HB Litigation Conferences Lead Litigation 2013

1. FACT SCENARIO
FOR JUDICIAL ROUNDTABLE
VENUE:
Anywhere County, NY
PLAINTIFFS:
Nicholas Knolls (Child #1) D.O.B. 8/13/1990
William Knolls (Child #2) D.O.B. 12/21/1991
DEFENDANTS:
Jonathan Smith (25 Shady Tree Lane) – Insurance policy limits of $100,000
(reservation of rights issued – coverage only from 1/2/92 – 1/2/93)
Amy Jones (3 Oak Avenue) – Insurance policy limits of $300,000
Child #1 – Nicholas Knolls
Date
1/9/1992
2/26/1992
5/17/1993
7/1/1993
10/6/1993
2/8/1994
11/3/1994
Blood Lead Level
19 ug/dL
20 ug/dL
48 ug/dL
42 ug/dL
16 ug/dL
34 ug/dL
10 ug/dL
Test Type
F
F
F
V
V
V
V
Address
25 Shady Tree Lane*
25 Shady Tree Lane*
25 Shady Tree Lane*
25 Shady Tree Lane*
3 Oak Avenue**
3 Oak Avenue**
1035 White Street
Child #2 – William Knolls
Date
6/6/1993
9/4/1993
10/16/1993
5/8/1994
11/3/1994
Blood Lead Level
19 ug/dL
24 ug/dL
19 ug/dL
13 ug/dL
7 ug/dL
*
**
Test Type
F
V
V
V
V
Address
25 Shady Tree Lane*
25 Shady Tree Lane*
3 Oak Avenue**
3 Oak Avenue**
1035 White Street
Defendant Jonathan Smith’s Property
Defendant Amy Jones’s Property
PROPERTIES AND DATES OF RESIDENCY:
8/13/90 – 5/91: 96 Holley Terrace
5/91 – 9/93: 25 Shady Tree Lane (Defendant Jonathan Smith’s property)
10/93 – 10/94: 3 Oak Avenue (Defendant Amy Jones’s property)
10/94 – 12/97: 1035 White Street
12/97 – 12/00: 87 Richard Avenue
1/01 – 6/06: 786 Candlewood Lane
6/06 - Present: 27 Sandy Creek

2. LIABILITY:
Defendant Jonathan Smith (25 Shady Tree Lane)
Defendant Smith’s property, located at 25 Shady Tree Lane, was referred to the Department of Health
on July 15, 1993 after reports that the Plaintiffs experienced elevated blood lead levels. Upon
inspection of the property, the exterior was noted as being in good condition, lead paint violations were
found on the interior of the house, including: all bedroom doors, door trim, and door jambs; the
bathroom window sill and frame; the walls and ceiling in the children’s closet; and the wainscoting in
the living room and dining room. A re-inspection of the property on August 15 revealed that all
violations were still present and no progress had been made to abate the property. All violations were
finally abated by November 30, 1993.
Defendant Smith was not previously cited for any other lead paint violations at 25 Shady Tree Lane,
and was additionally never cited for violations at his two other rental properties.
Mr. Smith is being afforded a defense by Shield Insurance. Coverage however was terminated prior to
his sale of the property and is only in place from 1/2/92 to 1/2/93.
Defendant Amy Jones (3 Oak Avenue)
Defendant Amy Jones was first cited for lead paint violations in March of 1990 at another property that
she owned and rented, located on Main Street. Ms. Jones will likely be portrayed by plaintiffs’ counsel
as a “repeat poisoner.”
Ms. Jones’s property, located at 3 Oak Avenue was later cited for lead paint on March 15, 1994, during
the Plaintiffs’ tenancy. Both interior and exterior violations were found on the following surfaces: front
porch lattice, railings, spindles, floor, and columns; the front door threshold; all window wells, trim,
frames, and sills; the kitchen pantry cabinets; and the door jamb and trim in all bedrooms. All interior
violations were quickly abated by April 15, 1994, and exterior violations were abated the following
month, on May 30, 1994.
Ms. Jones ultimately evicted the family for nonpayment of rent. Once the family moved, she noticed
marijuana plants in the backyard. She called the police but does not know what came of her call.
ACADEMIC PERFORMANCE:
Child #1 Nicholas Knolls
In kindergarten, Nicholas was described as a very friendly child, but he appeared to be developing
slower than that of his peers. In the first grade, Nicholas was diagnosed with ADD and classified as
Learning Disabled. As a result, he was administered an Individual Education Plan (“IEP”) and was
given 504 Accommodations, which allowed him extra time for taking tests. This classification
continued throughout elementary school, and Nicholas was placed in a 15:1:1 classroom setting.
Specifically, Nicholas struggled with Reading, English Language Arts, Spelling, and Math. His
teachers felt that he was a capable child, but often relied too much on assistance from others.
