Lead Consulting Services & Litigation Support
Skalsky & Associates is a leader in providing expert witness consultation and guidance to assist law firms with litigation involving lead exposure. We believe that recent actions of the Center for Disease Control (CDC) will fuel an increase in lead litigation in the near future. In May of 2012, the CDC replaced their level of concern designation for lead in the blood of children from 10 µg/dL to a statistical upper reference interval value of 5 µg/dL. The CDC's action created a storm of publicity focused around the subject of "No safe level of lead in children". Skalsky & Associates can help you to understand the technical issues surrounding lead exposures and their resulting impact. We can also assist you in understanding and finding resolutions to questions concerning recent lead regulations.
The experts at Skalsky & Associates have experience in industrial, environmental and household lead investigations and remediations. We can identify the data that will satisfy the burden of proof requirements for a particular litigation and where necessary Skalsky & Associates can collect data focused on specific litigation needs. Based on our experience, we have found that it is often important to:
- Characterize alleged lead exposure pathways and/or identify "alternative" lead exposure pathways
- Evaluate lead exposures and assess their relationship to the alleged health effects
- Identify and investigate other "non-lead" causes of the alleged lead health effects
The methods of collection and analysis for lead can be confusing and sometimes misleading. We can help your law firm prepare a case for trial by providing litigation support services and expert witness testimony to evaluate laboratory lead data and assess its accuracy. Remember that exposure to lead is unavoidable and that mankind has over a 6,000 year history of lead exposure.
History of Lead Exposure
Lead is a naturally occurring element and makes up about 0.0013% of the earth's crust (130 parts per million). Lead is not considered a rare element since it is easily mined and refined. The major minerals that contain lead are galena(PbS), anglesite (PbSO4), cerussite (PbCO3) and minum (Pb3O4). Since lead is natural part of the earths crust, exposure to lead is unavoidable.
Lead has been mined and used by mankind for over 6,000 years. Although lead has been used by many cultures, it was probably most exploited by the Roman Empire. The Romans produced an average of 60,000 tons of lead a year for about 400 years. They had over fifteen sizes of lead pipe to transport water across their empire.
The Roman aristocracy could afford more wine and were believed to drink about two liters of wine per day while commoners consumed less. The fact that higher lead concentrations were found in the bones retrieved from tombs of Roman aristocrats than from the bones found in graves of commoners, has led some to conclude that the Romans were the first people to use lead as a food additive. A Roman product call sapa (prepared by boiling grape juice in lead pots) was used as a sweetener in wines. The aristocrats' increased consumption of sapa sweetened wines likely resulted in a higher body burden of lead as reflected by the increased deposition of lead in their bones.
Lead poisoning was first described by Dioscorides, a Greek doctor. In the 1st century AD, he noted that exposure to lead could cause paralysis, delirium, intestinal problems and swelling. Dioscorides wrote a five volume treatise about medicines of the time call the De Materia Medica. Information is contained within these volumes on how to make white lead (2PbCO3·Pb(OH)2) and red lead (Pb3O4) pigments in addition on how to make sweet lead (Pb(CH3COO)2). It is clear that by the first century, and probably before, lead had a wide variety of uses. Paracelsus, the founder of toxicology, described lead toxicity in the early 16th century in what he called "the miners disease". Lead has a long history of use and toxicity both in the old world (Europe) and in the new (the Americas). In the United States during the late 1800s over 30,000 cases of lead poisoning were recorded in the lead mines of Utah.
By the 1900's the toxic effects of lead were well recognized but not necessarily well publicized and were certainly not regulated. The first recorded regulation of lead occurred in Europe in 1498. Some Germanic countries prescribed the death penalty for those caught mixing lead sugar into wines and ciders. Regulations to lead exposure took extensive time to develop in the United States.
The first report linking lead-based paints to childhood lead poisoning was published by Dr. Gibson in 1904 in Brisbane, Australia. Dr. Gibson noted and measured lead dusts originating from painted walls within his patients homes and correlated them to the negative health effects that his patients were experiencing. Once this study became accepted, several European countries banned the use of interior lead-based paints and the League of Nations followed with a ban of interior lead-based paint in 1922. The United States declined to adopt this rule and continued to use lead based paints on the interior of homes. This position did not change even when Byers and Lord demonstrated in 1942 the significant neurological problems that children suffered after consuming lead paint chips.
Around 1903 it was found that the addition of tetraethyl lead to gasoline was of great value in preventing "knocking". Unlike the inorganic lead compounds that had been used historically, tetraethyl lead was volatile and could be absorbed by inhalation or by dermal contact. Its introduction into commerce had far reaching negative consequences.
