Plaintiffs' Reply to Defendant's Opposition to Plaintiffs' Motion for Partial Summary Judgement

    ‘ $ ii 
1{|JOEL R. REYNOLDS 

JACQUELINE WARREN 

2 |INATURAL RESOURCES DEFENSE COUNCIL 
617 South Olive Street 

3||suite 1210 | 
Los Angeles, California 90014 

411 (213) 892-1500 

5||JANE PERKINS 
NATIONAL HEALTH LAW PROGRAM 

6/2639 South La Cienega Boulevard 
Los Angeles, California 90034 

711 (213) 204-6010 

8||BILL LANN LEE 
KEVIN S. REED 

g||NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 

315 West Ninth Street 
10||Suite 208 

Los Angeles, California 90015 
11] (213) 624-2405 : 

12||Attorneys for Plaintiffs 
Erika Matthews, et. al. 

13 
(Continued on next page) 

14 

15 
UNITED STATES DISTRICT COURT 

16 
NORTHERN DISTRICT OF CALIFORNIA 

17 

18 
ERIKA MATTHEWS, et al., ) CIV. NO. C=-90-3620 EFL 

19 ) 
Plaintiffs, ) PLAINTIFFS' REPLY TO DEFENDANT'S 

20 ) OPPOSITION TO PILAINTIFFS' MOTION 

vs. ) FOR PARTIAL SUMMARY JUDGMENT 

21 ) 
MOLLY COYE, y. 

22 ) DATE: June 21, 1991 

Defendant. ) TIME: 10:00 a.m. 

23 ) 

2411/77/77 

25\17/7/7/7 

261/777 

271/777 

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MARK D. ROSENBAUM 

ACLU FOUNDATION OF SOUTHERN CALIFORNIA 

633 South Shatto Place 
Los Angeles, California 90005 
(213) 487-1720 : 

SUSAN SPELLETICH 

KIM CARD 

LEGAL AID SOCIETY OF ALAMEDA COUNTY 

1440 Broadway 
Suite 700 
Oakland, California 94612 
(415) 451-9261 

EDWARD M. CHEN 

ACLU FOUNDATION OF NORTHERN CALIFORNIA 

1663 Mission Street 
Suite 460 

San Francisco, California 94103 
(415) 621-2493 

Attorneys for Plaintiffs 
Erika Matthews, et al. 

//// 

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[11 

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[11 

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TABLE OF CONTENTS 
  

INTRODUCTION [ J LJ LJ Ld L J § ® * * * L J [J LJ LJ LJ [J Ld Ld Ld LJ LJ ® Ld ® [J 1 
  

ARGUMENT ® LJ ® [J [ J LJ LJ ® ® [J [J LJ LJ ® LJ LJ LJ Ld Ld * ® LJ LJ ® LJ [J 2 
  

I. THE MEDICAID STATUTE, AUTHORITATIVELY CONSTRUED, 
REQUIRES BIOOD LEAD TESTING OF ALL ELIGIBLE CHILDREN 
BELOW AGE SIX *® L J LJ ® L J » ® ® » ® Ld ® Ld LJ LJ ® LJ ° ® ® \ 2 

  

  

A. The Manual does not call for physician 
discretion, as interpreted by DHS. eS A RR 4 
  

  

B. The terms "screening" and "test" are used 

SNE rcNanNOCAI IY evs ae aie te vie yw vie ee ae 4 
  

  

Cc. The Manual does not support DHS' expense and 

Ph I y SPOUT WY a a ey ee ee 7 
  

  

11. THE HCFA LETTERS AREF ENTITLED TO NO DEFERENCE. + + « + 8 
  

III. DHS' INTERPRETATION DEVIATES FROM ACCEPTABLE MEDICAL 
PRACTICE L J LJ LJ ® [J L J LJ [J LJ * ® - Ld LJ * * \d LJ LJ * ® LJ LJ LJ °) 

  

  

CONCLUS ION L J LJ r . LJ ® LJ LJ » LJ [J LJ LJ LJ Ld LJ ° LJ LJ LJ Ld LJ LJ LJ LJ 12 
  

  

 



  

  

  

  

  

  

  

  

1 TABLE OF AUTHORITIES 

Page(s) 

