| Bygrave v New York City Hous. Auth. |
| 2009 NY Slip Op 06361 [65 AD3d 842] |
| September 1, 2009 |
| Appellate Division, First Department |
| Darius Bygrave, an Infant, by His Mother and Natural Guardian,Averdean Bygrave, Appellant, v New York City Housing Authority,Respondent. |
—[*1] Herzfeld & Rubin, P.C., New York (Miriam Skolnik of counsel), for respondent.
Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered December 4, 2007,which, to the extent appealed from as limited by the briefs, granted defendant's motion forsummary judgment dismissing the complaint, reversed, on the law, without costs, the motiondenied and the complaint reinstated.
In February 1997, the infant plaintiff and his family moved into an apartment owned bydefendant. He was 21 months old at the time. In November 1997, paint on the walls and ceilingof the apartment began to bubble and peel, and dust from the paint accumulated on thewindowsills and baseboards. Plaintiff would often play with the paint bubbles and place hisfingers in his mouth after they became covered with dust. Shortly after plaintiff first moved intothe apartment, a blood test revealed that his blood contained four micrograms (�g) of lead perdeciliter (dl). In September 1998, a blood test revealed that plaintiff had a blood lead level of10.4 �g/dl. Six weeks thereafter plaintiff's lead level rose to 12.6 �g/dl. Plaintiff's mothernotified defendant that she believed her son had been poisoned by lead paint in the apartment.Defendant abated the lead paint condition in March 1999. Shortly before the abatement workbegan, the lead levels in plaintiff's blood began to decline. They never again exceeded 10 �g/dl.
In January 2000, the New York City Department of Education referred plaintiff for variousevaluations to assess whether he qualified for preschool special education services. Plaintiff'smother had expressed concerns regarding his language and his fine motor and independent livingskills, all of which appeared to her to be progressing normally until plaintiff began to ingest leadpaint. A psychological evaluation determined that plaintiff had a "General Conceptual Ability"score in the low range. He was found to have some "mild autistic-like characteristics. . . which include . . . difficulty maintaining eye contact, difficultyrelating meaningfully at times, repetitive speech, difficulty with language, unusual response toloud sounds, difficulty adapting to changes and unusual play." Physical and occupational therapyevaluations found plaintiff's gross and fine motor skills to be significantly delayed. A psychiatricevaluation resulted in a diagnosis of "PDDNOS[FN*](perhaps secondary to lead exposure)." In early [*2]2003, theSocial Security Administration diagnosed plaintiff with autism and mental retardation.
Plaintiff commenced this action against defendant and in his bill of particulars alleged thefollowing injuries from exposure to lead paint: "Plumbism, lead poisoning and its sequelae;Anemia; Elevated blood lead levels; Increased lead burden in blood and infant's body, causingdevelopmental delays and brain damage; Cognitive deficits and learning difficulties; Loss ofI.Q.; Behavioral irregularities; Anti-social behavior patterns; Developmental delays resulting ininability to fully interact and play with others; Difficulties in concentration, unfocused andshortened attention span, attention deficits; Necessity for extensive medical monitoring;Learning difficulties and impairment in ability to carry out responsibilities; Inability toparticipate in usual childhood activities; Language deficits and delay; Necessity for multiple andpainful blood tests; Physical and mental pain, suffering, and anguish; Embarrassment andhumiliation; Increased lead in bony formations; Elevated bone lead level; Sleep disorders; Visualdisturbances; Hyperactivity; Lack of concentration; Memory Loss; Infant plaintiff has alsosuffered subclinical joint and connective tissue disease, disease of the immune system, kidneydisease, hypertension and visual and auditory system processing deficits."
At the close of discovery, defendant moved for summary judgment. Its motion was primarilysupported by the affidavit of Joseph Maytal, a pediatric neurologist who had performed aphysical examination of plaintiff. In analyzing the effects of plaintiff's lead exposure, Dr. Maytalrelied on a 1991 statement of the United States Centers for Disease Control (CDC) entitledPreventing Lead Poisoning in Young Children (Oct. 1991). The statement was intended to guidepediatric health care providers in how to react when confronted by blood lead levels over 10�g/dl. It noted that "studies suggest that adverse effects of lead occur" (Preventing LeadPoisoning in Young Children, at 29) at levels over that threshold. Dr. Maytal explained thataccording to the CDC statement, children with blood levels between 10 �g/dl and 14 �g/dl arein a "border zone," and " '[t]he adverse effects of blood lead levels of 10-14 �g/dl are subtle andare not likely to be recognizable or measurable in the individual child.' "
Dr. Maytal further asserted that "it is my opinion, within a reasonable degree of medicalcertainty, that the infant plaintiff's impairments alleged in the Verified Bill of Particulars werenot caused by the infant plaintiff's very slightly and very briefly elevated blood lead levels. Themere fact that [plaintiff's] lead level was documented to be minimally elevated does not meanthat any of his problems are attributable to his blood lead level. Indeed, as reported by the CDC,the adverse effects of the blood lead levels measured in the infant plaintiff are subtle and notlikely to be measurable." In addition, he quoted from an unattached report of an organizationcalled the American Council on Science and Health (ASCH) entitled Lead and Human Health:An Update (2000). According to Dr. Maytal, that publication acknowledges that lead is capableof causing neurological effects at high doses, but states that "it is 'difficult if not impossible toattribute toxicologically significant behavioral or neurological effects to increasingly lower[blood lead levels] because of the numerous confounding factors that influence intelligence anddevelopment in children.' " These so-[*3]called "confoundingfactors," which Dr. Maytal related the article as identifying, "include 'socioeconomic status,childhood diseases, parenting skills, genetic predisposition . . . maternal andpaternal intelligence . . . child abuse, nutrition and prenatal care, labor and delivery,and personality characteristics."
