ALLENTOWN – The scope of discovery has been outlined in a lawsuit brought by the mother of a six-year-old Pen Argyl boy has filed suit against her Florida-based landlord, charging that his failure to remediate lead from the home she rented has left her son with permanent brain damage.
D.H. (a minor, by his parent and natural guardian, Dana Kiefer) of Easton first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on March 17 versus Kevin P. Ward of Tarpon Springs, Fla.
“In 2017, Ward owned a residential property at 500 ½ W. Pennsylvania Avenue in Pen Argyl, Pennsylvania. In or around April 2017, defendant rented the property to Dana Kiefer. Defendant knew that plaintiff Kiefer intended to reside in that property with D.H., her infant child, who at all times material hereto was a legal occupant of the property under the applicable lease. At all times material hereto, both plaintiffs were legal occupants of the Pen Argyl property,” the suit said.
“Unbeknownst to Dana Kiefer, the house was heavily contaminated with lead dust and lead-based chipped and deteriorating paint, on and around surfaces, making it particularly accessible to infants and toddlers, including D.H. On May 19, 2017, D.H.’s blood was tested, and the results showed he had an elevated level of lead in his blood, recorded as 11 micrograms per deciliter, a concentration more than double the ‘reference value’ established by the Centers for Disease Control to identify children with significantly excessive lead levels. During the time he and his mother lived in the Pen Argyl property, the concentration of lead in his blood reached even more excessive levels, as high as 35 micrograms per deciliter.”
The suit added that D.H.’s lead burden was revealed on x-rays, with lead being a heavy metal and a neurotoxin, which even with low levels of exposure, can cause brain and nervous system damage, developmental delays and learning and behavioral problems, all of which are or may be permanent.
“Sometime after the detection of lead in D.H.’s blood, the rental property he occupied was inspected by the City of Bethlehem’s Board of Health. The inspection and related tests of samples taken from the property showed multiple lead exposure hazards throughout the living area, including areas readily accessible to D.H. The inspection also revealed that defendant had not provided Kiefer with lead hazard information required by federal law,” the suit stated.
“As a direct result of being exposed to deteriorating lead paint, lead dust and other lead hazards in the Pen Argyl house, D.H. suffered lead poisoning and has experienced developmental delays, speech impairment, learning disabilities, acting-out behavior and loss of enjoyment of life, all of which may continue indefinitely in the future, may be permanent and will result in a loss of earnings and earning capacity. As a direct result of being exposed to the aforesaid lead hazards, D.H. has suffered brain damage and is receiving required, appropriate therapy and special educational services, which may continue indefinitely in the future.”
While admitting that a home inspection conducted in 2019 revealed the presence of lead, Ward denied knowledge of any lead in the home prior to that, and further denied direct responsibility for the plaintiff’s son’s injuries, in an answer to the case filed on July 5.
“Plaintiff’s complaint fails to state a claim upon which relief can be granted. Plaintiff’s injuries, if any, are related to pre-existing conditions wholly unrelated to the premises at issue. Plaintiff’s injuries, if any, are the result of the actions or inactions of third parties over whom Ward had no authority or control. Plaintiff’s injuries, if any, are the result of superseding and/or intervening causes. Plaintiff’s injuries, if any, resulted from exposure to lead at locations other than the premises at issue,” according to the case’s affirmative defenses.
UPDATE
In a Joint Rule 26(f) report issued by all counsel on Aug. 1, the scope of discovery was more thoroughly defined.
“Plaintiff anticipates discovery to obtain information regarding defendant’s acquisition and maintenance of the subject property, his response to information regarding the presence of lead on the property and his knowledge of the requirements of the Act. Plaintiff may also conduct discovery related to D.H.’s special education services, his teachers’ observations and his medical treatment. Plaintiff will also seek discovery regarding the inspection and findings of governmental authorities regarding the extent of lead contamination and its significance,” the report said.
“The defendant will seek discovery regarding D.H., including records reflecting medical treatment, educational records, the location of prior and subsequent residences, identification of any day care or babysitters who assisted in his care and any DHS records which indicate his removal from his mother’s custody and placement with any third-party for the purpose of establishing potential alternative sources of lead. The defendant will also request third-party discovery from city, county and/or state officials who performed any kind of inspection of the premises or otherwise worked on the premises at issue.”
On the subject of third-party discovery, the plaintiff will seek discovery from the City of Bethlehem and the Bethlehem-Easton-Northampton Lead Hazard/Healthy Homes Partnership regarding the hazard risk assessment conducted at defendant’s property (and occupied by plaintiffs) – while the defendant also intends to subpoena the DHS, family court, medical providers, the school district and any other individual who was responsible for the care or custody of D.H.
In expert witnesses, the plaintiffs intends to call experts on the toxicology of lead and significance of D.H.’s blood concentrations and an economist to calculate the financial effects of D.H’s developmental deficits – which are also professionals the defense plans to call upon, in addition to potentially, a liability expert.
Preliminary settlement discussions were entered into, but it became evident, the parties explained, that third-party expert evaluation was necessary to evaluate the claims at issue. Finally, D.H.’s educational and medical records will be kept confidential and only to defense counsel and experts, and if any such document were to become part of a filing, it would be so only if filed under seal.
For counts of violating the Residential Lead-Based Paint Act and negligence, the plaintiff is seeking compensatory damages, treble damages, attorney’s fees, costs, punitive damages and such other relief as the Court deems just and equitable.
The plaintiff is represented by Gerald J. Williams of Williams Cedar, in Philadelphia.
The defendant is represented by John C. McMeekin II and Jennifer L. Seme of Rawle & Henderson, also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 5:22-cv-01028
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com