Court of Appeals rejects expert testimony linking lead exposure, ADHD

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Maryland’s top court has vacated a $1.4 million lead-paint verdict after finding the trial court improperly allowed an expert to testify that childhood lead exposure caused the plaintiff’s ADHD.

The expert, pediatrician Cecilia Hall-Carrington, cited a recent report from the Environmental Protection Agency that concluded there is a causal relationship between lead exposure and attention decrements, impulsivity and hyperactivity, but the report did not conclude exposure causes ADHD, according to a unanimous Court of Appeals.

“In equating attention deficits and hyperactivity with a clinical ADHD diagnosis, Dr. Hall-Carrington painted an inaccurate picture of the scientific research regarding lead poisoning – she overstated the known effects of lead exposure,” Judge Sally D. Adkins wrote Tuesday.

A lawyer for plaintiff Starlena Stevenson on Wednesday called the decision “an extreme technicality” and a “distinction without a difference.”

“We’re very disappointed by the decision and it further shows that the appellate courts go out of the way to raise the burden on lead paint victims,” said Scott E. Nevin, of The Law Offices of Peter T. Nicholl in Baltimore.

Lawyers for defendant Stanley Rochkind had filed motions objecting to Hall-Carrington’s testimony and requested a Frye-Reed hearing to evaluate the novelty of the scientific theory but these motions were denied.

“We’re very pleased with the court’s decision,” said M. Natalie McSherry, of Kramon & Graham PA in Baltimore, who represented Rochkind along with Christopher C. Jeffries.

The Court of Special Appeals last July upheld the damages award for Stevenson, who lived for 15 months as an infant in 1991 and 1992 in a Rochkind-owned house in the 3800 block of Fairview Avenue with chipping and flaking lead paint.

Stevenson’s blood-lead level was 14 in October 1992; the U.S. Centers for Disease Control, in the late 1990s, considered a blood-lead level above 10 to be cause for concern. Since 2012, however, the CDC has said there is no safe level for lead exposure in children and considers a blood-lead level of 5 to indicate that a child requires case management.

Thomas J. Cullen Jr., who also represented Rochkind, said the court’s opinion shows there’s a question about whether all of Stevenson’s alleged injuries can be traced back to her lead exposure.

“I think it’s important that our Court of Appeals stress the importance that our (trial courts) fully and thoroughly assess the reliability of scientific evidence before it is presented to a jury,” said Cullen, of Goodell, DeVries, Leech & Dann LLP in Baltimore.

‘Analytical gap’

The intermediate appellate court found the evidence linking Stevenson’s ADHD diagnosis to her lead exposure was properly admitted because it was supported by an adequate factual basis and sufficient to allow the jury to find the causal connection.

But the Court of Appeals looked to the EPA report cited by Hall-Carrington and found there was an “analytical gap” the trial court ignored.

The report explained that multiple epidemiologic studies have revealed a link between lead exposure and some symptoms common to ADHD, and Hall-Carrington testified that the report does not explicitly link exposure and ADHD, according to the opinion. The symptoms associated with ADHD can also be symptoms of a variety of other disorders and learning disabilities and though studies have found an association, it does not rise to the level of a causal relationship.

“The jump from attention deficits and hyperactivity to a clinical ADHD diagnosis may seem reasonable, but we have explained that ‘just because a conclusion is reasonable does not mean that a court must permit an expert to make it,'” Adkins wrote.

The top court sent the case back to Baltimore City Circuit Court for a third trial on damages. The first trial, held in March 2014, yielded a $1.3 million verdict for Stevenson. But the trial judge threw out the award because an expert witness for Stevenson offered testimony at trial that differed from the opinions he had given during discovery, amounting to an “unfair surprise” for the defense. The second verdict came down in November 2014 and was reduced to about $1.1 million after the state’s cap on noneconomic damages was applied.

The Court of Appeals case is Stanley Rochkind v. Starlena Stevenson, No. 76, Sept. 2016.