Overview of Lead Paint Litigation in NYS

INTRODUCTION

Childhood lead poisoning represents one of the greatest preventable hazards in our society, yet an estimated 30 million American homes still have unsafe lead levels in them. [1] Approximately 3.8 million children in the U.S. have blood lead levels high enough to cause health problems. [2] Exposure to even low levels of lead is associated with decreased intelligence, reduced physical stature and growth, impaired hearing, reduced attention span, hyperactivity, and behavior problems. The recognized level for lead toxicity in the U.S. has been lowered dramatically over the past three decades, from blood-lead levels of 60 micrograms per deciliter of whole blood (mg/dl) in the mid-1960’s to the current level, set by the Center for Disease Control (CDC) in 1991, of 10 mg/dl. [3] This decrease reflects an increasing awareness of the dangers of lead in the environment. Additionally, as technology and medical progress becomes more advanced the level for lead toxicity might even become lower in the future.

The principle source of childhood lead exposure is lead-based paint in older homes and apartment buildings. Although lead has been phased out of gasoline starting in 1973[4] and other products, resulting in considerable reductions in blood lead levels, little has been done to reduce hazards from lead-based paint in private and rental housing built before 1978. [5] Thus, children living in buildings built before 1978 are at serious risk of being exposed to lead poisoning. The primary way in which children are poisoned is through the ingestion of lead-contaminated surface dust that lands on a child’s toys, hands, or food. [6] Dust is formed as paint deteriorates or is distributed by scraping, sanding, or burning.[7] Friction on surfaces such as doors and windows also generates dust. [8] Moreover, due to its small size, lead dust may not be visible to the naked eye and is difficult to clean. In addition, common household cleaning practices may exacerbate the problem; for example, sweeping and vacuuming can disperse lead dust.

Lead enters a child’s system through normal hand-to-mouth activity such as putting hands, toys, or other objects in their mouth. Elevated blood levels affect virtually every system in the body and can damage the central nervous system, the kidneys, and cause anemia.[9] At high levels, lead poisoning can cause coma, convulsions and death.[10] Childhood lead poisoning affects the legal community, housing policy and societal and economic issues in the United States and this issue is and will be critical to our society until an effective approach is developed to prevent widespread lead poisoning among children.

This paper examines numerous topics, in regards to lead paint litigation and develops strategies that could alter the status quo approach to addressing this serious health problem affecting our children. The following topics are addressed in this paper: (1) The poisoned population; (2) Effects of lead exposure; (3) Legal remedies in lead paint litigation with an emphasis upon New York State Law; (4) Traditional and Potential defendants; (5) Federal laws; (6) Damages in lead paint litigation; (7) Mitigating Damages; (8) Current trend of lawsuits against lead paint manufactures and (9) An ideal scheme.

EFFECTS OF LEAD EXPOSURE

Lead poisoning causes a brain injury in its victims. Due to the manner in which it is absorbed and distributed in the body as well as the particulars of its toxic mechanisms, lead is a poison that targets the developing brain of children. The injury is a physical injury to the neurons of the brain.[11] It is an actual, physical injury to the brain. The symptoms of severe lead poisoning in children initially include lethargy, abdominal cramps, anorexia and irritability.[12] Over a period of weeks, or days in children younger than 2 years of age, there is progression to vomiting, clumsiness, ataxia ultimately to alternating periods of hyperirritability and stupor and then finally coma and seizures.[13] This syndrome is typically associated with blood-lead levels between 50 mg/dL and 70 mg/dL.[14]

Lower blood-lead levels are also neurotoxic in children and have lasting effects on neurobehavioral functioning. For example, lower levels of exposure can cause reduced IQ, cognitive difficulties, deficits in speech and language processing, attention deficit disorder, and full or partial hearing loss. Lead poisoning from these lower levels of exposure is far more common and is particularly insidious due to its lack of diagnostically definitive physical signs.[15] Some children complain of stomach pains and loss of appetite and may or may not have anemia.[16] However, such symptoms are not present in all poisoned children, or even the majority, and in any case, do not unequivocally point to lead as the culprit.[17] Therefore, a lawyer representing a victim of lead paint poisoning must utilize a neuropsychologist to establish the adverse effects of lead on the childhood victim.

A neuropsychologist is a psychologist who has received specific training over and above his or her ordinary training in psychology.[18] This additional training centers broadly upon the study of the brain and behavior and more particularly upon the manner in which the brain is topographically organized so that different cognitive functions are controlled by anatomically distinct areas and systems.[19] Neuropsychologists are used to diagnose brain injuries. For example, assume that a person is exhibiting a problem with short-term memory. He or she goes to a neurologist. Most often, the neurologist will have an MRI or a CT Scan performed on the patient, which may disclose gross neurological injury.[20] If these diagnostic tests are grossly normal, the neurologist will usually refer the patient for a full battery of neuropsychological tests.[21] The results of these tests are generally accepted in the medical community as objective evidence of a functional brain injury, that is, a brain injury which does not appear on an X-ray, MRI, or CT Scan.[22] The nature of such a brain injury is diagnosable by a full battery of neuropsychological testing.

