Davis v. Goodman

• Decision Date: 01 September 1996
• Docket Number: No. 1829,1829
• Citation: 700 A.2d 798,117 Md.App. 378
• Parties: Corey DAVIS, a Minor, etc. v. Eugene GOODMAN, et al. ,
• Court: Court of Special Appeals of Maryland

Page 378

117 Md.App. 378

700 A.2d 798

Corey DAVIS, a Minor, etc. v. Eugene GOODMAN, et al.

No. 1829, Sept. Term, 1996.

Court of Special Appeals of Maryland.

Sept. 25, 1997.

Scott E. Nevin (Saul E. Kerpelman, on the brief), Baltimore, for appellants

Angus R. Everton (Charles N. Ketterman and Mason, Ketterman & Morgan, on the brief for appellee, Rochkind), Baltimore, Paul G. Donoghue (Rollins, Smalkin, Richards & Mackie, on the brief for appellees, Goodman, et al.), Baltimore, for Appellees.

Argued before HARRELL, SALMON and THIEME, JJ.

SALMON, Judge.

In this lead paint poisoning case, appellants present us with a host of questions, only one of which is of interest to most members of the bar. That question is the second that we will address. It involves an interpretation of Maryland Rule 2-415(g). We must decide whether an objection at deposition to the form of a question or to any other error or irregularity that might be obviated if the objection were made during deposition must be specific or whether the objection is preserved by merely uttering the word "objection." We hold that the ground for the objection must be stated with specificity.

BACKGROUND

Corey Davis ("Corey"), born December 31, 1987, claims to have suffered brain injury due to his residency in two houses located in Baltimore City. Starting when he was six months old, Corey lived at 2627 Francis Street with his mother, Angela Norwood. The Francis Street address was owned by Eugene Goodman, Ann Goodman, Marc Attman, and Debra Attman, t/a Attsgood Realty (hereinafter referred to collectively as "the Attsgoods"). Corey, at fifteen months of age, moved from Francis Street to 4716 Park Heights Avenue where he lived with his mother. The house on Park Heights Avenue was owned by Stanley Rochkind, t/a S&S Partnership In March 1990, Ms. Norwood, individually and on behalf of Corey, sued S&S and the Attsgoods in the Circuit Court for Baltimore City. The Attsgoods filed a motion for summary judgment, which was granted by Judge Thomas Ward on August 18, 1995. In September 1996, the case, as against S&S, was tried before a jury (Heller, Ellen, J., presiding). The jury found that S&S was not negligent; it also found that while S&S had violated the Consumer Protection Act, Corey had not been injured by that violation. Counsel for Corey filed a motion for new trial, which was denied. Corey and his mother then noted this timely appeal and raise ten issues, which we have reordered and reworded:

(hereinafter "S&S"). On June 7, 1989, about four months after Corey moved to the premises, the Baltimore City Health Department notified S&S that the Park Heights address had thirty-eight areas of lead-based paint. Corey continued to reside at the premises owned by S&S until August 1989, when he was hospitalized and underwent therapy for lead poisoning. Thereafter, Corey went to live with his paternal grandmother, but his mother remained at the Park Heights address until February 1990.

1. Did the motions judge err in granting summary judgment in favor of the Attsgoods?

2. Did the trial court commit reversible error by overruling appellants' counsel's objections to questions of S&S's expert at his de bene esse deposition, when the objection at trial was to the form of the question but at deposition no ground for the objection was stated?

3. Did the trial court err by allowing evidence to be presented to the jury that raised an inference that the appellant was exposed to lead-based paint at Francis Street?

4. Did the trial court abuse its discretion by allowing S&S's expert neurologist to testify by videotape as to the source(s) of the appellant's exposure to lead-based paint?

5. Did the trial court abuse its discretion by preventing appellants from presenting evidence of the full extent of Stanley Rochkind's experience and knowledge about the hazards associated with lead paint?

6. Did the trial court err by allowing the introduction of certain business records without the proper foundation?

7. Did the court abuse its discretion by allowing S&S's fact witness to testify to matters that were not within the witness's personal knowledge?

8. Did the trial court commit reversible error by refusing to give two of appellants' proposed jury instructions?

9. Did the trial court abuse its discretion by failing to grant a new trial when the jury rendered inconsistent verdicts?

10. Did the trial court's general conduct throughout the trial substantially deprive the appellant of the right to a fair trial?