Finally, Dr. Maytal stated that: "It must be noted that there is absolutely no objective,empirical, scientific or medical report or study which links minimally and briefly elevated bloodlead levels to the development of autism or mental retardation. Nor is such a link recognized bythe relevant medical or scientific communities. It is therefore my opinion, within a reasonabledegree of medical certainty, that the infant plaintiff's minimally and briefly elevated blood leadlevels did not contribute to the development of either his autism or mental retardation."
The motion court held that defendant met its burden of establishing prima facie entitlementto summary judgment through Dr. Maytal's affidavit. It further held that plaintiff did not presentevidence in opposition sufficient to raise an issue of fact. The court found that plaintiff'sevidence, including the affirmations and affidavits of three medical experts who had examinedplaintiff, collectively did not, other than through "bald conclusions," demonstrate that plaintiff'sinjuries were caused, at least in part, by exposure to lead. This was fatal to plaintiff's case, thecourt stated, because "there are several possible causes for . . . plaintiff's deficits,for many of which the defendant is not responsible."
The court erred in awarding defendant summary judgment because defendant did notestablish its prima facie entitlement to such relief. Dr. Maytal's opinion that plaintiff's leadexposure did not result in his injuries was based not on an individualized assessment of plaintiff'sparticular condition but rather on the CDC's statement that "[t]he adverse effects of blood leadlevels of 10-14 �g/dl are subtle and are not likely to be recognizable or measurable in theindividual child." (Preventing Lead Poisoning in Young Children, at 29.)
To bar plaintiff's claim on that basis would be to effectively declare that a child with bloodlead levels in that range can never sue for damages and we decline to make such a far-reachingdetermination. First, such an approach would ignore the fact that the CDC statement expresslyrecognizes that there is a deleterious effect on the human body attributable to blood lead levelsover 10 �g/dl. Second, the CDC statement did not state that a child can never exhibit illeffects as a result of blood lead levels between 10 to 14 �g/dl, only that it is "unlikely" that he orshe would. It is worth noting that the CDC statement predates plaintiff's allegation of leadpoisoning by 13 years. During this time, the ability of the medical community to recognize "theadverse effects of blood lead levels of 10-14 �g/dl" has presumably advanced. Finally, the NewYork City Health Code provides that "lead poisoning [is to be defined as] a blood leadlevel of 10 micrograms per deciliter or higher" (24 RCNY 11.03 [a] [emphasis added]). The term"poisoning" is generally defined not merely as a person's exposure to a dangerous substanceitself, but rather to an exposure that is likely to result in injury. For example, Merriam-Webster'sCollegiate Dictionary (11th ed) defines "poison" as "a substance that through its chemical actionusually kills, injures, or impairs an organism." Thus, the City of New York has determined thatlead paint exposure which causes a child's blood lead level to rise above 10 �g/dl usually"injures" or "impairs" the child. To not recognize the possibility that plaintiff's injuries in thiscase were caused by lead paint exposure would be at odds with that determination.[*4]
Because the CDC statement is insufficient to generallybar all personal injury claims by children with blood lead levels between 10 and 14 �g/dl,defendant was required to establish that in this particular case there was no causal link betweenthe specific injuries alleged in plaintiff's bill of particulars and his lead paint exposure.Defendant failed to do this through Dr. Maytal's affidavit, because Dr. Maytal offered only theconclusory statement, without any scientific evidentiary support, that "plaintiff's impairments. . . were not caused by . . . 'border zone' blood lead levels" (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). A detailed explanationof why plaintiff's alleged injuries in this case could not have been related to lead paint exposurewas required to shift the burden to plaintiff.