IQ testing is one important part to neuropsychological testing in establishing an injury caused by the lead paint ingestion. The medical community generally accepts that an increase in blood lead from 10 to 20 mg/dL decreases a child’s IQ 2 to 4 points and 7 to 9 IQ points with levels of exposure from 30 to 40 mg/dL.[23] Therefore, IQ is essential in establish damages, but is only part of the testing that needs to be conducted on the child. IQ is most typically determined by use of one of the Wechsler tests. IQ is determined based on the child’s overall performance on a battery of subtests that assess multiple and often unrelated functions. However, IQ testing is not an acceptable substitute for a full battery of tests, because IQ tests are not particularly sensitive to the effects of brain injury.[24] For instance, if you injure or remove a substantial amount of brain tissue from either of the temporal lobes, you will cause memory impairment which will adversely affect academic performance.[25] But this injury does not significantly decrease a child’s scores on an IQ test. Therefore, a full battery of neuropsychological tests should always be given because this would include tests that measure the following domains of brain functioning: (1) sensory-motor functioning; (2) Attention; (3) Learning and memory; (4) Executive functioning, i.e., planning ability and concept formation; and (5) Cognitive processes.[26]

Establishing the effects of lead exposure on the child is essential in proving damages. Therefore, the neuropsychologist is an integral part in establishing your claim against the defendants and providing an economic remedy to the victim. Furthermore, since the child has been exposed to lead paint poisoning, he or she has an actual physical injury to the brain.

THE POISONED POPULATION

Lead paint poisoning, while dangerous for everyone, tends to manifest itself primarily in young children. Not only are young children more likely than adults to ingest lead paint, but children’s bodies are particularly susceptible biologically and developmentally to the effects of lead paint. The poisoned population has other defining characteristics, namely that the young children are generally members of minorities from low-income families.[27] Such families often occupy older, deteriorating urban housing where lead paint remains prevalent. Unfortunately, for minority and poor children, the problems surrounding lead poisoning are profound. These children are in the gravest danger because they face a high risk of exposure, and when they are poisoned they have fewer resources with which to obtain care.

The Center for Disease Control (CDC) ranking of populations at risk for lead poisoning reflects this expectation, placing poor children and minority children at the top of the list.[28] Other studies also acknowledge the identity of the poisoned population. For instance, a New York City study found that African-American children accounted for an estimated 60% of children living in standard metropolitan statistical areas with blood-lead levels greater than 25mg/dL.[29] Moreover, in 1997, a press release from the CDC noted that despite a dramatic decrease in blood-lead levels for all Americans, children from low-income families still exhibited higher levels than other children.[30] The correlation between race, income, and lead poisoning might become even more pronounced in the fear future.[31] Because the fact that low-income and minority families are more likely to occupy older houses with lead-based paint, race and income will become better indicators of the likelihood of exposure to leaded paint, and, consequently, elevated blood lead levels.

The most vulnerable segment of the population to lead poisoning is children under five years of age.[32] Children’s bodies absorb and retain more lead than adults’ bodies, due in part to the likelihood of an iron deficiency which greatly increases the risk of absorption of lead into the gastrointestinal tact.[33] Because children’s bodies and organs are in the developmental stage, even the slightest amount of lead can have a profoundly detrimental effect.[34] Especially, children under the age of three, the incomplete development of the blood-brain barrier increases the risk that lead will seep into the nervous system.[35] A child’s system, particularly an infant is immature and is not fully capable of neutralizing toxic substances such as lead in their bodies.[36] Lead is a neurotoxic metal that affects areas of the brain associated with regulating behavior.[37] Introduction of lead into the blood stream alters the output of neurotransmitters and disrupts the development of nerve cells.[38] When the cells in a child’s brain are destroyed, or if vital connections between nerves are interrupted, than the damage will likely be permanent and irreversible.[39]

The normal treatment for lead poisoning is a process called chelation.[40] Chelation calls for the lead poisoned person to receive a series of injections, which change the molecular structure of the lead using EDTA (known as ethylenediaminetetraacetic acid), which acts as an anti-coagulant.[41] When injected into the body, EDTA facilitates excretion more easily through the urinary tract, thereby allowing the lead to leave the body.[42] Chelation, can require hospitalization over a five day period, for both treatment and follow up testing.[43] Chelation reduces the level of lead in the blood, but cannot repair neurological impairments or serve to curb any additional damage.[44] Moreover, for a child to undergo such extensive medical testing is difficult and costly. Chelation is usually only implemented in very high blood lead levels and only partially corrects the child’s problem.

