Lead Paint Update 7/1/99

[kitchen]

Hell's Kitchen Online                               7/1/99
http://hellskitchen.net "All the News the Times Won't Print"
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In this issue...

1. Peter Vallone Lead Poisoning Act of 1999 
2. Council Passes a Bill on Lead Paint (NY Times)
3. Lead Paint Bill OKd; foes say it's a gift to landlords (Daily News)
4. Vallone worried about lead in bridges
5. Lead-Poisoning Litigation (NY Law Journal tells landlords how to beat the rap)

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Date: Thu, 01 Jul 1999
From: Kenneth Schaeffer
Subject: Lead Poisoning act of 1999

As you have probably heard, yesterday the city council passed the Lead Poisoning Act of 1999.
Peter Vallone forced a 36-15 vote on the measure with one hand, while receiving real estate
contributions with the other from the Rent Stabilization Association (located in the same
building, 123 William Street, as Vallone's 2001 campaign committee).

Members voting against the bill included: Michaels, Perkins, Linares, Lopez, Reed, Quinn, Fried,
Eldridge, DiBrienza, Pinkett, Clarke, Foster, Leffler, Rivera, Boyland.

The enactment of this bill revealed the darker side of politics in NYC.  Even though more than 2/3
of the council support Intro. 205, which had been introduced more than 2 years ago and was a
reasonable compromise to make apartmens "lead safe" rathen than completely "lead free", Vallone
never allowed a hearing on 205. He then rushed through his bill in the face of unanimous testimony
from the medical community that it does not adequately protect kids because, among other things,
it allows up to 7 months before exposed lead is removed, more than enough time to poison kids,
there is only limited testing for lead dust after work is performed and even then it is performed
by the landlord with no monitoring, the burden is on parents to report lead hazards, and when
children are, inevitably, poisoned, it will be much harder to impose liability on negligent
owners.  This bill was forced through without adequate debate, and it did not even received a bill
number (Intro 582) until the day of the vote.

In an ominous note, the New York Times reports today that Vallone's emissaries (goons?) visited
all council members at their homes Tuesday night to hand-deliver a message from Vallone that he
wanted their votes on this.  This "we know where you live" message is particularly disturbing in
light of reports that at least one influential council member is being essentially blackmailed by
the leadership regarding his personal life.  If your council member is one of the 15 who had the
courage to stand up to this pressure, you should contact her or him to express your gratitude on
behalf of our clients and all the kids of this city.  If not, you should communicate your
displeasure.

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New York Times
July 1, 1999
After Bitter Debate, Council Passes a Bill on Lead Paint 
By DAVID M. HERSZENHORN

The City Council approved a measure Wednesday to replace the city's 17-year-old law meant to
protect children from poisoning caused by lead paint, capping weeks of rancor and more than a
decade of legislative fits and starts on one of the most complex issues in public policy.

The Council vote, 36 to 15, was a victory for Mayor Rudolph W. Giuliani, a Republican, and the
Council Speaker, Peter F. Vallone, a Democrat, who remained united in support of the bill despite
fierce opposition. In the weeks leading up to Wednesday's vote, the bill was criticized as too
weak by several Council members and by advocates for children and the environment as well as by
many medical experts on lead poisoning.

The old lead law, enacted in 1982, has never been fully enforced, in part because landlords and
the city regarded compliance as too onerous and expensive. The 1982 law has also been the subject
of continuing litigation and was interpreted by a judge in 1989 as requiring the removal of all
lead paint, which experts now say would do more harm than good. Lead paint has been banned for
household use for more than 20 years.

While the goal of the 1982 law was to make buildings "lead free," the new measure is intended to
make housing "lead safe," a reflection of more recent research concluding that it is usually safer
to leave lead paint in place unless it begins to deteriorate. Removing intact lead paint can
create invisible lead dust, which is now believed to be the main cause of poisoning.

Supporters of the measure said that it would finally offer a workable law to prevent lead
poisoning, which health experts have long regarded as the greatest preventable threat to childhood
health. "This is a bill to help children, to prevent lead poisoning," Vallone said after casting
the final yes vote. He added, "This was our best attempt to get consensus from both sides of the
hall that would try to help kids."

