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Opinions – 4/18/13: Maryland Court of Special Appeals

Administrative Law

Evidence at police trial board hearing 

BOTTOM LINE: The police department, in a disciplinary proceeding of an officer, did not violate the rights of the officer by failing to disclose certain information regarding the FBI’s investigation of another officer, because such information was not exculpatory.

CASE: Baltimore Police Department V. Ellsworth, No. 0005, Sept. Term, 2012 (filed March. 25, 2013) (Judges Zarnoch, WRIGHT & Moylan (retired, specially assigned)). RecordFax No. 13-0325-00, 24 pages.

FACTS: On August 7, 2009, Baltimore Police, along with the Detective Unit (“DDU”) and Homicide, responded to the possible abduction of a correctional officer. Sergeant Milton Snead, a DDU supervisor, spoke with Sgt. Deneen Williams of the Family Crimes Unit (“FCU”), who asked him to send units to the scene, gather information, and report back before FCU sent any units to investigate. Snead informed Officer Daniel Redd, Det. Thomas Bender, and Lt. Damien Carter, who was off duty, and Sgt. John Jackson notified Det. Joshua Ellsworth of the possible abduction at the scene.

Ellsworth and Jackson were already present when Redd and Bender arrived at the scene. Redd and Bender spoke to Ellsworth, who informed them that Homicide was not handling the investigation. Redd gave Ellsworth his cell phone so that Ellsworth could update Williams and Ellsworth told Redd that FCU would respond to the scene.

During the preliminary investigation, a second possible crime scene was identified based on a van matching the description of one involved in the alleged abduction and an address allegedly associated with the suspect. The initial responders to this scene were commanded by Sgt. Jonathan Brickus, although Carter was the permanent ranking supervisor present at the scene. Ellsworth, Redd, and Bender arrived shortly thereafter. There was some confusion about who would be handling the investigation. As a result, it was not clear if Brickus, as supervisor, was relinquishing control of the investigation.

Prior to establishing a formal plan, Ellsworth started walking to the house believed to contain the suspect and victim. Brickus told Ellsworth multiple times to stop, but Ellsworth did not respond. Brickus yelled to Ellsworth that Ellsworth would be suspended if he continued, but Ellsworth ignored Brickus. Carter then yelled to Ellsworth to come back and Ellsworth did.

Ellsworth and Brickus engaged in a heated exchange on the street before numerous civilians and officers. Brickus demanded that Ellsworth turn over his badge and handgun, and Ellsworth remonstrated that Brickus did not have the authority to suspend him, as he was not his supervisor. Carter informed Ellsworth that he, Carter, was his supervisor, and instructed Ellsworth to surrender his badge and handgun to Brickus. Ellsworth complied.

Ellsworth later accompanied Bender to question a man living next door to the house. As they were knocking on the door, Brickus noticed them and looked for Carter to have Carter intervene, however, Carter was unavailable. Brickus ordered Ellsworth to get off the porch of the house, but he did not comply. Brickus pushed him off the porch and, when Ellsworth tried to re-enter, Brickus took out his handcuffs.

Ellsworth was charged with violations of the Rules and Regulations of the Police Department of Baltimore City, including 1) conduct unbecoming an officer; 2) willfully disobeying a lawful command or order; 3) unethical conduct of failing to cooperate and assist colleagues; and 4) insubordinate or disrespectful to superior officer. The Charging Committee recommended that Ellsworth be terminated.

At a Trial Board hearing, Ellsworth’s counsel attempted to impeach Redd’s credibility through evidence related to an ongoing FBI investigation of Redd. On objection, the Board did not allow extrinsic evidence of any alleged wrongdoing by Redd to be admitted.

The Board found Ellsworth guilty and recommended seven days loss of leave and a letter of reprimand as punishment. Ellsworth filed a Petition for Judicial Review in the circuit court, arguing that the Board erred in not requiring the police department to provide exculpatory evidence related to Redd’s alleged misconduct. The court reversed the decision and remanded the case to the Board for further proceedings.

The Police Department appealed to the Court of Special Appeals, which reversed the judgment of the circuit court.

LAW: Pursuant to Maryland Rule 4-263, the State’s Attorney is required to disclose both “exculpatory information” and “impeachment information.” Exculpatory information includes all material or information in any form, whether or not admissible, that tends to exculpate the defendant or negate or mitigate the defendant’s guilt or punishment as to the offense charged. Impeachment information includes all material or information in any form, whether or not admissible, that tends to impeach a State’s witness including evidence of prior conduct to show the character of the witness for untruthfulness pursuant, prior criminal conviction, and pending charges, or probationary status.

The Law Enforcement Officer’s Bill of Rights (“LEOBR”) does not contain a similar requirement, nor do the Maryland Rules relating to discovery in civil cases. See Maryland Rules 2-401, 2-402, and 3-401. The LEOBR only requires that the charged officer be provided with a copy of the investigatory file and any exculpatory information.

