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VALENCIA v. LEE
December 13, 2000
CHRISTIAN VALENCIA, AN INFANT BY HIS MOTHER AND NATURAL GUARDIAN, TERESA FRANCO PLAINTIFFS,
SUNG M. LEE AND SHIU CHUN LEE AND THE CITY OF NEW YORK, DEFENDANTS.
The opinion of the court was delivered by: David G. Trager, United States District Judge.
Teresa Franco was born in Guayaquil, Ecuador, and moved to the United
States in 1988. On March 11, 1992, she and Julio Valencia, who is now
her husband, had a child, Christian Valencia. For three and one-half
years, from Christian's birth through October of 1995, he and his mother
lived in an apartment in a building located at 441 46th Street in
Brooklyn, New York. During the family's entire tenancy in this building
it was owned by defendants Sung M. Lee and Shiu Chun Lee (the "Lees").
While pregnant with Christian, Ms. Franco received her prenatal care at
Lutheran Medical Center in Brooklyn, New York, and after his birth
continued to bring Christian to a clinic at that facility, Sunset Park
Family Health Center, for his pediatric care. Pl. Ex. 4. As required by
law, on or about his first birthday, Christian's blood was tested as part
of his pediatric care, and his blood lead level measured 14 micrograms
per deciliter (" g/dl"). Pl. Ex. 19. On July 28, 1993, at the age of 16
months, his blood lead level was 30 g/dl. Pl. Ex. 4.
While the March reading was elevated, it was not high enough to trigger
intervention by the City. The July reading required a response on the
City's part. Specifically, under the New York City Health Code, a blood
lead level above 10 g/dl in a child is considered lead poisoning. See
New York, NY, Health Code, Title II, § 11.03. When a physician
detects a blood lead level above 10 g/dl in an individual, he or she is
required to report that finding to the City's Department of Health
("DOH"). Id. Where a level over 20 g/dl is reported to DOH, DOH is
mandated to respond by inspecting the individual's apartment for lead
paint. (Tr. 243-46); see also New York, NY, Health Code, Title IV, §
173.13(d)(2). Lutheran Medical Center reported Christian's blood lead
level, and upon receiving this information, DOH sent two Public Health
Sanitarians ("PHS") to the family's apartment on August 25, 1993 to
inspect for lead paint and to advise Ms. Franco about the hazards of lead
paint. (Tr. 276).
The PHSs took 78 readings of the paint and one of the tap water. The
tap water sample was negative,*fn1 but 56 of the 78 paint readings were
positive for lead paint. Pl. Ex. 10. As a result of these positive paint
readings, the PHSs gave Ms. Franco a single page document, in English on
one side and Spanish on the other, containing information about the steps
that the City would take in attempting to remedy the lead paint hazard in
her apartment. The procedure, as outlined in this informational sheet,
was as follows:
1. Your landlord will be informed by letter that he/she is
required by law to fix your apartment within  working
days of notification.*fn2
2. If the landlord does not fix your home, the New
York City Emergency Repair Program (ERP) will contract
to do the work and bill the landlord for the cost of
3. You must allow the landlord or the ERP to come into
your home in order to do the repairs.
4. The landlord cannot dispossess you or force you to
move because of these violations.
5. I will continue to check your home until the
repairs are completed properly as required by the New
York City Department of Health.
6. A public Health Advisor from the Bureau of Lead
Poisoning will also be visiting your home to answer
your questions about lead poisoning and the medical
care you may expect for your child.
Pl. Ex. 10, p. 3. In addition, the PHSs put red "LEAD PAINT" stamps on
surfaces found to contain lead paint.
DOH sent an Order to Abate Nuisance, dated September 16, 1993, to the
Lees directing them to repair the 56 surfaces which tested positive for
lead-based paint. Pl. Ex. 10, p. 15. The Order to Abate Nuisance warned
the Lees that the lead paint covered surfaces in the apartment
"constitute a nuisance in that they present a danger to the life or
health of the child/children of the above-referenced premises." Id. In
September or October of 1993, the Lees used plywood to cover some
surfaces, but it appears undisputed that this was not a substantial
abatement of the hazard. (Tr. 60-61, 112). The plywood only covered the
walls in the living room and hall, and none of the door frames, window
frames or any surface in the other rooms in the apartment. (Tr. 135).
As promised, over the next two months DOH continued to visit the
apartment, but no significant repair work was completed. DOH sent one or
more PHSs to inspect the apartment on September 27, 1993, October 19,
1993, and November 10, 1993. Although on the previous visits the PHSs had
determined that work on the apartment was in progress, on the November
10th visit, the PHS decided that the Lees were no longer making an effort
to repair the hazard. (Tr. 264). Consequently, the inspector determined
that, consistent with the information provided to Ms. Franco upon the
first visit, the apartment should be abated by the Emergency Repair
Program ("ERP"). (Tr. 264). Upon the PHS's recommendation, DOH sent a
letter to ERP, dated November 22, 1993, ordering that agency to abate the
hazard. Pl. Ex. 10, p. 24.
