Cary S. McGehee

On October 14, 2014, Jan Burgess, a retired public employee in Flint, Michigan, sent her first complaint to the Environmental Protection Agency about the water coming into her house. Some days, she told the agency, it “smells like an over-chlorinated swimming pool; other days, like pond scum.” It was often brown, particles floated in it, and her calls to the city and the state had produced no action.

On April 18, 2017, Burgess and 1,706 other residents sued the United States. They alleged that the EPA knew of the danger by October 2014, failed to take the steps the Safe Drinking Water Act required of it, and did not issue an emergency order until January 21, 2016. “Residents of the City of Flint have the right to hold the EPA accountable when it has failed to do its job,” Burgess said. Her plumbing was damaged and her house was losing value, she said, and “the water still isn’t safe to drink.”

On January 28, 2025, Judge Linda V. Parker of the Eastern District of Michigan refused for the second time to dismiss the Flint residents’ negligence suit against the United States. The government argued that the Environmental Protection Agency’s conduct during the Flint water crisis involved policy choices that the Federal Tort Claims Act places beyond suit. Judge Parker held that the agency may have had discretion over when and how to answer residents’ complaints, but “once it decided to respond, it did not have the discretion to provide dangerously misleading or inaccurate information.”

Cary S. McGehee is co-lead counsel for the plaintiffs, who numbered more than 8,000 by her count in June 2025. After the ruling she said that the agency “was negligent in failing to warn the people of Flint that its water was tainted with lead and other contaminants,” that warning them was “a mandatory obligation,” and that a warning would have prevented further harm to people who, “at the time, trusted their government.”

McGehee has worked on the Flint litigation since November 2015, when she was one of five Michigan civil-rights lawyers leading the team that filed a class action for Melissa Mays and three other Flint families. In 2017 her firm, then Pitt McGehee Palmer & Rivers, became co-lead counsel for the ten related Flint class actions. In November 2021 Judge Judith E. Levy approved the $626.25 million settlement with the State of Michigan, the City of Flint, the McLaren defendants, and Rowe Professional Services; in 2024 she approved two more class settlements, with engineering firms that had worked for the city. “The EPA is the only entity that has not come to the settlement table and resolved the claims and offered compensation to the people of Flint for their negligence,” McGehee said in June 2025.

Melissa Mays and the November 2015 Complaint

The Sixth Circuit later summarized the residents’ allegations: the crisis began in April 2014, when the City of Flint started delivering Flint River water to its predominantly poor and African-American residents knowing that the water was not treated for corrosion. Melissa Mays was one of those residents. When her children came inside sweating in the summer heat, she gave them water instead of soda or juice. By January 2015 her youngest son had pneumonia, and Mays was on her third round of antibiotics for an upper-respiratory infection that would not go away. Her middle child fell off a bike and, instead of scraping a knee, shattered most of the bones in his wrist.

Residents were reporting hair loss, rashes, headaches, and tremors, and officials dismissed their concerns despite home tests showing extremely high levels of lead. Mays joined protests demanding that city and state officials act. In the fall of 2015 the Mayses and three other Flint families sued those officials. Their Michigan team was led by Michael Pitt, Cary McGehee, Trachelle Young, William Goodman, and Julie Hurwitz, and on November 13, 2015, a month after Governor Rick Snyder announced that Flint would go back to Detroit’s water, it filed Mays v. Snyder as a class action in the Eastern District of Michigan.

The Michigan lawyers had spent months working with activists in Flint before they filed, and they served as the team’s “field forces,” handling their clients’ day-to-day problems. The suit sought damages for everyone exposed to Flint water since April 25, 2014, along with a fund for medical monitoring and a court-appointed monitor for the city’s water system.

The lawyers had to get past governmental immunity, which shields agencies and officials from suits over acts within the scope of their duties. They built the case on a constitutional claim instead. Officials who exposed residents to toxic water without their consent, the team argued, had violated the residents’ due-process right to bodily integrity, and immunity did not protect them from that claim.

Two months later the residents opened a second front in state court. On January 21, 2016, Melissa and Michael Adam Mays, Jacqueline and Keith John Pemberton, Elnora Carthan, and Rhonda Kelso filed a class action in the Michigan Court of Claims against the governor, the State of Michigan, its environmental-quality and health departments, and two of Flint’s former emergency managers, Darnell Earley and Gerald Ambrose. McGehee was among their lawyers. They alleged that the water had caused neuropathy, hair loss, gastrointestinal and skin disorders, and in some cases life-threatening and irreversible injuries, and that it had damaged their pipes, service lines, and water heaters.

