Brown v. Daniel Realty

• Decision Date: 22 July 2009
• Docket Number: No. 77, September Term, 2008.,77, September Term, 2008.
• Citation: 409 Md. 565,976 A.2d 300
• Parties: Lanay BROWN v. The DANIEL REALTY CO., et al.
• Court: Court of Special Appeals of Maryland

976 A.2d 300

409 Md. 565

Lanay BROWN v. The DANIEL REALTY CO., et al.

No. 77, September Term, 2008.

Court of Appeals of Maryland.

July 22, 2009.

Brian S. Brown (Saul E. Kerpelman & Associates, P.A. of Baltimore), on brief, for petitioner.

Thomas J. Cullen (Michele R. Kendus and Derek M. Stikeleather of Goodell, DeVries, Leech & Dann, LLP of Baltimore), on brief, for petitioner.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, WILNER, ALAN M. (Retired, Specially Assigned), JJ.

HARRELL, J.

Facts

Lanay Brown ("Petitioner" or "Lanay"),¹ was born on 17 December 1990. Since her birth, her maternal aunt, Catherlina Queen, raised her. At some time early in Lanay's life, she and her aunt moved into a property on Reisterstown Road in Baltimore City ("the Subject Property"),² where they resided until 1994. While Lanay and Ms. Queen lived there, the Subject Property was owned by the Daniel Realty Company and allegedly managed by, among others, Daniel and Wendy Perlberg (collectively "Respondents"). In October 1995, Daniel Realty sold the Subject Property; thereafter, no Respondent retained an interest in it. They had no knowledge of what, if any, repairs were performed on the Subject Property after 1995.

At some point after Lanay and Ms. Queen moved out of the Subject Property, Ms. Queen became suspicious that Lanay may have been exposed to lead by ingesting peeling and flaking lead-based paint while residing at the Subject Property. Accordingly, she sought the advice of counsel. In 1999, counsel for Lanay and Ms. Queen hired ARC Environmental ("ARC"), an environmental consulting firm, to test the rooms and structures of the Subject Property for the presence of lead in paint. ARC's tests revealed the presence of lead-based paint. Three years later, when Lanay was 11 years old, Ms. Queen, as her next friend, sued Respondents, alleging that Lanay was exposed to peeling and flaking lead-based paint at the Subject Property which caused her to suffer permanent brain damage. Ms. Queen, in her own right, also sued Respondents, seeking damages as a result of medical expenses that she incurred caring for Lanay, as well as for severe emotional distress.

Counsel for Lanay and Ms. Queen conducted a de bene esse deposition of ARC's President, Shannon Cavaliere, an environmental expert. He identified the report that ARC prepared in May 1999 as the result of its testing the Subject Property ("the Un-Redacted ARC Report"). The Un-Redacted ARC Report included a "Lead-Based Paint Testing Data Sheet" summarizing the findings of the technicians who conducted the testing. The data sheet included descriptions of the tested rooms and structures, the levels of lead (if any) detected, and the condition of the paint at the tested locations. With the exception of two of the 38 locations tested at the Subject Property, the Un-Redacted ARC Report described the conditions of the paint as "intact," meaning that none of the paint was chipping, peeling, flaking, or otherwise separating from the substrate. The two locations where the paint was not "intact" were described as "fair," defined as meaning that 10% or less of the surface was cracked or worn.

Mr. Cavaliere explained that his technicians used an XRF³ machine, capable of detecting lead below the top layer of paint, which led him to conclude that two-thirds of the tested locations in the Subject Property contained lead-based paint. On cross-examination, he conceded that an XRF machine does not ascertain whether the detected lead is in the outermost layer of paint, the lowest layer of paint, or anywhere specifically in between. Thus, a structure or surface painted at one time with lead-based paint, but subsequently painted over one or more times with unleaded paint, could yield a positive reading by an XRF machine. Mr. Cavaliere acknowledged that other testing devices (not used here) are capable of determining how close the detected lead is to the surface of a tested location.

The jury trial began on 19 June 2006 in the Circuit Court for Baltimore City and concluded nine days later. Ms. Queen testified during the plaintiffs' case-in-chief that, when she and Lanay first moved into the Subject Property, the paint was in good condition; however, five or six months later, the paint began peeling and chipping in several locations. On cross-examination, Respondents impeached Ms. Queen with her pre-trial deposition testimony. In doing so, they inferentially undermined her memory of the Subject Property by pointing out inconsistencies regarding who lived at the Subject Property with her and Lanay when the alleged exposure occurred.

