Case 5:16-cv-10444-JEL-MKM ECF No. 1901, PageID.66494 Filed 07/20/21 Page 1 of 21
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`In re FLINT WATER CASES
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`Anderson, et al.,
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` Plaintiffs
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`v.
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`City of Flint, Michigan, et al.,
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` Defendants.
`
`Civil Action No. 5:16-cv-
`10444-JEL-MKM
`Hon. Judith E. Levy
`Mag. Mona K. Majzoub
`
`Class Action
`
`SUPPLEMENTAL BRIEF OF DR. LAWRENCE A. REYNOLDS, MD,
`FAAP, IN SUPPORT OF OBJECTIONS TO FINAL APPROVAL OF
`CLASSWIDE SETTLEMENT
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`Objector and Class Member, Dr. Lawrence A. Reynolds, MD, FAAP, (“Dr.
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`Reynolds”), through the undersigned pro bono counsel, hereby submits this
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`Supplemental Brief in support of his prior written objections to the final approval of
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`the Amended Master Settlement Agreement (“MSA”), (ECF Nos. 1436, 1840), as
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`well as his objections stated on the record at the Fairness Hearing which began on
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`July 12, 2021. On July 15, 2021, the final day of the Fairness Hearing, the Court
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`invited supplemental briefing on issues related to fairness, reasonableness, and
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`

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`Case 5:16-cv-10444-JEL-MKM ECF No. 1901, PageID.66495 Filed 07/20/21 Page 2 of 21
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`adequacy of the proposed settlement.1 Accordingly, Dr. Reynolds hereby
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`respectfully submits this Supplemental Brief to assist the Court in fully evaluating
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`the fairness, reasonableness, and adequacy of the proposed class settlement.2
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`Specifically, Dr. Reynolds objects to the use of bone scan lead testing with
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`portable X-Ray Fluorescence (XRF) devices on living humans as part of the
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`settlement. Dr. Reynolds submits that the Court cannot fully evaluate the fairness,
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`reasonableness, or adequacy of the proposed settlement without more fully assessing
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`the safety and efficacy of the use of the XRF devices on living humans, especially
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`children, and making an affirmative finding on the same.
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`While legal authority certainly exists, particularly in other circuits, standing
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`for the proposition that the Court cannot “rewrite” the settlement agreement, that is
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`far from the totality of the relevant analysis this Court should consider. As set forth
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`in one of the leading treatises on complex litigation, including class actions, “[t]he
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`1 See, e.g., https://www.mlive.com/news/flint/2021/07/no-immediate-ruling-on-
`202m-attorney-fees-request-in-flint-water-crisis-settlement.html (last visited July
`18, 2021) (“The judge has said she expects to study transcripts and court
`documents as well as inviting additional briefs to be filed before making a written
`decision about whether the settlement and attorney fees are fair, reasonable, and
`adequate”).
`2 Given the Court’s invitation for supplemental briefing following the fairness
`hearing, Dr. Reynolds has not submitted a formal motion on this issue. Dr.
`Reynolds notes that a formal motion at this late stage of the proceedings might
`unnecessarily prolong the process. Nevertheless, if the Court prefers that a formal
`motion be submitted, Dr. Reynolds’ pro bono counsel will meet and confer with all
`affected parties pursuant to the Local Rules and this Court’s orders and thereafter
`submit a formal motion.
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1901, PageID.66496 Filed 07/20/21 Page 3 of 21
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`trial court may not rewrite a settlement agreement; if it is unacceptable the court
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`must disapprove it; but it may suggest changes.” Manual for Complex Litigation,
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`Fourth Ed. (2004), § 13.14, at p. 173 (emphasis added); see also Cotton v. Hinton,
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`559 F.2d 1326, 1331 (5th Cir. 1977) (discussing process of reviewing proposed
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`settlement and noting that the reviewing judge can either grant approval, deny
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`approval, or suggest changes to the parties for modification of the proposed
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`settlement); In re Auction Houses Antitrust Litig., No. 00 Civ. 0648, 2001 WL
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`170792, at *18 (S.D.N.Y. Feb. 22, 2001) (conditioning approval of a settlement on
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`the parties adopting changes specified by the district court); Romstadt v. Apple
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`Computer, Inc., 948 F. Supp. 701, 707 (N.D. Ohio 1996) (noting that a “proposed
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`agreement is more readily alterable” and that “[t]he choice facing the court and
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`parties is not limited to the binary alternatives of approval or rejection”); Bowling v.