The definition of “exculpatory” as set forth in the criminal context is instructive. In Robinson v. Maryland, 354 Md. 287 (1999), the Court of Appeals affirmed a circuit court’s jury instruction that exculpatory “means free from guilt…the opposite of guilty.” The Court of Appeals has adopted the definition of exculpatory as “clearing or tending to clear from alleged fault or guilt.” See Colkley v. State, 204 Md. App. 593, 607 (2012).

Here, Ellsworth failed to make a persuasive argument that the information pertaining to Redd’s alleged misconduct would clear him of the administrative charges of being disrespectful to a superior officer or engaging in conduct unbecoming an officer and, therefore, did not fall within the definition of “exculpatory.”

Ellsworth’s argument was that any information that the police department had regarding Redd’s alleged misconduct would have facilitated his impeachment of Redd’s credibility. The LEOBR, unlike the Maryland Rules for criminal cases, does not require disclosure of impeachment evidence and such conduct may not be proved by extrinsic evidence.

The record demonstrated that the Board allowed, over the Police Department’s objections, Ellsworth to question Redd about “prior bad acts” but limited Ellsworth to the answers given by Redd. Therefore, in accordance with the Maryland Rules, the Board correctly denied the introduction of extrinsic evidence related to Redd’s “prior bad acts.”

The police department did not violate the rights of Ellsworth by failing to disclose information regarding the FBI’s investigation of Redd, nor did the Board err in excluding extrinsic evidence related to Redd’s prior bad acts.

Accordingly, the decision of the circuit court was reversed and the case remanded.

COMMENTARY: The scope of judicial review of a LEOBR case is the same as for an administrative appeal. Coleman v. Anne Arundel Cnty. Police Dep’t, 369 Md. 108 (2002). When the court reviews administrative decisions, the court examines if there is substantial evidence in the record as a whole to support the agency’s finding and conclusions, and to determine if the administrative decision was premised upon an erroneous conclusion of law. Mehrling v. Nationwide Ins. Co., 371 Md. 57 (2002).

In applying the substantial evidence test, a reviewing court decides whether a reasoning mind reasonably could have reached the factual conclusion the agency reached. A reviewing court should defer to the agency’s fact-finding and drawing of inferences if they are supported by the record and review the agency’s decision in the light most favorable to it. Motor Vehicle Admin. v. Carpenter, 424 Md. 401 (2012). An agency’s factual findings are given deferential review, but the court is not bound by the agency’s interpretation of law, which are reviewed de novo. Mayer v. Montgomery Cnty., 143 Md. App. 261 (2002).

Criminal Procedure

Right to counsel 

BOTTOM LINE: The Sixth Amendment right to counsel is not vulnerable to a waiver by inference merely from informed silence or the act of confessing after having been given Miranda rights. Therefore, where defendant was represented by counsel and never expressly waived his Sixth Amendment right to counsel, the state violated that right by failing to notify counsel when an indictment was handed up after defendant had been released on bail, re-arresting the defendant and subjecting him to extended interrogation without counsel present; thus, inculpatory statements made during that interrogation were inadmissible.

CASE: In re Darryl P., No. 2942, Sept. Term, 2011 (filed Mar. 25, 2013) (Judges Kehoe, Watts & MOYLAN (retired, specially assigned)). RecordFax No. 13-0325-02, 92 pages.

FACTS: Darryl P. was originally charged as an adult with first and second degree assault and with the use of a handgun. The charges arose from Darryl’s involvement in the January 6, 2011, shooting of Terrell Swales during an attempted robbery. At that time, Darryl was 17 years old. He turned himself in to the police on a warrant that had been issued by the district court.

On February 23, 2011, Darryl was released on $10,000 bail. When interviewed by a deputy sheriff on that occasion, Darryl invoked his right to counsel, and all questioning ceased. While his case was pending in the district court, Darryl retained counsel, and counsel entered his appearance.

Darryl remained free on bail until he was rearrested on May 6, 2011. The arrest was on the basis of an indictment returned by the grand jury for St. Mary’s County on April 6, 2011.

The indictment charged Darryl with original crimes charged in the district court warrant, as well as several additional charges based on the same criminal conduct. The seven counts included in the indictment were: 1) attempted armed robbery; 2) attempted simple robbery; 3) first degree assault; 4) second degree assault; 5) reckless endangerment; 6) conspiracy to commit armed robbery; and 7) the use of a handgun. Each count referred to the attack on Terrell Swales on January 6, 2011. Thus, Counts 3, 4, and 7 repeated the counts that had been charged before the district court, while Counts 1, 2, 5, and 6 were new.

