Thomas Breen photo
Legal aid’s Shelley White and Amy Marx; the city’s Roderick Williams; city-contracted attorneys Andrew Cohen, Daniel Blake, Elizabeth Acee.
City and legal aid lawyers made final oral arguments in court Tuesday as to whether or not 300-plus lead-poisoned children should be treated as a single class with the right to sue the government.
The question at hand: Would class certification result in equal treatment of similarly situated plaintiffs? Or would it produce hundreds of unique “mini-trials” that would clog up the housing court docket for years to come?
That debate took place in the third-floor housing court at 121 Elm St., where New Haven Legal Assistance Association (NHLAA) Director of Legal Services Shelley White and NHLAA housing attorney Amy Marx tried to convince state Superior Court Judge John Cordani to rule in favor of their proposed class certification in the lawsuit Nyriel Smith v. City of New Haven.
White argued that an entire class of roughly 300 local children under 6 years old who have tested as having an elevated blood lead level of 5 micrograms per deciliter (μg/dL) were systematically ignored by the city when the local Health Department decided last November to only conduct lead hazard inspections and issue abatement orders for children who meet the state lead poisoning threshold of 20 μg/dL, rather than the local lead-definition of 5.
White, Marx, and Williams.
“Ths is really a paradigmatic (b)(2) class,” White said in reference to the proposed class certification. “We have a series of legal questions that affect a similarly situated group of people in exactly the same way.” Specifically, she said, that “way” is that the city has failed to do inspections and issue proper notices and enforce proper hazard abatement for children under 6 years old who test at 5 μg/dL.
She pointed out that four other state judges, including Cordani, in six other cases have ruled in favor of legal aid’s interpretation of the law and have rebuked the city for not enforcing its own child lead poisoning protection mandates.
To have these cases be litigated on an individual basis, she argued about the potential members of the class in question, would create a risk of inconsistent rulings in cases of common questions and common facts. Legal aid is not seeking any monetary damages for any plaintiffs in this case, she reiterated; just a common injunctive order requiring the city to conduct inspections, post notices, and enforce abatement whenever a child under 6 years old meets the local lead poisoning definition of 5 μg/dL.
Marx, Williams, and Blake.
Arguing against class certification on the city’s behalf were Assistant Corporation Counsel Roderick and three government-contracted outside attorneys: Andrew Cohen, from the local firm Winnick Ruben Hoffnung Peabody & Mendel, LLC, and Daniel Blake and Elizabeth Acee, both from the Boston-based firm LeClairRyan PLLC.
Blake, who took the defense’s lead in arguing against class certification, argued that the questions about inspection, noticing, and abatement may be common to this purported class, but the requisite answers to those questions (that is, the remedies that the city would have to provide in response to a class certification) would be unique to each individual child.
“Those questions have to be capable of common answers,” he argued, in order to meet the legal threshold for class certification.
If Cordani were to approve such a 300-plus person class, Blake argued, the court would be opening itself up to a slew of subsequent lawsuits based on individual plaintiffs’ unique concerns about how the city conduct inspections, posted notices, and enforced abatements in their own peculiar cases.
Why wouldn’t a class certification and a common injunctive order simply turn on the issues of age, blood lead level, and residency? Cordani asked. Why wouldn’t those common standards apply to all children for whom the city must enforce the law?
“It would devolve into a case of mini-trials,” Blake pushed, because each potential plaintiff would bring concerns as to how the law was enforced in their particular case.
“The city would be overwhelmed if the class were certified,” he said. “We don’t have enough inspectors. We only one one of the [X‑ray inspection] guns, and they cost thousands of dollars” each.
Cordani, who earlier this summer issued an order that clearly defined the existing local definition of child lead poisoning as an elevated blood lead level of 5 μg/dL and that required the city to conduct inspections and order abatements for the two primary child plaintiffs in the case, promised to deliver a final ruling on the class certification question “in an appropriate time.”
He promised to do the same for a secondary legal dispute heard in this case Tuesday, regarding whether or not the entire lawsuit is procedurally invalid because of a missing return date on the initial complaint.
The hearing comes just one day after the city’s Health Department officially submitted as a communication to the Board of Alders a proposed revision to the lead poisoning ordinance that would also clearly define the local “actionable blood lead level” as 5 μg/dL. Marx has expressed concern that these proposed updates, which aldermanic leadership has described as “a working document,” would “eviscerate” current inspection and abatement order mandates by giving too much discretion to the city health director. That law now goes to aldermanic committee for a public hearing before returning to the full board for two hearings and a final vote.
Acting Director of Public Health Roslyn Hamilton also submitted a communication to the full Board of Alders Monday night that, as first reported by the New Haven Register’s Mary O’Leary, requests a budget transfer of $365,000 from various city departments to the health department in order to pay for the hiring of five additional lead inspectors. That proposed $365,000 transfer will be supplemented by $60,000 available from “lapsed salary in the department of Health,” the proposed ordinance reads, therefore allowing for the hiring of five additional full-time, benefited lead inspectors, up from the current number of two.
Previous lead coverage:
• 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