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`Pfizer, Inc., 143 F.R.D. 141, 146 (S.D. Ohio 1992) (approving revised settlement).
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`Further, the Court is well within its authority to place conditions on its approval of
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`class settlements. See Manual for Complex Litigation, Fourth Ed. (2004), § 21.61,
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`at p. 309 (“The judicial role in reviewing a proposed settlement is critical, but limited
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`to approving the proposed settlement, disapproving it, or imposing conditions on
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`it.” (emphasis added)). That is precisely what Dr. Reynolds, as an Objector and
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`Class Member, proposes that the Court do here, i.e., urge the parties to strike
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`-3-
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1901, PageID.66497 Filed 07/20/21 Page 4 of 21
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`provisions in the MSA that include or otherwise promote the use of portable XRF
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`bone scans given safety and efficacy concerns.
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`As it has now become abundantly clear since Dr. Reynolds first filed his
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`objections on February 26, 2021 to the use of portable XRF bone scans (ECF No.
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`1436), serious questions have been raised about the propriety, safety, efficacy, and
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`methodology connected to Dr. Aaron Specht, PhD’s (“Dr. Specht”) use of the
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`subject devices in Flint. For example, health experts, including Dr. Mona Hanna-
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`Attisha, MD—the pediatrician who first sounded alarm bells about elevated lead
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`levels in numerous children in Flint—have strongly denounced the use of portable
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`XRF bone scans in connection with the settlement.3 Even Thermo Scientific
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`Portable Analytical Instruments Inc. (“Thermo Fisher”)—the manufacturer of the
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`subject devices—warns against using the devices on living humans under the
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`circumstances presented here and refuses to sell or lease the machines to anyone it
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`suspects would use it on living humans when not done subject to approval by a
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`university Institutional Review Board (“IRB”).4 There has been no such approval
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`3 See, e.g., https://www.mlive.com/news/flint/2021/07/bone-scan-debate-
`dominates-first-day-of-fairness-hearing-for-flint-water-crisis-settlement.html (last
`visited July 18, 2021) (“Critics, including Flint pediatrician Dr. Mona Hanna-
`Attisha, have questioned the use of the portable bone scanning equipment because
`the device used in Flint was not designed for human testing, because of the
`potential unknown harm it may cause, and because of doubts that the tests will
`capture historic exposure suffered by Flint children.”).
`4 See May 12, 2021 Letter from Thermo Fisher to Napoli Shkolnik & Assocs.,
`PLLC (ECF No. 1840-2); see also
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`-4-
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1901, PageID.66498 Filed 07/20/21 Page 5 of 21
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`or IRB here. Against this backdrop, the interests of justice compel this Court to
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`withhold its approval of the settlement so long as XRF bone scans are part of it.
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`As evidenced by the filing and then expeditious withdrawal of Co-Lead Class
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`Counsel Michael Pitt’s Motion for an Immediate Suspension of the use of Portable
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`XRF Bone Scanning Tests Pending a Further Hearing (ECF Nos. 1443, 1444),
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`previously-filed good faith objections by Dr. Reynolds, and disputed material facts
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`about the efficacy and safety of the device for the purposes for which Dr. Specht is
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`using it and proposes through the settlement to continue to use it, the Court needs
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`additional information before granting final approval (or disapproval) of the
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`settlement. To that end, the Court possesses the inherent authority to (1) appoint a
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`neutral expert pursuant to Federal Rule of Evidence 706, and/or (2) hold an
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`evidentiary hearing specifically on the efficacy and safety of the XRF device at issue
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`in the MSA, to further assist the Court in more fully assessing safety concerns with
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`use of the XRF device on humans under the circumstances presented here. In the
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`interest of justice and to protect the interests of Class Members, the people of Flint,
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`and the classwide settlement process, Dr. Reynolds, on behalf of himself and
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`affected Class Members, urges the Court to do so. Appointing a neutral expert,
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`https://www.freep.com/story/news/local/michigan/flint-water-
`crisis/2021/06/03/flint-lead-thermo-fisher-bone-scan/7523747002/ (last visited July
`19, 2021) (“The manufacturer of a handheld lead scanner wrote to a Flint law firm
`in May and told the lawyers to stop using the device on Flint residents because the
`company has not certified that it is safe to do so.”).
