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By Chris A. Milne [Editor's Note: Chris A. Milne [was] an associate with the firm of Rainer & Rainer in Boston and handles much of the firm's lead poisoning litigation. He is also an adjunct faculty member of Suffolk University in Boston. Responses to this commentary are welcome.] COMMENTARY When a family presents itself to you with a lead-poisoned child, your primary concern and highest duty is, of course, to immediately obtain lead-free and safe housing for the family. Seeking injunctive relief from the appropriate court is the manner in which this may be accomplished. In August of 1991, the firm of Rainer & Rainer was contacted by two tenants at a housing project in Attleboro, Mass, whose child had been found to have a blood-lead level of 9 Pb. This level was just below the new threshold of concern of the Center for Disease Control. The Housing Authority had inspected many apartments in the 75-unit complex in December 1990, and had notified our clients that their unit and many others had illegal levels of lead paint. From December until August there had been continuous negotiations and much press coverage regarding the de-leading of the housing project. There had been no progress. Rainer & Rainer has been successful in the past in obtaining injunctive relief for tenants with lead-poisoned children. Where appropriate, we asked the court to issue a preliminary injunction at the outset of litigation, ordering (1) that the apartment be de-leaded forthwith, and (2) that the landlord pay for lead-free alternate housing (by pre-paying for a hotel during the de-leading) and a daily allowance for food during the deleading period. In cases of severe lead poisoning we have even been able to obtain lead-free and safe alternate housing for the family immediately, continuing until the de-leading has been started and completed. The Inspection Our first task in the Attleboro case was to obtain the necessary documentation to support a claim for injunctive relief. First, a lead inspection and lead inspection report had to be obtained to support the claim. In this case there had already been a lead inspection by the Attleboro Housing Authority. Our firm sent in a private lead inspection company to confirm the appropriateness of the inspection by the Housing Authority. Next, we obtained the child's complete medical records and a report from a medical doctor that this child was lead poisoned and/or had an elevated blood lead level and was likely to suffer irreparable harm if not removed from the lead environment. It has been my experience that the letter is best obtained by the parents, as the treating doctor is much more attentive to their request than he is to the litigator's. The next step is to obtain documentation to establish the elements of irreparable harm and the likelihood of success on the merits. As to the irreparable harm, inquiring whether or not your client has bank accounts, credit cards or money on hand to pay for the alternate housing is important. If those resources are not available, and in my experience they usually are not, it should be alleged in the verified motion for preliminary injunction that the client is indigent, has no money by which to obtain alternate housing, and would suffer irreparable harm whether forced to stay or leave their home during de-leading. With regard to the likelihood of success on the merits, as long as there is a lead inspection report, given a strict liability statute, establishing this element should not be difficult. The Hearing In the situation with the Housing Authority in Attleboro, it was our goal to not only achieve the de-leading of our client's apartment, but also the entire housing complex. Approximately one week after taking the case we announced a press conference at the Housing Authority. This was done because local and regional media had been following this story. We felt that the publicity would be another asset in obtaining an appropriate result for our client and other tenants at the Attleboro Housing Authority. On the way to the press conference, Robert Rainer, a partner in our firm, and I stopped at the court and filed our complaint for injunctive relief. The press conference was held on Thursday and a hearing on our motion for injunctive relief was scheduled for the following Wednesday afternoon. The press conference and the filing of our complaint were well covered by the media. At the hearing we reached an agreement on an order whereby our client's apartment would be deleaded within a reasonable time, and which also provided for the de-leading of the remaining units in the complex. All of this was accomplished within the agreed upon time frames. It is our understanding that this is the only time that such an injunctive order was obtained from a public housing authority. In fact, since our success in this case, I have spoken to numerous public-housing advocates and public-interest law-reform groups that have indicated that similar de-leading problems have existed for many years at other housing authorities. The