For The Defense, November 2012 - DRI Today
For The Defense, November 2012 - DRI Today
For The Defense, November 2012 - DRI Today
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Product Liability<br />
<strong>The</strong> CDC Opens<br />
Pandora’s Box<br />
By Paul S. Danner<br />
and William D. Wilson<br />
Federal Policy<br />
Change Could<br />
Unleash Lead Paint<br />
Poisoning Litigation<br />
A discussion of the<br />
previous CDC guidance<br />
and its critical role in<br />
litigation, the possible<br />
motivations for deciding<br />
to use a reference value to<br />
define what constitutes<br />
an elevated blood lead<br />
level in children, and the<br />
serious concerns that<br />
defendants and their<br />
insurers now face in<br />
defending these cases.<br />
On May 16, <strong>2012</strong>, the Centers for Disease Control and Prevention<br />
(CDC) officially decided to eliminate the use of<br />
the term “level of concern” and instead adopt a “reference<br />
value” to identify children with “elevated” blood lead levels<br />
(BLLs). This change is expected to cause a<br />
seismic shift in lead paint litigation. <strong>The</strong><br />
previous guidance from the CDC identified<br />
a BLL of 15 micrograms per deciliter<br />
(μg/dL) as requiring medical intervention.<br />
<strong>The</strong> CDC referred to this as the “action<br />
level.” It also identified 10 μg/dL as the CDC<br />
“level of concern.” <strong>The</strong> level of concern figure<br />
became a de facto threshold for proving<br />
lead poisoning in certain jurisdictions.<br />
<strong>The</strong> new CDC methodology eliminates the<br />
distinction between the action level and<br />
the level of concern. <strong>The</strong> CDC now determines<br />
what constitutes an elevated lead<br />
level based on the results of the National<br />
Health and Nutrition Examination Survey<br />
(NHANES), which tracks, among other<br />
things, lead levels in survey participants.<br />
<strong>The</strong> new “reference value” is based on the<br />
lead levels of children ages one to five who<br />
have BLLs in the top 2.5 percent of children<br />
tested. This figure currently stands at 5 μg/<br />
dL, which is one-half of the former CDC<br />
level of concern.<br />
Childhood mean BLLs have dropped<br />
dramatically over the years and, in turn,<br />
the number of lead exposure cases has<br />
decreased. This is due, in large part, to the<br />
preventative measures that have been put<br />
into place over the past few decades such<br />
as eliminating lead in paint and gasoline.<br />
Although lead exposure has decreased significantly,<br />
the new CDC position instantly<br />
increased the population of children with<br />
“elevated” BLLs by 600 percent from<br />
approximately 77,000 to almost 450,000.<br />
In the process, the CDC most assuredly<br />
reenergized the plaintiffs’ bar to find these<br />
new potential litigants and to initiate lawsuits.<br />
This article discusses the previous<br />
CDC guidance and its critical role in lead<br />
paint litigation, the possible motivations<br />
for deciding to use a reference value to<br />
define what constitutes an elevated blood<br />
lead level in children, and the serious concerns<br />
that defendants and their insurance<br />
companies now face in defending lead<br />
paint cases.<br />
62 ■ <strong>For</strong> <strong>The</strong> <strong>Defense</strong> ■ <strong>November</strong> <strong>2012</strong><br />
■ Paul S. Danner and William S. Wilson are partners in the law firm of Mound Cotton Wollan and Greengrass.<br />
From the firm’s New Jersey office, they primarily defend insurance and reinsurance companies and<br />
other commercial clients in matters involving insurance coverage disputes, contract disputes, and product<br />
liability, construction liability, employer liability, premises liability, and general tort claims. <strong>The</strong>y have extensive<br />
experience defending toxic tort cases, including exposure to chemicals, mold, asbestos and lead.