Segal McCambridge Obtains Significant Federal Appellate Decision in New York Lead Poisoning Litigation


September 10, 2013

NEW YORK, N.Y. - A U.S. Court of Appeals for the Second Circuit decision released this week has the potential to influence lead exposure litigation nationwide. The case, John Szewczuk, et al. v. Stellar 117 Garth, LLC, et al., is one of the first appellate decisions after the Centers for Disease Control  and Prevention (CDC) lowered the blood lead level hazard threshold to 5 micrograms per deciliter and will likely serve as important guidance for future cases nationwide involving low blood lead levels. Significantly, the Second Circuit’s decision solidifies the rule of law under Daubert regarding compliance with medical causation standards. It also rejects as unreliable the opinion of a prominent national plaintiffs’ expert in lead poisoning litigation. Segal McCambridge Singer & Mahoney, Ltd. shareholder Dwight A. Kern and associate David S. Kostus, both working in the firm’s Jersey City office, represented the defendants.

On October 1, 2013 the Second Circuit affirmed the decision of the U.S. District Court for the Southern District of New York granting summary judgment to the premises owner and property management defendants in Szewczuk. Ruling on a motion filed by Segal McCambridge, the United States District Court for the Southern District of New York had previously dismissed the case on September 4, 2012.

The plaintiffs alleged that their infant daughter experienced neurological and cognitive deficits due to lead paint exposure while residing at a property owned and managed by the defendants. The Second Circuit dismissed the case, finding:

  1. The plaintiffs did not present sufficient evidence of lead paint exposure in their apartment or the common areas of the apartment building in question;

  2. Dr. Theodore Lidsky, the plaintiffs’ expert witness, failed to provide support for the assertion that the infant-plaintiff’s blood lead level of 7 micrograms per deciliter can and did cause any of the alleged injuries; and

  3. The 1,000-plus pages of scientific literature offered to support Dr. Lidsky’s opinion were not relevant to the specific injuries alleged. 

The Second Circuit’s decision provides a new angle in defending lead poisoning cases with blood lead levels below 10 micrograms per deciliter. It also underscores the value of removing these types of cases to federal court. The New York state court system is notoriously one of the most difficult jurisdictions in the United States for defendants facing lead exposure allegations. At the onset of this case, Segal McCambridge identified that Szewczuk would involve controversial scientific issues and expert opinions. Mr. Kern made a strategic decision to remove the case to federal court on diversity jurisdiction, availing the case to the federal judiciary under Daubert.

Szewczuk reinforces the theory that a plaintiff must prove a correlation between specific neurological/cognitive deficits and identified numeric blood lead levels. Taken a step further, the Second Circuit's decision confirms that expert speculation will not suffice and as such, plaintiffs must establish solid evidence of medical causation in all toxic tort personal injury cases.

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