Dackman v. Robinson
| Decision Date | 24 June 2019 |
| Docket Number | No. 60, Sept. Term, 2018,60, Sept. Term, 2018 |
| Citation | 211 A.3d 307,464 Md. 189 |
| Parties | Elliot DACKMAN, et al. v. Daquantay ROBINSON, et al. |
| Court | Court of Special Appeals of Maryland |
Argued by Frank F. Daily (Sean P. Edwards and Lisa M. Morgan, The Law Offices of Frank F. Daily, P.A., Hunt Valley, MD), on brief, for Petitioners.
Argued by Bruce H. Powell (Law Offices of Peter T. Nicholl, Baltimore, MD) and Argued by John Amato, IV (Goodman, Meagher & Enoch, LLP, Baltimore, MD), on brief, for Respondents.
Argued before: Barbera, C.J., Greene McDonald, Watts, Hotten, Getty, Sally D. Adkins (Senior Judge, Specially Assigned), JJ.
In this lead-based paint case, we are once again asked to address issues that are related to the admissibility of expert testimony. Unlike many of the lead-based paint cases that have come before this Court, this case does not involve an issue as to the reasonable probable source of lead exposure or medical causation. Instead, we decide whether the trial court abused its discretion in admitting expert testimony from two of the plaintiff's experts—a vocational rehabilitation expert and an economic expert. The vocational rehabilitation expert opined that, with the cognitive deficits caused by exposure to lead, the plaintiff would not have the academic and intellectual competency of a high school graduate, would work in unskilled or low-level semi-skilled jobs, and would have the earning capacity of someone with less than a twelfth-grade education. The vocational rehabilitation expert also opined that, absent cognitive deficits caused by exposure to lead, the plaintiff would have been able to graduate high school and attend a vocational technical school or a community college "where he would learn some type of ... hands-on work." Relying on the vocational rehabilitation expert's conclusions about the plaintiff's vocational probabilities with and without deficits and general statistical data, the economic expert opined that the plaintiff's loss of earning capacity over his lifetime—the difference between his earning capacity absent deficits (i.e. , an individual with some college education) and with deficits (i.e. , an individual who was "a below[-]average high school graduate")—was $1,073,042.
We decide whether the trial court abused its discretion in admitting the vocational rehabilitation expert's testimony and, in turn, the economic expert's testimony. Specifically, we decide whether there was a sufficient factual basis to support the vocational rehabilitation expert's opinion as to the plaintiff's vocational and educational attainment absent impairment. On a related note, we consider whether Lewin Realty III, Inc. v. Brooks, 138 Md. App. 244, 771 A.2d 446 (2001), aff'd, 378 Md. 70, 835 A.2d 616 (2003), and Sugarman v. Liles, 460 Md. 396, 190 A.3d 344 (2018) require an expert in a lead-based paint case to utilize statistical data or studies to support an opinion as to a plaintiff's vocational and educational attainment absent deficits. Lastly, we decide whether the trial court abused its discretion in denying a motion in limine to exclude the economic expert's testimony and report as untimely, and in admitting the economic expert's testimony.
We hold that the vocational rehabilitation expert's testimony, and, specifically, her opinion as to the plaintiff's vocational and educational attainment absent cognitive deficits, was supported by a sufficient factual basis, as required by Maryland Rule 5-702(3). Moreover, we determine that Lewin Realty and Sugarman do not establish a requirement that an expert in a lead-based paint case must utilize statistical data or specific studies to support an opinion as to a plaintiff's vocational and educational attainment absent deficits. A sufficient factual basis supporting an opinion as to a plaintiff's vocational and educational attainment absent deficits may be grounded in the expert's detailed and individualized assessment of information about the plaintiff, coupled with the expert's experience and training, as was the circumstance here. As such, we conclude that the trial court did not abuse its discretion in admitting the vocational rehabilitation expert's testimony and, in turn, admitting the economic expert's testimony. Finally, we hold that the trial court did not abuse its discretion in denying a motion in limine to exclude the economic expert's testimony and report as untimely, and in admitting the economic expert's testimony at trial.
Daquantay Robinson ("Respondent")1 alleged that he suffered lead-based paint poisoning while residing at a row house located at 1642 East 25th Street in Baltimore City ("the Property"). Although no issue concerning lead hazards at the Property or Respondent's exposure to lead at the Property is before us, for completeness, we include a brief summary of Respondent's residential and medical history.
