E-Alert Case Updates
Maryland Court of Special Appeals Affirms Judgment of Lower Court for Defendant But Holds That Parent’s Reliance May be Imputed to Minor Child on Misrepresentation Claim
White v. Kennedy Krieger Institute
Available at: http://www.mdcourts.gov/opinions/cosa/2015/1015s13.pdf
In White v. Kennedy Krieger Institute, Tyron White participated in a lead reduction treatment study facilitated by Kennedy Krieger Institute (“KKI”) while he was a minor. White alleged that while enrolled in the study, and as a result of the tortious conduct of KKI, he was exposed to harmful levels of lead that caused irreparable brain injuries. The trial court dismissed several of White’s claims on motions and the jury rejected those motions that survived. On appeal from the Circuit Court for Baltimore City, White raised three (3) issues for the intermediate appellate court: (1) whether the trial court erred by providing insufficient jury instructions regarding the duty of care owed by a research institution to a research subject; (2) whether the trial court erred in concluding that White cannot maintain an action for fraudulent or negligent misrepresentation because, as a two-and-a-half year old child at the time, White could not demonstrate that he relied on any alleged misrepresentation; and (3) whether the trial court erred in concluding that KKI could not be liable under the Maryland Consumer Protection Act because there was no direct commercial transaction between it and White. After reviewing the facts of the case and legal arguments, the Honorable Daniel Friedman affirmed the judgments of the circuit court.
This case arose out of a research study called the Treatment of Lead-Exposed Children Study (the “TLC Study”), which was conducted by KKI in Baltimore City in the 1990s. The TLC Study involved two components: (1) to evaluate the effects of the oral chelating agent, succimer, on moderately lead poisoned children; and (2) to evaluate benefits of residential lead clean-up and nutritional supplementation for these children. There were two (2) criteria for a child to be eligible to participate in the TLC Study: (1) the child, aged between 12 and 32 months, had to have a moderate existing blood lead level (between 20 and 44 micrograms per deciliter); and (2) the child had to reside in a home that was structurally sound and capable of being cleaned. Prior to a child’s participation in the TLC Study, KKI required parents to give informed consent to participation both during pre-enrollment screening and at the enrollment stage. If KKI determined that a child was eligible for the study, the pre-enrollment consent form explained that KKI would arrange for trained workers to return to the child’s house and “[v]acuum and wet-wash floors, window sills, window wells and other surfaces . . . to remove as much lead dust and loose chips of paint as possible, [m]ake some repairs, if the owner has special approval for a loan, [and p]rovide you with information on how you can reduce lead exposure in the home.”
Tyron White (“White”) was two (2) years old when a blood test revealed that he had a blood lead level of 43 mcg/dL. His physician at East Baltimore Medical Center then referred White’s mother, Carolyn Riddick, to the TLC Study. Ms. Riddick signed the pre-enrollment consent form and KKI performed another blood test to verify White’s blood lead levels, which revealed that his blood lead levels had increased to 47 mcg/dL. This was too elevated for White to be eligible for the study. After receiving the test results, Ms. Riddick scheduled White for another pre-enrollment visit that was conducted on August 21, 1995, when Ms. Riddick signed another pre-enrollment consent form that was identical to the first. White was retested and his blood lead level measured 39 mcg/dL, which was within the TLC Study eligibility range. White’s rental home at 1107 Gorsuch Avenue was then inspected by KKI, but it was determined not to be cleanable because of its poor condition and high levels of lead contamination. As a result, White remained ineligible for the TLC study. Ms. Riddick relocated to 3215 Tinges Lane in October of 1995 and contacted KKI and a KKI inspector determined the new property to be cleanable. KKI hired a contractor to perform a “lead clean” of the Tinges Lane property shortly thereafter.
In January of 1996, Ms. Riddick decided to move again. She testified at trial that a KKI social worker who was not involved with the TLC Study provided her with a list of “lead safe” properties and drove Ms. Riddick around to view the homes. From the list provided, Ms. Riddick selected a property at 642 Gorsuch Avenue. A KKI inspector looked at the Gorsuch property in February 1996 and determined that it qualified for TLC Study purposes, and KKI hired a contractor to perform a “lead clean” of the 642 Gorsuch Avenue property in April of 1996. According to KKI records, lead dust sampling conducted by KKI before and after the professional cleaning revealed that after the professional cleaning, lead dust levels actually increased in four (4) of the seven (7) sampled areas. In June of 1996, White’s blood lead level was 29 mcg/dL, which was nine (9) points higher than when he first moved into the 642 Gorsuch Avenue property, but lower than when he first entered the TLC Study. At the time these measurements were taken, White was still in the double blind treatment period of the TLC Study and remained at the Gorsuch property until July 1996.