2 

3|| cASES 

4|| Chandler v. Roudebush, 
425 U.S. 840, 96 S.Ct. 1949, 48 L.Ed 24d 416 (1976) "is enw wD 

5 
Citizens Action leaque v. Kizer, 

01} 887 F.2@ 1003 (Oth Civ. 1080) + vo eo 0 v.o vo vs inivis os on. vo o:9 

7II NLRB v. United Food & Commercial Workers, 
484 U.S. 112, 108 S.Ct. 413, 98 L.Ed.2d 429 (1987) $0 wwe wd 

8 
Pottgieser v. Kizer, 

Gj] 906 Fe2@ 1319 Oth Cir. 1000) is vo a oc ¢ ov 0 so s.'¢%e 5 siie v9 

10|| Sullivan v. Everhart, 
494 U.S. 83, 110 S.Ct. 960, 108 L.Ed.2d 72 (1990) ie. ei, 3 im 

11 

12|| STATUTES 

131] 42 USC. § 13068 (TICIVUBIII) 0 fete oiiv nin vv sin vu ois »B 

14 42 .8.C. § 1396(d)r LJ ® ® * [J ® ® ® i» \ LJ a » » L J » » LJ LJ LJ LJ] El 

15 42 U.8.C. § 247b-1 = e © eo eo eo oo ® ° ® N ° . ° . ® ® ® ° ° ° e 6 

16 42 U.5.C. § 247 (C) @® L J ® [ J ® L J L J *» ® L J [ J [ J L J [J L J ® L J LJ LJ LJ [ J » 6 

17 42 T.858.C. § 300k ® [ J [ J L J ® L J L J L J LJ LJ [ J L J ® [J » L J L J L J LJ [ J LJ ® [ J 6 

18 42 H.8.C. § 300m L J [ J [J L J ® » ® » L J Rd *® LJ [J eo, ® L J L J L J ® LJ LJ *® L J 6 

19 42 U.S.C. § 701 (a) L J » » ® L J ® ® Ad L J ® RA LJ * \ L J L J L J LJ LJ LJ » * 6 

20 
OTHER AUTHORITIES 

21 
State Medicaid Manual 

22 
§ 5123.2 Ra A L J » » ® ® ® L J L J LJ L J LJ L J LJ LA » L J L J a L J * \J Ld LJ 5 

23 
§ 5123.2.A ° ® LJ ® ® ° ° » ° » » » * ° ® ° ® ° ° » ° ® 5, 7 

24 
BEd 030 2aD) oe sie oie hie. Rie eee ee 3, 8,8, 

25 i 
§ 5123.2.F Ld L J L J ®» ® *® LJ ® ®» LJ LJ ® ®» » LJ * - LJ] LJ L J » » Ld \d 5 

26 
8 512302 0G ve te and he vim eles ee iy hy gr a gle BD 

27 

28 

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INTRODUCTION 
  

The Department of Health Services ("DHS" or "Department") 

concedes that "lead poisoning is the most significant environmental 

health problem facing california children today and that early 

detection of elevated blood lead levels in young children is of 

singular importance in preventing or ameliorating a number of 

debilitating conditions which can last a lifetime." DHS' 

Opposition at 1-2. Yet, the Department refuses to do the only 

thing that all of the declarants in this cane agree must be done to 

detect whether a child actually suffers from lead poisoning, namely 

perform an initial $7.50 lead blood test. Rather, the Department 

argues that, unlike other laboratory tests which it is specifically 

required to include in the EPSDT screen (e.dg., tuberculosis, sickle 

cell), the one laboratory test mandated by name by Congress -- lead 

blood level assessment =-- is discretionary with the physician. 

Common sense, as informed by the plain meaning of the controlling 

federal authority contained in the State Medicaid Manual ("Manual") 
  

and the clear purpose of the statute, dictates that DHS must be 

wrong. Otherwise, the federal scheme for early prevention and 

detection of lead poisoning pays only lip service to this 

environmental hazard and allows lead poisoning to go undetected in 

our poorest communities. 