Several council members seemed torn as they voted yesterday and many said they supported the
measure even though they felt it could be stronger. That fact was not lost on Vallone, who said
the bill would likely be amended in the future.

The new measure, which Giuliani is expected to sign into law this month, seeks to prevent lead
poisoning by setting rules and deadlines for landlords to correct hazards. It requires landlords
to make annual visual inspections in any apartment built before 1960 where a child under 6
resides. And it requires the city to make repairs whenever a landlord fails to do so.

The bill also puts more responsibility on tenants to report suspected hazards. It largely allows
landlords to supervise and certify their own repairs. And it will severely restrict the ability of
the parents of lead-poisoned children to win lawsuits alleging negligence by landlords or the
city.

Opponents of the bill, including Councilman Stanley E. Michels of Manhattan, charged that the bill
favored landlords and the city over the health needs of children. There were more than 1,000
confirmed lead poisoning cases in New York City last year and as many as 30,000 city children are
believed to have dangerously high levels of lead in their bodies.

The bill had divided the Council in recent weeks and Vallone and his aides had to exert
substantial pressure to insure its passage, first through the housing and buildings committee and
then through yesterday's vote. A letter from the Speaker urging support for the bill was
hand-delivered to many Council members at home on Tuesday night, a dramatic gesture meant to
underscore his leadership role.

And in a move to insure passage of the bill, aides to the Mayor and the Speaker agreed late
Tuesday to allocate $8.6 million more in the city budget for lead-poisoning prevention efforts,
including the development of 10 lead-safe houses where families with lead-poisoned children could
live, the purchase of six vans to use as mobile lead-screening units and the hiring of 30 to 50
more Department of Health outreach workers.

Yesterday evening's vote followed an afternoon of loud debate in the Council chamber, which was
punctuated on several occasions by hisses, boos and outbursts from opponents of the bill who were
observing from seats in the balcony.

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Lead Paint Bill OKd 
Angry foes say measure is gift to landlords 
By FRANK LOMBARDI 
Daily News, July 1, 1999

A rumble of dissent in the normally lockstep City Council failed to stop passage yesterday of a
new lead paint bill that opponents branded a "landlords' protection act." The measure sets new
regulations and procedures for landlords to follow to protect young children from lead poisoning,
which can cause learning disabilities and permanent brain damage.

Backed by Mayor Giuliani and City Council Speaker Peter Vallone (D-Queens), the bill passed by a
comfortable 36-to-15 vote after four hours of emotional debate that drew sporadic boos and
catcalls from the bill's opponents in the balcony.

One woman was evicted after shouting an expletive at Vallone as he urged Council members to "do
the responsible thing" and approve the bill.

"Yes, remove me from this stupid sham," the heckler shouted at Vallone. "You're a liar! You're a
liar!"

The bill also reduces landlords' exposure to civil liability suits.

"Sure [a victim] can sue," said Councilman Stanley Michels (D-Manhattan), the leading opponent of
the bill. "But can you win?"

Michels said the measure will ease the sometimes costly burden of landlords to take preventive
action and result in "more children being poisoned than ever before."

When it's signed into law in a few weeks by the mayor, the measure will supplant the city's 1982
lead paint law, whose enforcement has been largely hobbled by years of litigation.

Even opponents agreed the law had to be updated to protect potential victims better. There are
30,000 city children who now suffer from lead poisoning, and the list grows by about 1,000 cases a
year, although the growth rate is decreasing.

Most of the victims are minority children from impoverished neighborhoods with rundown housing.
Two Queens Republicans, Al Stabile and Tom Ognibene, drew sharp rebukes when they said parents
have an obligation to keep their homes clean and prevent their children from eating paint.

"[That's] the other damned thing that p----d me off," Stabile said. "Why does it have to be a
black and white issue?"

Councilwoman Christine Quinn (D-Manhattan) said Stabile's comments were offensive and amounted to
blaming the victims.

The vote split members of the Black and Hispanic Caucus, with many opting to support Vallone's
contention that the bill is a good start and can be amended later.

