Lead Paint Litigation-Challenges In the 1990s By Chris A. Milne and Robert K. Rainer Lead-paint litigation is a fascinating and challenging area of law in which there are few reported cases for guidance. This article traces the history of lead paint litigation in Massachusetts since the enactment of "The Lead Poisoning Prevention and Control Act" on Nov. 1 1971 and will hopefully serve as a useful compilation for practitioners defending and prosecuting lead-poisoning cases. The focus is primarily on significant trial verdicts. Most of the decisions referenced are unreported and difficult to access. Though not binding, they are persuasive authority and helpful in understanding the developing law in the area of lead-paint litigation The most significant Supreme Judicial Court decisions in terms of their effect on litigation and litigation strategies are also discussed. Watershed Verdicts The watershed verdicts of $1.2 million in Viera v. Privitera (Middlesex Superior Court, Nov. 29, 1982) and $200,000 in Bencosme v. Kokoras (Essex Superior Court, April 12, 1985), are now but interesting historical footnotes. In Viera, a jury verdict of $300,000 was returned after a three-week trial to which treble the actual damages found were added by Judge Richard S. Kelley, pursuant to G.L.c. 111, §199, thus, making total award $1.2 million. The actual jury verdict in Bencosme was $75,000 for Rafael Bencosme, a lead-poisoned child, $100,000 for Carey Bencosme, a lead-poisoned sibling, and $22,000 to their mother for medical expenses - for a total of $197,000. The verdict in Bencosme was widely reported in the legal and lay press. (2) These two decisions dominated the 1980s. The 'strict liability' recognized in Bencosme made the defense of a lead case on liability difficult. The phrase 'lead-paint litigation' was synonymous with a plaintiff's six- or seven-figure verdict. Renewed Exposure Since that time much ground has been broken, the Underwood v. Risman decision was rendered and the word 'exposure' was given renewed meaning. No. 846261 (Middlesex Superior Court, Sept. 7, 1990) (findings of fact and order for judgment) (Underwood I). In Underwood I, $2.2 million was awarded in compensatory and punitive damages. In this decision, Judge J. Harold Flannery awarded damages of $2,212,925, including trebled damages, attorney's fees, costs and prejudgment interest. With Underwood I, following Bencosme and Viera, the 1990s had been ushered in and the defense bar still had tasted only 'the agony of defeat.'(2) However, lead-paint litigation in the 1990s had not yet really begun. In February 1991, a jury found for the defendant on a lead-paint count with injury and causation being the factual disputes. Campanelli v. Boyle, Civil Action No. 89 835 (Essex Superior Court, Feb. 26, 1991). However Judge John P. Forte found that the defendant violated G.L.c. 11, §197 and was liable for damages under Chapter 93A.(3) A verdict of $25 statutory damages was doubled (as a result of knowing and willful violation) to $50 plus attorney's fees and costs in the sum of $23,500 on the 93A count (which were paid by the defendant's insurance company). It is widely believed that Campanelli was the first 'victory' for the defense in a lead-paint trial. Campanelli, like its bookend from the 1980s - Viera - is a benchmark for a new decade. Victory for the plaintiff is no longer considered assured. 'Strict liability' is tacitly conceded; however, the nature, extent and cause of injury become the focus of the lead-paint case defense. 'Rico' Action In Rico v. Latino, Civil Action No. 87-T-1 (Dudley District Court, March 14, 1991), Judge John LoConto awarded the plaintiffs $2.5 million, less than one month after the verdict in Campanelli. The actual verdict in this case was $2,589,114 -$50,000 for pain and suffering and $813,038 for lost earning capacity. The $863,038 in damages were trebled by the court. Like Underwood I, Rico was decided by a judge and not a jury. In contrast, the jury in Campanelli had found for the defendant, whereas, in the 93A count Forte found in part for the plaintiffs. The 1990s had started with two significant awards for the plaintiff which were tempered in significance by Campanelli. In Viarruel v. O'Malley, Civil Action No. 90-1227 (Suffolk Superior Court, April 2, 19911), the insurers again took a stand, spending in excess of $300,000 in an attempt to gain back the ground lost in earlier decisions, defending a low-lead-level case. This sophisticated and costly defense focused primarily on causation of the lead poisoned child's injuries. A defense verdict was gained. However, the cost to defend and the inherent weaknesses in plaintiffs case limited to some extent the broader significance of this verdict.