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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Lead—A Historical Perspective<br />
Lead is a toxin, yet it is ubiquitous. Ctrs. for<br />
Disease Control and Prevention, Preventing<br />
Lead Poisoning in Young Children (1985).<br />
It can be found in the air, soil, and drinking<br />
water. Lead’s most publicized—or sensationalized—source<br />
remains lead-based<br />
paint, which is often found in homes and<br />
apartment buildings constructed before<br />
the 1960s. Lead was formerly also a component<br />
of gasoline. <strong>The</strong> environmental saturation<br />
of lead has been reduced over the<br />
years, primarily by eliminating leaded gasoline<br />
and removing lead-based paint for<br />
consumer purchase, although it remains<br />
ever present. Thus, it is likely that most,<br />
if not all, people have some lead in their<br />
bodies.<br />
Lead exposure in young children has<br />
driven a cottage industry of personal injury<br />
litigation for the better part of the past half<br />
century. <strong>The</strong> plaintiffs’ bar has historically<br />
relied on the CDC guidelines, including<br />
the levels of intervention and concern that<br />
they identify, to substantiate these claims.<br />
<strong>The</strong>re is no dispute that when the amount<br />
of lead in the body reaches certain levels it<br />
can in some, but not all, cases cause adverse<br />
health effects. Battle lines form between<br />
the plaintiffs’ bar on one side and home<br />
owners, their insurers, and the defense<br />
bar on the other with each side disputing<br />
when a BLL becomes legally actionable<br />
and whether a particular child with a<br />
particular BLL actually sustained injuries.<br />
As discussed more below, the recent CDC<br />
decision about acceptable BLLs has likely<br />
reshaped that legal landscape.<br />
<strong>The</strong> 1975–1991 CDC Statements on<br />
Preventing Lead Poisoning in Children<br />
<strong>The</strong> CDC historically has provided a<br />
“standard of care” for health-care providers<br />
to guide them in evaluating children for<br />
the risk of lead exposure, diagnosing children<br />
with elevated BLLs, and treating the<br />
condition. In 1975, the CDC issued a formal<br />
statement on the screening, diagnosis,<br />
treatment, and follow- up care of children<br />
with increased lead absorption or lead poisoning.<br />
Ctrs. for Disease Control and Prevention,<br />
Increased Lead Absorption and<br />
Lead Poisoning in Young Children (1975).<br />
It defined “lead poisoning” as a blood lead<br />
level equal to or greater than 80 μg/dL<br />
whole blood. “Undue or increased lead<br />
absorption” was defined as a BLL in excess<br />
of 30 μg/dL. <strong>The</strong> CDC recommended specific<br />
treatment plans for children based on<br />
their BLLs. <strong>The</strong> CDC also recommended<br />
that all children aged one to five years<br />
who lived in or frequently visited housing<br />
units constructed before the 1960s should<br />
be screened for elevated BLLs at least once<br />
per year.<br />
Notwithstanding the 1975 CDC statement,<br />
BLLs in young children remained<br />
high by today’s standards for many years.<br />
A 1970–1976 study of 178,533 children in<br />
New York City revealed that the geometric<br />
mean BLL ranged from 20 μg/dL to 30 μg/<br />
dL depending on the race of the child. Billick,<br />
Relation of Pediatric Blood Lead Levels<br />
to Lead in Gasoline (1980). Thus, legislation<br />
took effect in 1975 mandating phasing<br />
out the sale of leaded gasoline over<br />
the next 10 years. Similar legislation was<br />
passed by 1978 reducing lead in paint. <strong>The</strong><br />
CDC updated the lead poisoning screening,<br />
diagnosis, treatment, and follow- up<br />
care guidance in 1978 and reiterated that a<br />
BLL of 30 μg/dL was “elevated” for children<br />
aged one to six years. Ctrs. for Disease Control<br />
and Prevention, Preventing Lead Poisoning<br />
in Young Children (1978).<br />
<strong>The</strong> phaseout of leaded gasoline and<br />
lead-based paint had a profound effect<br />
on BLLs. Data confirmed that the overall<br />
mean BLL in the population dropped from<br />
14.6 μg/dL to 9.2 μg/dL in the late 1970s.<br />
Annest, Trend in the Blood-Lead Levels of<br />
the U.S. Population: <strong>The</strong> Second National<br />
Health and Nutrition Examination Survey<br />
1976–1980 (1983). So the focus shifted<br />
from eliminating new sources of lead to<br />
removing old sources such as existing leadbased<br />
paint in residential units. In 1982,<br />
for example, the New York City Council<br />
adopted Local Law 1, which obligated<br />
owners of multi- unit dwellings to remove<br />
or cover paint and other surfaces that contained<br />
more than 0.7 milligrams of lead per<br />
square centimeter or 0.5 percent of metallic<br />
lead. See N.Y. Admin. Code §27-<strong>2012</strong>(h)(1).<br />
<strong>The</strong> CDC recognized by 1985 that “[p]rogress<br />
ha[d] been made.” Yet, it reduced the<br />
federal definition of an “elevated” BLL<br />
from 30 μg/dL to 25 μg/dL. Ctrs. for Disease<br />
Control and Prevention, Preventing<br />
Lead Poisoning in Young Children (1985).<br />
<strong>The</strong> CDC revised the guidance on lead<br />
poisoning screening, diagnosis, treatment,<br />
<strong>The</strong> CDCintends to readjust<br />
the “reference value” every<br />
four years based on “the<br />
most recent populationbased-blood-lead<br />
surveys<br />
conducted among children.”<br />
and follow- up care once again in 1991 and<br />
reduced the level of intervention to 15 μg/<br />
dL. Ctrs. for Disease Control and Prevention,<br />
Preventing Lead Poisoning in Young<br />
Children (1991). It also adopted a “level of<br />
concern” of 10 μg/dL. BLLs of less than 10<br />
μg/dL were “not indicative of lead poisoning,”<br />
although the CDC noted that “[s]ome<br />
adverse health effects have been documented<br />
at BLLs at least as low as 10 μg/<br />
dL.” BLLs ranging from 10 μg/dL to 14 μg/<br />
dL were classified as “in the border zone,”<br />
while children with BLLs of greater than<br />
15 μg/dL were further categorized based<br />
on the associated risks. Health-care providers<br />
received specific instructions on<br />
how they should care for and treat children<br />
based on their BLLs. This 1991 CDC<br />
guidance to health-care providers became<br />
the “standard of care” for childhood lead<br />
screening, diagnosis, and treatment for the<br />
next 20 years.<br />
<strong>The</strong> Plaintiffs’ Bar Pushes to<br />
Redefine “Lead Poisoning”<br />
<strong>The</strong> New York Times reported in July 2008<br />
that lead cases in New York City had fallen<br />
more than 90 percent since 1995. Sewell<br />
Chan, Lead Poisoning Cases Decline, N.Y.<br />
Times, July 8, 2008. In New Jersey, no more<br />
than 2.7 percent of children tested in 2004<br />
had a BLL greater than 10 μg/dL. Childhood<br />
Lead Poisoning in New Jersey—Annual Report<br />
Fiscal Year 2004. Studies also showed<br />
that almost 97 percent of those children residing<br />
in a “high-risk” lead environment<br />
did not have an elevated BLL. Jones, Trends<br />
in Blood Lead Levels and Blood Lead Testing<br />
among US Children Aged 1 to 5 Years,<br />
1988–2004 (2007). In short, the risk of lead<br />
<strong>For</strong> <strong>The</strong> <strong>Defense</strong> ■ <strong>November</strong> <strong>2012</strong> ■ 63