SPRINGFIELD — One day after the U.S. Supreme Court turned away a case about lead-tainted water in Flint, Mich., Illinois’ own high court heard arguments in a suit brought by Chicago residents who allege city pipes leached lead into their homes’ water supply.
The lawyer for plaintiffs Gordon Berry and Ilya Peysin presented the case as a matter of first impression before the Illinois Supreme Court on Wednesday.
Berry and Peysin filed their negligence lawsuit in 2017 after the city replaced old water mains with a partial lead service line replacement, removing a portion of the lead service line and replacing it with copper. This method creates a chemical reaction that increases the deterioration of lead over time.
Instead of seeking compensatory damages, the plaintiffs asked the trial court to establish a medical monitoring program to pay for the testing of residents exposed to increased lead levels.
The plaintiffs also allege an inverse-condemnation claim, which holds that their property was damaged or taken for public use without appropriate compensation.
Cook County Circuit Judge Raymond W. Mitchell dismissed both counts in April 2018. The 1st District Appellate Court reversed Mitchell’s ruling in May 2019, and the city appealed the case to the Illinois Supreme Court.
Justices P. Scott Neville Jr. and Thomas L. Kilbride did not attend the arguments.
R. Chris Heck, a partner at Kirkland & Ellis LLP, represents the city on appeal. He argued the plaintiffs have not satisfied the elements of a negligence claim or shown “special” damage needed for an inverse condemnation claim.
He also asserted that the plaintiffs claims were barred by the state’s tort immunity law.
On the inverse condemnation claim, Heck said the alleged pipe damage sustained by the plaintiffs was not “special” damages under the law because the pipes were damaged the same as any other residents with a lead service line. Supreme Court Justice Robert R. Thomas interrupted Heck and took issue with his claim.
“I would think that would be correct if something about the water main improvement itself … rendered existing lines inadequate. … Here, plaintiffs are alleging the city damaged plaintiffs’ supply line, such that they now have to be replaced. Isn’t that a compensable injury?” Thomas asked.
“If I understand your argument, they are alleging the city effectively broke their pipes. That’s damage, but it’s not damage because they broke other pipes as well?”
Heck responded that not every sort of damage to someone’s property is entitled to recover compensation.
“There may be some various types of damage that reduce the value or otherwise harm the property and yet is not recoverable,” Heck said.
Mark T. Vazquez, an associate at Hagens Berman Sobol Shapiro LLP who represents the plaintiffs, asked the justices to approach this case as a “hybrid” case that blends principles of negligence with an equitable remedy, rather than monetary damages.
“We understand that the Illinois Supreme Court hasn’t dealt with this issue before,” Vazquez told the justices. “But what we are asking for is to allow plaintiffs to seek an equitable remedy in a negligence action where they have been injured in this way.”
Vazquez’s use of the term “hybrid” came in response to questions from Justice Mary Jane Theis.
“Do we analyze this as a tort, or do we analysis this as permanent injunctive relief?” Theis asked.
After Vazquez replied that the claim was brought as a tort, Theis asked how other states treated causes of action for medical monitoring.
“Do they call it a tort?” Theis asked.
Vazquez initially responded with a yes, but soon clarified.
“It’s technically a hybrid,” he said. “The lines are in some respect blurred. It’s an equitable remedy under traditional negligence principles, so the elements of cause of action are essentially the cause of action for negligence, but remedy is equitable.”
Later in the arguments, Thomas continued pressing Vazquez on the term “hybrid.”
“We have to look at what the cause of action is. You mentioned that this is a hybrid. Don’t we have to figure out what this is? You said that damages aren’t necessary. How can something be a tort without damages?” Thomas asked.
Vazquez said the case is a tort in the sense that a harm was committed and plaintiffs are seeking a remedy.
But the remedy itself is injunctive relief. “The remedy is fitting the injury. Here, damages wouldn’t cure what the harm is,” Vazquez said.
The case is Gordon Berry, et al., v. City of Chicago, No. 124999.