`Most recently, Moving Counsel, in their Motion to Extend Deadlines to Register
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`(ECF No. 1494), sought a 60-day extension to register claimants when they learned
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`that an alternative bone scan site by Co-Lead Interim Class Counsel would not be
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`available. Again, they raised an issue with the availability, safety, and reliability of
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`the bone scan tests and stated they “were giving this method the benefit of the doubt
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`and hoping the alternative scans would be made available and be transparent.” Dkt.
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1786, PageID.63806 Filed 05/25/21 Page 10 of 31
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`No. 1494. These pleadings highlight the indefensible duality of Moving Counsel’s
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`position with respect to bone scans. On one hand, Moving Counsel have taken issue
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`with the availability of scans, while questioning the safety and reliability of the scans
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`on the other.
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`Allowing the amendment and/or extension of the schedule now would result
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`in unfair prejudice to the tens of thousands of individuals who have registered for
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`this Settlement and have timely obtained the necessary proofs for filing claims.
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`Moving Counsel chose not to take a single, practical step in timely obtaining bone
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`scans for their clients. Moreover, there is no “newly” discovered evidence that
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`precipitated Moving Counsel’s Motion. Counsel knew the deadline for bone scans
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`was April 27, 2021, and instead chose to spill pages of ink in the form of baseless
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`motions calling into question the accessibility and availability of bone scans. In
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`short, Moving Counsel has not demonstrated good cause for the requested relief.
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`Moving Counsel’s request should be denied.
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`ARGUMENT
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`I. MOVING COUNSEL HAVE FAILED TO ADEQUATELY
`REPRESENT THEIR CLIENTS.
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`Moving Counsel have had every opportunity to prepare their cases for over
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`five years and were well aware of their responsibilities to their clients. See Mich. R.
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`Law. & Jud. 1.1 - 1.18 stating “A lawyer shall provide competent representation to
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`a client. A lawyer shall not: … (b) handle a legal matter without preparation adequate
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`in the circumstances; or (c) neglect a legal matter entrusted to the lawyer.”)
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`Ironically, Moving Counsel had little to no responsibilities in handling the liability
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`issues and discovery that involved dozens of depositions, experts and the review of
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`millions of pages of documents. That work was handled exclusively by Co-Liaison
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`Counsel and members of the Class Action leadership. Movants instead sat back and
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`have done nothing but complain and wage baseless attacks on Plaintiffs’ leadership.
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`The comments to MRPC 1.1 are instructive here:
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`Competent handling of a particular matter includes inquiry into and
`analysis of the factual and legal elements of the problem, and use of
`methods and procedures meeting
`the standards of competent
`practitioners. It also includes adequate preparation. The required
`attention and preparation are determined in part by what is at
`stake; major litigation and complex transactions ordinarily require
`more elaborate treatment than matters of lesser consequence.”
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`MRPC 1.1 (emphasis added); see also Family Indep. Agency v. AMB (In re AMB),
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`248 Mich. App. 144, 224-25, 640 N.W.2d 262, 305 (2001).
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`Moving Counsel, like all lawyers in Michigan are required to be competent.
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`See, MRPC 1.1, Competence. Moving Counsel should not handle a legal matter
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`which he knows or should know that he is not competent to handle, without
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`associating with a lawyer who is competent to handle it. Moving Counsel, in
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`representing children and adults for personal injuries related to lead exposure, knows
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`that without preparation adequate in the circumstances will surmount to “neglect a
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`legal matter entrusted to the lawyer.” Sadly, Moving Counsel did absolutely nothing
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`to benefit their clients.
