Pittman v. Atlantic Realty

• Decision Date: 12 July 2000
• Docket Number: No. 103,103
• Citation: 754 A.2d 1030,359 Md. 513
• Parties: Terran PITTMAN, a Minor, etc., et al. v. ATLANTIC REALTY COMPANY et al.
• Court: Maryland Court of Appeals

754 A.2d 1030

359 Md. 513

Terran PITTMAN, a Minor, etc., et al. v. ATLANTIC REALTY COMPANY et al.

No. 103, Sept. Term, 1999.

Court of Appeals of Maryland.

July 12, 2000.

Saul E. Kerpelman (Saul E. Kerpelman & Associates, on brief), Baltimore, for petitioners.

Thomas J. Cullen, Jr. (Heather Doherty Clark of Goodell, DeVries, Leech & Gray, LLP, on brief), Baltimore, for respondents.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL and HARRELL, JJ RODOWSKY, Judge.

The issue presented in this lead paint case is whether a trial court has discretion to strike affidavits, submitted in response to a motion for summary judgment, after the deadline for discovery under the circuit court's scheduling order has passed, when the factual content of those affidavits varies from what the nonmoving party previously had furnished in discovery. The Court of Special Appeals in Pittman v. Atlantic Realty Co., 127 Md.App. 255, 732 A.2d 912 (1999), applied the rule found in a number of federal court decisions that allows a trial court in some circumstances to disregard as a "sham" an affidavit in opposition to a motion for summary judgment. As explained below, we do not adopt the sham affidavit rule. Accordingly, we reverse.

I

Terran Pittman (Terran) was born December 18, 1990. From birth until 1996 Terran lived with his mother, Shari Hall (Hall), and his grandmother, Gladys Hall, principally at 1805 Harlem Avenue in Baltimore City. In November 1992 Terran first tested positive for elevated lead levels in his blood. Hall testified on deposition that the Harlem Avenue property contained chipping paint. That property was owned by the Housing Authority of Baltimore City (HABC), a co-defendant below which was voluntarily dismissed.

Sometime in 1992, due to a disagreement with her mother, Hall and Terran left the Harlem Avenue premises and stayed nearby with a family friend, Rita Porter (Porter), at 1908 Lauretta Avenue in Baltimore City (the subject premises). At some undetermined time in 1993, Hall and Terran returned to Harlem Avenue and resided again with Gladys Hall. Both before and after residing with Porter, Hall and Terran visited Porter at the subject premises. These premises were owned by Atlantic Realty Company and managed by Northern Brokerage Co., defendants below and respondents in this Court (Respondents).

A lead paint violation notice was issued to Atlantic Realty Company for the subject premises on August 12, 1993. Hall testified on deposition that the subject premises contained paint chips and that she frequently saw Terran put them in his mouth. Terran continued to test positive for moderate to high lead levels between December 1993 and November 1995. He had his first normal-range reading in January 1996.

In June 1994 Terran and his mother (Petitioners) instituted the present action, joining the Respondents and alleging that Terran had been injured due to exposure to lead in the paint at the subject premises. Petitioners prayed for a jury trial. In March 1995 the Circuit Court for Baltimore City entered a scheduling order requiring, inter alia, that all discovery be completed by March 22, 1996, that "[a]ny supplementation of discovery or continuation of deposition shall be concluded no later than" March 18, 1998, and that "[a]ll depositions of experts shall be completed no later than March 18, 1998."¹ During the discovery period, Respondents attempted to learn how long Hall and Terran resided at the subject premises and how often they visited the subject premises both before and after residing there. The variance between the information furnished by Petitioners in discovery and the affidavits submitted in opposition to Respondents' motion for summary judgment concerns the amount of time that Terran spent at the subject premises.

II

A. Answers to Interrogatories

In reply to Respondents' interrogatory seeking the addresses and dates where Hall and Terran resided, she answered: "1908 Lauretta Avenue 1992-1993." The periods for Hall's previous and subsequent residence at Harlem Avenue, with her mother, were listed respectively as 1990-1992 and 1993-1996. In a separate answer, Hall stated that she "moved into [the subject premises] with ... Porter approximately spring/summer of 1992." In reply to an interrogatory concerning day care, propounded by HABC, Hall responded that Terran "was cared for at [the subject premises] by Rita Porter, during the hours of 8:00 a.m. through 4:00 p.m., Monday through Friday." The period during which this arrangement was in effect was not stated.