As shown below, DHS essentially makes three arguments in 

support of its position. First, it attempts to tar plaintiffs as 

overreaching because they seek "universal lead blood testing," DHS' 

Opposition at 3. This simply misstates plaintiffs' position that 

the plain language of the Manual requires blood lead testing only 

for Medicaid-eligible children below age six. Second, DHS cites 

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27 

28     

two facially inconsistent HCFA letters it has procured as evidence 

that its policy adheres to the federal requirements. Id. at 6. 

Plaintiffs will show, however, that these letters are meaningless 

to this case. Finally, the DHS relies upon the American Academy of 

Pediatrics to argue that its position is consistent with acceptable 

medical practice. Id. at 7-8. This argument, however, is rebutted 

by the very authors of the report. As noted by Dr. Philip J. 

Landrigan, Chairperson of the American Academy of Pediatrics 

Committee on Environmental Hazards, which drafted the Academy's 

1987 Statement on Childhood Lead Poisoning: 

Particularly as applied to Medicaid-eligible children -- 
virtually all of whom exhibit one or more of the risk 
factors identified in the Academy's Statement =-- blood 
lead testing is essential, and it would be a serious 
misreading of the Academy's Statement to suggest that, in 
the Academy's view, such testing is not a required 
element of any minimally adequate lead screening program 
for all such children. 

  

  

  

  

  

Landrigan Dec. at § 5. (Emphasis added.) (Exhibit X hereto). 

ARGUMENT 
  

I. THE MEDICAID STATUTE, AUTHORITATIVELY CONSTRUED, REQUIRES 
BLOOD LEAD TESTING OF ALL ELIGIBLE CHILDREN BELOW AGE SIX 
  

  

DHS argues that the Medicaid statute's direction to conduct 

blood lead level assessments should, in essence, be set aside 

because the "appropriate for age and risk factors" limitation 

leaves responsibility for performing the test entirely to the 

discretion of the physician. DHS' Opposition at 3. This 

construction, in which the limiting language swallows whole the 

statutory requirement for blood lead testing, is completely at odds 

with the remedial purpose of the 1989 EPSDT amendments to expand 

preexisting federal regulatory recommendations for routine blood 

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lead testing of all young EPSDT children. It also has the absurd 

result of watering down, rather than strengthening, the prior 

regulatory recommendations. See Plaintiffs' Memorandum 12-13.! 

The Manual plainly states: "Screen all Medicaid eligible 

children ages 1-5 for lead poisoning." Manual, § 5123.2.D.1 

(Plaintiffs' Exhibit N).2 The only way this provision has any 

meaning is if it requires physicians to provide something more to 

children aged 1-5 than they provide to older children aged 6 to 21, 

who are also eligible for the EPSDT Program. Since all EPSDT 

eligible children =-- regardless of age -- must, under the EPSDT 

statute have their age and risk factors measured for the threat of 

lead poisoning, the Manual must mean that young children receive 

additional attention, specifically through routine administration 

of a lead blood assessment generally using the erythrocyte 

protoporphyrin (EP) test. | 

In fact, DHS' position garners no support from the language, 

design, or structure of the Manual as a whole. See Sullivan v. 
  

Everhart, 494 U.S. 83, 108 L.Ed.2d 72, 80 (1990) ("'In ascertaining 
  

the plain meaning of the statute, the court must look to the 

particular statutory language at issue, as well as the language and 

  

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In fact, a recent publication of the Congress and Boards of 
the 101st Congress, Office of Technology Assessment characterizes 
the screening requirements of the EPSDT program as including 
"laboratory tests, such as an anemia test, sickle cell test, 
tuberculin test, and lead toxicity screening." U.S. Congress, 
Office of Technology Assistance, Children's Dental Services Under 
the Medicaid Program-Background Paper, OTA-BP-ii-78 (Washington, 
D.C.: U.S. Government Printing Office, October 1990) (emphasis 
added). (Exhibit Y hereto). 

  

  

‘a11 parties agree that the statutory direction must be read 
in light of the State Medicaid Manual § 5123.2.D. (Plaintiffs® 
Exhibit N). Compare Plaintiffs' Memorandum at 8-9 with Defendant's 
Statement of Undisputed Material Facts at 2. 

  

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design of the statute as a whole'"). 

A. The Manual does not call for physician discretion, as 
mos— 

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interpreted by DHS. 
  

