Lead Lawsuit Settlement Draws Near; 50 New Orders Issued

The city and legal aid are less than two weeks away from reaching a proposed settlement in a child lead poisoning class action lawsuit that has dragged on for over 17 months.

The proposed settlement update is described in an Oct. 8 joint status report submitted to the state judicial system’s digital docket in the case Nyriel Smith v. City of New Haven.

It comes at a time when the city health department has revamped its lead inspection and abatement enforcement program, which has seen a flurry of recent activity — including over 50 new lead hazard abatement orders filed on the public land records database over the past two and a half months. (See more below.)

Following a September court order requiring a formal update within a month, last Thursday’s filing states that the city and legal aid ​“continue to be engaged in constructive settlement negotiations and expect to have a proposed settlement agreement to submit to the Court within the next two weeks, to be approved by the Court after a notice to the class and a final hearing.”

The report then hints at a legal hurdle recently surmounted in the ongoing talks between the two sides. ​“Such settlement has taken longer than expected on account of disagreement over the definition of the class, but such disagreement has now been resolved,” the report reads. ​“Having resolved the class definition, the parties are working to resolve the substantive obligations, enforcement mechanism, and proposed notice through phone conversations and Zoom meetings.”

State Superior Court Judge Claudia Baio subsequently issued an order last Friday requiring the two sides to submit a new status report no later than Nov. 9.

17 Months And Counting

The one-paragraph update gestures towards one of the most consequential steps forward in recent months in a class action suit first filed in May 2019 by the New Haven Legal Assistance Association against the administration of former Mayor Toni Harp.

The original class action lawsuit alleged — and Harp health department officials admitted in state housing court — that the city had stopped mandating lead paint inspections and issuing lead paint abatement when children tested at blood lead levels between 5 and 20 micrograms per deciliter (μg/dL).

Legal aid attorneys Amy Marx and Shelley White argued that city law required such protections for children testing at and above 5 μg/dL, rather than above the state lead poisoning threshold of 20. City and city-hired attorneys responded that local law was ambiguous, and that the city’s few lead paint inspectors had to triage child lead poisoning cases with higher blood lead levels.

State court judge after state court judge sided with legal aid — in the class action suit and in previous similar suits — in rulings that the city health department had been neglecting local law. The Board of Alders weighed in in late 2019 with a new, updated version of city law that clarified and reinforced the local lead poisoning threshold as 5 μg/dL.

In August 2019, state Superior Court Judge John Cordani agreed to certify a class in the Smith suit, thereby allowing a group of plaintiffs to sue the city. His ruling defined the class as consisting of roughly 300 children who live in New Haven, who are under six years old, and who have tested as having an elevated blood lead level at or above 5 μg/dL. His class certification carved out an exception for children living in federally-subsidized housing authority residences — which in turn led to further, yet-to-be-resolved briefs by both parties arguing, respectively, for broader and narrower definitions of that exemption.

The adversarial court battles between legal aid and the city shifted tone abruptly in January, when Mayor Justin Elicker assumed his office and the city and legal aid started ​“exploring” the possibility of a settlement to the class action suit. Elicker had campaigned in part on criticizing his predecessor’s handling of the lead paint inspection and abatement enforcement program.

In the intervening months, as the Covid-19 pandemic largely shut down the state’s judicial system, the court case — like many others across the state — was pushed out again and again, first because of the temporary suspension of civil housing matters, and then because of status report after status report indicating that the two parties were still in negotiations.

A legal aid attorney and a city spokesperson both declined to comment for this article on the pending proposed settlement and the latest status report in the class action suit.

Bond: Lead Program Has Been A Top Priority

Although resolution of the court case has been delayed for months, the city has kept up its lead paint inspections during the pandemic.

It’s also formally convened the new Lead Paint Advisory Commission, which has met three times since late July, with its next meeting slated for Oct. 20.

According to the city online land records database, since Aug. 1, the local health department has filed 56 new lead paint abatement orders for residences across the city. The orders span lead paint hazard inspections completed by the city health department between mid-April and late September.

Roughly 60 percent of those abatement orders pertain to the presence of dangerously high levels of lead paint — sometimes intact and sometimes chipped and crumbling — in bedrooms, kitchens, hallways, porches, and other areas of a house or an apartment where a child lives. The remaining 40 percent pertain to dangerously high levels of lead paint in the soil surrounding a house or apartment building where a child lives.

Nearly all of the orders call on the respective landlords to abate the lead hazards within 90 days, with a few requiring a speedier 45-day abatement turnaround.

A recent presentation given by city Health Director Maritza Bond to the Lead Paint Advisory Commission states that, in 2019, the city saw 191 children under 6 years old test as having blood lead levels above 5 μg/dL, 58 tested at blood lead levels greater than 10 μg/dL, 21 tested at blood lead levels greater than 15 μg/dL, and 13 tested at blood lead levels greater than 20 μg/dL.

