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Court asked to reopen 19-year-old lead-paint poisoning case

ANNAPOLIS — A lawyer for an alleged lead-paint poisoning victim in Baltimore urged a sympathetic but seemingly unsupportive appellate court Wednesday to reopen his client’s negligence claim against his childhood landlords — a lawsuit that ended in the defendants’ favor more than 13 years ago.

Ronnell Doughty, then age 7, lost his claim against landlords Benjamin and Karen Kirson because the boy’s trial counsel failed to respond in time to a defense motion for summary judgment, attorney Alan J. Mensh told the Court of Special Appeals.

After the case was lost in 1997, Doughty’s trial lawyer lied to the boy’s maternal grandmother and legal guardian, Elva White, by telling her the case had settled and payments would be made when Doughty reached age 18 in 2008, Mensh told the three-judge panel.

That trial lawyer, Anthony K. Waters, was Doughty’s second attorney in the case. The first, Joseph H. Thomas Jr., had to withdraw after he was disbarred in 1997 for his actions in an unrelated case, according to Mensh.

Waters was later disbarred in 2001, also in an unrelated case.

“He [Doughty] never had his day in court,” Mensh said in pressing the court to vacate the summary judgment granted to the Kirsons.

“The court has a special duty to the minor [child] to prevent fraud and abuse,” added Mensh, of Ashcraft & Gerel LLP in Baltimore. “Equity really screams out in this case.”

Court of Special Appeals Chief Judge Peter B. Krauser agreed that Doughty’s case presented “extraordinary and very egregious facts” but said the court presumably lacks a legal basis to overturn the summary judgment. Waters’ fraudulent statements occurred after the judgment and were directed at his own client, not the trial court, Krauser told Mensh.

There was “gross neglect and a very unfortunate result in this case, but we don’t have fraud,” Krauser said. “The fraud didn’t affect what occurred” at trial, he added.

The Kirsons’ attorney told the appellate court his clients neither committed nor are accused of committing fraud in the litigation. Thus, the 1997 summary judgment should stand, said attorney Dennis C. Whelley, of Rollins, Smalkin, Richards & Mackie LLC in Baltimore.

Doughty’s family filed its $4 million lawsuit on Aug. 27, 1992, in Baltimore City Circuit Court, alleging the landlords’ negligence caused the then-2-year-old’s exposure to lead paint.

Doughty, who lived at 943 Montpelier St., was diagnosed in early 1991, at age 1, with elevated lead levels. He is now 21.

Doughty’s exposure led to a diagnosis at age 8 of severe behavioral and learning disabilities, Mensh stated in court papers.

Waters took over the case from the disbarred Thomas about two months before the Kirsons filed their summary judgment motion on July 1, 1997. The Kirsons argued they had no notice of a defect at the property.

Waters did not file a response to the motion and arrived at the Sept. 12, 1997, summary judgment hearing 10 minutes late. By that time, Judge John Carroll Byrnes had granted the motion.

Waters subsequently filed a cursory two-page motion to revise the summary judgment, which Byrnes rejected on Nov. 6, 1997. Waters filed no subsequent appeal and told White the settlement money would be arriving in 2008.

When no money arrived that year, White tried unsuccessfully to contact Waters, who was no longer in the Baltimore area, according to Mensh.

White then called Mensh, who discovered the case had closed in 1997 with the summary judgment.

Mensh filed a legal malpractice action against Waters but realized that case would be fruitless because Waters had no insurance and lacked “significant assets to satisfy any meaningful judgment,” Mensh stated in court papers.

Mensh then sought to reopen the case via a Dec. 18, 2009, motion in Baltimore City Circuit Court. Judge Stephen J. Sfekas rejected the motion on April 23, 2010.

“I confess to you, when I read this file for the first time, I felt almost physically sick at the conduct of the lawyers in this case,” Sfekas said from the bench. “[But] at this point, reopening the case is, first, not justified by the law, as I understand it to be. Secondly, it would be to the great prejudice of the defense in this case.”

To White, the grandmother and guardian, Waters’ lie about the settlement and Sfekas’ denial of Mensh’s motion to reopen the case are injustices.

“It should be opened again,” said White, who sat outside the Court of Special Appeals courtroom when Mensh made his arguments. “It was closed at no fault of our own. I should have been notified as the adult and the legal guardian.”

Arrie W. Davis joined Krauser and Judge Kathryn Grill Graeff on the three-judge panel. Davis, a retired judge who did not speak during the 25-minute session, was sitting by special assignment.

The court did not indicate when it will render a decision in the case, Doughty v. Kirson et al., No. 626, September Term 2010.


One comment

  1. Sad facts make bad law.