For The Defense, November 2012 - DRI Today

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