Roy v. Dackman
| Decision Date | 16 October 2015 |
| Docket Number | No. 6, ,6, |
| Citation | 124 A.3d 169,445 Md. 23 |
| Parties | Jakeem ROY v. Sandra B. DACKMAN, et al. |
| Court | Court of Special Appeals of Maryland |
Scott E. Nevin(George E. Swegman, Law Offices of Peter T. Nicholl, Baltimore, MD; John Amato, IV, Goodman, Meagher & Enoch, LLP, Baltimore, MD), on brief, for Petitioner.
William C. Parler, Jr.(Parler & Wobber, L.L.P., Towson, MD), for Respondents.
Kelly A. Grafton (Parler & Wobber, L.L.P., Towson, MD), on brief, for Respondents.
Perhaps the Beatles were expressing skepticism about self-styled experts and their opinions or just singing nonsense lyrics. Courts do not have the luxury to be ambiguous about such things. They are called upon frequently to assess the qualifications of proffered expert witnesses and the worthiness of their proposed opinion testimony as potential aids to fact-finders. This is important especially in complex civil litigation where medical causation is in dispute.1With roughly equal frequency, Maryland's appellate courts have had recently many opportunities to confront evidentiary questions involving proffered novel science/medical expertise and methodology in Frye/Reedcontexts2or where qualifications or the basis to testify were challenged in non-novel contexts.3
The present case falls in the latter category of challenge. Here, we are confronted with a proffered medical expert who proposed to opine as to the medical causation of deleterious effects from the ingestion of lead-containing paint chips or flakes by a young child andthe source of those chips/flakes in or about a specific rental dwelling in downtown Baltimore where the child had resided with his mother. As to medical causation regarding the effects of lead-containing paint ingestion by children generally and the specific child in the present case, the landlord Respondent maintains that the nuances of opining as to medical causation depends critically on such matters as amount and duration of consumption and the development age of the victim at the relevant times, matters of “rigorous” debate within the relevant medical/scientific community and its literature. On these subjects, Respondent sees the Petitioner/victim's expert as ill-suited to offer an opinion that would be of assistance to a fact-finder. Clearly, such matters are not topics of common knowledge of lay people, who would populate most likely the jury in this case. Whether a pediatrician, who has never treated a child victim of lead paint poisoning, but claims to have read the relevant medical literature (or some representative and meaningful portion of it), should be permitted to offer an opinion as to medical causation that would be of some benefit to a lay fact-finder is what we shall decide essentially.4
Jakeem Roy, Petitioner, through his mother, Latisha Hillery, filed suit in negligence in the Circuit Court for Baltimore City against the landlord and owners (collectively “Respondents” or “Dackman”) of a dwelling at 2525 Oswego Avenue, Baltimore, for alleged personal injuries resulting from lead-based paint poisoning. The Oswego Avenue property was alleged to be the only source of lead paint ingested by the child. After discovery, Petitioner identified two expert witnesses to testify both as to the source of his lead exposure, but only one of them as to the medical causation of the injuries suffered by Roy. Respondents filed motions to exclude Petitioner's expert witnesses on the basis that, under Maryland Rule 5–702, the experts were not qualified and, if their testimony was excluded, for summary judgment. The Circuit Court granted ultimately summary judgment in favor of Respondent. Without the testimony of Roy's sole medical expert to establish causation, the Circuit Court reasoned that Petitioner could not move to trial on circumstantial evidence alone and, thus, there was no genuine dispute of material fact and Respondent was entitled to judgment as a matter of law. After affirmance of this judgment by the Court of Special Appeals on Petitioner's direct appeal, we granted Roy's petition for a writ of certiorari to consider again what requirements must be met by an expert witness in order to qualify to testify principally as to the medical causation of alleged injuries from childhood lead exposure.
Jakeem Roy, Petitioner (Plaintiff below), was born on 29 April 1996 in Baltimore City. For the first eight months of his life, Roy resided at 2801 Virginia Avenue in the City. Thereafter, Roy, his mother, and his siblings moved to 2525 Oswego Avenue and resided there from approximately the Fall of 1996 through November 1998.5During this time, 2525 Oswego Avenue, built originally in 1920, was owned and managed by Respondents (Defendants below). Roy, his mother, and his siblings moved from the subject property in November 1998 due to consequential damage from a house fire that occurred in an abutting dwelling.