LEGAL REMEDIES IN LEAD PAINT POISONING

Generally, plaintiffs involved in lead paint litigation are bringing claims against their landlords and owners of the building. In cases where a child is poisoned by lead paint exposure, there are various recourses the tenant may pursue. Since the landlord/tenant association is both a conveyance and a contractual relationship, the tenant may sue the landlord under a breach of an express or implied warranty of habitability.[45] An implied warranty guarantees that the landlord will deliver over and maintain, throughout the period of the tenancy, premises that are safe, clean and fit for human habitation.[46] The warranty covers all latent and patent defects in the essential facilities of the residential unit, including all facilities vital to the use of the premises for residential purposes.[47] However, this claim limits the plaintiffs to contract remedies rather than large tort damages. Thus, plaintiffs should seek a tort claim rather than a breach of a warranty claim.

The majority of claims against landlords are negligence causes of action. A negligence claim alleges that the landlord breached a duty to maintain the plaintiff’s property in a safe and sanitary condition.[48] The most basic claim is that the landlord “knew or should have known that conditions at their property, rented to the plaintiff’s family, posed health risks to the family.”[49] Alternatively, if the landlord actually did take steps to hire licensed and trained professionals to detect or remove lead from the premises, the tenant may sue under a theory of professional liability for the “acts, errors or omissions in rendering or failing to render tests, inspections, assessments, plans, opinions or advice.”[50] For example, if the landlord hired an independent contractor to perform abatement on the apartment and the contractor was negligent a plaintiff can bring a cause of action against the landlord and the contractor.

Landlords do have viable defenses against plaintiffs bringing a negligence claim. Landlords have developed a successful method to win negligence cases; they file a counterclaim against the child’s parents.[51] Landlords allege that the parents “failed to prevent their child from ingesting leaded paint and that this failure was the proximate cause of the child’s injuries.”[52] This defense is effective because it creates a conflict of interest between the parents and the child, necessitating the appointment of a guardian for the child plaintiff and the retention of separate counsel for the parents.[53] Compounding the problem, “since the majority of plaintiffs are members of lower income households, this places strain on their already limited resources and can be an effective deterrent to continuing the lawsuit.”[54]

Tort claims against a landlord for damages resulting from lead paint poisoning, however, are often difficult to establish. In New York State, for instance, “negligence cases brought against landlords were routinely dismissed if the tenant could not prove that the landlord had actual notice that there was lead-based paint in the apartment.” [55] So long as the landlord “didn’t test for lead, and therefore didn’t actually know it was present, he couldn’t be held liable.”[56] This rule leaves plaintiffs in an impossible situation. Thus, the New York State Court of Appeals recently addressed the issue of actual and constructive notice in lead poisoning litigation. The court in Chapman v. Silber, 97 N.Y.2d 9 (2001) essentially reinstated the familiar notice principles which existed in premises liability cases for several decades.[57] The Court held that the constructive notice principles should also apply in lead poisoning litigation. “So too, here, the landlord having contractually retained a right of entry and having assumed a duty to make repairs may not use the invisibility of lead contained in paint to avoid liability.”[58]

The law in New York is now resolved that “normal” premises liability standards regarding actual and constructive notice apply in lead poisoning cases. Some of the factors for the Court to review for constructive notice are whether the landlord: (1) retained a right of entry to the premises and assumed a duty to make repairs; (2) knew that the apartment was constructed at a time before lead-based interior paint was banned; (3) was aware that paint was peeling on the premises; (4) knew of the hazards of lead-based paint to young children and (5) knew that a young child lived in the apartment.[59] The Court in Chapman did not require that all of these factors be met. “We hold only that a landlord who actually knows of the existence of many conditions indicating a lead paint hazard to young children may, in the minds of the jury, also be charged constructively with notice of the hazard. This rule is merely an application of familiar notice principles…”[60]

Obviously in most cases landlords will not recall or admit that they knew of the hazards of lead-based paint or that they knew paint was peeling. A landlord’s mere denial, however, is not conclusive on these issues. Where a landlord had notice of prior lead hazards a self-serving denial of knowledge of the dangers to young children of lead hazards is not credible. Similarly where a landlord has a right to enter, a duty to repair, and previous actual knowledge of lead hazards, they cannot shield themselves from liability merely by avoiding their duty to inspect the premises for chipping paint or by claiming they never saw chipping paint. The courts will not leave children in such an impossible situation. Therefore, these are questions to be determined by a jury. Although this ruling may make it somewhat easier for tenants across New York to hold landlords accountable, a tenant must establish material questions of fact on each element of this five-part test simply to avoid summary judgment and get the case before a jury.[61] In fact, this decision falls far short of requiring landlords to test their properties for the presence of lead-based paint and still requires the plaintiff to establish his negligence claim before a jury.

