In late May 2022, Lieff Cabraser and civil rights legends Edwards & Jennings, P.C. filed a proposed Second Amended Class Action Complaint on behalf of the residents of Benton Harbor, Michigan, in the federal public health emergency litigation arising from the poisoning of the Benton Harbor, Michigan, water supply caused by lead, bacteria, and other contaminants. As described in the Complaint, since at least 2018, Benton Harbor residents, including children and infants, have been exposed, through ingestion and other uses of water, to dangerously high levels of lead and other contaminants that exceed those permissible under the state and national Safe Drinking Water Acts.

An environmental justice community most impacted by environmental harms and risks with a population composed primarily of 85% African-American residents, 27% of Benton Harbor’s population are children. The plaintiffs, many of whom are children and infants, have been and continue to be exposed to extreme toxicity from lead and other hazardous contaminants, causing an “imminent and substantial endangerment to their health.”

“All families are entitled to clean drinking water,” notes Lieff Cabraser partner Mark P. Chalos, who represents the families along with Edwards & Jennings. “No government should turn a blind eye to reports of lead and dangerous pathogens in drinking water.”

If you resided in the City of Benton Harbor for a period of two weeks or more from August 2018 through November 2021, then you may be part of a Settlement Class.

What is this lawsuit about?

This class action settlement arises out of a lawsuit, Braziel, et al. v. City of Benton Harbor, et al., No. 1:21-cv-00960-HYJ-PJG, brought by various members of the Benton Harbor community against the City of Benton Harbor, Michael O’Malley, Ellis Mitchell, and Marcus Muhammad (“City Defendants”) alleging that City Defendants violated residents’ constitutional rights by causing, prolonging, and downplaying the existence of lead levels above state and federal limits, and encouraging or allowing residents to consume water with elevated lead levels without their consent. City Defendants deny that they violated residents’ constitutional rights and contend instead that they took required action under the Safe Drinking Water Act. The plaintiffs contend that City Defendants’ actions violated the Fourteenth Amendment of the U.S. Constitution, which protects individuals’ right to due process, including the right to bodily integrity and autonomy. A violation of a person’s due process right to bodily integrity is only actionable under 42 U.S.C. § 1983 if the conduct shocks the conscience and no countervailing government purpose justified the Defendants’ conduct. If the conduct is determined to be actionable, a jury can assess damages depending on the harm that plaintiffs incurred and Defendants’ state of mind. If the jury finds that plaintiffs incurred no cognizable or dignitary harm, the defendant owes $0.

The resulting settlement assigns the City’s right to claims it has under or against the City’s insurance, and provides that any funds collected from the City’s Insurance in satisfaction of the $25 million Consent Judgment will establish a Settlement Fund to pay cash payments to members of the Class and Plaintiffs in the Mitchell action, notice and administrative costs related to the settlement, plaintiffs’ attorneys’ fees and expenses, and any service awards for the Class Representatives. The insurance declaratory action is currently being litigated in the United States District Court for the Western District of Michigan: City of Benton Harbor v. The Travelers Indemnity Company of Connecticut et al., No. 1:25-cv-00861-HYJ-PJG (W.D. Mich.).

There are no cash payments available at this time. There will only be money available if Plaintiffs are successful in winning money from the City’s insurance.

The lawsuit seeks relief in the form of compensatory and punitive damages and an order declaring the defendants’ conduct unconstitutional, as well as:

• an order of equitable and injunctive relief to remediate the harm caused, including repairs and compensation for property damage;
• immediate abatement of the lead service lines;
• clean uncontaminated water to be delivered to each affected home until the lead lines are fully replaced;
• establishment of a medical monitoring process and periodic medical testing;
• the appointment of a Monitor to oversee the water operations of Benton Harbor; and
• the establishment of a Community Medical Center for the coordination of care for exposed children

The suit also seeks forgiveness of all Benton Harbor loans for replacement pipes and related infrastructural work, and an immediate injunction to stop all Benton Harbor residents from paying for the contaminated water as well as disgorgement of all monies previously paid for contaminated water.