A year after that, Mays described her family at a House Energy and Commerce hearing. “Before 2014, I had 3 happy, healthy, active sons,” she said in written testimony on February 16, 2017. At 38 she was seeing a rheumatologist for an autoimmune disorder that resembled lupus and a neurologist for seizures that were new to her. The family used bottled water “to cook with, drink, brush our teeth, and give our pets because our water is too unsafe.”

Bodily Integrity in the Sixth Circuit and the Michigan Supreme Court

The first appellate ruling came on July 28, 2017. The Sixth Circuit heard the Mays appeal together with a companion case, Boler v. Earley, and Judge Jane B. Stranch wrote for the panel that “the remedial schemes in the SDWA are not so comprehensive as to demonstrate congressional intent to preclude remedies” under the federal civil-rights statute, 42 U.S.C. § 1983. “We find that the SDWA does not preclude § 1983 claims as pled by the Boler and Mays Plaintiffs,” the court held. McGehee was on the brief for the Mays appellants with Pitt and Beth M. Rivers, and Samuel R. Bagenstos argued for them.

By mid-2017 ten related Flint class actions were pending in the Eastern District of Michigan. In a June 2017 motion on which McGehee appeared with Pitt, the plaintiffs asked Judge Levy to appoint co-lead counsel, and in July 2017 she named Theodore J. Leopold of Cohen Milstein Sellers & Toll and Michael Pitt of Pitt McGehee Palmer & Rivers, with their firms, interim co-lead class counsel. When Judge Levy took appearances at a status conference on October 25, 2017, McGehee entered hers: “Good afternoon, your Honor. Cary McGehee on behalf of class plaintiffs.” The Mays case had been reassigned to Judge Levy that month, and in April 2018 it was consolidated into the class case, Waid v. Snyder.

In April 2019 Judge Levy allowed the class to pursue its bodily-integrity claim against Governor Rick Snyder, finding that the allegations described conscience-shocking conduct. Snyder and other state and city officials appealed the denial of qualified immunity. The city officials’ central argument was reliance: they said they had acted on the professional opinions of state environmental regulators and private engineering firms, and that any error was a mistake in judgment. On May 22, 2020, in Waid v. Snyder, the Sixth Circuit answered that whether that reliance was reasonable was a factual question for discovery, and it affirmed Judge Levy’s refusal to dismiss the governor and a group of state and city officials.

At that stage the court took the residents’ allegations as true, and it recited them. On March 14, 2014, an associate director in the governor’s urban-initiatives office wrote to members of Snyder’s staff that the expedited switch to Flint River water “could lead to some big potential disasters down the road.” Snyder’s legal counsel later called the Flint River water issues “downright scary,” and on April 28, 2015, his chief of staff told him that “[t]he water issue continues to be a danger flag.” Snyder ordered Flint back onto Detroit’s water on October 8, 2015, and when he declared a state of emergency on January 5, 2016, he “chose not to disclose the threat of legionella.” A state environmental supervisor, Stephen Busch, was alleged to have told the EPA’s Miguel Del Toral that the city was using corrosion control when it was not. Elnora Carthan was among the residents defending the ruling on appeal.

“The crisis was undeniable,” Judge Karen Nelson Moore wrote for the court, “but they refused to switch the City back to clean water, or even to take the meager step of introducing corrosion control, or even to admit that the water was poisoned.” She then borrowed the Supreme Court’s language from County of Sacramento v. Lewis: “When such extended opportunities to do better are teamed with protracted failure even to care, indifference is truly shocking.” Bagenstos, who had argued the 2017 appeal, argued this one for the plaintiffs.

Two months later the Michigan Supreme Court decided the state case. On July 29, 2020, in Mays v. Governor of Michigan, the court affirmed the Court of Appeals and returned the case to the Court of Claims. It held that the residents had adequately pleaded that the government’s actions took their property without compensation, and an evenly divided court left the Court of Appeals’ other rulings in place, including that the residents could seek damages for the violation of their bodily integrity under the Michigan Constitution. Their allegations, Justice Bernstein wrote in the lead opinion, “paint a picture of a public health crisis of the government’s own making,” and “There is obviously no legitimate governmental objective in poisoning citizens.”

