Shade v. Housing Auth. City of New Haven

Decision Date01 August 2000
Docket NumberDocket No. 00-6160,JR,VELEZ-SHAD,P
Citation251 F.3d 307
Parties(2nd Cir. 2001) ROBIN SHADE, As Next Friend of Minor Plaintiffs ORLANDO, and DANNYlaintiffs-Appellants, v. HOUSING AUTHORITY OF THE CITY OF NEW HAVEN, JOHN YOST and JOHN DIDUCA, Defendants-Appellees, UNITED STATES OF AMERICA, Consolidated Defendant-Appellee
CourtU.S. Court of Appeals — Second Circuit

Consolidated appeal of two judgments in cases involving alleged lead poisoning of minor plaintiffs at two residential housing units in New Haven, Connecticut. In the first case, the plaintiffs appeal two orders of the United States District Court for the District of Connecticut (Ellen Bree Burns, Judge) granting the defendants' motion for a new (second) trial and denying the plaintiffs' subsequent motion for a new (third) trial. They also appeal a decision by Judge Burns allowing the defendants' expert to testify in the second trial. In the second case, the plaintiffs challenge an order of the United States District Court for the District of Connecticut (Janet Bond Arterton, Judge) granting summary judgment to the defendant United States of America on claims brought by the plaintiffs under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq.

Affirmed in part; reversed in part.

[Copyrighted Material Omitted] PETER A. KELLY, New Haven, CT, for Plaintiffs-Appellants.

ERIC P. SMITH, Lynch, Traub, Keefe, and Errante, P.C. (Donn A. Swift, of counsel), New Haven, CT, for Defendant-Appellee Housing Authority of the City of New Haven.

JOHN W. MILLS, Murphy and Karpie, LLC, Bridgeport, CT, for Defendant-Appellee John Yost.

KEITH R. AINSWORTH, Evans, Feldman & Boyer, LLC, New Haven, CT, for Defendant-Appellee John Diduca.

WILLIAM A. COLLIER, Assistant United States Attorney for the District of Connecticut, Hartford, CT (Stephen C. Robinson, United States Attorney for the District of Connecticut and Robert H. Farrell, Office of the Regional Counsel, U.S. Department of Housing and Urban Development, of counsel), for Consolidated Defendant-Appellee United States of America.

Before: STRAUB, POOLER, and SACK, Circuit Judges.

SACK, Circuit Judge:

This appeal involves two separate cases in which the plaintiffs sought redress for the same injuries -- the alleged lead poisoning of Orlando Velez-Shade, Jr. and Danny Velez-Shade (the "minor plaintiffs") at two Section 81 residences in New Haven, Connecticut. In the first portion of the appeal, the minor plaintiffs, through their grandmother, plaintiff Robin Shade, challenge two orders of the United States District Court for the District of Connecticut (Ellen Bree Burns, Judge). The first order granted the motion of defendants John Yost, John Diduca, and Housing Authority of New Haven ("HANH") for a new (second) trial limited to the issue of damages. The second order, which followed that new trial and a jury verdict of zero damages, denied the plaintiffs' motion for a new (third) trial. The plaintiffs also object to the introduction of certain expert testimony at the second trial. We reverse the district court's grant of a new trial on damages after the first verdict, direct the court to enter judgment on that verdict, and therefore do not address the plaintiffs' remaining arguments in this regard.

In the second portion of the appeal, the plaintiffs challenge an order of the United States District Court for the District of Connecticut (Janet Bond Arterton, Judge) granting summary judgment to the defendant United States of America. The district court relied on its finding that HANH is not an agent of the United States in ruling that the plaintiffs failed to state a claim under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq. We affirm the grant of summary judgment.

BACKGROUND
I. Shade v. HANH, Yost, and Diduca
A. The Plaintiffs' Injuries and the Parties

Orlando Velez-Shade, Jr., born March 1, 1990, lived in a Section 8 residential property at 282 Davenport Avenue in New Haven between February 1992 and January 1993. Defendant John Yost is the owner and landlord of the 282 Davenport Avenue property. From February 1993 to June 1994, Orlando resided in a different Section 8 house located at 693 Dixwell Avenue in New Haven and owned by defendant John Diduca. HANH is a public corporation created under Connecticut law that is responsible under federal law for notifying tenants to whom it offers financial assistance of the dangers of lead paint and for inspecting and correcting lead-paint hazards in Section 8 housing. See 42 U.S.C. § 4822; 24 C.F.R. §§35.125, 35.1210, 35.1215.

