Lead Poisoning in Baby’s Safe Place

Those of us who defend property owners in lead poisoning litigation always look for an alternate source of the infant plaintiff’s exposure.  Sometimes the child has spent summers in a country which does not prohibit lead-based paint in housing interiors and/or does not regulate leaded gasoline emissions as carefully as does our own federal government. Sometimes she ingests lead from toys, cosmetics or home remedies that are manufactured abroad. In a case we defended years ago, our client retrieved Chinese-made crayons from the plaintiff’s apartment; not only did the crayons have teeth marks but they also had very high levels of lead. Invariably, we examine all surfaces that young children can access with their mouths, cribs in particular.

On May 8, 2015, Baby’s Dream Furniture Inc., of Buena Vista, Ga., recalled approximately 4,600 full-size cribs, furniture pieces and accessories because their surfaces exceed federal lead limits. The recall involves products sold in a vintage grey paint finish under the Brie, Braxton, Heritage, Everything Nice and Legendary collections. The items were manufactured in Chile between March 2014 and March 2015 and in Chile.  A label affixed to the bottom of the crib’s back frame and the back panel of the furniture lists the product name, date and location of manufacture, model number and purchase order number (PO#).  The cribs sold in specialty furniture stores nationwide and online at BabysDream.com for $350 to $900 for the cribs, the dressers, hutches, nightstands, bookcases and chests for $450 to $1,000 and the accessories for $100 to $300.  Anyone who is interested in this subject, whether a consumer or legal professional involved in lead poisoning litigation, can go to www.cpsc.gov to obtain the model numbers.

De-lead or De-fend

In 2003, the New York City Council amended Local Law 1 of 1982 to make it “the responsibility of every (multiple dwelling) owner…to investigate for lead-based paint hazards, to address such hazards on a case-by-case basis as the conditions may warrant,” and to remove lead paint that is peeling or chipping (as opposed to intact.) Local Law 1 of 2004, as it is called, maintains the rebuttable presumption that peeling paint in pre-1960 multiple dwellings in which a child under age 7 resides is an “immediately hazardous lead condition” (which is defined to include “lead-contaminated dust”, “chewable” (protruding and readily accessible), “deteriorated”, “peeling,” “impact” and “friction” surfaces.) The statute and case law focus on 1960 because the City banned the use of lead-based paint on interior building surfaces in January of that year, and on peeling paint because surfaces that are intact or are not accessible to children are not considered hazardous regardless of their lead content.

The law requires that a landlord inspect for children residing in units at least once per year and more when in the exercise of reasonable care: a) he has actual or constructive knowledge of a condition reasonably foreseeable to cause a hazard; b) a tenant complains about an apartment condition or; c) the Department of Health issues an Order to Abate. If the tenant states that there are no children residing in the dwelling and the landlord does not otherwise have notice, the presumption does not apply in lead poisoning litigation. Local Law 1 of 2004 also obligates an owner of residential property erected between 1960 and 1978 in which a child(ren) of applicable age reside(s) to inspect for hazardous conditions (defined above), if he “has actual knowledge of the presence of lead-based paint.”  A landlord’s violation of either the 1982 or the 2004 law does not result in absolute liability for injuries caused by exposure to lead. In order to prove liability, a complainant must establish that the owner had actual or constructive knowledge of a hazardous condition for such a period of time that in the exercise of reasonable care, he should have remedied it, that the owner did not take reasonable steps to remedy that condition, and that the condition proximately caused the child’s injuries.

In the case of Martinez-Dela Rosa v. New Matthews Avenue LLC., et al, (Supreme Court, Bronx County; Index No.: 0350517/07; Judge Robert E. Torres), plaintiffs claimed that the infant resided in defendant’s multiple dwelling and that she sustained blood lead levels as high as 31 mg/dL when she was about 4 and 1/2 years old. The timing of the relevant events was such that Local Law 1 of 2004 applied. The Kardisch Law Group represented the landlord and sought summary judgment (dismissal before trial) on the grounds that the building was erected after 1960, that the rebuttable presumption did not apply, and that defendant did not otherwise have actual or constructive notice that there was a hazardous lead paint condition within the child’s apartment.

The infant’s mother (the adult plaintiff) testified that the landlord had painted the apartment at the tenancy’s inception (less than one year before the child displayed elevated blood lead levels), that the unit was in and remained in “good condition” until the date of diagnosis, that there was no peeling paint when the DOH inspected, that the owner rectified all complaints within two or three days, and that she had never seen the infant ingesting paint particles. The summary judgment submissions also showed that the building was “well-maintained,” that the landlord “actively managed,” painted each unit upon vacancy and every three years, and rectified paint-disturbing conditions within 48 hours of complaint. Neither the DOH nor the bank which held the mortgage found any hazardous conditions before the child tested positive. The owner first learned of a problem when he received the DOH’s October 16, 2006 Order to Abate (based on 258 samples, only three of which yielded slightly elevated lead readings), and he remediated the unit immediately.

The Court granted KLG’s motion and dismissed the case against the owner. In so doing, the Judge noted that plaintiffs could not invoke the lead presumption to establish notice because the subject premises were built after 1960. The Court also pointed out that since the landlord did not have “actual knowledge of the presence of lead-based paint,” he did not have a duty to inspect for peeling (i.e., the hazard). Under all applicable circumstances, Judge Torres held, the landlord acted reasonably and fulfilled his duties under the law.

Local Law 1 places a huge burden on the owners of multiple dwellings within the City of New York. But if the landlord or his attorney reviews the law carefully and in light of the salient facts, he/she may find grounds to get a lead poisoning lawsuit dismissed.

