For The Defense, November 2012 - DRI Today

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Product Liability exposure had decreased, and so the number of children with elevated BLLs dropped. Because this pool of potential plaintiffs was shrinking, the plaintiffs’ bar turned its attention to pursuing lead-based personal injury claims on behalf of children with BLLs of less than 10 μg/dL. The results were mixed. For example, in New York, which defines “lead poisoning” as 10 μg/dL, 24 The burdenthrust on health-care practitioners to reexamine their patient files to comply with these new guidelines will be significant. R.C.N.Y. §11.03, such claims were rejected in Arce v. New York City Housing Auth., 265 A.D.2d 281 (N.Y. App. Div. 1999), and Santiago v. New York City Bd. of Health, 8 A.D.3d 179 (N.Y. App. Div. 2004). Other New York courts permitted these claims to proceed. See Singer v. Morris Avenue Equities, 895 N.Y.S.2d 629 (Sup. Ct. Bronx County 2010); Rhys v. Rossi, 2009 Slip Op. 32056 (Sup. Ct. Queens County 2009); Peri v. City of New York, 8 Misc. 3d 369 (Sup. Ct. Bronx County 2005); Cunningham v. Spitz, 218 A.D.2d 639 (N.Y. App. Div. 1995). In 2005, the CDC Advisory Committee on Childhood Lead Poisoning Prevention (ACCLPP) officially requested that the CDC reduce the level of concern to below 10 μg/ dL. Ctrs. for Disease Control and Prevention, Preventing Lead Poisoning in Young Children (2005). The CDC did not do so. Instead, the CDC merely acknowledged that the 10 μg/dL level of concern had been misconstrued as a “definitive toxicologic threshold.” The CDC also expressed many concerns with the studies submitted by the Advisory Committee on Childhood Lead Poisoning Prevention, which supposedly demonstrated that lead levels below 10 μg/dL had an adverse effect on the health of children. Thus, although the CDC noted there was “evidence of adverse 64 ■ For The Defense ■ November 2012 health effects in children with BLL below 10 μg/dL,” it could not reach a “definitive conclusion about causation.” Ctrs. for Disease Control and Prevention, Appendix, A Review of Evidence of Adverse Health Effects Associated with Blood Lead Levels < 10 μg/dL in Children (2005). The CDC Abruptly Decides to Change Position on BLLs After 20 Years In January 2012, the Advisory Committee on Childhood Lead Poisoning Prevention submitted another report to the CDC asking that it reevaluate its guidance. Advisory Comm. on Childhood Lead Poisoning Prevention, Ctrs. for Disease Control and Prevention, Low Level Lead Exposure Harms Children: A Renewed Call for Primary Prevention (2012). In particular, the advisory committee called for eliminating using the term “level of concern” and requested that the CDC use a “reference value” to evaluate whether a BLL was in fact “elevated” or “not elevated.” The “reference value” would measure a child’s BLL against the population average or mean value established by the National Health and Nutrition Examination Survey data rather than using 10 μg/ dL. The advisory committee purported to eliminate the notion that some threshold existed when a child would begin to experience the negative health effects of lead exposure. In total, the advisory committee made 13 recommendations, including shifting away from testing and treating to preventing lead exposure. The May 16, 2012, CDC “response” stated that it intended to adopt all of the advisory committee’s recommendations, subject to available funding. Ctrs. for Disease Control and Prevention, Response to Advisory Committee on Childhood Lead Poisoning Prevention Recommendations in “Low Level Lead Exposure Harms Children: A Renewed Call for Primary Prevention” (May 16, 2012). Most notably, the CDC stated that “[s]ince no safe blood lead level in children has been identified, a blood lead ‘level of concern’ cannot be used to define individuals in need of intervention.” Consequently, it indicated that it would discontinue using the term “level of concern.” The CDC agreed that it would use a “reference value” based on the 97.5 percentile of the population BLL for children aged one to five years who were tested for lead. This currently is 5 μg/dL. The CDC intends to readjust the “reference value” every four years based on “the most recent population-based-blood-lead surveys conducted among children.” At first blush, the recent announcement by the CDC appears well intentioned. A child’s exposure to any toxin should be eliminated to the extent possible. Yet the benefits of a public health initiative must be balanced against its cost and, some may say, more importantly, its efficacy. Lead poisoning is nowhere near the public health concern that it was in the 1970s. We haven’t identified any evidence that children recently have experienced a spike in elevated BLLs that would prompt the CDC to act, and the CDC did not mention any either when it announced the decision. Thus, the timing of the CDC decision to rewrite this guidance after 20 years of silence raises questions. Earlier this year, the U.S. Congress slashed funding for the CDC lead- poisoning prevention program from $29 million to $2 million. It has been reported that the CDC intends to reduce the Lead Prevention Program work force by 20 people. Elizabeth Weise & Allison Young, Lead Poisoning Guidelines Revised; More Kids Labeled at Risk for Lead Poisoning, USA Today, May 16, 2012. Indeed, the CDC highlighted the reduced funding in the May 16 response to the recommendations by the Advisory Committee on Childhood Lead Poisoning Prevention by consistently stating that “full implementation” of many of its planned initiatives were “contingent on funding.” Perhaps it is a mere coincidence that the CDC decided suddenly to increase the number of children deemed to be “at risk” to almost 450,000 on the heels of dramatic budget cuts. Yet it is not unreasonable to question whether the CDC decision is, at least in part, an attempt to lessen the cutbacks or even to increase its funding. The Impact of the CDC Decision The CDC 1991 statement on lead poisoning screening, diagnosis, treatment, and follow- up care instantly identified a greater pool of children as having been exposed to potentially “dangerous” levels of lead. The plaintiffs’ bar consistently cites this CDC guidance as evidence of injury to a child. Not surprisingly, lead paint litigation in