(4) The playing field was muddied in Ankiewicz v. Kinder, 408 Mass. 792, 563 N.E.2d 684 (1990), which held that property owners could assert a claim for contribution against the mother of a lead-poisoned child. Time has shown that the warning of Chief Justice Paul J. Liacos in his insightful dissent in Ankiewicz - that '[t]o hold that parents may be liable for their children's ingestion of lead-based paint would undermine the purpose of this statute' - has not come to pass. The plaintiffs' bar has dealt well with this decision and it has not significantly diminished the effectiveness of the lead-paint statute in addressing the epidemic of childhood lead poisoning. SJC Speaks Again In Underwood v. Risman, 414 Mass. 96, 605 N.E.2d 832 (1993) (Underwood II), the SJC spoke again and took away the $2.2 million verdict that Judge Flannery had prudently awarded.(5) Underwood II was a 93A case decided on a relatively obscure theory of liability Therefore, the impact of this decision is not far-reaching. In Underwood II, the court held that a property owner is not liable under Chapter 93A for failing to disclose the possibility of the presence of lead-based paint in the rental unit to childless prospective tenants. The court did not interpret G.L.c. 111, §190 et seq. In Ayala v. Boston Housing Authority, 404 Mass. 689, 536 N.E.2d 1082 (1989), a new theory of liability and a new defendant were found. In Ayala, the court extended liability to housing authorities under a breach of contract/third-party beneficiary theory of liability to inspect for 'lead-paint hazards' and notify tenants of the results of such inspections in rental units which they subsidize. This decision's scope is still uncertain, but its impact on lead-paint litigation is clearly profound.(6) Housing authorities are now added as third-party defendants by insurance companies as a matter of rote and often as direct defendants by the plaintiffs. Pierre v. United States, 741 F. Supp.. 306 (D. Mass. 1990), and Jacques v. Desronvils, Civil Action No. 91-4058 (Suffolk Superior Court, November 1992), both made their mark as did the counterweight of Diaz v. Eld , Civil Action No. 89-4058 (Suffolk Superior Court, Feb. 24, 1992). In Pierre, damages and costs of $249,291 were awarded by the court on a 'good Samaritan' negligence theory. In Jacques, the plaintiffs alleged that the defendants were negligent in failing to remove lead paint that they knew was in an apartment that was let to an elderly renter who would be baby-sitting children. The Jacques plaintiff was less than 4 years old at the time of trial. Jacques was settled - after the defendant filed an appeal - for $110,000. In Diaz, a jury verdict for defendant was rendered. The child in Diaz was poisoned in single room rented by child's father, thus liability on the issue of residency of child was severely contested, as was causation of injury. Pendulum Swings The number of lead-paint cases to go to trial has slowly increased. And the pendulum during this infancy has swung back and forth. With so few lead poisoning cases going to trial since 1971 and being appealed to the higher courts, the trial court decisions are especially important to the practitioner. These decisions are persuasive authority and very helpful in understanding the developing law in the area of lead-paint litigation. Judges of both the Massachusetts Superior and Housing courts have rendered numerous decisions on discovery,(7) liability,(8) joinder of parties,(9) municipal liability(10) and insurance.(11) Recently, the duty of an owner to guests was recognized.(12) Precedent has also been set throughout the state in obtaining injunctive orders for the de-leading of apartments and payment of alternate housing for indigent clients.