Walters v. Dale (In re Flint Water Cases)

Walters v. Dale (In re Flint Water Cases)

Opinion

 [**2]  GRIFFIN, Circuit Judge.

] One of the fundamental liberties enshrined in the Fifth Amendment to our Constitution is the right not to be compelled to bear witness against oneself. [*3]  The inquisitorial abuses of the Star  [**3]  Chambers eventually led to the inclusion of this right in our Bill of Rights. ¹ This bedrock privilege originates from the maxim "nemo tenetur seipsum accusare," that "no man is bound to accuse himself." ² In the present case, the district court ordered the appellant state officials to testify at trial—to be witnesses against themselves—despite their invocation of their right against self-incrimination. According to the district court, appellants "waived" ³ their right not to be witnesses against themselves at trial by voluntarily submitting to a discovery deposition.

We disagree. We conclude that the district court erroneously held that testifying at a pretrial deposition waives invocation of the privilege at a later trial in the same civil case. In doing so, we hold that a Fifth Amendment waiver does not extend to trial under these circumstances. Thus, we vacate and remand.

The present case is another dispute stemming from the infamous Flint Water Crisis, the events of which are well known and have been well documented. See, [*4]  e.g., In re Flint Water Cases, 960 F.3d 303, 311-21 (6th Cir. 2020), and Mason v. Lockwood, Andrews & Newman, P.C., 842 F.3d 383, 387 (6th Cir. 2016). In short, as a cost-saving measure, public officials switched Flint's municipal water supply from the Detroit Water and Sewage Department to the Flint River, reviving the previously dormant Flint Water Treatment Plant. Flint residents began receiving water from the Flint River on April 25, 2014, and residents began complaining of water that looked, tasted, and smelled foul within weeks. Other severe problems emerged, including evidence of E. coli contamination in the water, a localized outbreak of Legionnaires' disease, and a dangerously high lead poisoning rate in children. Without proper corrosion-control treatment, lead leached from the aging pipes in Flint's water system into the water. With a public-health disaster mounting, Flint reconnected to its original water sources in October  [**4]  2015. As we have described elsewhere, the crisis was both predictable and preventable. See Guertin v. State, 912 F.3d 907, 915 (6th Cir. 2019).

Both criminal and civil proceedings began shortly thereafter. On the civil side, a host of litigants filed suit, alleging injury from Flint's contaminated drinking water. This includes plaintiffs here—four minor children who lived in Flint and suffered lead poisoning, brain damage, and other injuries [*5]  after being exposed to lead-contaminated water. The plaintiffs sued two groups of defendants: "governmental defendants," i.e., public officials and entities who they alleged were responsible for the decisions that created the crisis, and "engineering defendants," i.e., those firms who were allegedly responsible for administering the Flint Water Plant, using the river as a source for drinking water, and evaluating the system for public safety. Among those named as governmental defendants were former Michigan Governor Richard Snyder, former City of Flint Emergency Managers Gerald Ambrose and Darnell Earley, and former Flint Director of Public Works Howard Croft ("appellants" collectively ⁴ ), and named as engineering defendants were Veolia North America ("Veolia" ⁵ ) and Lockwood, Andrews, and Newman, P.C. ("Lockwood"; "appellees" collectively).

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