Plaintiffs in Flint Water Lawsuit Claim Bone Lead Testing Requirement is Not Reasonable

Two plaintiffs in the lawsuit regarding the Flint Water Crisis filed an objection to the settlement on Tuesday claiming that they should not be required to receive a bone scan in order to receive more than $1,000 in damages, as was agreed to in the settlement which has been given preliminary approval. 

The two plaintiffs, husband and wife Earl Welche and Linda Carter Welche, explained in the objection that they scheduled an appointment for a scan through their attorney, Mark Cuker, for testing at Napoli Shkolnik, a personal injury law firm representing other plaintiffs. Their appointment was canceled by Napoli Shkolnik because the plaintiffs are clients of Cuker, and the lawyer would not agree to pay $500 for the test, to have his clients be asked to sign forms he had not reviewed, or for the results of his clients’ test to be shared with Napoli Shkolnik. 

“All of these conditions are unreasonable and unfair,” the plaintiffs said, “and I will not undergo bone lead testing through Napoli Shkolnik under these circumstances.” The filing, however, reported that this is the only option for bone lead testing in Flint. 

Mr. and Ms. Welche cited another objection to the bone lead testing requirement filed by a pediatrician, Lawrence A. Reynolds. He argued that the XRF bone lead testing method had not been approved for use on humans and is not a fair requirement for the plaintiffs. 

The present objection summarized the requirements to be placed in various settlement categories, and reported that regardless of whether a home was found to be connected to a lead water line or testing of water in homes showed significant lead levels, about 70% of children who were not “formula fed infants” can only qualify for more than .2x their settlement if they have a bone lead test. 

In the case of adults, many are eligible for a $1,000 property damage payment, however, a bone lead test is required for additional payments. The objection reported that 90% of adults can only qualify through bone lead testing for the highest category of payment, the other 10% had bone lead tests previously. The second-highest category can be reached by adults with “devastating injuries like stroke, neuropathy and renal insufficiency which are medically attributed to their exposure to contaminated water,” or those with a lower blood lead level who have had testing. Reportedly, adults are not moved up a category for drinking from a lead service line, even when their children are. 

The objection explained that when preliminary approval was granted to the settlement, the court had concerns about bone scan availability, but stated that the objection was moot because co-lead class counsel said they were “optimistic” that individuals would be willing and able to provide bone scans in Flint. The plaintiffs reported that this has not yet happened as the Flint office of Napoli Shkolnik has devoted his bone scan slots only to its own clients and “made conflicting and misleading statements to people who went for testing,” including about whether the testing was free. Further, the machine used by the firm is not registered as required under Michigan law. 

Additionally, the firm reportedly charged different lawyers different amounts and required payment before the other lawyers could see the reports, the plaintiffs claimed that this is violating rules of ethics for the lawyers. 

The plaintiffs said that they cannot get a bone lead test while still represented by their lawyer, Cuker Law Firm, and thus objected to the bone lead test requirement.