Ms. Franco was never notified of this decision, (Tr. 265); indeed, at
no point was there any communication between the family and ERP. ERP did
not come in to repair the premises as scheduled, and at trial, the City
offered no evidence as to why no repairs were completed beyond noting
that there was a "lapse." (Tr. 268).*fn3
On February 16, 1995, a full fifteen months since the last PHS visit, a
PHS returned and found that the lead hazard in the apartment remained
unabated. One or more PHSs again visited on March 8, 1995, March 30,
1995, May 11, 1995, July 17, 1995, September 28, 1995, and on October 2,
1995. Throughout this period, no repairs were made to abate the lead
paint. In fact, despite DOH's significant intervention in the matter, its
September 16, 1993 Order to Abate was not fully complied with until June
of 1996, some eight months after Christian and his family moved out.
Pl. Ex. 10 (Report of Inspection, dated June 28, 1996).
In addition to the visits by PHSs relating to monitoring the
abatement, the Department of Health on four occasions stretched over a
two year period sent Public Health Advisors ("PHA") to counsel Ms.
Franco. A PHA visited on August 26,
1993, May 2, 1994, November 22, 1994, and August 30, 1995. Pl. Ex.
10. On each of these visits, the respective PHAs advised Ms. Franco
on several topics, including what to feed Christian, how and when
to wash Christian, Christian's continued blood testing, and how to
clean the apartment and Christian's toys. (Tr. 56-58, 105); see also
Pl. Ex. 10 (PHA notes, dated 8/26/93, 5/2/94, 11/22/94, and 8/30/95).
It is undisputed that Ms. Franco consistently followed this advice.
Christian's pediatrician at Lutheran Medical Center, was also involved
with Christian's care. She provided Ms. Franco with vitamins (primarily
iron), and advised Ms. Franco to give Christian milk. (Tr. 94-95). In
addition, on August 23, 1993, Christian's first visit to the pediatrician
after a dangerously high level of lead was detected in his blood, the
doctor advised Ms. Franco that one source of the lead in Christian's
blood could be paint from the apartment. (Tr. 99). Beyond this advice,
however, the pediatrician did not instruct Ms. Franco on how and when to
clean Christian or the apartment, or what diet — beyond drinking
milk — Christian should follow. (Tr. 98-101).
While acknowledging that she knew the lead paint to be a continued
hazard, (Tr. 88, 109), Ms. Franco believed that as long as she followed
the advice of the PHAs and PHSs, Christian's health would not be in
jeopardy. (Tr. 71-72). At no time did any PHS or PHA advise Ms. Franco
to remove Christian from the apartment despite the fact that DOH was
aware that he continued to be exposed to a lead hazard for over two
years. (Tr. 59-63). Nor did anyone advise Ms. Franco that the cleaning
and diet instructions she was receiving would not fully protect Christian
from the lead paint hazard. (Tr. 59-63). In fact, the first indication
that anyone advised Ms. Franco that Christian risked continued lead
poisoning even if she followed their advice was August 30, 1995 —
two years after the initial contact between Ms. Franco and DOH. (Tr.
281).*fn4 Further, no PHS or PHA explained to Ms. Franco that blood
lead levels under 30 g/dl could be dangerous to the child's health.
(Tr. 79). Ms. Franco testified that if the above advice had been given,
she would have moved from the apartment. (Tr. 72). In light of the fact
that it is undisputed that Ms. Franco was a diligent and conscientious
mother who followed the advice she was given, there is no reason not to
credit this testimony.
In November of 1995, when Christian was approximately three and
one-half years old, the family moved to a new residence in Ridgewood,
Queens. In the relevant time frame — from when Christian was first
found to have a high blood lead level (July 23, 1993) to when the family
moved (November of 1995) — Christian's blood lead level was tested
twelve times, with the following results:
Date Blood Lead Level
Pl. Ex. 19. On June 10, 1996, approximately six months after Christian
and his family moved from the apartment to Queens, his blood was tested
again and his blood lead level was 6 g/Dl. Pl. Ex. 18.
In September of 1997 Christian attended Public School 1K ("PS 1K") as a
first grader. After some difficulties in the first grade recognizing
letters and numbers, he attended summer school for reading. (Tr.
82-83). In second grade at PS 1K, his academic difficulties continued,
especially in math and reading, (Tr. 320-22), despite the fact that his
father and older sister would help him with his work every day for one to
three hours. (Tr. 82-84).
These difficulties were exacerbated by Christian's behavior in school.
