Commentary: Clarifying Baltimore's Public Justice Center's role in

The December 6, 2001 Opinion concerning the Court of Appeals' decision in Grimes v. Kennedy Krieger Institute is both factually inaccurate and analytically flawed. The Public Justice Center, the National Health Law Program and the East Harbor Village Center are the unnamed amici referred to in the editorial. On behalf of the Public Justice Center, I seek to set the record straight.

In criticizing the Public Justice Center's amicus brief and the decision of the Court of Appeals in the case, the Editorial Advisory Board mischaracterizes the facts.

The underlying controversy involves a lead paint study in Baltimore City conducted by the Kennedy Krieger Institute (KKI) to determine the effectiveness of various levels of lead paint abatement. KKI recruited landlords to allow their apartments to be subjected to one of three levels of abatement and engaged a nonprofit organization to recruit poor tenants with young children to move into these homes.

KKI then followed these families to determine whether the children in partially abated homes were subject to lead poisoning, enticing them to remain in the study with various incentives, such as food vouchers, clothing and small monetary payments.

The plaintiffs claimed that both the design of the study and its execution were negligent. The case never got to trial because KKI convinced a circuit court judge that there could be no tort liability because KKI owed no legal duty to protect the subjects of the study from harm, a position it steadfastly maintained throughout this case and from which it only retreated after it was soundly rejected by the Court of Appeals.

Whether KKI was negligent or was the proximate cause of the plaintiffs' injuries has not been resolved and because the case was dismissed at such an early stage at the urging of KKI, it is impossible from the current record to determine fault. However, the legal position asserted by KKI, that it owed no legal duty to these research subjects, was contrary to existing precedent and medical ethics standards, and shockingly indifferent to the rights of children.

Had the legal theory articulated by KKI and adopted by the Circuit Court been allowed to stand, it would have placed poor children at great risk. The PJC felt it essential that the Circuit Court decision be overruled and we decided to participate as amicus.

PJC did not raise the 'ancillary issue'

The Editorial Advisory Board is correct to note that the parties never urged the Court of Appeals to hold that children are barred from participating in non-therapeutic studies which pose any risk of harm. However, the Editorial Advisory Board is wrong to suggest that the issue was raised by the PJC.

In both briefs filed by the PJC, which were available to the Editorial Advisory Board to review, the PJC consistently maintained that well-established ethical standards and federal law impose an explicit duty on researchers like KKI to protect their human subjects from unreasonable harm and fully inform them of potential risks and hazards, even after the study is underway.

The fact that the Court of Appeals reached a conclusion beyond what was urged by the parties or by amici is neither surprising nor troubling. The Court has a responsibility to reach the right decision regardless of the narrow concerns of the parties that might require them to argue a particular position and to exclude certain arguments. We should be comforted, not bothered, by the fact that the court took this responsibility seriously and acted with independence to protect the rights of child research participants.

The importance of amici

The most troubling part of the Editorial Advisory Board's opinion was its attack on the role of amicus. Appellate decisions have broad impact that often goes well beyond the resolution of the narrow dispute before the court. The common law system relies on precedent for the development of the law. In very real ways, the parties to appellate cases are deciding important questions for all similar cases that follow, even though the litigants in those cases have no opportunity to express their concerns.

Amici serve the valuable function of placing the court's decision in the broader context. Courts expect amici not to simply reiterate the arguments made by parties, but to add a new perspective. Without amicus participation, the court may have no opportunity to learn about the effect that its decision will have on other cases or how its ruling might be used in other contexts. This was the PJC's role in Grimes.

Amicus advocacy is particularly important when a decision will impact the rights of poor persons, of racial minorities or of other communities that have been excluded historically from equal access to justice. Because these communities lack adequate access to counsel, the concerns of these communities are less frequently represented before the court, and the potential negative impact of decisions are often overlooked.

Use of historic examples of research abuses

In its opinion, the Editorial Advisory Board loses sight of the fact that KKI maintained, throughout this litigation, that it owed no duty to protect the children in the study from harm. The extreme nature of KKI's legal position required an unequivocal response.

Under Maryland law, whether it is foreseeable that an injury will flow from the challenged conduct is the principal determinant of duty. Jacques v. First National Bank, 307 Md. 527, 534-35, 515 A.2d 756, 759-60 (1986). The fact that there has been a long history of abuse of research subjects, especially in studies involving poor persons and minorities, many of which occurred in Maryland and involved respected institutions, is not only relevant but central to the foreseeability analysis.

KKI is a great institution with a rich history of helping poor children in Baltimore. The work of KKI has been indispensable to the efforts to reduce lead poisoning of children. Moreover, the goals of the study at issue were laudable and the answer to the research question was important.

But the good KKI has achieved and the benevolence of its purpose should not and does not place it beyond scrutiny.

Justice Brandeis wisely teaches, in another context, that we should be most on our guard . . . [when] purposes are beneficent. - The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. Olmstead v. United States, 277 U.S. 438, 479 (1928) (J. Brandeis dissenting).

Conclusion

The Grimes case may someday go to trial and resolve the question of whether KKI acted in a negligent manner that resulted in harm to the plaintiffs. Regardless of the outcome of that case, the Court of Appeals has made two things clear: First, children must be protected from unreasonable harm and, second, benevolence and prestige should not be a shield against scrutiny.

The process by which the court reached this decision was fair and within the rules and traditions of the Maryland courts. The Editorial Advisory Board simply got it wrong.

Jonathan Smith is executive director of the Public Justice Center in Baltimore.

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