BALTIMORE, MARYLAND LEAD PAINT DEFENSE Client Alert: www.CharlesJeromeWare.com

The national law firm of Charles Jerome Ware, P.A., Attorneys and Counsellors, is one of Maryland's premier lead paint defense firms.

Along with its expertise in lead paint defense work, the firm is very highly regarded in the areas of criminal defense and civil litigation, medical malpractice and wrongful death, personal injury and transactional legal matters.

Attorney Charles Jerome Ware is renowned and consistently ranked among the best attorneys and legal counsellors in the United States. [GQ Magazine, The Washington Post, The Baltimore Sun, The Columbia Flier, USA TODAY, The Howard County Sun, The Anniston Star, The New York Times, et al.]

The national law firm of Charles Jerome Ware, P.A., Attorneys and Counsellors is: "Still working. Still committed. Still here to make a difference."

Lead paint lawsuits by tenants against landlords have increased during the past few years as the public has become more aware of the dangers created by lead paint.

Lawyers who represent injured children or residential landlords should investigate the facts to determine the identity of potentially liable defendants, the cause or causes of the injury, the potential defenses to the claim, which experts to utilize, and the different types of damages available in the case.

How Much in Damages Can Be Expected?

Damages recoverable in lead paint suits are similar to those recoverable in other types of personal injury litigations: loss of earning capacity, medical expenses, and pain and suffering. Parents may have a claim for loss of consortium in some jurisdictions. Also, some jurisdictions allow for the recovery of punitive damages if the facts of the case establish the elements for the award.

The largest dollar claim for damages generally falls under the category of vocational limitations.

In most cases, plaintiffs allege that the exposed child will be restricted in vocational options as an adult due to irreversible injuries caused by the exposure to lead that permanently disable the affected child. As a result, the child's earning capacity as an adult will be diminished.

In an attempt to mitigate loss of earning capacity damages, defendants may present evidence that the parents possess modest or below-average intelligence, together with expert testimony that children usually exhibit a level of intelligence that mirrors their parents.

The assessment by the defendant on vocational damages may focus on the child's home environment and the parents' child-rearing practices. These factors may strongly affect a child's cognitive behavior and development.

Defense counsel may argue that it is better to assess a child's future earning capacity on familial elements rather than on lead exposure.

Maryland Lead Law

Maryland Environmental Article 6-8 - "The Lead Poisoning Prevention Program" Statute

Maryland Environmental Article 6-8, also referred to as Maryland Housing Bill 760, "The Lead Poisoning Prevention Program" statute, was signed into law in May 1994 and became fully effective on February 24, 1996.

The law is intended to make all privately owned pre-1950 rental housing units safer for children, while also helping rental property owners and managers to avoid costly lead poisoning litigation by complying with specific lead hazard reduction measures or a dust testing procedure set forth in the statute. This statutory provision applies to all such housing units and, at an owner's option, to rental units built after 1949.

In essence, the law sharply limits the rights of children and their representatives to traditional tort damages for lead poisoning, provided that: (1) the property owner has satisfied certain housing unit registration requirements; and (2) the unit has either passed lead dust tests or undergone a set of "risk reduction measures" which must be verified by an independent, certified third party who performs a visual inspection When the unit meets this standard, the owner is entitled to a limited tort immunity.

However, if a child living in the unit develops an elevated blood lead level which exceeds 20 micrograms of lead per deciliter of blood, the owner has the option of making a "qualified offer" to the child and his or her legal representative.

A qualified offer is, in effect, a settlement of that child's potential lead poisoning claim and provides remedial compensation.

Under the provisions established in House Bill 760 for the qualified offer, the owner and his or her insurance company would: (1) offer to relocate the child's family to a housing unit that has been certified as "lead-safe," including payment of a rent differential if the "lead-safe" unit rents at a higher monthly rate; and (2) pay for any necessary medical treatment to mitigate the effects of lead poisoning when the treatment is not covered by a health insurance plan or public medical assistance.

Relocation expenses are payable until the poisoned child reaches age six, subject to a $9,500 cap. Out-of-pocket medical expenses are payable until the poisoned child reaches the age of 18, subject to a $7,500 cap.