That same presentation indicates that a total of 3,833 local children under 6 years old received confirmed blood lead tests last year; 3,624 of those children tested as having blood lead levels between 0 and 4 μg/dL.

Another slide in that presentation, meanwhile, states that the city currently has a total of 598 child cases above 5 μg/dL, though not all of those cases are children under 6 years old.

Bond told the Independent in a recent phone interview that the city currently has five full-time lead hazard inspectors, and is in the process of hiring a sixth. She said the department also has a ​“healthy homes” educator, and a dedicated outreach worker.

Since her appointment to the top local health job in January, Bond said, one of her top priorities ​“was to conduct an assessment of the lead program and really ensure that we implement the new ordinance” passed by the Board of Alders, and ​“ensure that protocol and policies and procedures were in line with local ordinances and state regulations and statutes.”

She stressed that her department has been conducting inspections and issuing follow-up lead abatement orders when children test at or above 5 μg/dL, per city law.

“Inspection includes testing of all paint (interior, exterior and common areas), water and bare soil,” her PowerPoint presentation reads. ​“Abatement of defective lead-based paint and bare soil and management of intact lead-based paint” is required after said inspections.

Bond said she has worked to make sure that city lead inspectors have Microsoft Surface tablets to allow for easier electronic recordkeeping around their inspections. And she’s pushed to have abatement orders filed in a more timely fashion on the public land records database, ​“so that they can be more readily accessible to individuals interested in potential lead cases.”

Bond also said that her staff has worked closely with the state Department of Public Health to train local lead inspectors on how to use the MAVEN surveillance system to track lead poisoning cases.

And she said the city plans to use the $5.6 million it got from the federal government last fall to make 200 loans to local landlords across the city over the next three years to help cover the costs of lead hazard abatement. She said the Covid-19 pandemic slowed down the loan application process, and that six pending applications are currently under review by her department.

Bond stressed that the city is sticking to the 5 μg/dL local threshold for child lead poisoning. ​“Anything above a 5 activates and inspection and goes through the proper timeline,” she said, including the potential issuance of a lead hazard abatement order.

Previous lead coverage:
• Crisis Gov’t: Grilling By Zoom
• Social Services Chief’s Appointment Advances
• City’s Outside Legal Tab Nears $200K For Lead Paint Fight
• City ​“Explores” Lead Lawsuit Settlement
• Lead Class Action To Drag Into New Year
• New Lead Law Passes, With Teeth
• Legal Aid Lobbies Alders On Lead Paint, Alleges Civil Rights Harm
• Weakened Lead Law Advances
• City Still Fighting As Lead Case Drags On
• City Lands $5.6M In Federal Lead Grants
• 5 New Lead Inspector Positions Approved
• Outrage Stalls Weakened Lead Law
• Lead Paint Legal Tab Tops $118K
• City Plan Passes On Lead Law
• City Loses Again On Lead
• Judge Denies City’s Motion To Dismiss Lead Suit
• City, Legal Aid Clash In Court On Lead
• New Lead Proposal ​“Eviscerates” Mandate
• Lead Cleanup Pricetag: $91M?
• Lead Panel’s Advice Rejected
• Lead Paint Chief Retires
• Lead Paint Fight Rejoined
• Harp Switches Gears On Lead
• Motion Accuses City Of Contempt
• City Loses Again On Lead
• Briefs Debate ​“Lead Poisoning”
• New Haven: Another Flint?
• Harp Administration Admits Relaxing Lead Standard To Save $$
• Class-Action Suit Slams City On Lead
• City, Legal Aid Clash On Lead Paint
• Legal Aid To City: Get Moving On Lead Paint Law
• 100+ Tenants Caught In Lead Limbo
• 2 Agencies, 2 Tacks On Lead Paint
• Chapel Apartments Get 3rd Lead Order
• Lead Sends Family Packing
• Health Officials Grilled On Lead Plans
• Judge Threatens To Find City In Contempt
• Same Mandy House Cited Twice For Lead Paint
• Lead $ Search Advances
• 3 Landlords Hit With New Lead Orders
• Another Judge Rips City On Lead
• Judge To City: Get Moving On Lead
• Health Department Seeks Another $4.1M For Lead Abatement
• City-OK’d Lead Fixes Fail Independent Inspection
• Judge: City Dragged Feet On Lead
• 2nd Kid Poisoned After City Ordered Repairs
• Judge: City Must Pay
• City Sued Over Handling Of Lead Poisonings
• City’s Lead Inspection Goes On Trial
• Eviction Withdrawn On Technicality
• 2nd Child Poisoned; Where’s The City?
• Carpenter With Poisoned Kid Tries A Fix
• High Lead Levels Stall Eviction
• 460 Kids Poisoned By Lead In 2 Years
• Bid-Rigging Claimed In Lead Cleanup
• Judge Orders Total Lead Paint Clean-Up
• Legal Aid Takes City To Task On Lead