Richwind Joint Venture 4 v. Brunson

• Court: Maryland Court of Appeals
• Writing for the Court: BISHOP
• Citation: Richwind Joint Venture 4 v. Brunson, 625 A.2d 326, 96 Md.App. 330 (Md. App. 1992)
• Decision Date: 01 September 1992
• Docket Number: No. 1384,1384
• Parties: RICHWIND JOINT VENTURE 4, et al. v. Ernestine BRUNSON, Individually, etc. ,

Page 330

96 Md.App. 330

625 A.2d 326

RICHWIND JOINT VENTURE 4, et al. v. Ernestine BRUNSON, Individually, etc.

No. 1384, Sept. Term, 1992.

Court of Special Appeals of Maryland.

June 2, 1993.

Revised and Refiled Sept. 7, 1993.

Denise Ramsburg Stanley (Donald C. Allen and Allen, Johnson, Alexander & Karp, on the brief), Baltimore, for appellants.

C. Christopher Brown (Joseph B. Espo and Brown, Goldstein, & Levy, on the brief), Baltimore, for appellees.

Argued before BISHOP and HARRELL, JJ., and JAMES P. SALMON, Specially Assigned Judge.

BISHOP, Judge.

Barbara Richardson ("Richardson") filed a complaint in the Circuit Court for Baltimore City individually and on behalf of her minor children, Jamika and Jamall Holman ("Jamika" and "Jamall"), against Rita Baitch ("Baitch"), individually and as personal representative of the estate of Harry Baitch (jointly referred to as "the Baitches"), and Appellants, Richwind Joint Venture 4 ("Richwind") and Scoken Management Corporation ("Scoken"). Richardson sought damages for injuries that resulted from her children's exposure to lead-based paint. The complaint alleged negligence (counts I and II), nuisance (counts III and IV), and violations of the Consumer Protection Act ("the Act") (counts V and VI). When Richardson died, her mother, Ernestine Brunson ("Brunson"), Appellee, who was appointed personal representative of Richardson's estate, was substituted as plaintiff.

Before trial, Brunson and Baitch entered into a settlement agreement. Baitch agreed to pay Brunson $35,000 in exchange for the Baitches being released from all claims against them. The court ordered the case against the Baitches dismissed with prejudice. The court dismissed counts III and IV, and at the close of Brunson's case, it granted Appellants' motions for judgment on counts V and VI. The jury awarded damages to Jamall in the amount of $252,000, Jamika in the amount of $247,500, and the court awarded damages to Richardson's estate in the amount of $18,944. The court denied Appellants' motions for a new trial or remittitur. Appellants filed a timely notice of appeal; Brunson filed a cross-appeal.

Issues

Appellants present the following issues for our review:

I. Whether the court erred when it admitted expert testimony of average IQ loss of children affected by lead poisoning when Jamall's and Jamika's IQ's increased after sustaining lead poisoning.

II. Whether the court erred when it permitted a psychologist to testify regarding the children's brain damage.

III. Whether the court erred when it admitted into evidence an economist's report on the children's future lost earning capacity.

IV. Whether the court erred when it permitted impeachment of Scoken with evidence of lead paint violations at locations other than the children's residence.

V. Whether the court erred when it refused to admit Department of Social Services records.

VI. Whether the court erred when it denied a mistrial after Brunson's counsel stated during opening argument that the mere presence of lead paint is illegal.

VII. Whether the court erred when it denied defense counsel's motion for judgment.

VIII. Whether the court erred when it refused defense counsel's requested jury instructions on contributory negligence and intervening and superseding causation.

IX. Whether the court abused its discretion when it denied defense counsel's motion for a new trial.

Cross-Appeal

Brunson asks us to decide whether the court erred when it granted Appellants' motions for judgment as to Brunson's claim under the Act.

Facts

Baitch and her husband owned a residential building located at 2119 West Fairmount Avenue in Baltimore City ("the Building"). In November 1983, the Baitches rented the Building to Richardson, as the latter's residence. While a resident of the Building, Richardson gave birth to her daughter, Jamika, on March 18, 1984, and her son, Jamall, on March 13, 1985. Jamika and Jamall resided with their mother in the Building until January 1987.

In December 1985, Richwind purchased the Building, and in January 1986, Mark Chodak ("Chodak"), Scoken's president, assumed management of the Building until January 1987.

