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.