Getting the lead out: landlord liability in lead-paint poisoning cases.

It is estimated that childhood lead-paint poisoning costs society billions of dollars annually.(1) Those who believe society is doing all it feasibly can to prevent the problem falsely assume that

1. it can be economically justifiable to lead poison a child--that is, at some point the cost of cleanup exceeds the landlord's willingness to forego part of the profits;

2. city, state, or federal agencies can be forced by a lawsuit to address the problem of lead in housing; and

3. although landlords would rather go out of business than obey a law that cuts too deeply into profits, they will voluntarily do all that is necessary.

Landlords, as owners of housing containing lead paint, are in a prime position to prevent lead poisoning. Unfortunately, many know their housing contains lead paint but fail to remove it. As a result, suits against landlords are fairly common. Claims may include failure to remove lead paint; violation of lead-poisoning statutes, state or local sanitary codes, and any applicable consumer protection laws; and breach of the warranty of habitability and the covenant of quiet enjoyment. This article will provide strategies for handling these cases.

To establish liability, a plaintiff must first show that the landlord knew or should have known there was lead paint in the housing that posed a lead-poisoning hazard. Counsel can show knowledge by deposing property managers; identifying trade publications and conferences of which the landlord or employees were aware; and citing relevant federal, state, or local statutes and regulations. Landlords should be aware that any housing built before 1978 probably contained lead paint.

Knowledge can also be shown indirectly by documenting all the institutional conferences and publications addressing the dangers of lead paint about which the landlord knew or should have known. Examples include events sponsored and materials produced by landlord and residential property trade associations such as the Institute of Real Estate Management and the National Association of Real Estate Investment Trusts. In addition, evidence of the widespread knowledge of these hazards can be found in newspapers, magazines, federal and scientific reports;(2) the Hazardous Substances Data Base;(3) and the ATLA Lead Paint Litigation Group's index.

Second, the plaintiff must show that lead paint was present in the child's home. In most jurisdictions, by the time counsel gets the case, the state or local board of health has already inspected the home to determine whether there are dangerous levels of lead in paint, plaster, or other accessible materials. Counsel should obtain that report. Depending on the jurisdiction, the report may constitute prima facie evidence of the presence of lead. A landlord's failure to appeal these findings may make them conclusive in some jurisdictions.

An increasing number of local housing authorities are conducting lead-paint inspections. In some cities, like the District of Columbia, inspections must be preceded by a complaint. Other cities routinely inspect all housing even if no complaints are filed. Counsel can obtain these reports from the housing authority.

It is often advisable, and relatively inexpensive, to hire a private inspector or industrial hygienist who can collect samples of dust and paint chips from the building, particularly in the window wells. The soil around the building should also be examined. Lead-based paint from the building penetrates the soil over time and can cause or contribute to poisoning. An X-ray fluorescence test can also be conducted. This test involves a portable X-ray machine that can detect the presence of lead below the surface.

Third, the plaintiff must prove the child was exposed to lead paint. A simple blood test is the only positive proof of exposure. According to the Centers for Disease Control and Prevention (CDC), levels of 10 micrograms of lead per deciliter of blood are hazardous; levels of 20 micrograms per deciliter require medical intervention.(4) Because lead does not remain in the bloodstream for long, a child who is possibly at risk should be tested often.

Another way to establish exposure is through expert testimony relying on uptake models developed by the Environmental Protection Agency (EPA).(5) These models establish a range of lead amounts possibly absorbed by the child on the basis of the lead levels in the child's environment, including the child's home. In a recent case, the trial court admitted expert testimony relying on these models to prove exposure.(6)

Generally, defendants will try to prove the child was exposed to other sources--nearby highways whose traffic emissions may have produced lead fallout in the soil, or even a buildup of lead in the home from airborne sources other than the home itself. However, under principles of joint and several liability, a plaintiff need only show that ingestion of lead paint in a house is a substantial contributing cause, not the sole cause, of the injury.