ISSUE I

A. Summary Judgment Ruling--Facts in Light Most Favorable to Appellants

In June 1988, Corey moved into the Francis Street address, an old unrehabilitated townhouse with flaking and chipping paint on the interior walls, baseboards, and windowsills, and on the front exterior walls, door, and window frames. Corey's mother complained to the Attsgoods about the paint problems when she first rented the premises. Promises were made by the Attsgoods to remedy the chipping and flaking paint problem, but these promises were never fulfilled.

On March 2, 1989, which coincidentally was the same date that Corey moved from the Francis Street premises, Corey's blood was tested. The test showed the lead level in his blood to be 31 mcg/dc. An acceptable lead blood level in 1989 was considered to be 25 mcg/dc or less.

David H. James, M.D., a professor of pediatrics at the University of Tennessee with experience in treating children The Attsgoods moved for summary judgment and argued:

                exposed to lead paint, was named as an expert by appellants.  Dr. James was deposed by counsel for the Attsgoods and questioned extensively as to the basis for his opinion that the Francis Street home contained lead-based paint during Corey's residency.  Dr. James testified at deposition that:  the house was "very old";  most very old houses in Baltimore City were painted with lead-based paint;  the condition of the house was described by Corey's mother as "poor," with chipping and flaking paint;  and therefore, it certainly "sound[ed] like that house would be a good source for lead."   He admitted that there was no direct evidence that the house had, in fact, been painted with lead-based paint, and he acknowledged that "he was making an assumption that there was leadbased paint at 2627 Francis Street."
                

[T]here is no direct evidence that there was lead paint on the property. Instead the expert [Dr. James] bases his opinion that lead-base paint existed because the house was [ ] old and the paint was peeling, as described by the mother. Thus, the conclusion that the exposure came from 2627 Francis Street is drawn from hearsay.[ ¹] In fact, Dr. James admits to having done no research on the history of lead paint in the Baltimore Metropolitan area. In order for the [p]laintiff to demonstrate there exists facts sufficient to support an inference that the poisoning was the result of the 2627 Francis [Street] property[,] there must be reliable data to show the existence of lead paint.

(Footnotes omitted.) No other ground for summary judgment was advanced.

Unbeknownst to Dr. James, the exterior of 2627 Francis Street had been tested for lead-based paint on May 5, 1995--five days before Dr. James's deposition. Troy Baker was the inspector who tested the exterior of the premises. The interior Appellants, in opposition to the Attsgoods' summary judgment motion, filed an affidavit by Troy Baker relating that he had found lead-based paint on the exterior of the house and that, in his opinion, lead-based paint was present on the exterior of the house when Corey resided there.

was not tested. Mr. Baker's test revealed that lead-based paint existed on the exterior front wall of the house and on the exterior basement windows, left and right front windows, and on the front door.

Appellants also filed affidavits from Ms. Norwood, Corey's mother, and Dr. James. Ms. Norwood's affidavit read, in pertinent part, as follows:

When we first moved into 2627 Francis [Street] the front exterior of the home also had flaking and chipping paint on the door, walls and window frames. Corey Davis and I would sit out on the front step everyday when it was too hot to be inside. I did not know that the chipping paint that was right next to us on the front step contained lead-based paint.

Dr. James's affidavit included the following:

7. Based on my training, knowledge and experience, the medical records of Corey Davis, the May 9, 1995 report of Troy Baker noting presence o[f] lead-based paint on the exterior surfaces of 2627 Francis Street, and the Affidavit of Angela Norwood, I am of the opinion, within a reasonable degree of medical probability that Corey Davis was exposed to lead-based paint while residing at 2627 Francis Street.

8. I am of an opinion within a reasonable degree of medical probability that Corey Davis was exposed to lead-based paint while sitting in front of 2627 Francis Street on an everyday basis.

9. I am of an opinion within a reasonable degree of medical probability that Corey Davis' exposure to lead-based paint at 2627 Francis Street was a substantial factor [sic] to the injuries that he sustained to his central nervous system as a result of having elevated blood lead levels.

The Attsgoods, on August 15, 1995, responded to plaintiff/appellant's opposition. In the response, the Attsgoods changed the entire thrust of their motion. As previously noted, the Attsgoods initially maintained that appellants had failed to present competent evidence that the residence leased to appellants contained lead-based paint. But faced with the fact that testing had shown lead-based paint on the exterior of the house and, as a consequence, Dr. James was no longer basing his opinion upon mere circumstantial evidence, the Attsgoods pointed out a new (purported) deficiency. The Attsgoods filed no affidavit or other sworn material to support their new contention. Instead, they based the revised motion on the...