Court reverses $2.6M lead paint judgments against city housing authority

Baltimore's housing bureau does not have to pay a $2.6 million jury award to two siblings who say they were poisoned by lead paint when they lived in public residences as toddlers, a Maryland intermediate appellate court ruled Thursday.

The decision, written by Judge Kathryn Grill Graeff of the Court of Special Appeals, hinges on the siblings not having filed notice of their claim within 180 days of their injury, as required by the state statute that governs personal injury suits against local governments. The other two judges on the appellate panel, which heard the case on Jan. 10, agreed with the opinion.

"We will seek review by the Court of Appeals and continue to fight for the children," said David F. Albright Jr., attorney for the plaintiffs, Antonio Fulgham, 21, and his sister, Brittany McCutcheon, 20, who claim they were exposed to lead in the early 1990s while living in two residences on West Fayette Street, both part of the city's public housing program. Albright declined to comment on potential legal strategies for the appeal.

In Maryland, a child poisoned by ingesting lead paint in a home owned by a private landlord has until age 21 to file suit alleging injury, said Suzanne C. Shapiro, a Baltimore attorney who specializes in lead-paint litigation; she does not represent a party to this suit.

When the landlord is a local government, though, an extra legal requirement is added: The government's agent — for instance, the Housing Authority of Baltimore City — must be notified within 180 days of the harm that the injury has occurred and the poisoned person intends to sue.

The trial court abused its discretion in applying exceptions to the 180-day rule to allow the siblings' case to move forward, according to Graeff's opinion.

There are cases pending in front of the Court of Special Appeals arguing that this requirement is unreasonable because the Housing Authority is acting like a private landlord, Shapiro said.

Fulgham and McCutcheon filed their claim against the housing authority as teenagers, in December 2007. A Baltimore Circuit Court jury awarded them roughly $1.3 million each in late 2010, after finding the Housing Authority of Baltimore City negligent for allowing them to live in homes where they could ingest paint chips and dust.

This month, representatives from the sheriff's office tagged vehicles used by the housing authority in anticipation of seizing them to pay off the jury award. Since the housing authority had not originally set aside funds for payment of the award, ensuring its availability, the plaintiffs were at liberty to attempt collection during the initial appeal.

Last week, the authority filed a motion in Circuit Court to prevent the vehicles from being auctioned. The Court of Special Appeals decision essentially grants its request.

The housing authority "is committed to addressing lead paint judgments in a fair and responsible way; however, we also have responsibility to defend against unfounded lawsuits to protect limited resources for the 50,000 low income housing residents we serve today," Executive Director Paul Graziano said in a statement Thursday evening.

The authority's attorney for this case, J. Marks Moore III, declined to comment and directed questions to the press office. Baltimore's housing authority board is appointed by the mayor but is independent of the city government.

Graeff's 29-page decision was rendered a little more than a week after oral arguments, halting the plaintiffs' movement to seize the vehicles for payment of the judgment. Written decisions from the Court of Special Appeals often take months. Graeff's opinion is "unreported," meaning that it is not considered to offer novel insights into Maryland law, does not set precedent for lower courts and should not be cited by lawyers or judges in similar cases.

Brian S. Brown, a colleague of Shapiro's at the law firm of Saul E. Kerpelman who won millions in unpaid monetary awards against the housing authority, called the speed of the court's decision "highly unusual" and speculated that it was expedited because of the impending auction of housing authority property.

"The overturned judgment was the basis of the recent attempt to seize 20 [housing authority] vehicles," the authority said in its statement. The authority "is pleased that this decision effectively ends those efforts."

Advocates for victims of lead-paint poisoning are concerned that the judgment might prevent the city from compensating children who will suffer lifelong disabilities because of exposure to lead-based paint, which was banned in Baltimore in 1950 but was already in many of the city's residences.

"I hope the city will continue to pursue a reasonable remedy," said Ruth Ann Norton, executive director of the Baltimore-based nonprofit Coalition to End Childhood Lead Poisoning. "We think the city should honor the trial decisions … and shouldn't say to kids, 'We're opting out because of technicalities in the law.'"

Baltimore Sun reporter Scott Calvert contributed to this article.

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