Lead Risks Upon Buildings Reopening from COVID-19 Closures & Initial Litigation Inquiries for Lawsuits Based on Such ExposuresMay 1, 2020 – Article
The COVID-19 pandemic has caused deaths, serious illnesses, and an unprecedented strain on our healthcare system. The pandemic is particularly pernicious for confined populations like older individuals in nursing homes or inmates. This is unsurprising: institutions whose benefit is social proximity of similarly-situated populations are hardest hit by a virus that thrives on such proximity. With time, we will likely learn about less obvious risks and effects from the pandemic.
Georgia will likely be a case study in this educational process. As it begins to ease its shelter-in-place restrictions, Georgia has prompted discussions of potentially long-lasting precautions in re-opened workspaces. Many expect that employees may work at the office on staggered schedules in spaces that have been repurposed to limit social contact. The proper balance between prudent precautions and sustainable productivity will doubtless be found from trial and error: as we are forging a new path, there are precious few guides on how to safely emerge from our sheltered spaces in the coming months.
With all of these discussions, it is easy to lose sight of other, more familiar and manageable, risks. One such potential risk is lead exposures in offices, schools, and other buildings. When a building sits unoccupied and water systems unused, lead may be accumulating in the water supply. This creates risks of lead exposures, but these potential exposures can be minimized with low-cost precautions. We discuss the risk and precautions below before concluding with consideration of litigation inquiries for cases alleging damages from lead exposure.
Lead and Its Risks, Generally
Lead is a natural element of the Earth’s crust that can be found in water, air, and soil. Lead was previously used in paint, ceramics, caulk, and pipe solder. Lead can also be combined with other metals to produce alloys that are incorporated into batteries, ammunition, and other metal products. For a period of time, lead was an additive in automotive gasoline. As a natural element, lead does not break down over time, amplifying the health hazard that public health experts identified decades ago. Though used less often today, lead is still common in particular industries, including construction, mining, and manufacturing.
This more concentrated use of lead explains the corresponding focus in the bulk of published studies on lead that tend to focus on the construction industry, battery reclamation workers, indoor firing ranges, and other places where lead is still fairly common. Outside of the industries where lead use is still common, research and public health campaigns focus on children. The Centers for Disease Control explains that the particular emphasis on children stems from three considerations: (1) there’s no known safe level of lead exposure in children, (2) children’s impairment at low levels of exposure, and (3) the ability to prevent all such exposures.
The public health community consensus is that lead is a toxic substance that creates health hazards. They explain that lead may be inhaled or ingested, and the risks do not differ between the manner of entry. Lead poisoning is defined broadly and includes any negative effect to one’s health or bodily functions attributed to lead. People vary in their ability to handle exposure to lead, but experts tend to focus on certain personal factors, like age and nutrition, and exposure factors, like the source and length of the exposure. Risk varies inversely with age and proper nutrition and directly with the potency, length, and frequency of exposure. In children, the Centers for Disease Control reports that lead—even at low levels in the blood—affects a child’s IQ, ability to pay attention, and academic achievement. Lead damage to a child’s developing brain can be irreversible. For adults, the risk of lead poisoning is lower and may manifest with the following issues: high blood pressure, joint or muscle pain, memory or concentration problems, headaches, mood disorder, reduced or abnormal sperm, and stillbirths or other problems with a pregnancy.
The risks develop over time, and many people have lead in their blood without any symptoms of lead poisoning. At high levels, lead exposure can cause seizures or death.
The Risk of Reopening Buildings
Georgia is on the forefront, though still in the infancy stages, of reopening businesses. Experts and lay people continue to debate the timing of the move. Logistical matters are lesser concerns but could prove important. The consultants at RHP flagged one such concern. They remind us that water systems built before 1986 are more likely to have lead components and also that there is some risk associated with drinking water in all water systems (even if the system was built after 1986). While many buildings have remained largely or completely unoccupied for six-eight weeks, the risk of lead exposure from the water increases. Fortunately, there are several low-cost ways to reduce this risk:
(1) Flush the water system periodically up to a week before the scheduled reopening;
(2) Use only cold water for cooking and drinking;
(3) Clean or replace the faucet screen the water flows through; and
(4) Install NSF-certified water filters designed to remove lead from water.
These measures drastically reduce the risk that the building’s occupants will be exposed to lead. Building owners and property managers may also test for lead at various sources to assess whether mitigation is necessary or whether it has been successful.
Lead Litigation and Potential Initial Inquiries
If these precautions prove unsuccessful in preventing lead exposure, and property owners or managers face lawsuits from lead exposure as a result, some initial considerations include:
1. COVID-19 Litigation Safe Harbors
Senator Majority Leader Mitch McConnell has recently announced his intention to tie liability shields to any further COVID-19 funding packages. These shields would protect businesses from certain lawsuits related to the reopening or resumption of their business activities. The proposal was met with skepticism and hostility. Consequently, the existence and scope of such liability shields remains to be seen. Most likely, if passed, the liability shields would be limited to suits involving a plaintiff with COVID-19. Perhaps some category of potential defendants, such as daycares, might be broadly protected from lawsuits related to reopening outside of the virus as the injury. This type of carve-out could look something like Georgia’s recent Executive Order that insulated any staff at a medical facility from claims of ordinary negligence. By the Order, these workers were now “auxiliary emergency management workers,” as that term is elsewhere defined in the Georgia Code, that could be subject to liability for actions/inactions related to their emergency management activities only in cases of willful misconduct, gross negligence, or bad faith.
It is unclear, however, whether the shield would be so expansive to protect commercial landlords, generally, from lawsuits involving alleged lead poisoning. Absent a clear delineation of the statutory shield, there may be litigation to define the parameters of the protections.
