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    Poisoning From Lead-Paint
    What Does it Take To Win the Case?
    By Michael Monheit

    Childhood Lead-Paint poisoning is a hidden epidemic in this country. Statistics show that roughly 54 percent of poor black children, and 12 percent of affluent, middle class white kids living in urban areas, annually ingest enough lead to cause a substantial drop in IQ. With that drop in intelligence comes additional difficulties: hyperactivity and other behavioral problems, various health crises, and an overall decline in physical and mental functioning. The net effect? There will be 76,000 more retarded children and 44,000 fewer gifted ones. In Philadelphia, estimates are that between 60,000 and 80,000 children have lead levels in their blood above 10 micrograms per deciliter. (The Centers for Disease Control advise public health officials to be "concerned" about any child with a level above 10.) With all this in mind, the numbers of potential childhood Lead-Paint poisoning cases could occupy the entire career of an army of attorneys. Unfortunately, every case is not a viable case, even when substantial damage due to lead paint has occurred.

    DEFENSE STRATEGY
    The typical, and often successful, defense strategy is to argue that a lead-poisoned child's mental deficits and behavioral problems are due to "environmental" factors the fact that the family is not intact, that the single mother head-of-household is a drug addict, or that the house is occupied by lots of other children and unemployed adults all of which create a chaotic home environment allowing little "quality time" for the child in question. If the family has moved three or four times within the time period in which the poisoning occurred, the case against any one landlord becomes more complex to make. All these factors, combined, dilute any claim filed on behalf of a poisoned and damaged child. In my experience, the airtight Lead-Paint poisoning case simply doesn't exist. Yet this does not preclude handling every case that is less than ideal.

    THE IDEAL CASE
    To quickly clarify all the potential problems, let's look at a hypothetical ideal case, from the standpoint of the plaintiff attorney. The best possible scenario might be something like this: "Matthew Smith", let's say, came to my office when he was 8 years old. He had lived his entire life in one rented house and, in fact, his family moved to that property three years prior to Matt's birth. His older brother Bill is a straight-A student; Bill was past the toddler stage when the family began living in this rented house. Matt shows signs of Lead-Paint poisoning: his IQ is borderline retarded at 78, he is in the lowest track for all subjects, is hyperactive, inattentive and has behavioral difficulties. But his brother Bill is a normal, bright child. What accounts for the difference between the two siblings? Bill's room, for one thing, did not contain Lead-Paint; for another, he exhibited minimal hand-to-mouth activity and, when he was learning to crawl, the family lived elsewhere. Matt, on the other hand, not only had a room in which old, lead-based paint was chipping and peeling, he was the kind of toddler who put everything into his mouth, and the paint on walls throughout the house had, by this time, started to deteriorate.

    'CONTROL' SIBLING
    The benefit of having a "control" sibling who shows no signs of damage is that it clearly establishes the deleterious role of Lead-Paint. The implication is that, were it not for the Lead-Paint, Matt would have been a bright child like his older brother Bill. (Though in cases where an older sibling has tested with a high lead level, but has no symptoms, the defense can then say, "Lead doesn't do any harm".) Another positive factor, from the standpoint of making this hypothetical case, is that the landlord knew his property was lead-infested and dangerous for children. The previous tenants had complained that their child suffered from lead paint poisoning, and this landlord simply evicted them, saying nothing when Matt's family moved in with a toddler. When the landlord was again notified that he needed to clean up the property (Matt had been tested for lead at age 1; it was above 30), the landlord promised action but did nothing. When Matt was 2 years old, it reached 55 micrograms per deciliter of blood. Finally, at age 3, the City of Philadelphia conducted a full abatement of the house and placed a lien against the property for the landlord's failure to do so. The lead levels in Matt's blood began to decline from that point on; and they dropped to 20 by the time he reached age 5. Now that he's 8 years old, they're down to 14.

    DAMAGE DONE
    But that by no means indicates that Matt is getting better. With lead, once the damage is done during that crucial developmental period, it is permanent. Matt will never recover his former potential. The only hopeful thing - if hopeful is what it can be called - is that the damage will not continue to worsen. It will stabilize. (And measures can be taken to help him compensate for the loss of natural potential.) Lead can, in fact, disappear completely from a child's blood and still be the cause of brain damage. It ultimately settles in soft tissue (most importantly, the brain) and in the bones. Once that occurs, irreparable harm has been done. There is no ameliorative cure. Another positive factor in this hypothetical case is that the landlord has a $5 million dollar insurance policy with no exclusions for lead. In many instances, there is no insurance, and no other assets of any kind. This makes pursuit of the case pointless, for obvious reasons. Other miscellaneous points include the fact that Matt's birth was normal, he walked and was talking with words at age 1. His mother took pre-natal vitamins, had pre-natal care, was not on welfare, had no DHS involvement, and didn't drink during the pregnancy. No one in the household smokes. It is not a crowded, chaotic home. The parents care about their children and read to them before bed. The older brother is doing well. They live in a residential area with no industry, no junkyards, no gas stations (possible other sources of lead contamination). And the landlord is solely in the business of real estate (and so cannot claim he owns only one property and was simply ignorant of the appropriate standard of care).

