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ARTICLE ID 34022

$________ - LEAD POISONING OF TWO MINOR PLAINTIFFS - ALLEGED BREACH OF SPECIAL DUTY BY NEW YORK CITY DEPARTMENT OF HEALTH TO ACCURATELY MONITOR LEAD LEVEL IN PLAINTIFFS' APARTMENT AND LEAD POISONING TO ONE MINOR BY IMPROPER METHOD OF ABATEMENT - ALLEGED SUBSTANTIAL AND PERMANENT DEVELOPMENTAL PROBLEMS.

Bronx County

Lateefah Whitfield and Nashon Whitfield, both infants, by their mother, Nellie Whitfield, brought this action against the City of New York for its alleged failure to adequately perform its special duty to abate the lead level of the plaintiff’s apartment. Prior to the abatement, the children’s mother was advised by the D.O.H. that two other children, Nashon Whitfield and Kareem Mitchell, could remain in the apartment during the abatement. These two children had previously been tested by the D.O.H. and both tested negatively for lead poisoning. However, during the course of the abatement, the plaintiff alleged that both Nashon Whitfield and Kareem Mitchell developed lead poisoning due to improper methods of abatement employed by the E.R.P. workers. A separate action on behalf of Kareem Mitchell is pending.

On April 3, ________, Lateefah Whitfield was diagnosed with a lead level of 33. The New York City Department of Health ("D.O.H.") inspected the apartment on April 9, ________, and discovered numerous areas of actionable levels of lead in the apartment. The D.O.H. issued the landlord an "Order to Abate" the lead hazard. The D.O.H. returned to the apartment on May 4, ________, and determined that the landlord had not corrected the violations. The City of New York then dispatched the Emergency Repair Services Department ("E.R.P.") to abate the lead level.After the abatement was completed, the D.O.H. retested the apartment and found that the work was deficient and violations remained.

The apartment was finally certified as "lead free" on August 12, ________. However, through July 17, ________, the children continued to have elevated lead levels which spiked when they returned to their apartment. The plaintiff alleged that New York City had a special duty since the D.O.H. inspector had advised the plaintiff that the two boys could remain in the apartment during the abatement and that, post-abatement, both Lateefah and Nashon Whitfield had significant spikes in their lead levels which indicated that they had continued to be exposed to lead paint.

The position of the defendant, the City of New York, was that there was no special duty and that it was not liable under this theory. The defendant also claimed that there was no injury.

At the time of trial, Lateefah Whitfield was 18 years old and was attending high school. At the time of trial, Nashon Whitfield was 20 years old and was attending a G.E.D. program. Lateefah had been admitted to Bronx Lebanon Medical Center for lead poisoning.

She received chelation therapy for six days. Her highest lead level was 53 mcg/dl. The plaintiff alleged that as a result of Lateefah being exposed to lead from birth to the age of three, she sustained permanent developmental problems. She currently functions in the mildly defective range and suffered a loss of approximately 25 I.Q. points. She has been diagnosed with memory impairment, disturbance in executive function, disturbance in attention and speed of information processing, impairment of perceptual motor abilities, language impairment, and perceptual motor disorder. The testimony at trial reflected that due to her substantial deficits, Lateefah will most likely have to work in a supervised sheltered workshop or at very menial repetitive labor.

Nashon Whitfield suffered from lead poisoning which resulted in permanent learning disabilities. His highest lead level was 38 mcg/dl. Nashon suffers from amnesic disorder, neurocognitive disorder, impairment in perceptual motor abilities, memory impairment as identified by a reduced ability to learn or recall information, and language impairment. The testimony at trial was that Nashon had an above average I.Q. prior to the exposure to lead. However, as a result of the lead poisoning, he lost approximately 10 I.Q. points. Nashon has been unable to complete the G.E.D. program for the past two years.

Testifying on behalf of both minors, were a pediatric neurologist, a neuropsychologist, a vocational rehabilitation specialist, an economist and an environmental specialist. The plaintiff presented the minors’ medical records, photographs depicting the apartment during the abatement and the D.O.H. records.

The case settled during the trial. Under the terms of the settlement, Lateefah Whitfield was to receive $________ and Nashon Whitfield was to receive $________.

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