On May 6, 2011, Darryl was subjected to a four-part interrogation by Det. Robert Merritt from 1:30 a.m. until 4:00 a.m. Darryl’s counsel was not present during any portion of the interrogation by Merritt. During the interrogation, Darryl made a number of oral statements to Merritt, including an inculpatory statement that he later sought to suppress.

On October 11, 2011, jurisdiction over Darryl’s case was waived from the criminal court to the juvenile court. After jurisdiction had been waived to the juvenile court, Darryl filed, on October 19, 2011, a motion to suppress the inculpatory oral statement he had made to Corporal Merrit following his rearrest on May 6. The suppression hearing judge denied the motion, and Darryl was subsequently found by the circuit court to be a delinquent.

Darryl appealed to the Court of Special Appeals, which reversed.

LAW: A person’s Sixth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. The constitutional entitlement to counsel is a two-step process. First, it is necessary that the defendant qualify as “the accused” so as to be eligible for the right generally. Moran v. Burbine, 475 U.S. 412, 430 (1986). Second, it is specifically required that the defendant be at a “critical stage” in the criminal proceedings. See Montejo v. Louisiana, 556 U.S. 778 (2009). A post-indictment confrontation between government agents and the accused designed to elicit incriminating admissions qualifies as just such a “critical stage.” Id. at 786.

Here, following Darryl’s arrest on a warrant on February 22, 2011, he was taken before a district court judge, whereupon he made bail. As of February 22, therefore, Darryl was the “accused” and was entitled to counsel on the three charges of first degree assault, second degree assault, and the use of a handgun. Rothgery v. Gillespie County, 554 U.S. 191, 194 (2008). The four later charges of armed robbery, simple robbery, unlawful endangerment, and conspiracy to commit armed robbery did not, however, qualify as “closely related” crimes under the rigorous “lesser included” test. Texas v. Cobb, 532 U.S. 162, 173 (2001); see also Blockburger v. United States, 284 U.S. 299, 304 (1932). The Sixth Amendment right to counsel is “offense specific,” and the Sixth Amendment coverage of the three early charges would not have extended to the four charges that only came six weeks later. McNeil v. Wisconsin, 501 U.S. 171, 175 (1991).

Nevertheless, the indictment of April 6, 2011, cured that problem and conferred upon Darryl the right to counsel with respect to all seven of the ultimate charges against him (albeit redundantly with respect to the first three). As of the interrogation of May 6, 2011, the right to counsel covered all of the charges. Once an “accused” takes on his entitlement to counsel, as Darryl did on all charges, the police, absent a waiver from him, are barred from questioning him without his lawyer present. See Massiah v. United States, 377 U.S. 201 (1964); see also Brewer v. Williams, 430 U.S. 387 (1977).

Thus, once a defendant takes on the Sixth Amendment right to counsel, the government is prohibited from deliberately eliciting an incriminating conversation with the defendant and thereby interfering with the right to counsel. United States v. Henry, 447 U.S. 264, 272 (1980).

In the present case, at the time that he was interrogated by Merritt on May 6, Darryl had a clear right to counsel. Nevertheless, Merritt subjected him to two and a half hours of intense questioning without counsel present. Thus, unless Darryl waived his right to counsel, that right was violated by Merritt’s interrogation. As such, the dispositive issue was whether there occurred such a waiver.

Under the landmark case Edwards v. Arizona, once a suspect has invoked the right to counsel, any subsequent conversation with law enforcement officers must be initiated by him. Edwards v. Arizona, 451 U.S. 477 (1981). Edwards was grounded in the understanding that the assertion of the right to counsel is a significant event, and that additional safeguards are necessary when the accused asks for counsel. The Edwards rule is designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights. It does this by presuming his post-assertion statements to be involuntary, even where the suspect executes a waiver and his statements would be considered voluntary under traditional standards. This prophylactic rule thus protects a suspect’s voluntary choice not to speak outside his lawyer’s presence.

The constitutional right to counsel includes but is broader than the prophylactic right to counsel. The prophylactic right to counsel, for instance, affords no protection whatsoever from surreptitious interrogation, because it poses no threat of compelled self-incrimination. Illinois v. Perkins, 496 U.S. 292 (1990). The Sixth Amendment right to counsel, on the other hand, affords absolute protection against surreptitious interrogation, notwithstanding the total absence of any threat of compelled self-incrimination. Massiah v. United States, 377 U.S. 201 (1964). Their respective waivers, therefore, cannot be identical.

The Supreme Court has handed down three major decisions on the waiver of the right to counsel: Michigan v. Jackson, 475 U.S. 625 (1986); Patterson v. Illinois, 487 U.S. 285 (1988); and Montejo v. Louisiana, 556 U.S. 778 (2009). However, very little has been said by the Supreme Court regarding the right of the accused “to rely on counsel as a medium between himself and the State.” Although Edwards rested on the Fifth Amendment, the assertion is no less significant, and the need for additional safeguards no less clear, when the request for counsel is made at an arraignment and when the basis for the claim is the Sixth Amendment. As such, if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.

