Allan Appel photo
Legal aid attorney Amy Marx, city contracted lawyer Andrew Cohen, and city attorney Roderick Williams in court.
Define “lead poisoning.”
Opposing teams of lawyers — one representing the city, one representing families whose children have elevated blood lead levels — square off on how to do that in newly filed briefs in a case that has put a spotlight on the Harp administration’s enforcement of public health law.
New Haven Legal Assistance Association (NHLAA) Attorney Amy Marx and city-contracted attorney Andrew Cohen offered final arguments in the briefs filed Thursday afternoon in a case in state Superior Court. They make different cases for what exactly the state court should recognize as lead poisoning in post-hearing briefs filed Thursday afternoon.
The closing written arguments represent the latest stage in legal aid’s class action lawsuit against city alleging alleges that Mayor Toni Harp, outgoing Health Department Director Byron Kennedy, and Environmental Health Director Paul Kowalski illegally stopped enforcing city lead laws for children previously covered city-mandated inspections and abatements.
Click here to read about NHLAA’s initial suit, which Marx filed in May, and here to read about a day-long court battle on June 7 in which city officials admitted to having changed their lead paint enforcement practices as of November 2018.
The opposing briefs agree on at least one fact: Mayor Toni Harp’s administration indisputably shifted upward the child blood lead level required for the city to order lead paint inspections and hazard abatements at the end of last year. It relaxed the rules for when it would pursue landlords when tenants’ children test positive for lead in their blood. Landlords the city might have been dragged into court last November are no longer be cited.
Where those two briefs diverge wildly is in how to accurately define “child lead poisoning” from a medical perspective and from the perspective of existing city law.
The two post-hearing briefs offer a combined 60 pages’ worth of arguments over whether or not the city broke, or at least circumvented, local law when it changed its practices. The core of the dispute between both sides is over what exactly qualifies as “child lead poisoning” and what blood lead levels truly lead to “irreparable harm” for children under 6.
Click here to read legal aid’s brief, which was co-authored by Marx and fellow legal aid attorney Shelley White., and here to read the city’s.
Marx: City Interpretation “Specious,” “Defies Logic”
Thomas Breen photo
Chief plaintiff Sara and her father Rukara Rugereza in their Wolcott Street apartment.
In her brief, Marx consistently argued that 5 micrograms per deciliter (μg/dL) is the blood lead level that state Superior Court Judge John Cordani should keep his eyes focused on in ruling on legal aid’s request to require the city to order clean-ups of tenants’ apartments.
That’s the number that the federal Centers for Disease Control (CDC) identified in 2012 as the reference level used to “identify children with blood lead levels that are much higher than most children’s levels,” to quote the federal authority. The CDC also makes clear that “no safe blood lead level in children has been identified. Even low levels of lead in blood have been shown to affect IQ, ability to pay attention, and academic achievement. And effects of lead exposure cannot be corrected.”
Marx pointed out that Yale-New Haven Hospital medical records mark children’s blood levels at or above a 5 as “abnormal”; that the Yale-New Haven Regional Lead Treatment Center and the Yale Primary Care Center use 5 as “the standard for an abnormal blood lead level”; that the federal Department of Housing and Urban Development (HUD) requires full lead hazard inspections in federally-subsidized housing in which a child has a blood lead level of 5 or higher; and that an expert witness who appeared in court on June 7, Dr. Marjorie Rosenthal, testified that 5 is what she believes to be an “abnormal body burden of lead by the Centers for Disease Control.”
Most pertinently to this lawsuit, Marx quoted a current city law that mandates inspections and abatement enforcement whenever a child tests at a blood lead level of 20 μg/dL or “any other abnormal body burden of lead as defined by the Centers for Disease Control and Prevention.”
Three different Superior Court judges in five different cases over the past two years have ordered the city to enforce its lead poisoning protection laws for children with blood lead levels of 5 or higher. And, up until November 2018, that was what the city’s Health Department did.
“Since November 2018,” Marx wrote, “Defendants changed their policy and practice to provide such protections to children with EBLs of 20 µg/dL only, based on a specious reading of the definition of lead poisoning, as set forth in the ordinance.”
Marx referred here to Kennedy’s testimony in court that “abnormal body burden” does not refer to blood lead levels at all, but rather to lead as measured in different parts of the body, such as bone and tissue.
