Lead Paint Fight Rejoined

Two weeks after the Harp administration promised to stop fighting a lead poisoning lawsuit filed by legal aid, its lawyers have submitted two memoranda seeking to dismiss, not settle, the case.

On Tuesday afternoon, city-contracted private attorneys Elizabeth Acee, Nancy Mendel, and Andrew Cohen and Assistant Corporation Counsel Roderick Williams filed an 18-page opposition to the potential class certification of 300 hundred lead-poisoned children in the case Nyriel Smith v. City of New Haven. Cohen also filed a motion to dismiss the case entirely on the grounds that the original lawsuit lacked a proper return date, and was therefore procedurally deficient.

Click here and here to read the new filings.

The documents represent the administration’s latest bid to scuttle a class action lawsuit filed by New Haven Legal Assistance Association (NHLAA) lawyers in May on behalf of potentially hundreds of New Haven children with elevated blood lead levels above 5 micrograms per deciliter (μg/dL).

That suit, filed by NHLAA Attorney Amy Marx and Director of Litigation Shelley White, alleges that two specific Fair Haven children as well as hundreds of similarly situated children were harmed by the city Health Department’s decision in November to relax its lead poisoning law enforcement protocols for children with blood lead levels between 5 and 20 μg/dL.

Superior Court Judge John Cordani ruled against the city several weeks ago in an order that clarified that existing city law defines ​“lead poisoning” as matching the federal Centers for Disease Control and Prevention’s reference level of 5 μg/dL, as opposed to the 20 μg/dL threshold set by the state.

The judge ordered the city to inspect and oversee the abatement of lead paint hazards at the homes of the two primary plaintiffs in the case, and gave the city until Tuesday to respond to legal aid’s bid to have a class of hundreds of children certified as plaintiffs on the case.

On July 1, Mayor Toni Harp convened a press conference at City Hall in which she declared that the city would return to enforcing lead poisoning protections for children with blood lead levels of 5. She said the legal aid lawsuit against the city was ostensibly over and that her administration would embark on a new five-point plan to combat child lead poisoning in the city, including by hiring more lead inspectors and by clarifying local law.

On Tuesday, city spokesperson Laurence Grotheer described the two motions opposing class certification and seeking dismissal of the case as spotting ​“flaws in the Legal Assistance Association’s pleadings in the matter purporting to seek class action status for New Haven children exposed to sources of toxic lead.

“Although Mayor Harp has publicly committed to and begun the process of implementing the relief requested by LAA, which includes inspection of the homes of any child under the age of six with a blood lead level equal to or greater than five micrograms per deciliter of whole blood, the case remains pending; the City took action today to preserve its right to complete the legislative and administrative processes necessary to implement new policy.”

Mayor Harp is then quoted in the press release as blaming her past health director for implementing the lead policy change ​“without seeking or documenting proper authorization and without consideration of available resources. As we clarify the City’s policies and procedures, it is my intention to do so in an orderly, sequential fashion. I reached out to the Legal Assistance Association requesting reasonable breathing room for the City to complete its process. That overture resulted in demands from Attorney Marx that significantly exceed the original request for relief and are most appropriately addressed by the Board of Alders and the City’s Health Department.”

Harp is also quoted in the release as saying that she would like to work with, not against, the legal aid lawyers who filed the initial suit.

“I would like to have the Legal Assistance Association as a partner in addressing this public health issue – we all have an interest in making New Haven a lead-safe city.”

Click here to read the city’s full press release.

“An Intent To Continue To Delay”

Attorney White, who has worked with Marx to take the city to court nearly a half dozen times over the past two years regarding the city’s substandard lead paint inspections and abatement enforcement, issued a statement Tuesday afternoon in which she declared disappointment with the city’s decision to keep fighting the lawsuit.

“The truth of the matter is that the legal papers filed today are flimsy on the law and evidence no intent to resolve the case,” she wrote, ​“but rather an intent to continue to delay a case already over three months old.

“We note that the City has now committed additional taxpayer dollars to hire lawyers from LeClair Ryan, a second high priced law firm, in addition to Winnick, Hoffnung, Ruben, and Peabody and Mendel. Such unnecessarily and costly expenditures are particularly unwise given the extensive testimony by Dr. Kennedy at the Court hearing that the City did not have the money to hire the necessary number of lead inspectors.”

The mayor said at the July 1 press conference that ​“all is solved,” White wrote, and that no lead hazards accessible to the child plaintiff were found at her home, and that the city is prepared to start addressing the needs of all children with blood lead levels above a 5. ​“That was simply not true.”

“The Mayor incorrectly stated that the home of two year old Nyriel Smith had no lead paint accessible to the child,” she wrote. ​“The XRF analysis done by the Health Department had found lead paint throughout the interior and exterior of the unit and issued orders requiring the landlord to abate the lead hazards for the child.”

See more below for the health department’s inspection report on Smith’s Lombard Street apartment.

“If the mayor is serious in her statement that she wants NHLAA as a partner in addressing the lead poisoning crisis that prompted the litigation,” White wrote, ​“then there must be a sincere negotiation of a court-ordered settlement agreement, that commits the Mayor’s statements to writing and details how the work will be done to protect New Haven’s precious children in the manner required by law. To date, the City has offered only for NHLAA to withdraw its case based on the Mayor’s press conference. Such an offer is not consistent with our responsibilities to the hundreds of children.”

Click here to read White’s full statement.

Since White and Marx started filing lead poisoning-related suits against the city nearly two years ago, four different judges in that time period have ruled in favor of legal aid and against the city in those cases.