On February 11, 1997, Respondent was born. Shortly before his birth, Respondent's mother, Tiesha Robinson, grandmother, Sandra Moses, and three other family members began residing in the Property, which, at all relevant times, was owned and managed by Elliot Dackman, the Estate of Sandra Dackman, and the Estate of Bernard Dackman (together, "Petitioners").2 From his birth until July 2001, Respondent resided at the Property. For approximately the first eighteen months of his life, Respondent did not spend any significant amount of time at any other property.
In an affidavit that was filed as an exhibit to Respondent's memorandum in support of an opposition to a motion for summary judgment, Moses averred that, when the family first moved in, there was chipping, peeling, and flaking paint "all over the place[.]" Moses also averred that there was chipping, flaking, and peeling paint on the exterior of the Property—specifically, on the door, posts, and ceiling of the front porch. Similarly, at a deposition, Robinson testified that there was chipping, flaking, and peeling paint on the window frames, as well as on the heater in her bedroom. Robinson also testified that there was a hole in the wall in her bedroom, which Respondent would pick at.
Between 1997 and 2000, Respondent's blood-lead levels were tested on six occasions—December 3, 1997, May 13, 1998, November 11, 1998, June 11, 1999, February 18, 2000, and August 30, 2000—while he resided at the Property. On December 3, 1997, Respondent's blood-lead level was 12 micrograms per deciliter ("µg/dL"); on May 13, 1998, Respondent's blood-lead level was 13 µg/dL; on November 11, 1998, Respondent's blood-lead level was 12 µg/dL; on June 11, 1999, Respondent's blood-lead level was 14 µg/dL; on February 18, 2000, Respondent's blood-lead level was 9 µg/dL; and on August 30, 2000, Respondent's blood-lead level was 9 µg/dL.
In July 2001, Respondent and Robinson moved out of the Property.
On June 10, 2013, after litigation had commenced, Arc Environmental, Inc. conducted lead testing at the Property. Lead-based paint was detected on seven interior surfaces and two exterior surfaces. Specifically, lead-based paint was detected in the basement storage room on the door surface and door jam, and in the basement hallway, door casing, threshold, headers, and ceiling. Lead-based paint was also detected on the exterior of the Property on the front porch post and ceiling.
On November 28, 2012, in the Circuit Court for Baltimore City, Respondent, by and through his mother and next friend, Robinson, filed a complaint and demand for jury trial against Petitioners for negligence, violations of the Maryland Consumer Protection Act, and negligent misrepresentation arising out of Respondent's alleged exposure to lead-based paint at the Property.
On January 30, 2013, the circuit court issued a scheduling order, which provided that discovery, including depositions of expert witnesses, was to be completed by May 10, 2014. The scheduling order established deadlines for discovery, including that Respondent was to "respond to all interrogatory requests concerning the findings and opinions of experts ... no later than" August 7, 2013. Trial was scheduled to begin on September 9, 2014, and any motions in limine were to be filed no later than fifteen days before the first day of trial.
In a letter to Petitioners' counsel dated May 9, 2013, Respondent's counsel designated various expert witnesses, including vocational rehabilitation experts and economic experts. Respondent's counsel identified Estelle L. Davis, Ph.D., as one of the vocational rehabilitation experts, stating:
[Dr.] Davis, [ ] Rehabilitation Counselor, ... will review documents and reports and may conduct her own evaluation of [Respondent] and render an opinion as to the loss of earning capacity [Respondent] is expected to incur as a result of [his] exposure to lead and related injuries. Dr. Davis relies upon her education, training[,] and experience, as well as the Chartbook on Work and Disability in the United States, dat[a] from the U.S. Census Bureau and the Dictionary of Occupational Titles [ ] in reaching [her] conclusions.
(Underlining in original). Respondent's counsel identified Richard J. Lurito, Ph.D., as one of five economic experts, stating:
Dr. Lurito is an expert economist who, based upon his review of the records and the vocational assessment of [Respondent], is expected to render an opinion regarding the loss of future earning capacity [Respondent] has suffered as a result of the injuries due to lead poisoning
. He will quantify, in a present dollar amount, how much of an economic loss [Respondent] is expected to suffer over [Respondent]'s expected lifetime. Dr. Lurito relies upon his education, training[,] and experience in the field of economics in reaching his conclusion.
In an answer to an interrogatory, Respondent again identified various expert witnesses, including Dr. Davis and Dr. Lurito.
In a letter dated July 9, 2014, Dr. Davis evaluated Respondent's "employability and earning capacity given his...
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