Defective Lead Paint Test Kit Leads To $170,000 Settlement


A mother retained us after her daughter, a young child, was diagnosed with lead poisoning. The family’s apartment had tested positive for lead paint.

We filed suit against the child’s landlord for violating Massachusetts Lead Poisoning Prevention Law. When we deposed the Landlord, we determined that the landlord was uninsured and had few assets to pay any potential verdict or settlement.

In her deposition, the landlord asserted that she had purchased a do-it-yourself lead paint test kit at a local hardware store, that she had tested the unit before renting it, and that it had tested negative for lead paint. Based on the landlord’s claims and the box for the test kit that she had saved, we sued the hardware store for breach of warranty, negligence and violation of Massachusetts Consumer Protection Act. To establish the store’s liability, we hired a scientist, who had studied lead paint test kits for the Environmental Protection Agency, to serve as an expert witness in the case. He had conducted a multi-million dollar study on lead paint test kits, and had found that the type of kit allegedly used by the landlord in our case had an unacceptably high rate of false negatives. We also hired a neuropsychologist to testify concerning the child’s learning, behavioral and occupation problems. Finally, we hired an economist to estimate the child’s potential economic losses.

The store’s insurer was insolvent and initially refused to settle our claims. When we threatened to sue the insurer for “unfair claims settlement practices,” the insurer relented and agreed to pay $170,000 to settle the case. As part of the settlement, we established a trust for the child’s future care, support and education.