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Maryland Court of Special Appeals Affirms Summary Judgment for Defendants in Lead Paint Case Upon Excluding Causation Testimony from Plaintiff’s Proffered Expert

Jakeem Roy v. Elliot Dackman, et al.
Case No. 558 (Oct. 6, 2014)

by Jhanelle A. Graham, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Available at: http://www.mdcourts.gov/opinions/cosa/2014/0558s13.pdf

In Jakeem Roy v. Elliot Dackman, et al., Jakeem Roy (“Roy”) was allegedly exposed to lead before he reached age two (2), according to blood tests taken on September 17, 1997. Roy filed a Complaint through his mother, Latisha Hillery, in the Circuit Court for Baltimore City, on June 29, 2011, against the owners of the two-(2) story brick row house on 2525 Oswego Avenue, Baltimore, MD 21218, where he lived for a short period as a baby, and where, he claimed, he was exposed to lead paint. Roy asserted that as a result of the acts and omissions of the owners of the rowhouse, Elliot and Sandra Dackman, Jacob Dackman & Sons, L.L.C., and Brina Corporation (“the Dackmans”), he was exposed to quantities of chipping, peeling, and flaking lead-based paint powder and dust which was a direct and proximate cause of injuries he maintains he sustained from lead poisoning. After a thorough review of the record, the Honorable Judge Andrea M. Leahy ruled that the circuit court appropriately excluded the proffered expert testimony of Roy’s pediatrician, because he was not qualified as an expert, and because there was insufficient evidence to form the factual predicate to support his testimony. Consequently, the Court of Special Appeals affirmed the circuit court’s grant of summary judgment in the Dackmans’ favor.

Roy was born in the City of Baltimore, Maryland, on April 26, 1996, and resided at 2801 Virginia Avenue, Apartment C8, for approximately the first eight (8) months to one (1) year of his life. The record is equivocal on the date that Roy and his family moved to 2525 Oswego Avenue. That is, Roy contended that he resided at 2525 Oswego Avenue from the “fall of 1996 through November 1998” in his brief submitted to the court; but, the Complaint alleged that Roy resided at the property from “approximately 1997 to approximately 1998.” Roy’s mother, Latisha Hillery, testified during her deposition that Roy moved into the premises in the fall 1996; yet, Roy’s Answers to Interrogatories indicated that Roy lived at 2525 Oswego Avenue from January 1997 to 1998. Business records submitted by the Dackmans indicate that the property underwent significant renovations from January 7, 1997 through April 3, 1997, which included painting, replacing doors and door frames, and repairing ten (10) windows—during this time, Roy’s mother claimed that the family would not have been residing at the Property. Roy and his family vacated the house in November of 1998, following damage caused by a house fire next door. The Maryland Department of the Environment (MDE) Lead Paint Risk Reduction Inspection Certificate issued for 2525 Oswego Avenue on April 22, 1997, indicated that the property was in compliance with the Full Risk Reduction standards.

Pursuant to the pre-trial scheduling order in the case on appeal, Roy employed ARC Environmental Inc. (“ARC”) to conduct testing at 2525 Oswego Avenue. ARC prepared a Lead-based Paint Survey Report in September of 2012, but because the property was vacant and boarded at the time of testing, only the exterior of the premises was tested. The results of the exterior testing indicated the “positive presence of lead-based paint.” Additionally, although it is unknown what Roy’s blood lead level (“BLL”) was prior to living at 2525 Oswego Avenue, reports by the Maryland Department of Health and Mental Hygiene indicated that he had elevated levels from late 1997 through 1999—with a peak level of fifteen (15) mcg/dl as his first documented elevated BLL occurred on September 17, 1997, and a second screening on November 19, 1997, which indicated that Roy’s BLL had fallen from 15 mcg/dl to 10 mcg/dl. Additional screening results showed that Roy’s BLL remained at 10 ug/dl for the duration of his tenancy at 2525 Oswego Avenue.

