E-Alert Case Updates

Maryland Court of Appeals Finds that Trial Court Erred in Striking Lead Paint Plaintiff’s Expert Report for Failing to give Defendants Notice of Plaintiff’s Lead-Based Paint Testing

Butler v. S&S P’ship
No. 1 (Md. Nov. 26, 2013)
by Wayne C. Heavener, Associate
Semmes, Bowen & Semmes (www.semmes.com)

In Butler v. S&S Partnership, the Maryland Court of Appeals held that a trial court judge abused his discretion in excluding a lead paint plaintiff’s expert report for failing to provide defendants notice of the expert’s exterior lead-based paint test. Writing for the Court, Judge Greene found that only those defendants owning the subject properties were entitled to notice, and that the defendants in this case no longer owned the tested property; therefore, they were not entitled to notice, and the trial court could not exclude plaintiff’s report for failure to provide notice to the defendants. The Court also held that the trial court erred in excluding, sua sponte, one (1) of the plaintiff’s experts, because no defendant filed a motion for sanctions. The Court did find, however, that the trial court appropriately entered summary judgment for the defendants as to plaintiff’s Maryland Consumer Protection Act claims, where the plaintiff failed to demonstrate chipping, peeling, or flaking of paint at the inception of the plaintiff’s lease. Judge Harrell concurred in the judgment of the Court, but stated that the trial court acted appropriately in excluding the plaintiff’s expert report.

On October, 9, 2007, Hector Butler, Jr. (“Plaintiff”) filed a Complaint in the Circuit Court for Baltimore City seeking to recover for alleged injuries resulting from childhood exposure to lead-based paint while living with his mother, Yvonne Crosby, at 2238 Linden Avenue and 2308 Bryant Avenue, both of which are located in Baltimore City. Specifically, Plaintiff alleged claims of negligence and violations of the Maryland Consumer Protection Act (“CPA”), MD. CODE ANN., COM. LAW § 13-301, against several defendants, including S&S General Partnership (S&SGP), Lee Shpritz, Barbara Benjamin, S&S Partnership (S&S), Stanley and Rhoa Rochind (the “Rochinds”), NBS, Inc. (“NBS”), Dear Management & Construction Co., Inc., and Charles Runkles (“Runkles”). Plaintiff identified 18 experts whom he intended to call at trial, including Dr. Klein. In his April 28, 2009 Answers to Interrogatories, Plaintiff disclosed that Dr. Klein was a pediatric lead poisoning expert who would testify to the extent and permanency of Plaintiff’s injuries. On July 2, 2009, Plaintiff supplemented his Answers to Interrogatories, and expanded upon Dr. Klein’s expected testimony. According to the scheduling order, parties were to respond to all interrogatory requests concerning the findings and opinions of experts by August 10, 2009.

Plaintiff also hired Arc Environmental (“Arc”) to test both properties for lead-based paint. On August 24, 2009, without providing any notice to the defendants, Arc conducted exterior lead paint testing on both properties. The defendants were not present for the test. At the time, Ms. Benjamin owed 2238 Linden Avenue, and S&S Business Trust — managed by Mr. Runkles — owned 2308 Bryant Avenue. Both Ms. Benjamin and Mr. Runkles filed a Motion to Strike the Arc Report on October 8, 2009, arguing that Plaintiff failed to comply with the trial court’s scheduling order, which provided:

(c) Defendants who still own a subject property shall allow the Plaintiffs to perform a non-destructive lead test upon the premises within 60 days of a written request provided that the request i[s] made no later than four months prior to the discovery deadline in paragraph 2(a). The defendants shall be permitted to attend the lead test accompanied by a consultant(s) or expert(s).

Butler v. S&S P’ship, No. 1, slip op. at 8 (Md. Nov. 26, 2013). According to Ms. Benjamin and Mr. Runkles, Plaintiff failed to comply with the scheduling order when he failed to give defendants notice that the Arc test was being conducted. In response, Plaintiff argued that notice was required only for those defendants that still owned the subject property, and that the requirement was satisfied when Plaintiff filed Requests for Entry Upon Land with the Complaint. S&S and NBS made an additional Motion to Exclude the testimony of Dr. Klein on the grounds that Dr. Klein did not conduct a physical examination of Plaintiff. NBS and S&S, also joined by the Rochkinds, also filed a Motion for Partial Summary Judgment as to Plaintiff’s CPA claims in relation to 2308 Bryant Avenue. In particular, the defendants argued that Ms. Crosby’s testimony at deposition that there was no chipping, peeling, or flaking of paint at 2308 Bryant Avenue at the inception of the lease entitled defendants to summary judgment on the CPA claims.

