City agency says it can't pay lawsuits for lead paint

Housing authority asks judge for relief, claiming that it `has no funds'


Facing a series of lawsuits over lead paint exposure, the Housing Authority of Baltimore City is trying a novel approach for its defense: Don't bother suing us, because we can't afford to pay.

The request for relief - which the plaintiffs' attorney called unprecedented - asks a city judge to rule that the authority "has no funds, and therefore no ability to pay any judgments entered against it in the above-referenced civil actions."

To back up their petition, lawyers noted a list of financial woes for the authority - a projected drop of $4 million in federal funding this year, recent layoffs to balance its budget and the dissolution of its police force in 2004.

But the housing authority hasn't lost in court yet. In a pre-emptive move, its lawyers are asking the judge to rule the authority is practically insolvent in the legal arena before any jury rules against it and, hypothetically, awards damages.

"This motion has nothing to do with liability," housing authority spokesman David Tillman said yesterday. "It has to do with the housing authority trying to conserve our resources and save the court's time."

The attorney representing 13 families who sued the authority over lead paint exposure said the unusual legal argument should be rejected.

"We intend to defeat them in a court of law," Baltimore attorney David F. Albright Jr. said yesterday. "The housing authority needs to accept responsibility and pay judgments entered against it."

At the core of the case are 13 families who are current or former residents of the city's public housing communities. Once a widespread problem, lead poisoning has fallen drastically in recent years among Baltimore children.

But the plaintiffs contend that exposure to lead-based paint years ago has led to significant neurological damage, including reduction in intelligence levels and the development of learning disabilities.

The children were affected before the state-capped awards for lead-paint exposure in 1996, the lawyers said.

Among the plaintiffs is the family of Tina Copeland, 39, who sued the authority on behalf of three of her children.

"I noticed problems once they were about [age] 2," she said of her twins and her third daughter.

A wall in her living room had lead-based paint and peeled just at the level where her young daughters could reach, Copeland said.

Since then, the three girls, now all 16, have consistently been in trouble in school, she said, often in detention more than in class. Doctors diagnosed elevated lead levels, according to Copeland. "I deal with it," she said. "In the beginning, I didn't know there was anything I could do."

But when she heard about the possibility of a lawsuit, Copeland, who still lives in public housing in Park Heights, decided the effort would be worth it.

"I felt like if my daughters had to live with this, they deserved some type of compensation," she said.

When told that the authority is claiming it's too strapped to pay any more claims for lead exposure, Copeland sighed and wondered how her daughters would make a living when they're on their own.

"Wow, I don't know. I still feel like my girls deserve something. It seems like they're trying to say, `It happened. Deal with it. What do you want from me?'"

The separately filed lawsuits ask for damages of $28 million, according to Albright.

In the court papers filed Friday, the housing authority argues that a 2002 Maryland Court of Special Appeals decision gives it the ability to try to prove to a court that the authority might not be able to pay a large judgment.

While the idea of an inability to pay has been suggested as a possible remedy for the agency by the appeals court, one legal expert said the opinion was extremely unusual.

"It reminds one of the part of Alice in Wonderland where the plan is, first the verdict and then the trial," said University of Baltimore Law School professor Charles Tiefer.

Tiefer said public authorities sometimes have special protections in court from lawsuits, and the courts appear to grant some immunity for the housing authority if it could prove it wouldn't be able to pay.

"You couldn't do it. I couldn't do it. But a public housing authority could do it," Tiefer said.

Such protection, he said, has some merit. Especially in cases where insurance companies no longer offer protection for housing authorities against lead-paint exposures, Tiefer added.

Tillman, the housing authority spokesman, said the agency has previously settled lead-paint claims with its residents.

But Tiefer said those awards do not necessarily mean that the 13 families waiting in court will be treated the same way.

"Sometimes it's the case in the law that the victims who arrive in court last get the least, regardless of the merit, because they're too late," the professor said.

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