- The Washington Times - Monday, March 22, 2004

The lead in the District’s water supply will make the city a target for lawyers and lawsuits for years to come, legal analysts say.

One class-action lawsuit already has been filed against the city and the city’s Water and Sewer Authority (WASA), but sources familiar with the District’s legal community predict many more lawsuits from potentially tens of thousands of claimants — a legal battle that could last several years and end up costing the city millions of dollars.

“I think there are going to be a lot more lawsuits filed,” said Michael M. Ain, a private personal-injury lawyer in the District for the past 25 years. “I think there’s going to be a high number of additional cases. … It can take years for symptoms of lead poisoning to show up physically or neurologically.”

Chris Cole, who represents the two plaintiffs in the class-action lawsuit against the city, said several law firms have asked him for copies of his complaint.

“I’m fairly confident that some of them plan on bringing action,” said Mr. Cole of Paul, Hastings, Janofsky and Walker LLP.

Mr. Cole filed the class-action lawsuit last week, and the city government and WASA have until Monday to reply, he said. The first step is for a judge to rule whether the lawsuit’s plaintiffs can show common cause with other plaintiffs who might step forward. Otherwise, the lawsuit cannot represent a “class” of people.

The class-action certification “is usually contested pretty heavily by the defendants,” said Dan Tobin, a class-action defense lawyer in the District for the past three years. “Usually, if the plaintiff can’t get class action, the case isn’t pursued at all.”

After the city has responded, the court will rule within a few months, Mr. Cole said.

The class-action lawsuit would represent two “classes” of plaintiffs. The first class is parents or guardians of children 6 or younger who have been drinking the District’s water in areas where testing shows lead levels higher than those approved by the Environmental Protection Agency (EPA). The second class is women who, while pregnant, drank the District’s water in areas where it has been tested and shown to have high levels of lead.

The Washington Times reported last week that pregnant women and children 6 and younger are the only ones seriously at risk of lead poisoning, according to medical specialists. Lead poisoning can have negative effects on the rapidly developing brains of young and unborn children and often is irreversible, specialists said. Persons with compromised immune systems also are at risk, according to the Centers for Disease Control and Prevention (CDC).

The CDC states on its Web site that “lead poisoning can cause learning disabilities, behavioral problems, and, at very high levels, seizures, coma, and even death.”

The lawsuit charges that WASA has known about widespread lead contamination in the District’s water supply since summer 2001, and that during summer 2002, when WASA found more than 50 percent of the city’s water to have lead levels above EPA standards, it concealed the information and did nothing to correct the problem. An investigation was opened on March 15 by the House Energy and Commerce subcommittee on environment and hazardous materials.

More than 23,000 homes in the District are estimated to have lead piping.

“I’ve been getting dozens of phone calls and e-mails” from people wanting to join the lawsuit, Mr. Cole said. “We’re not actively signing people up yet because we don’t have a certified class, but we’re collecting people’s information.”

The lawsuit estimates that the class could represent “tens of thousands” of people.

“We really haven’t tried to total up the damages. That’s not the principle reason we’re pursuing this. But it’s damages that seem to get the city and WASA’s attention,” Mr. Cole said.

Mr. Ain said one person with serious neurological damage could ask for millions of dollars alone. “If this is not attacked quickly and efficiently by the city, then they’re going to expose themselves to greater liability,” he said.

District officials have criticized the lawsuit as a waste of time and money. “A lawsuit against WASA just means that WASA will have to raise their rates to pay off their claims. There’s no way around the reality that if you join these class-action suits, you’re suing your neighbors, and the people who walk away with the money are the lawyers,” said Tony Bullock, spokesman for D.C. Mayor Anthony A. Williams. “Show me the first person with an injury, and maybe we’ll have a discussion.”

Mr. Tobin said the lack of immediate evidence of negative health effects could be a challenge for the plaintiffs.

“If the plaintiffs are going to try to get damages for injuries that they actually experienced, then I’m sure that the defense is going to say that they’re asking the court to speculate. … Usually, the defense asks the court to rule on injuries that are identified. The injuries might be too speculative,” he said.

Mr. Cole, however, said the lawsuit does not depend “on a demonstration of adverse health effects. The fact of exposure has already been conclusively determined by federal health organizations to be harmful. There really is no safe exposure to lead.”

He also criticized Mr. Bullock’s remarks, calling them “a statement to public officials that they are judgment-proof, that they can’t be held responsible, because anything that might be held against them can just be passed along to the taxpayers.”

“It’s like saying, ‘No matter how bad we do, you can’t sue us because it’s just going to come out of your own pocket anyway,’” Mr. Cole said.

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