$626.25 Million, Weighted Toward the Youngest Children

Judge Levy granted preliminary approval to the partial settlement on January 21, 2021, and final approval on November 10, 2021. The State of Michigan agreed to pay $600 million, the City of Flint $20 million, the McLaren defendants $5 million, and Rowe Professional Services $1.25 million. The State’s portion, Judge Levy wrote, was “one of the largest settlements in the State’s history.” The same order appointed co-lead class counsel and the executive committee as class counsel for the settlement.

More than 85,000 registration forms reached the claims administrator by the March 29, 2021 deadline, and at least 50,614 of them were unique claims. Flint’s population was estimated at fewer than about 100,000 people. Judge Levy called the response “particularly remarkable” because it meant that “over half of the current population of Flint is participating in the settlement.”

The settlement directed 64.5 percent of the net fund to children age six or younger, 10 percent to children seven through eleven, and 5 percent to those twelve through seventeen. Adults were allocated 15 percent, property owners and renters 3 percent, and businesses half of one percent. A $35 million reserve was held for minors who did not file claims right away. Deborah E. Greenspan, appointed special master in July 2018, supervised the claims process, and Archer Systems served as claims administrator.

At the fairness hearing on July 12, 13, and 15, 2021, the court heard from fifteen objectors who had no lawyers and from lawyers arguing for others. The sharpest objections concerned bone-lead testing. Objectors challenged the use of hand-held X-ray fluorescence devices on people, argued that the testing served no medical purpose, and complained that it cost $500, required a release of liability, and was unavailable to claimants who were not clients of the firm that arranged it. Judge Levy overruled the objections. Bone-lead testing was optional, she held, and claimants could qualify for compensation through other proof, including blood-lead results.

“Probably the most profound and saddest consequence of this is the feeling of parents who were lied to by the state,” McGehee said in 2021, as the settlement moved toward final approval. “The ramifications of the government lying to you—how do you trust them ever again?” Those parents, she said, were left “dealing with children having cognitive difficulties and difficulties that will be passed on beyond their children.”

The class later settled with the engineering firms. Judge Levy approved an $8 million settlement with Lockwood, Andrews & Newnam on May 22, 2024, and a $25 million settlement with Veolia on October 3, 2024, bringing the class settlements to $659.25 million.

A Walk-On at Bowling Green

McGehee joined the women’s basketball team at Bowling Green State University in 1980 as a walk-on and earned a scholarship. In her last season she was the Falcons’ most valuable player and best defensive player, made the All-MAC second team, and passed 1,000 career points. In 1984–85 she played for the Dallas Diamonds, who won the first and only championship of the Women’s American Basketball Association.

She went into law at her father’s encouragement, graduated from the Detroit College of Law, and was admitted to practice in Michigan in 1989. She and Michael Pitt are founding partners of the Royal Oak firm now called Pitt McGehee Palmer Bonanni & Rivers, where her work covers employment discrimination, civil-rights violations, and class actions. She was counsel in two class actions against the Michigan Department of Corrections on behalf of women and juveniles who were sexually assaulted while incarcerated; those cases settled for $100 million and $80 million. With her partner Channing Robinson-Holmes she helped Barbara Hernandez overturn a juvenile sentence of life without parole after more than thirty years in prison.

Burgess v. United States and the EPA’s Undertaking

Burgess v. United States was later consolidated before Judge Parker with other residents’ suits as In re FTCA Flint Water Cases. The Federal Tort Claims Act allows suits against the United States for federal employees’ negligence where a private person would be liable under state law, but it exempts discretionary functions. On April 18, 2019, Judge Parker denied the government’s first motion to dismiss. The EPA’s alleged failures, she held, involved objective scientific standards rather than policy judgment, and the plaintiffs had stated a claim under Michigan’s Good Samaritan doctrine, which holds liable one who undertakes to render services for the protection of others and performs them negligently.