On 29 June 2011, Roy filed suit in the Circuit Court against Sandra Dackman, individually and as trustee of the assets of Jacob Dackman & Sons, LLC (“the Dackmans”), alleging that the Dackmans provided negligently premises for rent that contained chipping, peeling, and flaking lead paint, in violation of the Baltimore City Housing Code (“Housing Code”), which paint debris was ingested by Roy while living at 2525 Oswego Avenue from 1997–1998. Roy alleged further in his complaint that the Dackmans' awareness of the conditions at 2525 Oswego Avenue was a direct violation of their duty of care to ensure that the property was safe and habitable for tenants.
As a result of this alleged exposure at 2525 Oswego Avenue, Roy suffered lead poisoning
and permanent injuries. The complaint pleaded multiple counts, including negligence and unfair and deceptive trade practices, in violation of the Maryland Consumer Protection Act, Maryland Code (1975, 2013 Repl.Vol.), Commercial Law § 13–303(“CL”).
In her deposition, Roy's mother, Latisha Hillery, testified that the Oswego Avenue property had flaking and chipping paint throughout the house on the floors, door frames, railings, cabinets, and window sills. On 14 September 2012, at the behest of Petitioner's counsel, the exterior of the property was tested by ARC Environmental, Inc.6, resulting in positive readings for lead on eight of the nine locations tested. No test of the interior surfaces of the dwelling was conducted.7Between 1997 and 1999, Roy recorded elevated blood-lead levels while living at 2525 Oswego Avenue.8As noted in the record, Roy's blood-lead levels were measured as follows:
During discovery, Roy identified Dr. Eric Sundel, a board-certified pediatrician with 20 years in practice, and Robert K. Simon, Ph.D., an industrial hygienist and environmental lead risk assessor, as his anticipated expert witnesses to be called at trial. Dr. Sundel was retained by Petitioner to render opinions about the source of Roy's lead exposure and whether that exposure was the medical cause of Roy's claimed injuries. Dr. Sundel indicated that he would opine, relying on Roy's medical records and other reports, that lead-based paint at 2525 Oswego Avenue caused Roy's medical injuries, including a “loss of IQ points ..., impaired attention, problems with memory, and problems with coordination.”
To support his conclusion, Dr. Sundel relied on the following facts: (1) that the subject property where Roy resided from 8 months to 2 years of age was built in 1920; (2) Roy experienced elevated blood lead-levels while living at the subject property; (3) ARC's testing confirmed the presence of lead-based paint on the exterior of the dwelling; and (4) Roy's mother testified to the existence of chipping, flaking, and peeling paint within the house.9Dr. Sundel relied also on the in-person neuropsychological evaluation of Roy conducted by neuropsychologist Dr. Barry A. Hurwitz, Ph.D., to find that:
Jakeem Roy had neuropsychological testing performed in January, 2012. His full-scale IQ was 78, which fell in the borderline impaired range of intellectual function. On motor function testing (ability to make the purposeful movements that are necessary to complete a task), his coordination was poor, and his scores on some of the other measures of motor function were extremely low to lower than expected. In terms of memory, his scores were borderline impaired on several different measures. Dr. Hurwitz concluded that Jakeem “produced deficit performances on measure of attention, tactile perception, grapho-motor skills, motor tasks and memory that indicate brain-related neuropsychological impairments.”
Combining these results with the other facts in the record and a review of relevant literature10, Dr. Sundel concluded “[w]ith a reasonable degree of medical probability, [that he] believe[d] Jakeem Roy suffered injuries from his lead exposure while residing at 2525 Oswego Avenue.”
On 13 November 2012, Dr. Sundel was deposed at the behest of Respondent. His testimony established that he was well-read on the literature related to lead poisoning
and its harmful effects on young children, but revealed that he had never studied or treated directly in his practice an individual with lead-based poisoning. Dr. Sundel did not examine Roy at any point during the litigation to that point. He claimed that it was not necessary to do so due to the documented evidence of Roy's neurological impairments adduced by Dr. Hurwitz after his personal evaluation of Roy.
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