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`-5-
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1901, PageID.66499 Filed 07/20/21 Page 6 of 21
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`and/or holding an evidentiary hearing on this issue to further consider the data,
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`testimony, allegations, and competing propositions of the parties and counsel on the
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`efficacy and safety of the subject XRF machines before the Court renders its final
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`decision on approval or disapproval of the pending settlement is warranted under the
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`circumstances. The potential harm on top of already-demonstrated harm to Class
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`Members and the people of Flint compel further consideration of this issue before
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`settlement is approved (or rejected).
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`This supplemental brief does not seek to unnecessarily delay these
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`proceedings or otherwise advance an improper purpose. Instead, Dr. Reynolds seeks
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`to have the Court balance the need for expeditious proceedings and the Court’s
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`inherent authority to manage its docket against the potential for additional harm to
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`Class Members and the people of Flint by unnecessarily exposing them to risks
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`associated with radiation and otherwise, particularly when (1) the manufacturer of
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`the subject XRF machines advises against its use here, (2) the parties have competing
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`and conflicting interests in advancing use of the subject XRF machines, (3) New
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`York University (“NYU”) has confirmed that Dr. Michael Weitzman, MD—who is
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`assisting Dr. Specht—is not acting on NYU’s behalf and must remove NYU’s name
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`and logo from reports associated with the XRF bone scans at issue,5 (4) Class
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`Members are incentivized to subject themselves to this experimental process
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`5 See ECF No. 1840-12.
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`-6-
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1901, PageID.66500 Filed 07/20/21 Page 7 of 21
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`involving the subject XRF machines without adequate notice of the potential risks
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`associated with doing so, and (5) ultimately the health and safety of Class Members
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`and the people of Flint hang in the balance. See IUE-CWA v. Gen. Motors Corp.,
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`238 F.R.D. 583, 594 (E.D. Mich. 2006) (“whether the settlement is consistent with
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`the public interest” is a factor the court should weigh).
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`Spending reasonable, albeit additional, time to thoroughly explore this issue
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`is not only warranted under the circumstances; unfairness to Class Members and
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`manifest injustice might result if the Court does not appoint a neutral expert and/or
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`order an evidentiary hearing to further consider this issue.
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`I.
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`Short Summary of Relevant Objections
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`As a threshold matter, and as the Court is aware, this Court has an obligation
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`to fully consider Dr. Reynolds’ objection on the XRF bone lead testing issue. See
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`Williams v. Vukovich, 720 F.2d 909, 923 (6th Cir. 1983) (“Objections raised by
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`members of the plaintiff class should be carefully considered.”). In fact, courts have
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`determined that “one of the most critical factors in considering the fairness of a class
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`action settlement is the nature of the opposition by members of the class.” Berry v.
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`Sch. Dist. of City of Benton Harbor, 184 F.R.D. 93, 105 (W.D. Mich. 1998). In
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`considering the objections raised by class members, while courts do evaluate the
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`number of objections, a class action “is not a popularity contest” so the number of
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`objections raising an issue is not dispositive as to fairness. See id.
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1901, PageID.66501 Filed 07/20/21 Page 8 of 21
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`As Dr. Reynolds has previously filed objections, including on other bases, for
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`efficiency purposes this Supplemental Brief will not unnecessarily repeat them. As
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`the Court and parties are aware, Dr. Reynolds objects to the use of bone lead testing
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`results by use of portable XRF devices in Settlement Categories 1, 2, 3, 4, 8, 9, 10,
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`11, 15, 16, 17, and 18 with respect to children, and Settlement Categories 22, 23,
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`and 25 with respect to adults. (ECF No. 1436 at 5-6.) Based on the Qualified
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`Settlement Fund Categories, Monetary Awards, and Required Proofs Grid (ECF No.
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`1319-2), in these categories, testing is required to prove the lead level in the body in
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`order to be entitled to monetary awards. The monetary awards in these categories
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`are multiples of some baseline determined number, which means that a member of
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`the settlement class will be entitled to more money than they otherwise might receive
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`if they can prove that they have higher levels of lead in their body.