The prosecution here argued that, under Patterson v. Illinois, 487 U.S. 285 (1988), a virtually automatic waiver of the Sixth Amendment right occurs whenever the requirements of Miranda are satisfied. However, when Patterson equated a waiver of the Miranda-based prophylactic right with a waiver of the Sixth Amendment right, it did so in the limited context of custodial interrogation where the two rights were coterminous. Patterson, 487 U.S. at 292-93, 293 n.5. The Patterson holding was silent on the effect of a Miranda waiver on the right to counsel beyond the narrow context of custodial interrogation,

Thus, here, it was necessary to take a broader view of Darryl’s 6th Amendment right to counsel. This right was not limited to counsel’s presence during the May 6th interrogation by Merritt, and, therefore, could not so simply be waived. Darryl had had privately retained counsel for two and a half months before the May 6th interrogation. That contractual right to counsel had ripened into a constitutional right to counsel as to some, if not all, of the charges against him as of February 23, 2011, ten weeks before he was interrogated without counsel. The contractual right to counsel had ripened into a constitutional right to counsel indisputably with respect to all charges with the indictment of April 6, a full month before Darryl was subjected to uncounseled interrogation The State, as an entity, was fully aware, moreover, of both Darryl’s constitutional right to counsel and his contractual retention of counsel.

As such, Darryl had a Sixth Amendment right to counsel during the early morning hours of May 6 that went beyond the mere Fifth Amendment-based right to the presence of a lawyer during custodial interrogation. This extended or incremental right to have “counsel as a medium between himself and the State” was not voluntarily and knowledgeably waived. The defendant had the right to have the fact of his April 6, 2011, indictment communicated to his lawyer, if not to himself, a full month before he was subjected to uncounseled interrogation, and Darryl never did expressly waive his right to counsel.

In sum, the prophylactic right to counsel comes into existence only when it is unambiguously invoked — perhaps deep into the interrogation, if ever. The constitutional right to counsel, by contrast, comes into existence automatically, whether or not invoked, at the moment the suspect is formally charged. The broader Sixth Amendment protection of counsel, as a necessary medium between the accused and the State, is not vulnerable to a waiver by inference from merely informed silence or from merely the act of confessing itself after having been given Miranda rights. Darryl’s confession was a direct and unattenuated fruit of the violation of his Sixth Amendment right to have “counsel as a medium between himself and the State,” and the inculpatory statement should therefore have been suppressed.

Accordingly, the judgment of the circuit court was reversed.

COMMENTARY: Darryl’s assertion, however, that the statement taken from him by Merritt on May 6, 2011 was taken in violation of his prophylactic right to counsel as protected by Edwards v. Arizona, was without merit. Darryl did not effectively invoke a Miranda-based right to counsel on February 23, 2011. Moreover, he was no longer in custody after that day. The coercive effect of earlier custody cannot survive for more than 14 days. Thus, any hypothetical right that Darryl might have enjoyed under Edwards v. Arizona would therefore have lapsed as of March 9, 2011. At that point, the historic slate was wiped clean.

It was therefore necessary to view the subsequent encounter of May 6, 2011, in a totally fresh perspective insofar as Edwards v. Arizona and the initiation of contact is concerned. Based on the transcript, the Miranda rights were given by Merritt, and Darryl stated multiple times that he understood the rights before making an inculpatory statement. At no time in the course of the recorded interviews did Darryl invoke his right to silence or his right to counsel, and his responses to the detective’s questions constituted a course of conduct indicating a waiver of his rights to counsel and to silence. As such, Darryl did waive his prophylactic right to counsel and to silence.

PRACTICE TIPS: The exclusionary rule bars the admission of evidence that was the indirect product or “fruit” of police misconduct in violation of the Fourth Amendment. Maryland has no exclusionary rule of its own. Thus, police conduct must violate the federal Constitution in order for its fruits to be excluded; the exclusionary rule does not apply simply where the alleged conduct violated the Maryland Declaration of Rights.

Evidence

Expert testimony 

BOTTOM LINE: The circuit court abused its discretion in permitting plaintiff’s expert to testify, as he was not qualified and lacked a sufficient factual basis for his testimony.

CASE: City Homes, Inc. v. Hazelwood, No. 2109, Sept. Term, 2011 (filed Mar. 22, 2013) (Judges Hotten, WATTS & Eyler, J. (retired, specially assigned)). RecordFax No. 13-0322-04, 92 pages.

FACTS: From her birth in 1990 until 1998, Brittany Hazelwood resided with her parents at 4 North Stockton. During that time, she visited 6 North Stockton, where her grandfather lived.

Hazelwood sued City Homes, Inc., which owned the properties, alleging that she was exposed to chipping, peeling, and flaking lead-based paint powder and dust. Hazelwood’s blood-lead levels were tested and reported on seven separate occasions.