On July 13, 2011, White filed suit against numerous defendants, including KKI, alleging that: (1) he suffered significant brain injury as a result of toxic lead exposure resulting from KKI’s tortious design and implementation of the TLC Study; (2) KKI negligently and intentionally misrepresented the lead-based paint hazards in his home during the time that he was in the TLC Study, as well as the risk of harm to White as a result of participating in the study; (3) KKI was negligent in failing to properly review and oversee the TLC Study; (4) KKI is liable under the Maryland Consumer Protection Act (“CPA”) for misrepresentations made when assisting Ms. Riddick to find “lead safe” housing. The trial court granted judgment in favor of KKI pursuant to Md. Rule 2-519 at the close of plaintiff’s case in White’s claims of negligent and intentional misrepresentation and violation of the CPA. The only issue presented to the jury was whether KKI negligently failed to review and oversee the TLC Study properly. On April 29, 2014, after a lengthy trial, the jury returned a verdict in favor of KKI, finding that KKI did not act negligently in planning and implementing the TLC Study. White appealed timely to the Court of Special Appeals.
On review, the Court of Special Appeals noted that although lead paint cases are not new to Maryland courts, this case was unique in light of White’s claims against KKI. The court relied heavily upon Grimes v. Kennedy Krieger Institute, 366 Md. 29 (2001), to inform its analysis—a case that had not been revisited in depth by a Maryland court since the Court of Appeals denied reconsideration of its Grimes decision in October 2001. In Grimes, the Court of Appeals held that a parent, appropriate relative, or other applicable surrogate, cannot consent to the participation of a child or other person under legal disability in nontherapeutic research or studies in which there is any risk of injury or damage to the health of the subject.
In light of Grimes, the intermediate appellate court opined that White’s proposed jury instruction missed the mark because the duty he identified—i.e., to provide full, detailed, prompt, and continuing warnings—was contingent on the factual finding of the existence of a special relationship arising from the researcher’s superior position of knowledge. The duty identified by White was not, as he asserted, a broad, over-arching duty that automatically attaches; rather, it only arises in a limited context. For this reason, the intermediate appellate court concluded that the benefits provided by KKI to all research participants in the TLC Study were sufficient to remove the TLC Study from the purview of Grimes.
The Court of Special Appeals then addressed White’s second claim—i.e., whether an infant can maintain an action in tort for fraudulent or negligent misrepresentation in the absence of direct, personal reliance on the false statement. The court opined that as an infant, White’s actions were governed by Ms. Riddick, who’s decision to relocate or remain in a property naturally resulted in White staying or moving. According to the court, it was foreseeable that White’s actions would be determined by his mother’s decision to provide informed consent on his behalf; indeed, this was the entire purpose of the informed consent process. Thus, the court held that Ms. Riddick’s reliance may be imputed to White, the infant, and may constitute a form of indirect reliance by inducing White to participate in the TLC Study. The intermediate appellate court also held that the trial court erred in determining that, as a matter of law, White was incapable of reliance solely on the basis of his infancy. The court reasoned that the actions of infants are often determined by the choices of their parents, and infants should not be barred from tort recovery simply because they lacked the capacity to form the conceptual link between the misrepresentation and their resulting action. According to the court, requiring direct, personal reliance of the infant would constitute an unreasonable bar to the infant from recovery for tortious negligent misrepresentations made to their parents who gave informed consent on their behalf. For these reasons, the trial court erred in dismissing White’s claims of negligent misrepresentation on the grounds that White failed to demonstrate reliance.
Nonetheless, the intermediate appellate court determined that the facts provided by White to support the claims of misrepresentation were insufficient under the clear and convincing standard required in fraud claims, and also failed under the less stringent preponderance of the evidence standard for negligent misrepresentations. Even taken in the light most favorable to White, Ms. Riddick failed to demonstrate that KKI falsely represented to her that she and White would be provided with housing free from lead paint hazards by virtue of their participation in the TLC Study. The court observed that after Ms. Riddick moved, KKI had the property professionally cleaned and provided Ms. Riddick with cleaning materials to help keep the lead dust levels down. These actions demonstrated that KKI did not hold the property out to be lead free, and that Ms. Riddick understood that she would have to clean on a regular basis to keep lead dust levels down. The court could not find any evidence that properties on the lead safe list were represented to TLC Study participants as lead free. Thus, according to the court, no reasonable jury could find that KKI represented to Ms. Riddick that she would receive lead-free housing by allowing White to participate in the TLC Study. The Court of Special Appeals therefore affirmed the trial court’s dismissal of White’s misrepresentation claims.
Finally, the Court of Special Appeals addressed whether a party may be liable under the Maryland Consumer Protection Act for misrepresentations made to a consumer in the absence of a direct consumer transaction between the parties. The intermediate appellate court held that the trial court erred to the extent that it required White to show a direct consumer transaction between White and KKI for liability to attach under the CPA. Instead, the proper inquiry was whether KKI’s actions regarding the leased properties were sufficiently integral to “so infect the sale or offer for sale” that a claim of consumer fraud under the CPA can survive a motion for judgment. Hoffman, 385 Md. at 32. Holding that no reasonable jury could have found that KKI misrepresented to Ms. Riddick that “lead safe” meant that the property was completely free from lead hazards, and would remain free from lead hazards, the Court of Special Appeals affirmed the trial court’s decision and concluded that White’s CPA claim was properly dismissed.
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