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`In order to prove that they have lead in their body, minor children in the
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`settlement class can use blood lead test results dated between May 16, 2014 and
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`August 31, 2016 or they can use bone lead test results dated beginning in May 16,
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`2014, through the present. (ECF No. 1319-2 at 381-90, 393-98, 402-06.) As such,
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`if settlement class members did not take a blood lead test before August 31, 2016,
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`the only meaningful option they have for proving lead presence in their bodies is the
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`-8-
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1901, PageID.66502 Filed 07/20/21 Page 9 of 21
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`bone lead test for members in Settlement Categories 1, 8, 9, 15 16, 18, and 22.6
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`Many settlement class members may not have any blood test results from between
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`2014 and 2016, given that Flint officials insisted that the water was safe for months
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`and did not start issuing lead advisories until September 2015, and if they do have
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`test results they may not be accurate if not taken at the height of the consumption of
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`lead-contaminated water. (See ECF No. 1436 at 13-14.) Members of the settlement
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`class are thus left with an impossible choice: accept a nominal settlement amount
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`that does not even begin to fully compensate them for the pain and suffering they
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`sustained at the hands of defendants who contributed to them using and ingesting
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`contaminated water for years or subject themselves to risky, invasive bone lead
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`testing in order to prove that they are entitled to an amount of money that could not
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`possibly make them whole—but would entitle them to additional compensation.
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`There is no justice or fairness in impliedly forcing residents who have already been
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`subjected to unknown health risks due to contaminated water to further subject
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`themselves to unknown health risks to prove that they deserve compensation for the
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`risks they were subjected to in the first instance.
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`6 For children in categories 2, 3, 4, 10, 17, a bone lead test is the only option unless
`they can prove they have a cognitive deficit, were born pre-term or with low birth
`weight, or were formula fed; for adults in categories 23 and 25, a bone lead test is
`the only option unless they have medical records proving that they sustained
`certain injuries identified as being caused or exacerbated by Flint water. (ECF No.
`1319-2 at 383, 386, 389, 395, 403, 411, 414.).
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`-9-
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1901, PageID.66503 Filed 07/20/21 Page 10 of 21
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`Notice of Settlement was Inadequate as it Failed to Warn of the Risks of
`II.
`an XRF Device’s Use on Living Humans.
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`In evaluating the fairness of the settlement, the Court must consider whether
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`the notice of settlement was adequate. Int'l Union, United Auto., Aerospace, & Agr.
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`Implement Workers of Am. v. Gen. Motors Corp., 497 F.3d 615, 629 (6th Cir. 2007)
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`(“Before ratifying a proposed settlement agreement, a district court also must ‘direct
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`notice in a reasonable manner to all class members who would be bound’ by the
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`settlement.” ) (citing Fed. R. Civ. P. 23(e)(1)(B)). For notice to be adequate, it must
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`comport with due process principles, which requires the notice to be “reasonably
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`calculated, under all the circumstances, to apprise interested parties of the pendency
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`of the action and afford them an opportunity to present their objections. ” Vassalle
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`v. Midland Funding LLC, 708 F.3d 747, 759 (6th Cir. 2013) (internal quotations and
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`citations omitted). Generally, “[d]ue process is satisfied if the notice provides class
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`members with the ‘information reasonably necessary for them to make a decision
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`whether to object to the settlement.’” In re Heartland Payment Sys., Inc. Customer
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`Data Sec. Breach Litig., 851 F. Supp. 2d 1040, 1060 (S.D. Tex. 2012) (citing Wal-
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`Mart Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 114 (2d Cir. 2005)).
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`Here, the notice to class members was not adequate and did not comport with
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`due process principles because it did not fully apprise settlement class members of
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`the terms of settlement such that they could meaningfully evaluate whether they
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`-10-
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1901, PageID.66504 Filed 07/20/21 Page 11 of 21
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`should object. Namely, the long-form class notice does not provide any information
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`that suggests that class members have to prove the levels of lead in their bodies, and
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`it certainly does not provide that they have to prove it through bone lead testing
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`requiring them to subject themselves to radiation through use of XRF devices that
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`have not been approved for use on living humans, and the manufacturer of the
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`subject devices specifically warns against using on living humans under the
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`circumstances here.7 The long-form notice does not mention bone lead testing, the
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`potential risks associated with bone lead testing, nor that bone lead testing is
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`essentially required in order for them to get more than $1,000 in settlement. As a
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`result, the notice does not sufficiently apprise class members of the terms of the
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`settlement such that they can know whether they should object. The notice,
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`therefore, is inadequate.
