City Homes, Inc. v. Hazelwood, 2109

• Decision Date: 22 March 2013
• Docket Number: No. 2109,Sept. Term, 2011.,2109
• Citation: 63 A.3d 713,210 Md.App. 615
• Parties: CITY HOMES, INC. v. Brittany HAZELWOOD.
• Court: Court of Special Appeals of Maryland

210 Md.App. 615

63 A.3d 713

CITY HOMES, INC.

v.Brittany HAZELWOOD.

No. 2109, Sept. Term, 2011.

Court of Special Appeals of Maryland.

March 22, 2013.

William C. Parler, Jr., (Kelly A. Grafton, J. Michael Buhite, Parler & Wobber, LLP, on the brief), Towson, MD, for Appellant.

Bruce H. Powell, (Scott E. Nevin, George E. Swegman, Law Office of Peter T. Nicholl, John Amato, IV, Goodman, Meagher & Enoch, LLP, on the brief), Baltimore, MD, for Appellee.

Panel: HOTTEN, WATTS, and JAMES R. EYLER (Retired, Specially Assigned), JJ.

WATTS, J.

This case involves an action brought by Brittany Hazelwood, appellee, against City Homes, Inc., appellant, for damages allegedly caused by her exposure to lead paint at 4 North Stockton Street, Baltimore, Maryland (“4 North Stockton”), a residence owned and operated by appellant. Following an eight-day trial, a jury sitting in the Circuit Court for Baltimore City returned a verdict in favor of appellee for a total of $5,100,000, including $900,000 in economic damages for lost earning capacity and $4,200,000 in non-economic damages. On post-trial motion, the circuit court reduced the non-economic damages award to $350,000 in accordance with the cap on non-economic damages, thereby reducing the total award to $1,250,000. After the denial of other post-trial motions and imposition of sanctions in the amount of $10,135.45 against appellant and in the amount of $10,000 against appellant's counsel, William C. Parler, Jr., appellant noted this appeal.

On appeal, appellant presents nine issues, which we consolidate and quote:

I. Whether the [circuit] court committed legal error or abused its discretion when it[: (1) ] erroneously denied [a]ppellant's motions to exclude the testimony of Dr. Eric Sundel despite Dr. Sundel's complete lack of experience in treating patients with lead exposure, diagnosing injuries based on lead exposure, or determining the source of an alleged exposure ... [; and (2) ] disregarded, in violation of Maryland Rule 5–702, the fact that Dr. Sundel had no factual basis upon which to base his opinions?

II. Whether the [circuit] court committed legal error or abused its discretion in denying [a]ppellant's motions to exclude Christopher White as an expert regarding the testing conducted by A[rc] Environmental given that Mr. White was not present for the testing, had limited experience with the equipment used, and was unable to operate the equipment when challenged?

III. Whether the [circuit] court committed legal error or abused its discretion when it allowed the reports of A[rc] Environmental into evidence despite the known flaws regarding the equipment used?

IV. Whether the [circuit] court committed legal error or abused its discretion when it denied [a]ppellant's motion to amend or alter the jury verdict regarding economic damages despite the fact that there was no legal or factual basis for the award and the award was not reduced to present value as required by Maryland law?

V. Whether the [circuit] court committed legal error or abused its discretion when it denied [a]ppellant's motion to amend or alter the jury verdict and allowed the verdict to exceed the liability insurance amount carried by [a]ppellant, a charitable organization with immunity under Maryland law?

VI. Whether the [circuit] court committed legal error or abused its discretion by violating [a]ppellant's rights under the Fourteenth Amendment of the United States Constitution and Article 24 of the Maryland Declaration of Rights when it ordered post-trial sanctions against [a]ppellant in the amount of $10,135.45?

VII. Whether the [circuit] court committed legal error or abused its discretion when it ordered sanctions against [a]ppellant's counsel in the amount of $10,000 for failure to produce documents responsive to discovery requests in violation of [a]ppellant's counsel's due process rights under the Fourteenth Amendment of the United States Constitution and Article 24 of the Maryland Declaration of Rights?

VIII. Whether the [circuit] court committed legal error or abused its discretion when it quashed [a]ppellant's subpoena to obtain the records of the jury commissioner and denied [a]ppellant's motion for new trial challenging the admittance of an unqualified and biased juror onto the panel?

