Maryland Lead Paint Law: A Game Changer

The Maryland Court of Appeals issued a game changing lead paint decision today, declaring unconstitutional an awful Maryland law that immunizes most Maryland landlords who rent properties that cause children brain injuries from lead pain.

A Brief History of Lead Paint Lawsuit in Baltimore

Before I get to that, a little background. In the late ’90s, before I saw the light and became a Plaintiffs’ lawyer, I defended a number of lead paint cases in Baltimore City. These were the halcyon days for lead paint personal injury lawyers in Baltimore.

Many lead paint lawyers in Baltimore had such a good thing going that they didn’t bother to focus on the details, you just filed your lawsuit, then reached a settlement using one or two experts that said virtually the same thing in every case. Printing money in your basement would be less profitable. Plaintiffs’ lawyers rarely bothered to make a claim for economic damages, for future loss of income from their brain injuries. (Now, every lawyer with a lead paint case does this.)

Lawyers who had a big inventory of lead paint cases had plenty of time to decide which cases to file. There was tons of time because the plaintiffs were children that often did not have imminent statute of limitations issues. So, they filed the ones with the highest lead levels first. (The lead level in this new case was less than 25. There were very few cases in the ’90s that had a level that low.) As a result, you had all of these great plaintiffs’ lead paint cases going to trial in Baltimore City. Plaintiffs’ lawyers had two other things going for them: (1) insurance companies had yet to put in lead paint exclusions, and (2) most cases in suit were not yet impacted by the 1994 Reduction of Lead Paint in Housing Act.

The Act slowed down, as was intended, the furious pace of lead paint lawsuits. The stated purpose of the Act was to “reduce the incidence of childhood lead poisoning, while maintaining the stock of available affordable rental housing.” Strangely not mentioned purpose: protecting landlords who were needlessly exposing children to brain injuries from lead paint, which is exactly what it did.

This Act was a stunning victory of landlord lobbyist. The law completely immunized from a lead paid lawsuit negligent defendants if they registered their property with the state and offered payments of $17,000 to children injured by lead poisoning. “Sorry your child has lost 12 IQ points from lead paint that would could have easily remedied. Here’s is $17,000 when she turns 18. We are square, right?”
But, today, an incredible two-and-a-half years later, and almost 10 years after the lawsuit in the case was filed, a unanimous Maryland Court of Appeals struck down on constitutional grounds the 1994 Lead Paint Act to the extent that it immunized landlords from liability if they allow chipping or peeling lead paint from causing brain injuries to children. “For a child who is found to be permanently brain damaged from ingesting lead paint, proximately caused by the landlord’s negligence, the maximum amount of compensation under a qualified offer is minuscule,” retired Judge John C. Eldridge wrote in the court’s opinion. Agreed.

The Court’s Holding

Bizarrely, this was a case of first impression for the Maryland high court on constitutionality of the 1994 Act. But, make no mistake, this law has had a chilling effect on lead paint lawsuits. Lots of parents with brain injured children went to lead paint lawyers who rejected their case because they assumed that the Court of Appeals would assume, as the trial court did, that the court would see this 17 year-old law as a “bedrock” of Maryland law, just like they did the cap on non-economic damages.

So are lead paint cases coming back with a vengeance? First, they never exactly left, as there are still hundreds of filed cases in Baltimore. But insurance coverage is still a big issue. Many insurers put in lead paint exclusions, leaving landlords on their own to defend and pay out their own claims. These exclusions disclaimed liability for any personal injury claims arising out of the ingestion or inhalation of lead or lead compounds, broad language that at least one Maryland court found sufficient.

You can find the full opinion in Jackson v. Dackman Company here.

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