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Court of Appeals Reverses Court of Special Appeals on Medical Expert Qualification in Lead Paint Case

Jakeem Roy v. Sandra B. Dackman, et al
No. 6 (Court of Appeals of Maryland)

by Caroline E. Willsey, Law Clerk
Semmes, Bowen & Semmes (www.semmes.com)

Available at: http://www.mdcourts.gov/opinions/coa/2015/6a15.pdf

In Roy v. Dackman, the Court of Appeals was presented with a plaintiff/petitionerís medical expert proffered for medical causation testimony regarding (1) the deleterious effects of ingestion of lead-containing paint chips by a young child and (2) the source of those paint chips in a specific residential dwelling in Baltimore City. The Court of Appeals was left to decide whether a pediatrician, who has never treated a child victim of lead paint, but claims to be familiar with all relevant medical literature, should be permitted to offer an opinion as to medical causation.

Petitioner was born in April 1996 in Baltimore City. Petitioner resided at 2801 Virginia Avenue, Baltimore City for the first eight months of his life before he, his mother, and his siblings moved to 2525 Oswego Avenue, where they resided from the Fall of 1996 through November 1998. In June 2011, Petitioner filed suit in the Circuit Court, alleging that the Respondents negligently provided premises for rent that contained chipping, peeling and flaking lead-based paint, in violation of the Baltimore City Housing Code. Petitioner alleges that he ingested this paint, and as a result suffered lead poisoning and permanent injuries.

After discovery, Petitioner identified two expert witnesses: (1) Dr. Eric Sundel, a board-certified pediatrician with twenty (20) years in practice, and (2) Robert K. Simon, Ph.D., an industrial hygienist and environmental risk assessor. Dr. Sundel opined that the source of plaintiffís lead-based paint exposure, which allegedly caused medical injuries and cognitive problems, was 2525 Oswego Avenue. To support his conclusion, Dr. Sundel relied on the following facts: (1) the Oswego Avenue property was built in 1920; (2) Petitioner experienced elevated blood lead-levels while living at the property; (3) ARC Environmental testing confirmed the presence of lead-based pain on the exterior of the property; (4) Petitionerís mother testified to the existence of chipping, flaking and peeling paint inside the house. Dr. Sundel also relied on an in-person neuropsychological evaluation of Petitioner, conducted by a neuropsychologist. At Dr. Sundelís deposition in November 2012, his testimony established that he was well-read in literature related to the effects of lead poisoning in children, but revealed that he had never studied or directly treated children with lead poisoning. Dr. Sundel had never examined Petitioner personally, but claimed that it was not necessary for him to do so because he was able to review the records from Petitionerís neuropsychological evaluation.

Mr. Simon also opined that the Oswego Avenue property was the source of Petitionerís exposure to lead-based paint, based on documentary evidence provided to him by Petitionerís counsel

Respondent filed a motion to exclude Petitionerís expert witnesses, under Md. R. 5-702, on the grounds that they were not qualified. Respondents filed a companion motion for summary judgment. The Circuit Court denied Respondentsí motion, finding that both witnesses were qualified to testify. The Circuit Court concluded that ď[o]bjections attacking an expertís training, expertise or basis of knowledge go to the weight of the evidence and not its admissibility.Ē Subsequently, the Court of Special Appeals filed an opinion in City Homes, Inc. v. Hazelwood, 210 Md. App. 615, 63 A.3d 713, cert. denied sub nom. Hazelwood v. City Homes, 432 Md. 468, 69 A.3d 476 (2013) in which it held that Dr. Sundel was not qualified to testify as an expert witness in connection with childhood lead poisoning. The Respondents renewed their motion to exclude and motion for summary judgment. This time, the Circuit Court granted the motion for summary judgment, stating that Dr. Sundel was not qualified to provide an expert opinion. The ruling did not exclude Mr. Simon as an expert witness. Petitioner appealed to the Court of Special Appeals, which affirmed the Circuit Courtís ruling in a published opinion.

The Court of Appeals granted certiorari to review the interim appellate courtís decision. Marylandís Highest Appellate Court disagreed with the Court of Special Appeals and held that Dr. Sundel was qualified to testify as to medical causation in a lead paint personal injury case, but not qualified as to lead source opinions.

