Levitas v. Christian

• Decision Date: 11 July 2017
• Docket Number: No. 58, Sept. Term, 2016,58, Sept. Term, 2016
• Citation: 164 A.3d 228,454 Md. 233
• Parties: Stewart LEVITAS v. Michael Davon CHRISTIAN
• Court: Court of Special Appeals of Maryland

454 Md. 233

164 A.3d 228

Stewart LEVITAS

v.Michael Davon CHRISTIAN

No. 58, Sept. Term, 2016

Court of Appeals of Maryland.

July 11, 2017

Reconsideration Denied August 24, 2017

Argued by William C. Parler, Jr. and Kelly A. Grafton(Parler & Wobber, L.L.P. of Towson, MD) on brief, for Petitioner.

Argued by Brian S. Brown(Lea K. Barron, Brown & Barron, LLC, Saul E. Kerpelman & Associates of Baltimore, MD) on brief, for Respondent.

Argued before Barbera, C.J., Greene, Adkins, McDonald, Watts, Getty, Lynne A. Battaglia(Senior Judge, Specially Assigned), JJ.

Adkins, J.Issues about an expert's qualifications and foundation for his opinion are no strangers to appellate courts, and the complex issues of causation in lead paint cases generally require expert testimony, which is often challenged.Today we review a case in which the trial court excluded the plaintiff's expert witness—a ruling fatal to his claim.We consider whether it erred in doing so.

FACTS AND LEGAL PROCEEDINGS

RespondentMichael Christian was born on February 12, 1990.From his birth until October 1992, he resided with his mother, Nickolas Skinner("Nickolas"), and grandmother, Betty Skinner ("Betty"),¹at 3605 Spaulding Avenue ("Spaulding") in Baltimore City.²Christian and his mother then moved to 4946 Denmore Avenue ("Denmore") in October 1992, where they resided for almost a year.In September 1993, Christian and his mother moved back to Spaulding and lived there for another four years, until September 1997.

Christian's blood was tested eight times between November 1990 and October 1993.In April 1991, he exhibited an elevated free erythrocyte protoporphyrin ("FEP") level, which does not measure a child's blood lead level but is an initial screening test for lead exposure.From February 1992 to October 1993, Christian displayed elevated blood lead levels five times as follows:

Date Taken Blood Lead Level3 Christian's
                Address4
                February 20, 1992     9 μg/dL               Spaulding
                February 18, 1993     10 μg/dL              Denmore
                July 16, 1993         17 μg/dL              Denmore
                September 2, 1993     12 μg/dL              Denmore
                October 6, 1993       14 μg/dL              Spaulding
                

[Editor's Note: The preceding image contains the references for footnotes^3,4 ]In 2011, Christian filed suit in the Circuit Court for Baltimore City against PetitionerStewart Levitas, the owner of Spaulding when he lived there, alleging negligence and violations of the Maryland Consumer Protection Act.⁵In February 2012, Arc Environmental, Inc.("Arc") tested the interior and exterior of Spaulding for lead using x-ray fluorescence testing.Arc summarized its findings in a report for Christian ("Arc Report").Thirty-one interior surfaces and five exterior surfaces tested positive for lead.The lead-positive interior surfaces included door jambs, baseboards, and window sills, casings, and sashes.Exterior window sashes, casings, and door jambs also tested positive for lead.

During discovery, Christian designated Howard Klein, M.D., a pediatrician with experience treating lead-poisoned children, as an expert witness who would opine on the source of Christian's lead exposure—source causation—and his lead-caused injuries—medical causation.As to the source of Christian's lead exposure, Dr. Klein testified in his deposition that he was "of the opinion that [Christian] was exposed to lead- based paint" at Spaulding.The basis for his opinion was: (1) the age of Spaulding—built in 1944; (2) the Arc Report; (3) a Maryland Department of the Environment("MDE") certification reflecting that the property was not lead free; (4) a Department of Housing and Community Development("DHCD") violation that detailed the poor condition of the property; (5) Christian's elevated FEP and blood lead levels while he was living at Spaulding and Denmore; (6) Betty's and Nickolas's deposition testimony that Spaulding was in disrepair while Christian lived there; (7) Nickolas's testimony that she saw Christian touch areas where paint was peeling around the windowsills at Spaulding; and (8) Nickolas's testimony that Christian stayed at Spaulding under the supervision of family members while she was at work during the day, both while they were living at Spaulding and while they were living at Denmore.Dr. Klein further testified that these facts establish that "there was lead-based paint [at Spaulding]."Finally, he acknowledged that Denmore was also a source of Christian's lead exposure.