On his second grade report card, his teachers referenced his classroom
behavior and his inability to obey rules or exhibit self-control as
contributing to his poor performance. Pl. Ex. 8; (Tr. 320-22). As a
result of his poor grades, at the end of his second school year, in June
of 1999, the school asked Christian to repeat the second grade. (Tr.
Christian's condition was evaluated twice in connection with this
trial. The first evaluation was performed by plaintiff's expert, Dr.
David Freyre, a licensed psychologist, on May 15, 1998, when Christian
was six years old. (Tr. 147, 154). The second evaluation was performed
by the City's expert, Dr. David Masur, a neuropsychologist, on August 7,
1998. (Tr. 511). Dr. Freyre conducted five tests, the Bender-Gestalt
test, the Wechsler Intelligence Scale for Children ("WISC"), the Thematic
Apperception Test ("TAT"), the Rorschach Inkblot Test, and a figure
drawings test. Pl. Ex. 12. Dr. Masur administered the Wechsler
Preschool and Primary Scale of Intelligence (the "Wechsler Preschool"),
the Beery Developmental Test of Visual/Motor Integration (the "Beery
Test"), the Peabody Picture Vocabulary Test, the Children's Selective
Reminding Test, a figures drawings test, and a lateral dominance test.
The results of the extensive battery of tests performed by each expert
were essentially in agreement, and, in fact, Dr. Masur did not dispute
any of the findings of Dr. Freyre. (Tr. 529).
During their respective examinations, both Dr. Freyre and Dr. Masur
found Christian to be aggressive, impulsive, hyperactive and
distractible. (Tr. 158-59, 513-14, 518-19).*fn5 Although Christian was
able to complete the tests for Dr. Freyre, he threatened to quit, hid
under the table, and stood on chairs on several occasions. (Tr.
158-59). Similarly, Dr. Masur found that Christian's lack of focus and
inattention affected his ability to perform on certain aspects of his
testing. (Tr. 514).
The first test Dr. Freyre used to evaluate Christian was the
Bender-Gestalt test. The Bender-Gestalt test measures the ability of the
child to rotate two-dimensional geometric figures in space. (Tr. 165).
Dr. Freyre found Christian to be "impaired" in his ability on this test,
a condition known as two-dimensional constructional apraxia, which would
lead to difficulties in learning to read and write. (Tr. 165). He also
found that Christian's visual memory was impaired. The combination of
these problems led Dr. Freyre to conclude that Christian likely suffers
from a language-related learning disorder. (Tr. 165-67). Because
reading and writing are related to two-dimensional shapes, Dr. Freyre's
conclusion that Christian has two-dimensional constructional apraxia was
bolstered by the fact that Christian did not have the same difficulties
with the three-dimensional figures on the WISC test. (Tr. 184). Dr.
Masur did not dispute any of these findings, and in fact
similarly found that Christian had great difficulty on the Beery
Test in dealing with simple two-dimensional shapes. (Tr. 521-22,
Christian also struggled with portions of the WISC and the Wechsler
Preschool tests. Both of these tests are intelligence tests that are
divided into three parts: verbal, performance, and full scale. (Tr.
169). Thus, the child is given a "verbal IQ" score, a "performance IQ"
score, and a "full scale IQ" score — which is a combination of his
results. As measured by Dr. Freyre, Christian's full scale IQ was an
87, but there was great disparity between the verbal IQ, which was an
82, and the performance IQ, which was a 95. (Tr. 174-75). Dr. Freyre
read this disparity to be further indication of a language-related
learning disorder — a determination that was further supported by
Christian's primitive drawings on the figure drawing test. (Tr. 175-76,
Dr. Masur came to similar conclusions about Christian's intelligence
using the Wechsler Preschool, including the disparity between verbal and
performance. The doctor found that Christian's verbal IQ was an 80, and
although he measured Christian's performance IQ as 81, he felt that
Christian was not performing to the best of his abilities and that Dr.
Freyre's result was probably more accurate. (Tr. 514-15). In fact, Dr.
Masur agreed that Christian has a language-related learning disorder.
Dr. Freyre also found that Christian's score on the arithmetic portion
of the WISC test, a 4 out of 19, was indicative of dyscalculia, a
learning disorder related to a child's ability to do mathematics. (Tr.
178). Dr. Masur found Christian's mathematical skills to be somewhat
better, placing him in the 23rd percentile. (Tr. 534-35). Even on Dr.
Masur's tests, however, Christian was often unable to perform even the
simplest of mathematical tasks — such as adding 2 plus 1 or
counting eight fingers. (Tr. 534-35). On the whole, it is apparent that
Christian's mathematical abilities are substantially impaired.
Dr. Freyre also administered two tests, the TAT and the Rorschach, to
measure Christian's mood. (Tr. 191-92). The combination of these two
tests revealed that Christian is an unhappy child, but that this mental
state did not rise to the ...
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