Lead poisoning... Class Action Lawsuit... Philadelphia Lead Pipe Water Contamination and Cover-up...
A new class action lawsuit was filed against the city of Philadelphia regarding lead poisoned drinking water on June 2, 2016. Philadelphia residents have filed a class-action lawsuit against the city of Philadelphia, claiming that it knowingly conducted construction projects that exponentially increased the risk of toxic levels of lead in residents’ tap water, and that the city failed to warn residents of the risks and actively concealed the problem through “negligent, reckless, and deceptive conduct,” according to Hagens Berman.
In recent days there are more investigations and lawsuits about lead contamination of Chicago and Chicago's public schools drinking water. At Substance News there is an ongoing investigation of a cover-up of lead in drinking water in the Chicago Public Schools run by Mayor Rahm Emanuel. The Guardian newspaper published a report on June 2 about the cover-up of manipulation of lead testing in 33 cities across 17 US states.
The Philadelphia lawsuit, filed on June 2, 2016 in the Court of Common Pleas of Philadelphia County, states that the city’s aging lead water pipes are disturbed by construction that disrupt the service lines and increases the risk of lead contamination into nearby residents’ water supply. The lawsuit cites multiple studies that have shown the risks to partially replacing lead service lines, stating that the city has ignored “blatant red flags.”
HIGH LEVELS OF LEAD CAN CAUSE: Hearing loss, Joint pain, Neuropathy, Infertility, Concentration problems, Increased risk of cancer, Stunted growth, Reading disabilities
The Philadelphia lawsuit notes problems that can easily also be cited in Chicago. “Studies have shown that the kind of construction the city is carrying out creates the perfect storm for lead pipe corrosion, and yet the city has decided to conceal this growing health hazard from its own citizens,” said Steve Berman, managing partner of Hagens Berman. “To add insult to injury, the city of Philadelphia has actively concealed this issue by rigging its lead testing procedures.”
If you are a resident of Philadelphia and believe you have been put at risk of lead contamination due to the city’s disruptive construction projects and lack of information, you may be entitled to medical monitoring and other compensation from the city. Contact Hagens Berman’s legal team about the class-action lawsuit on behalf of Philadelphia residents.
The full complaint is reproduced below:
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY - CIVIL TRIAL
No.160503980
CLASS ACTION COMPLAINT
ELENI DELOPOULOS, individually and on
behalf of all others similarly situated,
Plaintiff,
v.
CITY OF PHILADELPHIA,
Defendant.
Plaintiff, Eleni Delopoulos, individually and on behalf of all others similarly situated,
through her attorneys, complains as follows:
I. INTRODUCTION
1. The City of Philadelphia (the “City” or “Defendant”) has known and
acknowledged that, for years, construction projects and water main repairs have caused elevated and unsafe levels of lead to contaminate the water traveling through its residents’ homes. Indeed, certain officials with the City’s Water Department have contributed to or actively participated in studies that, at the very least, revealed Philadelphia’s water supply to not be as safe as previously believed.
2. For example, one study, led by the Water Research Foundation, showed how the practice of partially replacing a lead service line not only pollutes the water supply with lead in the short term, but also creates the perfect conditions for the remaining lead pipe to corrode much more quickly. The result is that lead slowly and intermittently leaches into a resident’s drinking water over time. And yet, the City employs this practice nonetheless.
3. Furthermore, another 2006 study exposed certain lead testing methods as the
reason a significant contamination in Durham, North Carolina, went undetected. The City, who participated in the study, continues to employ these methods anyway.
4. Despite these blatant red flags, the City has not only failed to initiate any change, take preventative measures, or warn its residents, but has also actively taken steps to conceal the problem. The City accomplishes this deception by rigging its lead testing procedures in two ways.
5. First, the City tests an inordinate amount of low risk homes, diluting its testing pool and skewing the results in such a way as to paint a woefully inaccurate picture of the City’s overall lead contamination. In 2014, for example, a whopping two-thirds of the homes tested by
the City came from homes with little risk of lead contamination. Such a practice is not only
deceptive, reckless, and unethical, but plainly violates federal law; EPA regulations require a city the size of Philadelphia, which has thousands of residences with lead service lines, to collect samples from exclusively high-risk homes.
6. Second, in the event the City actually does collect a sample from a high-risk
home, it does so in such a way as to increase the likelihood of a false negative. Specifically, the City instructs its residents to take three steps when collecting the water sample: (1) remove the aerator from the faucet; (2) run the water for two minutes the night before collecting the sample; and (3) slowly run the faucet when filling the bottle. These three instructions, while seemingly inconsequential, can temporarily hide a home’s lead contamination. In fact, the EPA and water experts around the country specifically advise municipalities against using such testing
procedures for this reason. The City continues to defiantly ignore these warnings.
7. To date, the City’s excuses for its shortcomings have been insincere and illogical. Simply put, the City has no scientific or legitimate basis for implementing its suspect methodology, thereby illuminating its true motive: to obfuscate and conceal the citywide lead contamination problem.
8. Because of this negligent, reckless, and deceptive conduct, Plaintiff, her child, and the Class face a significantly increased risk of lead poisoning. Accordingly, Plaintiff seeks to recover the costs of diagnostic testing necessary to detect lead poisoning to her, her child, and the Class. Further, given that the City has interfered with their private property and caused damage that cannot be reversed, Plaintiff seeks to require the City to replace her service lines in full. II. JURISDICTION AND VENUE
9. This Court has jurisdiction pursuant to 42 Pa. C.S.A. §§ 931, 5301 because
Defendant is a municipal corporation that resides in and regularly conducts transactions in the
Commonwealth of Pennsylvania.