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`7 Not only is there no mention of bone lead testing in the notice, other than in an
`example referencing bone lead levels in category 25 for adults on page 10, there is
`no mention of bone lead testing in the registration form, and the only reference to
`bone lead testing in the FAQ section of the settlement website is with respect to
`scheduling an appointment to have it conducted without mention that scheduling a
`test might be required under the terms of settlement. Class members would either
`have to read the entire settlement agreement or find the settlement grid to even
`know that bone lead testing might be required. As such, notice regarding the bone
`lead testing settlement term is constitutionally deficient because it did not provide
`class members with enough information to put them on notice that they might want
`to object to the testing. See In re Heartland Payment Sys., Inc. Customer Data Sec.
`Breach Litig., 851 F. Supp. 2d 1040, 1060 (S.D. Tex. 2012) (citing Wal-Mart
`Stores, Inc. v. Visa U.S.A., Inc., 396 F.3d 96, 114 (2d Cir. 2005)) (indicating that
`the notice meets due process requirements if it provides class members with
`information necessary to know whether they should object).
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`-11-
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1901, PageID.66505 Filed 07/20/21 Page 12 of 21
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`III. The Court Should Appoint a Neutral Expert Regarding the Safety
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`and Efficacy of Portable XRF Bone Scans.
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` Because courts are charged with the responsibility of fully evaluating the
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`terms of settlement to determine if it is fair to everyone affected, “[j]udges should
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`be open to the views of those who may be affected by the settlement, whether or not
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`they have legal standing to be heard. This may include providing notice to absent
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`parties even if not required by governing law, and appointing an expert under Federal
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`Rule of Evidence 706 to provide a neutral assessment . . . .” Manual for Complex
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`Litigation (4th Ed.) § 13.14 at 173; see Fed. R. Evid. 706(a) (noting that the Court
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`may appoint a neutral expert of its own choosing and on its own motion); see also
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`Redman v. RadioShack Corp., 768 F.3d 622, 631 (7th Cir. 2014) (acknowledging
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`that the court failed to analyze issues properly in approving class settlement, and on
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`the issue of the settlement’s value could have obtained neutral expert testimony by
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`appointing an expert); see also Grove v. Principal Mut. Life Ins. Co., 200 F.R.D.
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`434, 441-44 (S.D. Iowa 2001) (analyzing the necessity of appointing experts to help
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`the court understand complex issues that were material to class settlement in order
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`for the court to carry out its mandate to provide the appropriate heightened level of
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`judicial scrutiny of the class settlement’s fairness).
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`In fact, on July 15, 2021, at the Fairness Hearing, the Court expressed its
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`openness to appointing a neutral expert on the issue of reasonableness of attorney’s
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1901, PageID.66506 Filed 07/20/21 Page 13 of 21
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`fees.8 Likewise, the Court should consider appointing a neutral expert on the bone
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`scan issue—particularly given the strong and valid concerns expressed regarding
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`safety and efficacy. At present, the existing experts, namely Dr. Specht, are not
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`neutral. In fact, most of the studies and publications in support of XRF bone scans
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`proffered at the Fairness Hearing were either authored by Dr. Specht or he played a
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`role in the underlying research. (See Affidavit of Dr. Aaron Specht, PHD, ECF No.
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`1795-2.). Now that his credibility and methodology in the instant case(s) have been
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`called into question, a truly neutral expert is warranted to protect the integrity of the
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`process and provide greater assurances to the public that a controversial settlement
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`is not being pushed through for the sake of efficiency but at the expense of public
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`health.
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`III. Alternatively, An Evidentiary Hearing Should be Held to Further
`Evaluate the Safety and Efficacy of the Portable XRF Device for in vivo Use on
`Humans and Whether its Use Should be an Option for Settlement Class
`Members to Obtain Additional Compensation.
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`“Absent unusual circumstances, there is no requirement that a full evidentiary
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`hearing with live testimony and cross-examination be conducted before the approval
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`8 See https://www.mlive.com/news/flint/2021/07/no-immediate-ruling-on-202m-
`attorney-fees-request-in-flint-water-crisis-settlement.html (last visited July 18,
`2021).
