$1,905,000-Lead Poisoning: Brain Damaged Baby Modified Jury Award Upheld

F&F# 90293A


Summary: In this lead poisoning case, The Fitzgerald Law Firm, P.C., won a plaintiff’s verdict of $5,355,000. The Appellate Division, Second Department, sustained an award in the principal amount of $1,905,000.

Facts: Plaintiff, age 13 at the time of trial, asserted that she suffered lead poisoning from the time of her birth in Nov. 1985, until she was 4 ½ years old. Her highest blood test lead level was 38 mcg/dl. The jury found that the defendant apartment owner had notice that a child under seven years old lived in the apartment, that there was lead-based paint in that apartment, and that the paint was a substantial cause of the infant’s lead level. Plaintiff alleged the following injuries: hyperactivity and cognitive deficits, including a diminished I.Q. of 74. All experts concurred that plaintiff would not be able to attain a regular high school diploma.

Holdings of the Courts Below: The jury returned a verdict of $5,355,000, and the award was reduced by a judgment of the Supreme Court, Kings County, to $3,505,000. The defendant appealed to the Appellate Division, Second Department.

The Appellate Division, Second Department, modified the judgment. The final breakdown was: $150,000 for past pain and suffering, $450,000 for future pain and suffering, $250,000 for future medical expenses, $55,000 for future tutoring expenses, and $1,000,000 for impairment of earning capacity. The court held that “[t]he record contains evidence from which a rational jury could find that the subject apartment contained a lead paint hazard, that the appellant was on notice of this condition, and that the condition caused the infant plaintiff’s injuries. Moreover, the verdict in the plaintiffs’ favor was not against the weight of the credible evidence.” 284 A.D.2d at 513.