  

The purpose and effect oF ‘tha laboratory testing section 

§ 5123.2D(1l), are to enumerate the laboratory tests which are 

minimally "appropriate," not to endorse unfettered medical 

discretion. The introductory paragraph of the section 

unequivocally directs the states to "identify as stataVide 

screening requirements, the minimum laboratory tests or analysis to 

be performed by medical providers for particular age or population 

groups." Manual § 5123.2.D (Plaintiffs' Exhibit N). Notably, the 

qualifying introductory language upon which DHS so heavily relies, 

namely the statement that physicians providing EPSDT services must 

use their medical judgment to determine which tests are 

appropriate, must be read in context with the very next sentence 

which emphasizes that, if a laboratory test is medically 

contraindicated at the time of the screen, it should be provided 

when "no longer medically contraindicated." Thus, a physician may, 

at the time of the screen, decide to postpone an enumerated test; 

the Manual does not, however, stand for the proposition that the 

test need not be provided at all. 

B. The terms "screening" and "test" are used interchangeably. 
  

DHS also makes much of the Manual's use of the phrase "lead 

toxicity screening" to suggest that use of a screening test was not 

intended This distinction, however, is too fine. In the section 

entitled "appropriate laboratory tests," the Manual is plainly 

using the terms "screen" and "test" interchangeably. This is clear 

enough from the last paragraph of the laboratory testing section, 

  

 



  

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§ 5123.2D(1) (5), which expressly characterizes the preceding 

subparts, including the lead screening paragraphs, as dealing with 

"tests" and refers to several other procedures -- clearly 

laboratory tests -- using the term "screen," i.e., "urine" 

screening ... drug dependency screening and HIV screening." 

Moreover, as the Department has admitted, the term "screen" is also 

used in related § 5123.2.F and G to refer to vision, hearing and 

dental screening tests. See Range Dec. 69-71. The "screen" in the 

lead toxicity screening section, then should be read in pari 
  

materia as the same term elsewhere in § 5123.2. See Everhart, 108 
  

L.E4d.2d4 at 82. 

Logic dictates that if the lead screening requirement 

consisted of a physician's oral history-taking, it would have been 

included in that part of the Manual that deals with the oral 

history. However, neither the Manual, nor the statute for that 

matter, discuss lead testing in provisions dealing with history- 

taking. See 42 U.S.C. § 1396d(r) (1) (B) (i); Manual § 5123.2.A. 

Moreover, if DHS' artful reading of the term "screen" is 

correct, the Manual would result in the following anomaly: The 

Department defers to physician discretion the only test that the 

EPSDT statute specifically requires -- blood lead testing -- yet it 

does not recognize physician discretion in the administration of 

other tests, such as tuberculin skin tests, which are not 

specifically required by the statute but which DHS admits are 

nevertheless mandatory. DHS' Opposition at 5. See, e.qg., Chandler 
  

v. Roudebush, 425 U.S. 840, 848 (1976) ("The plain, obvious and 
  

rational meaning of a statute is always to be preferred to any 

curious, narrow, hidden sense that nothing but the exigency of a 

5 

  

 



  

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hard case and the ingenuity and study of an acute and powerful 

intellect would discover")>. 

Notably, the Manual's use of the term "screen" to refer to 

laboratory tests used for screening is consistent with Congress! 

use of the term in other parts of the Social Security Act. E.g. 42 

U.S.C. § 701(a) ("screening of newborns for sickle cell anemia, and 

other genetic disorders"); 42 U.S.C. § 300k (programs "to screen 

women for breast and cervical cancer as a preventive health 

measure"); 42 U.S.C. § 300m ("the screening procedure known as a 

mammography:;" "the screening procedure known as a pap smear"); and 

42 U.S.C. § 247(c) ("mass diagnostic screening"). 

Indeed, the Lead Contamination Control Act of 1988 includes a 

provision giving the Centers for Disease Control authority to make 

grants to state and local governments to "screen infants and 

children for elevated blood lead levels." 42 U.S.C. § 247b-1. 

Like § 5123.2.D.1 of the Manual, the face of the provision 

indicates that "screen" necessarily refers to screening tests 

because the purpose of the screening is to determine if "elevated 

blood levels" exist. The legislative history, makes this 

  

absolutely clear. See H.R. Rep. No. 100-1041, Lead Contamination 

Control Act of 1988 at 17 (1988) reprinted in 1988 U.S. Code Cong. 
  

