Levitas v. Christian, 58, Sept. Term, 2016

CourtCourt of Special Appeals of Maryland
Citation164 A.3d 228,454 Md. 233
Docket NumberNo. 58, Sept. Term, 2016,58, Sept. Term, 2016
Parties Stewart LEVITAS v. Michael Davon CHRISTIAN
Decision Date11 July 2017

454 Md. 233
164 A.3d 228

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.

454 Md. 237

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

454 Md. 238

expert witness—a ruling fatal to his claim. We consider whether it erred in doing so.


Respondent Michael Christian was born on February 12, 1990. From his birth until October 1992, he resided with his mother,

164 A.3d 231

Nickolas Skinner ("Nickolas"), and grandmother, Betty Skinner ("Betty"),1 at 3605 Spaulding Avenue ("Spaulding") in Baltimore City.2 Christian 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
                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 footnotes3 ,4
454 Md. 239

In 2011, Christian filed suit in the Circuit Court for Baltimore City against Petitioner Stewart Levitas, the owner of Spaulding when he lived there, alleging negligence and violations of the Maryland Consumer Protection Act.5 In February

164 A.3d 232

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-

454 Md. 240

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

454 Md. 241

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.7 Levitas also moved for summary judgment in his favor if Dr. Klein were excluded.

164 A.3d 233

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]."8 It 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.

454 Md. 242

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."9 For 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.10 The 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

164 A.3d 234

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    ...to have relatively little competence, such as the assessment and application of complex expert testimony. See, e.g., Levitas v. Christian, 454 Md. 233, 246-47 (2017) (It is the jury that "assess[es] how much weight to give [an expert's] testimony," which the jury need not accept at all.). I......
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    ...that an expert witness conduct a physical examination of a person before being permitted to render an opinion. See Levitas v. Christian, 454 Md. 233, 241, 253-54,164 A.3d 228, 233, 240-41 (2017) (In a lead paint case, this Court held that a trial court abused its discretion in excluding a p......
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