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3. In middle school, Nicholas was declassified as Learning Disabled. As a result, Nicholas was placed in
regular classrooms, but was still given special testing accommodations. In the seventh grade, Nicholas
began exhibiting defiant behaviors. Nicholas was caught skipping class on one occasion, and was
given detention. On another occasion, he was caught with marijuana on school property and
suspended. His grades in middle school dropped steadily.
During high school, Nicholas struggled in substantive classes, but performed quite well in elective
courses, including Physical Education. He played baseball during his freshman and sophomore years
of high school, but did not advance to the Varsity level. Nicholas received after-school tutoring in
nearly all subjects during the tenth grade, but attended summer school for Global Studies and English.
In the eleventh grade, Nicholas missed over forty days of school and his teachers noted that his lack of
presence in the classroom was seriously affecting his ability to achieve success. During that same time,
Nicholas obtained a job at a local grocery store. He graduated from high school with a 1.7 grade point
average and did not attend college.
Shortly after high school, Nicholas moved in with his pregnant girlfriend, Elyssa, and continued
working at the grocery store until he was arrested and subsequently convicted of a drug related offense.
He is currently incarcerated.
Child #2 William Knolls
William was referred to the Preschool Committee on Special Education at the age of five. He was
classified as a Preschool Student with a Disability in language and communication, and was
subsequently placed in a 12:1:1 classroom setting. William also began receiving speech and language
therapy in kindergarten, which continued throughout elementary school.
Academically, William struggled most with Reading and Spelling, and was held back in the first grade
as a result. During his second year in the first grade, William was diagnosed with ADHD and classified
as Learning Disabled. Throughout the remainder of elementary school, he received Academic
Intervention Services (“AIS”) and speech therapy, and was administered an IEP each year. As part of
his IEP, William was given 504 Accommodations, which allowed him extra time for completing tests.
William continued to struggle academically as he advanced to the middle school. He was no longer
receiving speech and language therapy, but was placed in a 15:1:1 special education setting and was
given an IEP for each academic year. In the seventh grade, William began missing several days of
school, and teachers noticed that his grades dropped significantly. As a result, he failed English and
History and attended summer school after the seventh grade. During the eighth grade, William was
suspended three times for disrupting class, talking back to school administrators, and involving himself
in a physical fight with another peer.
Throughout high school, William remained in a 15:1:1 special education setting. His grades were
consistently B’s and C’s, and he became part of the track and cross country teams. William’s
attendance throughout high school was fair, and he missed only a few days of school here and there.
He received his GED after the twelfth grade, and later became a certified HVAC technician.
PRENATAL CARE:
The Plaintiffs’ mother, Mrs. Knolls, began receiving prenatal care approximately two months into her
pregnancy with Nicholas. Because her pregnancy with William, however, came as a surprise, Mrs.
Knolls did not receive prenatal care for the first four months of that pregnancy.
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4. Mrs. Knolls denied used of drugs and alcohol during her pregnancies with Nicholas and William, but
admitted to smoking about one pack of cigarettes per day.
Nicholas was delivered at full-term via a spontaneous vaginal delivery. William was two month
premature and was placed in the NICU for four weeks.
MEDICAL HISTORY:
During the first several months of his life, Nicholas had trouble feeding and often experienced extreme
vomiting and diarrhea. As a result, he began losing weight and was diagnosed with anemia. When he
was nearly one year old, he was diagnosed with asthma. On July 6, 1993, when he was nearly three
years old, Nicholas underwent chelation therapy due to his elevated blood lead levels. At the age of
six, Nicholas failed his vision test at school and needed prescription eyeglasses.
At birth, William was diagnosed with a heart murmur, but this condition was not noted as a serious
medical concern, and he eventually outgrew it. Similar to his brother, William was also diagnosed with
asthma as a child, but again, outgrew the condition. He experienced several ear infections in a short
amount of time, and had tubes placed in his ears when he was just over three years old. He was
diagnosed with moderate bilateral hearing loss, which he eventually overcame.
ADDITIONAL INFORMATION:
During their childhood, the Plaintiffs spent a significant amount of time at their paternal grandparent’s
house and were also often babysat by relatives. Between June and August of 1993, the Plaintiffs
attended a daycare program Monday through Friday from 7:00 a.m. until about 4:00 in the afternoon.
The home was in an older section of the City but the home was never tested for lead paint.
The Plaintiffs’ mother and father were married prior to Nicholas’s birth, and have remained married
until the present time. They separated for almost one year, from February of 1995 through January of
1996, and the children continued living with their mother. The Plaintiffs’ home environment has
remained quite stable ever since Mr. Knolls moved back in with the family.
Mrs. Knolls was a stay-at-home mother for the first year of Nicholas’s life, and then began working in
1991 as a maid at a hotel, where she dealt with many different types of industrial chemicals. Plaintiffs’
father, Mr. Knolls, has been employed as a mechanic since about 1985 and restored old cars in the
garages of the rental properties where he and the Plaintiffs resided. Both Mr. and Mrs. Knolls smoked
cigarettes in the home while the Plaintiffs were growing up.
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