Nichelle Hobby, mom of 2-year-old Nyriel Smith, testifies.
NHLAA attorney Marx, wtith Cohen and Williams.
Day-long court battle focuses on policy change that lets landlords off hook for 300 poisoned kids.
Their lawyers from New Haven Legal Assistance (NHLAA) went to court Friday seeking a preliminary injunction to have the city stop using a new more relaxed standard for deciding when to order a landlord to clean up lead paint.
Legal aid and city lawyers ended up quizzing witnesses and arguing over the case all day in the third floor housing court of state Superior Court Judge John Cordani at 121 Elm St. Legal aid filed the class-action suit on behalf of two primary plaintiffs: 4‑year-old Fair Haven resident Muhaweinmana Sara and 2‑year-old Fair Haven resident Nyriel Smith.
The case in question is a class action lawsuit filed in May by NHLAA on behalf of two primary plaintiffs: 4‑year-old Fair Haven resident Muhaweinmana Sara and 2‑year-old Fair Haven resident Nyriel Smith. According to the complaint filed by NHLAA’s lead attorney Amy Marx’s complaint, Mayor Toni Harp, outgoing Health Department Director Byron Kennedy, and Environmental Health Director Paul Kowalski stopped enforcing city lead laws for children with blood lead levels below 20 μg/dL, which is the state threshold for poisoning. The mayor and the health department directors did that, the complaint alleges, without going through the Board of Alders, the local legislative authority.
City lawyer Roderick Williams confers with city-hired outside attorneys Andrew Cohen and Nancy Mendell.
The complaint calls for the court’s recognition of a class of roughly 300 city children at or under 6 years old who have elevated blood lead levels (EBL) above 5 micrograms per deciliter (μg/dL), which is the local legal threshold that triggers a variety of city health department protective actions, including inspection and lead hazard abatement enforcement. That local limit is tied to the federal Centers for Disease Control’s (CDC) reference level for children whose blood lead levels put them at risk for developing life-long cognitive and behavioral disabilities.
For the first time, Harp administration officials acknowledged in court Friday that they did in fact change policy, in hopes of saving money. They raised the threshold to 20 micrograms per deciliter.
NHLAA was asking the judge Friday to issue an injunction requiring the city to immediately order a clean-up at the families’ homes based on the previous threshold.
After the day-long arguments, Judge Cordani ordered NHLAA lead attorney Amy Marx and the city’s hired outside counsel, Andrew Cohen of the law firm Winnick Ruben, both to present final briefs by end of day June 13 before he will decide.
City’s Lawyer Objects To “Poisoning”
New Haven Legal Assistance attorneys Amy Marx and Shelly White in court.
Earlier Friday, the city’s soon-to-depart health chief, Kennedy, took the stand, as did a lead inspector, Jomika Bogan. Under questioning by Marx, they confirmed that the city had changed its policy in November of 2018.
One parent of each of the toddlers – whose blood levels went up and down, always above 5 micrograms per deciliter but never as high as 20 — testified that the children have been having cognitive problems like delayed speech and lack of interest in eating. The city has not ordered inspections.
Sara’s dad Rukara Rugereza described his daughter’s condition as “blood poisoning.” Attorney Cohen objected. “I move to object to the use of the phrase ‘blood poisoning,” he said.
Marx rephrased her question to Rugereza, who sat in the witness chair with his daughter playfully in his lap.
“When were you told she had an ‘elevated blood level?” Marx pressed on.
“I object to the phrase ‘elevated blood level,’” Cohen answered.
“When did you hear about Sara’s blood level?” Marx tried for a third time.
The five-hour proceeding was collegial – with the two kids in the chambers, participants, even Judge Cordani shared knowing shrugs about trying to keep rambunctious children quiet.
But Cohen offered continual objections: To whether Rugereza, a recent immigrant from the Democratic Republic of Congo could really understand English well enough; why he was turning to Marx for his answers.
He also questioned intensely the qualifications of Marjorie Rosenthal, a Yale School of Medicine pediatrician, to be an expert on pediatric lead poisoning.
Called to the stand by Marx, Rosenthal said she was familiar with lead poisoning standards at the Centers For Disease Control.
When she began her career, the Center’s standard for inspection and alarm was 20 micrograms per decileter, she said. But in the years since, the CDC has lowered the standard to the current 5, on which city policy was based until this past November.
Roderick Williams, on left.
Friday’s arguments also turned on a second part of the city definition for the threshold for ordering enforcement action: that the standard be either 20 micrograms, or “any other abnormal body burden of lead.” NHLAA argues that, based on expert testimony and the CDC’s definition, that would lower the threshold to 5 micrograms. Rosenthal said that 5 constitutes the CDC standard for “abnormal body burden.”
“Five, any amount of lead is not normal,” Rosenthal said and the child should be removed from its source. The two children’s medical records, admitted into evidence, showed that when a child tests with a blood level above 5, it is marked “abnormal” to be flagged for a pediatrician.
The city disagreed. Cohen, for the city, called as a witness Sherine Drummond, who oversees lead enforcement for the state Department of Public Health. He elicited from her that the state mandated level, 20 micrograms, to trigger enforcement, but that frequently calls for interventions short of removing a child from a house.
Marx objected: “That’s state law. That’s not an issue. What’s at issue is what the city law requires.”
Money Worries
Nichelle Hobby, mom of 2-year-old Nyriel Smith, testifies.
Before concluding arguments, Cohen was at pains to ask Kennedy how and why the new standard of 20 came about. Kennedy in turn was at pains to answer that there is no new “policy,” which is always to serve children, just a change in “practice.”
And why did that practice have to change? Kennedy and Bogan both pointed to a reduction of inspectors from five to just two in recent years, a demanding caseload for inspections that often take three hours or more, and a drying up of specialized funds from the federal government. But economics, Kennedy insisted, were not the only and not primary cause.
“We want to do what’s in the best interest of the community,” he concluded.
Marx and fellow NHLAA attorney Shelly White, weren’t buying.
“It’s upsetting that the city changed its practice as a political decision, and decided not to follow their own ordinance,” Marx said.
Marx said in her view it was an economic decision made behind closed doors without attempting to have a citywide conversation about how to do better for the city’s vulnerable kids with the dollars that are there. “It’s a legislative decision at what level to protect children. You can’t sell the children short,” she said.
The weary attorneys and judge agreed that in lieu of final arguments, they would submit written briefs to the court by June 13.
Cordani acknowledged the seriousness of the situation and promised a rapid response.
“The mayor and the health department have clearly made a policy decision to no longer protect the children who fall below 20,” Marx said afterwards. “The change was made with no transparency and public participation. The law clearly doesn’t allow that move.”
Even as the plaintiffs in this class action were being denied health department protections last year, NHLAA’s complaint alleges, three separate state judges were ordering the department to follow through on its legal obligations to children with similar blood lead burdens in separate lead poisoning-related cases.
Friday was the third pre-trial hearing date Cordani had set for the class action case. The city’s contracted attorney successfully delayed the first two hearings by filing motions to remove the case from state court to federal court on the grounds that the complaint concerned an alleged violation of CDC-set rules, rather than city laws. Federal District Court Judge Stefan Underhill removed the case from federal court back to state court on May 24 due to the federal court’s lack of jurisdiction.
NHLAA attorney Marx, wtith Cohen and Williams.
Previous lead coverage:
• 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