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The Defense Line: A Publication From The Maryland Defense Counsel, Inc.

The Top 2014 and 2015 Decisions Affecting Lead-Based Paint Litigation in Maryland

Thomas W. HaleMichael W. FoxThomas W. Hale and Michael W. Fox

In 2014 and 2015, the Maryland Court of Appeals and the Court of Special Appeals issued reported opinions that have refined and impacted lead-based paint litigation in Maryland. Many of the opinions address the sole use of circumstantial evidence to establish that a particular property contained lead-based paint and whether that particular property was a substantial contributing factor to a plaintiff’s alleged injuries. The appellate courts have also refined the necessary qualifications of experts, medical institution liability, and governmental notice requirements. These decisions will impact all lead litigation in the future. Maryland law in this area of practice continues to evolve at a rapid pace and is expected to continue to do so in upcoming years. In fact, the Maryland Court of Appeals recently released an opinion in one of these cases (Smith v. Rowhouses, Inc., Infra.) which likely necessitates a similar article for 2016.Below is a compilation and summary of a few of the noteworthy Maryland appellate lead-based paint litigation decisions of 2014 and 2015.

1. Using Circumstantial Evidence to Prove that a Property Contained Lead-Based Paint:

A. Hamilton v. Kirson; Alston v. 2700 Virginia Avenue Assocs., 439 Md. 501 (2014).

The Maryland Court of Appeals held that, in both Hamilton and Alston, the circumstantial evidence of lead offered by the Appellants was insufficient to permit a jury to draw the necessary inferences of the presence of lead-based paint in the subject properties. It held that the evidence presented by the Appellants was insufficient for a jury to infer that the Appellees’ conduct was a substantial factor in bringing about the alleged injuries because Appellants failed to present evidence that the subject properties contained lead-based paint during plaintiffs’ residence at the subject properties. In rejecting the circumstantial evidence, the Court reiterated that in order for expert testimony to be admissible there must be a sufficient factual basis to support the expert’s opinions so that the opinions do not amount to conjecture, speculation or incompetent evidence.

The Court ultimately sought to answer the following question: under what scenario will circumstantial evidence of the possible presence of lead-based paint inside a residential property be sufficient to survive a motion for summary judgment challenging the sufficiency of the proof of causation?

The Court begins its analysis by recognizing that a violation of a statute is, by itself, evidence of negligence. This does not, however, eliminate plaintiffs’ requirement to prove that the landlord’s negligence was a proximate cause of the alleged injuries. The evidence presented by plaintiffs must rise to a level of probability rather than a possibility. Any validity in inferences used to establish causation depends on the logical deduction from established facts. In other words, the Court will require inferences to be logically sound and will refuse to allow a jury of laymen to engage in speculation, conjecture and guesswork.

The Court then turned to a two-step requirement for establishing that a particular property was a substantial contributing factor to a plaintiff’s lead exposure. Those two steps are: 1) establishing that the property contains lead-based paint; and 2) establishing that the lead-based paint at the subject property was a substantial contributing factor to the exposure to lead (or, the exposure at the subject property was an effective cause of plaintiff’s lead ingestion). Each step may require different evidence.

The Court held that if plaintiffs utilize the Dow process of elimination1 to establish lead in a property through circumstantial evidence, plaintiffs must rule out other reasonably probable sources. Moreover, the Court went on to acknowledge that proving the presence of lead-based paint through circumstantial evidence does not exclusively require a Dow process of elimination. The Court gave an example of this with hypothetical facts describing a group of houses built and owned by the same series of persons or entities from the 1950s to the present with two of the three houses surrounding the subject property containing lead-based paint. This hypothetical evidence would support the inference that the subject property contained lead-based paint to a reasonable degree of probability.

Ultimately, the Court concluded that the Appellants in both cases could not show the requisite causation of any elevated blood lead levels derived from the Appellees’ properties because other probable sources were not ruled out. The Court, therefore, affirmed summary judgment in both cases.

Lastly, the Court reiterated that in order for expert testimony to be admissible there must be a sufficient factual basis to support an expert’s opinion so that the opinion does not amount to conjecture, speculation or incompetent evidence. In these cases, the Court found that the experts did not have a factual basis to conclude that the subject properties contained lead-based paint and that the properties were substantial contributing factors to the Appellants’ alleged injuries.

B. Myishia Smith v. Rowhouses, Inc., 223 Md. App. 658, 117 A.3d 622 (2015), cert. granted October 16, 2015.2

In this case, the Maryland Court of Special Appeals held that there was adequate circumstantial evidence of lead at the subject property because the other potential sources where the Appellant spent time during the relevant time frame did not contain peeling, chipping, or flaking interior paint. The Maryland Court of Appeals, however, recently granted certiorari. It is likely that the Maryland Court of Appeals will re-evaluate the evidence presented in this case and further elaborate on whether there was sufficient facts to establish lead at the Appellee’s property in order for a jury to hear the case.