10. Venue is appropriate in this Court pursuant to Rule 1006 of the Pennsylvania
Rules of Civil Procedure because the Defendant is located in Philadelphia County and all of
Plaintiff’s claims arise from transactions and occurrences that took place in both the City and
County of Philadelphia.
III. PARTIES
11. Plaintiff Eleni Delopoulos is a resident of the City of Philadelphia, residing on
South 48th Street, with her minor son. The City is currently replacing the water mains on her
block. She did not receive any advance warning of the work or related risk. As a result of the
City’s actions, Plaintiff and her family are at an increased risk of lead exposure and poisoning.
12. Defendant is a municipal corporation and political subdivision of the
Commonwealth of Pennsylvania.
IV. FACTUAL ALLEGATIONS
A. Overview of Lead Poisoning
13. Lead is a dense, malleable, naturally occurring metal that has been used by people
in a variety of ways for thousands of years. Lead has been used in construction materials, batteries, and gasoline, to name just a few of its applications.
14. With its many useful properties, lead initially seemed like the perfect material with which to construct plumbing; it is “soft enough to form into shapes that deliver water most
efficiently,” while still being strong enough to resist leaks.1 Thus, for nearly two centuries,cities across the United States, including Philadelphia, installed miles upon miles of lead piping in their water supplies. Over time, however, science has shown lead to be highly poisonous to humans. And given its widespread use for so long, lead remains a dangerous environmental contaminant whose adverse health effects have been well documented.2
15. Generally, lead exposure harms an individual’s nervous system. This can result in a number of medical afflictions, including neuropathy, motor nerve dysfunction, weakened immunity to disease, renal failure, gout, hypertension, muscle and joint pain, memory and concentration problems, and infertility. Lead exposure has also been identified as a probable cause of cancer.3
16. For a child, however, the effects of lead poisoning can be far more dramatic.
Children “are more sensitive to lead exposure than adults because of the immaturity of the blood-brain barrier, increased gastrointestinal absorption, and hand-to-mouth behaviors, all of which increase exposure.” Even the slightest amount of lead in a child’s blood stream is dangerous; “no safe blood lead threshold for the adverse effects of lead on infant or child neurodevelopment has been identified.”4
17. Given this sensitivity and the way it affects the central nervous system, lead has unsurprisingly been shown to interfere with a child’s cognitive function, growth, and development. In addition to the symptoms descried above, pediatric lead poisoning can result in lower IQ, reading disabilities, attention deficit disorder, hyperactivity, behavioral problems, delinquency, stunted growth, and hearing impairment.5 18. Moreover, lead is a cumulative poison; that is, your body does not change lead into any other form, allowing it to accrue in the body. Shortly after lead is introduced to the body, it travels via the blood stream to soft tissue and organs, where it may remain for years. Much of the lead, however, ultimately settles in one’s bones and teeth, where it can potentially remain for decades.6
19. Consequently, the effects of lead poisoning on children can be “long lasting,” if
not “permanent.”7
20. Indeed, children exposed to lead may not experience any issues until they are adults and certain events occur. For example, when a woman gets pregnant, the lead may begin to leach from her bones where it previously lay dormant and pass through the placenta and umbilical cord to the baby, causing the baby to be born with increased blood lead levels.8 Similarly, menopause may rouse previously latent lead deposits in a woman’s bones to travel through her body, causing a number of health issues, including increased blood pressure, nerve disorders, muscle and joint pain, and problems with memory or concentration.9
21. With such health problems comes massive financial costs. The annual costs of environmentally attributable diseases in American children total $54.9 billion, of which the vast majority arises from lead poisoning; it is estimated that the total cost of lead poisoning in the U.S. each year is $43.4 billion.10
22. One such cost is associated with a blood test, a universally recognized method for testing lead levels. The relatively simple but reliable procedure compares the amount of lead identified in the blood sample to the published reference level of 5 micrograms per deciliter (µg/dL), established by the Center for Disease Control. Thus, a person exhibits elevated lead levels when the amount of lead contained in the sample exceeds 5 µg/dL.11
23. Blood lead testing can also signal the need for further medical examinations, which can lead to a more definite diagnosis.
24. Lead poisoning is, of course, entirely preventable, but hundreds of thousands of children in the U.S. become poisoned regardless, and Philadelphia’s rate of lead poisoning remains alarmingly high. According to the Pennsylvania Department of Health in 2014, of the nearly 36,000 children tested in Philadelphia under the age of seven, more than one in every ten exhibited elevated blood lead levels.12
B. The City Knows the Water Supply Is at Risk for Lead Contamination
25. In 1986, President Ronald Reagan signed into law an amendment to the “Safe
Drinking Water Act.” The amendment, which sought to increase protections on the nation’s drinking water, imposed a ban on the use of lead piping in public water systems.13
26. Philadelphia’s public water system, however, existed long before 1986, and thus contains thousands of lead service lines (i.e., the pipes connecting to the residence to the water main) throughout the city. The Philadelphia Water Department estimates that it delivers drinking water via lead pipes to approximately 60,000 homes in Philadelphia.14
27. Not surprisingly, these lead service lines pose a health concern. According to EPA estimates, “lead contaminated water could account for 5-50% of children’s total lead exposure and for more than 85% of total lead exposure for formula-fed infants.”15
28. To minimize this risk, Philadelphia treats the water supply with a chemical -
specifically, zinc orthophosphate. This treatment chemically reacts with the surface of the pipes to form a thin coating on the interior of the water mains, house services, and plumbing to prevent the pipes from corroding and lead leaching into the drinking water.16
29. The chemical treatment is not, however, 100 percent effective. The anti-corrosion treatment can fail for a number of reasons, especially when pipes are disturbed by construction or street work, water and sewer main replacement, meter installation or replacement, or plumbing repairs.17
30. The sizable disturbances caused by such projects - for example, drilling,
hammering, and sawing - disrupt the coating that protects the service lines from corrosion. This lapse in protection then allows for alarmingly high levels of lead to leach from service lines into the nearby residents’ water supply.18
31. In a 2013 recent study, experts compared a number of water samples collected from various homes. Of the 13 sites where there had been a recently documented physical disturbance (i.e., construction, plumbing repairs, etc.), virtually all of them produced samples that exceeded federal safety regulations19: 32. Furthermore, these disturbances can release lead from service lines for weeks or
months, meaning lead contamination can persist in one’s drinking water long after the disturbance has occurred.20
