SETTLEMENT. Facts/Liability: 1. This lead paint poisoning case arose when the Plaintiff s family, including minor

Transcription

1 SETTLEMENT Facts/Liability: 1. This lead paint poisoning case arose when the Plaintiff s family, including minor Fn 1 child, Benita (then 3 years old) relocated from Somalia to NH on or around 5/1/04, originally moving into an apartment building owned and managed by defendant Butt. Butt owned multiple inner city apartment buildings at the time. On 5/31/04 Benita had her first health screening in the US, part of which was testing for blood lead levels. Results on 6/3/04 found levels of 28 mg/dl, levels above 10 mg/dl are considered elevated and dangerous. Fn 1 CLASS Blood lead level Possible effects in children mcg/dl or less than 0.48 mcmol/l Learning problems. 2A 2B mcg/dl or mcmol/l mcg/dl or mcmol/l Hearing problems, slowed growth, learning problems mcg/dl or mcmol/l. Headache, weight loss, nervous system problems mcg/dl or mcmol/l. Severe stomach cramps, poor production of red blood cells (anemia), seizures. 5 More than 69 mcg/dl or more than 3.33 mcmol/l Severe brain damage leading to death. Webmd Lead, Susan C. Kim, MD Pediatrics, medical reviewer June 21, Follow-up testing on 8/4/04 found Benita s levels had then increased to 67, now a Class IV poisoning. (just below the Class V cutoff). Benita was then immediately hospitalized and required chelation. Fn 2. An inspection of the

2 rental unit by Manchester Public Health and the DHHS Childhood Lead Poisoning Prevention Department found lead paint hazards in the unit, but most problematic on the exterior porch, where the children played porch in very poor condition, a lot of chipping peeling paint, old paint. Porch door very poor condition. Children like to play on porch. Unsafe Home (DHHS inspectors field notes 8/5/04). Fn 2. Chelation Therapy & Lead Poisoning, By Kate Downs, ehow Contributor Treating lead poisoning successfully can require the coordination of many methods, including chelation therapy. Chelation is a dangerous procedure used to purge toxic heavy metals from the body. Its use is generally reserved for critical conditions, and chelation therapy is best administered by a licensed physician in a clinical setting. Chelation therapy is available intravenously and in many forms for oral administration. Health-care professionals use the treatment with great caution, due to potentially deadly interactions between chelation therapy and lead poisoning. Chelation's benefits are still argued within the medical community, but the serious hazards associated with the procedure are universally recognized. 3. Defendant Butt acknowledged in deposition that he was aware of lead and lead in paints thru the required disclosure forms had done painting in a past life and was aware of lead you look for chipped and peeling, and was also aware lead s impact on the human body nervous system issues, possible brain issues particularly the hazards to younger children and in the late 1960 I had done tutoring for younger children in Dorchester and Roxbury, and remembered being aware of apartments in buildings with lead issues and kids. Fn 3 4. When Butt was asked if he knew this family he was renting to had children he replied: I m pretty sure I did from fairly young, couple year s old, toddler, up to teen, preteen. 5. Nonetheless, Defendant Butt let the apartment to Benita s family. When defendant Butt was queried about the condition of the paint in the apartment before he rented to the plaintiff s family he replied the apartment had been in pretty

3 good shape beforehand I had done a coat of paint on a couple of the rooms it was pretty ready to rent Fn 3 In fact, there is no safe age to be exposed to lead. Adults can have problems from lead poisoning, but it is most harmful to children younger than age 6, but especially those younger than age 3, because it can permanently affect their growth and development. Research on lead poisoning in children has found that lead impairs intellectual development but also temperament it impairs children s reaction time under varying intervals of delay, and teacher s reports of increased destructibility, impulsiveness, aggressiveness and hyperactivity in the classroom. (Plaintiff s medical expert Robert Kauf, MD, Children s Medical Center of Brooklyn, University Hospital of Brooklyn.) 6. But even subsequent to the poisoning and DHHS findings, Butt position was that when he went to the apartment after the poisoning: I looked at it. I didn t I m not aware of looking at it and saying, that looks bad I didn t see any paint that looked to be a problem 7. In light of the DHHS inspection and findings in the apartment, coupled with a DHHS abatement order against Butt, the family was not allowed to return there and found new housing at co-defendant s property, Ms. Kundu d/b/a Biren Properties, plaintiffs moving in on or about 6/3/05. Benita s levels stubbornly remained high even after the chelation, but with a Class IV poisoning of 67, that experience is not uncommon Robert Kauf, MD. 8. And just prior to her moving into the new rental of Kundu, Benita s levels persisted into 20 s. However, within a few months of moving into this new rental her levels rose to 36 mg/dl [11/29/05]. An inspection was then undertaken by DHHS of this new unit which found lead paint hazards there as well. As a result of the initial poisoning,

