E-Alert Case Updates

Baltimore City Verdict in Lead Trial Vacated, and Case Remanded for New Trial

Housing Authority of Baltimore City v. Marie Carter
Case No.: 2048 (Maryland Court of Special Appeals, May 1, 2013)
by Eric M. Leppo, Associate
Semmes, Bowen & Semmes (www.semmes.com)

In this recently issued opinion from the Maryland Court of Special Appeals, authored by Judge Meredith, the Court of Special Appeals vacated the jury verdict on behalf of the Plaintiff and the judgment of the Circuit Court for Baltimore City.

The Plaintiff, Marie Carter filed suit against the Housing Authority of Baltimore City (“HABC”), related to her period of residence in public housing as a child between 1987 and 1992. She claimed that HABC owned the rental property into the late 1990’s when it was abandoned and demolished. She claimed she had elevated lead levels of 14 ug/dl in 1989 and 6 ug/dl in 1990, and alleged the levels were caused by her residence in the subject apartment.

In 1993, HABC had its environmental contractor, Martel, Inc., perform environmental testing for lead-based paint at the property. The Martel Report included test results that reflected there was lead-based paint on the exterior of the building, but not in the interior. HABC sought to rely on the Martel Report at trial, but Plaintiff moved to preclude the report based on the lack of an affirmative representation that the equipment was calibrated at the time of the tests.

The Plaintiff designated Dr. Howard M. Klein as an expert witness in the case. Plaintiff sought to have Dr. Klein provide expert opinion that the Plaintiff was exposed to lead in the subject property. HABC filed a motion in limine as to Dr. Klein’s opinion that Ms. Carter was exposed to lead in the property as Dr. Klein is a pediatric medical doctor but not qualified to speak to the source of Plaintiff’s lead exposure. Moreover, Dr. Klein did not himself treat the Plaintiff, but was simply speculating based on twenty (20) year old lead levels.

Judge Nance of the Baltimore City Circuit Court granted Plaintiff’s motion to preclude the Martel Report and denied HABC’s motion to preclude causation testimony from Dr. Klein. Thereafter, the jury awarded the Plaintiff a verdict of nearly $21 million, which was reduced to $1,174,409 pursuant to the statutory cap on non-economic damages.

HABC appealed the matter to the Court of Special Appeals contending that Dr. Klein should not have been permitted to testify as to the source of Ms. Carter’s lead exposure due to insufficient facts and methodology, and that the Martel Report should have been admitted at trial.

The Court first stated that the decision to admit or preclude expert testimony is largely within the discretion of the trial court. Such a decision is subject to reversal, however, if founded on an error of law, serious mistake, or abuse of discretion. Gutierrez v. State, 423 Md. 476, 486 (2011). The Court then noted that HABC was on point in asserting that simply because Dr. Klein is qualified to testify as a medical expert, does not mean he is qualified to offer an opinion about the source of lead.

The Court relied extensively on the Court of Appeals recent decision in Ross v. Housing Authority of Baltimore City, ___ Md. ___ (No. 10, September Term, 2012, filed March 22, 2013). Noting that in Ross the Court expressly addressed whether a medical expert could testify as to the source of the plaintiff’s elevated blood lead levels. In Ross, the trial court had excluded the Plaintiff’s proffered expert witness agreeing that the pediatrician lacked necessary qualifications to testify about the source of the lead poisoning and the Court of Appeals affirmed.

The Court noted that just as in Ross, Dr. Klein’s opinion as to the source of the lead went beyond his expertise. As there was no direct evidence of lead inside Ms. Carter’s home, the Court held that allowing Dr. Klein to proffer such an opinion was error, and an abuse of discretion.

As the Court vacated the judgment of the trial court on these grounds, and remanded the case for a new trial, it issued no position on the trial’s court’s decision to exclude the Martel report.