(13) Mental anguish from exposure to the lead environment and low level cases have come into play.(14) Injunctive relief has been obtained against housing authorities ordering de-leading of low income developments.(15) Recently, in Taylor, et al. v. Federal Deposit Insurance Corp., et al., Civil Action No. 91-1042-WD (D. Mass.), the pendulum took another swing toward the plaintiff when a federal court jury awarded $1.7 million to two Brockton boys. Significantly, Taylor was a substantial award by a jury in a case in which causation and injury were the focus of the defense. Through, among other things, effective use of expert testimony and demonstrative aids, the Taylor plaintiffs succeeded in contrast to the successful defenses in several prior jury cases of the 1990s. The significance of Taylor was reinforced on Nov. 19, 1993 when a Northeast Housing Court jury awarded $1.25 million to a single lead-poisoned child. Parker v. D'Avolio, Civil Action No. 91-CV-00048. This award, which will increase to $1.925 million with statutory interest, is believed to be the largest verdict ever in Massachusetts to a single child in a lead poisoning case. Fundamental Truths Lead-paint litigation of the 1990s, viewed with the historical perspective of the 1980s, reveals two fundamental truths to the practitioner: - the exposure in a case involving brain damage to a young child is daunting; and - the words 'strict liability' conceal the complexity and challenge to the plaintiff in a lead-paint trial. To succeed in a lead-paint trial the plaintiff must, by effective use of expert testimony and demonstrative aids, educate a jury on the harmful effects of lead. Such a strategy counters evidence on causation that the defense bar has, in the 1990s, introduced with success. End notes (1)Viera (Case No. 77-2681) was settled days before a decision on the defendant's appeal to the SIC for $1.7 million and after argument before the full court. 'Lead Paint Wars,' Massachusetts Lawyers Weekly (Jan. 13, 1992). As of Viera, there were no reported decisions regarding civil liability under this statute. Cf. Commonwealth v. Racine, 372 Mass. 631, 363 N.E.2d 500 (1977). At the time of Viera, very few attorneys were handling lead poisoning cases, very few cases had gone to trial and the highest known verdict was $10,000. Interview with Mark Stern, Esq. of Somerville, lead trial counsel in Viera Oct. 21, 1993. (2)The SJC ultimately affirmed the lower court judgments. 400 Mass. 40,507 N.E.2 748 (1987). The court "agree(d) with the trial judge's determination that an owner of premises may be liable under §199 without proof either that the owner knew there were materials containing dangerous levels of lead on the premises or that the owner was negligent in not removing the offending materials." 400 Mass. at 41. (3) Judge Forte states in his decision "defendant became aware of this condition [lead paint] at least by July 1984 ... thereafter ... (the defendant attempted de-leading and informed... [the plaintiffs] the apartment was de-leaded... However, in 1988 an inspector for the Board of Health.. conducted an inspection ... [and] found lead. ... I find the defendant violated G.L.c 111, §197 and 940 CMR 3.17, thus is liable under G.L.c. 93A.' Campanelli at 12. (4) See "Jury Rejects Claim of Dangerous Lead Levels,' Massachusetts Lawyers Weekly (April 13, 1992). The defendant in Viarruel was 86-year-old Mary O'Malley. The plaintiffs, June Viarruel (a Hispanic single mother) and Relo Viarruel (her 4 year-old son) who had lead levels of 28 Ph 21 Ph and 18 Ph over a six-month period. The authors of this article were counsel for the plaintiffs in this case. (5)Interestingly, there are unconfirmed report that this case was settled days before the SJC decision was rendered on Jan. 8, 1993. (6) The Ayala court declined to answer questions which relate to possible tort liability' of the BHA. Ayala at 763 n.18 Ominously, however, the Court cited the promise of the BHA to conduct inspections annually and "at such other times ... as may be necessary to assure that the owner is meeting his obligation to maintain the unit in Decent, Safe, and Sanitary condition." Ayala at 702. (Emphasis added.) "To make certain"; To make safe or secure' these are among the definitions of "assure" provided by