Lead in a different light

Once accused of atrocity, KKI wins first trial over abatement study

Daily Record Legal Affairs Writer//December 23, 2014

Lead in a different light

Once accused of atrocity, KKI wins first trial over abatement study

By Danny Jacobs

//Daily Record Legal Affairs Writer

//December 23, 2014

It was a study that led to changes in how landlords in Maryland must deal with lead paint in their properties and became a template for federal guidelines. It was also a study compared by Maryland’s top court to the notorious Tuskegee syphilis study for exposing newborns and children to lead paint to determine the best abatement strategies.

More than two decades later, the Kennedy Krieger Institute’s Lead-Based Abatement Repair & Maintenance Study has a complicated legacy that continues to play out in state court.

“If you’re going to study lead dust, you don’t need to do it in occupied housing,” said Ruth Ann Norton, a founding member of the Maryland Lead Poisoning Prevention Commission. But at the time of the study, she said, “no one knew the best way to move forward.”

The Court of Appeals gave the green light to lawsuits over the study in 2001. Until last month, though, all lawsuits filed against Kennedy Krieger over the so-called R&M study either settled or were dismissed prior to trial.

That ended this fall. Trial began in mid-October, and in late November, a Baltimore City Circuit Court jury found Kennedy Krieger not liable for the lead poisoning of an East Baltimore man who participated in the study from infancy until he was 4 years old.

Ruth Ann Norton, who has dedicated her career to fighting lead poisoning, praised the work of the Kennedy Krieger Institute but acknowledged the ‘deep and longstanding concerns’ of the families involved in its study. (The Daily Record/Maximilian Franz)
Ruth Ann Norton, who has dedicated her career to fighting lead poisoning, praised the work of the Kennedy Krieger Institute but acknowledged the ‘deep and longstanding concerns’ of the families involved in its study. (The Daily Record/Maximilian Franz)

Jurors deliberated for more than three days following a 20-day trial.

“It sends a message that jurors understood what the study was about,” said Barry C. Goldstein, partner at Waranch & Brown LLC in Lutherville and a lawyer for Kennedy Krieger. “It was a good study that helped children and made a difference.”

Mary McNamara Koch, a lawyer for plaintiff Cecil Harris III, said an appeal is being planned but declined to discuss the grounds.

“We’re going to go through the transcript,” said Koch, of Murphy, Falcon & Murphy in Baltimore. “We’re processing everything that happens and taking a step back.”

The Murphy firm has several other lawsuits filed against Kennedy Krieger over the R&M study as well as a class-action lawsuit, according to Koch. She added that she does not expect the verdict in Harris’ case to affect the other litigation “in any way.”

Levels of intervention

Launched in 1993, the R&M study was funded by the Environmental Protection Agency and the Department of Housing and Urban Development to “evaluate housing intervention strategies for reducing lead dust and children’s exposure to lead dust,” according to court documents filed by Kennedy Krieger.

The study involved more than 100 homes divided into five groups. Two groups were control groups – one with homes built after 1978, when lead was banned from paint, the other with homes that previously underwent “comprehensive lead abatement,” according to Kennedy Krieger.

Each of the three test groups had various levels of “interventions,” or lead-paint abatements. Harris’ home, in the 1100 block of Rutland Avenue, was in the group that received the most work, including new vinyl windows, new trim and non-leaded paint around the windows and “wet scraping” (to prevent the spread of toxic dust) of baseboards, doors and door frames, according to Kennedy Krieger.

“At the conclusion of R&M study, all houses receiving R&M interventions demonstrated significant reductions in the lead dust loadings and concentration,” lawyers for Kennedy Krieger wrote in court documents.

But the homes still had lead dust, Harris’ lawsuit alleges, and the study “purposefully did not remove” all of the lead in the test homes in order to determine its effect on its test subjects, all of whom were black children between the ages of five months and 4 years old at the time of their enrollment and otherwise physically and mentally healthy.

“The children enrolled in the R&M study, therefore, were KKI’s canaries in the coal mines used by KKI to ascertain the effectiveness of partial lead reduction on blood lead levels,” the lawsuit states.

The lawsuit also alleges nothing about the research was designed to treat the test subjects for lead poisoning or prevent their exposure to lead.

Similar actions have been filed against Kennedy Krieger for almost two decades. Two lawsuits in the mid-to-late 1990s were dismissed prior to trial, with judges ruling Kennedy Krieger had no legal duty to warn the study’s subjects of the presence of lead dust. But the state’s highest court reinstated those actions in 2001, finding such studies create “special relationships” between the research program and test subject and rejecting the parents’ signed consent forms as a defense.

The Court of Appeals’ initial opinion offered a blistering criticism of the study, including the comparison to the Tuskegee syphilis experiment. On a motion for reconsideration, the court clarified that its opinion only determined Kennedy Krieger had a legal duty toward the study’s subjects and that it was up to the trial courts to determine whether the study was beneficial or harmful.

