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Multi-Expert Report Fueled $680K Settlement By David L. Yas Should lead-paint litigators focus their pretrial efforts more on creating a plan to rehabilitate the child? Boston attorney Chris A. Milne thinks so. Lawyers handling lead-paint suits need to target potentially lucrative "rehabilitation" damages prior to trial by having a wide-ranging group of experts assess the child, according to Milne. Such an "interdisciplinary assessment," Milne said, was crucial in his obtaining a recent $680,000 lead-paint settlement for a minor client. The rehabilitation plan also benefited the child insofar as it helped specify how any recovery could be distributed on behalf of the child, rather than directly to the parents. But some lawyers believe that calling several experts together en masse could be terribly expensive-and tactically unwise. Cambridge attorney Kurt M. Pressman indicated that devising such a report may be beneficial "if the child has a lot of immediate needs," but said it "sounds very expensive" and that coming up with such a major report might be premature if the child's needs are yet to be determined. "One of the biggest mistakes made in these cases is to settle them too early," he said. The case which Milne recently settled, Castro v. Machinski, appears in the Trial Reports section of this issue of Lawyers Weekly. Minor Matter The plaintiff in Castro was 9 years old at the time of the settlement. The child's mother has a history of psychiatric problems and the father had a history of violent behavior. Both of the child's parents and his siblings were receiving state disability benefits. During the 1995-1996 school year, standardized tests showed significant deficits and behavioral problems in the child. A suit was brought on behalf of the child against the defendant landlord in Housing Court, claiming that the child's deficiencies were due to lead poisoning caused by ingestion of lead paint. `Interdisciplinary Assessment' Plaintiff's counsel Milne said that, prior to trial, he arranged a meeting at a local hospital where the child's treating physician, treating counselor and the experts retained for litigation met for the purposes of exchanging ideas and arriving at consensus opinions. Milne thus developed an "interdisciplinary assessment" of the child's diagnosis and prognosis, including 27 findings with respect to the child's situation. The report: concluded that the child suffered severe childhood lead poisoning; recommended yearly assessments and intensive counseling for the child in the area of education; advised family therapy and individual counseling including a comprehensive summer-school program; proposed an irrevocable trust to hold any funds derived from the case; and predicted that if "early intervention" was not put in place that "the likely long-term prognosis is unemployability and antisocial conduct." Milne presented the report to the defendant. After a full day of mediation, the case settled for $680,000. `Real Connection' Milne explained that the report was compiled to enhance "the real connection between what the litigation was about and what the child needed." According to Milne, some practitioners may assume that after a lead-paint case is settled, "the job is done-like punting a football." But failing to outline a plan for the proceeds of such a case, said Milne, could result in the child having "a very bleak future." Milne stressed, however, that such a report can also be a valuable negotiating tool and a potential trial exhibit. "What you have is one piece of evidence, that if done properly would be admissible, [and] a powerful piece of evidence," he stated. Milne further noted that such detailed planning will make a judge's job easier in approving minors' settlements pursuant to G.L.c. 231, § 140C 1/2. In fact, he recalled a case in which one lawyer approached a judge requesting that a settlement be approved without a trace of a plan for the money, and the judge "kicked [the lawyer] out of the courtroom." Boston lead-paint attorney Benjamin R. Hiller agreed that ensuring that funds are properly distributed to a minor is a must in any case. "I would never [handle a case] without putting the proceeds in trust," said Hiller. "None of that is a knock on any particular parent, but I don't want to judge what parents can be trusted and what parents can't." Hiller said that the idea of an interdisciplinary meeting is "not something we have done," but said that any financial concern that such a meeting brings with it would not be new to lead-paint litigation. "In order to do lead cases properly, substantial expense is involved," he said. Pressman said that the expense of such a meeting would surely be an issue for many lawyers and cautioned that attorneys commonly err by settling the case too early, perhaps before the full extent of the child's injuries are realized. "It's irresponsible [to not ascertain] the full extent of the damages," he noted. "All you can do is make predictions at that [preliminary] point." Paul Saltzman of Boston, who handles lead-paint litigation from the defense side, said that he would caution against a marshaling of experts if they are solely retained for the purposes of litigation and are otherwise unconnected to the child. "Frankly, there are a number of expert witnesses who have testified extensively and exclusively on behalf of plaintiffs in cases of lead-paint exposure," he noted. "And, because of their repeated appearances, there can be a certain amount of cynicism." Saltzman said that with respect to an "interdisciplinary assessment report," "if it's something that is done specifically for providing the child a treatment plan, I'll lend it a lot more credence than something compiled solely for the purpose of litigation." Tricky Task Some practitioners told Lawyers Weekly that it can be tricky convincing a parent that the proceeds of a lead paint judgment or settlement should go directly into trust for the sole benefit of the child. "You have to establish to the parent right away about the conflict of interest," Milne noted. "We get something in writing. They authorize us up front to get court approval [for a plan to distribute the proceeds of the case]." Pressman stated that such conflicts of interest necessitate placing the funds in the hands of a third party. "There are gray areas as to what can be used for the child's benefit," he said. "Can you buy a new car to drive the child to a private tutor?" Some parents, Pressman said, may ask, "Am I not competent to handle my son's money?" Pressman said he will sometimes agree to turn the funds over to someone such as a grandfather but emphasized the importance of keeping the process "insulated from familial influences." Reprinted from Massachusetts Lawyers Weekly, Nov 11, 1996) |