    Matt's case is ideal because every possible area the defense could use to deny liability is adequately and legitimately covered. The parents have a stable marriage, the father is employed, the mother volunteers at the school when she is not taking care of her two sons. Both parents have good parenting skills, and give Matt as much attention as they can.

    Matt has a lead test result history beginning at age 1; it is consistently and alarmingly high. A clear line can be drawn from those results to Matt's low IQ, his behavioral difficulties, and his failure to do better in school. Taking this ideal case to court would be, relatively speaking, easy. The net result would be a trust fund that would help pay for Matt's continuous and lifelong need for special education, stimulation and care.

    LESS-THAN-IDEAL CASES
    In less-than-ideal cases, the factors that inunediately preclude viability are:
  • The aforementioned lack of insurance or other assets (I have rejected about half of those cases I would otherwise consider viable because of lack of assets).
  • A mother who used drugs while pregnant.
  • A crowded home, a single-parent home, or a violent or otherwise " troubled" home.
  • A lead level below 30 (though I have pursued some cases of chronic exposure in the 20s).
  • A child who is still under 5 years of age (we don't yet know which injuries will ultimately develop; it's a wait-and-see situation).
  • SECOND TIER
    At the second tier of considerations, we have:
  • Cases in which the residence is owned by a family member (against whom it might be difficult to bring a case).
  • Cases in which a child spent time at many different homes (making it harder to identify the lead source).
  • Cases in which the parents have hobbies which involve lead (they present another possible source of lead).
  • Cases in which siblings have high levels of lead but are still doing well (this leaves open the defense that lead is harmless; but lead affects each child differently).
  • Cases in which the parents may have done lead removal and done it wrong (this leaves the parents subject to a possible joinder as defendants).
  • Cases in which no notice is given to the landlord, and those in which the landlord, when notified, acted promptly, and the lead levels in the child's blood actually went down (these are both more difficult to present).
  • To illustrate how a "less than ideal" childhood Lead-Paint poisoning case is still worth pursuing, here is the gist of a matter I handled recently. The "Brown" family had a daughter who was exposed to Lead-Paint on the property of landlord "Smith" when she was about 1-1/2 years old. When the case approached trial, the girl, who we'll call Felicia, was about 7 years old. She was doing moderately well in school, but her lead levels had been in the 40s and 50s. An expert retained to testify said Felicia's present IQ was in the 90s, but that she had suffered brain damage leading to a drop of between 10 to 20 IQ points. (This kind of drop in IQ has been correlated with a 15 percent to 20 percent drop in earning capacity.) The main argument the defense posed was that the mother used IV drugs while pregnant with Felicia. However, Felicia's APGAR score at birth was normal, as were all subsequent tests. She exhibited no neurological deficits at birth, and, from a medical standpoint, appeared to be a healthy baby. The other argument made by the defense was that Felicia lived, both before and after her exposure to lead in the defendant's property, in family member-owned homes that also contained lead. So those other family members could be sued, the defense argued, as could the mother herself for exposing her unborn fetus to drugs. The factor that ultimately diminished these arguments was that the landlord had been given notice by the City of Philadelphia's Childhood Lead Poisoning Prevention Program to abate the property. He did nothing, and Felicia's lead levels went up. This clearly-drawn line between cause and effect led to the case being settled for an amount under $100,000. That money is now in a trust for the child and will be made available to her when she reaches the age of 18.

    DIFFERENCE IN CASES
    The difference between a viable Lead-Paint poisoning case and one that is not (beyond the presence or absence of assets), is whether the preponderance of evidence points to a clear relationship between the ingestion of lead and objective, demonstrable symptoms in the child. This must then be combined with adequate proof that the landlord had a duty to remedy the hazard, and failure to do so resulted in increased harm to the plaintiff. Additional factors that could conceivably contribute to those symptoms must not be so overwhelming as to irreparably harm the plaintiff's claim. When those criteria are met, the case has potential to proceed.

    This informational piece was developed by the Law Offices of Monheit, Silverman & Fodera. If you wish to initiate a legal investigation into the possibility that your child was lead poisoned as a result of the wrongful conduct of another, please find an attorney with special expertise in Lead-Paint poisoning cases. Monheit, Monheit, Silverman & Fedora is ready to assist you. Please call 1-800-220-LAW1..

     

    This informational piece was prepared by Monheit, Silverman & Fodera. If you would like more information on this topic, call us at (800) 220-LAW1, or use the "Do I Have A Case?" button on this web site.


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