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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New York City exploded in the mid-1990s.<br />
It would be unrealistic to expect that the<br />
May 16, <strong>2012</strong>, CDC decision would not have<br />
a similar effect in the years to come. <strong>The</strong><br />
plaintiffs’ bar already had pursued cases<br />
with BLLs of less than 10 μg/dL before May<br />
16, <strong>2012</strong>. Now, armed with the new CDC<br />
guidance, property owners and their insurers<br />
should be forewarned that an onslaught<br />
of new claims could be on the horizon.<br />
<strong>The</strong> defense bar also should prepare<br />
to handle the sensationalism that surely<br />
will follow. <strong>The</strong> most prominent plaintiffs’<br />
expert in childhood lead-paint exposure<br />
cases, Dr. John Rosen, chair of the<br />
CDC Advisory Committee on Childhood<br />
Lead Poisoning Prevention when the CDC<br />
issued the 1985 and 1991 guidance statements,<br />
by his own admission has received<br />
hundreds of thousands of dollars acting<br />
as a plaintiff’s expert since 1991. After the<br />
CDC recently acted, several news articles<br />
quoted Dr. Rosen on the “enormous impact<br />
that a blood lead level of 5 can have forever<br />
on a child’s life and future academic success.”<br />
Weise & Young, supra. Christopher<br />
Portier with the CDC went even further,<br />
actually stating that the new CDC position<br />
“will save lives.” Id. <strong>The</strong>se types of grandiose<br />
statements—whether by paid experts<br />
or others—are dangerous because they<br />
misinform the public and can influence<br />
a potential jury unfairly. Nothing in the<br />
May 16, <strong>2012</strong>, CDC decision indicates that<br />
BLLs of less than 10 μg/dL have such significant<br />
adverse health effects, and the science<br />
hasn’t either. If the scientific proof did indicate<br />
that BBLs below 10 μg/dL did affect<br />
people significantly, then most adults who<br />
grew up in the 1960s and the 1970s with<br />
BLLs far in excess of 10 μg/dL would have<br />
neurocognitive issues today. Of course, that<br />
is simply not the case.<br />
<strong>The</strong> CDC has set the new “reference<br />
value” without having any scientific evidence<br />
establishing a causal relationship<br />
between that blood lead level “reference<br />
value” and adverse health effects. It is based<br />
solely on those children whose BLLs are in<br />
the top 2.5 percent of children tested. Perhaps<br />
ironically, the “reference value” is now<br />
tied to the success achieved by the Lead<br />
Prevention Program. As lead levels continue<br />
to drop, so will the “reference value.”<br />
In addition, the new CDC “reference<br />
value” effectively eliminates certainty<br />
about the time on the risk borne by insurers.<br />
It seems improbable that the “reference<br />
value” will stay at its current level<br />
of 5 μg/dL. In fact, if the historical trend<br />
to reduce BLLs continues, when the CDC<br />
readjusts the “reference value,” which the<br />
CDC will do four years from now, the new<br />
figure probably will be less than 5 μg/dL.<br />
Because the statute of limitations does<br />
not begin to run on a child’s claim until<br />
the child reaches the age of majority, the<br />
CDC policy may make any BLL potentially<br />
actionable level in the future. <strong>The</strong> CDC has<br />
opened a Pandora’s box to litigation against<br />
insurers that insure such risks or that have<br />
in the past.<br />
This policy will not just affect property<br />
owners and their insurers. <strong>The</strong> burden<br />
thrust on health-care practitioners to<br />
reexamine their patient files to comply with<br />
these new guidelines will be significant.<br />
Meredith Cohn, Maryland Doctors Probe<br />
Old Cases for Lead Exposure—CDC Guidelines<br />
Prompt Re- examination of Thousands<br />
of Children’s Medical Records, Baltimore<br />
Sun, May 17, <strong>2012</strong>. <strong>The</strong> CDC decision raises<br />
another interesting issue whether healthcare<br />
practitioners will run afoul of their<br />
standard of care if they do not conduct retroactive<br />
searches. Health-care providers<br />
also need to be concerned whether the new<br />
CDC guidance parameters will call into<br />
question their previous actions.<br />
Where Do We Go from Here<br />
<strong>The</strong> May 16, <strong>2012</strong>, decision by the CDC will<br />
have a profound effect on lead paint litigation<br />
because it now officially has sanctioned<br />
the notion that any BLL, including<br />
those under 10 μg/dL, can cause adverse<br />
health effects. This has made the job of<br />
plaintiffs’ attorneys much easier.<br />
Yet, this is certainly not the end for defendants.<br />
Instead, defense counsel in personal<br />
injury cases can work hard with their<br />
experts to evaluate children’s complete<br />
medical histories to determine whether<br />
an alternative medical cause may explain<br />
claimed injuries. <strong>The</strong>y must continue to<br />
monitor and to evaluate all of the available<br />
scientific research and move to preclude<br />
research or file Frye and Daubert motions<br />
whenever appropriate. Even cases involving<br />
children with BLLs in excess of 10 μg/<br />
dL have been lost by plaintiffs’ attorneys,<br />
and so defense attorneys must continue to<br />
press plaintiffs’ attorneys to “prove” their<br />
cases.<br />
As for insurers, most current liability<br />
insurance policies contain lead paint exclusions,<br />
thereby limiting an insurer’s potential<br />
liability for claims involving lead<br />
exposure. Given that the “reference value”<br />
for lead exposure is now half of the previous<br />
“level of concern,” however, individuals<br />
who were exposed to lead many years<br />
ago but who did not file lawsuits because<br />
their BLLs were under 10 μg/dL may now<br />
decide to do so. Assuming that they have<br />
not yet or only recently have reached the<br />
age of majority, they may still have a timely<br />
potential claim that reaches back many<br />
years. Thus, insurers that issued policies<br />
years ago that did not contain lead exclusions<br />
may find themselves subject to potential<br />
liability under policies that expired<br />
years ago. Insurers that continue to provide<br />
this coverage also may face an onslaught of<br />
claims.<br />
<strong>For</strong> <strong>The</strong> <strong>Defense</strong> ■ <strong>November</strong> <strong>2012</strong> ■ 65