Future Damages Upheld In Lead Paint Case Despite Lack of Symptoms
Verdict Affirmed for Undeveloped Injuries From Lead Paint Poisoning
[Reprinted from the New York Law Journal, June 30, 2008]
In a lead poisoning case filed on behalf of two Brooklyn sisters, a state judge has upheld a jury verdict awarding the girls no damages for past pain and suffering, but a total of $800,000 for future pain and suffering.
The seemingly contrary findings were not inconsistent, Supreme Court Justice Wayne P. Saitta ruled, as "a valid line of reasoning" could find that the 10- and 12-year-olds' injuries had simply not yet developed.
"Unlike a typical traumatic injury to the body, here there was evidence that the Plaintiffs' pain and suffering caused by the lead poisoning will manifest as developmental deficits of their mental and intellectual abilities," Justice Saitta wrote in Solis-Vicuna v. Notias, 17769/02. "These developmental deficits which will diminish the Plaintiffs' ability to enjoy life in the future, despite the fact that their ability to enjoy life presently may not be affected."
Plaintiff Julia Vicuna initiated the case on behalf of her two daughters, Wendy and Yesenia, against the owners of two Bay Ridge apartments in which the family had lived.
Jian Pyng and Yi Ching Tan owned the family's first apartment, on 68th Street; Maria, Stravos and Kalliopi Notias owned the second, on Ridge Boulevard.
Ms. Vicuna and her daughters claimed both sets of defendants knew of the lead paint dangers in their premises, as well as the presence of the children, yet consistently refused to remediate the problem.
The Tans defaulted.
In the trial against the Notiases, the plaintiffs cited a series of Department of Health inspections finding dangerously high levels of lead, as well as orders for abatement that went unheeded.
Lead poisoning, which in cities usually comes from exposure to lead paint, has been linked to learning disabilities, among other cognitive and neurological disabilities.
In their defense, the Notiases contended that, as one expert put it, "There's nothing in the records that would suggest that Yesenia will not continue to function at the best level of her ability" or that the "lead levels have caused any kind of problem" for Wendy.
A plaintiffs' expert countered that she expected "at some point for Yesenia to have some major problems" and that the "lag effect" may prevent Wendy from "keep[ing] up with her peers."
The jurors believed the plaintiffs' experts, and though they declined to award any damages for past pain and suffering, they awarded Wendy and Yesenia $380,000 and $420,000, respectively, for future pain and suffering, as well as a total of $260,000 in punitive damages.
The jury found the Notiases 100 percent liable for Yesenia's damages and split liability 60-40 between the Notiases and Tans for Wendy's injuries.
The Notiases moved to set aside the verdict, arguing that the discrepancy between the past and future awards constituted an inconsistent verdict.
In a decision handed down earlier this week, Justice Saitta rejected the motion and affirmed the awards, which totalled $1.04 million.
"The testimony of Dr. [Vicki] Sudhalter, in particular, supports the jury's verdict that, although Plaintiffs' injuries do not justify past conscious pain and suffering, that they will suffer in the future as the result of the lead poisoning," Justice Saitta concluded.
Alberto Casadevall of Fitzgerald & Fitzgerald in Yonkers represented Ms. Vicuna and her daughters.
"These cases can be confusing for juries as sometimes the kids don't have any overt symptoms," Mr. Casadevall said. "These kids have some deficits, and the jury was able to understand that."
Adam G. Greenberg of Harrington, Ocko & Monk in White Plains represented the defendants. Mr. Greenberg said his clients would likely appeal.
- Mark Fass can be reached at mfass@....