Toxic Environmental Substances

The introduction of complex chemicals into the environment often raises legal issues as unique as the substances themselves. Toxic tort litigation examines whether exposure to a particular material can cause and did, in fact, cause personal injury or property damage for which the disseminator should be held accountable. Exposures can occur in and around the home, workplace, commercial establishments and in the ambient environment. Childhood lead poisoning, indoor air pollution, contact with asbestos, mold spores, pesticides, solvents and other irritants, and environmental contamination are just a few of the many sub-topics within the field of toxic tort litigation.

Lead-Based Paint

In the typical lead poisoning lawsuit, a parent alleges that his/her child has been harmed from ingestion or inhalation of residential paint containing the now-banned additive, and that the landlord (and often the managing agent), should be held liable. A hybrid between toxic tort and premises litigation, these cases implicate very distinct issues. Unlike other substances (asbestos, for example), exposure to lead-based paint does not produce a "signature" injury, i.e., a harm which is characteristic of or which can only be caused by that element. Therefore, while plaintiffs complain of intellectual and attention deficits, hyperactivity, behavioral disorders and an amalgam of other real and potential ailments, defendants argue that other risk factors, such as familial, social, hereditary and environmental conditions, are responsible for the child's physical and psychological profile.

In 2004, the New York City Council adopted the Childhood Lead Poisoning Prevention Act of 2003, placing the onus on the owner of multiple dwellings (erected either before 1960 or between 1960 and 1978 in which the owner knows there is lead-based paint), to investigate apartments for lead-based paint hazards "on a case-by-case basis as the conditions may warrant," and "to take such actions as are necessary to prevent children from becoming lead poisoned." An owner must inspect apartments "at least once a year, and more if necessary", such as when, in the exercise of reasonable care, he has actual or constructive knowledge of a condition reasonably foreseeable to cause a hazard, if a tenant complains about an apartment's condition, or if the Department of Health issues an Order to Abate a Nuisance. The landlord must include a conspicuous notice in English and Spanish in every lease, which advises tenants of each party's obligations, and a questionnaire as to the presence of children under the specified age. The law requires tenants to report the presence of children at all times during the lease period, and to give the owner access to the unit. Finally, the "new" law expanded the definition of "lead" to includes "lead contaminated dust," and "chewable" (i.e., protruding and readily accessible), "deteriorated," "peeling," "friction" and "impact" surfaces as potential "lead-based-paint hazards."

The 2004 law has invigorated litigation in this area and will continue to do so notwithstanding the paucity of available insurance coverage. Whether residential lead poisoning lawsuits are tried or settled depends largely upon how counsel assesses the potential jury's likely perception of the parties. Will jurors believe: 1) that the resident was truthful in reporting the child's presence to the owner, and reasonable in giving him access to inspect and correct adverse conditions; 2) that the landlord acted with sufficient diligence in inspecting and remediating the subject apartment prior to receiving notification of a lead violation, and; 3) that the adult plaintiff is truthful in his description of the exposure and identification of other possible lead sources? While results still vary county to county (with Richmond, Nassau and Suffolk being more favorable to defendants and Kings and the Bronx preferable for plaintiffs), the defense practitioner often has the daunting task of persuading a jury that the landlord is an attentive property owner who has acted at all relevant times within the parameters of what the law recognizes as "reasonable" and that his conduct or failure to act did not cause this particular child to suffer harm. At the same time, plaintiffs' counsel must convince jurors that his young client was indeed harmed by his/her exposure in a lead-contaminated apartment and not by many other environmental factors. Whichever side of the controversy you are on, you must engage attorneys who can make the critical calls, evaluations and recommendations, who know how to prepare clients and witnesses to make the best appearance at trial, and who are not afraid to try their cases when settlement attempts fail.