Hazelwood’s counsel designated Dr. Eric Sundel, a pediatrician, as an expert witness. City Homes filed a motion to exclude Hazelwood’s experts and motion for summary judgment. The circuit court denied both motions.

During voir dire, Dr. Sundel testified that he was currently employed at the Baltimore-Washington Medical Center and served as chairman of the Department of Pediatrics from 2004 until January 2011. Sundel testified that he is a board-certified pediatrician licensed to practice medicine in Maryland. Sundel’s curriculum vitae listed publications, which Sundel acknowledged did not concern the topic of childhood lead poisoning. Sundel testified, however, that as a pediatrician, he keeps current with childhood lead poisoning issues. Sundel acknowledged that he is not a certified lead risk assessor. Sundel testified that he had never testified in court as an expert in a lead paint poisoning case.

During voir dire cross-examination, Sundel admitted that he was not a psychologist or neuropsychologist, and that he does not administer IQ or achievement tests. Sundel acknowledged that his one instance of involvement with chelation therapy occurred in the mid-1980s when he was a first or second year resident, and that, since that time, he could not recall being involved with any children receiving chelation therapy. Sundel did not have any accreditations or certifications related to lead inspection or lead assessments, and he had never been involved in any Baltimore City tests of drinking water and soil for lead nor involved in any Maryland Department of the Environment studies on lead in the soil. Sundel was not involved with the lead testing of 4 North Stockton, and had never visited the property.

After voir dire of Sundel, City Homes objected pursuant to Rule 5-702(1) and (3) to Sundel being accepted as an expert. The circuit court overruled the objection.

Sundel testified that he was provided records concerning Hazelwood which he reviewed prior to issuing a written report. Sundel testified that he reviewed the various records regarding Hazelwood’s blood lead levels, and that the levels remained elevated for several years. Sundel testified that a home built in 1900, like the residence at 4 North Stockton, would have a “higher risk” than a home built later. Sundel opined to a reasonable degree of medical probability that 4 North Stockton was the location where Hazelwood was exposed to flaking and chipping lead-based paint.

Sundel testified that he reviewed Hazelwood’s school records and that Hazelwood had a lot of trouble academically. Sundel explained that elevated blood lead levels “cause loss of IQ points” as well as behavioral problems, such as hyperactivity, attention deficit disorder with hyperactivity, or aggressiveness. Sundel offered the opinion that Hazelwood sustained an IQ loss of seven to ten IQ points as a result of her elevated blood lead levels. Sundel opined to a reasonable degree of medical probability that lead exposure at 4 North Stockton was a substantial contributing factor to injuries Hazelwood sustained.

In addition to Sundel’s testimony, there was testimony from Christopher J. White, Arc Environmental Inc., Program Manager, who gave an opinion regarding the presence of lead-based paint on the interior and exterior of the property at the time of testing, as well as the time Hazelwood lived at the subject property.

As a witness for City Homes, Patrick Connor, an environmental consultant and licensed lead risk assessor, testified that he is the president of a company known as Connor Environmental, which conducts environmental engineering and, specifically, forensic work in the area of lead-based paint.

Mr. Connor revealed that he might have a document that reflects positive lead tests back in 1993 of 4 North Stockton. He even made reference that there was a Kennedy Krieger record. Hazelwood’s counsel informed the circuit court that City Homes’s counsel did not have a copy of the December 29, 1993, report referenced by Connor.

After the jury had begun its deliberations, but before it rendered a verdict, William Parler, City Homes’s counsel, sent a letter to the court, stating that it found the document referenced by Connor in a City Homes file and that it had not been produced to Hazelwood. Attached to the letter, Parler provided a report titled “Kennedy Krieger Institute Spectrum Analyzer” for 4 North Stockton dated December 29, 1993, which indicated that lead was detected on multiple surfaces throughout 4 North Stockton.

The jury returned a verdict in favor of Hazelwood. The jury awarded $5.1 million, including $900,000 in economic damages for lost earning capacity and $4.2 million in non-economic damages. The circuit court reduced the non-economic damages award to $350,000

Hazelwood filed a motion for sanctions, requesting that the circuit court sanction Parler for intentionally withholding the report. The circuit court granted the motion for sanctions, in part, and ordered City Homes to pay $10,135 to Hazelwood to compensate her for the costs of the testing, reporting and testimony.

The Court of Special Appeals reversed and remanded.

LAW: “[T]he admissibility of expert testimony is a matter largely within the discretion of the trial court, and its action in admitting or excluding such testimony will seldom constitute a ground for reversal. Therefore, [w]e review these types of evidentiary rulings pursuant to the abuse of discretion standard, reversing only when the court exercise[d] discretion in an arbitrary or capricious manner or…act[ed] beyond the letter or reason of the law.” Taylor v. Fishkind, 207 Md. App. 121, 137 (2012).

“Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue.” Rule 5-702

Rule 5-702 “delineates three factors a court must evaluate for the admission of expert testimony: (1) an expert must be qualified (Rule 5-702(1)); [(2)] the expert testimony must be appropriate for the particular subject (Rule 5-702(2)); and (3) a sufficient factual basis must exist to support that testimony (Rule 5-702(3)).” Giant Food, Inc. v. Booker, 152 Md. App. 166, 182 (2003).

In Radman v. Harold, 279 Md. 167 (1977), a gynecologist and surgeon, performed a total abdominal hysterectomy upon Harold, and while doing so, unintentionally nicked Harold’s bladder, causing her to undergo two additional procedures in order to repair the bladder. At trial, Harold proffered an internal medicine specialist as an expert witness qualified to testify as to the standard of care required of a surgeon performing a hysterectomy. Id. at 167-68. The trial court ruled that the internal medicine specialist lacked the necessary qualifications to testify. Id.

The Court of Appeals stated that “a witness may be competent to express an expert opinion if he is reasonably familiar with the subject under investigation, regardless of whether this special knowledge is based upon professional training, observation, actual experience, or any combination of these factors.” Id. at 169. The Court of Appeals remanded the case so that the trial court could determine whether Harold’s expert, based on his overall familiarity with the hysterectomy procedure, was qualified to testify as an expert. Id. at 176.

“An expert’s opinion testimony must be based on a[n] adequate factual basis so that it does not amount to ‘conjecture, speculation, or incompetent evidence.’ Furthermore, the testimony must also reflect the use of reliable principles and methodology in support of the expert’s conclusions.” Giant Food, 152 Md. App. at 172.

In Taylor v. Fishkind, 207 Md. App. 121 (2012), the plaintiff resided at one property for approximately two and one-half years before moving to the property at issue, where she lived for just over a year before moving to a third property, where she resided for ten years. Id. at 125. On three different occasions spanning five years, the plaintiff’s blood lead levels were elevated when tested, two of which occurred while living in the property. Id. at 125-26. The plaintiff designated a pediatrician as one of her expert witnesses, stating that the doctor would opine that the plaintiff experienced permanent brain damage and a loss of IQ points as a result of lead exposure, and that the doctor’s opinions were based “upon her review of the medical, environmental and school records related to th[e] case[,]…the numerous medical studies that link cognitive deficiencies and IQ loss to early childhood lead exposure[, and] her medical education, training and experience[.]” Id. at 126.

The doctor submitted a “causation report” offering the opinion that the plaintiff was exposed to lead at the first two properties she resided in, and basing her opinion on “the age of the dwellings, the described conditions of the [property], the detection of lead in an exterior window apron of this [property] and [the plaintiff]’s blood lead levels while living at each dwelling.” Id. at 129-30. The doctor further stated that the dwellings were located in an area “known to contain lead paint” and of an age “to most probably contain lead based paint.” Id. at 130. At her deposition, the doctor admitted that there was no blood lead level data for a period of a year and a half immediately preceding and following the time when the plaintiff moved into the property. Id. at 131. The doctor was unable to state whether the plaintiff’s blood lead level rose while residing in the property, acknowledging that the “only thing [she] kn[e]w is that [the plaintiff] was living there when it was found to be up.” Id. at 132. The doctor agreed that the fact that the plaintiff had an elevated blood lead level while residing at the property was not proof that she was exposed to lead at the property as the lead could have been in her body “from some other source prior to the time that she moved in[.]” Id. at 133. The trial court granted the defendant’s motion for summary judgment on the ground that the doctor’s testimony was inadmissible because she lacked an adequate factual basis to support her opinion that the plaintiff was exposed to lead-based paint at the property. Id. at 136.

The Court of Special Appeals affirmed. Of significance was the expert’s inability to rule out other sources of lead or to conclude that the plaintiff’s blood lead level rose while living at the property. Id. at 146. As to the age of the property, this Court stated that age alone is not enough to support a conclusion that a house contains lead-based paint as there is no presumption that old houses contain lead-based paint. Id. at 143.

The Court concluded that “on the basis of [the doctor]’s testimony and the facts before the circuit court, a reasonable person could find that [the plaintiff]’s injuries could have been caused by exposure to lead-based paint at [the other property] rather than at [the property]. Therefore, the circuit court did not abuse its discretion in excluding [the doctor]’s testimony.” Id. at 147-48.

In the case at bar, the circuit court abused its discretion in failing to exclude Sundel’s testimony. During voir dire, Sundel testified that his only experience in evaluating and treating children with lead poisoning occurred during his internship and residency. Although Sundel testified children suffering elevated blood lead levels would be treated with chelation therapy, in which a medication is administered intravenously to remove lead from the body, Sundel acknowledged that his only involvement with chelation therapy occurred during the mid-1980s when he was a resident. Sundel acknowledged that he has not evaluated and diagnosed children with lead poisoning, or monitored the progress of children diagnosed with lead poisoning.