law in the Commonwealth of Massachusetts, and I am sure in other states, is quite clear in requiring a property owner to provide safe and habitable housing. This applies not only to provisions of the lead paint statute but to sanitary code and other statutes as well. I have spoken to attorneys who have used this type of injunctive relief to obtain orders with respect to other breaches of the implied warranty, and who obtained alternate housing for their clients, also. The effectiveness of our efforts in obtaining injunctive relief against landlords was noted in a Page 1 article in Massachusetts Lawyers Weekly, Volume 19, No. 28, April 1, 1991: "Low-income lead paint plaintiffs have been granted preliminary injunctions requiring their landlords to pay for room and board while deleading their homes in at least three recent superior court cases. The injunctions are a new twist on the relief available under the Lead-Paint Statute, which makes landlords liable for all damage caused by their failure to remove lead paint said the attorney for the plaintiffs in the three cases, Chris A. Milne of Boston of the firm of Rainer & Rainer." Incentives To Settle Obtaining safe and lead-free housing for the tenant is, of course, the first and foremost responsibility. However, there are many other benefits to obtaining this type of injunctive relief. At the outset in the lawsuit there has been a determination by the court that the plaintiff is likely to succeed on the merits. It gives the plaintiff an intangible advantage in litigation and further provides a viable argument with the insurer when working toward a favorable settlement for your client. However in Massachusetts (as I am sure it is in other states) unfortunately, the mother or father can be brought into the lawsuit for contribution by the property owner. The fact that the mother or father obtained an order from the court to have the property de-leaded puts them in a much better position than a family that continued to live in the lead environment and subjected their child to the hazards of the lead months, even years after learning of the lead paint violations. Lastly, there are just a few concerns I would bring to the attention of the lead paint litigator who is going to use this type of injunctive relief on behalf of his or her clients. Unfortunately, very often an apartment is more dangerous immediately after de-leading than it was before the de-leading. This is because the deleading stirs up and creates much lead paint dust. It is imperative to make sure that the de-leaders have properly cleaned the apartment. We make part of our prayer for relief in each of these preliminary injunction requests that the alternate housing be paid for until such time as the apartment has been approved not only by the appropriate city or state official but also until a private lead inspection company can go in and do a "wipe test" to measure the amount of lead dust in the apartment. It has been our experience that it is very rare that an apartment passes this original "wipe test". This practice of asking for the test was started, unfortunately, after a child we were representing returned to her de-leaded apartment and ended up in in-patient chelation treatment for 10 days because of the lead dust in the apartment. In-Hand Service of Papers Another point to remember is that although the rules do not require in-hand service on a preliminary injunction (at least not in Massachusetts) it has been my experience that a judge is hesitant to order such extraordinary relief unless you can prove actual service on the property owner. Therefore it would be a good idea to ask the constable or sheriff to obtain in-hand service. The United States Center for Disease Control (CDC) in its October 1991 statement warned that "[t]he persistence of lead poisoning in the United States, in light of all that is known, presents a singular and direct challenge . . . to society." The CDC also stated that this health threat is entirely preventable by removing the sources of lead in the environment. The lead paint litigator who makes use of the preliminary injunction has the opportunity to help not only his or her client but also society by meeting the challenge and causing apartments, one by one, to be de-leaded. ENDNOTES 1 DePitro, et al. vs. Goodman, et al., Civil Action No. 89-1461, decision of the Honorable Justice Catherine White on Plaintiffs' Motion for Preliminary Injunction, March 14, 1989. Williams, et al. vs. D'Avolio, Essex Superior Court, Civil Action No. 91-61, decision of the Honorable Justice Peter Brady on Plaintiffs' Motion for Preliminary Injunction, January 25, 1991. Samuel, et al. vs. Kelley, Suffolk Superior Court Civil No. 91-1115, decision of the Honorable Justice Hiller Zobel on Plaintiffs' Motion for Preliminary Injunction, March 1, 1991. Jefferson v. Nickerson, Boston Housing Court, No. 91-CV-01145, decision of Herman J. Smith, Jr., February 13, 1992. 2 Randall v. Hollman, Suffolk Superior Court, Civil Action No. 91-5407, August 15, 1991. (Reprinted with permission of Mealey publications) |