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Md. high court: Kennedy Krieger owed duty to siblings in lead study

The Kennedy Krieger Institute can potentially be held liable to the brothers and sisters of participants in its controversial lead-paint abatement study in Baltimore.

A sharply divided Maryland high court said Monday that the institute owed a legal duty to the participant’s siblings and thus can be sued by them for their alleged exposure to and poisoning from lead during the study two decades ago.

The Court of Appeals’ 4-3 ruling broadened to brothers and sisters its 2001 decision in Grimes v. Kennedy Krieger Institute Inc. that the participants themselves have standing to sue the institute in the aftermath of the controversial Lead-Based Paint Abatement and Repair and Maintenance Study.

“It is important to prevent medical researchers from using young children in research experiments like the R&M Study, and then disavowing responsibility for children who are not a part of the study but equally exposed to its hazards,” Judge Shirley M. Watts wrote for the majority. “There is a strong incentive to prevent the harm that may occur to such children, and to incentivize medical researchers to advise parents of the risks attendant to such studies on all children, not just children who participate in the study.”

Specifically, the Court of Appeals said the institute’s “duty of care” extends to children who were not participants in the study but whose presence was known to KKI at the property “subject to the research study” and were allegedly injured by their exposure to lead that the institute knew or should have known existed there.

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 6 months and 4 years living in homes with one of three levels of abatement.

The study’s proponents 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 decision revived a lawsuit brought by the older sister of a registered participant in the study. Ashley Partlow was too old take part in the study but had elevated blood-lead levels while living in an east Baltimore house.

A Baltimore City Circuit Court judge had dismissed Partlow’s lawsuit after concluding KKI owed her no duty because she was not a study participant. A divided Court of Special Appeals reversed that decision last September, prompting KKI’s appeal.

‘Just as blameworthy’

In its decision, the Court of Appeals assailed the distinction KKI attempted to draw between its duty-bound study participants and those who were not registered.

“The moral blame of KKI’s conduct attendant to children who were participants in the R&M Study was readily apparent to this court in Grimes,” Watts wrote.

“We conclude that KKI’s conduct is equally blameworthy with respect to children like Ashley, who KKI knew resided in a property subject to the R&M Study with a participant in the study,” Watts added. “Because the R&M Study necessarily would have impacted not only participant children, but also nonparticipant children resident in properties subject to the study, exposing both sets of children equally to lead, KKI’s conduct was just as blameworthy with respect to nonparticipant children as it was with respect to children participating in the study. The factor of blameworthiness weighs in favor of establishing a duty.”

Partlow’s attorney, Brian S. Brown, hailed the court’s decision as a victory not just for his client but for other plaintiffs who do not have a direct relationship with the entity that allegedly harmed them.

The ruling “goes beyond this one case,” said Brown, of Brown & Barron LLC in Baltimore. “It is a very important decision in tort law in general. You don’t have to be in privity for there to be a duty owed.”

A Kennedy Krieger representative did not immediately respond Monday to a request for comment.

Watts was joined in the opinion by Judges Clayton Greene Jr., Sally D. Adkins and Michele D. Hotten.

Researchers liable?

In dissent, Judge Joseph M. Getty said the court’s decision makes researchers potentially liable not just to siblings of study participants but to individuals who had only a fleeting presence in the household, such as boyfriends and girlfriends.

“I fear the court’s extension of our limited holding in Grimes to a duty of care owed to nonparticipant children will eventually be extended to another class of potential plaintiffs, leading to further unforeseen liability for researchers,” Getty wrote. “Thus, I would hold that a duty of care to a nonparticipant child is not one which Maryland law is prepared to recognize.”

Chief Judge Mary Ellen Barbera Judge Robert N. McDonald joined Getty’s dissent.

The Court of Appeals rendered its decision in Kennedy Krieger Institute Inc. v. Ashley Partlow, No. 82 September Term 2017.

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