Mold

Lawsuits involving mold contamination have been termed the "asbestos of the new millennium." Mold is a ubiquitous substance, most types of which are harmless. A few species have been implicated in symptoms such as runny noses, eye irritation, nasal and chest congestion, wheezing, aggravation of asthma and allergies, headaches, dizziness and fatigue. In severe exposures, the substance has been linked to bloody discharges, fibrous lung growths, pulmonary hemorrhages, cognitive dysfunction, memory loss and irritability.

There are no federal or state standards that define acceptable levels of exposure to mold. Federal agencies which deal with air quality issues like the EPA, the Federal Emergency Management Agency and the Centers for Disease Control, believe that toxic mold may start to grow and spread in as little as 24 hours after a building sustains water damage, assuming a favorable combination of temperature and moisture, and a food source, such as sheet rock. Mold usually grows because of excessive moisture due to construction defects, leaking windows and pipes, and poorly designed HVAC systems. Personal injury & property damage claims are therefore most prevalent in geographic areas that are humid and damp year-round (e.g., California, Texas and Florida), but allegations of deleterious exposure abound in the State of New York, as well.

In 1993, the New York City Department of Health's Bureau of Environmental and Occupational Disease Epidemiology, the New York City Human Resources Administration, and the Mount Sinai Occupational Health Clinic commissioned a number of experts to study the mold problem. The panel's 1994 report entitled "Guidelines on Assessment and Remediation of Stachybotrys Atra in Indoor Environments" (and the April 2000 update) related the aforementioned symptoms to exposure to mold (and fungi), and suggested methods for medical and environmental assessment (inspection, sampling, air monitoring), remediation and decontamination. In particular, these experts concluded that since it is impossible to ascertain safe/unsafe levels of exposure for people with varying degrees of susceptibility, it is essential to address the presence of mold, water damage and musty odors "immediately," to remove persons at risk from affected areas, and to excise sufficient building material to insure eradication of all molds.

Individuals who believe they have been injured by exposure to mold must consider their ability to prove a causal connection between the exposure and the injury. Because of the unique manner in which the statute of limitations (i.e. the amount of time within which one must sue), applies to these cases, prospective plaintiffs must move quickly to investigate their claims. An experienced law firm such as KLA will recommend doctors who can recognize the signs and who can determine whether symptoms are related to mold, and therefore, whether there are adequate grounds for a lawsuit.

Landlords and insurance companies facing such claims must analyze all environmental factors and potential effects of water saturation when performing an exposure analysis and in evaluating the potential extent of damages and the costs of repair. In instances of covered water damage claims, time is particularly "of the essence." If the landowners can attribute the presence of mold to a covered loss, the insurance company's claims adjuster should engage a contractor and to include removal and repair as part of that loss. An immediate and thorough response will allow the adjuster to determine if the mold pre-existed the water damage and, therefore, whether a basis to disclaim exists. Prompt commencement of a drying out and clean-up process will help to reduce further damage to property and person. The longer the carrier waits, the harder it will be to posit that the mold was not caused by a covered loss and the harder it may be to defend the underlying personal injury lawsuit.

Asbestos

Asbestos is a group of minerals with long, thin fibrous crystals. It became increasingly popular among manufacturers and builders in the late 19th Century due to its resistance to heat, electricity and chemical damage, its sound absorption and tensile strength. When asbestos is used for its resistance to fire or heat, the fibers are often mixed with cement or woven into fabric or mats. Asbestos is used in brake shoes and gaskets because of its heat resistance, and in the past, was used on electric oven and hotplate wiring for its electrical insulation at elevated temperature, and in buildings for its flame-retardant and insulating properties, tensile strength, flexibility, and resistance to chemicals.

The inhalation of asbestos fibers can cause serious illnesses, including lung cancer, mesothelioma and asbestosis. While many uses of asbestos have been banned in a number of countries, personal injury and property damage litigation against manufacturers, and companies that used asbestos as insulation in other products (heating devices, ductwork, construction components, etc. ) abounds. This is true because of the extremely long latency period, i.e, the time between exposure and development of symptomology.

