Colkley v. Levitas, 0070
| Decision Date | 11 August 2016 |
| Docket Number | No. 0070,0070 |
| Parties | DAMON COLKLEY, et al. v. STEWART LEVITAS, et al. |
| Court | Court of Special Appeals of Maryland |
DAMON COLKLEY, et al.
v.
STEWART LEVITAS, et al.
No. 0070
COURT OF SPECIAL APPEALS OF MARYLAND
September Term, 2015
August 11, 2016
UNREPORTED
Wright, Arthur, Zarnoch, Robert A. (Retired, Specially Assigned), JJ.
Opinion by Arthur, J.
* 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.
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This is a lead-paint case. A Baltimore City jury found in the plaintiffs' favor, but awarded them considerably less in damages than they had sought. The plaintiffs moved for a new trial, arguing, among other things, that in voir dire two jurors had given inaccurate answers about their prior litigation experiences and that the trial court erred in admitting certain expert testimony.
The circuit court denied the motion for a new trial. We affirm.
A. The Negligence Action
Ms. Cromer was born in August 1992. Her cousin Mr. Colkley was born in September 1996. From birth until at least 1999, both Ms. Cromer and Mr. Colkley resided at 1317 North Central Avenue. During that time, the Central Avenue property had chipping, peeling, and flaking paint throughout its interior.
Both Ms. Cromer and Mr. Colkley had elevated blood-lead levels when they resided at the Central Avenue property. Ms. Cromer's blood-lead level ranged from 15μg to 35μg of lead per deciliter of blood when she was between the ages of two and four. Mr. Colkley's blood-lead level ranged from 15μg to 27μg of lead per deciliter of blood from when he was nine months old until he was two and a half years old.
On November 30, 2012, Mr. Colkley filed a complaint in the Circuit Court for Baltimore City against Stewart Levitas, State Real Estate, Inc., and several testamentary trusts (collectively, the "Levitas parties"). In an amended complaint, Mr. Colkley, joined by Ms. Cromer, raised additional claims against the Levitas parties. Mr. Colkley and Ms.
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Cromer alleged that they had suffered injuries as a result of their exposure to lead-based paint inside the Central Avenue property, which was owned and operated by the Levitas parties.1
B. The Evidence Produced at Trial
The case proceeded to a jury trial in January 2015. Mr. Colkley and Ms. Cromer established that between 1994 and 1998 their documented blood-lead levels far exceeded the maximum acceptable range.2 Various expert witnesses testified for each side about whether the Levitas parties had caused that lead exposure and to what extent Mr. Colkley and Ms. Cromer had been injured as a result of their lead exposure.
The first of the plaintiffs' expert witnesses was an accredited lead-paint inspector and risk assessor. An inspection of the Central Avenue property in December 2013 showed that the first floor of the property (which was under construction) had deteriorated, lead-based paint on many interior surfaces. Based on that inspection report, deposition transcripts, photographs of the home's interior during the 1990s, and
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Baltimore City Health Department records from that time, the expert concluded that the property contained lead-based paint hazards when Mr. Colkley and Ms. Cromer lived there.
Mr. Colkley and Ms. Cromer called several medical professionals, including an expert in pediatric medicine, an expert in the fields of neurology and epidemiology, and their treating physician. Collectively, those doctors testified that Mr. Colkley and Ms. Cromer had both registered very high levels of lead in the blood when they lived at the Central Avenue property; that the most probable source of their lead exposure was lead-based paint in the house; and that Mr. Colkley and Ms. Cromer sustained permanent brain injuries as a result of their lead exposure. The pediatric expert explained that the brain injuries were evidenced by underperformance in psychological testing, including drops in IQ scores, and that these deficits posed barriers to Mr. Colkley's and Ms. Cromer's academic success. The treating physician reported that both Mr. Colkley and Ms. Cromer had been struggling in school and that Mr. Colkley had special educational needs and had been diagnosed with ADHD.
The court accepted Morris Lasson, M.D., as an expert in the fields of neuropsychology and clinical psychology. Dr. Lasson testified that he had conducted a battery of tests to determine whether Mr. Colkley and Ms. Cromer suffered from brain dysfunction or related cognitive deficits. He concluded that Ms. Cromer suffered from a permanent brain dysfunction, as evidenced by weaknesses in IQ and other areas, and that this brain dysfunction had affected her cognitive development and her academic achievement. Mr. Colkley had performed even more poorly than his cousin on the same
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battery of tests. According to Dr. Lasson, Mr. Colkley suffered from permanent brain dysfunction, he had "difficulty remembering and making decisions," and his dysfunction had "affected his intellectual capacity and cognitive skills[.]"