  

  

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    DHS also highlights the Manual's use of the phrase "in 
general" when referring to use of the EP test. DHS' Opposition at 
5. It is unclear what the Department means to infer from this 
highlighting. The Manual plainly endorses the general use of the 
EP test as "the primary screening test" and the use of the venous 
blood level measurements on children with elevated EP levels. 
There is no mention of history-taking as a threshold or primary 
screening test. If DHS' position in this case were correct, one 
would expect the Manual to designate history-taking as the primary 
screening test to be performed in all cases. There is no such 
language; rather, only two blood tests, consistent with plaintiffs! 
construction, are specified as "screening tests." 

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& Admin. News 3793, 3805 (Exhibit Z hereto) ("[T]he Committee 

believes that testing infants and children for lead poisoning will 

do little good if those who test positive are not given access to 

sources of medical treatment and environmental intervention for the 

disease"). Thus, in the context of the Social Security Act as a 

whole -- as well as the EPSDT statute and Manual -- the plain 

meaning of "screen" is a screening test. Because this consistent 

administrative construction of the EPSDT statute contained in the 

Manual is "rational and consistent with the statute", Everhart, 108   

L.Ed.2d at 80, guoting NIRB v. United Food & Commercial Workers, 
  

484 U.S. 112, 123 (1987), it is dispositive. 

C. The Manual does not support DHS! expense and utility arguments 
  

The Manual explodes DHS' wholly specious claims that it is 

avoiding "a considerable price tag" and unduly invasive, "useless 

blood tests." Opposition at 5-6; Decs. of Gregory and Range at 

qf 2. In fact, the Manual requires that the very same EP test be 
  

used to screen for iron deficiency, noting that it is a "simple, 

cost-effective tool for screening." Manual § 5123.2A.2 

(Plaintiffs' Exhibit N). Unless DHS is also violating the law by 

failing to require EP testing to screen for iron deficiency, the 

incremental cost of blood lead testing for lead poisoning is 

minimal and wholly acceptable because the more costly venous blood 

measures are required only for children whose EP levels are in the 

danger zone. 

Moreover, DHS is hardly in a position to complain about lead 

screening tests since it admits that "early detection of elevated 

blood lead levels in young children is of singular importance in 

preventing or ameliorating a number of debilitating conditions 

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which can last a lifetime." DHS' Opposition at 2. As Dr. 

Landrigan, Chairperson of the American Academy of Pediatrics 

Committee which drafted the 1987 Academy Statement, that DHS has 

proffered, put it: 

It is simply nonsense to suggest that the benefits of 
early lead poisoning detection by a blood lead level test 
are outweighed by the costs of the tests or the 
invasiveness of the testing procedure. Not only is the 
drawing of blood a common practice in a typical medical 
examination, but the long-term benefits of early 
detection and treatment are incalculable. Although an 
oral examination may perhaps be cheaper and less 
invasive, it is an unreliable screening tool and 
inevitably will result in lead-exposed children going 
undetected and untreated. 

Landrigan Dec. at § 6. As against the $7.50 EP finger prick test 

and the $22.50 venous test, the most recent federal study has found 

that $4,631 is avoided for every child who does not have to be 

treated for lead poisoning and that preventing a single deciliter 

increase in blood lead level correlates with an increase in a 

person's average expected wage of $1,147. Needleman Dec. Exhibit 

A, Strategic Plan for the Elimination of Childhood lead Poisoning 
  

at xiv (Feb. 1991) (elimination of lead poisoning avoids $62 

billion of medical care, special education, institutionalization, 

loss of productivity, and loss of lifetime earnings) (Plaintiffs 

Exhibit B). 

