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School District Attempts to Dismiss Lead Poisoning in Drinking Water Lawsuit

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Pittsburgh, PAA school district north of Pittsburgh is doing what it can to stymie and stem a lead poisoning class action lawsuit, making claims of precedent and holding the view that plaintiffs do not have standing to represent their children. Undaunted, lead poisoning lawyers representing the plaintiffs in Tait et al v. Butler Area School District et al., Case No. 2:17-cv-00182 in the US District Court for the Western District of Pennsylvania, view efforts by the defendants to toss the lawsuit as a standard legal maneuver, and nonetheless assert their lead or copper poisoning class action lawsuit will prevail.

This is an update of a story we brought you in May: a class action lawsuit that pits a collective of concerned parents against the Butler Area School District (Butler), which is located in western Pennsylvania about fifty miles north of Pittsburgh.

Lead plaintiff in the class action lawsuit, which alleges the possibility of copper and / or lead poisoning from drinking water, is Jennifer Tait. She filed the lawsuit against the school district and its former superintendent in February following what she asserts to be an unthinkable delay in notifying parents as to elevated levels of copper and lead in the drinking water of Summit Elementary School, located in Butler.

Tests at the school revealed levels of lead in the drinking water to be 200, to 300 percent higher than allowable limits. The class action lawsuit asserts that the presence of copper was also elevated to levels that are considered hazardous.

Test results were delivered to the school and the district in August of last year, according to the lawsuit. However, plaintiffs assert the school district sat on the results until January of this year, before finally notifying the parents in the middle of January some five months after the concerning results were received.

Plaintiffs assert during that time, their children were continuing to consume drinking water that contained hazardous levels of copper and lead. Such levels can lead to copper or lead poisoning, which can affect neurologic brain memory and the nervous system.

On June 1 the defendants asked a federal judge to toss the lead and copper poisoning lawsuit, arguing that claims were preempted by the federal Safe Drinking Water Act. Specifically, the defendants referenced the case surrounding the Flint water crisis of 2014 in Michigan, over which a proposed civil rights class action was thrown out this past February due to the capacity for the federal statute to erase private claims.

While Butler noted the Michigan decision is not binding, “there are nonetheless many reasons for following its guidance. It is from an area where lead water cases have been pending since 2015. It addresses federal claims of the same type alleged here. It relies on US Supreme Court authority that does bind this court. And it is well-reasoned and persuasive,” the defendants said.

“Butler has confronted and continues to respond to issues related to the water at the affected school because of independent motivations that Butler has always had, as a body serving and representing the most important resource of its community; this lawsuit was not the trigger for such behavior,” it said.

The defendants, in their argument to stem the lead poisoning lawsuit, argued that any passive inaction on the part of the district is insufficient to sustain a federal negligence claim.

“There are no allegations that defendants themselves added lead or copper to the existing environmental levels of those substances in the water. There are no allegations that they intentionally and affirmatively disabled the water treatment systems,” it said. “There are no allegations that they intentionally and affirmatively changed the results of the water testing that was reported. There are no allegations that they compelled the students to drink the water.”

Plaintiffs are undaunted, arguing it is inexcusable to shield parents from results showing elevated levels of copper and lead in drinking water at their children’s school for some five months, while their kids continued to consume drinking water that could make them seriously ill, and / or impose chronic illness for the rest of their lives. Had the parents been duly notified at the time, plaintiffs say, children could have been spared the potential for copper and lead poisoning for up to five months.

The plaintiffs oppose the defendant’s claims, and as of June 1 intended to file official documents opposing the position(s) of the defendants.

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