Roy designated Eric Sundel, M.D. (“Dr. Sundel”), a board-certified pediatrician with more than twenty (20) years of experience, to provide an opinion on whether Roy had been exposed to toxic lead levels at 2525 Oswego Avenue and whether that exposure resulted in injury. Based on his review of Roy’s file, Dr. Sundel prepared a report which stated that Roy was “very oppositional with staff” and “very hyper” at school, and that “his full-scale IQ was 78, which fell in the borderline impaired range of intellectual function.” After referencing the Centers for Disease Control and Prevention’s current blood lead level of concern, i.e., 5 ug/dl, Dr. Sundel opined that Roy had been exposed to lead while residing at 2525 Oswego Avenue, resulting in “loss of IQ points, as well as other deficits including, impaired attention, problems with memory, and problems with coordination,” and that “these harmful effects are expected to be permanent.”

Dr. Sundel was deposed on November 13, 2012, and although he had extensive practice in pediatric medicine and was familiar with some relevant studies and literature on pediatric lead poisoning, he had never diagnosed or studied an individual with injuries or issues related to lead. Further, Dr. Sundel had never authored or contributed to any publications regarding lead exposure. Regarding the medical effects of exposure to lead-based paint, Dr. Sundel had no background in neurology, neuropsychology, or medical toxicology upon which to base his conclusion that exposure resulted in a loss of intelligence quotient (“I.Q.”) points for Roy. Dr. Sundel admitted that he did not administer I.Q. tests and did not know how such tests were scored. He had also never conducted or participated in any studies assessing the cognitive effects or consequences of lead poisoning, and he did not conduct a medical history of Roy or examine Roy himself.

The second expert offered by Roy was industrial hygienist, Robert K. Simon, Ph.D. (“Dr. Simon”), who opined in his June 2, 2012, report, that “2525 Oswego Avenue, Baltimore, MD 21218 was the location at which Jakeem Roy was initially, and continu[ally] exposed to lead-based paint hazards.” Dr. Simon admitted during his deposition, however, that his opinion was based entirely on records provided to him by Roy’s counsel. Dr. Simon also testified that he neither tested nor considered any other properties as a possible source of Roy’s lead exposure.

On January 2, 2013, the Dackmans filed a “Motion to Exclude Plaintiff’s Experts and Motion for Summary Judgment” (“Motion for Summary Judgment”), seeking to exclude both of Roy’s expert witnesses, Dr. Sundel and Dr. Simon, on the basis that they lacked the qualifications and sufficient factual bases required by Maryland Rule 5-702. After a full hearing before the circuit court on February 20, 2013, the motions were denied. Shortly thereafter, however, the Court of Special Appeals published its opinion in City Homes v. Hazelwood, 210 Md. App. 615, cert. denied, 432 Md. 468 (2013), a case involving facts very similar to Roy’s, in which the intermediate appellate court reversed and remanded the case, finding that the circuit court abused its discretion in permitting the same pediatrician, Dr. Sundel, to testify as an expert on childhood lead exposure and poisoning because he was not qualified and lacked a sufficient factual basis for his opinions. Hazelwood, 210 Md. App. at 684-91. The Dackmans then renewed their Motion for Summary Judgment, and the circuit court granted the renewed motion.

On appeal, the Court of Special Appeals clarified that when a circuit court “grants a summary judgment motion on the grounds that the plaintiff’s expert lacks a sufficient factual basis of admissible facts and the admissible evidence (if any) is insufficient independently to prove causation, the circuit court is making a decision on the admissibility of the expert’s testimony as part of its summary judgment decision,” which “is reviewed on appeal without deference.” Hamilton, slip op. at 17-18, n.11 (citing Giant Food, Inc. v. Booker, 152 Md. App. 166, 176-78 (2003)). Thus, the intermediate appellate court reviewed the grant of the motion for summary judgment to determine whether the trial court’s decision was legally correct, and gave no deference to the underlying determinations. Tyler v. City of Coll. Park, 415 Md. 475, 498 (2010); Beatty v. Trailmaster Products, Inc., 330 Md. 726, 737 (1993)).