33. This phenomenon is hardly a recent revelation. Indeed, the City has known about the problem for years and even acknowledged its existence as far back as 2010.21
34. Disturbances to lead service lines, however, are not the only cause of lead
contamination during construction projects. During water main or meter replacement, the City has to reconnect the lead service lines to the newly installed water mains or meters. To do so, the City performs what is known as a partial lead service line replacement, whereby it replaces only the portion of the service line necessary to reconnect it to the public water supply. To
achieve this, the City must cut directly into the lead service line, which can cause even more lead particulates to break off from the pipe and contaminate the water supply.22
35. Additionally, contamination from partial service line replacements occurs when the City replaces sections of the lead pipe with copper. Lead and copper, being dissimilar metals, create what is known as a “galvanic cell” (i.e., a battery) when “in contact with the same aqueous solution.” When “[t]he different electrochemical properties of the metals can result in one of them (the anode) corroding faster” than it would under normal conditions. When lead and copper are connected, lead acts as the “anode,” thus causing it to corrode more aggressively than normal and exacerbating any lead contamination to the resident’s water supply.23
36. The City has long known of the dangers associated with partial lead service line replacements. At the very least, the City discovered these risks in 2008, when Washington, D.C. stopped its accelerated lead service line replacement program due to the dangers of galvanic corrosion causing lead contamination.24
37. Since that time, experts have continuously documented the relationship between lead contamination and partial lead service line replacements. For example, in September of 2011, the EPA’s Science Advisory Board found that the available data indicates that partial lead service line replacement “may pose a risk to the population, due to the short-term elevations in
drinking water lead concentrations.”25 Likewise, the American Academy of Pediatrics
recommended a moratorium on the practice because “[t]here is considerable evidence that, under certain conditions, partial lead service line replacements cause persistent, often intermittent, elevated water lead levels.”26 Both the CDC’s Advisory Committee on Childhood Lead Poisoning Prevention and the EPA’s Children’s Health Protection Advisory Committee have also expressed concerns about elevated lead concentrations in drinking water from partial lead service line replacements.27
38. A manager with the Philadelphia Water Department even advised one such study
conducted by the Water Research Foundation in 2013.28
39. Nevertheless, the City continues to ignore these dangers and, as detailed below,
has recently gone so far as to conceal these risks to the public.
C. The Lead and Copper Rule
40. The Lead and Copper Rule (“LCR”) is the existing federal regulation for the
sampling of water. The goal of the LCR is to manage lead levels in drinking water by setting a “lead action level.” Currently under the LCR, the “lead action level is exceeded if the concentration of lead in more than 10 percent of tap water samples collected during any monitoring period . . . is greater than 0.015 mg/L.” In such a scenario, a municipality will be
required to take certain steps to resolve the issue, such as informing the public and replacing lead service lines when present in the system.29
41. When the EPA first published the LCR in 1991, municipalities serving more than 50,000 people, such as Philadelphia, were required to collect and test samples from 100 sites biannually. If a municipality did not exceed the lead action level for three consecutive years, it could then proceed with “reduced monitoring,” whereby eventually it would only need to collect and test samples from 50 sites once every three years.30 The City currently collects samples under the reduced monitoring requirements.
42. Under the LCR, samples should only be collected from certain types of sites, which the EPA divides into three tiers. Tier 1 includes “single family structures” (or, in some instances, “multi-family residences”) that either contain lead piping or “copper pipes with lead solder installed after 1982,” or that are served by a lead service line. Tier 2 includes “buildings” and “multi-family residences” that either contain lead piping or “copper pipes with lead solder installed after 1982,” or that are served by a lead service line. Finally, Tier 3 includes “single family structures” that contain “copper pipes with lead solder installed before 1983.”31
43. Tier 1 sites are most vulnerable to lead contamination and are deemed a priority under the LCR. Municipalities should therefore collect samples exclusively from Tier 1 sites -
half of which should be served by lead service lines - and only resort to collecting samples from Tier 2 sites when there are not enough Tier 1 sites to complete the testing. Tier 2 sites are deemed the second most vulnerable sites and, likewise, municipalities should only collect from Tier 3 sites in the event there are collectively not enough Tier 1 and Tier 2 sites to complete
testing. Given the size and age of Philadelphia, which contains approximately 60,000 homes with lead pipes, the City should collect its samples exclusively from Tier 1 sites under the LCR.32
44. The LCR also requires the City to collect the samples in a manner consistent with specified collection methods. First, all samples should be “first-draw” samples, defined as “a one-liter sample of tap water . . . that has been standing in plumbing pipes at least 6 hours and is collected without flushing the tap.” Second, all samples “shall be collected from the cold water kitchen tap or bathroom sink tap.” Third, the samples “may be collected by the system or the system may allow residents to collect first-draw samples after instructing the residents of the
sampling procedures specified in [the LCR].”33
D. Despite the Risks of Lead Contamination in the Water, the City Intentionally
Adopted a Testing Protocol in Violation of the Lead and Copper Rule, Contrary to EPA Guidelines, and Designed to Avoid Revealing Lead Contamination
45. The collection methods promulgated by the LCR attempt to replicate a “worst
case” scenario by testing the most vulnerable sites under conditions where lead exposure is most likely to occur. The purpose of such testing is to help water utilities best assess whether their water treatment has been effective in reducing lead and other contaminants in homes most susceptible to contamination.34 Indeed, despite treating its water with an anticorrosive chemical since the 1980s, the City exceeded the lead action level when it first began LCR testing in 1992
and specifically sought to test water samples from high-risk homes.35
46. Since then, however, the City has gradually altered its strategy to avoid testing under the worst case scenario conditions that the LCR intends to capture. Specifically, the City selects a disproportionate number of low risk sites for LCR testing, while simultaneously advising residents to collect water samples in such a way that, unbeknownst to them, increases the likelihood of a false negative when testing for lead. These methods - some of which plainly violate the LCR and all of which defy valid justification - are designed to game the system and elude exceeding the lead action level. Meanwhile, as the City sweeps the problem under the rug, the residents of Philadelphia are left inadequately protected from a highly toxic and dangerous contaminant.