Damages

Lead poisoning may cause injuries as severe as brain damage, mental retardation, and even death. Fortunately, the most serious injuries are relatively rare today. More common injuries affect behavior (for example, attention deficit disorder, hyperactivity, problems with fine motor skills); result in diminished IQ, or adversely affect language or other cognitive skills.

Often the defense will argue that mental or neurologic deficits cannot be shown in young children because they are too young for objective testing. However, special tests by neuropsychologists--experts in the relationship between brain structure and function--can demonstrate lead-related deficits even in young children. A neuropsychologist can give a series of behavioral and psychological tests to evaluate the effects of brain dysfunction or damage on a child's performance. This expert can testify about the services that the child will need to reach the full (though diminished) educational and vocational potential that remains and can offer an opinion on how the child's problems will manifest themselves later.

Counsel should be aware that diminished IQ is difficult to prove in children under age six. However, the government has developed IQ deficit models that translate lead levels in the blood to IQ deficit.(7) With them the CDC has developed economic analyses that translate IQ loss into lost wages.(8) Experts should use these models to support their opinions regarding the impact of lead poisoning on the child.

Counsel must avoid concluding the case before all the damages are manifest, yet not postpone recovery for a young child who needs money to address present deficits. Where a child under six is involved, the attorney should convince the court to bifurcate the damages portion of the case into two trials--an early one to get immediate compensation to cover speech and physical therapy and special preschooling, and one after the child is six, when the IQ deficits, more severe neurologic effects, and poor school performance are measurable.

Attacks on Experts

As the evidence of the hazards of lead has mounted dramatically, landlords and the lead industry have shifted from defending lead to attacking the plaintiffs' experts. For example, Dr. Herbert Needleman, one of the first researchers to do a large epidemiological study of the effects of lead-paint poisoning on children, has been the subject of an attack launched by two industry consultants.(9) The attack is based primarily on quibbles over the use and interpretation of data. The consultants are now surfacing as witnesses in cases to attack Needleman.(10) They have been trying to discredit him for more than a decade, and they will surface again.

Even if plaintiff's counsel does not use Needleman in a case, it will be difficult to avoid having the expert rely, directly or indirectly, on Needleman's work. Should an attack against Needleman or his work surface, the scientific literature provides ample evidence to establish, among other things, that

* Needleman has done nothing wrong;

* even if all his alleged "errors" were corrected, it would not change the results of his work;

* other studies that have not been attacked have replicated his results; and

* government agencies have consistently used his work as the basis for lead-paint and lead-level regulations across the board, whether they address air pollution, lead-paint poisoning, or other issues.(11)

Landlords, particularly those operating substandard low- and moderate-in-come housing, may claim they cannot pay the judgment. Counsel should not believe it. Careful research may disclose that the landlord transferred assets to other parties--cousins, siblings, nephews, and so on. To prevent this, counsel can attach property at the beginning of the suit. Counsel can also bring a fraudulent conveyance claim.

If the landlord does not have the resources, the attorney may look to the landlord's insurer. The insurer may claim no coverage exists because lead-paint poisoning falls under the pollution exclusion clause, which denies coverage for damage caused by environmental pollution. However, careful review will often show that the clause does not apply to products installed on the walls, doorways, or windows of a landlord's house.

In many states, a settlement can be reached with the landlord, with notice to the insurer and approval by the court, and the plaintiff can stand in the landlord's shoes and sue the insurer. If the settlement is approved, the suit will only address the issues of coverage and reasonableness of the settlement.(12)

Tort litigation is useful in reforming landlord conduct, but one more weapon is needed. Most environmental statutes contain a citizen enforcement provision allowing citizens to sue if the government, for whatever reason, does not. Every lead-paint regulation law in the country should contain such a provision. Consequently, if states and the federal government decide that they do not have the resources to go after a landlord, citizens can be deputized to do it themselves. These provisions are effective ways of enforcing environmental law and of preventing environmental damage before it occurs.

Lead poisoning is one of the leading results of environmental racism--the disproportionate share of pollution that falls on the poorest people in our society. By destroying the minds of the children of the poorest Americans, it perpetuates their poverty and denies them the opportunity to improve their lot. Trial lawyers can become a vital part of the battle against environmental racism by reaching out to groups like the National Association for the Advancement of Colored People and local offices of the Legal Services Corp. Both often look for competent litigators to represent the victims of lead-paint poisoning. You can join the fight today.