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1786, PageID.63808 Filed 05/25/21 Page 12 of 31
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`This is not the only instance where Mr. Cuker’s at best, inadequate preparation
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`or at worst outright deceit, resulted in harm to his clients. In Frank Penna and Lisa
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`Penna v. The United States, 16-cv-01545, (Fed. Cl. 2021), the Court imposed
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`sanctions against Mr. Cuker, counsel for Plaintiffs Frank and Lisa Penna, for
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`discovery violations and abuses in an attempt to mislead the Court by hiding critical
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`factual information from the Court to reach an erroneous conclusion and award
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`damages. In concluding that Mr. Cuker’s actions warranted sanctions, the Court
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`opined that “ . . . the Court is troubled the most, by far, about the impact of Mr.
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`Cuker’s handling of this matter on the Pennas themselves.” The facts here are
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`similar, Cuker has acted in a manner inconsistent with his clients’ best interests.
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`Moving Counsel have acted contrary to their clients’ interests by thus far opposing
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`and objecting to bone lead tests and now, after a much-awaited settlement has been
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`reached following lengthy negotiations.
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`Moving Counsels’ only responsibility was to work up the exposure of each of
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`their clients and the case specific injuries. Instead, they chose to neglect their
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`responsibilities and failed to adequately prepare their client’s medical case. See,
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`Mich. R. Law. & Jud. 1.3 Diligence: “A lawyer shall act with reasonable diligence
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`and promptness in representing a client.” While Moving Counsel may want
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`additional time to have bone lead tests and to submit linking reports because of their
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`neglect of these cases. Good cause does not exist when an attorney acts in a dilatory
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1786, PageID.63809 Filed 05/25/21 Page 13 of 31
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`fashion to the detriment of his own clients. This type of conduct should not be
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`rewarded.
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`II. MOVING COUNSEL HAVE NOT MET THEIR BURDEN IN
`ESTABLISHING GOOD CAUSE FOR EXTENDING THE
`DEADLINE.
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`The Court should look to Moving Counsel’s conduct in determining good
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`cause to extend a material term of the settlement agreement. Moving Counsel rely
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`on three reasons in support of their request to extend the deadline: 1) the 90-day
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`deadline is not a material term of the AMSA; 2) good cause exists to extend the
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`deadline under Fed. R. Civ. P. 6(b); and 3) they require additional time to verify the
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`safety and transparency of the test. None of these reasons justify good cause but
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`instead highlight that at the very least these lawyers procrastinated for over five years
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`in their obligations to their clients. See Nafziger v. McDermott Int'l, Inc., 467 F.3d
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`514 (6th Cir. 2006) (the sixth circuit affirmed the decision of the district court
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`denying an extension under Fed. R. Civ. P. 6 of a deadline to serve process because,
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`among other reasons, plaintiffs procrastinated by waiting more than six months
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`before they attempted service).
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`It is well established in the Sixth Circuit that “[a]greements settling litigation
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`are solemn undertakings, invoking a duty upon the involved lawyers, as officers of
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`the court, to make every reasonable effort to see that the agreed terms are fully and
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`timely carried out. As such, courts should uphold settlements whenever equitable
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`and policy considerations allow.” McCormick v. Brzezinski, No. 08-10075, 2010
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1786, PageID.63810 Filed 05/25/21 Page 14 of 31
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`U.S. Dist. LEXIS 36106 at * 5 (E.D. Mich. Apr. 13, 2010) quoting Aro Corp. v.
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`Allied Witan Co., 531 F.2d 1368, 1372 (6th Cir. 1976). In Myers v. Greene Cty. Bd.
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`Of Educ., dicta of the court stated that “the parties’ behavior often provides the best
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`guidepost for determining whether a particular term is material.” No. 2:16-CV-
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`00096, 2018 U.S. Dist. LEXIS 194681 at *6 (E.D. Tenn. Nov. 15, 2018).
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`The Sixth Circuit has explained that “[o]nce concluded, a settlement
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`agreement is as binding, conclusive, and final as if it had been incorporated into a
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`judgment . . . .” Bostick Foundry Co. v. Lindberg, Div. of Sola Basic Industries, Inc.,
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`797 F.2d 280, 283 (6th Cir. 1986) (citing Clinton Street Greater Bethlehem Church
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`v. Detroit, 484 F.2d 185, 189 (6th Cir. 1973)). By analogy, “summary enforcement”
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`of a settlement agreement is appropriate where the settlement “is clear and
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`unambiguous and no issue of fact is present.” RE/MAX Int’l, Inc. v. Realty One, Inc.,
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`271 F.3d 633, 646 (6th Cir. 2001).