At a motions hearing on November 9, 2009, the trial court excluded the Arc Report because Plaintiff failed to give any of the defendants notice of the lead-based paint survey, upon which the Arc Report was developed. Furthermore, the trial court, acting sua sponte, excluded Dr. Klein’s report as untimely under the scheduling order. The trial court also granted the Partial Motion for Summary Judgment filed by NBS and S&S as to those CPA claims relating to 2308 Bryant Avenue. On appeal, the Court of Special Appeals affirmed the trial court’s decision.

The Court of Appeals held that the scheduling order entitled only those defendants owning a subject property at the time of testing the right to receive notice of, and be present for, the lead-based paint test. In reaching its conclusion, the Court found the scheduling order to be ambiguous on its face, and looked to the broader context of the Maryland discovery rules for context. The Court found that the scheduling order was meant to “streamline the discovery process outlined in [MD. RULE] 2-422,” Id. at 9, which provides that a party in receipt of a Request for Entry upon Land can permit or refuse entry, MD. RULE 2-422. The Court reasoned that the scheduling order must then pertain only to those defendants who still own the test property, because other non-owning defendants could not possibly refuse entry to property they do not own. In this case, Mr. Runkles did not own 2308 Bryant Avenue at the time of testing, and Ms. Benjamin no longer owned 2238 Linden Avenue. Therefore, neither defendant had a basis “to complain about any violation of the scheduling order.” Butler, slip op. at 11–12.

Furthermore, the Court found that even if Plaintiff had violated the scheduling order, excluding the Arc report was an abuse of discretion on the part of the trial court. The Court noted that "a lead test constitutes a crucial piece of evidence in a lead paint case, capable of making or breaking the plaintiff’s case.” Id. at 14. The trial court’s remedy was, therefore, a “case-ending sanction,” which is warranted in very limited circumstances involving willful or contemptuous behavior. In this case, where Plaintiff disclosed the report before the discovery deadline, the alleged violation was not so severe as to warrant exclusion.

Similarly, the Court found that the trial Court’s exclusion of Dr. Klein’s testimony was reversible error. The Court held that, under MD. RULE 2-432, a trial court cannot, sua sponte, exclude an expert’s report based on discovery violation found under MD. RULE 2-432, without a part first moving for an order for sanctions. In this case, the defendants raised substantive and evidentiary arguments regarding Dr. Klein’s testimony, but did not reference to a discovery violation. Therefore, there was no moving party, and the trial court abused its discretion in excluding Dr. Klein’s affidavit.

The Court did, however, affirm the trial court’s entry of partial summary judgment as to Plaintiff’s CPA claims in relation to 2308 Bryant Avenue. The Court observed that Plaintiff was required, under the CPA, to establish the existence of chipping, peeling, or flaking lead-based paint at the lease’s inception. Similarly, Plaintiff failed to generate any issue of material fact precluding summary judgment on this point. Therefore, the Court ultimately reversed the Court of Special Appeals decision in part, affirmed the decision in part, and remanded the case to the Circuit Court for Baltimore City for further proceedings.

Judge Harrell filed a concurring opinion in this case. While joining the majority in judgment, Judge Harrell states that “[in] construing which defendants are entitled to notice of when a lead test of a dwelling is to be made by a plaintiff . . . the interests of present defendants, who were past owners or managers of the affected rental property at times when the plaintiff(s) resided there, are implicated demonstrably.” Id. Concurring slip op. at 1 (Harrell, J., concurring). Rather, Judge Harrell interprets the scheduling order to pertain to any present-owner/manager, or former-owner/manager of a subject property. Therefore, Judge Harrell found that the trial judge was justified in excluding the Arc Report as to both properties.