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`-13-
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`decision is made.” 2 McLaughlin on Class Actions (17th ed.), § 6:8.9 But courts
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`have exercised their discretion to conduct evidentiary hearings in connection with
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`approval of class certification and/or class settlements. See, e.g., Laskey v. Int'l
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`Union, United Auto., Aerospace & Agr. Implement Workers of Am. (UAW), 638 F.2d
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`954, 956 (6th Cir. 1981) (evidentiary hearing held in connection with class
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`settlement). Notwithstanding the Fairness Hearing, because this Court has not had
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`an opportunity to fully evaluate whether portable XRF bone lead testing is safe and
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`effective, and mounting evidence points towards the use of XRF bone lead testing
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`not being appropriate here, unusual circumstances exist warranting an evidentiary
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`hearing.
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`Specifically, an evidentiary hearing would assist the Court and provide greater
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`assurances to Class Members and the people of Flint, given that there is a significant
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`dispute of fact among the parties as to whether such testing is safe, and the
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`submission to bone lead testing is a material term of the settlement agreement. An
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`9 International Union, United Auto., Aerospace, and Agr. Implement Workers of
`America v. General Motors Corp., 497 F.3d 615, 41 Employee Benefits Cas.
`(BNA) 1692, 182 L.R.R.M. (BNA) 2385, 154 Lab. Cas. (CCH) P 10895 (6th Cir.
`2007) (“[N]o court of appeals, to our knowledge, has demanded that district courts
`invariably conduct a full evidentiary hearing with live testimony and cross-
`examination before approving a settlement. Our court, and several others, have
`instead deferred to the district court's traditionally broad discretion over the
`evidence it considers when reviewing a proposed class action settlement.”)
`(collecting cases).
`
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1901, PageID.66508 Filed 07/20/21 Page 15 of 21
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`evidentiary hearing would allow this Court an opportunity to further evaluate the
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`arguments of all sides of this issue.
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`An Evidentiary Hearing is Appropriate Where There is a Significant
`A.
`Dispute of Material Fact.
`
`“As a general rule, an evidentiary hearing should be held when there is a
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`substantial factual dispute over the existence or terms of a settlement.” See Bath
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`Junkie Branson, L.L.C. v. Bath Junkie, Inc., 528 F.3d 556, 561 (8th Cir. 2008).
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`(internal quotations and citations omitted); U.S. v. T.B.M., Inc., 81 F. App’x. 243,
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`243 (9th Cir. Nov. 17, 2003) (“Where material facts concerning the existence or
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`terms of an agreement to settle are in dispute, the parties must be allowed an
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`evidentiary hearing.”); CSC Oil Co., Div. of Cook United, Inc. v. N.L.R.B., 549 F.2d.
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`399, 400 (6th Cir. 1977) (“When there is a disputed genuine issue as to any material
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`fact, an evidentiary hearing should be conducted, where the parties will have an
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`opportunity to confront and cross examine witnesses.”).
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`The resolution of whether bone lead testing is safe is material to the agreement
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`because bone lead testing is heavily incentivized by the settlement agreement given
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`that Class Members who undergo the bone scan testing and show measurements of
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`in vivo lead quantification in their bone at or above 10.0 ug/G are entitled to
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`additional compensation under the agreement—as much as twice more than for what
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`they would otherwise qualify. (See ECF No. 1319-2 at 381, 393, 402, 410-11.) In
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`-15-
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1901, PageID.66509 Filed 07/20/21 Page 16 of 21
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`order to show entitlement to increased recovery under the settlement terms,
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`settlement class members either need blood lead test results from between 2014 and
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`2016 or they have to subject themselves to bone lead testing, otherwise their
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`recovery will be capped at $1,000, which is grossly insignificant considering the
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`harm suffered. Given that many Class Members understandably may not have blood
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`lead test results during the noted period, they would have to subject themselves to
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`bone lead testing in order to qualify for increased awards under the agreement.
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`Not only is the safety of bone lead testing material to the agreement, it is a
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`disputed issue since even Co-Lead Class Counsel for Plaintiffs is now dismissive of
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`objections regarding the safety of bone lead testing, (see ECF No. 1795), despite
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`being charged with representing the interests of the class which should include not
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`subjecting them to testing that may be unsafe. While their expert, Dr. Specht, and
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`Co-Lead Class Counsel may contend that bone lead testing using the portable XRF
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`device is safe and poses “no risks” for humans, that is not good enough—particularly
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`when the manufacturer of the device has advised against its use on living humans
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`here, and the University of Michigan declined to assist with administering tests for
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`the settlement class until the XRF device was shown to be safe for use on humans.