4 now coupled with the 2 nd poisoning, it was not until 2008 that Benita s pb levels reduced to under 10 mg/dl. 9. During this time Ms. Kundu was a NH physician with a busy OB/gyn and family medicine practice in Manchester. However, even while a physician, she took an active role in her real estate business by going to each property before purchasing it to make sure: it was something I wanted to buy I would look at its condition whether I would live in the same apartment or not it has to be in good condition. (Kundu deposition 12/6/13). 10. Tax records during the time of this subsequent poisoning show twelve (12) properties being owned by Biren Properties/Ms. Kundu. Most were inner city multi-unit properties. City code enforcement records show approximately 20 code violations being issued against Biren Properties/Kundu during this period, particularly at the very property that Benita subsequently became poisoned at. City of Manchester Violation citation 6/13/02..chipping and peeling paint. 257 Manchester Street). 11. Ms. Kundu s property manager, co-defendant Tom Morgan, described the property as: it was relatively, you know, run down, well, relatively modest building in the inner city (Tom Morgan deposition 12/1/09) 12. Asked about the condition of the rental when he rented it to Benita s family, Morgan s position was that I didn t see any chipping paint. (Tom Morgan deposition 12/1/09) 13. The DHHS inspection a few months later found chipping and peeling paint lead paint in the living room hallway, bedroom window casings, kitchen door jams, exterior sills and issued an order of abatement. (DHHS Inspection Report 11/3/05)

5 14. Before the minor s poisoning at her rental, Kundu also had a prior lawsuit by a child being poisoned in another of her rentals, but that was settled out of court She was aware from that prior poisoning case, but also from lead paint poisoning literature in general, of the dangers of lead paint poisoning in children. Coincidentally, that other poisoning occurred in 2004, approximately one year before Benita became poisoned and hospitalized. 15. Lead poisoning in children causes loss of I.Q., attention deficit disorders, impulsivity. Even after treatment, it can cause lifelong disabilities. When these children reach adulthood it is not uncommon to find them involved in the criminal justice system and finding them with significant difficulties independently obtaining and keeping employment. (Plaintiff s vocational expert, William Burke, PhD.) 16. While lead in residential use paints was banned in 1978, nearly 75% of existing homes in NH, and the surrounding New England states, have lead paint in them. Lead paint, when intact, rarely causes hazard, but when allowed to deteriorate creates significant hazards to young children. The common perception is that to become lead poisoned a child has to eat lead paint, therefore improper supervision is the culprit. However, rarely do children become poisoned by eating paint chips, almost all poisonings occur when children are exposed to lead paint that has been allowed to deteriorate so that microscopic dust particles, containing lead, settles in window wells and crevices along the floor adjacent to windows, in addition to around friction services where two components with

6 lead paint collide, such as door and door casing, etc. This is the world of young children, they pull themselves up to the windows wells looking for their parents to return from work, they crawl and cruise along the floors, where this lead dust has settled. Through common hand to mouth activity, putting toys into their mouths, a favorite blanket that has come into contact with the floor, this dust gets ingested. Usually by the time outward symptoms are seen, it is too late. Defense: During the litigation defendant Morgan moved to dismiss himself as an individual defendant, arguing that he ran his rental management company through the umbrella of an LLC and thus is immune personally. A trip to the NH SupremeCourt, (Mbahaba v- Morgan 163 NH 561) deflated that balloon. Injuries: Lead paint poisoning Special Damages: Past Medical Expenses: Future Medical Expenses: Economic Loss: Total Special Damages: Settlement: Suit was brought in Mediation in 2014 was successfully concluded with a joint settlement among the defendants for $250,000. Points of Interest: As the minor was poisoned twice, 1 st at the Butt rental and again at the Kundu rental, at joint mediation with all defendants in front of Charles Bauer the

7 plaintiff s position was, as to DeBenedetto apportionment between the successive defendants, that under a Trull analysis there was joint and several liability: w e have adopted similar reasoning in holding that two or more tortfeasors may be jointly and severally liable where their negligence, through their independent acts, produces a single, indivisible injury. Trull v- Volkswagen 145 N.H. 259 (N.H. 2000). Plaintiff s Experts: Robert Karp, NYC, Peter Isquith, DHMC, William Burke & Assoc. Portsmouth, Arthur Kennison, St. A s. Defense Experts: None Plaintiff s Counsel: Plaintiffs were jointly represented by Christopher J. Seufert and Fran Murphy. Defense Counsel: Gary Burt, Steve Schulthess, and Robert Murphy represented the various defendants. Name of Case/County: BENITA NAHIMANA v. ARTHUR J. BUTT & KUNDU/d/b/a BIJOY PROPERTIES & THOMAS MORGAN Date of Injury: Date of Settlement: June 2014