General Practice, Solo & Small Firm DivisionMagazine

American Bar Association
General Practice, Solo, and Small Firm Division
The Compleat Lawyer
Spring 1997
copyright American Bar Association. All rights reserved.

Lead Paint Claims
Chipping Away at the Issues

BY STANLEY J. COHN

Stanley J. Cohn is a partner with Lugenbuhl, Burke, Wheaton, Peck, Rankin & Hubbard in New Orleans. He is chair of the General Practice, Solo and Small Firm Section's Tort and Insurance Committee and is a member of the editorial board of The Compleat Lawyer.

Lead paint lawsuits by tenants against landlords have increased during the past few years as the public has become more aware of the dangers created by lead paint.

Lawyers who represent injured children or residential landlords should investigate the facts to determine the identity of potentially liable defendants, the cause or causes of the injury, the potential defenses to the claim, which experts to utilize, and the different types of damages available in the case.

How Much in Damages Can Be Expected?
Damages recoverable in lead paint suits are similar to those recoverable in other types of personal injury litigations: loss of earning capacity, medical expenses, and pain and suffering. Parents may have a claim for loss of consortium in some jurisdictions. Also, some jurisdictions allow for the recovery of punitive damages if the facts of the case establish the elements for the award.

The largest dollar claim for damages generally falls under the category of vocational limitations. In most cases, plaintiffs allege that the exposed child will be restricted in vocational options as an adult due to irreversible injuries caused by the exposure to lead that permanently disable the affected child. As a result, the child's earning capacity as an adult will be diminished. In an attempt to mitigate loss of earning capacity damages, defendants may present evidence that the parents possess modest or below-average intelligence, together with expert testimony that children usually exhibit a level of intelligence that mirrors their parents. The assessment by the defendant on vocational damages may focus on the child's home environment and the parents' child-rearing practices. These factors may strongly affect a child's cognitive behavior and development. Defense counsel may argue that it is better to assess a child's future earning capacity on familial elements rather than on lead exposure.

After a child is diagnosed with high levels of lead, the child may undergo a number of treatments and incur substantial medical bills. The usual treatment is some form of chelation, which may require hospitalization. The treatments could cover an extended period of time; therefore, damages for medical expenses will cover both past medical bills as well as anticipated future medical bills.

In most cases, a child does not experience pain from lead exposure unless the blood-lead levels exceed 80 g/dL. As a result, pain and suffering is difficult to establish. Plaintiffs sometime argue that the treatment is painful. If the child receives injections, rather than oral medication, the child may sustain some pain. The child may also suffer from fear of the treatment.

The parents' claim for loss of consortium is separate from the child's damages. Only a minority of jurisdictions allow recovery for loss of consortium to a parent. Those jurisdictions recognizing filial loss of consortium do so to protect the integrity of the family unit. The award is almost always limited to parents of a minor child or an adult dependant child.

Punitive damages are awarded to punish the tortfeasor and hopefully prevent future misconduct. The defendant's conduct must be wanton, recalcitrant, or outrageous. The key issue often hinges upon whether or not the landlord knew or should have known the residence contained lead-based paint. Defenses against punitive damage claims may be grounded on the landlord's good faith efforts to remove lead, the landlord's testing of the residence, or the landlord's lack of knowledge that young children would live in the dwelling. Causes of Action
Going after landlords. A suit by a tenant against his or her landlord is the most common type of lead-based paint claim. These claims are brought against not only private landlords but also owners of public housing. The landlord claims are generally based upon allegations of negligence, breach of the implied warranty of habitability, fraud, and statutory violations.

The negligence action is based upon establishing a duty, breach of duty, causation, and injury. Duty is usually the most difficult element to establish. Under Section 358 of the Restatement (Second) of Torts, a landlord's duty arises when he or she has knowledge or has reason to know of the condition and realizes or should realize the seriousness of the risk. The landlord has no duty if the tenant knew or had reason to know of the condition and of the risk involved.

The doctrine of implied warranty of habitability requires that premises be free from all latent defects at the beginning of the tenancy, and remain in a reasonably fit condition throughout the term of the lease. The tenant must prove that (1) the defective condition was serious enough to prevent the tenant from using the premises, (2) the tenant gave notice to the landlord, and (3) the landlord had a reasonable opportunity but failed to remedy the condition.

Fraud is established when the tenant proves (1) the landlord made a false misstatement of material fact, (2) with knowledge of the falsity, (3) intending to induce the tenant to act, (4) resulting in action by the tenant in reliance on the truth of the statements, and (5) causing damage to the tenant from that reliance.

A tenant may also assert a cause of action based upon statutory grounds. Tenants may have a cause of action under state or federal legislation.