On January 17, 1986, Richardson complained to Chodak that paint was peeling from the walls within the Building. In response, Chodak sent a repairman whose work order indicated that the "job was completed," but Chodak did not otherwise know if the condition was remedied. Chodak hired no one--either before or after taking over management of the Building--to inspect the property for lead-based paint. Although Chodak did not recall the exact dates, he testified that he visited the Building during the day sometime between January 1986 and September 1986. Chodak knew the walls within the Building were covered with lead-based paint. He knew also, based on his prior experience as a housing inspector and property manager in Baltimore City, that peeling lead-based paint could be hazardous to children. Chodak did not warn Richardson of the dangers of flaking, peeling lead-based paint, or of the presence of lead in the Building. He testified that he did not know children lived in the Building.

On August 12, 1986, Jamika--then twenty-nine months of age--and Jamall--then seventeen months of age--both tested positive for lead poisoning. Doctors determined that the level of lead discovered in Jamall's blood put him at high risk of injury, and consequently, he was hospitalized. Both children were later diagnosed with brain damage as a result of their exposure to the lead poisoning. On September 22, 1986, health inspectors notified Chodak of forty-two lead violations on the interior and exterior surfaces of the Building. Additional facts will be included in the discussion, infra, where necessary.

Discussion

I.

Appellants first contend that the court erred when it admitted expert testimony regarding average IQ loss among children exposed to lead poisoning. Appellants claim Brunson's counsel did not establish a reliable basis for the expert's opinion regarding Jamall's and Jamika's brain damage since other factors contributed to their injury--Richardson's alcoholism and diabetes; her continued alcohol consumption during her pregnancy with Jamall; her premature delivery of Jamika, whose birth weight was about four pounds; and the children's allegedly poor "home environment." They further argue that the expert's conclusion that the children "lost something" and that Jamall is "not as smart as [he] would have been without the lead" is inadmissible because it lacks "certainty" and "specificity." We disagree.

Under Maryland law,

the standard for the admissibility of expert evidence is whether the finder of fact can receive appreciable help from an expert on the subject matter. No longer need the subject matter be so far "beyond the ken of laymen" that the finder of fact could not have any understanding of the particular issue without expert help.

6 Lynn McLain, Maryland Practice § 702.1 (1987) (citations omitted). "The admissibility of expert testimony is largely within the discretion of the trial court." Ali v. State, 67 Md.App. 339, 346, 507 A.2d 648 (1986), aff'd, 314 Md. 295, 550 A.2d 925 (1988). "Seldom will the decision in this regard constitute grounds for reversal." Simmons v. State, 313 Md. 33, 43, 542 A.2d 1258 (1988). "[T]he proposed expert testimony must be competent, that is, the expert's conclusions must be based upon a legally sufficient factual foundation. Ideally, the expert will testify from first-hand knowledge, such as that gained from a personal examination of an individual...." Id. at 41-42, 542 A.2d 1258.

In the case sub judice, Dr. Julian Chisolm, a pediatrician at Kennedy-Kreiger Institute, was qualified, without objection from Appellants, to testify as an expert to the existence, causes, and consequences of lead exposure in children, and the treatment of children so affected. Dr. Chisolm explained for the jury the general effect lead poisoning has on a child's learning process.

I think, if we are dealing with what might be called low level or moderate level lead exposure in which we don't see any symptoms, the child doesn't vomit, he doesn't have belly pains or any serious thing, he at least appears to be well, the main affect [sic] of that is learning disability, and that's been demonstrated, I think, in a number of studies around the world. You are really not able to demonstrate this until they reach school age. All of the damage is being done when they're much younger.

Dr. Chisolm explained that the main way in which the amount of lead in a child's body is measured is in the blood. He then provided testimony regarding the loss of IQ as a result of a child's ingestion of lead.

[A]s the average blood lead concentration increases above the baseline of ten, for every ten microgram increment, in the various studies that have been published, you get a loss, an average loss, in large groups of children of about four points on the IQ

So you would expect that all other things--and in these studies, other things are taken into account, how good the mothering is, how old the mother is, is it the first baby, so forth and so on. The main thing is the nurturing the child gets. It appears you lose, on average, about four points on the IQ, and that's been pretty consistent, I would say, around the world.

With regard to the research upon which he based his testimony, Dr. Chisolm explained:

The studies are designed to exclude obvious things. They would exclude gross prematurity, two pound babies, for example, and they would exclude other obvious things. I think if a child--if some children get hit on the head, as you say, that child might be excluded or the data would be analyzed with and without him.

Dr. Chisolm testified that the 1991 United States Center for Disease Control guidelines set the maximum acceptable level of lead in the blood at ten micrograms per deciliter. He explained that the level of lead in...