The plaintiffs' vocational rehabilitation expert testified that both Mr. Colkley and Ms. Cromer suffered from cognitive disabilities and had therefore experienced "barriers to success" in education and in the workplace, which reduced their income potential. The plaintiffs' expert economist concluded that, as a result of their various deficits, Mr. Colkley and Ms. Cromer had suffered net economic losses, including lost future earnings. He calculated that Mr. Colkley had suffered economic losses of $1,398,124, while Ms. Cromer had suffered economic losses of $1,060,197.
The Levitas parties countered with their own battery of experts. The Levitas parties' expert in environmental medicine, epidemiology, and toxicology testified that there was insufficient evidence to demonstrate that the Central Avenue property was the source of Mr. Colkley's and Ms. Cromer's lead exposure. Their expert in environmental risk assessment criticized the methods employed by Mr. Colkley's and Ms. Cromer's risk assessor, pointing to household toys or soil around the home as possible sources of their lead exposure. Their vocational rehabilitation expert opined that neither Mr. Colkley nor Ms. Cromer had sustained "vocational loss," loss of earning capacity (relative to what they would have earned without the lead exposure), or "reduced work life expectancy."
The Levitas parties called Neil Hoffman, M.D., whom the court accepted as an expert in the "field of psychology and the effects of lead poisoning." The Levitas parties established that Dr. Hoffman was a psychologist with experience assessing child patients
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who had been exposed to high levels of lead. Dr. Hoffman ran Mr. Colkley and Ms. Cromer through a series of tests similar to those applied by their expert psychologist, Dr. Lasson. Dr. Hoffman concluded that, despite their documented lead exposure, neither Mr. Colkley nor Ms. Cromer demonstrated evidence of the cognitive deficiencies, loss of skills, or diminished IQ that he had commonly seen in patients who had been exposed to high levels of lead.
The jury returned a verdict in favor of Mr. Colkley and Ms. Cromer on their negligence claims.3 The jury determined that Mr. Colkley was entitled to economic damages of $225,000 (related to his loss of earnings or earning capacity) and to noneconomic damages of $240,000 (including pain, suffering, and humiliation), for a total award of $465,000. The jury determined that Ms. Cromer was entitled to $80,000 in economic damages and $20,000 in noneconomic damages, for a total award of $100,000.
C. The Motion for Partial New Trial as to Damages Only
Within a week after the verdict, Mr. Colkley and Ms. Cromer filed a motion styled as "Plaintiff's Motion for Partial New Trial as to Damages Only and Request for Hearing." Throughout their written motion, Mr. Colkley and Ms. Cromer expressed their belief that the damage award was inadequate because the jury had awarded them only a fraction of the economic damages that their economic expert had calculated.
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Mr. Colkley and Ms. Cromer raised several grounds in support of their request for a new trial on damages only. First and foremost, they asserted that, shortly after the trial, they had learned that two of the jurors had not given accurate answers to voir dire questions about their involvement in other civil cases. Mr. Colkley and Ms. Cromer also asserted that they had been prejudiced by the admission of an expert opinion on causation from the Levitas parties' expert psychologist, Dr. Hoffman, and by other questions and comments from the Levitas parties' attorney during the course of the trial.
While that motion was pending, the clerk of the circuit court entered judgments against the Levitas parties, jointly and severally, in the amounts of $465,000 in favor of Mr. Colkley and $100,000 in favor of Ms. Cromer. Shortly thereafter, the Levitas parties filed a written opposition to the new-trial motion, and Mr. Colkley and Ms. Cromer filed a written reply. In their reply, Mr. Colkley and Ms. Cromer argued that the verdict on damages "was clearly against the weight of the evidence and inequitable and insufficient, whether it was due to the jurors' misconduct and bias or the other issues raised" in their motion.
A few weeks later, the court issued a single-paragraph order denying the motion for new trial without a hearing. Mr. Colkley and Ms. Cromer filed a timely notice of appeal.
Mr. Colkley and Ms. Cromer present three questions for review, which we quote:
1. Did the trial court err or abuse its discretion in failing to grant a hearing to consider and then denying Appellants' Motion for Partial New Trial as to Damages on the grounds of newly discovered
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evidence of jurors' misconduct for non-disclosure during the voir dire process regarding issues of potential bias and lack of impartiality that likely prejudiced...
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