FEDERAL LAWS

Although the federal government has improved its approach to dealing with lead-based paint hazards, current federal law still largely addresses only federally assisted housing units.[62] Congress has left states with the responsibility of remedying the problem of lead-based paint hazards in private housing.[63]

Congress first seriously addressed the problem of lead-based paint hazards in 1971, with the passage of the Lead-Based Paint Poisoning Prevention Act (LPPPA).[64] This statue authorized HUD to eliminate lead-based paint in public housing, and to eliminate lead-based hazards “as far as practicable” in federally assisted housing.[65] However, the statute did not adequately address the problem of lead-based hazards in federally assisted housing. A 1990 HUD report found that abatement of lead-based paint had been accomplished in only a small fraction of dwellings containing such paint.[66] Congress concluded in 1992 that, despite the LPPPA, “the Federal response to this national crisis remains severely limited.”[67]

Recognizing the failure of prior efforts, Congress adopted the Residential Lead-Based Paint Hazard Reduction Act of 1992 (Title X), which fundamentally reoriented the federal government’s approach to lead-based paint hazards.[68] Title X emphasizes identification and control of hazards, with established clear standards, disclosure to the public of the presence of lead-based paint and lead-based hazards, and interdisciplinary study of lead hazard issues.[69] The strategy produced by Title X aims to reduce lead poisoning through a combination of lead hazard evaluations and both short term and long term interim control measures, rather than through the total elimination of lead paint.[70]

Title X authorizes a grant program for States to evaluate and reduce lead-based paint hazards in privately owned housing built before 1978 and occupied by low-income families.[71] By 1998 200 cities had implemented grant programs.[72] All hazard reduction work funded under the program must be done by certified contractors.[73] These programs have helped create a large trained workforce and local lead-poisoning prevention ordinances.[74] Furthermore, grants should continue to be awarded competitively to target the funds to jurisdictions with the greatest need and capacity.

However, Title X does not prescribe standards of care for lead-based paint in private housing. Although Congress did seek to prompt lead hazard control efforts indirectly in private housing, by imposing disclosure requirements on private property owners.[75] Title X requires sellers and lessors to disclose the presence of any known lead-based paint or lead-based paint hazards prior to the sale or rental of any pre-1978 housing unit.[76] Sellers and lessors must also provide purchasers and lessees with any lead hazard evaluation reports available to the seller or lessor, and also with a lead hazard information pamphlet prepared by EPA.[77] Title X, at best, created a dual focus on preventing childhood lead poisoning and preserving safe and affordable housing. In addition, numerous States seem to develop their statutes in accordance with the principles developed in Title X.

TRADITIONAL AND POTENTIAL DEFENDANTS

When residents of private housing are injured by the presence of lead paint, they have limited options for seeking responsible parties. One option, already discussed, is suit against the landlord. But what about parties who purchase their own home, only to find themselves and their children poisoned by paint? What about the situation where the landlord is judgment proof or cannot survive summary judgment? Can parties bring a cause of action against the city where they live? In addition, what about individuals living in government housing that are exposed to lead-based paint?

Local housing authorities and HUD are generally held liable for exposing their tenants to lead-based paint.[78] In addition, to abating known lead paint, public housing authorities are also required to inspect and notify tenants regarding the dangers of lead-based paint.[79] The largest public landlord is HUD. The most important federal legislation for the many tenants of federal public housing is the Lead-Based Paint Poisoning Prevention Act (LPPPA). [80] The regulations implementing LPPPA require local housing authorities that receive funds from HUD to inspect the units under their management for lead-based paint and to cover or remove such paint where found.[81] These regulatory provisions create enforceable civil rights for tenants.[82] However, holding a municipality liable is a different story. While proving that a municipality that does not own the premises in question is liable for the injuries suffered by an infant that contracted lead poisoning may be difficult. However, in a case, where the owner of the building does not have adequate insurance or financial resources, proving the breach of this duty may be the only way to see that a child that contracted lead poisoning is compensated for his or her injuries. In New York State, special duty cases against the City of New York are defended very strongly.

Establishing a special duty against a municipal defendant for the damages suffered by a child stricken with lead poisoning is a difficult task, and far different than making out a case against a private landlord. In order to understand how to successfully prosecute a special duty case for lead poisoning, counsel must be familiar with the laws governing a claim against the owner of a premises for lead exposure.[83] In Valencia v. Lee, 123 F. Supp. 666 (E.D.N.Y. 2000) this seminal decision, discusses in detail how a plaintiff may prove the existence and breach of a special duty in a lead poisoning case.

The City is not normally liable for failing to properly fulfill its duties to the general public. The New York Court of Appeals has carved out an exception to this rule, however, where the City creates a “special relationship” with the plaintiff.[84] This “special relationship” can be established in one of three ways: (1) where the City “violated a duty commanded by a statute enacted for the special benefit of particular persons;” (2) where the City “voluntarily assumed a duty, the proper exercise of which was justifiably relied upon by persons benefited thereby;” or (3) where the City “assumed positive direction and control under circumstances in which a known, blatant and dangerous safety violation existed.”[85] As stated by Judge Cardozo, “the hand once set to a task may not always be withdrawn with impunity though liability would fail if it had never been applied at all.”[86] Thus, if a landlord is judgment proof or if the plaintiff cannot establish liability, a plaintiff can, in limited circumstances, bring a cause of action against the City.

