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Judge to hear arguments over Fifth Amendment claims in Flint water crisis civil trial

Michigan Municipal League

On Tuesday, attorneys are scheduled to argue over whether former Michigan Governor Rick Snyder may invoke his Fifth Amendment right and not testify at a civil trial concerning the Flint water crisis.

Two engineering firms — Veolia North America (VNA) and Lockwood, Andrews & Newnam (LAN) — consulted on Flint’s water system during the water crisis and are being sued on behalf of four plaintiffs who were children during the crisis.

The children were exposed to lead and other contaminants in their drinking water. They’re seeking financial damages from the engineering firms. The firms deny they’re liable.

Snyder is on a long list of potential witnesses the defense may call.

He has already been disposed in the case, but since the deposition, Snyder, along with eight others, was indicted on criminal charges related to the Flint water crisis.

Snyder’s attorney has informed the federal judge hearing the case that the former governor plans to invoke his Fifth Amendment privilege if he is forced to appear as a witness.

The Fifth Amendment to the U.S. Constitution guarantees no person can be compelled to be a witness against him or herself.

Four other potential witnesses facing criminal charges, including two former Flint emergency managers, have also indicated they plan to plead the Fifth if they are called to testify.

In a motion filed with the court last week, attorneys for VNA say the five can’t invoke their Fifth Amendment protection since they have already testified under oath in pre-trial depositions:

"None of the five witnesses invoked the Fifth Amendment privilege during his deposition—even though the Michigan Solicitor General was actively and publicly re-investigating the water crisis and had pledged to seek additional indictments against the people responsible for the crisis."

"These witnesses have testified at length in depositions; some have answered reporters’ questions; two even have testified before Congress. But they have yet to testify in open court. They should do so here."

Lawyers for Snyder and the others say they are concerned attorneys for the engineering firms plan to ask their clients questions beyond what was asked during pre-trial depositions.

In a filing with the federal court on Friday, Snyder’s attorney laid out what he believes is the real intent of calling the former governor to testify in the civil case.

“VNA doesn’t care what Governor Snyder says about his alleged 'misconduct and failures,' vis-a-vis the Flint Water Crisis,” attorney Brian Lennon writes in his motion, “Rather, VNA hopes to force Governor Snyder to repeatedly invoke the Fifth Amendment in front of the jury and thereby shift blame away from itself.”

U.S. District Judge Judith Levy has scheduled a hearing on the issue for Tuesday.

In addition to Snyder, former emergency managers Darnell Earley and Gerald Ambrose, former aide to Snyder, Rich Baird, and former City of Flint employee Howard Croft have all indicated they want the court to quash their subpoenas to testify. Snyder and Croft are facing misdemeanor charges related to the water crisis. Ambrose, Early and Baird are facing more serious felony charges.

The civil trial is the first of potentially many related to the Flint water crisis.

It’s being referred to as a "bellwether" trial, since it may serve as a guide for how other civil litigation related to the crisis may proceed. It is expected to last four months.

It is unrelated to the $626 million settlement of claims against the State of Michigan, city of Flint, Rowe Professional Services and McLaren Flint Hospital. More than 50,000 people have applied to be part of that settlement. They have until May to complete the application process to receive a share of the settlement.

Copyright 2022 Michigan Radio. To see more, visit Michigan Radio.

Steve Carmody has been a reporter for Michigan Radio since 2005. Steve previously worked at public radio and television stations in Florida, Oklahoma and Kentucky, and also has extensive experience in commercial broadcasting. During his two and a half decades in broadcasting, Steve has won numerous awards, including accolades from the Associated Press and Radio and Television News Directors Association. Away from the broadcast booth, Steve is an avid reader and movie fanatic. Q&A