Segal McCambridge Shareholder Dwight A. Kern, with the assistance of Associates Audrey O. Anyaele and David S. Kostus, recently obtained a defense verdict in a lead-based paint exposure case against New York’s premiere lead paint Plaintiff’s firm after a three and a half week trial in Westchester County Supreme Court.
Plaintiffs, who had four experts testify (a lead risk assessor, neurologist, neuropsychologist, and economist) claimed that the infant plaintiff had suffered permanent neurologic deficits, and had his full-scale IQ reduced by 14-17 points, due to alleged lead-based paint exposure at the premises owned by the Defendant. Plaintiffs also alleged that the infant plaintiff would suffer even greater impairment than was currently present due to a “lag effect” from the lead exposure. In total, Plaintiffs asked the jury for approximately $1.5 Million in damages for past/future pain and suffering and future neuropsychological evaluations, as well as an additional $3.4 Million for alleged reduction in future earning potential.
Despite some issues on the negligence aspect of the case due to testimony regarding what the defendant property owner knew in relation to lead-based paint notice issues, the defense was able to overcome Plaintiffs’ case by focusing on the relevant scientific issues. Defendant, with the help of its expert in environmental medicine and toxicology, demonstrated that lead-based paint from the subject premises was not a substantial factor in causing injury to the infant plaintiff despite the fact that he had blood lead levels ranging from 5 to 20 mcg/dl while residing there. The defense successfully presented toxicology exposure concepts to draw doubt about the location of exposure due to the pattern of blood lead levels. The defense also focused on other sources of exposure like second hand smoke from the mother and background lead in the environment, arguing that much of the rise in exposure was attributable to seasonality (blood lead levels tend to rise in the warmer months of the year due to children being outside more often).
Additionally, the defense discredited Plaintiffs’ experts, pointing to a discrepancy in IQ points from the neuropsychological testing of the plaintiff and defense experts, which was an astounding 21 points. A focus on the infant plaintiff’s kindergarten report card from the recently completed academic year, just before trial, was used to display just how inconsistent the allegations were from the infant plaintiff’s real-world performance.
After deliberations, the jury found that the Plaintiff had established notice, breach of a duty, and negligence, but unanimously found that any such negligence was not a factor in causing an injury to the infant plaintiff, resulting in a defense verdict.