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Kennedy Krieger seeks dismissal of sibling suit over lead-paint abatement study

Judges appear skeptical of KKI's no-duty-to-siblings argument

ANNAPOLIS – An attorney for Kennedy Krieger Institute told a skeptical Maryland high court Tuesday the research facility owed no legal duty to siblings of participants in its controversial 1990s lead-paint abatement study in Baltimore and thus cannot be sued by them for their alleged exposure to and poisoning from lead.

Judges on the Court of Appeals appeared to be less critical of one of those siblings’ lawyers, who countered KKI’s legal duty of care must extend to the participants’ older brothers and sisters whom the facility knew – or at least should have known – would also be exposed to the lead.

That argument has prevailed so far, as the intermediate Court of Special Appeals ruled last year that KKI owed a duty to Ashley Partlow even though only her younger sister was signed up for the Lead-Based Paint Abatement and Repair and Maintenance Study. A Baltimore City Circuit Court judge had dismissed Partlow’s lawsuit after concluding KKI owed her no duty.

The study, conducted from 1993 to 1999, sought to determine the best household lead-abatement strategies by examining the blood-lead levels of children between ages six months and four years living in homes with one of three levels of abatement.

Proponents of the study say it led to a law requiring property owners to conduct lead remediation and resulted in a substantial reduction in lead poisoning; critics say it left children needlessly exposed to lead for the study’s sake. The Court of Appeals in 2001 allowed the study’s participants to sue for negligence.

Pressing KKI’s high-court appeal Tuesday, attorney Michael E. Blumenfeld argued that, as a clinical researcher, the institute’s legal duty of care extends only to those who were specifically enlisted for the study by a parent or legal guardian. Partlow, though a child, was too old for and not part of the study, Blumenfeld said, drawing criticism from the high court.

“Is it fair to say there was a family unit here?” said Judge Sally D. Adkins. “Is it fair to say Kennedy Krieger had a special relationship with the family unit?  You have separated out the other minor child. Was she expected to live elsewhere?”

Blumenfeld responded Partlow was not part of the study, which was geared toward her younger sister. KKI, nevertheless, monitored and treated Partlow for her elevated lead levels, which resulted from when she lived in another home before the study, added Blumenfeld, a partner at Nelson Mullins Riley & Scarborough LLP in Baltimore.

That argument left Judges Michele D. Hotten and Shirley M. Watts apparently unconvinced, as both said KKI presumably knew of the risk of lead exposure in the house not only to the participating younger sister but also to Partlow.

“Everyone who lived in the house was subject to the decisions that Kennedy Krieger made,” Watts told Blumenfeld. “You seem to be saying ‘because there was a benefit, there shouldn’t be a duty.’”

Blumenfeld reiterated KKI owed a duty to the younger sister as a participant in the study. The institute, however, owed no duty regarding the sister’s possible lead exposure because KKI had no “care, custody and control” of the home, which was the landlord’s responsibility, Blumenfeld said.

Extending an institute’s duty of care beyond study participants would discourage important and necessary research for fear of incalculable liability.

“Where do you draw the line” regarding duty of care? Blumenfeld said. “You have to draw it somewhere.”

Partlow’s attorney, Brian S. Brown, told the high court the line could reasonably be drawn at those individuals who the institute knew or should have known could be harmed by its negligence in conducting the study. These individuals include not only study participants but their siblings who lived with them, said Brown, of Brown & Barron LLC in Baltimore.

“It’s not about opening a cause of action to the world,” he said, adding that siblings of participants represent “a finite class of plaintiffs.”

The Court of Appeals is expected to render by Aug. 31 its decision in the case, Kennedy Krieger Institute Inc. v. Ashley Partlow, No. 82 September Term 2017.

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