Turning to its precedent in Hazelwood, the Court of Special Appeals cited to its previous examination of whether the same witness, Dr. Sundel, was qualified to offer an expert opinion in a lead paint case. In Hazelwood, the court could “discern no basis on which to conclude that Dr. Sundel had specialized knowledge concerning childhood lead poisoning,” and “[n]othing about Dr. Sundel’s work generally as a pediatrician [led] to the conclusion that he was qualified to render the expert opinions he offered in [that] case.” Hazelwood, 210 Md. App. at 686. Further, in Hazelwood, as in Roy’s case, Dr. Sundel was not the treating physician, and the factual basis for his opinions “boil[ed] down to his review of the records provided to him by appellee’s counsel,” including the ARC Environmental report. In both cases, therefore, Dr. Sundel failed to investigate other properties where the plaintiff resided or consider other potential sources of lead exposure. Because Dr. Sundel’s opinions were based solely on (1) deposition testimony from Latisha Hillery regarding the presence of peeling paint; (2) the ARC report results for the exterior of the premises; and (3) the age of the home, the Court of Special Appeals observed that the case was “on all fours” with Hazelwood regarding Dr. Sundel’s qualifications and the factual basis for his testimony.

With respect to causation, the intermediate appellate court opined that Roy presented evidence that: (1) he resided at 2525 Oswego Avenue during a critical early-childhood period during which he experienced elevated BLL; (2) the property was constructed prior to 1950 when the use of lead paint was common; and (3) there was flaking or chipping paint in some areas. At the summary judgment stage, however, Roy did not present any direct evidence that he was exposed to any lead paint from the interior of the property. Further, prior to his first BLL test, Roy also lived for at least one (1) year at a different address in Baltimore. The Court of Special Appeals stated that although Roy need not rule out every other potential source, in the absence of such an exclusion, he must present evidence sufficient to give rise to the reasonable inference that 2525 Oswego Avenue was probably a source of lead exposure, not merely possibly.

The Court of Special Appeals then opined that without expert medical testimony, the testimony of Dr. Simon failed to establish the link between Roy’s lead exposure and his alleged injury. Under the “substantial factor” analysis from Ross v. Housing Authority of Baltimore City, 430 Md.648, 668 (2013), even if Dr. Simon’s testimony were sufficient to show that 2525 Oswego Avenue was a source of Roy’s exposure to lead, it would not support the inference that the associated increase in blood lead level was substantial enough to contribute to Roy’s injuries. See Bartholomee v. Casey, 103 Md. App. 34, 59 (1994) (explaining that expert testimony would be required to demonstrate that the child’s exposure to lead during a particular window of time was “by itself” a substantial cause of child’s alleged lead poisoning and that “of course, to establish causation, Dr. Chisolm would have to testify as to the impact of the limited exposure”). As the intermediate appellate court noted previously, “causation evidence that is wholly speculative is not sufficient.” Dow v. L & R Properties,Inc., 144 Md. App. 67, 75 (2002) (quoting Lyon v. Campbell, 120 Md. App. 412, 437 (1998)). This fundamental point was not contradicted in Ross, in which the Court acknowledged that where “the limits of the inferences in plaintiff’s favor are evident, summary judgment might still be warranted.” Ross, 430 Md. at 671. Therefore, based on the record, and making all reasonable inferences in favor of Roy, the court could only infer that 2525 Oswego Avenue was a source of lead exposure, and that Roy’s BLL peaked during his residence there. The court determined that the record provided no evidence to link Roy’s elevated BLL with his alleged neurological injuries, as exemplified through behavioral and academic deficits, nor did the court find reason to adopt such an assumption.

According to the intermediate appellate court, “[w]ithout a medical expert in the case, neither the testimony of Dr. Simon nor the circumstantial evidence presented by Roy can sustain this burden of proof.” Because Roy failed to offer sufficient evidence from which a reasonable fact-finder could reasonably infer that his injuries resulted from his exposure to lead at 2525 Oswego Avenue, the Court of Special Appeals affirmed the circuit court’s grant of summary judgment in favor of the Dackmans.


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