Cook County Record

Tuesday, February 18, 2020

Appeals panel: Chicago residents can sue city for exposure to lead in city drinking water lines


By Jonathan Bilyk | May 23, 2019

Chicago river

A divided state appeals panel has unstopped a class action against the city of Chicago over lead in the city’s drinking water, saying the plaintiffs need only demonstrate they have been exposed to relatively high levels of water-borne lead to allow the lawsuit to continue, even though 80 percent of the homes in Chicago are served by lead water lines.

On May 23, a three-justice panel of the Illinois First District Appellate Court, in a 2-1 ruling, overturned the decision of a Cook County judge, who had dismissed the class action brought by plaintiffs Ilya Peysin and Gordon Berry against the city, asserting the city’s water line improvement projects caused large amounts of the toxic metal to end up in the drinking water in their homes.

The plaintiffs are asking the court to order the city to pay for “medical monitoring” costs for potentially millions of Chicago city residents who have been exposed to lead in their homes’ drinking water, and to force the city to replace lead water service lines. Plaintiffs’ attorneys would also be able to collect fees, should the suit succeed.

Steve Berman | Hagens Berman Sobol Shapiro

Justice Sheldon A. Harris authored the majority opinion, with Justice Joy V. Cunningham concurring.

Justice Maureen E. Connors dissented.

“Plaintiffs set forth in their complaint that the human body does not transform lead in the system and therefore lead bioaccumulates and can remain in the tissues and bones for many years before a person develops an illness. Exposure to lead harms the nervous system and can lead to various ailments and behavior issues in children,” Justice Harris wrote in the majority opinion.

“… We find that plaintiffs have sufficiently alleged a present injury in consuming lead-contaminated water, even if they have yet to develop physical ailments linked to such consumption.”

Justice Connors, however, said allowing lawsuits to continue over mere exposure to a toxic substance, without demonstrating any actual harm, sets up a regime by which plaintiffs’ lawyers can creatively use lawsuits to force companies and governments to pay “the medical costs of a segment of the population that has suffered no actual medical harm,” citing the reasoning of a Michigan Supreme Court decision.

“The high number of potential plaintiffs, coupled with the uncertainty as to the amount of liability, could result in a flood of less important cases that would absorb resources that are better left available to those who are more seriously harmed,” Connors wrote. “Defendants do not have access to an unlimited supply of financial resources, and requiring a present physical injury sufficiently quells an influx of litigation that might deplete a defendant’s financial resources that are more productively utilized by actually injured plaintiffs.”

Connors noted the finding by the majority in the Chicago lead case marked the first finding of its kind in Illinois law.

The case has moved through Chicago courts since 2016, when attorneys from the firms of Hagens Berman Sobol Shapiro LLP, of Chicago, and the Freydin Law Firm, of Skokie, first filed suit on behalf of initial named plaintiffs, which included Peysin.

Berry was added as a named plaintiff later.

The lawsuit has centered on the city’s work since 2008 to replace lead water service lines in various parts of Chicago, to gradually reduce the large number of Chicago properties that receive drinking water through lead pipes.

To reduce that risk, the city has long treated its drinking water with chemicals to react with lead and create a coating in the pipes to prevent lead from contaminating drinking water.

However, when coated pipes are disturbed by construction activity – such as the city’s pipe replacement work – lead can again enter the water. In their complaint, plaintiffs alleged the city’s work led to elevated lead levels in their water long after the city completed its water line replacement work.

Cook County Circuit Judge Raymond Mitchell dismissed the lawsuit, siding with the city on its assertions the plaintiffs can’t show any injuries from the lead exposure.

He further rejected the plaintiffs’ assertions the presence of lead in their water amounted to an illegal taking of their property, known as “inverse condemnation,” in which city work damages the property and reduces its value.

Mitchell said the claims need to fail because the plaintiffs can’t allege their damages weren’t similar to those suffered by most other property owners in the city, and not “special damages,” as required by law.

On appeal, however, the majority said Judge Mitchell was too hasty, as the majority believed the elevated lead levels in the drinking water alone should be sufficient to establish the plaintiffs had been injured.

And the majority said Mitchell further erred in finding the inverse condemnation claims should be barred, as they said damages can be considered “special” even if they are shared by large numbers of other people.

“… The proper focus in determining special damages is ascertaining the type of damage suffered by the property owner due to the City’s actions and whether or not it is the same damage suffered by the general public,” Justice Harris wrote in the majority opinion. “… These lead service lines have become ‘more dangerous’ than lines that have not been partially replaced or are not made of lead. We find that plaintiffs’ complaint sufficiently alleges they have incurred excess damages beyond that experienced by the public generally.”

In her dissent, however, Justice Connors said the majority’s opinion would “misconstrue” and essentially twist prior decisions to allow the plaintiffs to sue the city.

She said allowing the lawsuit to continue, without demanding the plaintiffs present proof of injury, “would have various negative policy implications” and would run afoul of the “single recovery principle,” which limits damages to “one recovery … for a single, indivisible injury” and which she said should bar “medical monitoring” for speculative, future injuries.

And Connors agreed with Mitchell on the question of inverse condemnation, saying she struggled to understand how plaintiffs could argue their damages should be both considered “common” – shared by potentially 80 percent of all Chicago residents – yet “special.”

“I find that plaintiffs’ alleged damages are of a nature that renders them necessarily incident to the ownership of property and thus plaintiffs have failed to state a claim,” Connors wrote. “Plaintiffs’ allegations indicate that their alleged property damage is incident to their ownership of property in Chicago, where the use of lead service lines was mandated until 1986, and defendant has opted to partially replace those lines in thousands of locations throughout the city in order to avoid the consequences from corrosion over time.

“… Any alleged damage that resulted from defendant’s infrastructure repair or maintenance to its water system would necessarily be incident to property ownership in this city, in the same way that any general benefit received from such repairs, such as the reduction of service interruptions, preventing holes and cracks that could allow bacteria, and preventing wastewater leaks, is also common to all owners.”

The city has been represented in the action by attorneys with the firm of Kirkland & Ellis, of Chicago.

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Organizations in this Story

Hagens Berman Sobol Shapiro, LLPThe Freydin Law Firm LLPIllinois First District Appellate CourtCircuit Court of Cook CountyCity of Chicago

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