For the reasons set forth below, we answer questions I, VI, and VII in the affirmative. In light of our answer to question I, we do not address questions III, IV, V, or VIII, and briefly address question II for guidance. We vacate the circuit court's imposition of sanctions against appellant in the amount of $10,135.45 and against William C. Parler, Jr. in the amount of $10,000. We, therefore, reverse and remand the case for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

Appellee was born November 23, 1990. Appellee resided at 4 North Stockton from July 1993 through 2000, where she was allegedly exposed to lead paint. Having purchased the property on December 30, 1986, appellant owned 4 North Stockton during the period in which appellee resided at the property. Appellee's blood-lead levels were tested and reported on seven separate occasions—on October 8, 1992, April 8, 1993, July 16, 1993, August 16, 1994, April 18, 1995, July 17, 1995, and November 3, 1998.¹

(1) Pretrial Proceedings

(a) Complaint

On May 28, 2009, appellee filed a Complaint and Demand for Jury Trial in the Circuit Court for Baltimore City against appellant and Barry Mankowitz, the person who “managed, maintained, operated and controlled the property at 4 N. Stockton Street.” In the complaint, appellee alleged: (1) Negligence against appellant; (2) Unfair Trade Practices against appellant; (3) Negligence against Mankowitz; and (4) Unfair Trade Practices against Mankowitz.

(b) Amended Complaint

On August 6, 2010, appellee filed an Amended Complaint and Demand for Jury Trial against appellant, Mankowitz, Helen H. Hunt, and the Estate of Helen H. Hunt. In the amended complaint, appellee alleged that appellant owned property located at both 4 North Stockton and 6 North Stockton Street (“6 North Stockton”), and that Mankowitz managed both properties. Appellee alleged that Hunt owned and managed property located at 1606 Lemmon Street (“1606 Lemmon”).

As to appellee's residency history, appellee alleged: from 1990 to 2000, she resided with her parents at 4 North Stockton;² from 1990 to 1998, she visited 6 North Stockton, where her grandfather leased property; and from 1990 to 1998, she resided at 1606 Lemmon.³ Appellee alleged that, at each of the three properties, she was exposed to “chipping, peeling, and flaking lead-based paint powder and dust[.]” In the amended complaint, appellee alleged: (1) Negligence against appellant concerning 4 North Stockton; (2) Unfair Trade Practices against appellant concerning 4 North Stockton; (3) Negligence against Mankowitz concerning 4 North Stockton; (4) Unfair Trade Practices against Mankowitz concerning 4 North Stockton; (5) Negligence against appellant concerning 6 North Stockton; (6) Unfair Trade Practices against appellant concerning 6 North Stockton; (7) Negligence against Mankowitz concerning 6 North Stockton; (8) Unfair Trade Practices against Mankowitz concerning 6 North Stockton; (9) Negligence against Hunt concerning 1606 Lemmon; (10) Unfair Trade Practices against Hunt concerning 1606 Lemmon; (11) Negligence against the Estate of Helen H. Hunt concerning 1606 Lemmon; and (12) Unfair Trade Practices against the Estate of Helen H. Hunt concerning 1606 Lemmon.⁴

(c) Designation of Experts: Dr. Eric Sundel and Christopher J. White

On April 12, 2010, appellee's counsel sent a letter to appellant's counsel designating, inter alia, Dr. Eric Sundel and Christopher J. White as expert witnesses. As to Dr. Sundel, appellee stated:

Dr. Sundel is a pediatrician who will review records and reports and is expected to render an opinion that the deficits of [appellee] are related to [her] exposure to lead paint at the [subject] properties, and that [s]he has permanent brain damage and a loss of Intelligence Quotient points as a result of that lead exposure. Dr. Sundel's opinions are based upon his review of the medical, environmental and school records, Answers to Interrogatories, Deposition testimony, photographs and any other documents related to this case and also upon the numerous medical studies that link cognitive deficiencies and IQ loss to early childhood exposure. Further, Dr. Sundel relies upon his medical education, training and experience in reaching his conclusions.

As to White, appellee stated:

Christopher J. White, A[rc] Environmental Inc., Program Manager.... Based upon review of the testing of the subject property, Mr. White will render an opinion regarding the presence of lead-based paint on the interior and exterior of the property at the time of testing, as well as the time [appellee] lived at the subject property. Mr. White's conclusions will be based upon the Federal ban on the use of lead based paint in residential housing in 1978, the Baltimore City Housing Code, the age of the dwelling, the condition of the dwelling at the time of testing the results of the testing performed, his education, training and experience.

(d) Motion to Strike Arc Environmental Report

On October 26, 2010, appellant filed a Motion to Strike Arc Environmental Report, alleging that appellee failed to provide notice of lead testing occurring at 4 North Stockton on August 19, 2010, in violation of a scheduling order issued by the circuit court. Appellant contended that it was deprived of the opportunity to attend the lead testing, and thereby “not afforded an opportunity to ascertain what equipment was used for the testing, ... [and] to confirm that testing protocols for the lead samples were adhered to[.]”

Appellant requested that the circuit court strike a report prepared by White dated September 2, 2010, for 4 North Stockton titled “Lead-based Paint Survey Report ...