After two days of testimony, a trial about the city’s response to a lead poisoning was cut short when both parties worked out a deal to fix up the property — leaving unanswered questions about the maintenance of lead paint city-wide.
The deal was worked out all day Wednesday, and Superior Court Judge Shiela Ozalis made it a legally binding order that evening.
Discussions between the city’s corporate counsel, legal aid lawyers and an attorney for the landlord took place in the courtroom, in the judge’s chambers and in the hallways at the state courthouse at 235 Church St. Once they exploded into a shouting match, audible to reporters, about the city’s continuing responsibilities to the first-floor tenants. The negotiations went right up to the hour when the courthouse is locked up — when one lawyer phoned a secretary with edits, while another lawyer ran back to the office to grab printouts for Judge Ozalis to sign.
The order marks the conclusion to a lawsuit filed against the city by New Haven Legal Assistance Association (NHLAA). In the complaint, legal aid lawyers argued that the city failed to follow state law and local ordinances after it found out that Jacob Guaman, a nonverbal autistic 5-year-old, was sickened by lead poisoning.
The Centers for Disease Control and Prevention (CDC) states that no level of lead is safe for children, with exposure linked to decreased cognitive function, behavioral issues and stunted growth. But needing a reference point for when public health agencies should react, the CDC sets a blood lead level (BLL) of 5 micrograms per deciliter as a trigger to respond, a threshold New Haven’s ordinances incorporate. In 2015, Jacob’s BLL came in at 36 micrograms per deciliter — four points away from where children normally show vomiting, anorexia, constipation and colic. His BLL was over seven times the CDC’s level for alarm and nearly double the state’s outdated standards.
Yet, as established in trial testimony last week, the city Health Department did not write a lead abatement plan in 2015 to fix up the property’s lead paint problems; instead, the next year, an inspector simply uploaded eight-year-old documents and claimed everything was fine. This year, when Jacob’s BLL persisted at 17 micrograms per deciliter, the Health Department again did not write a lead abatement plan; instead, it tried to throw the landlord, Jong Hee Heo, in jail. (On Tuesday, prosecutors rejected the city’s second application for an arrest warrant, according to a spokeswoman for the state’s attorney’s office.)
Until Wednesday’s compromise, the city rejected NHLAA’s arguments that, by law, it was responsible for cleaning up the property, even if the landlord refused to help.
The stipulation Ozalis signed Wednesday evening sets out a dozen steps to remediate the property, including finally getting a lead abatement plan for the two-floor apartment, tucked behind a Burger King in Amity. The process will be expedited, with a scheduled conclusion on Dec. 22.
This Friday, the Health Department and an outside expert are to inspect the chipping exterior, the second-floor interior and the soil around the apartment. Based on the investigations’ results, the city will write up a lead abatement plan and hire a certified contractor who will install vinyl siding and clean up other hazards — all under the expert’s oversight. Then the Health Department and the expert will conduct a re-inspection certifying the property is lead-safe.
Just before the deal was supposed to be signed, John Rose, Jr., the city’s corporation counsel, said in court, “We don’t give a rat’s ass what the consultant says” about putting up vinyl siding.
Amy Marx, a legal aid lawyer, responded that she was “shocked” by what she was hearing. “That’s the whole point,” she said. “Not unless the consultant says it’s approved.”
“I’m shocked that you’re shocked,” Rose said. “Stop, OK.”
That’s when Ozalis poked her head out, and the attorneys took the argument to chambers. The final deal says the city can proceed with plans that are “not disapproved by the consultant.”
Legal aid lawyers said Eagle Environmental, a Terryville-based consultancy, will act as the expert checking the city’s work for compliance with state and local regulations.
Paperwork must also be filed on the city’s land records, documenting the clean-up orders, the abatement plan and the clearance letter.
Rose initially objected to that provision, too, arguing in court, “We’ve never done that, from what I’m told.”
That’s the problem, Marx shot back, because the city ordinances require the Health Department to do so.
That provision stayed. Once those documents are all entered, the Guamans must move back in.
Everything will be paid for by the city up front, which it can then get back by placing a lien on the property. Heo, the landlord, is applying for federal funds to offset the costs
“We Can End Up Back Here”
The result Wednesday gave legal aid lawyers the two remedies that they originally sought when they filed a demand letter in August and a civil action in October. The five-member family has been relocated to a hotel room at the Village Suites in Long Wharf, and lead abatement of its home in Amity is expected to wrap up before Christmas.
NHLAA’s attorneys said they are still concerned about city-wide issues that didn’t get addressed before the case wrapped up.
“We think there may be a systemic issue in New Haven with the way that the city deals with lead inspections [and] abatement, and we don’t want this [order] to stop them from doing an interim review,” said Helen Li, a recent Yale Law School graduate completing a year-long fellowship on childhood lead poisonings. Li worked with NHLAA on the case. “We just want to make sure they don’t push this aside and keep going at the status quo. If there’s anything else like this happening, we don’t want them to pretend like it’s not an issue.”
NHLAA already filed one other lead-poisoning case this year. In March, Marx sued a church that owns 96 Webster St., where a tenant’s children showed elevated BLLs. Questioning the city’s oversight, Housing Session Judge Anthony Avallone sent a subpoena to the Health Department’s director, compelling him to testify.
Shelley White, NHLAA’s director of litigation, said legal aid lawyers plan to dig deeper into New Haven’s lead poisonings. “We’re going to be making a push in the coming months to identify other families who may be poisoned [or] who may be under lead abatement orders and speak with them about whether or not they’re getting the compliance that they need,” she said. “Our concern is maximizing the number of lead-safe homes there are in New Haven for families that need them. Someone will move into their apartment, and we want their children to be safe.”
Heo’s lawyer, Kevin Casini, said he’s also dissatisfied with the city’s refusal to do anything about the first-floor interior, where a child under 6 years old lives. Casini conceded that it’s not within the legal purview of this case, but he argued that the city should be proactive in addressing it, rather than waiting for a third poisoning at 1323 Whalley Ave.
Wednesday morning, he and Alison Lanoue, the city’s assistant corporation counsel, traded words in the hallway about the responsibility.
“We’re not going to do it,” Lanoue said.
“You can see how we can end up back here,” Casini said.
“Only if your client fails to act,” she answered. “If you end up with a sick kid, that is 100 percent on your client.”
“All I’m telling you is the reason we’re here is because the department broke down, the communication broke down,” he said. “I’m trying to get ahead of this. We’ll wait until the next kid gets sick.”
“Well, I don’t think that’s fair,” Lanoue said. “If your client’s aware, you can be proactive.”
Six hours later, once the judge’s order was signed without a mention of the first-floor interior, Casini said Heo will likely go ahead with the renovations anyway to keep the downstairs family safe. An order letter from the city would help secure abatement funds, he added, but Heo is prepared to pay out of pocket.
Previous coverage of this case:
• Legal Aid Takes City To Task On Lead
• City Sued Over Lead-Poisoned Child
• City Blames Landlord for Lead Poisoning
• Bid-Rigging Claimed In Lead Cleanup
• Judge Orders City To Move Poisoned Kid
• Guamans To Move To Extended-Stay Hotel