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`A. The 90-day Deadline for Bone Scans and Medical Causation Reports
`is a Material Term of the AMSA and Should Not Be Extended.
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`As discussed under Section A of this argument, the 90-day deadline is in fact
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`a material term of the AMSA. The deadline was set by operation of the AMSA as
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`April 27, 2021. It was negotiated at great length by the parties. This term did not
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`develop by happenstance but was subject to much back and forth with the State. At
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`one point the settlement itself was in jeopardy of collapse when the parties could not
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`agree upon a date for these items. It was only after the intervention of Special Master
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1786, PageID.63811 Filed 05/25/21 Page 15 of 31
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`Deborah Greenspan was an agreeable term of 90 days reached. Moving Counsel
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`cannot now arbitrarily decide a term to be material or not based on their convenience.
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`There is, of course, no dispute about the substance of the deadline to obtain
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`bone scans and medical causation reports, and Moving Counsel cite to no authority
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`whatsoever that permits them to have the Court substantially modify a material term
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`after the Amended MSA has been preliminarily approved.
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`On the contrary, it is well-established that courts may not “‘delete, modify or
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`substitute certain provisions’” of a settlement agreement. See Hanlon v. Chrysler
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`Corp., 150 F.3d 1011, 1026 (9th Cir. 1998) (quoting Officers for Justice v. Civil
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`Serv. Comm’n of San Francisco, 688 F.2d 615, 630 (9th Cir. 1982)); see also
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`Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1172 (5th Cir. 1978).
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`“Courts are not permitted to modify settlement terms or in any manner to rewrite the
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`agreement reached by the parties.” Holmes v. Cont’l Can Co., 706 F.2d 1144, 1160
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`(11th Cir. 1983); accord Downey v. Clauder, 811 F. Supp. 338, 339 (S.D. Ohio
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`1992).
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`B. Good Cause to Extend the 90-day Deadline for Bone Lead Testing
`Does Not Exist Under Fed. R. Civ. P. 6(b), or Otherwise.
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`The second reason they cite for extending the 90-day deadline is that good
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`causes exist to do so under Fed. R. Civ. P. 6(b). Moving Counsel’s assertion that
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`good cause exists to extend the 90-day deadline under Fed. R. Civ. P. 6(b) is
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`erroneous because Fed. R. Civ. P. 6(b) “does not apply to settlement agreements
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1786, PageID.63812 Filed 05/25/21 Page 16 of 31
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`between private parties.” Middlebelt Plymouth Venture, Ltd. Liab. Co. v. Moe's Sw.
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`Grill, Ltd. Liab. Co., No. 07-12190, 2011 U.S. Dist. LEXIS 125947, at *6 (E.D.
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`Mich. Nov. 1, 2011). Even if Fed. R. Civ. P. (6)(b) applies here, Moving Counsel
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`have failed to show any existence of good cause to extend the 90-day deadline.
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`Under Fed. R. Civ. P. (6)(b), good cause to extend a deadline exists when the request
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`to extend is made before the deadline expires and, if the motion is made after the
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`deadline expires, “an extension may be granted if the party failed to act because of
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`excusable neglect.” Brokaw v. Comm'r of Soc. Sec., No. 2:15-cv-13914, 2017 U.S.
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`Dist. LEXIS 39983, at *3 (E.D. Mich. Mar. 21, 2017) (internal quotation marks
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`omitted) (the court ruled against extending a deadline for lack of good cause shown
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`because this case had been pending since 2015 and plaintiff had not provided good
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`reasons for the delay).
