Castro v. Machinski et al. ($680,000 settlement)

Lead-Paint Poisoning -Behavioral And Learning Problems

Injuries alleged: Behavioral problems; cognitive deficits

Name of case: Castro v. Machinski et al.

Court/case #: Southeast Housing Court, No. 94CV 00147

Tried before Judge or jury:

Settled before trial, after summary judgment for plaintiffs

Name of judge: Manual Kyriakakis

Special damages: $17,077, medical bills

Amount of settlement: $680,000

Most helpful experts: John F Rosen, M.D.; William Bithoney, M.D.; Devorah Glotzer, M.D., Helen

J. Kenney, Ed.D., Arthur J. O'Shea, Ph.D.

Insurance carrier Withheld

Attorney for plaintiff: Chris A. Milne, Andrew Abraham, Jeffrey A. Rosenberg, Rainer & Rainer,

Boston

Attorney for defendants: Withheld.

Other useful Information:

The minor plaintiff was 9 at the time of settlement. The child's family was Puerto Rican and did not speak English, and thus only Spanish was spoken in the home. The child's mother had a history of psychiatric problems, and the father had a history of violent behavior. Both of the poisoned child's parents and his siblings were on SSI disability.

The first address where the minor plaintiff resided was uninsured. The next potential locus was insured. As to the insured locus, the treating doctor had opined that, although he was not certain, an increase in the child's lead level at the insured locus was due to rebound and not ingestion.Thus, proof that the insured locus was a substantial factor in causing the child's poisoning appeared to be difficult.

The defendants argued that the child had showed no deficits in school. The child's teacher for the 1995-1996 academic year testified that the minor plaintiff was "an excellent student and making good progress in all areas." The child was, thus, promoted from third to fourth grade. There had never been any parental or teacher request for a Chapter 766 (special education team) evaluation. However, standardized tests administered by the school showed significant deficits and behavioral problems were well documented.

It was also expected that in addition to the "bilingualism defense," the classic 'home environment defense" first noted in Virruel v. O'Malley would be proffered. See 'Jury Rejects Claims of Dangerous Lead Levels,' Massachusetts Lawyers Weekly, April 13, 1992. (The home environment of a single Hispanic mother was opined as one of the causes of the minor plaintiff's deficits).

First, a title search revealed that the uninsured defendant was the owner of more than two dozen buildings and, thus, a $500,000 real-estate attachment was obtained tying up substantial equity.

The plaintiffs developed a detailed written interdisciplinary assessment of the minor plaintiff's diagnosis and prognosis. The emphasis of this assessment was rehabilitative, focusing on developing a detailed written plan that would provide guidance to the independent qualified trustee who would hold any settlement funds for the benefit of the child. An interdisciplinary meeting was arranged at a local hospital where the child's treating physician, treating counselor and the experts retained for litigation met for purposes of exchanging ideas and arriving at consensus opinions. The teacher was unable to attend, but provided a detailed interview, and thus her input was available beyond the school records. There were 27 specific findings of the group.

These joint findings of the treating professionals and those retained for litigation included:

- The child 'suffered severe childhood lead poisoning... caused by lead paint at his residences...' [both the insured and uninsured properties];

- Educational recommendations included yearly assessments, intensive counseling and mentoring during a critical transition involving a change of schools from sixth to seventh grade; involvement in a big brother program; a comprehensive after school program; vocational rehabilitation starting at age 11 and continuing to adulthood of a type not available in public schools;

-Treatment recommendations including 'family therapy from a Spanish therapist,' "individual counseling," "family preservation therapy,' a 'comprehensive" summer school program each summer so as not to lose the gains of the preceding year.

A prognosis lost included a statement that: 'the recommended interventions by this group are necessary to maximize Josue's potential for mental and social stability and employment'; "an irrevocable trust should be created and a qualified trustee should be appointed for case management for any funds received by Josue Castro. The trustee should perform higher duties in consultation and cooperation with Josue Castro's parents'; 'these early intervention recommendations should be implemented as soon as possible to minimize further irreparable harm as a result of lead poisoning"; "given Josue's history of lead paint poisoning, if the early intervention recommended by the group are not put in place the likely long-term prognosis is unemployability and antisocial conduct."

Care was taken that each member had examined the child, thus, qualifying the report for admissibility in evidence. This report gave an actual and not theoretical plan on how to minimize the injury to the child. This approach served to counter arguments of the speculative nature of future damages for a young child and the difficulty of a damage theory based mainly on foregone earning capacity where the child's parents have no history of earnings. This report was the central authority on damages in the subsequent one full-day mediation where the case was settled. It was expected that an instruction to the jury on the plaintiffs' affirmative duty to mitigate damages would have given great credibility to this damage theory.

In order to narrow the issues for trial, a summary judgment strategy was employed. One week before the scheduled mediation, the court granted partial summary judgment. As to the first lead locus, the uninsured property, summary judgment was allowed for liability under G.L. c. 111, §l 99, c. 186, §l 4, c. 93A, §2 with only the 'extent of damages to be proven." As to the second lead locus, the insured property, summary judgment was entered under G.L.s c. 111, §199, c. 186, §14, the implied warranty of habitability, and for 'punitive damages pursuant to Massachusetts General Laws Chapter 111, Section 199, for failing to satisfactorily delead...... Although the plaintiffs sought summary judgment only as to breach of duty for the second locus, the court found, however, 'there (was) a material issue of fact as to whether any of the elevations in the minor plaintiff's blood levels were caused by ingestion of lead based paint at the second lead locus (the insured property).

Thus, the participation of the child's treating physician John McNamara M.D. in the interdisciplinary meeting became critical. At that meeting, Dr. McNamara, after being presented the forensic basis for the opinion that the second locus was a contributor to the child's poisoning, changed the earlier opinion that the defendant had elicited at deposition. Dr. McNamara was further well prepared for impeachment at trial with a reasoned explanation for this well-founded opinion based on literature of which he had not been aware and history that had not been available to him.

The case settled at the end of one full day of mediation. The settlement was contributed to equally by the insured and uninsured defendants.

Pursuant to G.L. c. 231, §140C 1/2, court approval of the settlement was sought. The full proceeds of the settlement were paid into a supplemental educational trust with a qualified professional trustee. Additionally, at the suggestion of defense counsel, who had been impressed during the case at the bond that the child had with the child's former counselor, the trustee was mandated to locate and pay for renewed counseling (to the extent such a supplemental payment was necessary).

The order of the court approving the settlement stated 'the trustee to file with this Court and mark for hearing no later [12-14 months after approval] and continuing yearly... a Petition for Approval of accounting. In addition to providing the Court with a yearly accounting of expenditures of trust funds, the trustee shall, in said petition, detail in writing developmental testing of Josue Castro, efforts made to ensure the child's educational and medical needs are met and specific plans for the upcoming  year."

After the settlement was approved, a copy of the trust with the supporting Interdisciplinary Assessment Report was hand delivered to the child's treating physician by plaintiffs' counsel. After a lengthy talk with the doctor about his critical comments on this interdisciplinary approach, Dr. McNamara stated he had expected, 'You know, maybe something would happen, but I didn't expect to hear about it.' The doctor held up a folder that was on his desk and said 'this is everything you had sent me. I just put it in here. This is not part of the child's medical record.' The doctor then took the trust with attached interdisciplinary report on the top of which I had hand written the trustee's phone number and placed it in another folder on his desk. 'This is Josue's medical record. I will ask our social worker to get to work on this right away." As the trust moved from one folder to another, it seemed that this was so much more important than any other aspect of this child's case.

Published with permission of Lawyers Weekly