There was no direct testing for the presence of lead at the subject property. However, the property was built prior to 1950 and the evidence indicated that there was peeling, chipping and flaking paint on the interior during the Appellant’s residence there. The only other potential source identified was described as not containing such paint conditions. The court held that the evidence supported a reasonable inference that the subject property was the only reasonably probable source of the Appellant’s first documented lead level while she lived at the subject property. The Court held that this evidence was sufficient to establish the necessary presence of lead at the subject property. This decision affirmed and elaborated upon Dow v. L & R Props., Inc., 144 Md. App. 67, 796 A.2d 139 (2002).

There are two interesting side notes to this opinion. First, the Court recognized prior decisions stating that the presence of lead-based paint in a subject property cannot be established by the age of the property alone. The Court concluded that an expert opinion that lead was present in the property based simply upon the property’s age lacked an adequate foundation and was inadmissible for that purpose. Second, the Court set forth a relatively limited version of the Maryland Court of Appeals’ example of circumstantial evidence described above in Hamilton v. Kirson. You will recall that the e Hamilton example had an illustration that consisted of three houses in addition to the subject property, two of which had direct evidence of lead and one of which was unknown as to the possibility of containing lead. Here, the Court narrowed this illustrated example by asserting that the two adjacent properties sharing common walls with the subject property must be the two known to contain lead in order to show that the subject property contained lead-based paint.

C. Barr v. Rochkind, 225 Md. App. 336, 124 A.3d 1128 (2015), cert. denied, 446 Md. 291, 132 A.3d 194 (2016).3

In this case the Maryland Court of Special Appeals held that the Appellant had the burden of production to present evidence that ruled out all other reasonably probable sources that could have caused the plainitff’s elevated blood lead levels when she was relying solely on circumstantial evidence to establish lead in the subject property. The Court pointed to Hamilton v. Kirson as support. Summary judgment was affirmed.

Appellant did not rule out other potential sources of lead. Instead, Appellant claimed that it was not her burden to rule out other potential sources of lead; rather, the Appellant argued that the burden shifted to the Appellees to establish that there were other probable sources of lead. The Court rejected Appellant’s argument.

The Court concluded that defendants have no obligation to identify other likely sources of lead to trigger plaintiffs’ burden to rule out other sources. The Court further concluded, as discussed in the Hamilton opinion, that plaintiffs cannot use an expert to fill a factual gap.

2. Pediatrician Who Has Not Treated Lead Ingestion Was Qualified to Testify as to Medical Causation: Roy v. Dackman, 2015 WL 6108017 (Md. Ct. App. October 16, 2015).

The Maryland Court of Appeals held that a jury may be assisted on the issue of medical causation in a lead-based paint case by a pediatrician who has not treated children for lead ingestion, but who has generally treated environmental exposures with the assistance of more specialized practitioners, and who has also reviewed relevant medical literature. Thus, the expert’s exclusion was an abuse of discretion.

The Court cited prior decisions stating that a medical expert can be qualified to offer expert medical causation testimony even though he or she does not specialize in the specific field upon which he or she is offering testimony. Instead, the expert may utilize acquired knowledge, skill, experience, training or experience in rendering such opinions. The distinction here was that the expert did not have “specialized knowledge,” or first-hand experience with a medical procedure. In this instance, it was sufficient for the sake of admissibility that the medical doctor had experience in determining the effect of general environmental exposures on patients with the assistance of similar specialists as utilized in the subject litigation, was familiar with the relevant literature, and was able to speak on the topic of specific causation.

In so holding,the Court emphasized three points. First, while the qualifications hurdle for admissibility of medical causation testimony is relatively low, any aspect of those qualifications that may be lacking beyond that hurdle are subject to cross-examination and may bear on the weight given to the expert’s opinions by the jury. Second, the Court limited the scope of its opinion to the medical expert’s medical causation opinions by concluding that the trial court did not abuse its discretion in excluding the same expert’s source of ingestion opinions. Finally, the Court, through dicta, reiterated the finding in Hamilton, that circumstantial evidence of lead using the Dow process of elimination is insufficient if it does not eliminate other potential sources.

3. Lead-Based Paint Liability and Medical Institutions: White v. Kennedy Krieger Institute, Inc., 221 Md. App. 601, 110 A.3d 724 (2015), cert. denied, 443 Md. 237, 116 A.3d 476 (2015).

The Maryland Court of Special Appeals held that Appellant’s proposed jury instruction setting forth Appellee’s “special duties” owed to Appellant arising from a “special relationship” was properly excluded. In reaching this decision, the Court interpreted Grimes v. Kennedy Krieger Institute, 366 Md. 29, 782 A.2d 807 (2001). In Grimes, the Court of Appeals held that parents cannot provide informed consent for their children in research studies that do not provide any treatment benefit to the child. It also held that a special relationship between an institution and a subject in such a non-therapeutic study may arise from the subject’s informed consent, creating special duties on the part of the institution. As the Court of Special Appeals later pointed out in White, however, Grimes did not set forth standards as to the formation of these “special relationships” or the resulting “special duties.” In fact, the Grimes court responded to a motion for reconsideration as to its opinion stating that the holding only stood for the proposition that summary judgment for the Kennedy Krieger Institute was improper based on the specific facts presented in Grimes.