Judge Parker recounted what the EPA learned as the crisis unfolded. LeeAnne Walters contacted the agency after tests of her home’s water showed highly elevated lead and iron; one result from her house showed 104 parts per billion of lead, against a regulatory limit of 15. The EPA’s investigation found that the service line itself contained lead, contrary to local officials’ claim that her interior plumbing was to blame. In May and June 2015 Miguel Del Toral, an EPA drinking-water specialist, prepared the agency’s interim report on high lead in Flint’s water. Flint, he found, was leaving homes with high lead out of its compliance sampling, and he warned that the omission and the city’s sampling methods could hide a wider problem. Del Toral wrote that his conclusion that high lead was widespread rested on a couple of decades of work on lead issues, and that he stood by it despite the limited Flint data.

The EPA, for its part, said that the state was working closely with the city “to ensure that the citizens of Flint are provided drinking water that meets health standards.” It issued its emergency order under section 1431 of the Safe Drinking Water Act on January 21, 2016, citing among its reasons “delays in responding to critical EPA recommendations.” On October 20, 2016, the agency’s inspector general concluded that “Region 5 had the authority and sufficient information to issue a SDWA Section 1431 emergency order” in June 2015.

McGehee told Flint residents how hard the case would be. “I just want to tell you, it’s extremely difficult to sue the U.S. government, OK,” she said at a virtual town hall in 2022. “There are governmental immunity protections that they have.” The federal case then had more than 7,000 plaintiffs, and the court would try a sample of their claims first: fourteen bellwether plaintiffs, two for each of seven categories covering injuries to young children, older children, and adults, deaths, property damage, business losses, and the timeliness of claims. “We know that it is a challenge to sue the U.S. government but we’re up to the task,” McGehee said. “We want to hold them accountable for their failures in this case and the damage that resulted to you because of them.”

After discovery the government moved to dismiss again. By then, Judge Parker found, the record supported a finding that “at least as early as April 2015, the EPA had concluded that the law required corrosion control.” The government offered evidence that between June 24 and July 20, 2015, EPA officials debated among themselves whether Flint’s failure to use corrosion control violated the Safe Drinking Water Act. It also relied on testimony from Susan Hedman, then the EPA’s Region 5 administrator, about why the agency did not issue an enforcement order sooner and what she weighed in drafting the agency’s July 10, 2015 news release.

Judge Parker held that Congress had already decided when the EPA must intervene, and that the agency’s choices involved professional and scientific judgment rather than competing policy considerations. Repeating her 2019 reasoning, she added that the crisis might involve decisions so unreasonable that no observer could see them as policy choices, and she denied the motion.

In May 2025 the EPA lifted the emergency order it had issued in January 2016. Michael D. Harris, who directs enforcement and compliance for the agency’s Region 5, wrote to the governor and to Flint’s mayor that the city had not exceeded the federal lead action level since July 2016. A month later McGehee said the damage remained. “The infrastructure was severely damaged by the corrosive water, and that continues to be a problem,” she said. “The replacing of the pipes has not resolved problems in the interior plumbing.”

That June the government asked to take the January ruling to the Sixth Circuit before any trial. “The EPA has tried three times to convince two federal judges that sovereign immunity applies to this case,” McGehee said, and each time, she added, the judges had ruled that the agency was not immune for its failure to act and to warn. “They don’t want a trial until an appeal happens, and that could take another two to three years,” she said. “As time goes on, to the benefit of the defendant who is being sued, memories fade.”

McGehee has said the residents seek compensation “for the harm done to them physically, emotionally and to their property and businesses,” and that a trial would finally let the people of Flint testify about the psychological harm and trauma the crisis caused.

On September 22, 2025, Judge Parker denied another motion, in which the government argued that no private person would be liable in comparable circumstances and that the act’s exception for misrepresentation barred the claims. “EPA undertook to render services to Plaintiffs by engaging in oversight, including monitoring, of the State’s and local water systems’ compliance with the SDWA and by responding directly to citizen complaints,” she wrote. The claims rested on “EPA’s negligence in providing the oversight and other operational tasks required to protect the Flint water system,” she held, rather than on the agency’s statements about what it or state and city officials had found.

When federal appropriations lapsed on October 1, 2025, the government asked Judge Parker to pause the case. She refused on October 20, relying on the Justice Department’s own contingency plan, which treats a court order to continue a case as express legal authorization for the work to go on. On December 1, 2025, she ruled on the experts for a bench trial. She refused to exclude the plaintiffs’ clinical psychologist on trauma and emotional harm; Erik Olson on the EPA’s obligations under the Safe Drinking Water Act and the Lead and Copper Rule; engineer Larry Russell on water quality and plumbing corrosion, including a supplemental report on a house at 926 Maxine Street; journeyman plumber Zak Rostar on the condition and repair cost of residents’ plumbing; and Vonnie C. McLoyd on the crisis’s effects on residents’ behavioral health and academic progress, measured against pre-crisis data. The government’s experts included a clinical neuropsychologist who evaluated the minor bellwether plaintiffs. As of that ruling, no trial date had been set.