Orlando, through his grandmother, plaintiff Robin Shade, claims that at both housing facilities he was exposed to paint containing more than 0.06% lead by weight. This exposure was confirmed in blood tests conducted in July 1992 and April 1993 and has forced Orlando to undergo hospitalization and various medical treatments, including two courses of chelation therapy. Evidence adduced at trial supported Orlando's assertion that lead poisoning has also caused a variety of enduring physical and mental defects: He has difficulty with language, performs poorly in school -- at age 10, he was still in third grade -- and exhibits the physical symptoms of Attention Deficit Hyperactivity Disorder, a condition often associated with lead poisoning.

Danny Velez-Shade, Orlando's younger brother, also claims that he was exposed to lead poisoning, but only at the second Section 8 housing location at 693 Dixwell Avenue. His medical records tell a story similar to Orlando's, including chelation therapy and extensive testing. Like his brother, Danny suffers from delayed language abilities, which in his case have required special education beginning in preschool, and Attention Deficit Hyperactivity Disorder symptoms. According to their treating physician, both boys can expect to suffer the consequences of the alleged lead poisoning for the foreseeable future.

B. Procedural History

In 1995, Robin Shade filed suit in the United States District Court for the District of Connecticut on behalf of her grandchildren, the minor plaintiffs. She asserted a §1983 claim against HANH, alleging that it had deprived Orlando and Danny of federal statutory rights provided to them under the Lead-Based Paint Poisoning Prevention Act ("LPPPA"), 42 U.S.C. §4821-4846, which, inter alia, obligates local housing authorities like the HANH to inspect and provide for the removal of lead paint hazards in Section 8 housing.

Shade also asserted supplemental state-law claims against John Yost and John Diduca, the landlords of 282 Davenport Avenue and 693 Dixwell Avenue, respectively. These claims were grounded in theories of common-law negligence and negligence per se predicated on Yost and Diduca's alleged violations of the Connecticut Unfair Trade Practices Act and other Connecticut statutes addressing lead-paint hazards.

In June 1998, twelve of the causes of action asserted in the complaint were tried before a jury. On June 29, 1998, after closing arguments, the district court, at the defendants' request, instructed the jury that it should apportion compensatory damages among the defendants and gave the jury a verdict form calling for individually calculated damages against each responsible party. The next day, the jury returned a verdict in favor of the plaintiffs on each cause of action. In accordance with the verdict form, the jury answered a number of interrogatories indicating its findings and calculations of damages.

The jury apportioned the damages as follows. Orlando Velez-Shade received a total of $350,000 in compensatory damages. Of that amount, $100,000 was apportioned against HANH for the 282 Davenport Avenue apartment, while $50,000 was apportioned against Yost for the same property; $150,000 was attributed to HANH for the 693 Dixwell Avenue property, and $50,000 was apportioned to Diduca for that housing unit. Danny Velez-Shade received $200,000 for his injuries at the 693 Dixwell Avenue apartment, of which $150,000 was apportioned to HANH and $50,000 to Diduca.

After the jury was dismissed, the defendants filed post-trial motions for judgment as a matter of law pursuant to Fed. R. Civ. P. 50(b) and in the alternative for a new trial under Fed. R. Civ. P. 59. In a ruling dated August 26, 1999, the court denied the defendants' motion for judgment as a matter of law but granted a new trial limited solely to the issue of damages. The court agreed with the defendants that the jury's judgment was "inconsistent and improper" because the jurors followed the court's incorrect instructions to apportion damages among the defendants. The court reasoned that the jury had erred because it had awarded each plaintiff two different awards to be paid by the defendants separately as compensation for a single injury, when it should have calculated one sum as compensation for each plaintiff's injury at each property and awarded that amount jointly and severally against the responsible defendants.

The new trial on damages began on January 26, 2000. It consisted primarily of the conflicting assertions of the parties' experts as to what had caused the minor plaintiffs' alleged injuries. At the conclusion of the trial, the jury was instructed on the law of joint and several liability and returned a verdict of zero damages, finding that both minor plaintiffs had failed to show that exposure to lead was a substantial factor in causing their injuries. The court entered judgment accordingly.

Shortly thereafter, the plaintiffs filed a motion for a new trial pursuant to Fed. R. Civ. P. 59, arguing that the outcome of the second trial represented a "miscarriage of justice" because it was inconsistent both with the finding of liability in the first trial and with medical evidence presented at the second.

The district court...

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