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$20M awarded in lead paint verdict

Trial lawyer Brian Brown, right, with client Marie Carter. Carter was awarded nearly $21M in a lead paint verdict on Wednesday, Oct. 06, 2010.

Trial lawyer Brian Brown, right, with client Marie Carter. Carter was awarded nearly $21M in a lead paint verdict on Wednesday, Oct. 06, 2010.

A Baltimore City jury has awarded a 23-year-old woman nearly $21 million in a lead paint verdict, finding the victim suffered the poisoning while living in an apartment owned and maintained by the Housing Authority of Baltimore City.

The jury’s Wednesday verdict — about $825,000 in economic damages and $20 million in non-economic damages — is one of the largest the victim’s attorney said he has ever seen. It will likely be reduced because of the state’s $350,000 cap on non-economic damages.

Attorney Brian Brown, who represented plaintiff Marie Carter, said this case shows that the state’s cap, recently upheld by the Court of Appeals, is unfair.

“The jury thought they were awarding my client a certain amount, and she won’t get it,” said Brown, an attorney with Saul E. Kerpelman & Associates PA.

Baltimore Circuit Court Judge Alfred Nance will determine, within the cap, how much Carter will get in non-economic damages.

Damages against city and state agencies are usually limited to $100,000. However, because the poisoning occurred between 1987 and 1989, before the limits applied, the verdict is not subject to that limit.

The case was based on circumstantial evidence because the property at 3223 Cherryland Road had been demolished before it could be tested for lead paint.

Despite the lack of physical evidence, Carter had elevated lead levels in her blood and was seen with paint chips in her mouth as a child. The property also was built before 1950, when many homes were coated with lead paint.

Carter’s IQ was diminished by 10 points, to 89, which is below average, Brown said.

“She has permanent, lifelong brain damage which will stop her from having a fruitful life,” he said. “The housing authority took her life away from her.”

A 2002 ruling by the Court of Special Appeals in Dow v. L & R Properties Inc. was the basis for allowing this case to go to verdict on circumstantial evidence.

Brown said one of the toughest moments in the case came during a pretrial motion concerning the admissibility of a defense report that allegedly showed there was not lead paint on the property. Brown, who has tried many lead paint cases, said his motion to dismiss the report hinged on a point that has often tripped him up in the past.

The defense expert’s report included no evidence that the machine testing for lead paint had been calibrated before the home was tested.

Expert witnesses, like this one, have often questioned the admissibility of reports completed by Brown’s witnesses in other cases, claiming that where the machine is not calibrated, the report is not reliable.

“Now [the defense expert]’s coming forward and saying here’s the report that there’s no lead,” Brown said. “I argued to the judge, here’s his own testimony, the report can’t come in because it’s not reliable.”

One local attorney expressed surprise at the size of the verdict awarded to Carter.

“I don’t recall any larger than that. I had one for $6 million and that was one of the largest around,” said Bruce Powell, an attorney with the Law Offices of Peter T. Nicholl in Baltimore.

Brown said the defense attorney, J. Marks Moore III, who has his own firm, did not put any witnesses on the stand, despite promises during his opening statements.

“After I rested, they rested,” said Brown. “I think they were hanging their hat on me not making my case and they failed.”

Moore did not respond to a request for comment.

Powell, who did not attend the trial, said sometimes it makes sense not to call any witnesses. He said he thinks the size of the verdict reflects fury over the state of housing provided by the Housing Authority.

“They look at that situation and they get angry about that and they feel horrible about the child who has to live with this terrible suffering,” he said. “Twenty million [dollars] tells me that Brian [Brown] put on a very good case.”