2. Status of Parties
Next, the status or legal categories of the parties is, as always, significant. Public school systems as defendants in lead litigation, for example, may be protected from suit by the state’s sovereign immunity laws. If the claimant/plaintiff is an employee of the defendant, then the state’s workers’ compensation regime would likely dictate the availability and avenues of relief. If that same claimant/plaintiff sues the employer’s landlord, then the existence of a workers’ compensation remedy may alter the trajectory of the case or considerations when considering resolving a case. All of this to say that a new wave of litigation does not disturb sturdy foundational inquiries like the status of the parties in a premises liability action.
3. Contractual Obligations
In this same vein, defendants to lead litigation should consider their contractual obligations broadly. An employer who rents office space may assume that the water system is the landlord’s responsibility and not give the potential litigation much thought. Yet, the pandemic raises novel questions that might implicate other lease provisions, such as an occupancy requirement. While an occupancy requirement would almost certainly have to accommodate the tenant abiding by a state’s shelter-in-place order, the language of the requirement may also absolve the landlord from certain liabilities that flow from periods of vacancy.
4. Possibility of Causation
If the case does not fail on a threshold question such as sovereign immunity, then a defendant would likely need to consider the possibility of causation. This analysis requires matching the alleged exposure to the alleged resulting injury. Cases involving lead exposure are more than 100 years old, and there is well-developed body of law around toxic torts more generally. A viable theory of causation can be quickly assessed at the outset by consulting the jurisdiction’s case law and the literature that has developed robustly over the last 50 years. If a Plaintiff has alleged an actual or virtual impossibility, then the case can be handled more swiftly.
5. Alternative causes
Last, and related to the possibility inquiry, a defendant would need to consider the range of other potential sources of lead exposure. Lead, like asbestos, is naturally occurring and was modified to enter the commercial market in many products. The risks of lead exposure are not confined to the recently re-opened buildings. If a case was viable, a defendant would need to establish, as best as possible, the universe of potential exposures to lead. This creative enterprise might start with statewide statistics and tests of a plaintiff’s other commonly-used water sources. The potential for lead exposures is more varied and widespread than asbestos. This inquiry into other potential exposures may be necessary given the strength and severity of a plaintiff’s allegations.
As Georgia begins re-opening its economy, we sought to identify a potentially overlooked risk of litigation. Property owners, landlords, tenants, employers, and others may overlook the risk of lead exposures when re-opening temporarily vacant buildings. These risks can be mitigated without much expense. Any lawsuit based on such lead exposures raises several threshold inquires whose determination can drastically alter the scope and potential exposure of any litigation.
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 In Maryland, for example, more than half of the state’s deaths from and about 20% of confirmed cases of coronavirus come from nursing home patients. (http://www.baltimoresun.com/coronavirus/bs-md-nursing-home-resources-20200428-47niuutoubeohovoa42wfyhw7y-story.html)
 The Marshall Project is tracking the reported cases in prisons, which is available here: (https://www.themarshallproject.org/2020/04/24/tracking-the-spread-of-coronavirus-in-prisons?utm_medium=social&utm_campaign=share-tools&utm_source=twitter&utm_content=post-top via @MarshallProj). In a particular Michigan facility, 600 of 1400 tested inmates were found to have the virus. (https://www.battlecreekenquirer.com/story/news/local/2020/04/24/coronavirus-michigan-prison-lakeland-correctional-facility-600-covid-19-cases/3023594001/?utm)
 https://www.cdc.gov/nceh/lead/prevention/default.html The issue also raises race, class, and socio-economic issues as it disproportionately affects low-income people of color. https://www.healthaffairs.org/do/10.1377/hblog20170808.061398/full/; see also, Hope Kerpelman, Let them Eat Paint: Childhood Lead Paint Poisoning as the Denial of Constitutional and Civil Rights, 51 Colum. Human Rights L. Rev. 830, 849-850 (2020) (“The lack of an adequate response to the problem, combined with the history surrounding discriminatory housing practices in the United States, the fact that lead poisoning disproportionately affects people of color and low-income households, and the knowledge that allowing lead poisoning to continue actually costs taxpayers billions of dollars, suggests an apathy that appears to rest on racist and classist attitudes.”); Kelly Mikullitz, An Argument Against Governmental Immunity in the Area of Lead Poisoning Litigation, 10 Alb. L. Envtl. Outlook, 297, 300 (2005) (“Approximately 16.3% of children within low income families and 21.6% of non-Hispanic black children nationwide have suffered the effects of exposure to lead. The highest incidence of elevated blood-lead levels (36.7%) occurs among non-Hispanic black children living in central cities with populations of more than one million.")
Executive Order 04.14.20.01 (Available here: https://gov.georgia.gov/executive-action/executive-orders/2020-executive-orders)
 The existence and scope of such protections vary by jurisdiction. For a general overview of sovereign immunity principles as applied to lead exposures, see Kelly Mikullitz, An Argument Against Governmental Immunity in the Area of Lead Poisoning Litigation, 10 ALB. L. ENVTL. OUTLOOK, 297 (2005).
 Mark L. Matulef, On-the-Job Lead Poisoning: Early Judicial Treatment of Claims for Recovery from Exposure to Workplace Lead, 10 U. Balt. J. Envtl. L., 1, 19 (2002) (“Although not a matter of law, it appeared nearly settled in the 1920's that lead-poisoning was a likely outcome for workers who refined lead, workers who made lead-based products, and even workers who simply worked in lead-using businesses without handling lead on a regular basis.”)