Since a major reason for enacting House Bill 760 was the widespread and routine application of lead liability exclusions in general liability policies covering rental housing units, the statute adds provisions to the Maryland Insurance Code which limit the circumstances under which these exclusions would be effective. Therefore, access to insurance and limited liability are the primary incentives or benefits to owners of pre-1950 units who meet the statutory risk reduction standards. Additionally, the systematic reduction of lead-based paint hazards in these older units is meant to be the primary means for preventing lead poisoning in the state.

In summary, Maryland House Bill 760 takes on some of the most difficult public health, housing and liability issues posed by childhood lead poisoning to provide a measure of safety for children and a relief from the threat of litigation for rental property owners.

Jackson, et al. v. The Dackman Company, et al.

No. 131, September Term 2008 (Md. Oct. 24, 2011)

On October 24, 2011, the Maryland Court of Appeals in Jackson v. Dackman, struck down as invalid a statutory provision in Maryland’s Reduction of Lead Risk in Housing Act (“Act”) that provided immunity from liability to landlords if: (1) they achieved full compliance with certain requirements under the Act including registration and timely renewal of rental properties constructed prior to 1950; compliance with applicable risk reduction and response standards; and compliance with notice requirements to tenants; and (2) they had opportunity to make a qualified offer of up to $17,000 for reasonable relocation and medical expenses.

In light of the Dackman decision, landlords have found themselves facing a great deal of uncertainty and many are concerned that they may now be potentially exposed to huge liability claims, even if they previously had been fully compliant with the Act’s provisions.

Charles Jerome Ware, P.A., Attorneys and Counsellors can provide winning defense representation for:

1. Defense of Lead Paint Cases
2. Asset Protection
   
   and can assist lead paint insurance carriers and claims representatives with:
3. Defense of Lead Paint Cases
4. Presentations on Maryland’s Evolving Lead Paint Laws

Comparing State and Federal Laws

Federal and state laws address lead poisoning issues in slightly different ways. A shared feature is that each law requires that specific information be given to current and new tenants. Both Federal and Maryland law require landlords to give to each tenant the pamphlet “Protect Your Family from Lead in Your Home”. Maryland law also requires distribution by landlords of an additional pamphlet entitled “Lead Poisoning Prevention - Notice of Tenants’ Rights”.

For detailed information about the federal law and how to obtain copies of the federally mandated pamphlet, call the National Lead Clearinghouse at 1-800-424-LEAD (5323) or the Coalition to End Childhood Lead Poisoning at 410-534-6447.

Additionally, for detailed information about the Maryland law and how to obtain copies of the state-mandated “Notice of Tenants’ Rights” call the Maryland Lead Poisoning Hotline at 1-800-776-2706, or TDD (410) 631-3009, or the Coalition to End Childhood Lead Poisoning at 800-370-LEAD.

Maryland Lead Poisoning Prevention Program

In 1994 the General Assembly established the Lead Poisoning Prevention Program for the purpose of reducing the incidence of childhood lead poisoning while maintaining the stock of affordable rental housing. This program requires owners of older residential rental properties to meet certain risk reduction standards. It also provides more affordable insurance and the protection of limited liability for owners who comply. It is administered by the Maryland Department of the Environment (MDE). For more information call the Lead Poisoning Hotline at 1-800-776-2706, or TDD (410) 631-3009. Read the Law: MD Code, Environment § 6-801- 6-852; Article 48A, Secs. 734-737; Real Prop. § 8-208.2

Following is a summary of the law:

The owners of all rental dwelling units built before 1950 must comply with this law. Owners of units built between 1950 and 1978 may choose to comply and thus benefit from limited liability.

The law exempts rental units owned or operated by federal, state, or local government or by a public, quasi-public, or municipal corporation, provided the property is subject to standards that are at least as strict as the standards established by this law.

[www.nchh.org/Policy/MarylandLeadLaw; www.pklaw.com/lead paint defense; www.peoples-law.org/Lead Paint in Maryland; articles.baltimoresun.com/2010-12-02/health/bs-md-rockind-appeal; www.mde.state.md.us/programs/ Lead Poisoning Prevention/Pages/Programs/Land Program/Lead Coordination/index.aspx; www.americanbar.org/newsletter (Spring 1997)]