For The Defense, November 2012 - DRI Today

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Product Liability The CDC Opens Pandora’s Box By Paul S. Danner and William D. Wilson Federal Policy Change Could Unleash Lead Paint Poisoning Litigation A discussion of the previous CDC guidance and its critical role in litigation, the possible motivations for deciding to use a reference value to define what constitutes an elevated blood lead level in children, and the serious concerns that defendants and their insurers now face in defending these cases. On May 16, 2012, the Centers for Disease Control and Prevention (CDC) officially decided to eliminate the use of the term “level of concern” and instead adopt a “reference value” to identify children with “elevated” blood lead levels (BLLs). This change is expected to cause a seismic shift in lead paint litigation. The previous guidance from the CDC identified a BLL of 15 micrograms per deciliter (μg/dL) as requiring medical intervention. The CDC referred to this as the “action level.” It also identified 10 μg/dL as the CDC “level of concern.” The level of concern figure became a de facto threshold for proving lead poisoning in certain jurisdictions. The new CDC methodology eliminates the distinction between the action level and the level of concern. The CDC now determines what constitutes an elevated lead level based on the results of the National Health and Nutrition Examination Survey (NHANES), which tracks, among other things, lead levels in survey participants. The new “reference value” is based on the lead levels of children ages one to five who have BLLs in the top 2.5 percent of children tested. This figure currently stands at 5 μg/ dL, which is one-half of the former CDC level of concern. Childhood mean BLLs have dropped dramatically over the years and, in turn, the number of lead exposure cases has decreased. This is due, in large part, to the preventative measures that have been put into place over the past few decades such as eliminating lead in paint and gasoline. Although lead exposure has decreased significantly, the new CDC position instantly increased the population of children with “elevated” BLLs by 600 percent from approximately 77,000 to almost 450,000. In the process, the CDC most assuredly reenergized the plaintiffs’ bar to find these new potential litigants and to initiate lawsuits. This article discusses the previous CDC guidance and its critical role in lead paint litigation, the possible motivations for deciding to use a reference value to define what constitutes an elevated blood lead level in children, and the serious concerns that defendants and their insurance companies now face in defending lead paint cases. 62 ■ For The Defense ■ November 2012 ■ Paul S. Danner and William S. Wilson are partners in the law firm of Mound Cotton Wollan and Greengrass. From the firm’s New Jersey office, they primarily defend insurance and reinsurance companies and other commercial clients in matters involving insurance coverage disputes, contract disputes, and product liability, construction liability, employer liability, premises liability, and general tort claims. They have extensive experience defending toxic tort cases, including exposure to chemicals, mold, asbestos and lead.
Lead—A Historical Perspective Lead is a toxin, yet it is ubiquitous. Ctrs. for Disease Control and Prevention, Preventing Lead Poisoning in Young Children (1985). It can be found in the air, soil, and drinking water. Lead’s most publicized—or sensationalized—source remains lead-based paint, which is often found in homes and apartment buildings constructed before the 1960s. Lead was formerly also a component of gasoline. The environmental saturation of lead has been reduced over the years, primarily by eliminating leaded gasoline and removing lead-based paint for consumer purchase, although it remains ever present. Thus, it is likely that most, if not all, people have some lead in their bodies. Lead exposure in young children has driven a cottage industry of personal injury litigation for the better part of the past half century. The plaintiffs’ bar has historically relied on the CDC guidelines, including the levels of intervention and concern that they identify, to substantiate these claims. There is no dispute that when the amount of lead in the body reaches certain levels it can in some, but not all, cases cause adverse health effects. Battle lines form between the plaintiffs’ bar on one side and home owners, their insurers, and the defense bar on the other with each side disputing when a BLL becomes legally actionable and whether a particular child with a particular BLL actually sustained injuries. As discussed more below, the recent CDC decision about acceptable BLLs has