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Court of Special Appeals of Maryland Holds That Causation in Lead-Based Paint Context Limited to Probability of Circumstantial Evidence Under Ross v. Housing Authority

Raymond V. Hamilton, Jr. v. Sandra B. Dackman, et al.
Court of Special Appeals of Maryland, No. 2871, September Term 2011 (Md. September 4, 2013)
by Jhanelle Graham, Associate
Semmes, Bowen & Semmes (www.semmes.com)

In Raymond V. Hamilton, Jr. v. Sandra B. Dackman, et al., the Court of Special Appeals of Maryland was asked to determine the evidentiary standard sufficient to establish a prima facie case for causation in the context of lead exposure. Writing for the intermediate appellate court and affirming the trial court’s grant of summary judgment by “a slightly different analytical path,” Judge Douglas R.M. Nazarian acknowledged that “the real-life facts of lead paint cases ha[ve] often proven challenging, . . . especially where the plaintiff lived or spent time in more than one dwelling of potential exposure.”

Plaintiff, Raymond Hamilton (“Raymond”), was born on September 20, 1992, and lived at several houses in Baltimore City throughout his childhood, one of which was on Harlem Avenue. He also frequently visited his father’s house on Appleton Street, where he sometimes stayed overnight. At some point Raymond’s blood-lead levels were tested, and from June 1993 to April 1997, sixteen (16) reports issued by the Kennedy Krieger Institute indicated that Raymond had elevated blood-lead levels. Raymond filed suit on September 28, 2009, alleging that both the Appleton Street and Harlem Avenue properties contained lead-based paint that he ingested in the form of paint chips and dust, causing him to suffer lead poisoning and, ultimately, brain damage. His complaint included claims against numerous defendants (collectively, “Dackman”) sounding in negligence and unfair trade practices. On July 1, 2010, Dackman answered the amended complaint and generally denied liability.

As is frequently true in lead paint cases, discovery focused on whether Raymond’s lead exposure could be connected to lead paint present in the properties at which he lived or that he visited. Discovery revealed more than one (1) alleged source of lead exposure—in his answers to interrogatories, Raymond described the Appleton Street property as having chipping, peeling and flaking paint in numerous places, and Raymond’s mother identified at least two (2) of their other homes as containing peeling paint, where one (1) had lead-based paint both inside and outside. Raymond also enlisted three (3) experts to support his claims. The experts concluded, respectively, that: (a) one (1) of the eight (8) surfaces tested positive for the presence of lead; (b) the Appleton Street property was a source of Raymond’s exposure to lead-based paint; and (c) the Appleton Street, Harlem Avenue, and Fulton Avenue properties all were sources of lead-based paint and that Raymond’s injuries were caused by exposure at the sites. The third expert admitted, however, that she reached those conclusions without having any test results from the Harlem Avenue property and with only the one (1) positive exterior test result for the Appleton Street property.

After discovery concluded, Dackman moved for summary judgment on two (2) grounds: (1) Raymond had failed to provide either direct or circumstantial evidence demonstrating the presence of lead at the Appleton Street property during the relevant time period; and (2) that Raymond could not rule out other properties as potential sources. The motion argued that Raymond never conducted a lead test on the interior of the property and that the presence of lead on only one (1) of eight (8) exterior surfaces was insufficient direct evidence of exposure to lead-based paint necessary to overcome a summary judgment motion. Dackman also claimed that because Raymond’s experts admitted: (1) they were unable to rule out other sources of lead exposure or other properties as containing lead; and (2) they lacked an adequate factual basis to conclude that the Appleton Street property was the source of his lead exposure. Raymond, however, contended that the evidence coupled with the testimony of his experts established a prima facie case that the Appleton Street property was a “substantial contributing factor” to his injuries because he was required only to show that “he was, more likely than not, exposed to lead paint at a given subject property.” He argued that he was not required to prove only a single source of lead exposure or a single cause of his injuries.

On January 27, 2012, after a hearing, the circuit court issued an Order granting summary judgment in favor of Dackman, explaining that the sole positive test on the exterior of the Appleton Street property. The fact that Raymond admittedly split his time between two (2) properties left insufficient evidence for a fact-finder to conclude that his elevated blood-lead levels resulted from exposure at the Appleton Street property. Raymond timely appealed to the Court of Special Appeals of Maryland.

The intermediate appellate court noted that the primary issue was whether Raymond offered legally sufficient evidence of causation to connect his injuries to the Appleton Street property. Although the court acknowledged that the evidence proffered would have allowed a jury to find it possible that the circumstantially-established lead exposure at the Appleton Street property was a source of Raymond’s alleged injuries, that standard was not enough. Rather, citing the Court of Appeals of Maryland’s recent decision in Ross v. Housing Authority, 430 Md. 648 (2013), a plaintiff must establish a probability that a property exposed him or her to injury-causing lead paint. The intermediate appellate court disagreed that a plaintiff necessarily must eliminate all other possible sources of lead to proceed—that is, a plaintiff could, if the facts allowed, establish a probability that more than one (1) property is a source of injury. Yet, Raymond’s case was centered on one (1) property at the time of summary judgment, and the court held that his evidence as to that property fell short in terms of the tangible and circumstantial evidence and because his proffered expert testimony was grounded almost entirely on assumptions. Relying heavily on Ross, the Court of Special Appeals noted that although an expert can helpfully connect the causal dots between lead in a building and a plaintiff’s injuries, the dots can be connected without any expert as well. Nonetheless, an expert cannot transform thin evidence or assumptions into viable causal connections simply by labeling them an expert opinion.

The court concluded that the question at issue was not whether the Appleton Street property was the probable source of Raymond’s injury, but whether it was a probable source of the lead paint that allegedly caused Raymond’s injuries. Because the only evidence of lead at the Appleton Street property was the lone test on a transom over the rear exterior door of the house, the intermediate appellate court held that Raymond did not produce circumstantial evidence sufficient to create a genuine issue of material fact as to the reasonable likelihood or probability that he was exposed to lead at the Appleton Street property that caused his alleged lead-exposure injuries. Construing all of the facts in his favor, the Court of Special Appeals acknowledged that Raymond suffered from elevated blood-lead levels, but determined that the summary judgment record also revealed exposure to lead at another “smoking gun” property no longer involved in the case.