The foregoing discussion has addressed the current defendants in litigation resulting from lead-based paint poisoning. However, the course of litigation seems to be changing. The realm of potential defendants is expanding to include businesses that come in contact with lead paint, including residential remodelers as well as parties involved in the sale and management of residential property.[87]

Real estate agents can be sued for the failure to identify environmental hazards and for failure to report them to the sellers and buyers of homes.[88] Some states have passed laws requiring owners of property to publicly disclose any environmental problems on the property.[89] The general counsel for the National Association of Realtors warns that if an agent knows about possible problems and does nothing about it, he or she could be liable under non-environmental statutes covering negligence, fraud, or misrepresentation.[90] In addition, private contractors can be held liable for negligently removing lead paint from a particular dwelling.

One of the problems is that there are few lead removal contractors trained to accomplish proper abatement in most of the country.[91] Moreover, there is a risk that painting and remodeling contractors will contribute to the problem of airborne lead particles while working in residences containing lead-based paint. Since many contractors lack the training to properly abate dwellings the likelihood of spreading lead dust throughout the property is extremely high and potentially deadly. However, the construction lobby is fighting fiercely to prevent liability on contactors. Their argument is that this is an inefficient and inequitable cost shift on contractors. In addition, liability should be shouldered by the lead paint industry which caused the problem and the property owners who will benefit from the rental and sale of their property.[92]

Extending the orbit of liability to parties outside of the traditional defendants is a move in the right direction. Children should not be placed in a situation where they are without a remedy or extremely limited in the parties they can bring a cause of action against. All of these defendants, discussed above, play an important part in the housing market and receive economic benefits from this market; therefore, ensuring their judgment proof would adversely affect a victim’s ability to seek a proper remedy.

DAMAGES IN LEAD PAINT LITIGATION

The determination that a defendant is liable, which is often considered the final chapter of the litigation, is merely the beginning of the story for lead paint plaintiffs. Upon issuing a finding of liability, the court must quantify and redress the damages caused by the defendant’s conduct.

A successful plaintiff is entitled to all the typical types of tort damages, including medical costs, pain and suffering, interruption of ordinary daily life, and loss of future earning capacity.[93] In addition, tort attorneys can suggest non-traditional damages, such as recovery for future medical testing to detect diseases related to the exposure, costs for special schooling, and other emotional damages.[94] Furthermore, courts often allow punitive damages.[95] The goal of these damages is to put the plaintiff “in the same . . . position [economic or non-economic] as he or she would have occupied had he or she not been injured.”[96]

Tort plaintiffs frequently focus on loss of earning capacity as the heart of their request for damages.[97] Moreover, in lead paint cases loss of earning potential is the “big ticket item of damages, which can make the difference between a modest and sizable award.”[98] In general, damages for loss of earning potential represent the difference between the plaintiff’s potential to earn before and after the accident, which, in a simple case, is equal to the actual earned wages before the accident plus a calculation that takes into account the possibility of upward mobility.[99] As with all calculations of future damages, loss of earning potential must be reduced to net present value to establish a level of compensation which recognizes “that an individual could invest a present amount today in an interest-earning asset and use the interest generated together with a gradual withdrawal to the principal to compensate fully for the damages sustained as a result of the loss of future earning capacity.”[100]

Predicting future damages is, by its very nature, speculative.[101] Particularly in the case of lost earning capacity, the fact-finder may exercise broad discretion in calculating the exact figure.[102] The most successful plaintiffs, however, rely on economists and rehabilitation experts who assess productivity, average earnings for the pre-accident vocation, growth trends in wages, work-life expectancy, and wages lost before the return to the labor market.[103]

Lead paint plaintiffs are ordinarily young children from poor, minority families. Determining loss of earning capacity for these plaintiffs is especially speculative, since child-plaintiffs lack an established record of earnings, well-developed skills, and expressed career goals.[104] When confronted with a young lead paint plaintiff, experts often rely on a combination of objective and subjective data to predict loss of earning capacity.[105] Objective statistics predict work-life expectancy and average wages based, to a large extent, on the “child’s race.”[106] Subjective data focuses on the child’s intelligence and education, as well as the education and career paths of her parents and siblings.[107] The fact-finder’s final calculation commonly involves a combination of both objective and subjective factors.

In Valencia v. Lee, the Court discusses the application and theories on economic damages.[108] The plaintiff offered two theories on damages. The first is the theory that, as a result of the plaintiff’s learning disorders and behavioral problems, he will be relegated to a life of earning minimum wage, instead of, at the least, earning what the average high school graduate earns.[109] On this theory, plaintiff seeks economic damages in the form of lost future earnings. In the case, an economist testified as to the projected salaries of a high school graduate and a life-long minimum wage earner for what would be the plaintiff’s expected working life.[110] The economist then adjusted for time value of money, and subtracted the latter figure from the former, leaving him with a difference of approximately $387,000. This, plaintiff contends, is the measure of economic damages.[111]

The second measure of damages, plaintiff submits the costs of the remediation necessary to allow the plaintiff to catch up and keep up in school.[112] Plaintiff’s expert testified that such costs would include attending a private school with a high teacher to student ratio, counseling from a social worker or therapist to help his self-esteem, and tutoring to help him with his schoolwork.[113] Over the next ten years, the total award is approximately $385,000.[114] The court adopted this measure of economic damages, because the future economic lost was too speculative.