E. The City Disproportionally Tests Low-Risk Homes in Violation of the Lead and
Copper Rule and Skewing Its Overall Test Results
47. One way the City covers up the problem with lead contamination is through site selection. In particular, the City tests an inordinate number of Tier 3 sites - which are far less likely to have lead contamination - thereby diluting the testing pool with low risk homes. According to experts, this allows the City to favorably skew the overall test results, minimizing the risk of exceeding the LCR’s lead action level and avoiding any ensuing responsibilities on the part of the City.36 48. In 2002, the City came very close to exceeding the lead action level after testing
63 sites - 54 from Tier 1 homes and 9 from Tier 3. In fact, the City would have exceeded the
lead action level had it not been able to “fudge[] its results by tossing aside one single high
reading.” According to the City, the test result “didn’t jibe” with prior tests and asked to retake it because the homeowner had recently “changed a shower faucet.” While water departments are not supposed to discard high tests “except under very limited circumstances,” the Pennsylvania Department of Environmental Protection allowed the Water Department to retest the home anyway, and the City just barely avoided exceeding the lead action level.37
49. In subsequent testing years (i.e., 2005, 2008, 2011, and 2014), however, the City began testing fewer high-risk Tier 1 homes, while simultaneously testing more low-risk Tier 3 sites. Not surprisingly, the ratio of sites reflecting elevated lead levels diminished after the City began using this diluted testing pool.38
50. In 2014, for example, the City tested 134 sites, of which only 42 were the highrisk Tier 1 homes. These 42 homes represented less than a third of the total testing pool. A city like Philadelphia, however, has thousands of homes with lead service lines and should be testing exclusively high-risk Tier 1 homes.39
51. According to one expert, the City’s failure to test the requisite number of Tier 1
homes is inexcusable:
“A city like Philadelphia, which has thousands of lead lines, should have been able to find sufficient ‘Tier 1’ homes,” said [Marc] Edwards of Virginia Tech. “Provide me with the addresses and phone numbers of [Philadelphia] homes with lead pipe, and the funding, and we will sample hundreds of those homes,” he stated. “I am shocked and saddened by their excuses for failing to meet the minimum requirements of the law.”40
52. Not surprisingly, the City does not have any excuse for its failure to test the
required number of Tier 1 homes. According to Philadelphia Water Department Director Gary Burlingame, the City recruited “enough participants to more than complete [its] LCR sampling” in 2014.41 And yet the City continues to insist it “went above and beyond the sampling pool required [by the LCR].”42
F. The City Instructs Residents to Collect Samples in Such a Way as to Increase the
Likelihood of a False Negative
53. In addition to testing an inordinate number of low-risk sites, the City also advises
its citizens to take three particular steps when collecting a water sample aimed at lowering the
chances lead will end up in the tested sample.
54. First, the City advises its residents: “Remove the aerator from the faucet. Leave
the aerator off until sampling is completed.”43
55. Second, the City directs its residents to “pre-flush” the tap before collecting any sample: “Run only the cold water for 2 minutes. Cold water should be the last water run through this faucet before the 6 or more hours stagnation period.”44 56. Lastly, the City tells its residents to “[s]lowly fill the bottle with only cold
water.”45
57. Each of these steps can result in underestimating the amount of lead in a resident’s water supply and serves no other purpose but to bias the test results.
58. For example, when water contaminated with lead passes through a faucet, tiny lead particles will often get caught in the aerator. These particles then slowly break up into smaller and smaller pieces that eventually fit through the screen and contaminate the water. By having residents remove the aerator prior to collecting a sample, the City reduces the chances that those particles will end up in the water it ultimately tests.46
59. Furthermore, the longer water sits in the lead service line the more likely it is to be contaminated.47 Pre-flushing the water for two minutes can clear out the water sitting in the lead service line and reduce the odds that the collected sample will test positive for lead.48
60. Finally, water that flows very slowly from the tap is less likely to wrestle any lead particles from the interior of the pipes and get into the sample. Thus, by instructing residents to slowly fill the bottle, the City not only fails to accurately reflect the manner in which people typically use their faucets, but also avoids having to test the worst case samples it is supposed to be collecting.49 G. The City Has No Excuse for Using These Modified Testing Procedures and Has
Been Aware of Their Likelihood to Conceal Lead Contamination for Years
61. The City fully understands that the testing procedures it uses obscure the test results and misrepresent the safety of Philadelphia’s drinking water.