Here, the Court of Special Appeals concluded that Appellant’s Grimes-based proposed jury instruction outlining the alleged special relationship and the resulting special duties of the Appellant was not erroneously excluded at trial for three reasons. First, the Court found that the proposed instruction did not accurately set forth the law because Grimes did not actually provide standards for how these special relationships arise and define the resulting duties. Second, it found that the study at issue was distinct from the non-therapeutic study in Grimes, as there was a treatment component. This made a jury instruction as to special duties owed in non-therapeutic studies irrelevant in White. Third, the Court found that the instruction was inapplicable because the Appellee did not receive the patients’ documented lead levels as part of the relevant study. This eliminated any potential duty to warn that was set forth in the proposed instruction.

The White court also dealt with proposed jury instructions that were not related to Grimes. These involved federal regulations regarding the informed consent process. The Court found that the instructions were unnecessary and properly excluded, as they pertained to non-therapeutic studies. Also, it found that jury instructions on informed consent were not relevant to Appellant’s sole remaining claim that Appellee negligently oversaw the study at issue.

Finally, the White court examined whether judgment in favor of Appellee was proper in relation to Appellant’s misrepresentation claims and his claims asserted under the Consumer Protection Act. It decided that, for the reliance requirement in a misrepresentation claim, the reliance of a parent can be imputed to his or her child when the misrepresentation is designed to elicit action by or on behalf of the child. The Court determined, however, that there was no misrepresentation by Appellee because it had never asserted to Appellant’s mother that it would be providing “lead free” housing as was alleged. As to Appellant’s Consumer Protection Act claim, the Court stated that a non-party to the underlying transaction can still be liable under the Act if its actions so related to the underlying transaction that it would not have occurred absent such actions. Nevertheless, the Court ruled that the Act did not apply to Appellee’s actions, as it only asserted that the property was “lead safe,” and not that it was “lead free.”

4. Providing Notice of a Tort Claim Pursuant to the Local Government Tort Claims Act, Md. Code Jud. Proc. § 5-301, et seq.: Housing Auth. of Baltimore City v. Woodland, 438 Md. 415, 92 A.3d 379 (2014).

The Maryland Court of Appeals held that it was not an abuse of discretion for the trial court to deny summary judgment in favor of the Appellant for Appellee’s failure to strictly comply with the 180 day notice requirement to governmental agencies as set forth in Local Government Tort Claims Act (Md. Code, Cts. & Jud. Proc., § 5-304 (2013)) (the “Act.”)

There are two exceptions to a plaintiff’s notice requirement under the Act: 1) substantial compliance effectuating the purpose of the Act; and 2) good cause for the failure to comply with the Act. In this case, the Court held that there was insufficient evidence of substantial compliance because the notice to the Appellant did not include the threat of legal action or the intention to sue. The Court determined, however, that the trial court did not abuse its discretion in finding that there was good cause for the failure to comply, as the Appellee’s family exhibited due diligence in notifying the Appellant of Appellee’s lead level. This allowed the Appellant to investigate the potential claim, as is intended by the notice requirement. It also found that the Appellant’s subsequent actions of inspecting the subject property and moving the Appellee and her family demonstrated that the Appellant received adequate notice of the potential claim. Thus, the Court found that the Appellee’s family reasonably relied on these actions to determine that additional formal notice was unnecessary.

Unrelated to the notice requirement, the Court also held that evidence of the Appellant’s efforts taken to comply with the Reduction of Lead Risk in Housing Act, Md. Code, Envir., § 6-801 (2011), et seq., after receiving Appellee’s notice, was inadmissible. The Court found that evidence of post-injury conduct was not relevant to Appellee’s negligence claims, as Appellant’s reasonableness was limited to what happened prior to the injury, not after.

Thomas W. Hale is a partner with Leder & Hale PC.  He focusing his practice on toxic torts, construction defect litigation and automotive-related disputes. 

Michael W. Fox is an associate with Leder & Hale PC. He focuses his practice on toxic torts, general litigation defense and construction defect litigation.


1The Court was referencing Dow v. L & R Props., Inc., 144 Md. App. 67, 796 A.2d 139 (2002) (Plaintiff was able to rule out all other possible sources to conclude that the subject property was the only probable source of her lead ingestion).
2The Maryland Court of Appeals recently released an opinion affirming the Maryland Court of Special Appeals’ judgment. Smith v. Rowhouses, Inc., No. 60, Sept. Term 2015, 2016 WL 1170215 (March 25, 2016).
3The Maryland Court of Appeals’ decision in Smith v. Rowhouses, Inc., No. 60, Sept. Term 2015, 2016 WL 1170215 (March 25, 2016) negatively impacts this decision.

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