MITIGATING DAMAGES

For lead paint plaintiffs, reliance on objective and subjective data is harmful. Lead paint plaintiffs are almost always young children who lack past earnings, vocational experience, well-developed skills, and expressed career aspirations.[115] Consequently, experts predicting loss of earning capacity for lead paint plaintiffs adhere closely to the statistics and personal data.[116] But these plaintiffs also tend to be members of minorities and the objective and subjective data that is so crucial for plaintiffs discriminates against minority plaintiffs.[117] Lead paint plaintiffs are seriously disadvantaged by this damage award system.

In addition, the defense will try to mitigate damages by showing a low IQ in relation to the child’s family members. The defendants will order the production of relatives’ medical, school, or employment records, or ordering non-parties to submit to mental or physical tests in order to dispute causation or to limit damages.[118] Defendants essentially argue that the plaintiff has learning problems, not because of lead exposure, but due to either her genetic or environmental heritage.[119] Similarly, defendants may seek work records of a child’s parents, based on the argument that if the parents did not maintain a steady job, it is because they had attention problems, low IQ, or both.[120] For parents who have not been successful in the employment market, for whatever reasons, discovery of this nature could be extremely painful. Furthermore, the courts should be extremely dubious of arguments that litigants need tests or personal records of persons other than the party claiming injury.

There is no magic formula to calculate a child’s worth. Tort law requires a mathematical figure in order to compensate the victim. Consequently, courts should begin with the assumption that every child has the potential to surpass the conservative predictions of an economic or a rehabilitation expert. Moreover, courts must expand the focus of damage awards for lead paint plaintiffs beyond race and socio-economic status. Adopting race-neutral statistics into damage awards are steps towards a less discriminatory theory of compensation and a more optimistic and accurate determination of a child’s potential.[121]

CURRENT TREND OF LAWSUITS AGAINST LEAD PAINT MFR.

Products liability lawsuits against the lead industry have failed for a variety of reasons, the most common of which is the plaintiffs’ inability to identify the defendants who supplied the lead products that caused the alleged injuries.[122] The chances of holding the lead industry accountable for the harm caused by lead paint seem bleak. Without market share liability to use as a weapon, a plaintiff will be unable to identity the manufacturer who caused his injury, an essential element of any tort claim.[123] Thus, the plaintiff’s inability to establish the element of proximate cause will seriously impede claims against the lead industry. Market share liability attempts to hold a group of manufacturers responsible for harm caused by their products even though the plaintiff cannot identity the individual manufacturer who supplied the product that caused the harm.[124] Also, proving that lead paint is defective and unreasonably dangerous will be a difficult task because there are many intervening factors that can contribute to lead poisoning.[125] These factors include the negligence of landlords in maintaining their property and the negligence of home improvement contractors in creating dust when working with lead paint.[126]

Based upon the bleak ability to bring a products liability claim against lead paint manufacturers, the best chance for relief of a lead paint related injury is in a negligence lawsuit against a landlord. Meeting the burden of proof on this claim should be a much easier road to travel.

AN IDEAL SCHEME

The current federal legislation is not entirely ineffective, but it needs to be revised in order to address some crucial issues surrounding lead-based paint hazards. Also, litigation is not the best solution to the lead paint problem facing our Nation. Adopting ideas from both fields can lead to deterrence and preventative measures. The necessary preventative first step is the inspection of homes for lead-based paint hazards. These inspections must be conducted in areas of high priority.[127] Consequently, the geographic areas likely to receive the most attention will be neighborhoods with a large population of low-income families,[128] and, therefore, the segment of society at the greatest risk for lead poisoning will be targeted.

Furthermore, people need to be educated about lead-based paint hazards. Educational programs should include teaching people how to inspect for peeling and chipping paint and who to notify when a hazardous condition has been discovered. Perhaps most importantly, people should know the health consequences of exposure to lead based paint. If families are educated, they can take control of their children’s health by protecting their children from the severe effects of lead poisoning.

Federal and State governments should provide greater tax incentives to homeowners to fix lead-based paint hazards.[129] Currently, homeowners can add the cost of such repairs to the basis of their home, but they may not deduct the cost involved.[130] A tax deduction would be beneficial because it would provide homeowners with financial relief during the year or years that the work was done instead forcing the landlord to wait for relief until he sold his home.[131] However, the largest obstacle to implementing such a program is cost. Thus, in order to finance programs similar to the ones I describe fundraising would need to come from the private sector to help cover some of these costs and Lead-based paint manufacturers also could provide a source of program funding.

