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VALENCIA v. LEE

December 13, 2000

CHRISTIAN VALENCIA, AN INFANT BY HIS MOTHER AND NATURAL GUARDIAN, TERESA FRANCO PLAINTIFFS,
V.
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.

  MEMORANDUM AND ORDER

Background

(1)

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 [10] 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 repairs.
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).
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 g/Dl
7/20/1993 30
8/23/1993 19
11/08/1993 15
2/10/1994 13
5/17/1994 12
10/31/1994 11
4/26/1995 12
6/26/1995 17
8/1/1995 15
8/4/1995 15
10/16/1995 12
11/7/1995 12
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.

(2)

Christian attended a Head Start program from September of 1996 to July of 1997. Throughout this program, Christian had behavioral problems, including aggressiveness, inattentiveness, and restlessness. (Tr. 302); Pl. Ex. 6.
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. 84).

(3)

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, 529-30).
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, 193-94).
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. (Tr. 515-16).
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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