Before the vote, Vallone announced an agreement with Giuliani to pump $3 million into enhanced
prevention measures. The funds will pay for creating nine lead-safe houses to shelter families
uprooted from lead-contaminated apartments, along with buying six new mobile outreach vans and
hiring as many as 50 new health workers.

Original Publication Date: 07/01/1999 

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This little tidbit caught our attention.
http://www.ny.com/current/news/news-9502.html

February 18, 1995 
City Council Speaker Vallone has expressed concern that the project to rebuild the Tri-Borough
Bridge was not done right. He claims that the paint is chipping and contains high levels of lead.
He warns that a similar fate is in store for the rest of the City's bridges.

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The following article from the New York Law Journal describes how defendents in Lead-Poisoning
litigation (many of whom could be landlords) can beat the rap.

New York Law Journal
REAL ESTATE UPDATE 
Litigation: Lead-Poisoning Litigation
June 30, 1999

Fighting Expert Evidence in Cases Involving Infant Plaintiffs 
By Alan Kaminsky and Patrick Geraghty

For defense attorneys handling infant lead-paint lawsuits, perhaps the most frustrating aspect is
combating the expert testimony of clinical psychologists, vocational rehabilitationists and
economists.

Psychologists will often testify as to how the lead-poisoned child developed severe cognitive
impairments and learning disabilities that prevent the child from learning in a conventional
academic setting and severely limits his or her earning capacity. Often, a psychologist will
administer an IQ test to the child and report the findings to a jury; claiming that the exposure
to lead paint has lowered the child's intellectual quotient.

With these problems before a jury, a vocational rehabilitationist will testify as to the child's
future academic and vocational needs, which often include highly specialized schools -- usually
more costly than many colleges -- and intensive vocational counseling, which often includes a job
coach, who will help the child find and maintain a position in the work force.

Lastly, an economist will often take the stand and place a future value on the already expensive
price tag laid out by the vocational rehabilitationist. Projections of a loss of earnings in the
multimillion-dollar range are not uncommon.

Flaws in Testimony

The problem in handling the testimony of these experts is that at first glance, they appear to be
working in a vacuum. A psychologist who finds a "lead-poisoned" child who displays speech
impairments or learning disabilities, will classify these problems as direct consequences of the
child's elevated blood-lead levels -- regardless of the lead levels' severity, mildness or
duration. Unfortunately, it often appears as though the psychologist gives no consideration to the
plethora of factors, other than an elevated blood-lead level, which may also account for the
child's problems. These problems include, but are not limited to, the following: an absence of
pre-school or day-care participation; not learning to speak English until school years; family
history of learning disabilities; psychological trauma; and problems in the child's home life.

Moreover, the psychologist will often postulate as to the child's loss of IQ and acquisition of
learning disabilities without a shred of information regarding the child's pre-lead poisoning IQ
level or cognitive functioning, or without comparing the child's IQ with that of the child's
mother or siblings. Despite this lack of information, their testimony is routinely permitted at
trial, subject only to cross-examination.

Vocational Experts

The same holds true for the testimony of vocational rehabilitationists. These experts claim to
predict the next forty years of the child's life; including the types of schools and summer camps
they will attend and where they will work. This is particularly interesting because these experts
often never meet the children whose futures they have predicted. First of all, these children are
usually less than ten years old at the time these projections are made, and have not had the
experiences necessary to develop a notion of what they would like to be "when they grow up." This
most basic childhood dream is taken from them in the name of a lawsuit. Ironically, these children
are often classified as mentally retarded by their attorneys and experts for the purposes of
bolstering a lawsuit.

Moreover, the vocational rehabilitationist will often not know the child's developing personality.
Perhaps the child is highly motivated and will have more ambition and drive than they have been
given credit for, and would be insulted if forced to work at the menial jobs that the "experts"
have predicted is their lot in life.

Just as the psychologist often turns a blind eye to the child's pre-lead poisoning state or to
other factors which may have caused the problems, the vocational rehabilitationist fails to
examine how the child's personality, intestinal fortitude and role models will influence the
course that his or her future will take.

