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Lead-paint plaintiff can prove source of exposure by circumstantial evidence

The source of lead paint exposure can be established through circumstantial evidence, without expert testimony, the Court of Appeals held Friday.

The top court’s decision revives a lawsuit against the Housing Authority of Baltimore City, which owned one of two homes in which plaintiff Cherie Ross said she suffered brain damage from lead-paint poisoning.

A Baltimore judge had ruled in favor of the HABC before trial after excluding the testimony of a pediatrician, who was the plaintiff’s only expert witness on the source of the child’s exposure.

The Court of Appeals said the decision to exclude the witness’s testimony was within the judge’s discretion, but said the absence of that testimony was “not necessarily a fatal blow to the plaintiff’s case.”

“Unlike the bullet or the misplaced banana peel, the effect of toxic substances on the body is often subtle and slow, leaving cause uncertain,” Judge Robert N. McDonald wrote at the start of the court’s opinion. “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. But not every inference is provable in court by expert opinion testimony. Nor need it be.”

The Court of Appeals remanded the case back to Baltimore City Circuit Court.

Ross, now 22, alleged she had suffered permanent brain damage due to lead paint exposure in the houses she grew up in, one of which was owned by the Housing Authority of Baltimore City.

The attorney for HABC, Paul J. Weber of Hyatt & Weber P.A. in Annapolis, declined to comment on the case.

An attorney for Ross, William Beveridge Jr. of The Law Offices of Peter T. Nicholl in Baltimore, said plaintiffs’ attorneys have been arguing for years to allow circumstantial evidence.

“Under the facts of this case, with this particular doctor, the court said [the doctor] couldn’t say [the property] was the source [of lead], therefore the trial judge did not abuse her discretion,” Beveridge said. “Other judges presented with the same doctor and same witness under different circumstances would have the liberty to make different rulings, which, from our perspective, is good.”

Ross filed a lawsuit in 2008 claiming negligence and unfair trade practices under the Consumer Protection Act against her mother’s former landlord, Bernard Dackman, who owned a house on Gilmor Street, and HABC, which owned a house on Payson Street. Ross settled with Dackman in 2010.

Ross presented evidence in the circuit court on her elevated blood lead levels and three inspection reports detecting lead paint at the property.

Her mother, Patricia Shandes, also testified that the paint on the windows of the home on Payson Street was peeling. Shandes said her daughter sometimes ate non-food items and did not start talking until she was almost 4 years old.

The defense, however, pointed out that Ross was exposed to other sources that could have caused elevated blood lead levels, like paint chipping onto the ground from a neighbor’s house.

The circuit court heard testimony from Ross’ expert, Dr. Jacalyn Blackwell-White, a pediatrician with 20 years experience who had never treated or met Ross.

Blackwell-White had reviewed records on Ross and the two properties where she spent the first six years of her life. She then wrote a report and testified that, in her opinion, Ross had been exposed to lead paint at the Payson Street home which caused her to sustain toxic blood levels that resulted in “life-long neuropsychological impairment.”

While the circuit court accepted Blackwell-White’s testimony as an expert in pediatrics and childhood lead poisoning, it found she lacked qualifications and a factual basis for her testimony that the Payson Street house was the source of exposure.

The court then granted summary judgment in favor of HABC.

The Court of Special Appeals affirmed the judge’s decision to exclude Blackwell-White’s testimony. Ross then petitioned the Court of Appeals.

The Court of Appeals also affirmed the decision to exclude the doctor’s testimony as to the source of Ross’ lead paint exposure.

“It may be perfectly reasonable to conclude from the evidence that the Payson Street home was a source of lead exposure,” McDonald wrote for the high court. “But just because a conclusion is reasonable does not mean that a court must permit an expert to make it.”

However, Ross’ exposure to lead paint and dust could be proven through circumstantial evidence presented during the trial — lead investigation reports, testimony from her mother, background information on lead poisoning from Blackwell-White and blood lead level tests.

The court, however, declined to draw conclusions itself on the circumstantial evidence.

“Neither the parties nor the judge in the Circuit Court did so, as all appeared to labor under the impression that Dr. Blackwell-White’s opinion on source was the linchpin of plaintiff’s proof of causation,” McDonald wrote.

“On remand, the parties will have the opportunity to review the evidence and argue whether, taking the evidence and inferences in the light most favorable to Ms. Ross, there remains a fatal gap in her proof.”

 

WHAT THE COURT HELD

Case:
Ross v. Housing Authority of Baltimore City, CA No. 10, September Term 2012, Argued Sept. 11, 2012. Decided March 22, 2013. Opinion by McDonald, J.

Issue:
(1) Did a lower court err when throwing out expert testimony on the source of exposure in a lead paint lawsuit? (2) Is expert testimony needed to establish the source of exposure to lead paint?

Holding:
No. (1) The lower court had discretion to exclude the expert testimony of a pediatrician as to the source of lead paint exposure. (2) Exposure to lead paint can be proved through circumstantial evidence; expert testimony is not necessary.

Counsel:
William Beveridge Jr. of The Law Offices of Peter T. Nicholl in Baltimore for petitioner; Paul J. Weber of Hyatt & Weber P.A. in Annapolis for respondent.

RecordFax 13-0322-20 (29 pages).