In 1922, E.I. DuPont and General Motors formed the Ethyl Gasoline Company and began to produce tetraethyl lead. In 1924, Standard Oil commenced production of leaded gasoline. Shortly after production began, workers in three plants, Dayton, Ohio, Bayway, New Jersey, and Deepwater, New Jersey, became seriously ill and a moratorium on production of leaded gasoline was imposed. In New Jersey, it was reported that five Standard Oil employees died as a result of tetraethyl lead exposure and thirty others were severely affected. In 1926, the Surgeon General's committee pronounced tetraethyl lead safe for use at a concentration of 3 cubic centimeters per gallon and for the next 35 years lead toxicity as a health issue virtually disappeared from the national news.
The combustion of tetraethyl lead in the automobile provided a clear pathway for the aerial dispersion of lead into the atmosphere and its subsequent distribution throughout the environment. Many had warned that the use of tetraethyl lead in gasoline would contaminate the entire biosphere. But, it wasn't until 1965 that a research associate in geology at the California Institute of Technology demonstrated that the warnings were true. Clair Patterson investigated the lead levels in soils and ice cores and found that concentrations of lead in recent deposits were much higher than expected when compared to other periods of time before the introduction of tetraethyl lead. Mr. Patterson clearly demonstrated that recent human activities raised environmental background levels of lead.
In 1966, Senator Edward Muskie (Chairman of the Senate Subcommittee on Air and Water Pollution) presided over hearings concerning the proposed Clean Air Act. He gave considerable attention to the status of lead in the air and in gasoline. During this same time period the question of lead being a "silent" poison, began to draw the attention of civil rights and antipoverty movements, urban advocates and environmentalists. Senator Muskie's aggressive inquiry into lead marked a clear political change away from complacency and towards the active regulation of lead. More importantly, these hearings dispelled the notion that lead poisoning was an all-or-nothing phenomenon and replaced it with a debated range of potential toxic effects depending on dose and time of exposure.
President Nixon signed the Clean Air Act of 1970 into law on December 31st, and the newly formed Environmental Protection Agency (December 2, 1970) had to scramble in order to find competent people and so began the monumental task of environmental regulation. The Lead-Based Paint Poisoning Prevention Act was signed in 1971. It restricted the lead content in paint used in housing built with federal dollars and provided funds for states to reduce the amount of lead in paint. However, it was not until December of 1977 that EPA finally published the Air Criteria Document for lead.
As the U.S. government enacted regulations banning the use of lead in gasoline, paint, and the solder used to seal food cans, the body burden of lead for those in the United States declined significantly. The data from the National Health and Nutrition Examination Survey (NHANES) shows that adults in 1976 had blood lead levels in the range of 15 to 16 µg/dL. By 1980, those levels had dropped to 9 to 10 µg/dL. Thirty years later our average levels have declined to 1.08 to 1.16 µg/dL in 2010. Blood lead levels are the most widely use indicator of exposure. However, these tests do not measure total body burden and are more reflective of recent (within 30 days) or ongoing exposures to lead.
Lead is present in small amounts throughout the environment. Lead in soil can be absorbed by plants that are grown for food. Many food products will contain very small amounts of the element - in the range of parts per billion (ppb). The dietary lead intake for an average adult male in the United States had been estimated at 1.009 µg/kg of body weight/day, or 70.63 µg/day for a 70 kilogram adult. The dietary lead intake for a child (1 to 6 years old) has been estimated at 1.952 µg/kg body weight/day.
Skalsky & Associates Will Help You Navigate Recent Lead Regulations
Lead encephalopathy was a common cause of pediatric admissions to urban hospitals in the 1950s and 1960s. It is now considered very uncommon to have such an admission. In May of 2012 the Center for Disease Control (CDC) replaced their "level of concern" value of 10 µg/dL with a statistical upper reference interval value of 5 µg/dL. The CDC's action created a storm of publicity focused around the subject of "No safe level of lead in children".
The reasons for the change in the CDC's policy may be debatable. However, the CDC's change to 5 µg/dL is likely to stimulate an upswing in lead litigation. This upswing will also be based on the "market place" confusion of what legally constitutes a lead containing paint. Under HUD Guidelines a lead containing paint is defined as containing 1.0 milligram lead per square centimeter (mg/cm²) or 0.5% lead by weight. However, the Consumer Product Safety Commission (CPSC) in their Ban of Lead-Containing Paint defines a "non lead" product as containing no more than 0.009% lead. This thousand fold difference (0.5% versus 0.009%) in regulatory definitions can be confusing and will be exploited during litigation.
The lower CDC limit will also challenge existing labratory procedures. For example, in California proficiency testing is required of those laboratories that analyze for lead in blood and are reimbursed by the State. The criteria for acceptable performance in these proficiency tests for blood lead has been ±4 µg/dL. CDC's new statical upper reference limit will make the aquisition of labrator proficiency tests of major importance in litigations.
Regulation of lead is ongoing. EPA is currently seeking public comment (Federal Register of May 30, 2014, [79 FR 31072]) on the "Framework for Identifying and Evaluating Lead-Based Paint Hazards from Renovation, Repair, and Painting Activities in Public and Commercial Buildings." The experts at Skalsky & Associates can assist you in understanding and finding resolutions to questions concerning these recent regulations.