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Baltimore City Trial Court Abused Its Discretion in Admitting Testimony of Plaintiff’s Childhood Lead Expert

City Homes, Inc. v. Hazelwood
No. 2109 (Court of Special Appeals of Maryland, March 22, 2013)

by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (www.semmes.com)

This case involved an action brought by Plaintiff against City Homes, Inc. (“Defendant”) for lead paint personal injuries at a residence owned and operated by Defendant. Plaintiff filed a Complaint against City Homes and Barry Mankowitz, the property manager. One of Plaintiff’s expert witnesses was a childhood lead poisoning expert, Eric Sundel, M.D. A Baltimore City returned a verdict in favor of Plaintiff for a total of $5,100,000, including $900,000 in economic damages for lost earning capacity and $4,200,000 in noneconomic damages. The noneconomic damages were reduced, according to the statutory cap, on post-trial motion; thereby, reducing the total award to $1,250,000. Defendant appealed the verdict.

The Court of Special Appeals held that the trial court abused its discretion in admitting the testimony of Plaintiff’s childhood lead poisoning expert, Dr. Sundel, and reversed and remanded the case. Dr. Sundel was not qualified to testify under MD. RULE 5-702(1), nor did he have an adequate factual basis under MD. RULE 5-702(3).

With respect to Dr. Sundel’s qualifications, although he was a board-certified pediatrician licensed to practice medicine in Maryland, he did not receive any specialized training or have any experience with treating children with lead poisoning or in identifying the source of a child’s lead exposure. Dr. Sundel acknowledged that his only involvement with chelation therapy occurred during the mid-1980s when he was a resident. Dr. Sundel had not evaluated and diagnosed children with lead poisoning, or monitored the progress of children diagnosed with lead poisoning. Dr. Sundel had never testified as an expert in a lead paint poisoning case. He never published any articles related to lead, was never involved in any studies related to lead, and never delivered any lectures on the topic of lead or lead ingestion. While Dr. Sundel testified that, as a pediatrician, he kept current on childhood lead poisoning issues, he could not recall the names of any articles he had read or reviewed concerning lead poisoning.

In addition, while Dr. Sundel opined that Plaintiff sustained an IQ loss of seven (7) to ten (10) IQ points and that lead exposure was a substantial contributing factor to appellee’s “brain impairment,” he admitted that he was not a board-certified psychologist or neuropsychologist; that he does not administer IQ or achievement tests; that he did not know how to score an IQ test; and that he did not know the standard of error for the Wechsler IQ test. Based on the record, it was “patently clear” that Dr. Sundel was not qualified to testify as to Plaintiff’s IQ or the loss of IQ points resulting from lead exposure or any alleged “brain impairment.” Overall, Dr. Sundel’s knowledge about lead poisoning was “extremely bare and lacking.” Therefore, the circuit court abused its discretion in admitting Dr. Sundel as an expert, under MD. RULE 5-702(1).

In addition, the circuit court abused its discretion in permitting Dr. Sundel to testify because the record demonstrates that he lacked a sufficient factual basis for his opinions, as required by MD. RULE 5-702(3). Dr. Sundel testified that the subject property was the source of appellee’s lead exposure; appellee sustained an IQ loss of seven (7) to ten (10) IQ points based on exposure to lead; and lead exposure at the subject property was a substantial contributing factor to Plaintiff’s injuries.

As to the Plaintiff’s loss of IQ points, although Dr. Sundel testified that he arrived at his opinion–that appellee sustained a loss of seven (7) to ten (10) IQ points as a result of lead exposure–based on his review of documents, including an IQ test report completed by a different doctor, and his knowledge and training, it was evident that Dr. Sundel’s testimony amounted to no more than speculation based on articles he read that correlated diminished IQ with lead exposure. Dr. Sundel’s opinion that Plaintiff sustained a loss of IQ points was pure conjecture based upon general literature.

To the Court, Dr. Sundel also failed to consider the other properties where Plaintiff visited and resided during her childhood as sources of exposure. He failed to rule out those other properties as well as environmental sources of lead such as the water and soil at the subject property or elsewhere as sources of lead exposure. However, with respect to the source aspect of the holding, in Ross v. Housing Authority of Baltimore City (issued on the same day as Hazelwood, available at: http://mdcourts.gov/opinions/coa/2013/10a12.pdf), the Court of Appeals held that childhood source of lead exposure may be proven by circumstantial evidence, without the need for expert opinion testimony, which limits the precedential value of Hazelwood on this point.

The Hazelwood case was reversed and remanded back to the trial court.


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