62. For example, in Spring 2006, a child in Durham, North Carolina, tested positive for elevated blood lead levels, prompting public health officials to test his apartment and various locations throughout Durham for lead contamination. The Durham County Health Department found not only significant lead contamination at the apartment, but also in 35 to 40 additional sites throughout the city. The Durham Department of Water Management tested many of these same sites but surprisingly found only three that showed signs of contamination. The Water
Resources Research Institute of the University of North Carolina conducted an independent review of Durham’s response to the crisis and, in its report, attributed the vast discrepancy between test results primarily to the fact that the Durham Department of Water Management removed the aerators on the faucets prior to testing; Gary Burlingame, a scientist for the Philadelphia Water Department, participated in the review.50
63. Following the Durham lead contamination, the issue of removing aerators prior to testing became a point of concern amongst water experts.51 The EPA promptly issued guidance in a memorandum on October 20, 2006. In the memorandum, in underlined text, the EPA explicitly condemned the practice. The memorandum explained:
[I]f customers are only encouraged to remove and clean aerators prior to drawing a sample to test for lead, the public water system could fail to identify the typically available contribution of lead from that tap, and thus fail to take additional actions needed to reduce exposure to lead in drinking water. Therefore, public water systems should not recommend that customers remove or clean aerators prior to or during the collection of tap samples for lead.52
64. The Philadelphia Water Department, however, continues to instruct residents to remove the aerators in the face of explicit EPA guidance and expert opinions to the contrary. Indeed, Burlingame - who witnessed firsthand the effect of removing the aerators when reviewing the Durham contamination - defended the City’s doing so as “good practice” because “[the aerator] should be cleaned at least twice a year anyway.”53 But this justification makes little sense, as the City does not advise residents to clean the aerator at all, merely instructing them to remove it from the faucet prior to testing.54
65. Recently, the EPA released another memorandum that not only reiterates its position with respect to removing aerators, but also advises against the use of the pre-flushing technique employed by the City in collecting water samples. Specifically, the EPA noted that sampling instructions should “not contain a pre-stagnation flushing step” because it “removes water that may have been in contact with the lead service line for extended periods, which is when lead typically leaches into drinking water.”55 66. In the same memorandum, the EPA acknowledges the problem with collecting the
sample for LCR testing using a slow flow rate from the faucet. The EPA thus recommends using wide-mouth bottles to “allow for a higher flow rate during sample collection which is more representative of the flow that a consumer may use to fill up a glass of water.”56
67. The City has not and cannot offer any legitimate reason for why it uses collection methods that violate both the letter and intent of the LCR. As the EPA memorandum illustrates, the City’s testing methods merely serve to distort test results that are supposed to reveal the level of lead contamination in the City’s water supply in high-risk homes. Instead, the City’s negligent and reckless actions frustrate the goals of the LCR. Then, only adding to the confusion, the City makes impossible claims that “Philadelphia’s drinking water is lead free,”57 which contradicts what even their flawed testing methods reveal. As a result, the City leaves all of its residents in the dark about the safety of their water supply. And, more importantly, those residents whose water supply has been contaminated with lead continue to drink and use this toxic water, completely unaware of the consequences and health risks they face.
V. CLASS ALLEGATIONS
68. Plaintiff seeks certification of the following Class pursuant to the Pennsylvania
Rules of Civil Procedure:
All residents of the City of Philadelphia who have resided in an area where the City has replaced the water mains or meters between January 1, 2006 and the present.
69. Pennsylvania Civil Procedure provides that an action may be maintained as a
class action if:
(1) the class is so numerous that joinder of all members is
impracticable;
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class;
(4) the representative parties will fairly and adequately assert
and protect the interests of the class under the criteria set forth in Rule 1709; and
(5) a class action provides a fair and efficient method for
adjudication of the controversy under the criteria set forth
in Rule 1708.58
A. Numerosity
70. Pursuant to Rule 1702(1), Class members are so numerous that their individual
joinder is impracticable. The precise number of Class members is unknown to Plaintiff, but the number of people residing in the areas where the City has undertaken water infrastructure projects greatly exceeds the number considered in this judicial district to make joinder impossible.
B. Common Questions of Fact or Law
71. Pursuant to Rule 1702(2), questions of fact and law, except as to the amount of
damages each member of the Class sustained, are common to the Class. Common questions of law and fact predominate over the questions affecting only individual Class members. Some of the common legal and factual questions, without limitation, include: a. Whether the City’s construction, street work, meter
installation or replacement, and plumbing repairs caused
lead to leach into Plaintiff’s and Class members’ water
supply, putting them at risk of lead poisoning;
b. Whether the City owed a duty to Plaintiff and Class
members to fully comply with the LCR and EPA
guidelines;
c. Whether Defendant intentionally misrepresented the safety
of the Plaintiff’s and Class members’ drinking water to
them and the public; and
d. The nature and extent of damages and other remedies to
which Defendant’s conduct entitles Plaintiff and the Class
members.
C. Typicality
72. Pursuant to Rule 1702(3), Plaintiff’s claims are typical of the claims of the other
members of the Class. Plaintiff and Class members all face the same risk of lead poisoning as a result of the City’s actions to conceal contamination levels by adjusting its testing protocol. In other words, Plaintiff and Class members were subject to, and were harmed by, a common policy and practice applied by the City.
D. Adequacy
73. Pursuant to Rule 1702(4), Plaintiff will fairly and adequately protect the interests
of the Class. Plaintiff is familiar with the basic facts that form the bases of the Class members’ claims. Plaintiff’s interests do not conflict with the interests of the other Class members that she seeks to represent. Plaintiff has retained counsel competent and experienced in class action litigation and intends to prosecute this action vigorously.
E. Superiority
74. Pursuant to Rule 1702(5), a class action is an appropriate method for the fair and
efficient adjudication of this controversy because joinder of all Class members is impracticable. The prosecution of separate actions by individual members of the Class would impose heavy
burdens upon the courts and Defendant, and would create a risk of inconsistent or varying adjudications of the questions of law and fact common to the Class. A class action would achieve substantial economies of time, effort and expense, and would assure uniformity of decision as to persons similarly situated without sacrificing procedural fairness.
