Allan Appel Photo
Nichelle Hobby, mom of 2-year-old Nyriel Smith, testifies in the case.
A state judge has ruled in favor of two lead-poisoned children who sued the city for not enforcing its own lead paint protection laws — and in favor of legal aid lawyers’ definition of what constitutes poisoning.
Mayor Toni Harp said the latest decision might prompt a change in city policy.
While the order only applies to the two primary plaintiffs for now, the judge in his ruling clarified the exact definition of “lead poisoning” under existing city law. The ruling positioned the court to decide later this summer as to whether a whole class of hundreds of children have been similarly neglected by the health department.
State Superior Court Judge John Cordani issued that ruling Monday afternoon in a class action lawsuit that New Haven Legal Assistance Association (NHLAA) Attorneys Amy Marx and Shelley White filed in May against the city, Mayor Toni Harp, outgoing Health Department Director Byron Kennedy, and Environmental Health Director Paul Kowalski.
The suit alleges that the city’s health department illegally stopped enforcing city lead laws regarding mandated inspections and abatement enforcement for children with blood lead levels above 5 micrograms per deciliter (μg/dL).
That’s the “reference level” set by the federal Centers for Disease Control and Prevention (CDC) for children with dangerously high levels of lead in their blood. It’s also the level explicitly referenced in city law’s own definition of “lead poisoning,” which reads: “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.”
Marx and White filed the suit on behalf of two primary plaintiffs, 4‑year-old Fair Haven resident Muhaweinmana Sara and 2‑year-old Fair Haven resident Nyriel Smith, as well as on behalf of hundreds of unidentified potential plaintiffs who are under 6 years old, have blood lead levels above 5 μg/dL, and for whom the city has not enforced its lead hazard protections since November.
4 Judges Slam City
New Haven Legal Assistance Association attorneys Amy Marx and Shelley White.
In his decision, Cordani, who is one of four separate state judges in the past two years to reprimand the city in court for failing to follow through on existing lead-related laws, sided with legal aid that the local definition of “lead poisoning” is indeed 5 μg/dL.
He directly turned down city-contracted attorney Andrew Cohen’s argument in court and in a subsequent post-hearing brief that the city was well within its rights in November 2018 to stop protecting children with blood lead levels under 20 μg/dL because, in Cohen’s telling, “abnormal body burden of lead” refers not to blood lead measurements but rather to lead measurements in bone and tissue.
Cordani was having none of it.
“The CDC only makes specific determinations concerning blood lead level and does not make specific determinations for abnormal lead levels in any body tissue other than blood,” he wrote. “The practice of the New Haven Health Department prior to November 2018 confirms this understanding of the ordinance. Prior Superior Court interpretations of this ordinance also confirm this meaning.”
The judge ordered the city to provide Nyriel Smith’s parents with requisite information about child lead poisoning. He also ordered the city to enforce the abatement of all lead poisoning hazards at the two children’s Fair Haven apartments.
Click here to read Cordani’s full ruling.
Asked Monday night about the decision, Harp replied, “We’re going to look at our policy and what we do. Obviously we keep losing in court. The way we see it obviously isn’t the way” judges see it.
She said no decision has been made about a policy change.
“Superior Court Judge John Cordani ruled against the Harp Administration’s unconscionable decision to protect landlords and put children at risk for permanent developmental damage due to lead poisoning. This victory is an indictment of Mayor Harp’s decision to save money at the expense of our New Haven children,” Justin Elicker, a candidate for the Democratic mayoral nomination, stated in a release issued following the ruling. He promised if elected to hire more inspectors, adhere to higher health standards, and “not unilaterally flaunt city laws and national standards, and we won’t subject our children to lead poisoning in order to save a few dollars.”
In his decision, the state housing court judge responded directly to the city’s assertion that recognizing 5 rather than 20 as the blood lead threshold for “lead poisoning” would mean redirecting precious health department resources away from the most endangered children and towards children with relatively low blood lead levels.
The law is the law, Cordani wrote, and the city must go through the proper legislative body if it wants to change it.
“The court has considered the city’s legitimate objectives of managing resources and costs,” the judge wrote. “However, the city cannot manage resources and costs in derogation of obligations under a state statute and its own ordinance. If the city determines that it must modify its obligations in order to manage resources and costs, the city is free to do so by properly amending the ordinance. The court has studiously avoided substituting its substantive judgments for those of the legislative body, but has instead merely ordered compliance with existing statute and ordinance properly interpreted and applied. The court has not interfered with the discretionary judgments of the executive, but, as courts do, properly interpreted, applied and required compliance with existing law.”
No Ruling Yet On Class Action
City lawyer Roderick Williams in court with Andrew Cohen and Nancy Mendell, whom the Harp administration has paid over 50,000 dollars to fight the legal aid suit. A judge Monday shot down their legal interpretation of a city law.
What Cordani did not do in his order is rule on the merits of the legal aid suit’s attempt to represent an entire class of hundreds of children who, like Nyriel and Sara, have blood lead levels above 5 and have not received legally mandated city protections.
“The complaint contains allegations directed to a class action,” Cordani wrote, “and the plaintiffs have requested that the court certify a class, however, that issue has not yet been fully briefed and has not yet been addressed by the court.”
Cordani issued a separate order on Monday afternoon that gives legal aid and the city until July 16 to file responses regarding legal’s aid’s motion for “class action certification” — that is, to have Monday’s ruling in favor of Sara and Nyriel apply to the hundreds of city children in similar situations.
“We greatly appreciate the time and attention the judge gave to this matter to issue a ruling so quickly,” Marx told the Independent. “We would hope that at this point the city would respect properly the decision and figure out how to do the right thing.”
The right thing, she said, would be to mandate lead paint inspections and hazard abatements for all properties housing children with blood lead levels above a 5. It would also be to “put in place a proper advisory commission that could help the city apply this law effectively,” she said.
Right now, she said, the only two members of the mayor’s lead poisoning advisory committee that have been publicly identified are Community Services Administrator Dakibu Muley and local attorney Nancy Mandell, who has provided legal advise to the city in its opposition to legal aid’s latest lawsuit.
“It would be tragic and costly if the city were to choose to continue to litigate this matter,” Marx said. Not only because hundreds of children would remain unprotected by city law, but because the city would continue to pour limited money into legal defense of a position that a state judge has now “resoundingly” overturned.
Previous lead coverage:
• 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
Now that the judge has ruled, the city should come to the table and resolve this case.
The inspection and abatement regime needs to be stepped up, the advisory commission needs to be filled, and the aggressive litigating by the city needs to stop.