the "American Heritage Dictionary of the English Language." Is a form of 'strict liability' in the offing for housing authorities when such a case is properly before the court? (7) Paige, et al. v. Gerrardi, No. 92-CV-00031, (Northeast Housing Court) (Kerman, J) (DSS records 'relating to the plaintiff children and their families are discoverable"). On issue of discovery of DSS records cf. Commonwealth v. Bishop, 416 Mass. 169 (1993). Goodrich v. St. Jean's Credit Union, et al., No. 92-CV-00057, (Northeast Housing Court) (Kerman, J.) (medical, school and social service records of nonparty siblings of the plaintiff are not discoverable). Caminero, et al. v. Baker et al., Civil Action No. 882226, (Essex Superior Court, Nov. 29, 1990) (Grabau, J.) (defendant's motion to compel blood lead test of mother of lead poisoned children is denied where mother is not a party and 'her physical state is not in controversy,). Maguire, et al. v. Restuccia, Civil Action No. 22364 (Boston Housing Court, Nov. 30, 1990) (defendant has failed to show 'good cause' for blood lead test of mother where existing records show mother had no elevated blood leads during pregnancy of child and child is 7 1/2 years old). Conner v. Colby, et al., Civil Action No. 88-CV-72, (Worcester Housing Court, Jan. 28, 1993) (Martin, J.) (granting plaintiffs motion for a protective order regarding the medical and school records of the lead poisoned child's parents stating that such records are not 'relevant nor reasonably calculated to lead to the discovery of admissible evidence.' See also Pierre infra at n. 15. (8) King v. Hunneman Real Estate Corp., Civil Action No. 24721, (Boston Housing Court, Jark. 30, 1991) (Smith, J.) ('this Court finds that an agent of the title holder, such as a property manager, falls within the definition of owner for purposes of this statute'). Dicrescenzo v. Cabral, (Essex Superior Court, April 1990) (Doerfer, J.) (a jury may infer from instances in which child lived that dangerous levels of lead paint existed though the building had been destroyed and lead-paint testing was never performed). Scott v. Lawson, Civil Action No. 287-CV3816, (Boston Housing Court, June 19, 1992) ) (Smith, J.) (G.L.c. 111, § 199 does not limit liability to those children who are lead poisoned as defined by the director in CMR rather the question of lead poisoning is a question of fact for the jury), Scott is significant because it clearly holds that a child with levels below 25 Ph is entitled to recover for physical injury under the lead-paint statute. Liberty v. Chene, No. 82-24245 (Worcester Superior Court, March 3, 1988) (Welch, J.) (granting partial summary judgment for plaintiffs on issue of liability, damages to be determined at a later hearing). Carninero, et al. v. Baker, et al., Civil Action No. 88-2226, (Essex Superior Court, Jan. 7, 1991) (Brady, J.) (plaintiffs' motion in limine to bar collateral attack on lead inspection agency's finding of existence of dangerous levels of lead in plaintiffs' premises allowed). (9)Walker v. Williamson, No. 17943 (Boston Housing Court, Oct. 23, 1991) (Smith, J.)(motion to sever trial of defendant landlord's contribution counterclaims against minor plaintiffs' parents from trial of minor plaintiffs, lead poisoning claim was allowed). Kuhta v. Cote, No. 90-CV-053 (Worcester Housing Court, June 19, 1990) (Martin, J.) (allowed defendant landlord's motion to file a third-party contribution claim against minor plaintiff's mother, but ordered that claim to be bifurcated and tried after the case in chief). King v. Hunneman Real Estate Corp., Case No. 24721 (Boston Housing Court, Feb. 11, 1991) (Smith, J.) (holding same as Kuhta supra). cf. Gillette v. Izzo, Civil Action No. 89-26754 (Boston Housing Court, Oct. 13, 1993) (Daher, J.) (the court denied plaintiffs' motion for summary judgment and commented that 'where the defendant can show a direct impact on the child by the actions of the parent, the Court has not allowed severance'). (10) Scott v. Lawson, No. 287-CV-3816 (Boston Housing Court, Jan. 29, 1993) (Smith, J.) ("the court finds that city indeed owed a duty of special care to the plaintiff" where 'the city inspector not only negligently inspected the premises but, more importantly, the inspector ... assured them that the premises were safe to move back into'). Roberts, et al. v. Frederick, No. 21954, (Boston Housing Court, March 1991) (Smith, J.) (denying defendant's motion for summary judgment, court said the city breached 'special duty" of care when it went to a building as a result of being informed of a lead poisoned child and failed to test the interior and failed to advise the tenant of lead paint on the buildings exterior). See also Marsh and Gill infra at n. 15. (11) United States Fidelity & Guaranty Co. v. Munroe, Civil Action No. 92-3545 (Middlesex Superior Court, Jan. 13, 1993) (McHugh, J.) (successive $100,000 policies with same insurer may be stacked where the lead poisoned child continued to reside at the locus and continued to be harmed by the ingestion of lead over the successive policy periods). (12) Ferraro v. Allard, No. 92-CV-00009 (Northeast Housing Court, Aug. 27, 1993) (Kerman, J.) ('the duties owed by owners of residential premises under ... the lead poison prevention law, G.L. c. 111 §§190-199 ... extend[s] not only to the tenants and their children, but extend also to the tenants' and the tenants' children's guests'). See also 'Minor Guest May Sue Landlord Over Lead: Recovery Possible For Non-Tenant Child', Massachusetts Lawyers Weekly (Sept. 13, 1993). (13) 'Lead-Paint Plaintiffs Find A New Remedy,' Massachusetts Lawyers Weekly, April 1, 1991. Lamarche v. Nunes, Civil Action No. 91-0475, (Berkshire Superior Court, Sept. 6, 1991) (order on plaintiffs motion for preliminary injunction).Samuel, et al. v. Kelley, Civil Action No. 91-1115, (Suffolk Superior Court, March 1, 1991) (Zabel, J.) (order on plaintiffs motion for preliminary injunction). DiPitro, et al. v. Goodman, et al., Civil Action No. 89-1461, (Superior Court, March 14, 1989) (White, J.). Williams, et al. v. DAvolio, Civil Action No. 91-61 (Essex Superior Court, Jan. 25, 1991) (Peter Brady, J.). Jefferson v. Nickerson, Civil Action No. 91-CV01145(Boston Housing Court, Feb. 13, 1992) (Smith, J.). See also Milne, 'The Preliminary Injunction:-A Valuable Tool for the Lead Paint Litigation," Healey's Litigation Reports Lead (April 22, 1992) and the cases cited therein. (14)'Lead Case May Open Door for Distress Claim,' Massachusetts Lawyers Weekly, Oct. 12, 1992, commenting on interlocutory rulings on cross-motions for summary judgment, McCarriston v. Collins, No. 92CV-00075 (Northeast Housing Court, Sept. 30, 1992) (Kerman, J.). This 5 Ph case resulting from an approximate 10 month tenancy was subsequently settled with defendant's insurer. Settlement of $80,000 day before trial in case where child fingerstick 25 Ph followed by 8 Ph venous test in Coleman v. Levine, Civil Action No. 90-1339 (Suffolk Superior Court, November 1992). Sanchez v. Silva, Civil Action No. 91-5581-E (Middlesex Superior Court) ($35,000 settlement of 12 Ph case). (15) Beckford v. Waltham Housing Authority, Civil Action No. 93-01291, (Middlesex Superior Court, March 12,1993) (Houston, J.). See also Southwick, et al. v. Rose, et al. (Southeast Housing Court, Feb. 9, 1993) (Kyriakakis, J.) (there is issue of material fact on issue of whether co-defendant who was owner-occupier of four-family home where child was poisoned was subject to G.L.c. 93A). Cesar, et al. v. Jenney, Civil Action No. 91-3259 (Middlesex Superior Court, Feb. 4, 1993) (Houston, J.) (denying defendant's motions in limine to exclude lead inspection report and all documents issued by the Department of Public Health). Pierre, et al. v. Dixon, Civil Action No. 92-Cv-00835 (Boston Housing Court, March 19,1993) (Smith, J.) ('Plaintiff Ruth Pierre, the mother of the minor plaintiffs, has not placed her physical or mental condition in controversy, as required by Mass. R. Civ. P 35 (all before a court may order a physical or mental examination'). Marsh, et al. v. McCall et al., Civil Action No. 9101330 (Boston Housing Court, Aug. 31, 1993) (Daher, C.J.) (denying third-party defendant Boston Housing Authority's motion for summary judgment on basis of contractual indemnification agreement). Gill v. Hospot, et al., Civil Action No. 92-0090 (Berkshire Superior Court, Jan. 4, 1993) (Ford, J.) (motion allowed by the court citing the public duty rule). Published with permission of Lawyers Weekly