Sundel admitted that he is not a board-certified psychologist or neuropsychologist, and that he does not administer IQ or achievement tests. Sundel conceded that he had not conducted a medical or nutritional history of Hazelwood nor had he examined Hazelwood. On cross-examination, Sundel acknowledged that he does not know how to score an IQ test, and did not know the standard of error for the Weschler IQ test.

From the record and Sundel’s testimony, there was no basis on which to conclude that Sundel had specialized knowledge concerning childhood lead poisoning, and specifically, the determination of the source of a child’s lead exposure and causation. Radman, 279 Md. at 169. Nothing about Sundel’s work generally as a pediatrician leads to the conclusion that he was qualified to render the expert opinions he offered in this case on diminishment of IQ, causation, source of lead exposure, and brain impairment.

Thus, the circuit court abused its discretion in admitting Sundel as an expert pediatrician.

Similarly, the circuit court abused its discretion in permitting Sundel to testify because the record demonstrated that he lacked a sufficient factual basis for his opinions, as required by Rule 5-702(3).

The question was whether Sundel had an adequate factual basis to testify that: the property at 4 North Stockton was the source of Hazelwood’s lead exposure, Hazelwood sustained an IQ loss of seven to ten IQ points based on exposure to lead, and lead exposure at 4 North Stockton was a substantial contributing factor to injuries Hazelwood sustained, such as IQ loss, aggressiveness, hyperactivity, and brain impairment.

Sundel was not a treating physician, but rather was retained to review records and provide an opinion as to source and causation. Sundel had limited knowledge of Hazelwood’s medical history, Hazelwood’s current medical condition, or Hazelwood’s potential exposure to lead from other sources. Sundel indicated that he had not seen or questioned Hazelwood or her family, and thus, his factual basis boiled down to his review of the records provided to him by Hazelwood’s counsel, Hazelwood’s trial testimony, and his knowledge obtained from his experience and training.

Sundel opined that, based on the Arc Environmental reports, 4 North Stockton was a source of Hazelwood’s lead exposure. Sundel failed entirely, however, to consider the other properties where Hazelwood visited and resided during her childhood, failing to rule out those other properties as well as environmental sources of lead such as the water and soil at 4 North Stockton or elsewhere as sources of lead exposure.

Sundel lacked an adequate factual basis to offer opinions concerning Hazelwood’s alleged loss of IQ points or the aggressiveness, hyperactivity, and brain impairment that Sundel attributed to lead exposure. Sundel’s testimony amounted to no more than speculation based on articles he read that correlated diminished IQ with lead exposure.

Thus, the circuit court abused its discretion in permitting Sundel to testify as an expert as Sundel was not qualified and lacked a sufficient factual basis for his testimony as required under Rule 5-702(1) and (3).

COMMENTARY: Sanctions were imposed against City Homes for $10,135, the expenses Hazelwood incurred in retaining Arc Environmental. The parties agreed that Hazelwood did not request sanctions against City Homes. City Homes had no notice that the court might impose sanctions. Sanctions may not be imposed against a party without notice. See Griffin v. Bierman, 403 Md. 186 (2008). Thus, the sanction against City Homes was reversed.

With respect to the sanctions imposed against Parler, Rule 2-433(a) provides that if the court finds a failure of discovery, it may order sanctions in as are just. See Rule 2-433(a)(1)-(3). Furthermore, the court, after opportunity for hearing, shall require the failing party or the attorney advising the failure to act or both of them to pay the reasonable expenses, including attorney’s fees, caused by the failure. Rule 2-433(d). See Davis v. Davis, 97 Md. App. 1 (1993).

In imposing sanctions against Parler, the circuit court stated that it had “inherent power to sanction” and, in determining the amount of the sanction, relied, in part, upon the case of Klupt v. Krongard, 126 Md. App. 179, 197 (1999), in which the Court of Appeals held that trial courts ‘”have the power to sanction the destruction of evidence, whether that authority is derived from [the discovery sanctions rule] or from their inherent powers.’“ The monetary sanctions requested by Hazelwood-expenses and attorney’s fees-for Parler’s alleged discovery violations may properly be resolved under Rule 2-433, which provides a vehicle for expenses and attorney’s fees as sanctions in circumstances involving the failure to disclose discoverable evidence, without resort to the circuit court’s inherent authority.

Thus, the case was remanded to determine whether sanctions pursuant to Rule 2-433 in the form of an award of expenses and/or attorney’s fees against Parler are appropriate.

