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‘Slight’ lead-paint damages still compensable, court rules

Heather Cobun//Daily Record Legal Affairs Writer//August 21, 2015

‘Slight’ lead-paint damages still compensable, court rules

By Heather Cobun

//Daily Record Legal Affairs Writer

//August 21, 2015

Lead-paint plaintiffs’ attorneys say plan to ask the Court of Special Appeals to report an opinion issued Thursday striking down what they call a common defense argument in lead-paint cases.

An unanimous appellate panel held that a loss of IQ points, even a small amount, is a compensable injury, a fact not changed by a plaintiff who has an already low IQ.

The U.S. Centers for Disease Control, in the late 1990s, considered a blood-lead level above 10 to be cause for concern. As of July 2012, the CDC changed the level for children, saying there is no safe level for lead exposure in children and considers a blood-lead level of 5 to indicate that a child requires case management.

“The opinion sort of verifies what the CDC said,” said Scott E. Nevin, a lawyer for appellant Shanika D. Crafton, a woman who alleged she was exposed to lead paint in her Baltimore home from birth until she was a little over 2 years old in the early 1990s.

‘Injury is injury’

Crafton’s blood-lead levels were tested twice while living in the home and showed a level of 6, according to Nevin, with the Law Office of Peter T. Nicholl in Baltimore.

“It’s permanent brain damage we’re talking about,” he said. “Injury is injury.”

Veteran lead-paint litigator Saul E. Kerpelman said the defense verdict an ‘aberration,’ noting the jury was not allowed to consider fraud and intentional misrepresentation counts against KKI. (File photo)
‘Any injury is compensable and it’s up to the jury to determine how much the injury is worth,’ says Saul E. Kerpelman, a veteran plaintiffs’ attorney in lead-paint cases. (File photo)

Shrinking lead levels have caused lead-paint plaintiffs to have less severe injuries compared to cases from decades ago, according to Nevin.

Crafton, testimony showed, had a measured IQ of 62 and, but for her lead-paint exposure, would have had an IQ of 66. Because her IQ would have been below 70 and she would be considered mentally retarded even without the exposure, a Baltimore City Circuit Court judge granted a motion for judgment by the defendants.

“To say someone with low intelligence can’t be injured by lead? It’s ridiculous,” Nevin said.

The Court of Special Appeals agreed, finding that an injury, no matter how slight, can be compensated and the defendant must take the plaintiff as they find her.

The court also noted “common sense tells us that losing any amount of IQ points is never desirable” and even a small loss may cause some functional impairment.

“The loss of 4 IQ points might mean more to Shanika Crafton than the same loss would mean to Albert Einstein,” Judge Daniel A. Friedman wrote for the appellate panel.

Common defense argument

The argument that the effects of lead have been slight is a common one made by defendants and accepted by some trial court judges, according to Saul E. Kerpelman, a veteran lead-paint plaintiffs’ attorney not involved in the Crafton case.

Defense attorneys want to focus the discussion on IQ points and not the full range of faculties which could have been impacted, Kerpelman said.

“Any injury is compensable and it’s up to the jury to determine how much the injury is worth,” he said.

Nevin said plaintiffs like Crafton have still sustained a loss, and it was “insulting” that the trial judge only considered the slight drop in IQ.

“It’s a common tactic and I think it’s important that judges recognize that when a plaintiff proves an injury, no matter how slight, it should go to the jury,” Nevin said.

Kerpelman said the appellate court ruling in the Crafton case was a victory for plaintiffs’ attorneys but expressed frustration that it is unreported and cannot be cited as precedent. He and other lead-paint attorneys plan to formally request that the opinion be reported.

“Why, when we get a small victory, do they make it unpublished?” he asked.

Attorneys at Goodell, Devries, Leech & Gray LLP in Baltimore, who represented the defendants, could not be reached for comment Friday.

The case is Shanika D. Crafton v. Elliot Dackman, et al., No. 0406, Sept. Term 2014.

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