Summary Judgment in Lead Exposure Case
- Client: Real estate owner of mixed use (commercial and residential) building
- Date: February 2009
- Location: New York City
Summary:
A New York City trial court threw out claims of lead paint injury against Schiff Hardin's client, the owner of a landmarked building with commercial and residential uses, accepting our attorneys' arguments that there was no showing of injury to the plaintiff. The win is significant because the case had the potential greatly to expand the liability of property owners and those involved in construction and maintenance for low-level lead claims.
The complaint, filed in 2005, alleged that the child plaintiff had been exposed to lead paint dust during a renovation of the building in which he lived.
Schiff Hardin attorneys moved for summary judgment at the close of discovery on the grounds of lack of injury, providing the court with substantial justification to be skeptical of the plaintiff's lead paint injury claim. The plaintiff had been tested for lead many times after his alleged exposure to lead during two periods of renovation work at the building; the results were at or below the threshold level of concern set by the Centers for Disease Control of 10 µg/dL. Schiff Hardin also retained an expert toxicologist and psychologist to review the plaintiff's medical and school records; the psychologist personally evaluated the plaintiff. Finally, we deposed the plaintiff's pediatrician. All of these experts rebutted the plaintiff's claims of cognitive and intellectual impairment. In particular, our attorneys looked to retain experts not well known to the plaintiff's bar. We also anticipated the rote arguments made by plaintiff's counsel in these cases and prepared our experts to meet those arguments.
After extensive briefing, the court granted the motion for summary judgment. The court exercised its gatekeeper function to reject the plaintiff's experts' routine affidavits, which had been dissected effectively by Schiff Hardin's experts.
The decision shows that defendants effectively can challenge the newest round of lead paint injury claims involving lower blood lead levels by rethinking strategies long built around settlement rather than victory in court.