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Baltimore Lead Paint Verdict Affirmed by Maryland High Court

leadpaintThe Maryland Court of Appeals just affirmed a lead paint verdict against the Baltimore Housing Authority.  This is yet another case where a governmental entity sought refuge of the Local Government Tort Claims Act.   Thankfully, the Baltimore Housing Authority could not avail causing brain damage to a child via this loophole, at least not in this case.

Facts of Case

The plaintiff lived in a Baltimore Housing authority for two years after her birth in 1995.   She was exposed, she alleged, to chipping and peeling lead based paint.  Her lead level was 13 mcg/dl.  When I defended these cases in the ’90s, we would have rolled our heads at that number.  Now we know better.   A level like this can cause real injury and can bring a large jury verdict in Baltimore.

The story from here is familiar.  The plaintiff’s mom noticed classic lead-related injuries manifested themselves early: attention issues,  delays in learning to read, and behavioral problems.  Plaintiff’s experts testified that she lost 5-7 IQ points.

The Baltimore Housing Authority put on its usual witnesses – Patrick Connor, Joseph Scheller, Joel Morse, etc. – to argue that the girl was not injured by lead-based paint.

The jury did not buy in,  awarding $160,000 in future lost wages (which seems low) and $1.1 million in non-economic damages. Under Maryland’s cap for non-economic damages, this portion of the award was reduced to $530,000.  Why so low?  The injuries occurred in 1995 when the cap was much lower.

The Baltimore Housing Authority’s Failed Attempt to Escape Liability

The Housing Authority filed a motion for summary judgment claiming that Plaintiff did not comply with the Maryland Local Government Tort Claims Act.  Plaintiff agreed there was not strict compliance with the Act.  But she argued, “I was a toddler when I should have provided notice, for crying out loud.”   Of course, I’m making that up.  But she should have been able to make that argument in a more just world.

scalesAnyway, what she did argue is that while she did not strictly comply, the claim should continue because she substantially complied with the LGTGA’s notice requirement.  What did she do?   Her mother gave her lead results to a Housing Authority representative.  So the trial court concluded that since the Defendant received the child’s elevated blood-lead results, it was not exactly a stretch that it would get sued.  It also gave the Defendant the ability to investigate the allegations in a timely fashion which is what the LGTGA is supposed to give them.  The court said this was not a substantial compliance notice question.

So Plaintiff loses?  No, I already told you Plaintiff wins.   There is also a “good cause” exception in lead paint cases.  Why?  Because of cases like this where someone tries to take away a child’s damages from a brain injury that could have been avoided because, as a child, they did not provide notice.   Here, the standard is abuse of discretion.  That’s a tough nut to crack and the Housing Authority can’t crack it.   The court used basically the same facts and said that while it is not substantial compliance, it is certainly not an abuse of discretion to say that it is good cause.  

I was not planning on writing about this case because the holding only applies to lead paint cases against municipalities, which is almost always the Baltimore Housing Authority.  But a win is a win and I just felt like writing about it.

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  • Brenda Elliott

    Thank you for sharing this case. I know many parents are in the dark about how lead is impacting their children, once they find out they are LIVID to learn that information actually is withheld- often because they were “below the limit of concern”, or their doctor never told them, or they never documented lead level results. VERY few parents are informed, so they are powerless to chance the continued exposure to lead.

  • Kristen Maliszewski

    Before my son was born I knew nothing about lead paint. Unfortunately, we stayed in an apartment complex when he was just a baby, and unknowingly he was poisoned. A few years later, a woman from the Abilities Network asked me if he had been tested for lead, I said no. Ironically enough, he should’ve been tested because the zip code at the apartment and at my parents house are areas listed in Maryland that require testing. Regardless of where we were living the doctor should have done a lead test. My little man just turned 11 on 06/08/15, and I have had the same lawyer since 2006. My son is obviously cognitively disabled, he goes to a special needs private school, and gets social security disability. My question is how long do I have to wait to go to court? My emotions are stuck in limbo, and I can’t move on. The lawyers just keep telling me it takes time, but how much is yet to be told to me. If someone could please enlighten me that would be so awesome because this is so emotionally draining.