Nor does reliance on the ASCH report avail defendant. Dr. Maytal did not state whether thatreport identifies at what blood lead levels it becomes "difficult if not impossible" to discernbetween "toxicologically significant behavioral or neurological effects" and "the numerousconfounding factors that influence intelligence and development in children." In addition, Dr.Maytal failed to establish that autism, mental retardation or one of the other so called"confounding factors" cited in the ASCH report was far more likely than lead poisoning to havecaused plaintiff's symptoms.
Indeed, Dr. Maytal's focus on plaintiff's autism and mental retardation did not assistdefendant in meeting its prima facie burden, because plaintiff's bill of particulars does not allegethose injuries. Even if some of plaintiff's symptoms are attributable to his autism and mentalretardation, the burden was on defendant, in the first instance, to explain why none of the injuriesalleged in plaintiff's bill of particulars could have been the result of lead poisoning, as opposed tothose ailments. Nowhere in his affidavit did Dr. Maytal state that it is impossible to separate theeffects of autism and mental retardation from the effects of lead exposure such that no jury couldpossibly award damages for the latter notwithstanding the existence of the former. Similarly, Dr.Maytal did not address the possibility that the lead exposure exacerbated those symptoms whichwere initially caused by autism or mental retardation.
This is not to say that blood lead levels of 10 to 14 �g/dl will always give rise to asuit for damages. A plaintiff must still prove that he or she developed physical symptoms as aresult of having been exposed to lead paint. For example, in Veloz v Refika Realty Co. (38 AD3d 299 [2007]), the plaintiffalleged very mild cognitive deficits which the defendant challenged as not being generallyrecognized as ordinary sequelae of lead poisoning. This Court affirmed a grant of summaryjudgment dismissing the complaint, stating that "[t]hrough its expert's affirmation, the ownerestablished its entitlement to summary judgment on the ground that the infant plaintiff did notsuffer any physical or cognitive injuries stemming from the alleged lead poisoning, thus shiftingthe burden to plaintiffs to raise an issue of fact" (38 AD3d at 300). In that case, the plaintiff didnot raise an issue of fact because his expert's affirmation "fail[ed] to support either the generalproposition that early exposure to lead results in such impairments or his specific conclusion thatplaintiff's early exposure resulted in the impairments he saw" (id.). Here, in contrast toVeloz, plaintiff is not alleging injuries which have never before been recognized as beingcaused by lead paint exposure. To the contrary, there is nothing novel in the theory that leadpaint exposure causes cognitive deficits. Accordingly, defendant was required to establish byother than conclusory statements that those deficits were not caused by the lead paint exposure.
Because defendant failed to meet its initial burden of establishing entitlement to judgment inits favor as a matter of law, the motion court should have denied the motion for summary [*5]judgment without even considering the sufficiency of plaintiff'sopposition papers (see Winegrad, 64 NY2d at 853). Even if we were to find thatdefendant shifted the burden, however, we would find that plaintiff submitted sufficient evidenceto raise an issue of fact. Plaintiff's three medical experts collectively presented numerousscientific articles concluding that exposure to lead paint which results in blood lead levels ofeven less than 10 �g/dl can cause demonstrable injuries. This directly contradicted Dr. Maytal'sopinion. Additionally, all three experts opined that, to a reasonable degree of medical certainty,the symptoms they observed in plaintiff were causally related to his lead poisoning, and wereseparate injuries from his autism and mental retardation.
Finally, since plaintiff's opposition is academic, we need not decide whether the motioncourt should have refused to consider plaintiff's experts' affidavits and affirmations on theground that plaintiff allegedly failed to disclose those experts in a timely fashion pursuant to CPLR 3101 (d) (1) (i). Concur—Gonzalez, P.J., Mazzarelli,Renwick and Abdus-Salaam, JJ.
Buckley, J., concurs in a separate memorandum as follows: I would find that defendant metits initial burden of establishing entitlement to summary judgment, although I agree thatplaintiff's opposition was sufficient to create a triable issue of fact.
Plaintiff was approximately 21 months old when he and his family moved into an apartmentowned by defendant. Three months later, on May 13, 1997, plaintiff's lead paint blood testrevealed four micrograms of lead per deciliter of blood ( g/dl). Testing thereafter revealed: 10.4 g/dl on September 19, 1998; 12.6 g/dl on November 30, 1998; 9 g/dl on January 27, 1999; 8 g/dl on May 1, 1999; under 3 g/dl on November 3, 1999; 7 g/dl on January 22, 2001; under 3 g/dl on December 12, 2001; 6 g/dl on June 29, 2002; 3 g/dl on February 13, 2005.