The Court of Appeals began by noting that under Md. R. 5-702, the following three factors govern the analysis of whether expert testimony may be admitted: (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education; (2) the appropriateness of the expert testimony on the particular subject; and (3) whether a sufficient factual basis exists to support the expert testimony. Under Md. R. 5-702(2), a medical expert is not required to have observed the plaintiff as a patient. The Court of Appeals reiterated that inquiries about a medical expertís personal experience go to the weight, not the admissibility, of the expertís testimony. Therefore, the Court of Appeals concluded, basing an opinion solely on review of medical literature does not necessarily exclude a witness from qualifying as an expert on medical causation. The Court of Appeals also concluded that, under Md. R. 5-702, an expert witness as to medical causation must base his or her opinion on reliable knowledge, skill, and experience, but is not required to be a specialist.

Based on Dr. Sundelís background, affidavit, and deposition, the Court of Appeals concluded that it was apparent that he was competent to testify as an expert as to medical causation, under the standards set forth in Md. R. 5-702. Therefore, the Circuit Court abused its discretion in finding him unqualified to testify generally as to medical causation. Nevertheless, the Court of Appeals agreed that without personal knowledge of the Petitioner and because of his reliance on circumstantial evidence as to how and why Petitioner was exposed to lead-based paint, Dr. Sundel was not shown to be competent to testify as to the source of Petitionerís exposure. Therefore, the Circuit Court did not abuse its discretion in excluding his testimony on that element.

In concluding that Dr. Sundel was not competent to testify as to the source of Petitionerís lead exposure, the Court of Appeals relied on two earlier cases: Taylor v. Fishkind, 207 Md. App. 121, 51 A.3d 743 (212) and Ross v. Hous. Auth. of Baltimore City, 430 Md. 648, 63 A.3d 1 (2013). Much like the proffered medical expert in Taylor, Dr. Sundelís conclusion was based solely on circumstantial evidence, including the age of the home and exterior tests of the paint on the property. Although lead paint cases may generally succeed on circumstantial evidence, it is not enough for an expert to use such evidence to form the basis of his opinion as to the source of a childís lead exposure, when other potential sources have not been eliminated. Like the proffered medical expert in Ross, Dr. Sundelís conclusion did not rule out other potential sources. Dr. Sundel based his opinion entirely on the assumption that the childís home was the most probable source of his elevated blood lead levels.

In support of its conclusion that Dr. Sundel was competent to testify as to medical causation, the Court of Appeals distinguished the record as to Dr. Sundelís qualifications in this case from the record in Hazelwood. In Hazelwood, Dr. Sundel was deemed unqualified because he had never before testified as an expert in a lead paint poisoning case, he had not published or lectured on the topic of lead paint poisoning, and he was not a board-certified psychologist (which the Hazelwood Court concluded made him unqualified to administer or interpret IQ tests). The main difference between the factual record in Hazelwood and the instant case related to Dr. Sundelís preparation for rendering an opinion. The record in Hazelwood indicated that Dr. Sundel had ďread articles generally about lead paint poisoning but had not studied intensively.Ē By contrast, the fourteen (14) page affidavit submitted by Dr. Sundel in this case explained that he had ďread extensively on lead paint poisoningĒ and that he ďcontinue[d] to review all new published literature and public policy statements from the Center for Disease ControlĒ regarding lead paint poisoning. Unlike in Hazelwood, Dr. Sundel was also able to review a report from Mr. Simon, the industrial hygienist. Based on Dr. Sundel's more than twenty (20) years in practice as a board-certified pediatrician, Marylandís Highest Appellate Court concluded that he was competent to testify as to whether the injuries suffered by the Petitioner were the result of the alleged exposure to lead.

In conclusion, the Court of Appeals reiterated that medical causation and the source of lead exposure are distinct questions. Dr. Sundel, the Court the majority concluded, was qualified to testify as to medical causation, but not as to the source of lead exposure. Accordingly, the Court of Appeals reversed the judgment of the Court of Special Appeals and remanded the case to the Circuit Court for Baltimore City for further proceedings.