likely reshaped that legal landscape. The 1975–1991 CDC Statements on Preventing Lead Poisoning in Children The CDC historically has provided a “standard of care” for health-care providers to guide them in evaluating children for the risk of lead exposure, diagnosing children with elevated BLLs, and treating the condition. In 1975, the CDC issued a formal statement on the screening, diagnosis, treatment, and follow- up care of children with increased lead absorption or lead poisoning. Ctrs. for Disease Control and Prevention, Increased Lead Absorption and Lead Poisoning in Young Children (1975). It defined “lead poisoning” as a blood lead level equal to or greater than 80 μg/dL whole blood. “Undue or increased lead absorption” was defined as a BLL in excess of 30 μg/dL. The CDC recommended specific treatment plans for children based on their BLLs. The CDC also recommended that all children aged one to five years who lived in or frequently visited housing units constructed before the 1960s should be screened for elevated BLLs at least once per year. Notwithstanding the 1975 CDC statement, BLLs in young children remained high by today’s standards for many years. A 1970–1976 study of 178,533 children in New York City revealed that the geometric mean BLL ranged from 20 μg/dL to 30 μg/ dL depending on the race of the child. Billick, Relation of Pediatric Blood Lead Levels to Lead in Gasoline (1980). Thus, legislation took effect in 1975 mandating phasing out the sale of leaded gasoline over the next 10 years. Similar legislation was passed by 1978 reducing lead in paint. The CDC updated the lead poisoning screening, diagnosis, treatment, and follow- up care guidance in 1978 and reiterated that a BLL of 30 μg/dL was “elevated” for children aged one to six years. Ctrs. for Disease Control and Prevention, Preventing Lead Poisoning in Young Children (1978). The phaseout of leaded gasoline and lead-based paint had a profound effect on BLLs. Data confirmed that the overall mean BLL in the population dropped from 14.6 μg/dL to 9.2 μg/dL in the late 1970s. Annest, Trend in the Blood-Lead Levels of the U.S. Population: The Second National Health and Nutrition Examination Survey 1976–1980 (1983). So the focus shifted from eliminating new sources of lead to removing old sources such as existing leadbased paint in residential units. In 1982, for example, the New York City Council adopted Local Law 1, which obligated owners of multi- unit dwellings to remove or cover paint and other surfaces that contained more than 0.7 milligrams of lead per square centimeter or 0.5 percent of metallic lead. See N.Y. Admin. Code §27-2012(h)(1). The CDC recognized by 1985 that “[p]rogress ha[d] been made.” Yet, it reduced the federal definition of an “elevated” BLL from 30 μg/dL to 25 μg/dL. Ctrs. for Disease Control and Prevention, Preventing Lead Poisoning in Young Children (1985). The CDC revised the guidance on lead poisoning screening, diagnosis, treatment, The CDCintends to readjust the “reference value” every four years based on “the most recent populationbased-blood-lead surveys conducted among children.” and follow- up care once again in 1991 and reduced the level of intervention to 15 μg/ dL. Ctrs. for Disease Control and Prevention, Preventing Lead Poisoning in Young Children (1991). It also adopted a “level of concern” of 10 μg/dL. BLLs of less than 10 μg/dL were “not indicative of lead poisoning,” although the CDC noted that “[s]ome adverse health effects have been documented at BLLs at least as low as 10 μg/ dL.” BLLs ranging from 10 μg/dL to 14 μg/ dL were classified as “in the border zone,” while children with BLLs of greater than 15 μg/dL were further categorized based on the associated risks. Health-care providers received specific instructions on how they should care for and treat children based on their BLLs. This 1991 CDC guidance to health-care providers became the “standard of care” for childhood lead screening, diagnosis, and treatment for the next 20 years. The Plaintiffs’ Bar Pushes to Redefine “Lead Poisoning” The New York Times reported in July 2008 that lead cases in New York City had fallen more than 90 percent since 1995. Sewell Chan, Lead Poisoning Cases Decline, N.Y. Times, July 8, 2008. In New Jersey, no more than 2.7 percent of children tested in 2004 had a BLL greater than 10 μg/dL. Childhood Lead Poisoning in New Jersey—Annual Report Fiscal Year 2004. Studies also showed that almost 97 percent of those children residing in a “high-risk” lead environment did not have an elevated BLL. Jones, Trends in Blood Lead Levels and Blood Lead Testing among US Children Aged 1 to 5 Years, 1988–2004 (2007). In short, the risk of lead For The Defense ■ November 2012 ■ 63
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