Although for many years the use of X-ray fluorescence (XRF) testing to measure lead-paint levels in houses was commonly accepted, defense attorneys have recently begun to question the results of these tests, especially in cases where the alleged exposure occurred many years before the testing was performed, said defense attorney Frank Daily of the Law Offices of Frank Daily
XRF testing is now “more front and center in the litigation than it was for years,” Daily said at the Lead Litigation Conference, produced by HB Litigation Conferences, in Amelia Island, Fla., on Oct. 3.
“With the XRF testing, for years it was we’d get test results, we’d get violation notices, we’d get early test results, and we’d just assume that ergo there was lead in the property, ergo that’s a given … And that’s not quite the case anymore,” he said.
“On the defense side, we’ve stepped back and said, ‘Is it really what it seems?’” said Daily, who has litigated lead-paint claims for over 20 years in Baltimore.
Because so much time has passed since the litigation began and lead paint was taken off the market, there is often no affirmative proof of the presence of lead in a house, Daily said. As a result, plaintiffs’ attorneys turned to lead-paint testing, or XRF testing.
Testing the Validity
“For years we would get these [XRF testing] reports and everybody would sort of assume that some of the more scientific-based information was valid and on point,” he said.
However, defense attorneys have begun filing motions in limine in order to test the validity of various aspects of the XRF tests. “So particularly, the calibration readings, how was it done, how was calibration done? Are these readings in fact correct? What was the process? Those sorts of issues. Then we start asking, well, who did it? Why were these particular areas tested? Are the readings given as positive actually positive under some legal authority? So we started looking at those, because again, if you get a test …10-15 years after the alleged exposure you want to make sure it is what it appears to be,” said Daily.
Defense attorneys will often challenge the qualifications of the XRF testers and whether or not they have the necessary training to be considered a “lead-paint assessor,” he noted.
“XRF testing … and what you want to use it for is a detailed, science-specific process. And you want to make sure [you know] what it’s being used for. Is it being used for a paint test to show lead, or is your opponent going to say, because of this there must be a lead risk hazard for this child?”
However, Scott Nevin of the Law Offices of Peter T. Nicholl in Baltimore, who represents plaintiffs in lead litigation, argued that a highly trained technician is not required to operate a XRF machine.
“The XRF machine is a very basic tool that doesn’t take a whole lot of experience to be … trained in. It’s generally a six-hour course, sometimes it’s a two-day course, that a technician would go through, and all of a sudden they would become certified,” said Nevin.
“The science is all the machine – how it works, what makes it work—it’s all in the machine and it’s been accepted by the court system,” he said. “And usually the person who is challenging the plaintiff’s evidence with regard to the XRF is qualified to do the exact same thing.”
Nevin said it’s important for plaintiff attorneys in lead cases to help the judiciary understand the meaning of the results of the XRF testing. “The defense is there to confuse and as the plaintiffs our job is to clarify, because the science is there and the information is relatively easy,” he said.
Nevin added that, although the results of XRF tests may be within acceptable limits or below threshold limits for lead, it does not mean the house is considered lead-free.
“Because if you also have the hazard of flaking and chipping paint then that lead-safe house is no longer lead safe and it can be a source of exposure for the child,” said Nevin. “The actuality is that it only takes one positive lead level or location of lead paint on a surface to be dangerous to a child.”