High-risk area

Why Kennedy Krieger was studying lead-paint abatement in the first place goes back to a lead-paint crisis in Baltimore in the early 1990s. The EPA had ranked the city as the No. 1 site of lead poisoning cases in the United States, according to Norton, who is now president and CEO of the Green & Healthy Homes Initiative, a Baltimore-based nonprofit working to eliminate childhood lead poisoning. (The GHHI was not involved with the study nor the Harris trial.)

The rate of blood-lead levels, measured in micrograms per deciliter, was 10 to 15 times higher in Baltimore than the national average at the time, according to a 2004 law review article on the study. The author, Joanne Pollak, was then vice president and general counsel for the Johns Hopkins Health System Corp.

In certain high-risk neighborhoods, the Maryland Department of the Environment reported as many as 60 percent of tested children had a blood-lead level above 10, Pollak wrote. Under the Centers for Disease Control’s standards at the time, a level of 10 was considered a cause for concern. (As of July 2012, the CDC changed the level for children so that there is no safe level for lead exposure, and a blood-lead level of 5 indicates a child requires case management.)

The home where plaintiff Cecil Harris lived from infancy to age 4. (The Daily Record/Maximilian Franz)
The home where plaintiff Cecil Harris lived from infancy to age 4. (The Daily Record/Maximilian Franz)

Meanwhile, the city was “paralyzed” by lead-paint lawsuits “jamming the system,” Norton said. Property owners were outraged by the litigation but did not do anything to stop the lawsuits because there was no risk for them breaking the law, she said. The city found hundreds of lead-paint violations in 1993 and 1994 but prosecuted none of them, she said.

“The message to landlords was not, ‘go get into compliance,’” Norton said. Irresponsible landlords were “living this Russian roulette to see if they would get sued. And if they did, they did not have insurance.”

The Kennedy Krieger study, she said, was trying to find the “base level” needed to reduce the hazard. The study led to a 1994 state law that required landlords to register any units built before 1950 into a statewide registry, notify tenants of the risk of exposure to lead and certify a unit passed a dust lead test.

“The state’s mandatory requirements for lead risk reduction were similar to the Level I and II [repair and maintenance] interventions,” Pollak wrote in her article on the R&M study.

Whether from legislation, additional litigation or better education of landlords as well as tenants, the number of lead-poisoned children in Baltimore has dropped markedly.

Norton said that since the time of the study, there has been a 98 percent reduction in the number of Baltimore children under the age of 6 found to have lead exposure.

“The majority of owners now understand the closer to lead-free they can get in their units, the better for their clients, the better for business and the better for their moral compass,” she said.

Toxic legacy

Cecil Harris moved into the Rutland Avenue house in August 1993, a month after he was born. He was recruited into the program in June 1994. Kennedy Krieger’s contract with his mother, Kimberly Smith, said the home was “lead-paint safe,” according to the lawsuit. But Harris alleges that was not true.

When the study began, Harris had a blood-lead level of 5 or 6, the complaint states. Six months later, his level was 9. By December 1995, his level was 20 and reached as high as 26. (Harris moved out of the home in 1997.)

Had Harris and his mother known the dangers of living in the house, the lawsuit alleges, they “would not have participated in the R&M study … would have timely vacated the Rutland property and would have sought timely medical treatment and monitoring, and Plaintiff would not have sustained permanent and debilitating injuries.”

Kennedy Krieger countered that Smith gave her consent to participate in the study, and the agreement said repairs to the house “were not intended, or expected to completely remove exposure to lead,” according to court documents.

“Ms. Smith acknowledged and understood that participation in the study was voluntary and she could withdraw her consent for her children’s participation at any time,” Kennedy Krieger’s lawyers wrote.

During the 20-day trial before Judge Lawrence P. Fletcher-Hill, Kennedy Krieger provided evidence that the institute did not harm Harris, according to Michael A. Brown, a lawyer for the defendant.

“We were able to bring out evidence that showed KKI was attempting to help the lives of children,” said Brown, a principal at Miles & Stockbridge P.C. in Baltimore.

Saul E. Kerpelman, whose Baltimore firm represents lead-paint victims, has his own case against Kennedy Krieger scheduled for trial in February. He observed the Harris trial and called the result an “aberration” in part because the jury was not allowed to consider the fraud and intentional misrepresentation counts.

“What better definition of fraud than Kennedy Krieger didn’t warn moms that their children could get lead poisoning?” he asked.

A month before the trial began, lawyers for Cecil Harris wrote in a court filing that their client was 21 years old, “cannot obtain his GED and likely will be, at best, relegated to a life of sporadic and menial jobs” as a result of his exposure to lead. In September 2013, he pleaded guilty to one count of robbery was sentenced to 10 years in prison with all but 18 month suspended.

“I don’t know why they don’t do the right thing and make the kids whole again,” Kerpelman said of Kennedy Krieger.

Norton, who has dedicated her career to fighting lead poisoning, praised the work of Kennedy Krieger and said she was concerned the litigation could negatively impact “a good institution.” But she also acknowledged the “deep and longstanding concerns” of the families involved the R&M study.

“The study design was clearly flawed and they may still see litigation,” Norton said.

Lead poisoning, she added, “is a toxic legacy our city is trying to dig out of.”

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


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