Baltimore housing authority says it won't pay millions in lead poisoning judgments

Graziano says authority can't afford to compensate victims of lead poisoning

April 03, 2011|By Scott Calvert, The Baltimore Sun

Antonio Fulgham can barely read or write. The 21-year-old from West Baltimore has been deemed "mentally retarded," with bleak job prospects. He blames his plight on lead poisoning he suffered as a toddler while growing up amid flaking paint in two Baltimore public housing units.

Last fall a city jury agreed, and ordered the Housing Authority of Baltimore City to pay him damages that amount to $1.27 million. Although nothing can undo his brain damage, Fulgham says the money will mean "a better change in my life."

But the housing authority says it has no intention of paying Fulgham – or anyone else who has won similar judgments for the harm caused by living in the city's lead-contaminated public housing. The authority is refusing to make good on any of nine court judgments totaling nearly $12 million, even though in some cases it agreed to the dollar amount or lost an appeal.

Since 2005 the agency has spent $3.8 million defending against lead paint cases, trying a succession of courtroom strategies that one plaintiff's lawyer likened to legal Whac-A-Mole. The authority's lawyers have argued that it is immune to lawsuits. They've argued it's too strapped to be sued. They've argued most of its assets are federal and therefore off limits. They've been accused in court of stalling.

Just last week, a circuit judge scolded one of the housing authority's private outside lawyers for withholding documents for over a year in one case, telling him in an exasperated tone that the delay "just has to stop."

City Housing Commissioner Paul T. Graziano acknowledges the lasting damage caused by lead-based paint. But legal arguments aside, he says the agency – the fifth-largest housing authority in the country, with a $300 million annual budget, according to its website – simply cannot afford to pay. Besides the judgments already entered against it, the housing authority faces 175 additional lead-paint cases whose potential claims exceed $800 million.

In short, Graziano says, paying for the harm caused by lead paint in public housing, which was mostly inflicted more than a decade ago, would make it impossible for the agency to adequately serve the 25,000 city households living in public housing and subsidized rentals today.

"While we are totally sympathetic and sensitive to the situation with respect to each of these families and the children involved, we just have to look at the entire picture before us," Graziano said. "Every dollar we spend on judgments is one less dollar that is available for major capital needs," he said, adding that "it would be tragic if this organization were to collapse due to financial insolvency."

Plaintiffs' lawyers counter that the authority has ample funds to satisfy the outstanding jury awards and settlements. If it's short on cash, they say, the authority can borrow on the bond market or seek government aid. They also criticize the authority for failing to maintain insurance coverage for lead paint-based claims after the mid-1990s, and for failing to self-insure afterward by setting money aside.

Attorney Brian Brown, whose clients have won millions in unpaid monetary awards against the authority, said public housing has always been a "housing of last resort" for desperate people with nowhere else to go.

"They go to the Housing Authority of Baltimore City: 'Please give us a safe place to live.' Now they're saying we didn't provide this to you, you're brain-damaged for life – and we're not going to compensate you for your losses," Brown said.

University of Baltimore law professor Charles Tiefer said if the housing authority were a private corporation, the weight of so many present and potential claims could eventually tip it into bankruptcy. Even if the authority finds new ways to avoid paying, Tiefer says the monetary judgments won't go away. That means plaintiffs could continue trying to collect for years to come.

"The housing authority can't get out of the judgments against it," he said.

Ruth Ann Norton, executive director of the Coalition to End Childhood Lead Poisoning, a Baltimore-based nonprofit, praised Graziano's efforts on lead paint issues in his 10 years as commissioner. Still, she said, the authority's no-pay stance is unfair to the children who, by no fault of their own, wound up living in perilous conditions and now face lifelong disabilities.

Even small amounts of lead can cause impairment that stunts a child's learning and contributes to behavior problems. Lead-based paint, once widely found in houses across the nation, was banned in Baltimore in 1950, but much of the city's housing stock predates the moratorium.

"I am very sympathetic to the plight of the city in terms of resources, but as a city we have a moral obligation to our children," Norton said. "There isn't any amount of money that's going to repair the damage. But just on basic fairness doctrine, it's troublesome on many, many levels."

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