“Dr. Kennedy concurred that blood lead levels are the only appropriate way to determine body burdens of lead,” Marx wrote, “yet, he opined that the second part of the standard, which was added to the City law almost twenty years ago, exists for the hypothetical possibility that the medical community may one day have the capacity to do noninvasive testing of other body burdens and that the CDC might then one day set a reference level for such abnormal body burdens based on such technological advances. See Kennedy Testimony at 262 – 263.
“Dr. Kennedy’s testimony defies logic and foundational principles of statutory construction law which favor rational and sensible statutory construction.”
City: Ruling Vs. City Would Set “Revolutionary” Precedent
Allan Appel photo
Williams, Cohen, and city-contracted attorney Nancy Mendell.
Cohen’s brief argued that the city’s interpretation and enforcement of local law is legally sound and epidemiologically responsible.
Throughout the brief, the city-hired private lawyer argued time and again that blood lead levels of 5 do not qualify as lead poisoning.
The state defines lead poisoning as a blood lead level of 20, he wrote. And the state doesn’t mandate the forced removal of a child from his home due to lead poisoning until he or she hits 45 μg/dL.
“No one denies the legitimacy of their families’ concern,” Cohen wrote about the two chief plaintiffs in Marx’s lawsuit, who are both under 6 years old and who both have tested as having blood lead levels between 5 and 10 over the past year and a half.
“But the laws of the State of Connecticut and City of New Haven cannot prevent all possible harm to all children who have some level of lead in their bloodstream; preventing all harm is something that government cannot do.”
Instead, he argued, the city must target its limited public health resources towards intervening on behalf of the most endangered populations, while all the while striving to educate all families about the dangers of childhood lead poisoning and strategies for keeping a clean and safe home.
In his brief, Cohen argued that Kennedy clearly described what qualifies as an “abnormal body burden of lead” in his June 7 testimony. That measurement does not refer to blood level only, he said.
“Under questioning by the Court,” Cohen wrote, “Dr. Kennedy reiterated that the second half of the definition, in referring to ‘abnormal body burden,’ is a reference to tissues, bone, teeth, kidneys, and other parts of the body.”
“Elevated blood lead level and other abnormal body burden are different concepts,” he continued, “in two different parts of the City’s definition of ‘lead poisoning,’ and yet the allegations in the Complaint conflate them, as if they were the same.”
Cohen then attacked the idea that the two chief plaintiffs in the case would suffer “irreparable harm” if the judge does not rule in favor of legal aid and order the city to resume all lead inspections and hazard abatements for homes lived in by children with blood lead levels above a 5.
He noted that Rukara Rugereza, the father of one of the plaintiffs, testified that his youngest daughter’s doctor told the family that his child’s blood lead level of 5 is “good” and that that “blood lead level is low.”
He then quoted Sherine Drummond of the State of Connecticut Department of Public Health, whom he called as a witness at the June 7 hearing, as testifying that it is “typical” for children with elevated blood lead levels of 20 or above to remain in their homes. That’s because families can take ‘interim control measures,’ like moving around furniture to keep children from accessing lead-painted windowsills, until an abatement occurs.
Furthermore, he wrote, “the only [state] requirement that a child be relocated from the home occurs where a child has a confirmed vevnous blood lead level of 45 μg/dL and has undergone chelation (removing blood from the body.”
Drummond routinely distributes CDC materials as an educational reference in her job, Cohen wrote.
“That is an important point, given plaintiffs’ misguided assertion that all children with lead levels above 5 μg/dL have ‘lead poisoning’ — ostensibly because the CDC says som which is not true; if the CDC said so, then the State of Connecticut would be ignoring untold numbers of children with lead poisoning as well.”
A judicial ruling in favor of legal aid, he wrote, would therefore set a dangerous precedent for the rest of the state. In that it would establish that a blood lead level of 5 qualifies as lead poisoning.
“This court would further be concluding, on the most flimsy evidentiary basis, that not only the City of New Haven but ipso facto the State of Connecticut and all the local health departments in towns and cities across the state are failing to address that harm,” he wrote. “This court should not reach such a broad and in fact revolutionary conclusion on the basis of the June 7 injunction hearing in this case.”
Previous lead coverage:
• 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
The city should see what it takes to settle this case. The city is getting bad advice from bad lawyers—there's even a typo on the first page of the brief ("June 7, 2109")