New York City exploded in the mid-1990s. It would be unrealistic to expect that the May 16, 2012, CDC decision would not have a similar effect in the years to come. The plaintiffs’ bar already had pursued cases with BLLs of less than 10 μg/dL before May 16, 2012. Now, armed with the new CDC guidance, property owners and their insurers should be forewarned that an onslaught of new claims could be on the horizon. The defense bar also should prepare to handle the sensationalism that surely will follow. The most prominent plaintiffs’ expert in childhood lead-paint exposure cases, Dr. John Rosen, chair of the CDC Advisory Committee on Childhood Lead Poisoning Prevention when the CDC issued the 1985 and 1991 guidance statements, by his own admission has received hundreds of thousands of dollars acting as a plaintiff’s expert since 1991. After the CDC recently acted, several news articles quoted Dr. Rosen on the “enormous impact that a blood lead level of 5 can have forever on a child’s life and future academic success.” Weise & Young, supra. Christopher Portier with the CDC went even further, actually stating that the new CDC position “will save lives.” Id. These types of grandiose statements—whether by paid experts or others—are dangerous because they misinform the public and can influence a potential jury unfairly. Nothing in the May 16, 2012, CDC decision indicates that BLLs of less than 10 μg/dL have such significant adverse health effects, and the science hasn’t either. If the scientific proof did indicate that BBLs below 10 μg/dL did affect people significantly, then most adults who grew up in the 1960s and the 1970s with BLLs far in excess of 10 μg/dL would have neurocognitive issues today. Of course, that is simply not the case. The CDC has set the new “reference value” without having any scientific evidence establishing a causal relationship between that blood lead level “reference value” and adverse health effects. It is based solely on those children whose BLLs are in the top 2.5 percent of children tested. Perhaps ironically, the “reference value” is now tied to the success achieved by the Lead Prevention Program. As lead levels continue to drop, so will the “reference value.” In addition, the new CDC “reference value” effectively eliminates certainty about the time on the risk borne by insurers. It seems improbable that the “reference value” will stay at its current level of 5 μg/dL. In fact, if the historical trend to reduce BLLs continues, when the CDC readjusts the “reference value,” which the CDC will do four years from now, the new figure probably will be less than 5 μg/dL. Because the statute of limitations does not begin to run on a child’s claim until the child reaches the age of majority, the CDC policy may make any BLL potentially actionable level in the future. The CDC has opened a Pandora’s box to litigation against insurers that insure such risks or that have in the past. This policy will not just affect property owners and their insurers. The burden thrust on health-care practitioners to reexamine their patient files to comply with these new guidelines will be significant. Meredith Cohn, Maryland Doctors Probe Old Cases for Lead Exposure—CDC Guidelines Prompt Re- examination of Thousands of Children’s Medical Records, Baltimore Sun, May 17, 2012. The CDC decision raises another interesting issue whether healthcare practitioners will run afoul of their standard of care if they do not conduct retroactive searches. Health-care providers also need to be concerned whether the new CDC guidance parameters will call into question their previous actions. Where Do We Go from Here The May 16, 2012, decision by the CDC will have a profound effect on lead paint litigation because it now officially has sanctioned the notion that any BLL, including those under 10 μg/dL, can cause adverse health effects. This has made the job of plaintiffs’ attorneys much easier. Yet, this is certainly not the end for defendants. Instead, defense counsel in personal injury cases can work hard with their experts to evaluate children’s complete medical histories to determine whether an alternative medical cause may explain claimed injuries. They must continue to monitor and to evaluate all of the available scientific research and move to preclude research or file Frye and Daubert motions whenever appropriate. Even cases involving children with BLLs in excess of 10 μg/ dL have been lost by plaintiffs’ attorneys, and so defense attorneys must continue to press plaintiffs’ attorneys to “prove” their cases. As for insurers, most current liability insurance policies contain lead paint exclusions, thereby limiting an insurer’s potential liability for claims involving lead exposure. Given that the “reference value” for lead exposure is now half of the previous “level of concern,” however, individuals who were exposed to lead many years ago but who did not file lawsuits because their BLLs were under 10 μg/dL may now decide to do so. Assuming that they have not yet or only recently have reached the age of majority, they may still have a timely potential claim that reaches back many years. Thus, insurers that issued policies years ago that did not contain lead exclusions may find themselves subject to potential liability under policies that expired years ago. Insurers that continue to provide this coverage also may face an onslaught of claims. For The Defense ■ November 2012 ■ 65
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