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Grimes opened door to suits over KKI’s lead-abatement study

That Cecil Harris could even bring his lawsuit against Kennedy Krieger Institute’s Lead-Based Abatement Repair & Maintenance Study is because of a 2001 Court of Appeals opinion often cited by plaintiffs’ lawyers for its sharply worded criticism of the research.

In Ericka Grimes v. Kennedy Krieger Institute Inc. and Myron Higgins, et al., v. Kennedy Krieger Institute, now known simply as Grimes, the state’s top court vacated motions for summary judgment granted to Kennedy Krieger in two lawsuits filed by participants in the study.

Then-Judge Dale R. Cathell, writing for a unanimous court in August 2001, held Kennedy Krieger’s contract with children in the study constituted a “special relationship,” meaning the institute had a legal duty toward the children and that the plaintiffs could pursue allegations of negligence.

“We hold that in Maryland a parent, appropriate relative, or other applicable surrogate, cannot consent to the participation of a child or other person under legal disability in nontherapeutic research or studies in which there is any risk of injury or damage to the health of the subject,” Cathell wrote near the end of his 91-page opinion.

But it was language near the beginning of the opinion that has made Grimes a rallying point for plaintiffs’ lawyers. In describing the study, Cathell wrote it “differs in large degree from but presents similar problems” as the Tuskegee syphilis experiment, tests exposing soldiers and Navajo miners to radiation, and the administering of LSD to soldiers by the CIA and Army in the 1950s and 1960s. Cathell also compared the study to similar research where test subjects were intentionally exposed to disease or poisonous substances for research purposes, including in the Buchenwald concentration camp during World War II.

“Otherwise healthy children, in our view, should not be enticed into living in, or remaining in, potentially lead-tainted housing and intentionally subjected to a research program, which contemplates the probability, or even the possibility, of lead poisoning…,” Cathell wrote.

Then-Judge Irma S. Raker, in a concurring opinion, wrote she agreed a “special relationship existed” between Kennedy Krieger and the research subjects but could not join “the majority’s sweeping factual determinations” about the risks of the study nor its comparison of Kennedy Krieger’s study to “extreme historical abuses.”

Kennedy Krieger filed a motion for reconsideration. In a per curiam opinion issued in October 2001, the court acknowledged it attempted to address issues of first impression before it “in a full and exhaustive manner” but the judges’ legal opinion was narrow.

“The only conclusion that we reached as a matter of law was that, on the record currently before us, summary judgment was improperly granted,” the court wrote, adding it was up to the trial court to determine whether the study had any benefits.

Raker filed a dissenting opinion, reiterating her views in her concurring opinion. She criticized the majority for making “declarations of public policy,” saying that should be left to the General Assembly.

“If a change is to be made in the State’s policy of regulating research studies, unless clearly presented to the court, it should be made by legislative enactment,” Raker wrote.

Related: Lead in a different light