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`(See ECF No. 1443 at 14.) The safety of the device in this context, therefore, is a
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`bona fide dispute and that dispute must be resolved given the materiality of the
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`testing to the settlement, to the Class, and to the people of Flint.
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1901, PageID.66510 Filed 07/20/21 Page 17 of 21
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`Accordingly, Dr. Reynolds urges this Court to conduct an evidentiary hearing
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`to ensure that the issue of safety with respect to bone lead testing is fully vetted
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`before this Court issues its final ruling on the fairness, reasonableness, and adequacy
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`of the settlement.
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`B.
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`This Request is Timely and Appropriate.
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`This Supplemental Brief is timely given that this Court is still evaluating the
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`fairness of the settlement and still in a position to direct the parties back to the
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`negotiation table to come up with alternatives. Further, given the Court’s invitation
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`for supplemental briefing following the fairness hearing, Dr. Reynolds has not
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`submitted a formal motion on this issue.10 Dr. Reynolds notes that a formal motion
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`at this late stage of the proceedings might unnecessarily prolong the process.
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`Nevertheless, if the Court prefers that a formal motion be submitted, Dr. Reynolds’
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`pro bono counsel will meet and confer with all affected parties pursuant to the Local
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`Rules and this Court’s orders and thereafter submit a formal motion.
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`While Dr. Reynolds understands that it is generally not appropriate for this
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`Court to rewrite the settlement agreement, if this Court should determine that the
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`bone lead testing is unsafe and/or ineffective while it is evaluating the settlement,
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`the Court is in a position to place conditions on its approval of the final agreement
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`10 In addition, Dr. Reynolds’ prior counsel had to withdraw from representing him
`during the Fairness Hearing by mutual agreement due to a potential conflict, after
`which Dr. Reynolds stated in pro per his objections on the record.
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1901, PageID.66511 Filed 07/20/21 Page 18 of 21
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`and to suggest changes to the parties. See Manual for Complex Litigation, Fourth §
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`13.14 at 173 (“The trial court may not rewrite a settlement agreement; if it is
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`unacceptable the court must disapprove it; but it may suggest changes.”) (emphasis
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`added); see also Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977). As such,
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`until the final settlement is approved (or disapproved), the Court can consider any
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`and all evidence that will assist it in evaluating the fairness of the settlement, which
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`should include appointment of a neutral expert and/or ordering an evidentiary
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`hearing.
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`Dr. Reynolds understands that there may be some desire to conclude this
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`settlement and move forward given that these matters have been pending since 2016.
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`Efficiency and management of the Court’s docket, however, must yield to justice
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`where efficiency could cause further injury to members of the settlement class who
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`have already been greatly injured by the actions and omissions of governmental and
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`other actors. It would be a manifest injustice to essentially require approximately
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`50,000 people and counting, who have already been subjected to a severely
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`contaminated water supply that put their health and lives at risk, and killed others,
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`to again place their health at risk in order to prove that they should be fully and fairly
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`compensated for being subjected to contaminated water. Since this Court is already
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`considering the fairness of the settlement as a whole and is open to considering
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`additional briefing and considering the appointment of an expert on the issue of
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`Case 5:16-cv-10444-JEL-MKM ECF No. 1901, PageID.66512 Filed 07/20/21 Page 19 of 21
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`attorney’s fees, it would not be an undue burden or a cause significant or
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`unwarranted delay to also consider the appointment of a neutral expert on the issue
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`of bone lead testing. Plainly, how much the attorneys are compensated is not as
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`critical a concern as whether Class Members and the people of Flint are facing
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`additional health risks in order to collect money that is more appropriately due to
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`them. Further, it would be advantageous to Class Members for this Court to further
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`consider the safety of bone lead testing now, i.e., before any more people are
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`subjected to bone lead testing of questionable safety. Simply put, that is a bell that
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`cannot be un-rung—even while the appellate process plays out.
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`IV. Conclusion
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`For the foregoing reasons and those more fully set forth in Dr. Reynolds’
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`original objections, Dr. Reynolds respectfully requests that the Court decline to
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`approve the settlement if portable XRF bone scanning is part of it, but to instead
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`appoint a neutral expert and/or hold an evidentiary hearing to more fully evaluate
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`th