CONCLUSION

Lead paint litigation is a complex issue; the solutions are neither obvious nor easy. Moreover, all of the key issues including the appropriate control standards, liability, and insurance, are interrelated, thus necessitating a comprehensive solution. In the future, advocates should adopt a broader educational strategy to mobilize public attention to the problem. However, while society waits to develop a successful approach, each year childhood lead poisoning irrevocably harms tens of thousands of children. Its persistence is particularly tragic given that it is largely preventable and that its predominant source is so clearly identifiable.

In addition, without tort attorneys bringing these claims there would seem to be a reduction in the amount of attention that this problem would receive. Attorneys must actively and diligently provide their services to victims of lead poisoning. With lead-based paint in over 30 million homes throughout the United States this serious health dilemma is not leaving our society. In addition, landlords are meticulously defending negligence claims, because of the potential damages that the courts may award. Although in reality damage awards are not enormous, rather they do not adequately compensate victims of lead poisoning. Attorneys do and will play an integral part in providing adequate money damages to children poisoned by lead, but more importantly must seek ways to change the status quo in how the courts determine damages based upon racial and genetic factors. A child injury by a landlord’s negligence should not be additionally injured by the court system; instead the courts should provide the best remedy to there injury.

---

[1] Cappell, R. S. “Lead Paint Poisoning and the Resource Conservation and Recovery Act: A New Partnership for the Twenty-First Century.” 35 Colum. J.L. & Soc. Probs. 175 (2002).

[2] Id.

[3] Clifford, L. R. “The lead poisoning challenge: An approach for California and other states.” 21 Harv. Envtl. L. Rev. 387, 390 (1997).

[4] Id. (In addition, 1975 passenger cars and light trucks were manufactured with a more elaborate emission control system which included a catalytic converter that required lead-free fuel. Finally in 1996 Congress passed the Clean Air Act that banned lead entirely in gasoline).

[5] Id.

[6] Daghlian, K. K. “Lead-Based Paint: The Crisis Still Facing Our Nation’s Poor and Minority Children.” 9 Dick. J. Envtl. L. & Pol’y. 535, 537 (2001).

[7] Id.

[8] Id.

[9] Id. at 538

[10] Id.

[11] Wriggins, J. “Genetics, IQ, Determinism, and Torts: The example of discovery in lead exposure litigation.” 77 B.U. L. Rev. 1025, 1067 (1997).

[12] Adams, A. & Victor, M. “Principles of Neurology.” 5th Edition, McGraw-Hill, NY, 1993.

[13] Id.

[14] Id.

[15] Lidsky, T., Gashi, E. & Schneider J. “ The Neuropsychology of Childhood Lead Poisoning.” New York State Trial Lawyers Association, April 26, 2002.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Knight, C. “Neuropsychologists and Lead Paint Litigation.” New York State Trial Lawyers Association, April 26, 2002.

[21] Id.

[22] Id.

[23] Lidsky, supra, n. 27

[24] Adams, supra, n. 24

[25] Id.

[26] Id.

[27] Environmental Protection Agency. “Lead and Lead Poisoning.” http://www.epa.gov/r02earth/health/leadpoisoning (Hereinafter EPA)

[28] Id.

[29] Id.

[30] United States Department of Human Services, Public Health Service, Agency for Toxic Substance and Disease Registry, “Case Studies in Environmental Medicine: Lead Toxicity.” http://wonder.cdc.gov/wonder.prevguid/p0000017/entire.htm

[31] Greenberg, L. “Compensating the Lead Poisoned Child: Proposals for Mitigating Discriminatory Damages Awards.” 28 B.C. Envtl. Aff. L. Rev. 429, 432 (2001).

[32] Id.

[33] Mahoney, M. “Four million children at Risk: Lead paint poisoning victims and the law.” 9 Stan. Envtl. L. J. 46, 51 (1990).

[34] Id.

[35] Id.

[36] Rechtschaffen, L. C. “The Lead Poisoning Challenge: An approach for California and other states.” 21 Harv. Envtl. L. Rev. 387, 393 (1997)

[37] Id.

[38] Id.

[39] Id.

[40] Jackson, B. A. “Proving and Defending Lead-Based Paint Poisoning Cases.” 541 Practising Law Institute 63, 71 (1996).

[41] Id.

[42] Id.

[43] Id.

[44] Id.

[45] Cappell, supra n. 1 at 181

[46] Id.

[47] Id.

[48] Placitella, C., & Sugarman B. “Issues in lead poisoning litigation.” in Lead-Based Paint Hazards 221 (Vincent M. Coluccio ed., 1994).

[49] Id.

[50] Cappell, supra n. 1 at 182

[51] Id.

[52] Id.

[53] Id. at 183

[54] Id.