Litigation’s a Lead Pipe Cinch.

In 2012, the Center for Disease Control changed its standard of concern over blood lead levels in children. It did so in order to identify more young people as having exposure and to allow parents, doctors, public health officials and communities to take action earlier to reduce future exposure. The effect, of course, was also to increase personal injury litigation alleging lead poisoning.

Lead is a naturally occurring element that serves no biological purpose. Since the human body treats the metal in much the same way it does calcium: 1) an elevated lead level can deplete iron and cause an anemic condition, and; 2) the anemic condition can make the body more susceptible to lead absorption. The element can be stored in human bone and tissue, and a high enough level can cause “lines” to appear in x-rays of the gums and long bone of the leg. Diets high in fat enhance lead uptake and storage, and doctors recommend foods rich in calcium, iron and vitamin C for children who have been diagnosed with or who are at risk for poisoning. Medical professionals also give iron as a supplement to treat moderately elevated blood lead levels.  While some evidence suggests that the element crosses the fetal barrier and causes damage in utero, lead’s potential effect on the brain and central and peripheral nervous systems is most prominent during the development that occurs from birth to age three. Girls are generally more susceptible to the effects than are boys: as they grow and require more calcium, the body releases equal parts of lead into the blood stream.

Blood levels are measured in micrograms (ug) per deciliter (dL). It was once thought appropriate to set threshold levels as definitive numbers: 35 (1975), 25 (1985), and 10 (1991). In 1991, the Center for Disease Control structured the “action levels” (i.e., the threshold limits), into ranges: levels of 10-14 required more frequent screening; 15-19 required nutritional and educational intervention (and perhaps, environmental investigation); 20-44 required environmental investigation and remediation, medical evaluation (and maybe, treatment); 45-69 required all of the above plus chelation therapy (a process that extracts lead from the body), and a blood level above 70 was considered a medical emergency for which hospitalization is necessary.

In 2012, the CDC abandoned the phrases “action level” and “level of concern” and set a “reference level” of 5 micrograms per deciliter to identify children with blood lead that is much higher than most children’s levels. The recommendation was based on a growing number of scientific studies showing that even low blood lead levels can cause lifelong health effects. This most recent standard is based upon the National Health and Nutrition Examination Survey (“NHANES”), an ongoing study of children in the U.S. between ages 1 and 5 who are in the highest 2.5% (97.5 percentile) of children when tested for lead in their blood. The new value means that more children likely will be identified as having lead exposure. Parents, doctors, public health officials and communities will be able take action earlier to prevent unwanted health effects which interfere with development of the nervous system and often result in learning and behavior disorders as well as nausea, abdominal pain, anemia and more

Lead can be found in certain types of pottery, glassware, spices, cosmetics, jewelry & toys, the air and soil, and even “unleaded” gasoline. Because of lower regulatory standards in many other countries, the ambient levels are considerably higher outside of the United States. But the most common pathway of exposure for young children in this country (and urban environments, in particular), it is argued, is the interior paint of older buildings which breaks down, chips, peels and creates dust.  Owners of multiple dwellings in New York City must take certain steps to identify the residence of young children and the presence of a lead hazard.  The landlord’s duty will be the subject of a separate blog post.

Lawsuits claiming harmful exposure to lead create issues that do not exist in other forms of toxic tort/premises liability litigation. Unlike other substances (such as asbestos or certain drugs), lead does not produce a “signature” injury, i.e., a harm which is characteristic of or which can only be caused by that element. Plaintiffs in lead poisoning cases generally claim hyperactivity, learning and attention deficits, and an amalgam of other conditions which poor nutrition, other environmental irritants or social and hereditary factors can yield. It is important to remember that: 1) not every amount of lead will cause harm to a person of any age; 2) a child who had an elevated lead level at some point in his/her life may not suffer a long-term adverse effect, and; 3) just because a child has cognitive deficits or behavioral issues does not mean that his exposure to lead is the cause. No child should be viewed in a vacuum because development is a function of a multitude of factors, and that is true in life as well as in litigation.

“One Package of Flu Medication…Unleaded, Please.”

On April 16, 2015, the Suffolk County Commissioner of Health Services, Dr. James Tomarken, warned parents that a powdered product marketed to treat influenza, fever, sneezing and nasal discharge in infants and children may contain excessive levels of lead. The product, Bo Ying Compound, is manufactured by Eu Yan Sang (Hong Kong) Ltd., is labeled in Chinese and English, and is marketed in retail outlets and online. “Parents and caregivers should not use Bo Ying Compound, Commissioner Tomarken said, “due to the potential risk of lead poisoning.” “Those caregivers who have the product in their homes should discard it, and those who may have already given Bo Ying Compound to their children should consult a health care provider for evaluations and possible blood lead testing,” the Commissioner stated. The warning was apparently prompted by the Maryland Department of Health and Mental Hygiene having found elevated lead levels in samples taken from two stores in the state. In 2014, the New York City Department of Health and Mental Hygiene received a report of lead poisoning in an 18-month-old child who was given Bo Ying Compound. The New York City Department of Health and Mental Hygiene analyzed samples of this product collected in New York City and also found elevated levels in the product.

The CDC has stated that “no safe blood lead level in children has been identified.” It estimates that approximately one-half million U.S. children between the ages of 1 and 5 have blood lead levels above 5 micrograms per deciliter (µg/dL), the reference point at which the agency recommends that public health actions be initiated. Exposure to lead has long been believed to cause serious damage to the central nervous system, the kidneys and the immune system. In children (whose brains and nervous systems are developing), chronic exposure to lead, even at low levels, is associated with impaired cognitive function, including reduced IQ, behavioral difficulties, and other problems.