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`As demonstrated above, even if Rule 6(b) is applicable to settlement
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`agreements, one must file a motion to extend before the date of the deadline or, if
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`filed after, the moving party must show that their neglect was excusable. Moving
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`Counsel has not and cannot meet this standard. In Rainey v. United States Bank Nat’l
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`Ass’n, the court denied a motion to extend a deadline to file a brief under Rule 6(b)
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`and explained “Plaintiffs’ counsel has presented no reason why a responsible lawyer
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`could not have performed as the Local Rules expect in similar circumstances.” No.
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`11-12520, 2011 U.S. Dist. LEXIS 119905, at *4 (E.D. Mich. Oct. 18, 2011).
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`Similarly, Moving Counsel have shown no reason why they could not have
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1786, PageID.63813 Filed 05/25/21 Page 17 of 31
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`performed responsibly here. Instead of vacillating between the bone lead tests are
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`not safe and the bone lead tests are not available, both baseless reasons not backed
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`by facts, they should have ensured that their clients schedule bone lead tests.
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`Moving Counsel here have failed to show either good cause or excusable
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`neglect. Moving Counsel have failed to demonstrate any forces beyond their control
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`that prevented them from complying with the Court's deadlines. To the contrary,
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`Moving Counsel decided to engage in a relentless and contradictory assault on the
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`availability and accessibility of scans.
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`Here, Moving Counsel (1) did not timely file their motion to extend the 90-
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`day deadline, the Motions were filed on April 27, 2021 and April 28, 2021; and (2)
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`Moving Counsels’ neglect is not excusable. Failure to diligently represent their
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`clients is not excusable neglect. Moving Counsel failed to obtain bone scans
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`diligently during the period set by the Court’s Preliminary Approval Order (ECF No.
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`1399). Moving Counsel ignored deadlines set by this Court and allowed them to
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`lapse without any affirmative action on their part. Moreover, Moving Counsel’s very
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`inaction demonstrates they cannot establish that they were at all diligent in
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`attempting to meet the deadlines. Moving Counsel’s total inaction does not
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`constitute “good cause” for extending the deadlines.
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`i. Moving Counsels’ delay, despite possessing prior knowledge and
`experience in bone scans, should not be rewarded.
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`Moving Counsel have been aware of the use of bone lead testing in cases
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`involving children exposed to lead for decades. It is a test they have availed
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`themselves in the past. In fact, in this matter, before this Court on October 30, 2020,
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`Mr. Cuker bragged that he is no stranger to XRF testing and that he “got in touch
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`with Mt. Sinai in early 2016 to explore whether it’s feasible to use it in Flint.” (Dkt.
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`1312, p. 26, lines 22 to 25). Despite recognizing the challenges involved in
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`establishing causation and damages in a complex environmental case such as lead
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`exposure, Mr. Cuker failed to secure a means by which to prove his clients’ case.
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`Mr. Cuker highlights his failure to develop his own personal injury cases despite his
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`prior experience using this technology, and despite, his own admission that he
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`considered it in 2016 and shockingly, Mr. Cuker never took the steps to pursue this
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`approach for his own clients. By his own admission, Mr. Cuker knew as early as
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`2016, and probably long before that, and acknowledged that he would need to
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`develop and prove his own cases, and evidently explored the possibility of using
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`bone scans in Flint. Mr. Cuker affirmatively decided not to pursue this option for
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`proving his case, a decision it appears he now regrets, despite knowledge of its
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`availability.
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`Such failure in not providing bone lead testing or even utilizing the available
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`free testing, shows 1) the inadequacy of Moving Counsel’s representation of their
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`clients; or 2) their complete and total lack of understanding of what is going on the
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`community. Instead, rather than support the settlement and get their clients qualified
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`to receive compensation under one of the alternative methods available, Moving
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`Counsel seek to undo the years of work other lawyers have done on behalf of their
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`own clients.