Unsound Testimony

The making of such broad pictures and strong conclusions without considering the variables is
inconsistent with modern scientific principles, which the experts supposedly follow. For example,
there is a litany of articles written regarding the impact of maternal IQ on a child's IQ.[1]
Despite this body of scientific literature, plaintiffs' psychologists usually fail to mention that
a child's IQ may be due to genetics, rather than to lead exposure.

New York defense attorneys have had few weapons, other than cross-examination, to combat such
evidence. Currently, in New York the admissibility of expert testimony based on scientific
principles or procedures is governed by the "general acceptance" test set forth in Frye v. United
States, 293 FSupp 1013 D.C.Cir. 1923. Under this standard, courts must examine whether the
scientific principles or procedures on which the challenged testimony is based have gained general
acceptance in the relevant discipline. (See, People v. Wesley, 83 NY2d 417, citing Frye v. United
States, supra; People v. Angelo, 88 NY2d 217, 222-223; and People v. Roraback, 242 AD2d 400). The
rule is applicable in both criminal and civil actions (See Castrichini v. Rivera, 175 Misc2d 530
[Sup. Ct. Monroe Co. 1997]). In essence, evidentiary reliability is conditioned upon the approval
of scientists in the field (Martin, Capra and Rossi, New York Evidence Handbook, §7.2.3)(Citations
omitted).

Federal Standards

In federal courts however, the standard for the admissibility of such testimony differs. There,
the admissibility of expert testimony is governed by the Federal Rule of Evidence number 702 which
provides that where scientific knowledge will assist the trier of fact, a witness with germane
credentials may offer an opinion on the issue.

In 1993, the U.S. Supreme Court, in Daubert v. Merrell Dow Pharmaceuticals Inc., 509 US 579,
delineated Rule 702, holding that the terms "scientific" and "knowledge" connote something more
than subjective belief or unsupported speculation, but that something less than general acceptance
in the scientific community may suffice. Noting that few scientific propositions are indisputable,
the Supreme Court directed courts to focus upon the expert's methods and reasoning rather than the
conclusion to be propounded.

In accordance with this, the Supreme Court set out a list of factors which may be considered in
determining the admissibility of such evidence, including whether the scientific methodology has
been tested, whether the scientific methodology has been subject to peer review and publication,
the known rate of potential error and the "general acceptance" of the method (Daubert, 509 US at
593-595). While general acceptance remains an important consideration, it is no longer the sine
qua non. In short, the federal rules permit the submission of opinion evidence by a credentialed
witness, if the opinion is based upon a scientific methodology, which is deemed reliable by the
trial judge.

In a more recent decision, Kumho Tire Co. Ltd. v. Carmichael, 119 S.Ct 1167 [1999], the Supreme
Court extended the principles of Daubert beyond the sphere of simply scientific evidence to
include testimony based on technical and other specialized knowledge. In this decision, the Court
also clarified the factors noted in Daubert and how they should be considered in analyzing the
testimony to be offered by a would-be expert. In this regard, the Court stated that "the test of
reliability is 'flexible', and Daubert's list of specific factors neither necessarily nor
exclusively applies to all experts or in every case" (Kumho Tire, supra, at 1170).

In expanding its Daubert holding, the Court explained that the sole objective of the new and
augmented analysis is to ensure that an expert, whether basing testimony upon professional studies
or experience, employs in the courtroom the same level of intellectual rigor that characterizes
the practice of an expert in the relevant field. The result of the extension of the Daubert
standard in Kumho was that the plaintiff's expert, whose methodology was found to be unreliable
due to insufficient indications of the methodology's reliability, was precluded from testifying as
to his opinion on the cause of the accident at issue, resulting in a granting of summary judgment
against the plaintiffs/respondents.

Reliability Standard

Currently, there are approximately fifteen states that have followed the federal courts in
applying the Daubert analysis with regard to expert testimony.[2] If New York were to do so, the
speculative testimony of psychologists and vocational rehabilitationists might be precluded, and
the potential that juries would be unduly swayed by such speculation could be averted. Instead,
lead-poisoning trials could focus on the more credible testimony of witnesses such as parents,
teachers, and even the child himself, who are more qualified to discuss the child's day-to-day
behavior and learning skills.

