Working Without Crucial Evidence

Letters of Compliance Precluded, But Defendant Prevails

The two minor plaintiffs alleged that they sustained permanent brain damage as a result of being exposed to lead paint during their two-and-a-half year tenancy at the defendant’s property. The plaintiffs also alleged that their ability to reach their academic and economic potential had been eliminated by their exposure to lead, and claimed lost earning capacity. Although the subject property had been inspected for lead both prior to and during the plaintiffs’ tenancy and Letters of Compliance were issued to the property owners in 1979 and in 1993, an inspection report in 1994 allegedly had documented the presence of lead. There were extensive pre-trial hearings on whether the strict liability provisions of the pre-1994 Lead Paint Statute applied, or whether the 1994 Amendments applied, thereby removing the claims from the strict liability provisions.

We argued that under the unequivocal wording of the 1994 Amendments no claim for strict liability could be maintained against a property owner who had been issued a letter of full compliance. The statute further specified that premises for which a letter of compliance had been issued prior to January 1, 1994, would be deemed in full compliance. The plaintiffs argued that the pre-1994 Lead Paint Statute applied because the cause of action accrued prior to 1994. The judge ruled that the strict liability provisions of the pre-1994 Lead Paint Statute applied. The defendant filed a Petition for Interlocutory Appeal as to the applicable legal standard, which the Appeals Court did not grant. In order to ensure that the Letters of Compliance did not come into evidence, plaintiffs’ counsel dismissed all counts in their complaint other than violations of the Lead Paint Statute and G.L. c. 93A, the Massachusetts Consumer Protection Statute.* Among the counts dismissed were those alleging negligence, breach of quiet enjoyment, and breach of the warranty of habitability. Based upon the trial court’s ruling on the plaintiffs’ motion to preclude introduction of the Letters of Compliance and on its ruling that the pre-1994 Lead Paint Statute applied, the defendant was precluded from introducing the letters of compliance at trial.

At trial, the plaintiffs’ expert witnesses, a neuropsychologist and a pediatrician specializing in lead poisoning, testified that the plaintiffs experienced significant brain damage as a result of lead poisoning. One expert testified that both minor plaintiffs had severe cognitive impairments that would eliminate their potential intellectual and economic achievement. The second expert demonstrated through detailed graphics that both minor plaintiffs suffered significant cognitive impairment. We challenged the opinions of the experts and attacked the validity of their conclusions through their failure to consider confounding factors, such as environmental and genetic influences.

We also argued that lead was not a substantial contributing cause of the plaintiffs’ alleged injuries. Through a neuropsychologist we argued that the plaintiffs were performing within the average range academically and on neuropsychological testing. The defense expert further testified that the plaintiffs were not scoring below expectations given their history, experiences, and background. We also argued that the plaintiffs’ alleged difficulties were accounted for by the plaintiffs’ own diagnoses, which included bipolar disorder and ADHD, by an extensive family history of learning difficulties and mental impairments and by stressful environmental factors, including domestic violence and an unstable family environment. In answers to special questions, the jury found that there were dangerous levels of lead at the defendant’s property and that the minor plaintiffs ingested it, but found that lead was not a substantial contributing factor causing their alleged injuries, and accordingly entered a verdict for the defendant.

This result was cited as a notable defense win in the March 8, 2006 edition of Defense Research Institute’s publication, The Voice.


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