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`Clearly, Moving Counsel were aware of their duty to their clients to prepare
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`their case and prove a connection between their injuries to lead. After affirmatively
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`deciding to do nothing to develop his cases for five (5) years, despite being familiar
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`with the science, Moving Counsel are now attempting to cast unfounded dispersions
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`on the proposed settlement and direct Co-Liaison Counsel to pay for their abject
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`failure to their own clients. Despite litigating the science of bone scans at a Daubert
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`hearing and contacting Mt. Sinai in 2016 to determine if bone scans could be
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`performed in Flint, Mr. Cuker chose to simply sit back and wait for other attorneys
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`to do the work for him. This failure is not surprising, as he has been completely
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`absent from this litigation until the settlement was made public. This fact was not
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`overlooked by the Court during the October 30 Motion Hearing:
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`The Court: Which hearings did you attend remotely?
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`Mr. Cuker: I think the last one.
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`The Court: I don’t recall seeing you.
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`Mr. Cuker: Okay. It might have been a phone conference, Your Honor.
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`The Court: When was the last phone conference we had in this case?
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`Mr. Cuker: It may have been a discovery conference, I believe.
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`The Court: How long ago?
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`Mr. Cuker: Or on one of these conferences. But I know I was on a call in the
`last month or two.
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`The Court: No, you weren’t.
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`Tr. at 25-26.
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`Instead of accepting the consequences of his own failures, Moving Counsel
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`shifts blame to Co-Liaison Counsel, for somehow preventing Moving Counsel or
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`any other individual attorney from having their clients bone scanned. This is simply
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`not true, and the only person Moving Counsel should blame is themselves. There
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`was nothing preventing an attorney from hiring their own expert to perform bone
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`scans for their own clients. Moving Counsel’s approach to this litigation, as well as
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`other objectors, is reflective of attorneys who has been uninterested in developing
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`their clients’ cases, looking forward to a pay day to be handed to them in a box with
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`a bow nicely tied around it. To be clear, that is not what is required of a lawyer who
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`purports to represent thousands of clients seriously injured by this Flint water
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`catastrophe. These clients deserve much better than this. Moving Counsel last
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`minute delay should not be rewarded but sanctioned.
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`C. Additional Time is Not Needed to Verify the Safety and Reliability of
`Bone Scans.
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`The third reason Moving Counsel cite for extending the 90-day deadline is
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`that they require additional time to verify the safety and transparency of the test. Co-
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`Liaison Counsel will demonstrate how the bone lead test is safe and transparent in
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`detail below, but would like to point out that Moving Counsel need only read and
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`review the existing scientific research on the XRF bone scan lead tests. Again,
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`Moving Counsel is now using the safety of the test as an excuse for their lack of
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`competence and preparedness. Additionally, they provide no research or studies to
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`justify their concerns pertaining to the safety of the test – they only make blanket
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`statements to stoke the flames of controversy.
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`The Motions claim there is a purported lack of availability of bone lead testing
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`for individuals in Flint and specifically calls out Co-Liaison Counsel as being the
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`gatekeepers to bone lead testing. However, in his Response, Mr. Cuker highlights a
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`disturbing fact that has become evident in this litigation: individual lawyers have
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`failed to adequately represent their clients and develop their own cases. It is not the
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`responsibility of Co-Liaison Counsel in their court-appointed role to assist and guide
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`experienced attorneys in developing their own cases, especially when those same
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`attorneys seek to highlight their prior experience handling lead exposure cases in the
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`past. See generally, Order Delineating the Duties of Interim Co-Lead Class Counsel
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`and Co-Liaison Counsel for the Individual Actions and Creating a Plaintiffs’
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`Executive Committee for the Proposed Class, ECF No. 234.
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`Moving Counsel have expended many efforts opposing and objecting to bone
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`lead tests, instead of utilizing those same efforts developing their clients’ cases and
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`serving their clients well. They now ask to be rewarded for being unprepared and
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`not doing what, as lawyers, they had a duty to do – to conduct themselves according
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`to the best interests of their clients. They have continuously fluctuated on their
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1786,