Bone scans dominate Flint hearing
Judge to weigh whether $641.25M is fair settlement
A Flint pediatrician and former hospital CEO blasted the use of industrial bone scanners — not designed for use on human beings — to document Flint residents’ exposure to lead-contaminated drinking water, as a federal judge began a multi-day hearing Monday on whether a proposed $641.25 million partial settlement is a fair one.
“It’s just mind-boggling,” Dr. Lawrence Reynolds, the former president and CEO of Mott Children’s Health Center in Flint, told U.S. District Judge Judith Levy. “This is completely irresponsible and unethical.”
Bone scans have emerged as an important way for Flint residents to show they qualify for higher settlement amounts. Another way is a blood lead test, but only if it was performed soon after the lead exposure happened, beginning in April 2014. Another possible way to show damage is cognitive testing. Controversy surrounds the use of portable bone scanners designed for use in the mining and recycling industries but modified for use on humans.
On Tuesday, Levy is to hear from Flint objectors who are not represented by attorneys. Groups have planned a day of demonstrations outside the Genesee County Circuit Court, where Judge Joseph Farah, who is assisting Levy, will hear from those who want to testify in person.
Lawyers for defendants and plaintiffs who are backing the settlement say there is a better way to assess the success of the proposed settlement — the fact that more than 50,000 Flint residents have registered to participate in it. The proposed settlement, mostly funded by the state of Michigan, will avoid years of costly and uncertain litigation and ensure that most of the money goes to Flint residents who were children at the time of the lead exposure, when they were most vulnerable to potential harm.
Also during Tuesday’s daylong hearing, lawyers in the Flint water crisis civil litigation accused one another of unethical behavior and conflicts of interest.
Paul Napoli, a partner in the New York law firm that obtained the handheld scanners and had medical experts modify them for human use, produced several research reports showing the device has been safely used to scan humans for lead and said the radiation
generated is minimal — less than the exposure one would get from a dental X-ray.
But Reynolds, who was speaking as a citizen objector and not an expert witness, countered that he is confident all the studies Napoli cited were conducted under the supervision of Institutional Review Boards and that no such board is overseeing the bone scans administered to thousands of Flint residents.
In fact, Reynolds said, the New York law firm Napoli Shkolnik did not even register its radiation device with the state of Michigan until Reynolds contacted the state, by which time about 3,000 Flint residents had already been scanned. Using an unregistered radiation device is a misdemeanor that can bring a fine of up to $1,000 per use, he said.
Napoli countered that it was not even clear the device emits enough radiation to require registration with the Michigan Department of Labor and Economic Opportunity, but that his firm ultimately did register it to be in full compliance. That only involves filling out a form and paying $80, Napoli said. “It’s really of no moment.”
Napoli was similarly dismissive of a May 12 letter to his firm from the scanner’s manufacturer, Thermo Fisher Scientific, telling him to stop using it to scan humans without the company’s authorization.
The company was well aware of how its scanner was being used, but the main official the law firm was dealing with has since left Thermo Fisher and the company says it does not have access to her emails, Napoli said.
“This letter is of no moment because it’s disingenuous,” Napoli said of the letter signed by Chloe Hansen-Toone, the company’s vice president and general manager.
“This is a CYA (cover your ass) letter that they felt compelled to do.”
Philadelphia attorney Mark Cuker said the test results the Napoli Shkolnik firm has issued after a bone scan are topped with the logos of Harvard and New York University, but when subpoenaed, neither institution has taken responsibility for the testing.
Napoli said the scanning is overseen by Aaron Specht, a research associate at Harvard with a doctorate in medical physics, and he handled all aspects of the program, including the letterhead used to issue test results.
Napoli and another lead attorney, Corey Stern of New York, hit back at Cuker, accusing him of inconsistencies that include questioning the safety of the portable bone scans while at the same time complaining that his clients cannot get access to the scanning, controlled by Napoli’s firm.
They also accused Cuker of having a conflict of interest by representing hundreds of clients who want a share of the Flint settlement while at the same time representing a handful of clients who oppose the settlement. That is a conflict because if the settlement gets torpedoed as a result of objections Cuker raises, it will almost certainly hurt his clients who want to settle, they said.
Napoli also accused Cuker of violating legal ethics by offering to withdraw his objections to the settlement in return for better settlement terms for his clients.
Levy thanked Reynold for his concerns and said she will consider the issues he raised, but said his objections appeared to arise from his perspective as a medical doctor concerned about use of the scanning equipment for diagnosis, treatment, or rehabilitation. In the Flint litigation, they are being used for a different purpose, she said.
“It’s just mind-boggling. This is completely irresponsible and unethical.”
Dr. Lawrence Reynolds
Former president and CEO of Mott Children’s Health Center in Flint, speaking of the use of industrial bone scanners — not designed for use on human beings