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Kennedy Krieger win in lead-paint abatement study lawsuit affirmed

The Court of Special Appeals has affirmed rulings made at a 2014 trial in which the Kennedy Krieger Institute was found not liable by a jury for its Lead-Based Paint Abatement and Repair and Maintenance Study.

The lawsuit was the first case regarding the R&M study, which exposed newborns and children to lead paint to determine the best abatement strategies, to make it to trial after the Court of Appeals held in 2001 that the plaintiffs could pursue allegations of negligence.

Cecil Harris III was enrolled in the study from when he was infant until he was 4 years old in the early-to-mid-1990s and alleged in his suit, filed in Baltimore City Circuit Court, that he was exposed to harmful levels of lead that caused irreparable brain damage, according to the Court of Special Appeals opinion.

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.

The Court of Appeals’ initial opinion on the abatement study lawsuits offered a blistering criticism of the study, including a 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.

In Harris’ case, the trial court granted Kennedy Krieger summary judgment on his battery claim, finding he had not demonstrated any intent on the part of the institute for harmful or offensive contact, as well as the intentional misrepresentation claim, because Harris did not identify a dispute of material fact that Kennedy Krieger engaged in fraud or deceit.

The Court of Special Appeals, in an 87-page unpublished opinion released Wednesday, unanimously upheld the lower-court rulings.

A lawyer for Kennedy Krieger, Barry C. Goldstein of Waranch & Brown LLC in Lutherville, declined to comment Friday.

The trial court also made several evidentiary rulings that were appealed, according to the opinion. The appellate panel found the trial court did not err in allowing vacuum sampling evidence to show trends in levels of lead dust over time and the admission of one exhibit which went beyond the scope of the court’s evidentiary order was erroneous but harmless.

The jury returned a verdict in favor of Kennedy Krieger after more than three days of deliberation following a 20-day trial and decided the case on threshold questions. Because the jury did not reach causation, any errors concerning expert testimony on alternative sources of causation were harmless, according to the appellate court opinion.

Harris, who died during the early stages of the appeal and was replaced by his mother as a plaintiff, was represented by attorneys with Murphy, Falcon & Murphy in Baltimore. A representative from the firm did not respond to a request for comment Friday.

The case is Kimberly Smith, Personal Representative of the Estate of Cecil Harris III v. Kennedy Krieger Institute Inc., No. 2241, September Term 2014.

Daily Record Legal Editor Danny Jacobs contributed to this report.

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