VI. CLAIMS ALLEGED
COUNT I
MEDICAL MONITORING
75. Plaintiff incorporates by reference all other paragraphs of this Complaint as if
fully set forth here.
76. Defendant’s water main and construction projects have caused lead to leach into
Plaintiff’s water supply.
77. Instead of attempting to disclose or remedy the problem, Defendant intentionally and negligently misrepresented the safety of the drinking water, assuring the public that it is completely safe, and even taking steps to ensure that the dangerously high levels present in the water supply would not be detected by altering its testing protocol.
78. Defendant’s negligence in this regard has exposed Plaintiff to elevated lead levels in her water supply and subjected her family to a significantly greater risk of lead poisoning.
79. Even when repeatedly faced with a wealth of warnings from water experts and the EPA, Defendant refuses to change its flawed testing methods. Nor for that matter has Defendant made any effort to protect or warn the City’s residents. Instead, Defendant has turned a blind eye to these inconvenient truths, opting to double-down on statements that its water remains completely safe. 80. As a result, Plaintiff has been exposed to harmful lead levels that could negatively
affect her health for many years to come.
81. Plaintiff, being at increased risk, requires blood tests to detect the presence of lead poisoning. While some patients visiting a doctor’s office may receive routine blood tests, these tests will not detect lead unless a patient is aware of his or her exposure and specifically requests such testing.
82. Moreover, blood testing is the preferred method by which to test for lead poisoning, making such a program reasonably necessary here, where Plaintiff has been continuously exposed to contaminated drinking water.
83. Plaintiff and Class members are thus entitled to the establishment of a medical
monitoring program that includes, among other things:
(1) Establishing a trust fund, in an amount to be determined, to
pay for the medical monitoring of all Class members; and
(2) Notifying all Class members in writing that they may
require frequent medical monitoring necessary to diagnose
lead poisoning.
COUNT II
NEGLIGENCE
84. Plaintiff incorporates by reference all other paragraphs of this Complaint as if
fully set forth here.
85. Defendant owed Plaintiff a duty to exercise reasonable care in providing safe
drinking water, reasonably free from dangerous contaminants such as lead that would expose her
to the unnecessary health risks documented herein.
86. Defendant failed to exercise reasonable care when, despite knowing how its
construction projects and partial lead service line replacements contaminated the water supply of
Plaintiff and Class members with lead, it actively concealed such contamination by altering its
testing protocol in such a way as to increase the likelihood of false negatives.
87. Defendant knew or should have known that Plaintiff and the Class members
would foreseeably suffer injury from lead exposure as a result of Defendant’s failure to exercise ordinary care.
88. Defendant’s negligence proximately caused Plaintiff’s and the Class members’ damages and their increased risk of harm as documented herein.
89. Plaintiff and Class members are therefore entitled to the establishment of a medical monitoring program that includes, among other things:
(3) Establishing a trust fund, in an amount to be determined, to
pay for the medical monitoring of all Class members; and
(4) Notifying all Class members in writing that they may
require frequent medical monitoring necessary to diagnose
lead poisoning.
COUNT III
INVERSE CONDEMNATION
90. Plaintiff incorporates by reference all other paragraphs of this Complaint as if
fully set forth here.
91. Plaintiff and Class members own or reside at properties that adjacent to
construction or street work, meter installation or replacement, or plumbing repairs conducted by
Defendant.
92. The tremors and vibrations created by Defendant’s construction work and
plumbing repairs placed a significant amount of trauma on the lead service lines connected to the residences of Plaintiff and Class members. This disturbance to the service lines has caused lead to contaminate Plaintiff’s and Class members’ residential water supply. 93. Moreover, in completing water main repairs, Defendant has performed partial
lead service line replacements, cutting into the lead service lines on Plaintiff’s properties and refitting them to copper pipes and connections. In so doing, Defendant has not only exposed residents in the short term to lead contamination from cutting into the service line, but has potentially also subjected those residents to lead exposure over time should galvanic corrosion cause more and more lead to taint the water supply.
94. Accordingly, Defendant’s construction, water main repairs, and partial lead
service line replacements have caused irreversible damage to Plaintiff’s property. Plaintiff and Class members are thus entitled to compensation for the damage to their lead service lines caused by Defendant’s work and seek amounts necessary to fully replace their lead service lines with copper piping.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff requests that this Court enter an order or judgment against Defendant including the following:
A. Certification of the proposed Class pursuant to the Pennsylvania Rules of Civil
Procedure;
B. Designation of Plaintiff as representative of the proposed Class and designation of
Plaintiff’s counsel as Class counsel;
C. The establishment of a medical monitoring program that includes, among other
things:
(5) Establishing a trust fund, in an amount to be determined, to
pay for the medical monitoring of all Class members; and
(6) Notifying all Class members in writing that they may
require frequent medical monitoring necessary to diagnose
lead poisoning;
D. Compensatory damages, including an amount sufficient to fully replace existing
lead service pipes with copper pipes or other appropriate lines and repair accompanying damage;
E. The costs of bringing this suit, including reasonable attorneys’ fees; and
F. All other relief to which Plaintiff may be entitled at law or in equity.
VII. JURY DEMAND
Plaintiff demands a jury trial of twelve jurors on all issues and claims that can be so tried.
DATED this 2nd day of June, 2016.
