On October 29, 2008 we hosted a teleconference called “Low-Level Cases in Lead Litigation” featuring four speakers: Dr. Carl Baum, an associate professor of pediatrics at Yale University School of Medicine, Center for Children’s Environmental Toxicology in New Haven, Connecticut; P.J. Bottari of Wilson, Elser, Markowitz, Edelman & Dicker of New York; John Daly with The Law Office of John M. Daly; Chris Gannon of Segal McCambridge Singer & Mahoney; and Dr. John Rosen, head of the Division of Environmental Sciences and professor of pediatrics at the Albert Einstein College of Medicine.
During the call, Chris Gannon asked defense attorney P.J. Bottari what he looks for when a lead complaint first lands on his desk. Here is what Bottari had to say about early case evaluation:
“The first thing we like to see is if there are any Department of Health records in the case. Unfortunately, in New York City the Department of Health does not go to an apartment until a child tests with a level of 20 or a level of 15 to 19 over several months. When you are looking at a very low lead level of 10, a lot of times there is no documentation, at least from a health agency, as to what is going on.”
“As you know, now when you rent an apartment there is lease data that incorporates a disclosure for lead-based paint forms. If a landlord knows that a building is built before a certain time, and in New York City there is a presumption that if a building was built before 1960 it is presumed to be lead-based. There have been a number of real estate seminars that John Daly and his firm are aware of that the real estate industry is now very aware of lead-based paint. You can no longer put your head in the sand and say that you have never heard of this, which is what landlords were doing 10 to 15 years ago when this was a whole different set of parameters.”
“. . . [W]e also look for alternative sources of lead. The Department of Health in New York City has estimated that approximately 35 percent of the time, even if there is chipping or peeling paint in the home, which is not a good thing, the source of the lead is not the home, but somewhere else. I think we are all familiar with what has been going on in terms of Chinese toys and dishes and things like that which got a lot of publicity six to eight months ago.”
“Dr. Rosen will tell you that there is lead in soil, not as much as is in paint certainly, but there is lead in certain other things. A lot of hobbies, a lot of people who work in automotive industries, or people who bring paint home – there are certainly other places to look, but the first place is always the home. We try to investigate whether the paint is intact. If it is not intact we try and find out if it is bio-accessible to a child. For example, I think we all know that window well areas and windowsill areas where a small child can pull him self or her self up onto and put their fingers into the window trough. They get dust on their fingers and put it into their mouth which is known as a pica syndrome which is eating non-food objects. That is something that would raise a child’s lead level up.”
“We like to make an investigation of the home and speak with the landlord. We check the painting history; check the rent history, when the people moved into the apartment.”
“Also . . . a lot of these claims are brought by people who come from other countries. It is instructive to know that unfortunately other countries do not have the same set of lead guidelines as the United States. For example, in the Caribbean where a lot of people come from, there are homemade battery factories and things of that nature.”
“We often find, and the literature will support it, that a lot of times lead levels increase in the month of June and are probably the lowest in the month of March. I know there is conflicting literature on that but a lot of times when you are out in the summertime playing in a park or being exposed to other sources outside the home, obviously John Daly and his crew do a very good work up of the file in terms of the source of the lead in the home. You can have XRF inspection of the home and the instrumentation today is much better than it was 10 or 20 years ago when PGT XK-3s were being used.”
“We do look at a whole gamut of things to determine if the landlord is responsible. We also tell landlords right upfront that you have to treat a low level lead claim like some kid who is on the 10th floor of a building without window guards. It is a very serious claim.”
“We can talk later on about what the literature says. I think there will be a dispute as to what the literature does say or whether it should be taken for what it’s worth because as I think all of us know, lead levels years ago were much higher. Dr. Rosen and a number of peer reviewers have gone on record and the federal government has gone on record that the average lead level back in the 1960s or early 1970s was 15.5 micrograms per deciliter. There are national health and nutrition surveys that track lead levels. Back in 1976, 88 percent of the population had lead levels greater than 10.”
More Info & Upcoming Programs
The complete recording and materials from that event are available by writing to us at email@example.com or calling us at (484) 324-2755.
Also, we are hosting two other programs involving lead litigation. One is called “Introduction of General & Specific Causation Evidence in Toxic Tort Cases: Lead, Benzene & Asbestos” and will be held in Philadelphia on February 25, 2009. The other, currently titled simply “Lead Litigation,” is still being developed, but will be held in April 2009. Watch this site for more details.