PHILADELPHIA – Per a recent filing in the action, the parents of a local child who allegedly suffered from toxic lead exposure at his Philadelphia elementary school are facing a motion seeking to compel them to respond to discovery requests.
D.P., a minor by his parents and natural guardians Cristine and David Pagan, first filed a complaint on Dec. 10 in the U.S. District Court for the Eastern District of Pennsylvania, against the School District of Philadelphia, the City of Philadelphia, Watson T. Comly School and others.
According to the complaint, D.P. was enrolled in kindergarten at Watson T. Comly Elementary in April of 2017. In the fall of 2017, his first-grade teacher noticed D.P. was eating paint chips that had fallen from the ceiling.
He was then tested on Nov. 13, 2017, and found to have 46 micrograms of lead per deciliter in his blood and was admitted to the hospital for lead toxicity, the suit said.
The school, which was constructed in the 1890s, then tested positive for lead-based paint concentrations that exceeded federal government standards, the suit stated.
On Feb. 11, counsel for defendants SDP, Comly School, Principal Kate Sylvester and Environmental Director Francine Locke responded with a motion to dismiss the lawsuit, citing failure to state a claim upon which relief could be granted.
The motion argued the plaintiff failed to show his 14th Amendment rights were violated, that Sylvester and Locke lack requisite personal involvement and specific conduct to be held individually liable for federal constitutional violations and are shielded from federal claims due to qualified immunity, along with pendent state claims being dismissed for lack of jurisdiction.
However, on March 6, the plaintiffs responded to the dismissal motion, charging their suit should not be thrown out due to the school’s district responsibility in causing their child to be exposed to a “state-created danger.”
The Pagans argued that given the age of the school building (over 120 years), the district should have known that it contained lead and that such a condition is dangerous, particularly involving a child who had a known history of putting non-edible objects into his mouth, like the minor plaintiff – with that latter information being disclosed on a report card from his first-grade teacher the previous year.
On March 18, the City of Philadelphia motioned that it should be dismissed from the litigation, for reasons of:
• The plaintiff “not making sufficient factual allegations regarding a municipal policy or custom that was the moving force behind the constitutional violations alleged”;
• The plaintiff “failing to allege that the City defendants caused the harm alleged to plaintiff”;
• Deputy Commissioner Caroline Johnson being entitled to qualified immunity in this case; and
• The Tort Claims Act barring plaintiff’s remaining state law claims against the City defendants.
“The only conduct that plaintiff arguably alleges that is attributable to the City Defendants occurred well after minor plaintiff ingested lead paint chips and tested positive for leading poisoning. Plaintiff claims that, after being apprised of the situation and plaintiff’s positive test result, Deputy Commissioner Johnson told Ms. Locke she did not recommend notifying the community yet,” the motion read, in part.
UPDATE
On June 18, the defendants (minus the City, Johnson and Gruman) motioned to compel the plaintiffs to answer discovery requests dating back to February.
“On Feb. 20, 2020, counsel for defense sent plaintiff’s counsel standard interrogatories and request for production of documents addressed to plaintiffs. In the spirit of cooperation, on May 8, 2020, counsel for defense sent counsel for plaintiff an email providing plaintiff with an additional seven days to answer outstanding discovery,” the motion read.
“To date, the discovery requests remain unanswered and unobjected to by plaintiff. Defendant requires plaintiff’s discovery responses in order to properly prepare its defense of the case, as well as to evaluate this lawsuit for settlement or trial purposes. Counsel for defendant hereby certifies that only court intervention can resolve this discovery dispute.”
Those defendants are attempting to compel the plaintiffs to provide full, complete, verified and unobjected to responses to their discovery requests within 10 days of the date of its order or sanctions will be imposed upon further application to this Honorable Court.
For counts of 14th Amendment violations and negligence/recklessness, the plaintiffs seek compensatory, punitive and exemplary damages, a trial by jury, interest and all other equitable relief.
The plaintiffs are represented by David Alexander Latanision of Levy Konigsberg in New York, plus Stephen M. Specht of Green & Schafle, in Philadelphia.
The defendants are represented by Susanna Randazzo of Kolber Freiman & Randazzo, Thomas Bruno II of Abramson & Denenberg and Shannon G. Zabel of the City of Philadelphia’s Law Department, all also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:19-cv-05799
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com