II. THE HCFA LETTERS ARE ENTITLED TO NO DEFERENCE 
  

Notwithstanding the Department's admission that only Health 

Care Financing Administration ("HCFA") regulations and the HCFA 

Manual are controlling, Defendant's Statement of Undisputed 

Material Facts at 2, DHS offers two letters from the local HCFA 

office as support for its statement that HCFA would find DHS in 

8 

  

 



  

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compliance with federal law whether or not it used lead tests. DHS 

  

Opposition at 6. Under both Citizens Action League v. Kizer, 887 

F.2d 1003, 1007 (9th Cir. 1989) and Pottgieser v. Kizer, 906 F.2d 
  

1319, 1323 (9th cir. 1990), the letters from the HCFA employee 

(Plaintiffs' Exhibits V and W) are of no legal consequence and 

entitled to no deference. Each "lack[ed] the indicia of 

deliberative administrative review" and "appear[ed] to have been 

written for the purposes of this litigation only." Pottagieser, 906 
  

F.2d at 1323 (quoting Citizens Action League). Here, the letters 
  

were drafted solely for purposes of this litigation. Ruth Range 

testified that as to the second letter, in which the DHS procedure 

is finally described correctly, she spoke to a HCFA representative 

for "two minutes." Range Depo. at 65 (Plaintiffs' Exhibit J). The 

HCFA representative asked no questions concerning procedures 

utilized to aSSeEs for risk or the number of eligible children 

receiving some sort of blood lead level test. Id. Range said the 

representative "seemed to indicate that [the procedure] was fine," 

but "[n]Jot in so many words." Id. Under these circumstances, 

neither of these letters is of any consequence or entitled to any 

deference. 

ITI. DHS' INTERPRETATION DEVIATES FROM ACCEPTABLE MEDICAL PRACTICE 
  

DHS erroneously claims that its position is "consistent with 

acceptable medical practice" because it parallels recommendations 

of a 1987 Statement by the American Academy of Pediatrics. Exhibit 

A to Gregory Dec. ("1987 Academy Statement"). DHS, however, does 

not dispute that the American Academy of Pediatrics has 

specifically recommended since 1977 that all children ages 1-5 in 

  

 



  

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the EPSDT program, namely young children who live under conditions 

of poverty, should be tested for lead poisoning, see Plaintiffs’ 

Memorandum at 12. Nor does DHS dispute that, unlike the Manual, 

the 1987 Academy Statement is not focussed on poor children but 

addressed to children of all incomes and all age groups. 

Significantly, the 1987 Academy Statement finds that "[lead 

poisoning] is particularly prevalent in areas of urban poverty" and 

"[plrevalence rates for elevated blood levels are highest among 

families . . . with incomes of less than $15,000 per year." 1987 

Academy Statement, Exhibit A to Gregory Dec. at 457, 458. As Dr. 

Landrigan, Chairperson of the Pediatric Committee which drafted the 

1987 Academy Statement, stresses: 

Even as currently written, however, the Academy's 
Statement reflects the Academy's view that periodic 
testing of all preschool children is medically necessary. 
Particularly as applied to Medicaid-eligible children -- 
virtually all of whom exhibit one or more of the risk 
factors identified in the Academy's Statement -- blood 
lead testing is essential, and it would be a serious 
misreading of the Academy's Statement to suggest that, in 
the Academy's view, such testing is not a requirement of 
any minimally adequate lead screening program for all 
such children. : 

Landrigan Dec. at § 5 (Exhibit X hereto). Indeed, Dr. John Rosen, 

an acknowledged resource for the Statement, points out that over 

90% of the young children he treats for lead poisoning are Medicaid 

recipients. Rosen Supplemental Dec. at q 4 (Exhibit AA hereto). 

He adds: 

[I]t would be a gross distortion of the Academy's 
Statement to interpret it as recommending anything less 
than mandatory testing of young Medicaid-eligible 
children, both because they are as a class unquestionably 
at increased risk of lead exposure and lead poisoning and 
because of the vastly different circumstances that 
affluent children may face. 

Jd, at «4 5, 

10 

  

 



  

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It is obvious that DHS is unable to present one shred of 

medical support, other than its two employee declarants, on behalf 

of its claim that history-taking is a recognized and bona fide 

method of blood lead screening. And, as to these declarants, Ruth 

Range testified that she had received no specialized training in 

the area of lead poisoning, had done no writing on the subject, and 

did not consider herself an expert in terms of lead toxicity. 