Respectfully submitted,
By _____/s/ Scott George______ Scott Alan George
Identification No. 81996 SEEGER WEISS LLP
1515 Market St., Suite 1380 Philadelphia, Pennsylvania 19102 Telephone: (215)564-2300 Facsimile: (215) 851-8029 sgeorge@seegerweiss.com
Christopher A. Seeger SEEGER WEISS LLP
77 Water Street
New York, NY 10005 Telephone: (212) 584-0700 Facsimile: (212) 584-0799 cseeger@seegerweiss.com
(admission pro hac vice to be sought)
Steve W. Berman
HAGENS BERMAN SOBOL SHAPIRO LLP 1918 Eighth Avenue, Suite 3300
Seattle, WA 98101
Telephone: (206) 623-7292 Facsimile: (206) 623-0594 steve@hbsslaw.com
(admission pro hac vice to be sought)
Elizabeth A. Fegan Mark Vazquez
HAGENS BERMAN SOBOL SHAPIRO LLP 455 N. Cityfront Plaza Drive, Suite 2410
Chicago, IL 60611 Telephone: (708) 628-4949
Facsimile: (708) 628-4950
beth@hbsslaw.com
markv@hbsslaw.com
(admission pro hac vice to be sought)
Attorneys for Plaintiff and the Proposed Class
NOTES
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1 Lead in Plumbing, SAFEPLUMBING.ORG, https://www.safeplumbing.org/health-safety/lead-
in-plumbing (last visited Apr. 14, 2016).
2 Mary Jean Brown & Stephen Margolis, Lead in Drinking Water and Human Blood Lead Levels in the United States, 61 MORBIDITY & MORTALITY WKLY. REP. (SUPP.) 1, 1 (August 10, 2012), available at http://www.cdc.gov/mmwr/pdf/other/su6104.pdf.
3 Id. at 2; World Health Organization, Lead in Drinking-water: Background document for development of WHO Guidelines for Drinking-water Quality, 5-8 (2011), available at http://www.who.int/water_sanitation_health/dwq/chemicals/lead.pdf; see also “What expert agencies say,” LEAD - CANCER.ORG, http://www.cancer.org/cancer/cancercauses/ othercarcinogens/athome/lead (last visited February 9, 2016).
4 Brown & Margolis, supra n.2, at 2. 5 Committee on Environmental Health, Lead Exposure in Children: Prevention, Detection, and Management, 116 PEDIATRICS 1036, 1037-38, 1041 (2005) (“Pediatrics”), available at http://pediatrics.aappublications.org/content/pediatrics/116/4/1036.full.pdf.
6 U.S. Department of Health & Human Services, Toxicological profile for lead-update, 7-8 (Aug. 2007), available at http://www.atsdr.cdc.gov/toxprofiles/tp13.pdf.
7 Pediatrics, supra n.5, at 1038.
8 Centers for Disease Control and Prevention, Guidelines for the Identification and
Management of Lead Exposure in Pregnant and Lactating Women, 30-31 (Nov. 2010), available at http://www.cdc.gov/nceh/lead/publications/leadandpregnancy2010.pdf.
9 Dana Lintea, Lead Poisoning and Menopause: How Similar Are They? Does Lead Make Menopause Worse?, GLOBAL LEAD ADVICE & SUPPORT SERVICE, 1 (July 2010), available at https://www.lead.org.au/fs/Lintea_Lead_poisoning_and_menopause_20100728.pdf.
10 See Philip J. Landrigan, et al., Environmental Pollutants and Disease in American
Children: Estimates of Morbidity, Mortality, and Costs for Lead Poisoning, Asthma, Cancer, and Developmental Disabilities, 110 ENVTL. HEALTH PERSPECTIVES 721, 726 (July 2002), available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1240919/pdf/ehp0110-000721.pdf.
11 Standard Surveillance Definitions and Classifications, CDC.GOV,
http://www.cdc.gov/nceh/lead/data/definitions.htm (last visited Apr. 5, 2016). 12 Pa. Dep’t Health, Childhood Lead Surveillance Annual Rep., 46 (2014), available at
http://www.health.pa.gov/My%20Health/Infant%20and%20Childrens%20Health/Lead%20Poiso ning%20Prevention%20and%20Control/Documents/2014%20Lead%20Surveillance%20Annual %20Report%20r2.pdf.
13 Press Release, Environmental Protection Agency, President Signs Safe Drinking Water Act Amendments (June 20, 1986), available at http://www.epa.gov/aboutepa/president-signs-
safe-drinking-water-act-amendments; 42 U.S.C. § 300g-6.
14 Pat Loeb, Philadelphia Water Department Offers Tips to Avoid the Risks of Lead Plumbing, CBSLOCAL.COM, Mar. 21, 2016,
http://philadelphia.cbslocal.com/2016/03/21/philadelphia-water-department-offers-tips-to-avoid-
the-risks-of-lead-plumbing.
15 Letter from American Academy of Pediatrics to Aaron Yeow of EPA (Mar. 22, 2011), available at
https://yosemite.epa.gov/sab/sabproduct.nsf/177871EFC7607CD08525785C0050AAB1/$File/aa pcomments.PDF.
16 Philadelphia Water Department, Meeting the Lead Standard (2015), available at http://www.phila.gov/water/PDF/LeadStandard_2015.pdf
17 See generally Miguel Del Toral, et al., Detection and Evaluation of Elevated Lead Release from Service Lines: A Field Study, 47 ENVTL. SCI. & TECH. 9300 (2013).
18 Id. at 9304.
19 Id. 20 American Water Works Association, Communicating About Lead Service Lines: A Guide for Water Systems Addressing Service Line Repair and Replacement, 2 (2014), available at http://www.awwa.org/Portals/0/files/resources/publicaffairs/pdfs/FINALeadServiceLineCommG uide.pdf.; see Del Toral, supra n.17, at 9304.
21 Phi. Water Dep’t, Drinking Water Quality Report 2010, available at
http://www.phila.gov/water/wu/Water%20Quality%20Reports/WQR2010.pdf (“when disturbed, these [lead service] lines can contribute to lead in tap water”). 22 Water Research Foundation, Contribution of Galvanic Corrosion to Lead in Water After Partial Lead Service Line Replacements 1 (2010), available at
http://www.waterrf.org/PublicReportLibrary/4088b.pdf.