Notes

(1)CENTERS FOR DISEASE CONTROL (CDC), U.S. DEP'T OF HEALTH & HUMAN SERVS., STRATEGIC PLAN FOR THE ELIMINATION OF CHILDHOOD LEAD POISONING, app. II at 1 (1991).

(2)COMMITTEE ON MEASURING LEAD IN CRITICAL POPULATIONS, NAT'L RESEARCH COUNCIL, MEASURING LEAD EXPOSURE IN INFANTS, CHILDREN AND OTHER SENSITIVE POPULATIONS 93 (1993) [hereafter NRC Report] ("In children, blood lead concentrations around 10 ug/dl are associated with disturbances in early physical and mental growth and in later intellectual functioning and academic achievement."); AMERICAN ACADEMY OF PEDIATRICS, LEAD POISONING FROM SCREENING TO PREVENTION 176 (1993) ("There is a general consensus of opinion about the relationship between lead and cognitive function."); CENTERS FOR DISEASE CONTROL, U.S. DEP'T OF HEALTH & HUMAN SERVS., PREVENTING LEAD POISONING IN YOUNG CHILDREN 7 (1991) ("Lead is a poison that affects virtually every system in the body. It is particularly harmful to the developing brain and nervous system of fetuses and young children.").

(3)A valuable research tool for linking toxic substances to particular illnesses is the group of computer databases maintained by the National Library of Medicine (NLM), part of the National Institutes of Health. These databases are generally accessible through TOXNET and MEDLINE. To help in searching these databases, NLM sells GRATEFUL MED, a useful software program. For more information, write to the National Library of Medicine, Bldg. 38A, 8600 Rockville Pike, Bethesda, MD 20894, or call [phone].

(4)See CENTERS FOR DISEASE CONTROL, supra note 2, at 5-6 (table 1).

(5)U.S. ENVIRONMENTAL PROTECTION AGENCY, GUIDANCE MANUAL FOR THE INTEGRATED EXPOSURE UPTAKE BIOKINETIC MODEL FOR LEAD IN CHILDREN iii (1994).

(6)Wagner v. Anzon, Inc., No. 87-3502 (Pa., Philadelphia County Ct. Common Pleas, Sept. 1994) (order admitting expert testimony was issued from the bench).

(7)See COMMITTEE ON MEASURING LEAD IN CRITICAL POPULATIONS, supra note 2, at 59 (1993) (calculating a drop of 2-4 IQ points for each increase of 10-15 ug/dl of lead in the blood above 10); see, e.g., Wagner, No. 87-3502.

(8)CENTERS FOR DISEASE CONTROL, supra note 1, at app.

(9)Claire Ernhart, Ph.D., and Henrietta Sachs, M.D., have frequently appeared as hired experts for lead defendants, spokespersons for the lead industry, or researchers for institutes funded by the lead industry.

(10)See, e.g., Wagner, No. 87-3502.

(11)For example, the criticisms by Dr. Ernhart in 1981 were considered and rejected by the EPA in 1986, IV U.S. ENVIRONMENTAL PROTECTION AGENCY, AIR QUALITY CRITERIA FOR LEAD 12-87 (1986), and by the National Research Council in 1993, COMMITTEE ON MEASURING LEAD IN CRITICAL POPULATIONS, supra note 2, at 64. But Dr. Ernhart continues the attack. On Mar. 16, 1994, she wrote to the CDC seeking to have Dr. Needleman removed from its Advisory Committee on Childhood Lead Poisoning Prevention. Dr. Henry Falk, Director, Division of Environmental Hazards and Health Effects, National Center for Environmental Health at the CDC flatly rejects this latest assault on Dr. Needleman. He concludes, "Dr. Needleman remains a valuable member of our advisory committee and continues to make valuable contributions to the effort to eliminate childhood lead poisoning."

(12)See, e.g., Damron v. Sledge, 460 P.2d 997 (Ariz. 1969).