Range Dec. at 13 (Plaintiffs' Exhibit J). Dr. Gregory similarly 

acknowledged that she lacked special expertise in the area of lead 

or lead toxicology, had done neither writing nor research and did 

not consider herself an expert on lead or lead poisoning. Gregory 

Depo. at 12 (Plaintiffs' Exhibit 5." 

By contrast, the Manual and all the other authority cited by 

plaintiffs, see Plaintiffs' Memorandum 10-13, recognize only blood 

lead testing as the accepted screening method for young Medicaid- 

eligible children. The reason for unanimity about the need for 

blood level testing to screen for lead poisoning is obvious: Lead 

poisoning is often asymptomatic. No amount of verbal interview can 

detect an elevated blood lead level. Plaintiffs' Memorandum at 4; 

1987 Academy of Pediatrics Statement, Exhibit A to Gregory Dec. at 

457 ("[T)lhere are many asymptomatic children with increased 

absorption of lead in all regions of the United States" and 

  

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     ‘Dr. Gregory's declaration reports a telephone conversation to 

Raymond Koteras, at the American Academy of Pediatrics, purportedly 
to the effect that the Academy's 1987 Statement remains the 
position of the Academy. Gregory Dec. at § 7. However, Mr. 
Koteras stated to plaintiffs' counsel that he is "certainly not a 
lead toxicity ‘expert ‘but .rather a "staff person” with 
responsibilities to several Academy committees. Rosenbaum Dec. at 
5. 2 {Exhibit BB hereto). He repeatedly stated that it was 
inappropriate for him to "confirm or refute" any Academy position. 
Id. at '¢ 1. 

11 

  

 



  

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"[N]europsychologic dysfunction, characterized by reduction in 

intelligence and alternation in behavior has been shown 

conclusively to occur in asymptomatic children with elevated blood 

lead levels."). 

CONCLUSION 
  

For the reasons stated above and in plaintiffs' memorandum of 

points and authorities, plaintiffs' motion for partial summary 

judgment should be granted. 

Dated: June 13, 1991 Respectfully submitted, 

Natural Resources Defense Council 
National Health Law Program 
ACLU Foundation of 
Southern California 
NAACP Legal Defense and Educational Fund 
Legal Aid Society of Alameda County 
ACLU Foundation of Northern California 

By: Qed Ruuirilda gp 
Jbel R. Reyholds A 
Natural Resources Defense Council 

By: Qaunt Pinks ya 
Jédne Perkins 
National Health Law Program 

By: AQ RISeuum 
Mark D. Rosenbaum 

ACLU Foundation of Southern 

California 

By: Bul | aun Lt 
Bill Lann Lee 
NAACP Legal Defense a Educational 
Fund 

By: kun Cond up 
Kim Card 
Legal Aid Society of Alameda County 

  

  

  

  

  

12 

  

 



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DECLARATION OF SERVICE BY U.S. MATL 
  

I, HALIMA GIDDINGS, declare: 

I am a resident of the County of Los Angeles, California; I 

am over the age of eighteen (18) years and not a party to the 

within cause of action; I am employed in the County of Los 

Angeles, California; and my business address is 633 South Shatto 

Place, Los Angeles, California 90005-1388. 

On June 14, 1991 I served the foregoing document(s) 

described as: PLAINTIFFS! REPLY TO DEFENDANT'S OPPOSITION TO 

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT on the parties of 

record in said cause, by delivering a true and correct copy 

thereof enclosed in a sealed envelope addressed as follows: 

HARLAN E. VAN WYE LINDA JANE SLAUGHTER 

Deputy Attorney General State of California : 
Department of Justice Department of Health Services 
2101 Webster Street Office of Legal Services 
Oakland, CA 94612-3049 714 "P" Street, Room 1216 

Sacramento, CA 95814 

I am "readily familiar" with the office's practice of 

collection and processing correspondence for mailing. Under that 

practice it would be deposited with U.S. postal service on that 

same day with postage thereon fully prepaid at Los Angeles, 

California in the ordinary course of business. I am aware that 

on motion of the party served, service is presumed invalid if 

postal cancellation date or postage meter date is more than one 

day after date of deposit for mailing in affidavit. 

I declare under penalty of perjury under the laws of the 

State of California that the foregoing is true and correct. 

Executed on June 14, 1991 at Los Angeles, California. 

  

Halima Giddings