Ross v. Hous. Auth. of Balt. City

• Decision Date: 22 March 2013
• Docket Number: No. 10,Sept. Term, 2012.,10
• Citation: 63 A.3d 1,430 Md. 648
• Parties: Cherie ROSS v. HOUSING AUTHORITY OF BALTIMORE CITY.
• Court: Maryland Court of Appeals

430 Md. 648

63 A.3d 1

Cherie ROSS

v.HOUSING AUTHORITY OF BALTIMORE CITY.

No. 10, Sept. Term, 2012.

Court of Appeals of Maryland.

March 22, 2013.

William Beveridge, Jr. and Scott E. Nevin, (Law Offices of Peter T. Nicholl, Baltimore, MD; John Amato, IV of Goodman, Meagher & Enoch, LLP, Baltimore, MD), on brief, for Petitioner.

Paul J. Weber, (Hyatt & Weber, P.A., Annapolis, MD), on brief, for Respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA, McDONALD, JJ.

McDONALD, J.

Unlike the bullet or the misplaced banana peel, the effect of toxic substances on the body is often subtle and slow, leaving cause uncertain. This gap of understanding is often bridged through science, probability, and inference from provable facts. As a result, expert testimony has become central to toxic tort litigation.¹ But not every inference is provable in court by expert opinion testimony. Nor need it be.

This case arises out of an attempt to use expert opinion testimony of a pediatrician to establish the defendant's building as the source of the plaintiff's lead exposure and elevated blood lead levels. We hold that the Circuit Court did not abuse its discretion when it excluded the proposed expert testimony. However, the exclusion of that testimony was not necessarily a fatal blow to the plaintiff's case and we remand for reconsideration of the court's award of summary judgment in favor of the defendant.

Procedural Background

The Parties

The present dispute arises out of the alleged exposure of a woman to lead paint at the homes in which she spent her childhood. The Petitioner, Cherie Ross, was born on October 6, 1990. From that time until June 1992, Ms. Ross and her mother, Patricia A. Shandes, lived in Baltimore City at 934 N. Gilmor Street (“the Gilmor Street home”), then owned by Bernard Dackman. From June 1992 through at least 1996, they lived at 546 N. Payson Street (“the Payson Street home”), also in Baltimore City and owned by Respondent Housing Authority of Baltimore City (“HABC”).

The Complaint

On May 7, 2008, Ms. Ross, by her mother, sued Mr. Dackman and HABC in the Circuit Court for Baltimore City, alleging that she had sustained permanent injuries from lead paint exposure at both properties. Specifically, Ms. Ross alleged that she had suffered permanent brain damage “resulting in developmental and behavioral injuries.” The complaint included claims for negligence and unfair trade practices under the Consumer Protection Act as to each defendant. The claims against Mr. Dackman were settled shortly before the scheduled trial date in September 2010.²

The Dispositive Motions

Shortly before the scheduled trial date, the Circuit Court took up a number of motions in limine, including a defense motion to exclude expert testimony concerning the source of Ms. Ross' lead exposure and ingestion. After hearing testimony from the proposed expert, the Circuit Court rendered a bench opinion granting HABC's motion to exclude that portion of the expert's testimony. HABC's counsel then made an oral motion for summary judgment, arguing that the exclusion of the expert testimony doomed the plaintiff's case. After brief argument on the oral motion, the Circuit Court granted summary judgment in favor of HABC.

Ms. Ross appealed the exclusion of the expert testimony and the grant of summary judgment. In an unreported opinion, the Court of Special Appeals affirmed the ruling on expert testimony, but declined to consider further whether summary judgment was appropriate on the ground that Ms. Ross had not separately challenged that ruling. Ms. Ross petitioned for certiorari, which we granted as to both issues.

The Plaintiff's Evidence

In the absence of a trial or formal written submissions by the parties concerning HABC's summary judgment motion, we must glean the relevant facts from the hearing testimony and the materials submitted in connection with the motion to exclude expert testimony—to which the grant of summary judgment was closely linked by both the judge and the parties.