According to a 1991 publication by the Centers for Disease Control (CDC), relied on bydefendant's pediatric neurologist, Dr. Joseph Maytal, blood lead levels of less than 10 g/dl are"not considered to be indicative of lead poisoning." (Preventing Lead Poisoning in YoungChildren, at 29 [Oct. 1991].) Levels of 10 to 14 g/dl are "in a border zone," in which the adverseeffects "are subtle and are not likely to be recognizable or measurable in the individual child";moreover, the report indicates that "[s]ince the laboratory tests for measuring blood lead levelsare not as accurate and precise as we would like them to be at these levels, many of thesechildren's blood lead levels may, in fact, be <10 g/dl"="">id. [emphasis added]). Childrenwith levels of 15 to 19 g/dl are "at risk for decreases in IQ of up to several IQ points and othersubtle effects" and "should receive followup testing." (Id. at 29-30.) Children with levelsof 20 to 69 g/dl "should have a full medical evaluation," and those with levels of 70 g/dl orgreater "constitute a medical emergency." (Id. at 30.) Thus, according to plaintiff'smedical records, he had a blood level in the "border zone" for at most four months, after which itdeclined to levels not indicative of poisoning.
Dr. Maytal also relied on an American Council on Science and Health (ACSH) 2000 reporttitled Lead and Human Health: An Update, which states that it is "difficult if not impossible toattribute toxicologically significant behavioral or neurological effects to increasingly lower[*6][blood lead levels] because of the numerous confounding factorsthat influence intelligence and development in children" (at 50), including "socioeconomicstatus, childhood diseases, parenting skills, genetic predisposition . . . , maternaland paternal intelligence . . . , child abuse, nutrition and prenatal care, labor anddelivery, and personality characteristics" (at 15-16.)
Based on his examination of plaintiff, interview with plaintiff's mother, review of themedical and school records, medical experience, and use of the CDC and ACSH reports, Dr.Maytal opined, with a reasonable degree of medical certainty, that "the infant plaintiff'simpairments alleged in the Verified Bill of Particulars were not caused by the infant plaintiff'svery slightly and very briefly elevated blood lead levels."
Dr. Maytal's scientifically supported opinion was sufficient to establish defendant's primafacie entitlement to summary judgment on the issue of causation (see Diamond v Di Luzio, 22 AD3d517 [2005]). Contrary to the majority's assertion, neither Dr. Maytal's opinion nor the CDCreport compels a determination that no child with blood lead levels within the "border zone" canever recover from exposure to lead. Dr. Maytal merely testified that plaintiff's very brief andmoderate level within the "border zone," which subsequently decreased, did not support afinding that plaintiff's particular conditions were caused by lead. Nor can Dr. Maytal be faultedfor failing to refute the "presum[ed] advance[s]" in blood testing techniques hypothesized by themajority. Nevertheless, the majority seems to suggest that because it is generally accepted thatlead can cause cognitive deficiencies, it was defendant's burden, in the first instance, to present amedical opinion far exceeding reasonable medical certainty, and more approximating absoluteconviction, that lead was not the cause of any of plaintiff's claimed injuries.
Although defendant met its initial burden on the summary judgment motion, the testimony ofplaintiff's experts was sufficient to raise an issue of fact at least as to whether some of plaintiff'sconditions were exacerbated by exposure to lead. However, I depart from the majority in notingthat most of the scientific articles relied on by plaintiff's experts are of little or no relevance.
For example, an article published in the Journal of Applied Research in 2005 (vol 5 [No. 1],at 80) by Lidsky et al., titled Autism and Autistic Symptoms Associated with ChildhoodLead Poisoning, concerned a study of two children. The first child's blood lead levelexceeded 50 g/dl, and elevated levels persisted for at least 26 months; the second child's bloodlead level peaked at 110 g/dl, and elevated levels continued for at least five years. Thus, bothchildren in that study had blood lead levels that far exceeded plaintiff's in both severity andduration.
Another article, by Lanphear et al., Cognitive Deficits Associated with Blood LeadConcentrations <10 g/dl="" in="" us="" children="" and="">, published in Public HealthReports in 2000 (vol 115 [No. 6], at 521, 526), "suggest[ed] that cognitive deficits are associatedwith blood lead concentrations lower than 5 g/dl." The ambiguous conclusions of "suggest" and"associated" were further diluted by the report's concession that the absence of an adjustment forsuch variables as home environment and maternal intelligence "may have resulted in. . . overestimating the detrimental effects of lead." (Id. at 527.)
Another study, by Canfield et al., Intellectual Impairment in Children with Blood LeadConcentrations below 10 g per Deciliter, published in the New England Journal of Medicinein 2003 (vol 348 [No. 16], at 1517, 1525), merely produced results that "suggest that childrenwith blood lead concentrations below 10 g per deciliter merit more intensive investigation."
Footnote *: PDDNOS stands for pervasivedevelopmental disorder (PDD) not otherwise specified.