B. Hall's Deposition

At her deposition taken on February 27, 1997, Hall's answers concerning how long she and Terran resided with Porter at the subject premises, and how often she visited there with Terran, were vague, confused, and inconsistent.² In brief, Hall testified that she and Terran lived at the subject premises for the following periods, defined by different measures of time, and presented here in the order of her testimony: "[a]bout a month"; "[a]bout two weeks. Two months I mean"; "[f]or about two months"; for a time "in the fall, probably"; for a time beginning when her son "was two ... [o]r getting ready to turn two. It was somewhere around that area"; for a time ending "close to a holiday because I had to buy [Terran] an outfit.... It might have been Easter or the Fourth of July. I'm trying to think. Because it was spring when I was around there. Easter is in the spring, right? Right"; for a time beginning "before [Terran's] birthday [in December 1992]"; for a time comprising "January, February [1993], because it wasn't too bad outside"; "[a]bout two months"; "about two months, because I know how many times I gave [Porter] some money for rent money." Finally, in response to the question whether "two months is the maximum that you lived with [Porter]," Hall answered, "Right, yes." "[T]wo months" is Hall's predominant and, arguably, final answer. One also can infer from this testimony, however, that she resided at the subject premises from December 1992, when her son turned two years old, until Easter 1993, or approximately four months.³ With respect to visiting the subject premises from the time Terran was born until he was four years old, as contrasted with residing there, Hall testified as follows: "here and there, [Porter] baby-s[a]t [Terran]"; "[Porter] lived right around the corner from us, so I would stop in there quite often.... [P]robably like twice out of a week or something like that, out of a month, who knows. I'd just drop in, you know." Hall said that Porter never babysat Terran "on a regular basis." In addition, Hall testified that, when she moved back to Harlem Avenue, she and Terran visited the subject premises "[a]bout three or four times a week"; "[w]henever [Gladys Hall] had something to drink ... [which was] constantly"; at any time of day, whether "[e]vening, mornings, didn't matter"; for "two hours, three hours, maybe an hour [at a time]"; that she "never stopped going to see [Porter, just] because I moved back with my mom. I still go to see her."

In sum, with respect to Terran's exposure to lead paint while visiting at Porter's, the evidence most favorable to the Petitioners is that he visited the subject premises twice a week before residing there and three to four times a week for up to three hours at a time after residing there.

C. Deposition of Dr. Klein

Howard Klein, M.D. (Dr. Klein), Petitioners' expert on the causal relation between Terran's exposure to lead paint and lead paint poisoning, was deposed by the defendants.⁴ Initially, Petitioners' counsel referred Dr. Klein to Hall's answers to interrogatories, including the answer that Hall and Terran resided at the subject premises between 1992 and 1993, that they moved there in the spring/summer of 1992, and that Terran was cared for by Porter at the subject premises "during the hours of 8:00 a.m. through 4:00 p.m., Monday through Friday" with dates unspecified. When asked whether, based on this information, he had an opinion "within a reasonable degree of medical probability, as to whether or not Terran Pittman was exposed to lead-based paint at [the subject premises]," Dr. Klein testified that "if that information is correct, he was [exposed]."

Later, Respondents' counsel redirected Dr. Klein's attention to both Hall's deposition and answers to interrogatories, asking for the basis of his opinion that "a major contributor to ... this young boy's problems, [was] from lead exposure at [the subject premises]." Dr. Klein replied:

"Well, one of the problems is that although I have a Baltimore City Health Department inspection record of [the subject premises] and we know that he continued to have elevated levels well past `93, it's basically the answer to interrogatories that talks about the child being there. I mean I don't have any other, as I mentioned to you in previous questioning, I don't have any other source for that information."

When defense counsel, assuming two months to be the longest period of residence stated in Hall's deposition, asked:

"[Terran's] there for two months, that's the worst case scenario, according to her answers, two months. Do you really believe that you can say, to a reasonable degree of medical certainty, that his problems, a major contributor of his problems, is the lead at [the subject premises], where he could have stayed approximately two months?"

Dr. Klein replied: "It's unlikely." Finally, redirecting Dr. Klein to Hall's interrogatory answers, defense counsel initiated the following exchange:

"Q ... [T]he answer I'm reading to [Dr. Klein] is that, `Other than 1805 Harlem Avenue, the minor plaintiff was cared for at [the subject premises] by Rita Porter during the hours of 8 AM through 4 PM, Monday through Friday.' Does that have any significance to you without some sort of date or time frame or context? Was that one week? Was it in 1995? Do you have any idea when

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