Carter v. Tal Assocs.
| Decision Date | 15 August 2018 |
| Docket Number | No. 00308,00308 |
| Parties | KEVIN CARTER v. TAL ASSOCIATES |
| Court | Court of Special Appeals of Maryland |
Circuit Court for Baltimore City
Case No.: 24-C-13-002175
UNREPORTED
*Krauser, C.J., Meredith, Berger, JJ.
Opinion by Meredith, J.
* Krauser, Peter B., J., now retired, participated in the hearing of this case while an active member of this Court and as its Chief Judge; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and the preparation of this opinion.
This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
Kevin Carter, appellant, sued TAL Associates, appellee, alleging that he had sustained permanent injury caused by his exposure to lead paint while frequently visiting a home located at 103 E. 22nd Street in Baltimore City ("the Subject Property") when he was a young child. In this appeal, appellant contends that the Circuit Court for Baltimore City erroneously granted a motion in limine to preclude the testimony of his expert witness, Dr. Stephen Siebert, and then further erred in granting the appellee's motion for summary judgment.
Appellant presents the following questions for this Court's review:
We answer "yes" to question 1, and conclude that the summary judgment ruling must be reversed. We remand the case for further proceedings.
This is a lead-paint case. On December 6, 2013, appellant filed the amended complaint at issue in this appeal.2 The amended complaint contained twelve counts, and asserted that appellant had sustained damages from lead poisoning he suffered at three rental properties owned by various defendants. Counts I, II, and III related to 103 E. 22nd Street ("the Subject Property") in Baltimore, which was the residence of appellant's aunt. Appellant, who was born on April 19, 1992, alleged that, "during the approximate time period from 1992 through 1994," he regularly visited his aunts and cousins at the Subject Property, which "contained dangerous lead-based paint that was maintained in a deteriorated condition such that it was chipping, flaking and peeling from the walls, woodwork, and windowsills." The amended complaint further alleged that appellant ingested lead-containing paint chips and sustained various neurological injuries. Appellee was the owner of the Subject Property at the relevant time.
In this appeal, as we will explain, we are concerned with whether, and if so, to what extent, the Subject Property was a substantial contributing factor to appellant's lead poisoning; if expert testimony was necessary to establish that fact; and if appellant's designated expert (Dr. Siebert) should have been permitted to testify that it was his opinion that the lead present at the Subject Property was a substantial contributing factor in causing appellant's injuries.
In Count I, appellant asserted a negligence claim against appellee and two individuals alleged to have been general partners of appellee, Kennedy and LeFaivre.3 Count II was a claim for unfair and deceptive trade practices in violation of Maryland's Consumer Protection Act.4 Count III asserted that appellant's ingestion of lead at the Subject Property constituted a battery.
Counts IV, V, and VI made the same allegations regarding a property at 1031 N. Carrollton Avenue, which allegedly was a lead-containing property visited by appellant between 1994 and 1998.5 Appellant alleged he was exposed to, and ingested, lead at this property, as a result of which he sustained damages. As in the counts pertaining to theSubject Property, the three counts pertaining to 1031 N. Carrollton Avenue sounded in negligence, the Consumer Protection Act, and battery.
Counts VII through XII all pertained to a property at 1506 N. Mount Street, which allegedly was a property visited by appellant between 1994 and 1996. Counts VII, VIII, and IX were against one set of owners of 1506 N. Mount Street, the Harans, and sounded in negligence (Count VII), the Consumer Protection Act (Count VIII), and battery (Count IX). Counts X, XI, and XII also pertained to 1506 N. Mount Street, and asserted the same three theories against a different set of owners, the Dackmans.6
Appellant designated Dr. Stephen Siebert as an expert witness who was expected to opine on the sources of appellant's lead exposure and whether such exposure was a substantial factor contributing to the cause of appellant's injuries. Dr. Siebert is a board-certified psychiatrist with a master's degree in public health from the Bloomberg School of Public Health at Johns Hopkins University. In appellant's designation of Dr. Siebert, appellant indicated that he expected Dr. Siebert to testify about the extent of appellant's damages, as well as "the source of [appellant's] exposure to lead on the Defendants' properties." Dr. Siebert reviewed records, including environmental records pertaining to the subject properties, appellant's school and medical records, and evaluations of appellant conducted by two neuropsychologists. Dr. Siebert also reviewed anemployability assessment of appellant conducted by appellant's designated vocational-rehabilitation expert. And Dr. Siebert personally interviewed appellant, which included having appellant attempt to complete a number of tests.