This is not to say that all such experts should be precluded. Instead, the topics which are based
on speculation should be evaluated on the basis of content and reliability, rather than on who
introduced it.

To this end, trial courts must exercise caution and ensure that an expert's testimony rests on a
reliable foundation and is relevant to the task at hand, in order to guarantee that the testimony
that does not meet these standards, does not reach a jury.

The newly expanded Daubert/Carmichael analysis provides an objective approach for courts to assess
the reliability of the methodology underlying expert testimony prior to its admission to the jury.
While New York courts are not bound by the principles from these cases, they are free -- absent
either legislative enactment or a binding ruling from one of the Appellate Divisions or the Court
of Appeals -- to apply the Daubert/Carmichael analysis to the testimony of psychologists and
vocational rehabilitationists in lead-poisoning actions. The reliability standard is more amenable
to the sense of fairness and rationality inherent in the judicial system, and thus, should be the
touchstone of an admissibility decision with respect to all types of expert testimony.

Notes

(1) See generally, Bracken, Bruce A. et al. Prediction of Caucasian and African-American Preschool
Children's Fluid and Crystallized Intelligence: Contributions of Maternal Characteristics and Home
Environment, Journal of Clinical Psychology, 1993, Dec. Vol. 22(4). 455-463; Bradley, Robert H. et
al., Maternal IQ the Home Environment and Child IQ In Low Birth Weight, Premature Children,
International Journal of Behavioral Development, 1993, March, Vol 16(1), 61-74; Longstreth,
Langdon, E. et. al., Separation of Home Intellectual Environment and Maternal IQ as Determinants
of Child IQ, Developmental Psychology, 1981, Sept., Vol 17(5), 532-541; Luster, Tom & Dubow, Eric,
Home Environment and Maternal Intelligence as Predictors of Verbal Intelligence: A Comparison of
Preschool and School-age Children, Merrill-Palmer Quarterly, 1992, April, Vol. 38(2), 151-175;
Sameroff, Arnold J. et.al., Stability of Intelligence from Preschool to Adolescence: The Influence
of Social and Family Risk Factors, Child Development, 1993, Vol. 64, 80-97; and Schroeder,
Stephen, R. et. al., Separating the Effects of Lead and Social Factors on IQ, Environmental
Research, 1985, 1985, Vol. 38, 144-154.

(2) See Williams v. Hedican, 561 N.W.2d 817 [Iowa 1997]; State v. Porter, 694 A.2d 1262 [Conn.
1997]; Nelson v. American Sterilizer Co., 554 N.W.2d 898 [Mich. App. 1997]; Commonwealth v.
Fowler, 425 Mass. 819, 1997 Mass. LEXIS 365 [Mass. 1997]; State v. Rolfe, 686 A.2d 949 [Vt. 1996];
State v. Parkinson, 909 P.2d 647 [Idaho Ct. of App. 1996]; Craddock v. Bennett L. Watson &
Barboursville Transfer, Inc., 475 S.E.2d 62 [W. Va. 1996]; State v. Cline 909 P.2d 1171 [Montana
1996]; Smith v. State, 677 S.2d 1240 [Ala. Crim. App. 1995]; Mitchell v. Commonwealth, 908 S.W.2d
100 [Kentucky 1995]; E.I. DuPont de Nemours & Co. v. Robinson, 923 S.W.2d 549 [Tex. 1995]; State
v. Hofer, 512 N.W.2d 482 [S. Dakota 1994]; State v. Anderson, 881 P.2d 29 [New Mex. 1994]; Nelson
v. State, 628 A.2d 69 [Del. 1993]; State v. Foret, 628 So. 2d 1116 [La. 1993]; see also McGrew v.
State, 682 N.E.2d 1289 [Indiana 199])[integrating Daubert test with Frye test]).

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Alan Kaminsky, a partner at Wilson, Elser, Moskowitz, Edelman & Dicker, represents landowners in
lead-poisoning and premises-security cases. Patrick Geraghty is an associate at the firm.