Class-Action Suit Slams City On Lead

A legal aid attorney has filed a class action lawsuit against the city’s health department for allegedly bypassing the law and refusing to inspect homes of lead-poisoned children whom it now allegedly deems not poisoned enough to protect.

The lawsuit was filed in state Superior Court Wednesday afternoon by New Haven Legal Assistance Association (NHLAA) Attorney Amy Marx on behalf of two primary plaintiffs: 4‑year-old Fair Haven resident Muhaweinmana Sara and 2‑year-old Fair Haven resident Nyriel Smith.

The complaint also calls for the court’s recognition of a class of roughly 300 city children at or under 6 years old who have elevated blood lead levels (EBL) above 5 micrograms per deciliter (μg/dL), which is the local legal threshold that triggers a variety of city health department protective actions, including inspection and lead hazard abatement enforcement.

It charges the city, Mayor Toni Harp, outgoing city Health Department Director Byron Kennedy, and city Director of Environmental Health Paul Kowalski of six different counts of failing to protect city children from lead poisoning and of violating the local separation of powers by de facto changing city law without public notice or legislative input.

“Nyriel and Sara represent approximately 300 children at or under the age of six with documented blood lead poisoning at or above 5 μg/dL who are entitled to protections under city and state law,” the class action complaint reads, ​“but for whom the Health Department will now take no action to conduct lead hazards inspections of their homes and order abatement of lead hazards found because their blood lead levels do not equal or exceed 20 μg/dL.”

This alleged sudden, surreptitious change of policy has resulted in irreparable harm to Nyriel and Sara, Marx wrote, by inflicting potentially lifelong cognitive disabilities and behavioral problems on the two children.

City spokesperson Laurence Grotheer said that the city’s attorneys have not yet had a chance to review the complaint in full.

“Nevertheless,” he told the Independent, ​“the city’s policy and practice is to withhold comment on matters involving pending litigation.”

In a recent episode of WNHH’s ​“Mayor Monday” program, Harp said that, even though Kennedy will soon be leaving for a job with the state prison system, the city’s protocols around lead paint hazard inspections and abatement enforcement has not changed.

“We do an ultimate letter at five, as I understand it,” the mayor said on the radio at the end of April. ​“We don’t do an investigation until the next time the child is tested. If the amount of lead has grown beyond the five, then we do an investigation.”

Click here to download a copy of the full lawsuit.

The complaint explains how, since 2018, both Nyriel and Sara have consistently tested as having blood lead levels above 5 μg/dL.

That’s the reference level that the federal Centers for Disease Control (CDC) set in 2012 to describe children under 6 years old who have dangerously high levels of lead in their blood and are therefore vulnerable to developing lifelong disabilities. That CDC-set reference level has dropped significantly over the decades, as child lead poisoning becomes less and less common, and the medical understanding of the harmful impact of even relatively small amounts of lead in children’s blood becomes more and more clear.

Per Section 16 – 61 of the New Haven Code of Ordinances, that CDC threshold also determines the local definition of ​“lead poisoning,” which, when met, triggers a variety of legally mandated actions of the city’s health department, including an inspection of the child’s home by a city lead inspector, the drafting of a lead abatement plan with the landlord, and the enforcement of a lead management plan post-abatement.

In these two cases, the complaint alleges, the city’s health department first failed in its outreach, and then allegedly went rogue and changed city law without going through the alders.

The department tried, and failed, to get in contact with these tenants and their families, it alleges. Then, by the end of November 2018, it allegedly decided that the 5 μg/dL threshold was not severe enough to trigger the city ordinance-mandated protective actions, even though three separate state judges had ordered the department to follow through on its legal obligations to children with similar blood lead burdens at around the same time that Sara and Nyriel were each testing above a 5.

Marx’s suit claims that the department bypassed the legislative branch of local government and de facto changed the city’s definition for ​“lead poisoning” to match the state threshold of 20 μg/dL rather than the CDC threshold of 5, thus absolving itself of its obligations to those affected children.

Meanwhile, the city’s actual law remains the same. It reads, ​“Lead poisoning shall mean a blood lead concentration equal to or greater than twenty (20) micrograms per deciliter of whole blood or any other abnormal body burden of lead as defined by the Centers for Disease Control and Prevention.”

Over the past year and a half, three separate state judges have publicly rebuked the city’s health department for inadequate lead paint inspections, for storing lead-related notes on paper and not in electronic records, for failing to enforce timely and sufficient abatements of lead-hazardous properties, and for failing to follow up and make sure that abated properties remain safe for child tenants to keep living in.

Alleged Communication Breakdowns, Backroom Policy Changes

Sara’s father, Rukara Rugereza, a 27-year-old native of the Democratic Republic of Congo and housekeeper at the New Haven Hotel, moved in 2016 with his wife and three children from a refugee camp in Uganda to a three-bedroom apartment on Wolcott Street with the help of the local refugee-support nonprofit Integrated Refugee & Immigrant Services (IRIS).

As is the case with all IRIS-relocated families, Marx said, the Rugereza children received blood lead tests at a Yale New Haven Hospital (YNHH) lead clinic upon arriving in New Haven. Those initial tests, she wrote, found that none of Rugereza’s young children, including Sara, had elevated blood lead levels above a 5.

But in February 2018, that started to change. During a regular checkup at a YNHH clinic, the complaint reads, Sara tested as having a blood lead level of 8 μg/dL.

