Environmental/Toxic Torts

The two minor plaintiffs alleged that they sustained permanent brain damage as a result of being exposed to lead paint during their two-and-a-half year tenancy at the defendant's property. The plaintiffs also alleged that their ability to reach their academic and economic potential had been eliminated by their exposure to lead, and claimed lost earning capacity. Although the subject property had been inspected for lead both prior to and during the plaintiffs' tenancy and Letters of Compliance were issued to the property owners in 1979 and in 1993, an inspection report in 1994 allegedly had documented the presence of lead. There were extensive pre-trial hearings on whether the strict liability provisions of the pre-1994 Lead Paint Statute applied, or whether the 1994 Amendments applied, thereby removing the claims from the strict liability provisions.

We argued that under the unequivocal wording of the 1994 Amendments no claim for strict liability could be maintained against a property owner who had been issued a letter of full compliance. The statute further specified that premises for which a letter of compliance had been issued prior to January 1, 1994, would be deemed in full compliance. The plaintiffs argued that the pre-1994 Lead Paint Statute applied because the cause of action accrued prior to 1994. The judge ruled that the strict liability provisions of the pre-1994 Lead Paint Statute applied. The defendant filed a Petition for Interlocutory Appeal as to the applicable legal standard, which the Appeals Court did not grant. In order to ensure that the Letters of Compliance did not come into evidence, plaintiffs’ counsel dismissed all counts in their complaint other than violations of the Lead Paint Statute and G.L. c. 93A, the Massachusetts Consumer Protection Statute.* Among the counts dismissed were those alleging negligence, breach of quiet enjoyment, and breach of the warranty of habitability. Based upon the trial court’s ruling on the plaintiffs’ motion to preclude introduction of the Letters of Compliance and on its ruling that the pre-1994 Lead Paint Statute applied, the defendant was precluded from introducing the letters of compliance at trial.

At trial, the plaintiffs’ expert witnesses, a neuropsychologist and a pediatrician specializing in lead poisoning, testified that the plaintiffs experienced significant brain damage as a result of lead poisoning. One expert testified that both minor plaintiffs had severe cognitive impairments that would eliminate their potential intellectual and economic achievement. The second expert demonstrated through detailed graphics that both minor plaintiffs suffered significant cognitive impairment. We challenged the opinions of the experts and attacked the validity of their conclusions through their failure to consider confounding factors, such as environmental and genetic influences.

We also argued that lead was not a substantial contributing cause of the plaintiffs’ alleged injuries. Through a neuropsychologist we argued that the plaintiffs were performing within the average range academically and on neuropsychological testing. The defense expert further testified that the plaintiffs were not scoring below expectations given their history, experiences, and background. We also argued that the plaintiffs' alleged difficulties were accounted for by the plaintiffs' own diagnoses, which included bipolar disorder and ADHD, by an extensive family history of learning difficulties and mental impairments and by stressful environmental factors, including domestic violence and an unstable family environment. In answers to special questions, the jury found that there were dangerous levels of lead at the defendant’s property and that the minor plaintiffs ingested it, but found that lead was not a substantial contributing factor causing their alleged injuries, and accordingly entered a verdict for the defendant.

This result was cited as a notable defense win in the March 8, 2006 edition of Defense Research Institute’s publication, The Voice.

*The trial judge held the G.L. c. 93A claim.

The plaintiff was purportedly overcome by carbon monoxide fumes in her workplace from trucks allegedly left idling while making deliveries at the rear of the building to another tenant. She complained of a headache, nausea and fatigue and was taken by ambulance to the Emergency Room. Four days later, she was admitted for many days of treatment in a hyperbaric chamber. She underwent speech, occupational, and physical therapy for many months and was treated by a neuropsychologist for several years after. The plaintiff brought suit against the tenant of the building to whom the truck deliveries were made, as well as against the building owners and the various truck companies making deliveries on the day in question. The plaintiff’s daughter brought a claim for loss of consortium.

The plaintiff alleged at trial that she complained numerous times about the smell of exhaust fumes to the building owner and to the tenant to whom deliveries were made. The plaintiff also offered the testimony of five expert witnesses, including the physician who treated her in the hyperbaric chamber, two neuropsychologists, an industrial hygienist, and an economist. The plaintiff further alleged the inability to return to her pre-incident level of functioning in her home life and in her job, and lost earning capacity in the amount of approximately $687,000.

We disputed that the plaintiff had complained to the defendant about the smell of exhaust fumes. We also challenged the cause of her physical difficulties, pointing out that the plaintiff’s carboxyhemoglobin level was within the normal range in the Emergency Room and that there was no evidence of the level of carbon monoxide in the air at the time of the incident alleged. Through the testimony of our expert neuropsychologist we also asserted that the plaintiff’s pattern of test results on neuropsychological testing did not reveal an organic brain injury and, in fact, showed that the plaintiff performed within the average range on virtually every test administered. The jury returned with a defense verdict. The plaintiffs did not appeal.

The plaintiff, an attorney, alleged personal injuries and memory loss arising from exposure to carbon monoxide and other chemicals in leased office space. He consulted two experts in the field to support his claim. We argued that the expert witnesses had performed no objective testing at the property to confirm the presence of carbon monoxide or other chemicals, and therefore had no basis to conclude that carbon monoxide was present or that the plaintiff was exposed to it. We also pointed out that the proposed testimony that the plaintiff’s alleged memory problems were caused by exposure to carbon monoxide was conjecture. There was no medical evidence confirming that the plaintiff was exposed to carbon monoxide or that the plaintiff suffered any memory problems due to exposure to carbon monoxide. The court precluded both experts from testifying.

In an effort to portray himself sympathetically, the plaintiff testified that he was sanctioned by a judge for being unable to remember relevant facts during a hearing in bankruptcy court. We challenged the plaintiff’s statement with documents obtained from the bankruptcy court that indicated the sanction was imposed due to the plaintiff’s violation of bankruptcy rules rather than a lapse in memory. The defendant was granted a directed verdict at the close of plaintiff’s evidence.