[55] Romano, J. “Lead Paint: A Ruling for Tenants” N.Y. Times, December 9, 2001, at 5

[56] Id.

[57] Chapman v. Silber, 97 N.Y.2d 9, 21 (N.Y. 2001)

[58] Id. at 22

[59] Id.

[60] Id. at 21

[61] Romano, supra n. 57, at 8

[62] Office of Lead-Based Paint Abatement and Poisoning Prevention, U.S. Dep’t of Housing and Urban Dev., Guidelines for the evaluation and control of Lead-Based paint hazards in housing. (1995).

[63] Rechtschaffen, supra, n. 19, at 397

[64] Id.

[65] 42 U.S.C. §§ 4821-4822.

[66] Schukoske, J. “The Evolving paradigm of Laws on Lead-Based Paint: From Code Violation to Environmental Hazard.” 45 S.C. L. Rev. 510, 513 (1994)

[67] Id.

[68] 42 U.S.C. § 4851 (1994)

[69] Schukoske, supra, n. 75, at 514

[70] Rechtschaffen, supra, n. 19, at 398

[71] See Office of Lead-Based Paint Abatement and Poisoning Prevention, U.S. Dep’t of Housing and Urban Dev., Moving Toward a Lead-Safe American; A Report to the Congress of the United States. (1999).

[72] Id.

[73] 42 U.S.C. § 4851 (1994).

[74] Id.

[75] Id. at 400

[76] Id.

[77] Id. at 401

[78] Coyne, S. “Lead Paint Abatement: Who Should Pay?” 2 Wis. Envtl. L. J. 113, 122 (1995).

[79] Id.

[80] Id. at 123

[81] Id. at 122

[82] Id.

[83] Sonin, S., & Genis, R. “Proving liability in lead poisoning cases.” New York Law Journal, January 4, 2002, P.1 Col. 1.

[84] Kenavan v. City of New York, 70 N.Y.2d 558, 568 (1987)

[85] Garrett v. Holiday Inns, Inc., 447 N.E.2d 717 (1983)

[86] H.R. Moch Co. v. Rensselaer Water Co., 159 N.E. 896 (1928)

[87] Coyne, supra, n. 56, at 136

[88] Id. at 137

[89] Id.

[90] Id.

[91] Id. at 139

[92] Id. at 144

[93] Miles, H. “Damages for Personal Injury” in Damages In Massachusetts Litigation, § 8, § 8-16 (1993).

[94] Pope, M. “Novel Damage Theories in Toxic Tort Litigation.” 497 PLI/LIT 167, 169 (1994).

[95] Greenberg, L. “Compensating the Lead Poisoned Child: Proposals for Mitigating Discriminatory Damage Awards.” 28 B.C. Envtl. Aff. L. Rev. 429, 435 (2001)

[96] Battista v. U.S., 889 F. Supp. 716, 724 (S.D.N.Y. 1995)

[97] Greenberg, supra, n. 85, at 437

[98] Chamallas, M. “The Architecture of Bias: Deep Structures in Tort Law,” 146 U. PA. L. Rev. 463, 480 (1998).

[99] Greenberg, supra, n. 85, at 437

[100] Deutsch & Frederick “Damages in Tort Actions” §§ 108-110 (1982)

[101] Greenberg, supra, n. 85 at 438

[102] Id.

[103] Id.

[104] Athridge v. Iglesias, 950, F. Supp. 1187, 1192-93 (D.D.C. 1996)

[105] Greenberg, supra, n. 85 at 440

[106] Id. at 441 (emphasis added)

[107] Id.

[108] 123 F. Supp. 2d 666, 693 (E.D.N.Y. 2000)

[109] Id.

[110] Id.

[111] Id.

[112] Id.

[113] Id.

[114] Id.

[115] D’Ambra v. United States, 481 F.2d 14, 18 (1st Cir. 1973)

[116] Bulala v. Boyd, 389 S.E.2d 670, 677-78 (Va. 1990).

[117] Greenberg, supra, n. 85, at 447

[118] Wriggins, supra, n. 33, at 1058

[119] Id. at 1062

[120] Id.

[121] Greenberg, supra, n. 85, at 458

[122] Hurt v. Philadelphia Hous. Auth., 806 F. Supp. 515 (E.D. Pa. 1992)

[123] Gagliardi, M. “Stirring up the Debate in Rhode Island: Should Lead Paint Manufacturers be Held Liable for the Harm Caused by Lead Paint?” 7 Roger Williams U. L. Rev. 341, 381 (2002)

[124] Gorman v. Abbot Labs., 599 A.2d 1364 (R.I. 1991) (rejecting market share liability)

[125] Gagliardi, supra, n. 113, at 381

[126] Id.

[127] See Mass. Gen. Laws Ann. 111 § 194 (West 2000).

[128] Id. (To determine which geographic areas are most in need one should look at the occurrence lead poisoning in a particular area).

[129] See Rechtschaffen, supra note 35, at 363.

[130] Id.

[131] Id.