The evidence relied upon by the plaintiff to support the expert opinion and avoid summary judgment falls into four major categories: (a) results of tests of Ms. Ross' childhood blood lead levels; (b) results of tests to detect lead paint and lead dust in the two homes in which Ms. Ross resided; (c) discovery materials describing Ms. Ross' childhood—excerpted from interrogatory answers and the deposition testimony of Ms. Ross' mother; and (d) testimony of the proffered expert, both in deposition and at the motions hearing.a. Blood Lead Levels

Reports by the Maryland Department of Health and Mental Hygiene indicate that, while Ms. Ross lived at the Gilmor Street home, her blood lead levels tested as follows:

+------------------------------------------------------------------------------+
                ¦           ¦Date Taken 3  ¦Blood Lead Level 4  ¦                            ¦
                +-----------+---------------+---------------------+----------------------------¦
                ¦           ¦               ¦                     ¦                            ¦
                +-----------+---------------+---------------------+----------------------------¦
                ¦           ¦10/10/91       ¦10µg/dL              ¦                            ¦
                +-----------+---------------+---------------------+----------------------------¦
                ¦           ¦1/9/92         ¦8µg/dL               ¦                            ¦
                +-----------+---------------+---------------------+----------------------------¦
                ¦           ¦4/28/92        ¦10µg/dL              ¦                            ¦
                +------------------------------------------------------------------------------+
                

Subsequent reports indicate that, while Ms. Ross lived at the HABC Payson Street home, her blood lead levels tested as follows:

+---------------------------------------------------------------------------+
                ¦            ¦Date Taken  ¦Blood Lead Level  ¦                              ¦
                +------------+------------+------------------+------------------------------¦
                ¦            ¦            ¦                  ¦                              ¦
                +------------+------------+------------------+------------------------------¦
                ¦            ¦11/30/92    ¦10µg/dL           ¦                              ¦
                +------------+------------+------------------+------------------------------¦
                ¦            ¦4/6/93      ¦11µg/dL           ¦                              ¦
                +------------+------------+------------------+------------------------------¦
                ¦            ¦8/31/93     ¦14µg/dL           ¦                              ¦
                +------------+------------+------------------+------------------------------¦
                ¦            ¦11/9/93     ¦10µg/dL           ¦                              ¦
                +------------+------------+------------------+------------------------------¦
                ¦            ¦12/16/94    ¦9µg/dL            ¦                              ¦
                +------------+------------+------------------+------------------------------¦
                ¦            ¦12/20/95    ¦7µg/dL            ¦                              ¦
                +------------+------------+------------------+------------------------------¦
                ¦            ¦3/25/96     ¦7µg/dL            ¦                              ¦
                +---------------------------------------------------------------------------+
                

b. Lead Paint Tests

Ms. Ross relied on three reports from lead paint inspections performed in the HABC Payson Street home. Each indicated the presence of lead in certain parts of the house, although most of the test results were negative.

The first lead inspection report, dated February 20, 1992, was from an inspection by a company called Martel and is identified in the record as a “Post Abatement Lead Swipe Analysis Report.” That report showed test results for numerous locations in the house. The only swipe taken that indicated “high value” for lead was from an exterior window well of the living room. That reading measured 1,500 µg/SqFt.⁵

The second lead inspection report, dated February 22, 1994, was from an inspection by a company called Mircon Inc. That report indicated that on the front exterior of the house the wooden window frame and outer window sills and concrete headers were in a “peeling and chipping condition.” It further indicated that, in the first floor living room, kitchen, and den, there were sheetrock walls and ceilings and that the plaster walls behind the sheetrock were suspected to contain lead-based paint. While the report contains test results for numerous locations in the house, the only locations that tested positive for lead were the outer sill of the first floor window and the header to the cellar—both of which are exterior locations.

The third lead inspection report, from a 2009 environmental survey by a company called ARC, detected lead on a stair-riser on an interior staircase.

c. Discovery Materials Concerning Ms. Ross' Childhood

At her deposition on October 15, 2009, Ms. Shandes testified to the following:

When Ms. Ross was born, Ms. Shandes resided at the Gilmor Street home. According to Ms. Shandes, her daughter did not visit any other properties or attend day care while they lived at the Gilmor Street address. Her daughter would crawl around and sit on the steps while living at the property. At the house, Ms. Shandes noticed flaking paint on the front porch and on the inside of the house around the windows and trim.

When Ms. Shandes moved with her daughter to the HABC Payson Street home, the property was in excellent condition except for the windows, which she described as “rotten” with “paint peeling.” As at the Gilmor Street home, Ms. Shandes and her daughter sat outside on the steps of the Payson Street home. The outside steps were close to the flaking, peeling, and chipping paint around the windows.

As a child, Ms. Ross never visited a friend's house because “she had a problem. She didn't even start talking like a regular child would talk. She didn't start talking until she was almost four years old.” After Ms. Ross began school, she spent...