Following his review and evaluation, Dr. Siebert furnished a report that opined that appellant was cognitively impaired, which included "attentional problems and learning difficulties," and that appellant's "diagnoses of cognitive disorder, attention deficit disorder, and learning disorder represent permanent injuries that have occurred as the result of childhood lead poisoning." Dr. Siebert identified four properties (including the Subject Property) as sources of the lead that caused appellant's injuries. Only two of the source properties were targeted in the amended complaint.
Dr. Siebert identified 1719 North Carey Street as a source of appellant's lead poisoning, but the property at 1719 North Carey Street was not a target of the amended complaint. Dr. Siebert noted in his report that appellant "was exposed to lead hazards while living at 1719 North Carey Street from 1/93-12/94," supporting that conclusion by pointing to facts that indicated: a February 1993 inspection identified "positive areas [of lead paint] on the woodwork and doors"; "[a]nother child was noted to have an elevated blood lead level of 28 while living at this property"; an inspection by the Baltimore City Health Department on September 28, 1993, noted "loose paint in the hallway": and an inspection with a device called an XK-3 on October 13, 1993, "found lead-based paint hazards at 63 locations that were not abated until 5/96." In addition, appellant had an elevated blood-lead level of 13 μg/dl in February 1993 that rose to 39.5 μg/dl by July 6,1994. Appellant was hospitalized for 33 days for chelation therapy from July 6, 1994, to August 4, 1994. He returned to 1719 North Carey Street following his discharge from inpatient chelation therapy and his lead levels continued to rise: "The rising lead from 29 to 32 μg/dl (9/21/94-11/16/94) is evidence that [appellant] had additional exposure to lead hazards before he moved out of the home in 12/94." While appellant lived at 1719 North Carey Street, he regularly visited other properties named in the amended complaint.
Dr. Siebert reported that appellant also "was exposed to lead hazards while living at 1506 North Mount Street from 12/94-10/96," pointing to the fact that the house on Mount Street was an old house, "constructed in 1900," with chipping paint, according to the deposition testimony of appellant's mother. Dr. Siebert noted in his report that appellant had rising blood lead levels while living in the Mount Street property, and that this was evidence that he "had additional exposure to lead hazards before he moved out of the home in 10/96."
Dr. Siebert identified two additional sources of appellant's lead exposure, both of which were residences of family members that appellant was said to have frequently visited during the relevant time period. The first residence was appellant's grandmother's house at 2411 Francis Street, about which Dr. Siebert wrote: it "was reportedly inspected in 1989 or 1990 and lead hazards were found"; it had been built in 1920; and appellant's mother had said it had chipping and flaking paint, both inside and outside. But 2411 Francis Street was not a target of the amended complaint.
Finally, Dr. Siebert identified the Subject Property as a source of appellant's lead exposure. The Subject Property was the home of appellant's aunt, and a place that, according to his mother's deposition testimony, appellant and his brothers frequently visited. According to testimony given at appellant's mother's deposition, as highlighted in Dr. Siebert's report, the house on the Subject Property was "an old house with chipping paint around the baseboards, windowsill, and [ ] door." An inspection conducted on January 23, 1990, revealed the presence of lead paint, and an inspection by the Baltimore City Health Department on April 27, 1994, "found lead-based paint hazards at 41 locations."
Dr. Siebert opined in his report that "[appellant's] lead exposure at 1719 North Carey Street, 1506 North Mount Street,...
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