Lanay and Ms. Queen did not offer the de bene esse deposition (or any part thereof) of Mr. Cavaliere in their case-in-chief; instead, they called Dr. Jerome Paulson, an expert in childhood lead poisoning. Dr. Paulson is a pediatrician and a professor of environmental and occupational health at the School of Public Health of George Washington University. Based on the results of ARC's testing, he opined that Lanay was exposed to lead-based paint at the Subject Property. Referring to the May 1999 testing by ARC, he commented, "we have documentation from an inspection done of the home at that address that there was lead paint on the surface, on multiple surfaces at that address. Lead-based paint was found at over 20 sites at that address when the home was inspected in May of 1999." Counsel for Lanay and Ms. Queen then approached Dr. Paulson with a copy of the 1999 ARC report; however, in this copy, the description of the condition of the paint at the tested locations on the data sheet was redacted ("the Redacted Version").⁴ The following exchange occurred:

[Plaintiffs' counsel:] Dr. Paulson, I'm showing you what has been marked as Plaintiffs' Exhibit Number 1 for identification. Can you tell me that's a fair and accurate yet redacted copy of the report that you relied upon to determine that there was lead paint at [the Subject Property]?

[Defendants' counsel]: Objection. He said redacted copy? I don't want I don't want—to speak out here but—

....

My problem is, your Honor, he gave his expert witness materials to rely upon, which he did and I'm entitled to see that in its form that he received it. Not in a redacted form—

[Trial Judge]: All right. Wait. So what you are telling me is that you were—Dr. Paulson has now seen the un-redacted version of the exhibit?

[Plaintiffs' counsel]: That's true.

[Trial Judge]: Why did you give him a redacted version?

[Plaintiffs' counsel]: Because the portion that we redacted pertains to the condition of the property, the actual physical condition of the paint itself in 1999, five years—

....

... [I]t pertains to the condition of the property, the paint. Whether the paint in 1999, was chipping, peeling, or flaking.

[Trial Judge]: But why would you show him a document with some information omitted?

[Plaintiffs' counsel]: Because that's the point, your Honor, why it's redacted. The condition of the paint in 1999—

[Trial Judge]: You did not want him to consider that?

[Plaintiffs' counsel]: It has nothing to do with the condition of the paint in 1990 when Lanay was living there.

[Trial Judge]: Okay. And, so, your problem is[?]

....

[Defendants' counsel]: First of all, this witness has seen an un-Redacted copy—

[Trial Judge]: And when was that?

[Defendants' counsel]:—that was in his file when he made his opinion in this case.

[Trial Judge]: So during deposition he referred to an un-redacted copy?

[Defendants' counsel]: It was in his records, absolutely. So that's an incorrect statement. I'm entitled to show the jury what he saw to rely on. Now, accurate. He saw the un-redacted version—

[Trial Judge]: Okay. I'm going to let [Plaintiffs' counsel] hand [Dr. Paulson] a redacted copy. When you get him on cross you can show him an un-redacted copy.

[Defendants' counsel]: Okay.

[Trial Judge]: All right [Plaintiffs' counsel], you may proceed.

....

[Plaintiffs' counsel]: Now [Dr. Paulson], is Exhibit 1 the redacted version of the report that you used to determine that there was lead based paint at [the Subject Property]?

[Dr. Paulson]: Yes.

[Plaintiffs' counsel]: What was the date of that report again, Dr. Paulson?

[Dr. Paulson]: May 26,1999.

[Plaintiffs' counsel]: Let me ask you this question. Can you explain to the members of the jury how you can use a test for lead in 1999 to determine whether Lanay was exposed back in 1990 to 1994?

[Dr. Paulson]: The lead-based paint that's placed on a wall or a floor, or a door jam does not deteriorate over time. So once it stays there unless it's physically removed it is, it's there. So that's one point.

Also, since 1978 it has been illegal to use lead-based paint for painting interior surfaces in homes. So if one were to assume that there was no lead-based paint at [the Subject Property] at the time Lanay Brown lived there and that there is lead-based paint or there was lead-based paint on May 26, 1999, one would have to assume that the house, the interior of the house had been painted with lead-based paint between the time she moved out and the time that this test was done. Given the age of the home it is very likely that the home was painted with lead-based paint when it was built after it was built and that that's the origin of lead-based paint. It would make no sense that between 1994 when the family moved out of that address in 1999 someone would have gone in and something illegal, that is paint, use lead-based paint in a house.

Dr. Paulson concluded that, in his expert opinion, this exposure caused Lanay to suffer lead poisoning. Following the close of plaintiffs' case-in-chief, the trial judge granted Respondents' unopposed motion for judgment as to Ms. Queen's individual claims.⁵

In their defense, Respondents adduced evidence that, before moving to the Subject Property, Lanay lived at another house in Baltimore City, insinuating that, if she was...