The trial came that winter. The court heard the children’s bellwether claims at a bench trial, and on February 2, 2026, a former EPA official testified as an expert that the agency should have stepped in a year before it issued its warning about high lead levels. The trial ran more than a month and ended in March.

The government had renewed its request to take both rulings to the Sixth Circuit before trial. By early April 2026 the court had granted that request, certifying both the January 2025 discretionary-function ruling and the September 2025 private-liability ruling for an interlocutory appeal.

In May 2026 the residents and the government filed hundreds of pages of proposed findings. The government put the primary responsibility for the contaminated water on state regulators and city officials; the residents set out their case that the EPA had been negligent.

Award Letters and Partial Payments, 2025–2026

The claims period for the 2021 settlement opened on January 12, 2022, and claims came in for about 43,060 people under thirty compensation categories, twenty-one for those who were children during the crisis and nine for adults. By November 21, 2025, when Special Master Greenspan asked Judge Levy to approve the terms for paying them, 25,900 claimants had been approved: 12,770 who were adults during the crisis and 13,130 who were children. Problems uploading data in late 2022 had left early reviews resting on incorrect or incomplete information, Greenspan reported, and her office had gone back for water-billing, school, blood-lead, and birth records, held hearings, and received more than 2,500 appeals.

Judge Levy approved the payment process on December 5, 2025. Each claimant, or the claimant’s lawyer, was to receive a letter with a unique identification code that opened an online portal for choosing how to be paid. The first payments, on residential property claims, went out on December 12, and by December 23 the settlement website showed 2,854 payments made. That category is capped at $1,000 per property, divided among the eligible claimants for each property. On February 3, 2026, Judge Levy explained in an order that the property payments were “modest reimbursement for any and all losses and damage that the claimant incurred as a result of the provision of Flint water,” and noted that claimants awarded property payments in 2025 would have to address them in their 2026 tax filings.

Injury awards were to be paid in two installments. On March 23, 2026, Judge Levy authorized the special master to begin paying approved adult injury claims. The first installment, she ordered, “shall be an initial, conservative payment, which allows for final adjustments”; the second, the remainder, was “to be paid after all appeals and the value of the Settlement Fund assets are finalized.” Partial payments on adult injury claims began in June.

Melissa Mays said in May 2026 that she and people she knew planned to spend the money on repairs to homes damaged by the water, and that many wanted to “get caught up on their water bills.”

Special Master Greenspan reported on July 9, 2026, that roughly 100,000 claim reviews had been undertaken, about 12,500 payment awards issued, and more than $26.5 million authorized for payment. On August 20, 2026, Epiq, the payment administrator, issued award letters to approved claimants eighteen and older whose claims had no medical liens, missing information, or pending appeals. The injury awards in those letters were partial payments—$25,000 in Category 1 and smaller amounts in other categories—with an additional payment to come later on claims in Categories 1 through 27A. Property and business payments were full payments, because the settlement capped those amounts.

On September 25, 2026, Greenspan reported 29,476 approved claims and 17,608 awards issued or due by mid-October; about 78 percent of approved claims by claimants eighteen or older had been issued award notices. Of the 5,051 approved claims still waiting, 3,045 lacked identification, a signature, or a Social Security number or had an ineligible next friend, and 1,346 were held for Medicare, Tricare, or VA liens.

By October 2, 2026, 12,428 of the 15,778 claimants in the first nine distribution groups had chosen how to receive their money: 9,232 by bank transfer, 1,001 by check, 945 by Zelle, 773 by PayPal, and 477 by Venmo. By October 16 the count stood at 13,175 of 16,663 in the first eleven groups.

Claimants who are still children will be paid last. The special master counted 6,817 approved claims for current minors. Their awards go into one of two court-approved trusts or an annuity; a parent or other next friend may elect $5,000 in cash for the child’s benefit. Their award letters will issue only after the court’s deadlines for the other claimants have run.