Landlord In Lawsuit Maintains His Apartment Was Not The Source of Plaintiff’s Lead Poisoning
On March 2, 1995, plaintiff Cynthia Morales, an 18-month-old girl who resided in a Bronx apartment building that was located at 2429 East Tremont Ave., underwent a medical test that revealed that her blood’s lead concentration measured 20 micrograms per deciliter. Such a concentration is 100% greater than the generally accepted toxicity threshold.In May 1995, the New York State Department of Health inspected Cynthia’s apartment and determined that two radiators were covered by lead-based paint. The inspection did not reveal the presence of any other chipping or peeling lead-based paint. The building’s owner and landlord promptly addressed the hazard that was created by the radiator, and the paint was completely removed within the ensuing week. However, Cynthia’s mother, Marisol Tolentino, claimed that Cynthia suffers lingering cognitive deficits that stem from lead poisoning that occurred during the child’s residency in the apartment.Tolentino, acting as Cynthia’s parent and natural guardian, sued her apartment’s owner and landlord, Puccio Properties of New York Inc. Tolentino alleged that the defendant failed to recognize and abate the apartment’s lead-based hazard and that its failure created a dangerous condition.
Morales claimed that she had previously reported that the apartment harbored chipping, peeling lead-based paint, but that the landlord did not act until after the New York State Department of Health had conducted its inspection.
Tolentino’s landlord testified that Tolentino’s apartment underwent a total renovation that occurred several years before Cynthia’s alleged poisoning. He noted that the renovation included the replacement of all of the apartment’s plasterboard.
Defense counsel noted that Tolentino had spoken to the New York State Department of Health’s inspectors and that the conversation included her indication that she believed that Cynthia’s lead poisoning occurred during the child’s stay in a babysitter’s residence.
Tolentino claimed that Cynthia suffered lead poisoning. On March 2, 1995, a test revealed that the child’s blood’s lead concentration measured 20 mcg/dL. Eleven days later, a follow-up test revealed that her blood’s lead concentration measured 8 mcg/dL. Such a reading is within tolerable limits. No treatment was rendered during the intervening 11 days, and Cynthia’s environment did not change during that time. The plaintiffs’ expert neurologist and the defense’s expert pediatric neurologist agreed that such a sharp decline is unusual.
Cynthia’s blood’s lead concentration continually declined until it reached 1 mcg/dL. The plaintiffs’ expert neurologist agreed that Cynthia suffers lead poisoning that was sustained during the child’s residency in the East Tremont Avenue apartment.
Tolentino claimed that Cynthia suffers residual injuries that include cognitive deficits, headaches and pain that stems from her stomach. Cynthia, now 12, is a seventh-grade student, but she does not perform well. The plaintiffs’ expert neuropsychologist opined that Cynthia’s verbal skills exceed average levels, but that the child’s intelligence does not reach average levels. The expert contended that the disparity is a product of lead poisoning. She also contended that Cynthia suffers a learning disability and that the New York City Board of Education is considering Cynthia’s candidacy for special-education classes.
The plaintiffs’ expert economist opined that Cynthia’s cognitive deficits have diminished her potential earnings. He contended that Cynthia will probably not earn significantly more than the minimum wage.
Tolentino sought recovery of a total of $2 million, which included damages for Cynthia’s reduced earning capacity and damages for the child’s past and future pain and suffering.
Defense counsel presented a pediatric neurologist who conducted an independent medical examination of Cynthia. The doctor opined that Cynthia does not exhibit any evidence of lead poisoning. He further opined that the March 2 test results could have been the product of an erroneous testing process or that it could have revealed a lead-concentration spike that was caused by a single, massive ingestion of lead paint. He opined that the latter explanation would justify the quick subsequent decline of Cynthia’s blood’s lead concentration. However, neither side presented evidence that indicated that Cynthia had ingested lead-based paint.
The jury rendered a defense verdict. Although the jury did not specifically indicate the basis of its finding, defense counsel believes that the verdict was based on a lack of causation.
Plaintiff’s counsel has moved to set aside the verdict. He has also moved for Judge Stanley Green’s recusal from the post-trial process. He contended that Green remarked that the plaintiff’s expert neuropsychologist delivered “ridiculous” testimony. Plaintiff’s counsel is also contesting comments that Green allegedly delivered during in-trial testimony