In his expert report on medical causation, Dr. Klein concluded "within [a] reasonable degree of medical certainty" that lead caused Christian's mental retardation, impaired cognition, and learning disabilities.He further opined in his deposition that as a result of Christian's exposure to lead, he lost 7.4 to 9.4 IQ points.Dr. Klein based his opinion on: (1) a neuropsychological evaluation of Christian by Barry Hurwitz, Ph.D.; (2) Christian's medical records; (3) Christian's Answers to Interrogatories; (4) information on Spaulding and Denmore; (5) Christian's Maryland Department of Health and Mental Hygiene("DHMH") lead testing records; (6) MDE records; (7) DHCD records; and (8) Christian's school records.To calculate Christian's IQ loss, he relied on the Lanphear study,⁶ which found that children with certain average lifetime blood lead levels lost a specific number of IQ points.Dr. Klein averaged Christian's blood lead levels and then determined his loss in IQ points based on the study's results.

Levitas filed a motion to exclude Dr. Klein from testifying about source causation on the grounds that he lacked both the necessary qualifications and a sufficient factual basis for his opinion.⁷Levitas also moved for summary judgment in his favor if Dr. Klein were excluded.

On July 10, 2013, the Circuit Court held a hearing on Levitas's motion to exclude Dr. Klein.At the hearing, Levitas argued that Dr. Klein should be precluded from testifying about both source causation and medical causation.Ruling from the bench, the hearing judge excluded Dr. Klein's testimony on both of these topics.The court reasoned that Dr. Klein should be prevented from testifying about the source of Christian's lead exposure because "he did not, or had very little ... information concerning other sources [of lead exposure]."⁸It also precluded Dr. Klein from testifying about the cause and extent of Christian's injuries because he was not qualified and his opinion lacked a sufficient factual basis under Maryland Rule 5–702.As to his qualifications, the court reasoned that Dr. Klein would not be able to explain the IQ test results to the jury because he does not use the test in his own practice.As to his factual basis, the court explained that Dr. Klein relied on information from Dr. Hurwitz and Christian's attorney in developing his opinion, rather than examining Christian himself, which was not sufficient.The Circuit Court declined to grant Levitas's motion for summary judgment, however, because the Arc Report was "direct evidence" of lead at Spaulding.

On August 20, 2013, the Circuit Court entered a written order precluding Dr. Klein from offering expert opinions on "source, IQ loss, alleged injuries due to lead, or other causation issues."⁹For the purposes of appealing the Circuit Court's decision to exclude Dr. Klein, the parties agreed that without Dr. Klein's testimony, Christian could not make out a prima facie case of negligence because he could not establish medical causation.Therefore, the parties requested that the Circuit Court enter summary judgment in Levitas's favor to allow Christian to appeal the expert's exclusion.¹⁰The court granted the request, and Christian appealed.

In the first of two Court of Special Appeals opinions, the intermediate appellate court affirmed the Circuit Court's decision to exclude Dr. Klein.Christian appealed to this Court, and we, in a per curiam order, vacated the judgment and remanded the case for reconsideration in light of Roy v. Dackman , 445 Md. 23, 124 A.3d 169(2015), reconsideration granted , (Nov. 24, 2015).Christian v. Levitas , 445 Md. 240, 126 A.3d 71(2015).On remand, the Court of Special Appeals, in an unreported opinion, reversed the Circuit Court's decision to exclude Dr. Klein.Christian v. Levitas , 2016 WL 4076100, at *6(Md. Ct. Spec. App.Aug. 1, 2016).It concluded that Dr. Klein was qualified and had a sufficient factual basis to opine that Christian was exposed to lead at Spaulding and that lead caused his injuries.Id. at *4–*5.Levitas appealed.

We granted certiorari to answer the following questions:¹¹

1.Did the trial court err in excluding Dr. Klein's testimony regarding lead-source causation?

2.Did the trial court err in excluding Dr. Klein's testimony regarding medical causation?

Because we answer these questions in the affirmative, we shall affirm the judgment of the Court of Special Appeals.

STANDARD OF REVIEW

It is often said that decisions to admit or exclude expert testimony fall squarely within the discretion of the trial court.See, e.g. , Bryant v. State , 393 Md. 196, 203, 900 A.2d 227(2006)(collecting cases).A discretionary ruling, however, is not boundless and must be tethered to reason.We have explained that an abuse of discretion is "discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. "Neustadter v. Holy Cross Hosp. of Silver Spring, Inc ., 418 Md. 231, 241, 13 A.3d 1227(2011)(emphasis added)(quotingTouzeau v. Deffinbaugh , 394 Md. 654, 669, 907 A.2d 807(2006) ).Appellate courts will not affirm a trial court's discretionary rulings "when the judge has resolved the issue on unreasonable or untenable grounds."¹²Id.(internal quotation marks omitted).Such grounds include "when a trial judge exercises discretion in an arbitrary or capricious manner or when he or she acts beyond the letter or reason of the law."Garg v. Garg , 393 Md. 225, 238, 900 A.2d 739(2006)(citation omitted).The trial court...