As is state and local protocol when a child tests as having a blood lead level above a 5, Marx wrote, the local clinic sent Sara’s test results to the state Department of Public Health, and then the state notified the local health department. Per department protocol, she wrote, the city then sent a local lead inspector to Sara’s apartment in an attempt to inspect the residence for chipping and flaking lead paint hazards.

“Because no one was home at the time of his visit,” the complaint reads, ​“the inspector left a business card with a note and educational materials in English only. Prior to this visit, the inspector was in communication with the Yale Lead Clinic about the child and was aware that the family spoke Swahili.”

With no further follow ups, Marx wrote, the department closed Sara’s file in April.

Sara’s blood lead levels only went up.

In June 2018, she tested at 10 μg/dL. In October, she tested at a 9. In February 2019, she tested at a 10. And in April, still another test showed her as having blood lead levels of 10 μg/dL.

A new lead inspector was assigned to the case during that time period, Marx wrote, but the outcome remained the same: No inspectors visited and tested the Wolcott Street apartment for chipping and flaking lead paint hazards in the 14 months since Sara first tested above a 5.

At first, Marx said, this was due simply to bad communication. The city reached out to IRIS for help contacting and communicating with the Rugerezas, but never followed up when IRIS said they’d be glad to help.

The city never sent another inspector over to the Wolcott Street apartment, she wrote. Instead, at the end of November, the health department apparently changed its policy around which elevated blood lead levels should trigger the mandated protective actions.

“The Health Department changed its lead hazards inspection rule,” the complaint notes, ​“deciding to no longer conduct lead hazards inspections to identify and abate lead hazards for children under six years of age unless the first reported EBL was 20 μg/dL or higher.”

The department then closed Sara’s file in January, the complaint alleges, ​“with a file note stating that it would not conduct an inspection at the premises.”

Over the past 14 months, Sara’s father said, he and Sara’s pre‑k teachers have noticed a change in the 4‑year-old’s behavior. ​“She doesn’t speak as much,” Rukara told the Independent during an interview on Monday.

Marx said that Sara recently tested as having an IQ of 54, and that she is now in need of special education services.

“The Health Department’s failure to conduct a lead hazards inspection of Sara’s home has caused, and will continue to cause, irreparable injury to Sara,” the complaint reads. ​“She has been, and continues to be, poisoned by toxic levels of lead hazards in her home. She suffers from significant development delays and intellectual disabilities, which emerged with regression and loss of language at the age of three when her blood lead levels first tested at above 5 μg/dL. Defendants have failed to take legally required action necessary to protect and mitigate from continued life-long injury.”

And now, Sara isn’t the only Rugereza child testing at high blood lead levels.

In October 2018, the family’s youngest daughter Sofia, now just 1 1/2 years old, tested at a 12. Her blood lead levels then went down to a 9, and are currently at a 4, just below the federal and local threshold.

Rugereza said he and his family are currently looking to move to a different apartment. He said he would like the city to help him find a new safe place for his family to live. ​“The only problem is,” he said, ​“I don’t know which other apartments have lead.”

Nyriel’s case, as outlined in the complaint, is strikingly similar to Sara’s.

Nyriel first tested as having a blood lead level of 8 in July 2018, the complaint notes.

“The Health Department made no effort to contact the family when Nyriel first tested positive for blood lead poisoning,” Marx alleges. Nyriel and her mother Nichelle Hobby live in a second-floor apartment in Fair Haven at 105 Lombard St.

Nyriel then tested at a 6 in August. The department called the family twice in September but, failing to reach tehm on the phone, ​“took no further action”.

Nyriel then tested at an 11 in December, a 9 in January, and an 11 in February. Despite these three additional positive tests, the complain alleges, the local department did nothing.

Now, the complain alleges, Nyriel suffers from ​“significant development delays and intellectual disabilities,” including the loss of language at the age of two.

“Defendants’ failure to follow their state law requirements to send notice of Nyriel’s elevated blood lead level to her mother and provide statutorily mandated information,” the complaint reads, ​“has also caused, and will continue to cause, irreparable injury to Nyriel because the failure means that Nyriel’s mother does not have the information and resources to protect and mitigate from continued life-long injury to her child.”

Six Counts Of Alleged City Violations

Based on Sara’s and Nyriel’s cases, the complaint charges the city, the mayor, and the local health department directors with six alleged violations:

• One count of the mayor and the health department directors’ alleged violation of city ordinance requiring mandatory lead poisoning protections;
• One count of the mayor’s alleged violation of the separation of powers between the local executive and legislative bodies of government;
• One count of Kennedy and Kowalski’s alleged violation of the separation of powers between the local executive and legislative bodies of government;
• One count of Harp, Kennedy and Kowalski allegedly failing to issue public notices or give time for public comment around alleged changes to city lead policies;
• One count against the city, Harp, Kennedy, and Kowalski for the alleged violation of the children’s state and federal constitutional rights to due process;
• And one count against the city, Harp, Kennedy and Kowalski for the alleged violation of state lead poisoning protection laws.

The complaint calls on the court to issue preliminary and permanent injunctions on behalf of Sara, Nyriel, and the hundreds of other city children that qualify for inclusion in the class action suit that would would require the city to ​“comply with city law and conduct an immediate inspection at the homes of all class members with EBLs of 5 μg/dL or higher to determine all sources of lead in the interior, exterior and soil of their apartments; send abatement order to the landlords of any apartments where lead hazards are found; and ensure that abatement is completed in a timely fashion, including taking over the abatement and relocating families if necessary to protect from any lead hazards if abatement is not conducted timely, in order [to] address irreparable harm presently being caused to the health of the class members.”

Previous lead coverage:

• 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