In this area of litigation, the injured parties characteristically sue the manufacturers and distributors of asbestos and also the end-products (such as boilers and brake systems) in which the substance has been used. Because of the sheer volume of cases pending in New York and New Jersey, asbestos litigation is handled on an entirely different track, with different procedures and methods of resolution than any other toxic exposure case. KLA's experienced attorneys are extremely familiar not only with these procedures, but with the science and law that exposure to asbestos implicates.

Indoor Air Pollution

The drive to save money and conserve energy in the 1970's yielded certain design choices and construction approaches which caused or contributed to concerns about internal air quality. Some examples are the erection of "tight" buildings, the use of petroleum-based products, particleboard that may out-gas formaldehyde, and carpeting which may release volatile organic compounds, adhesives and waterproofing materials. The increased use of computers, copiers, and blue print machines has enhanced the problem.

There are literally thousands of pollutants in interior environments where exposures are two to five times higher than outside. For these reasons, the EPA has identified indoor air pollution as among the top five environmental risks to public health. The EPA has estimated that out of approximately 4.5 million office and public buildings in the United States, 30% (1.3 million), experience indoor air quality ("IAQ") problems, most of which are related to inadequate ventilation. The EPA has also approximated that in excess of 100,000,000 Americans are at potential risk, although more recently, experts have estimated the number at 30-70 million.

IAQ litigation involves allegations that the ambient air within the work place or home is contaminated with biological/chemical irritants that have caused physical and/or psychological harm. While these claims have been around for many years, increased scientific focus, the development of sophisticated investigation, measurement and industrial hygiene techniques, media coverage, legislative response and general public awareness and anxiety (not necessarily in that order of importance), have made indoor air pollution a hot topic and fodder for fervent litigation.

Many commonly asserted theories and defenses in this type of litigation derive from the product liability and negligence context. Because of the nature and duration of the exposures, however, they apply differently and often have interesting consequences. Whether you are prosecuting or defending IAQ litigation, you must utilize a law firm with the expertise to address these issues.

Pesticides, Solvents and Household Chemicals

Even at low levels, exposure to pesticides, solvents and household chemicals can pose acute and chronic health risks, such as cancers, infertility, birth defects and neurological damage. Those who mix, load or apply pesticides, and those who work with solvents in an industrial setting or in the home can be exposed through spills, splashes, defective, missing or inadequate protective equipment, direct spray, or drift. Families can be injured when children play in treated areas, when workers inadvertently transport residues on their hair, skin or clothing, or when pesticides drift onto outdoor play areas and are tracked into homes.

Many cases of illness are not easily recognized because the symptoms (e.g., nausea, vomiting, dizziness, headache, skin rashes and eye irritation), are common to numerous ailments, and cases that are correctly diagnosed are often not reported. Recognizing exposure-related illness is also difficult because there are few, inexpensive and widely available clinical diagnostic tests for identifying acute poisoning, and people often cannot identify the chemical culprit.

One pesticide ingredient, 2,4-D, is found in commercially-available lawn herbicides such as "Weed B Gon MAX", "PAR III", "Trillion", "Tri-Kil", "Killex" and "Weedaway Premium 3-Way XP Turf Herbicide." 2,4-D is the third-most widely used herbicide in North America and the most widely used weed killer in the world. Combined with the compound 2,4,5-T, this ingredient comprised the powerful defoliant and herbicide that the government used extensively throughout the Vietnam War (approximately 20 million gallons between 1962 and 1971) known as Agent Orange (named for the color of the stripe on its barrel).

Agent Orange has been associated with nervous system disorders, dermatological conditions, soft-tissue sarcomas, Hodgkin's disease, non-Hodgkin's lymphoma and chronic lymphocytic leukemia, among other diseases. At least one study has shown a relationship between exposure to Agent Orange and diabetes. And as recently as August 2008, the University of California at Davis Cancer Center released results of research showing for the first time that Vietnam War veterans exposed to Agent Orange have greatly increased risks of prostate cancer and even greater risks of getting the most aggressive form of that disease as compared to those who were not exposed.

