Boy wins lead-poisoning suit

Jury rules Housing Authority owes $3.5 million for causing retardation

By GREGORY A. HALL (ghall@courier-journal.com)

A Jefferson County jury awarded a 12-year-old boy $3.5 million last night after finding that the Housing Authority of Louisville failed to adequately remedy lead-tainted soil, which contributed substantially to the boy's mild retardation.

The Circuit Court jury awarded the boy, Julius Burns, $500,000 in compensation for his impaired earning power, and $3 million in punitive damages.

The boy's family lived at 621 E. St. Catherine St., where one of the apartment buildings was an older, wooden three-story structure where lead paint was flaking off onto the ground. The lawsuit contended that Julius was contaminated by lead dust in the soil where he played, although the family lived in a lead-free building.

The plaintiffs argued that Housing Authority officials knew the lead-based paint had contaminated the soil but tried to hide the risk from residents, leading to Julius' mental retardation.

The Housing Authority said it went to great lengths to correct lead problems, and that the boy's condition could not be traced to lead poisoning.

The jury forewoman, Carron Allman, said after the trial that the jury struggled over whether the boy's mental capacity is the result of the lead exposure or genetics.

As for the amount, "we were purposeful in choosing the largest amount of money to be in the punitive damages because we wanted to send a message to the Housing Authority," she said.

Judge Ann O'Malley Shake's instructions to the jury allowed it to award punitive damages if it felt the Housing Authority "acted in a reckless disregard for the life or safety of the plaintiff."

Donna Burns, who filed the lawsuit on her son's behalf, declined to comment after the verdict. Her attorney, Glenn Cohen, represents plaintiffs in five other cases against the Housing Authority involving lead-based paint. One of those is in Jefferson Circuit Court, and the other four, including one that is seeking class-action status, are filed in U.S. District Court at Louisville. One of the federal suits involves Julius Burns' brother.

Cohen said he could not predict what impact yesterday's verdict may have on the other cases.

Tim Barry, the Housing Authority's executive director, said the agency was disappointed by the decision, "and we are considering an appeal."

The Housing Authority's annual operating and capital budget is about $90 million, Barry said. He said it is too early to say how the verdict would be paid, but he said the authority is part of an insurance trust that covers various local agencies.

The cap on an award from that fund is $5 million, said Bill Patteson, a spokesman for the county attorney's office.

The trial lasted more than two weeks. Jurors deliberated about 11 hours over two days.

Toward the end, the jury sent out a note asking how any award to the boy would be protected. "There is tremendous debate and concern about how the awarded money will be handled, and by whom, if money is to be awarded," the note read.

Shake wrote back: "You must decide the case based on the instructions provided to you."

"Our concern was that amount of money for one individual, at the age he's at," Allman said afterward.

Before the trial, the plaintiffs sought $20 million, but that amount was reduced during trial, and the most the jury could have awarded was $16 million.

Donna Burns filed the lawsuit in 1999 on behalf of Julius, who is mildly retarded and has an IQ in the mid-60s. He also has had attention deficit hyperactivity disorder diagnosed, his attorneys said.

Lead poisoning can cause permanent damage to the brain and nervous system and is particularly hazardous to children up to age 7, according to the U.S. Environmental Protection Agency, which banned the use of lead paint in 1978.

Cohen argued during the trial that Julius showed normal signs of development as an infant but tested positive for lead contamination around age 2 in April 1993. That prompted city health officials to warn the Housing Authority of the contamination, he said.

The Housing Authority waited until May 1994 to test the soil, where readings indicated lead contamination at higher than safe levels, Cohen said.

Cohen said the authority did not remove the soil until July 1995.

Part of the plaintiffs' claim was that the Housing Authority actively covered up the danger. It cited a note that a Housing Authority official sent to a housing lobbyist in Washington. The note was written on a photocopy of a 1992 Courier-Journal article citing tests of lead contamination in soil at several Louisville properties. "Thank goodness no PH (public housing) sites tested!" the note said.

Attorneys for the Housing Authority said the agency routinely distributes information to tenants about possible dangers of lead poisoning.

The agency also argued that dozens of other children lived and played on the premises and never tested positive for lead contamination.

Copyright 2003 The Courier-Journal.