PHILADELPHIA – A proposed settlement of $265,000 is on the table in litigation from the parents of a Philadelphia child who allegedly suffered from toxic lead exposure at his local elementary school against the school district, which alleged state-created danger and negligence claims.
D.P., a minor by his parents and natural guardians Cristine and David Pagan, first filed a complaint on Dec. 10, 2019 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.
Counsel for defendants SDP, Comly School, Principal Kate Sylvester and Environmental Director Francine Locke responded with a motion to dismiss the lawsuit on Feb. 11, 2020, 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, 2020, 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, 2020, 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.
U.S. District Court for the Eastern District of Pennsylvania Judge Petrese B. Tucker ruled on Oct. 28, 2020 that only certain claims from the plaintiffs would proceed.
However, Locke and Sylvester were dismissed from the case due to qualified immunity, while Tucker also threw out claims against Gruman.
UPDATE
In an answer filed on Nov. 12, 2020, the defendants argued that the plaintiffs’ complaint failed to state a claim or cause of action against answering defendants upon which relief can be granted, and that those same claims are barred by the applicable statutes of limitation, the doctrines of accord and satisfaction, release, waiver and estoppel, and by statutory and/or regulatory law, among other defenses.
On April 6, plaintiff counsel filed a petition for approval of settlement and distribution of minor’s compromise, in the total amount of $265,000.
“The following settlement has been proposed: The School District defendants herein have offered the sum of $265,000 in settlement of the claims by plaintiffs and which the plaintiffs consider to be fair and reasonable based on a variety of considerations, including the facts of the case and the inherent risks and uncertainties attendant to any jury trial. Counsel is of the professional opinion that the proposed settlement is fair and reasonable in view of the facts of this case, and the inherent risks and uncertainties attendant to any jury trial,” the petition stated.
The petitioners therefore request that they be permitted to enter into the settlement and that the Court enter an order setting forth distribution as follows:
• To Green & Schalfe and Levy Konigsberg, LLP (reimbursement for costs advanced): $20,561.75
• To Department of Human Services (DHS or DPW): $3,299.71
• To Green & Schalfe and Levy Konigsberg, LLP (33 1/3 percent as counsel fee after deduction of liens and costs of litigation): $80,379.51
• To Minor’s portion of the settlement which will be deposited in Legacy Pooled SNT f/b/o [name omitted]: $160,759.03
Total Settlement: $265,000
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, 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