In connection with public housing, the Lead-Based Paint Poisoning Prevention Act of 1971 (LPPPA) (42 U.S.C. ¤¤ 4801-4846) created a private cause of action for tenants to sue public housing authorities to force compliance with the act's restrictions. In 1992, Congress enacted the Residential Lead-Based Paint Hazard Reduction Act (RLPHRA) (42 U.S.C. ¤¤ 4851-4856). The act provides a civil cause of action against a seller or lessor who violates the provisions of the act. Paint manufacturers. Paint and pigment manufacturers are also targets in many lead paint cases. The plaintiff generally bases its claim against the manufacturers on traditional theories of liability, such as negligence, strict product liability, the implied warranty of merchantability, and fraud.

Problems often arise when a tenant attempts to identify the injury-causing product and its manufacturer. Due to the number of years that may lapse between application of the paint and development of lead poisoning symptoms, plaintiffs are often unable to single out a specific paint or pigment manufacturer. Despite this inability, some plaintiffs have attempted to hold a number of manufacturers liable by pursuing different theories, such as market share of liability, concert of action, enterprise liability, conspiracy, and alternative liability.

Evidentiary Issues
Absorption of lead can cause a variety of problems ranging from neurotoxic effects such as hyperactivity and diminished intelligence to severe effects such as cerebral edema and coma. The human body absorbs lead primarily through the gastrointestinal tract or the lungs. While adults normally inhale lead dust particles, children commonly are exposed to lead poisoning by oral ingestion. Once lead enters the body, it is generally stored in bone, soft tissue, and the blood. The amount of lead in the body is measured by blood-lead levels (micrograms of lead per deciliter of blood, g/dL PbB), or by the concentration of lead in bone or teeth.

Excessive amounts of lead in the body can damage a child's essential body functions. A child who has blood-lead levels of 40 g/dL may suffer from impaired hemoglobin synthesis, while a child with a reading of 70 g/dL may have anemia. Blood levels in excess of 80 g/dL could cause chronic lead nephropathy, a degenerative process of the renal tissue and renal function. The most serious effects of acute lead poisoning are on the central nervous system. Convulsions, coma, and coronary failure could occur. Problems to the peripheral nervous system could cause impaired motor function, muscle weakness, and lack of coordination. Decreased fertility is also caused by increased lead levels in the body.

Asymptomatic children with elevated lead levels may exhibit adverse effects involving intelligence, educational achievement, motor skills, attention, and behavior. The effects of lead are not always easy to detect and could be related to other factors including the child's age, sex, genetic factors, parental care, and social factors.

Most experts will tell you the adverse effects of increased levels of lead are reversible in whole or in part through early intervention.

Defending Your Client Against a Claim
A number of defenses are available that utilize both medical causation and non-medical causation theories. From a medical causation standpoint, defenses include: (1) the injury has not been established, or the injury is so minor that it has caused no impairment; (2) scientific evidence has not conclusively established that lead causes the injury exhibited by the child; and (3) there are other known causes of the injuries sustained by the child.

Non-medical causation defenses include: (1) the plaintiff failed to establish the alleged injury was caused by exposure to a lead-containing product manufactured by the defendant (product liability case); and, (2) the plaintiff failed to prove the source of the lead exposure was within the defendant's control.

Other areas to examine in defense of a lead-poisoning case include the intelligence of the child's parents, the health of the child's parents, child-raising techniques, the child's physical and mental heath, and the socioeconomic status of the child's family.

When lead paint is found on the defendant's property, defense counsel may argue that the lead levels found on the property are so low that it is insufficient to create a health hazard. The defendant may also prove the plaintiff's testing of the property was flawed to the extent that accurate readings were not possible. The defense may establish that the child was exposed to lead from other environmental sources not in control of the defendant, such as lead in the soil, house dust, food and water, certain ceramics and pottery, and other products.

There are other defense strategies available, including impleader of other persons who bear responsibility for the child's ingestion of lead. These "other persons" could be other property owners, lead removal contractors, enforcement agencies, parents who negligently supervise their children, and lead paint or pigment manufacturers.

Experts for the plaintiff and defendant play crucial roles in lead paint litigation. Each of the elements of the plaintiff's case - the child's elevated blood levels, a specific injury caused by the elevated blood level, and the source of the lead was the plaintiff's property or product - must be established through expert testimony.

The plaintiff usually will call a pediatrician and a psychologist or neuropsychologist to establish the injury and causation. The experts will give testimony on issues including the diagnosis, causal effects of lead poisoning on cognitive and behavioral deficits, sources of lead exposure, likelihood of future problems, probable education problems, diminished vocational opportunities, and perhaps the lack of parental responsibility for the child's condition. Other possible plaintiff's experts include a toxicologist, psychiatrist, speech pathologist, and vocational consultant.

The defendant will introduce expert testimony to challenge the plaintiff's epidemiological and medical evidence. The defense should stress the inconclusive nature of scientific literature on the effects of lead. A doctor is usually retained to assess the child's impairment, establish how the child can compensate for any deficits, refute any incorrect prognosis, offer an opinion establishing alternative sources of lead exposure, and finally refute the plaintiff's theory of causation.

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