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Court of Special Appeals of Maryland Finds that A Court May Rely On Circumstantial Evidence in a Lead Paint Personal Injury Case

Smith v. Rowhouses, Inc.
No. 993 (Court of Special Appeals of Maryland, July 2, 2015)
by Nida Kanwal
Semmes, Bowen & Semmes (www.semmes.com)

Availalble at: http://www.mdcourts.gov/opinions/cosa/2015/0993s14.pdf

Myishia Smith filed a negligence suit against Rowhouses, Inc., a property manager, alleging she was poisoned as a child as a result of ingesting lead-based paint inside the Oliver Street Property. Smith was born in 1991. According to her mother, the first home in which Smith lived, the Monroe Street Property, was in good condition. The following year they moved to the Oliver Street Property where the paint started chipping and peeling on the windowsills, banister, and baseboards. Smith would frequently put her hands in her mouth after touching these areas. In 1993, the family moved to the Collington Street Property. Smith also frequently visited her grandmother at the Ashland Avenue Property; the mother never saw chipping, flaking, or peeling paint at this property. Smith showed an elevated level of lead when she was eleven (11) months old and still living at the Oliver Street Property. The Oliver Street Property, however, was never tested for lead and had been razed before Smith’s lawsuit was filed.

The Court of Special Appeals held that circumstantial evidence may be used to show lead was likely present in a home. The Court pointed to the presence of peeling, chipping, and flaking paint in Smith’s former home, as well as the fact that Smith would put her hands in her mouth after touching these areas. The Court further noted that other homes that Smith lived in as a child did not display these characteristics, that Smith did not have contact with any other known source of exposure to lead, and that there is a presumption that homes built before 1950, like the Oliver Street Property, often contain lead-based paint. Such evidence “could support a reasonable inference by the trier-of-fact” that Rowhouses, Inc.’s property was the only probable source of the lead to which Smith was exposed before she first tested positive for lead.

The Court of Special Appeals overturned the Baltimore City Circuit judge’s granting of summary judgment in favor of Rowhouses, Inc. on the negligence count based on lack of evidence. The Intermediate Appellate Court found that the circumstantial evidence was adequate; and thus, summary judgment should have been granted. The case was remanded for further proceedings.

The Court noted that the deposition of Robert K. Simon, Smith’s expert, who testified "to a reasonable degree of scientific probability” that Smith was exposed to lead while living at the Rowhouse, Inc. property because the home was built before 1950, was based solely on the home’s age and thus lacked an adequate factual foundation for admissibility. Despite this, Smith had alleged sufficient other circumstantial evidence to buttress Simon’s opinion. The Court elaborated that under Maryland law if a plaintiff alleges lead poisoning based on circumstantial evidence alone, she “must rule out other reasonably probable sources of lead exposure in order to prove that it is [more] probable [than not] that the subject property contained lead-based paint.”