The controversies associated with Agent Orange were largely associated with TCDD, a dioxin by-product of the 2,4,5-T component. In 1997, the International Agency for Research on Cancer re-designated TCDD as a Group 1 carcinogen, a classification that includes arsenic, asbestos and gamma radiation. But DCDD, a dioxin by-product of 2,4-D, may be just as toxic to certain human systems and organs as TCDD. To this day, the EPA does not regulate or monitor DCDD, although ambient levels could be much higher than TCDD. DCDD and other components of 2,4-D are suspected endocrine disrupters, carcinogens, and liver toxins. While the product is not currently approved for use on lawns and gardens in Sweden, Denmark, Norway, Kuwait and the Canadian province of Québec, the United States EPA approved the continued use of 2,4-D in 2005.

With regard to household chemicals and solvents, a recent University of Washington study identified nearly 100 volatile organic compounds in six laundry and air freshening products; five of the six products emitted one or more air pollutants which the EPA considers hazardous, carcinogenic, and unsafe at any level of exposure. The chemicals include acetone (the active ingredient in paint thinner and nail-polish remover), limonene (a molecule that emits a citrus scent), acetaldehyde, chloromethane, and 1, 4-dioxane. Indeed, one plug-in air freshener contained more than 20 different volatile organic compounds, seven of which are regulated as toxic or hazardous under federal law. Additionally, organic solvents (like those found in paints, printing and dry-cleaning agents) have been implicated in central nervous system depression (memory loss, attention and psychomotor function, cognitive impairment) and various types of cancer including non-Hodgkin's lymphoma.

Manufacturers are not required to list the ingredients contained in laundry products and air freshener ingredients. While the FDA requires that cosmetics list ingredients, it does not mandate that fragrances identify components like limonene, and a number of personal-care products and cleaners often contain these fragrance chemicals.

The pervasive use of chemicals and the inconsistent manner in which their manufacture, labeling and sale are regulated has spawned an abundance of litigation. Whether suits take the form of individuals against manufacturers and distributors or mass tort Agent Orange-type cases, injured parties and the companies they seek to hold responsible need to retain attorneys who are specifically competent and experienced in this area of the law, like the attorneys of KLA.

Environmental Contamination
 In 1962, Rachel Carson, authored “Silent Spring”, in which the biologist challenged the practices of agricultural scientists and the government, particularly with regard to the aerial spraying of DDT and other pesticides.  Finding support among scientists who were documenting the physiological and environmental effects of pesticides, and taking advantage of her government contacts, Ms. Carson took it upon herself to warn the public about the long term effects of misusing pesticides.  Ms. Carson testified before Congress in 1963 and called for new policies to protect human health and the environment.  Attacked for the next several decades by the chemical industry and some in government, “Silent Spring” brought environmental concerns to an unprecedented number of people, spawned sweeping changes in national pesticide policy, lead to a nationwide ban on DDT and other pesticides, and ultimately, inspired the creation of the Environmental Protection Agency.  Around the same time, a group of landowners on Long Island filed suit to have pesticide spraying stopped, and though they lost, the United States Supreme Court granted them the right to seek injunctions against potential environmental damage, thus laying the foundation for future litigation. 

Environmental contamination has been a “hot button” topic in the regulatory, legislative, political and judicial arenas since the 1960’s.  KLA represents businesses, developers, property managers and individuals on a wide variety of environmental issues.  We consult on the management, handling and disposal of petroleum and other solid and liquid wastes; assist clients in navigating the complex regulations governing the registration, maintenance and operation of underground storage tanks; defend potentially responsible parties (“PRP’s”), in enforcement matters brought by federal, state and local agencies; negotiate hazardous substance remediation agreements in tandem with engineers and hydro-geologists; prosecute and defend property damage litigation and private cost recovery actions pursuant to Superfund; and; defend the targets of criminal investigation and prosecutions.  Additionally, we “cross-represent” clients in the environmental aspects of real estate and corporate transactions.