Class Too Hard To Define

The city’s legal filing opposing the class certification argues that the class, as defined by legal aid as all children living in New Haven who are under 6 years old and who have blood lead levels above 5 μg/dL, ​“cannot stand the rigorous scrutiny required for certification.”

Children will age out of and age into this definition, the city lawyers wrote, and are therefore impossible to pin down on any one given day. Their blood lead levels might also fluctuate depending on changes to where they live or how their parents clean.

“A child may be a putative class member one day,” they wrote, ​“but then not a putative class member at the next blood test.”

The city’s lawyers also contested the class grouping by arguing that legal aid has not met the ​“heavy burden” of proof required by state law for such a certification.

Legal aid has not found additional plaintiffs interested in joining the case, they wrote, and therefore has not proven that the class is ​“so numerous that joinder of all members is impractical.”

They argued that legal aid has not proven that the potential class of hundreds of children share ​“common questions of law and fact” pertaining to lead inspections, abatement orders, and abatements themselves. Rather, each case would be so unique, they argued, to require a ​“highly individualized and fact-intensive inquiry that cannot be economically adjudicated in the context of a class action without resort to separate mini-trials for each putative class members.”

They argued that the class, if certified, could include child residents of public housing operated by Elm City Communities, the new name of the Housing Authority of New Haven. Those housing units are subject to federal Department of Housing and Urban Development (HUD) regulations that require the housing authority, not the city’s health department, to conduct lead inspections, they wrote.

And they argued that Marx and White do not have adequate experience with class action suits in order to handle the group of plaintiffs, if certified.

“Given that Plaintiffs apparently seek to prove that City failed to meet its legal obligations toward approximately 300 proposed class matters,” they wrote, ​“and that each member of the proposed class is entitled to injunctive relief, it is reasonable to conclude that discovery in this case will be substantial. Yet, Plaintiffs make no representations about their available resources or whether they are sufficient to serve the interests of the proposed class.”

The city has complied with the initial injunction ordered by Cordani for the two primary plaintiffs, the city’s lawyers wrote, which included providing the parents of one plaintiff with certain lead hazard information and then determining and ordering the abatement of lead hazards at both plaintiffs’ dwellings.

“Sara and her family have moved from the dwelling she lived in when the complaint was filed,” they wrote. ​“For these same reasons, neither Plaintiff can claim to be injured by the City’s action or inaction. The City has met its legal obligations and redressed any injury as to Plaintiffs, and, with respect to Sara in particular, it can no longer take any action imposed by law for her benefit since she has moved.”

No Lead Hazards On Lombard Street?

Grotheer’s press release, as well as the city’s two legal filings, noted that the city had complied with Cordani’s order to inspect and oversee the abatement of the two primary plaintiffs’ apartments. One plaintiff has moved, the city argued, while inspection of the other plaintiff’s home found no lead paint hazards.

“No defective lead-based paint was found in the apartment of the named plaintiff,” Grotheer wrote. ​“None of the window frames, typical ​“chewable” surfaces, was found to contain lead.”

The health department’s lead inspection report from July 2, however, seems to indicate otherwise. Click here to read that full report.

Sent to 103 Lombard St. landlord Earlene Kelson on July 2, the health department notice states that city lead inspector Jomika Bogan inspected apartment 1F on June 26 and found toxic levels of lead paint in the kitchen walls and cabinet, in the bathroom chair rail, in the bathroom hall’s walls, in the building exertior’s columns, window panels, railings, and doors, and on a second-story porch.

“The Director of Health has determined that the presence of such lead-based paint and chipped and flaking paint constitutes health hazards,” the notice reads. ​“Since there are one or more children with an elected blood lead level residing on the premises, the aforementioned conditions constitute grounds for issuance of this Order pursuant to General Statutes 19a-11 and 19a-111 – 2 of the Public Health Code and are a violation of Chapter 55, Article III of the New Haven Code of Ordinances, Section 55 – 63, Maintenance; Section 55 – 64, Hazardous conditions, Subsections a, b, and c.”

Previous lead coverage:

• Harp Switches Gears On Lead
• Motion Accuses City Of Contempt
• City Loses Again On Lead
• Briefs Debate ​“Lead Poisoning”
• New Haven: Another Flint?
• Harp Administration Admits Relaxing Lead Standard To Save $$
• Class-Action Suit Slams City On Lead
• City, Legal Aid Clash On Lead Paint
• Legal Aid To City: Get Moving On Lead Paint Law
• 100+ Tenants Caught In Lead Limbo
• 2 Agencies, 2 Tacks On Lead Paint
• Chapel Apartments Get 3rd Lead Order
• Lead Sends Family Packing
• Health Officials Grilled On Lead Plans
• Judge Threatens To Find City In Contempt
• Same Mandy House Cited Twice For Lead Paint
• Lead $ Search Advances
• 3 Landlords Hit With New Lead Orders
• Another Judge Rips City On Lead
• Judge To City: Get Moving On Lead
• Health Department Seeks Another $4.1M For Lead Abatement
• City-OK’d Lead Fixes Fail Independent Inspection
• Judge: City Dragged Feet On Lead
• 2nd Kid Poisoned After City Ordered Repairs
• Judge: City Must Pay
• City Sued Over Handling Of Lead Poisonings
• City’s Lead Inspection Goes On Trial
• Eviction Withdrawn On Technicality
• 2nd Child Poisoned; Where’s The City?
• Carpenter With Poisoned Kid Tries A Fix
• High Lead Levels Stall Eviction
• 460 Kids Poisoned By Lead In 2 Years
• Bid-Rigging Claimed In Lead Cleanup
• Judge Orders Total Lead Paint Clean-Up
• Legal Aid Takes City To Task On Lead