23 Water Research Foundation, Galvanic Corrosion Following Partial Lead Service Line Replacement 3-4 (2013), available at http://www.waterrf.org/PublicReportLibrary/4349.pdf ; Letter from American Academy of Pediatrics to Aaron Yeow of EPA (Mar. 22, 2011), available at https://yosemite.epa.gov/sab/sabproduct.nsf/177871EFC7607CD08525785C0050AAB1/$File/ aapcomments.PDF.
24 Michael E. Ruane, WASA Backs Off Lead Pipe Program, WASHINGTON POST, Sep. 5, 2008, available at http://www.washingtonpost.com/wp-
dyn/content/article/2008/09/04/AR2008090403613_2.html. 25 Letter from EPA and SAB to Hon. Lisa P. Jackson re: SAB Evaluation of the Effectiveness of Partial Lead Service Line Replacements (Sep. 28, 2011), available at http://www.epa.gov/sites/production/files/2015-
09/documents/sab_evaluation_partial_lead_service_lines_epa-sab-11-015.pdf.
26 Letter from American Academy of Pediatrics to Aaron Yeow of EPA (Mar. 22, 2011).
27 See Important update: Lead-based Water Lines, CDC.GOV,
http://www.cdc.gov/nceh/lead/waterlines.htm; American Water Works Association, supra n.20, at 5.
28 Water Research Foundation, Galvanic Corrosion Following Partial Lead Service Line Replacement, supra n.23, at xxi. 29 See 40 C.F.R. §§ 141.80-.85.
30 Id. § 141.86(d).
31 Id. § 141.86(a). 32 Id.; see also Lisa Riordan Seville, Is Philadelphia Testing Its Drinking Water Correctly?, NBCNEWS.COM, Feb. 19, 2016, available at http://www.nbcnews.com/storyline/flint-water-
crisis/philadelphia-testing-its-drinking-water-correctly-n521036 (“Cities are supposed to draw all their test homes from ‘Tier 1.’”).
33 40 C.F.R. § 141.86(b)(2).
34 Maximum Contaminant Level Goals and National Primary Drinking Water Regulations for Lead and Copper, 56 Fed. Reg. 26460-01 (Jun. 7, 1991). 35 Ramona Smith, Is There Lead in Your Water? Who Knows, PHI. DAILY NEWS, Oct. 6, 2004, at 8.
36 See Seville, supra n.32; see also Lynn Rebuck, Township’s Sampling from Only Lowest-
Risk Homes Could Mislead Residents Regarding Actual Lead Risk, LITITZDAILYNEWS.COM, http://lititzdailynews.com/2016/02/8665.
37 Smith, supra n.35; Carol D. Leonnig, Jo Becker and David Nakamura, Lead Levels in Water Misrepresented Across U.S., WASH. POST, Oct. 5, 2004, available at http://www.washingtonpost.com/wp-dyn/articles/A7094-2004Oct4.html.
38 Seville, supra n.32.
39 Id. 40 Id.
41 Email from Gary Burlingame, Director of Laboratory Services, Philadelphia Water Department, to Yanna Lambrinidou (Oct. 6, 2014).
42 Seville, supra n.32.
43 Letter from Yanna Lambrinidou, PhD, Affiliate Faculty, Virginia Tech, to Philadelphia Residents, 4 (Jan. 23, 2016), available at http://flintwaterstudy.org/wp-
content/uploads/2016/01/Dear-Philadelphia-Residents.pdf (emphasis in original).
44 Id. (emphasis in original). 45 Id.
46 Id. at 1, 4.
47 Sandee LaMotte, How To Test for Lead in Your Home Water Supply, CNN.COM, Feb. 10, 2016, available at http://www.cnn.com/2016/01/21/health/lead-testing-home-drinking-water.
48 Lambrinidou Letter, at 2-4; Cameron McWhirter, et al., Flint Crisis Puts U.S. Water-
Testing Methods Under Scrutiny, WALL ST. J., Feb. 4, 2016, available at http://www.wsj.com/articles/flint-crisis-puts-u-s-water-testing-methods-under-scrutiny-
1454607587.
49 Lambrinidou Letter, at 3-4. 50 Water Res. Research Inst. of the Univ. of N.C., Report of Third Party Review of Events
and Responses of the Dept. of Water Mgmt. City of Durham, N.C. to the Identification of a Child with Elevated Blood Lead Level in the Home of a Customer, at 5, 14, 54-64 (Mar. 2007), available at http://www.wral.com/asset/news/local/2007/04/05/1261961/durhamwaterreport.swf.
51 Id. at 14. 52 Memorandum from Stephen Heare, Director, EPA Drinking Water Protection Division, to EPA Drinking Water Branch Chiefs, Regions I-X, at 2 (Oct. 20, 2006), available at http://durhamnc.gov/DocumentCenter/View/3632 (emphasis in original).
53 Anna Orso, The Truth About Lead in Philly, and What You Can Do About the Problem, BILLYPENN.COM (Feb. 22, 2016), available at http://billypenn.com/2016/02/22/the-truth-about-
lead-in-philly-and-what-you-can-do-about-it.
54 Lambrinidou Letter, at 4.
55 Memorandum from Peter C. Grevatt, Director, EPA Office of Ground Water & Drinking Water, to Water Division Directors, Regions I-X, at 1-2 (Feb. 2016) available at https://www.epa.gov/sites/production/files/2016-
02/documents/epa_lcr_sampling_memorandum_dated_february_29_2016_508.pdf.
56 Id.
57 Testimony of Debra McCarty, Commissioner, Philadelphia Water Dept. (Mar. 21, 2016), available at
http://www.phila.gov/water/wu/Lead%20Information/City_Council_Testimony_03_21_16.pdf.
58 Pa. R. Civ. P. 1702.