Negligence

Pool safety regulations 

BOTTOM LINE: Previously approved recreational swimming pools are not exempted from compliance with state and county regulations governing swimming pools; therefore, in plaintiff’s negligence per se action against apartment complex, which alleged that apartment pool failed to satisfy statutory requirements for public swimming pools and sought damages arising from near drowning of plaintiff’s son in apartment pool, circuit court erred in granting summary judgment in favor of apartment complex on basis that statutory regulations did not apply to “previously approved” apartment pool.

CASE: Paul v. Blackburn Limited Partnership, No. 2727, Sept. Term, 2011 (filed Mar. 25, 2013) (Judges Kehoe, WATTS & Elder (retired, specially assigned)). RecordFax No. 13-0325-01, 67 pages.

FACTS: Alicia Paul sued Blackburn Limited Partnership d/b/a Country Place Apartments, Berkshire Property Advisors, LLC, and Community Pool Service, Inc. (“CPS”), seeking damages for negligence and medical expenses related to the near drowning of then three-year-old son Christopher in a pool at Country Place Apartments. Blackburn owned Country Place Apartments, where Alicia and Christopher resided. The apartment complex was managed by Berkshire, and the pool was managed by CPS.

The pool was surrounded by a metal fence. At the time of the incident, the fence had not undergone any replacements or renovations since its construction in 1978. Two locked gates controlled access to the pool area. When the pool closed, staff would affix a padlock and chain to the upper half of the gate. Berkshire was responsible for maintaining and repairing the fence.

The apartment lease stated that tenants agreed to use the pool “with care in accordance with apartment rules” and to “comply with any written apartment rules and community policies.” Blackburn agreed to, among other things, comply with applicable laws regarding safety, and make all reasonable repairs. Blackburn also acknowledged its responsibility for maintaining the premises in accordance with all applicable laws.

On June 13, 2010, Christopher disappeared. His family discovered him submerged in the pool in the section closest to the gate. Paramedics resuscitated Christopher. However, Christopher suffered a severe anoxic brain injury, leaving him nonverbal, visually impaired, lacking purposeful movement of his extremities, requiring a gastric feeding tube, and dependent on constant care from others for activities of daily living.

Detective Paula Hamill found that, even while locked, there was enough “play” in the gate for a person to enter the pool area. An Owner’s Inspection Report completed shortly after the incident recommended that the fencing around the pool be repaired so that there were no breaks or gaps in the fencing. Dr. William Rowley, an aquatic design and engineering consultant, reported that Country Place had a “one of the most inadequate swimming pool barrier systems” he had seen in over 40 years of professional swimming pool design practice. Dr. Rowley found that “a sphere of 4 inches could be passed through every opening in the fence” that he tested near the gate, and that the fence posts had gaps on either side large enough for Christopher to easily pass through.

Alicia sued the defendants in the circuit court, alleging negligence per se, negligence, and recovery of medical expenses. As to negligence per se, in the complaint, Paul alleged that the defendants failed to comply with Code of Maryland Regulations (“COMAR”) 10.17.01.01et seq., Montgomery County Code (“Mont. Co. Code”) §51-1 et seq., and Code of Montgomery County Regulations (“COMCOR”) 51.00.01 et seq. The defendants subsequently filed motions for summary judgment, arguing that they owed no duty to Christopher because he was a trespasser. The circuit court granted the motions for summary judgment, finding in part that statutory and regulatory provisions governing public pools in Montgomery County did not apply to the pool at Country Place Apartments.

Paul appealed to the Court of Special Appeals, which reversed.

LAW: The stated purpose of COMAR 10.17.01.01, concerning public swimming pools and spas, is “to enact regulations that protect and promote the public health and safety of individuals at public pools in Maryland.” Under the regulations, “public pools” include limited public-use pools, recreational pools, and semipublic pools. Under COMAR 10.17.01.05B(19)(f)(v), a “recreational pool” is a pool that is provided by or used by an “apartment complex, housing subdivision, or mobile home park with more than ten units.”

COMAR 10.17.01.05B(3) defines a “barrier” as a fence or wall or a combination of a fence and wall that completely surrounds and obstructs access to the pool or spa. COMAR 10.17.01.21, concerning barriers, provides, in part, that an owner shall ensure that a recreational pool, including the required deck area, is completely surrounded by a barrier that complies with the certain requirements, including the requirement that, except when the entrance gate is open, an opening in the barrier and in the gate must not allow passage of a sphere four inches in diameter.

Under either the 1990s statutes and regulations, or the prior 1970s statutes, with which the defendants alleged they complied, the defendants were required to comply with certain requirements concerning the pool barrier. Under the 1970s statutes and regulations, the defendants were required to maintain “in good condition” a fence or other closure designed to prevent accidental or unauthorized entry into the pool. Laws of Montgomery County, 1971, Chapter 105-12; Mont. Co. Code of 1972 §51-16.

The defendants were also required to enclose the pool with a “barrier designed so as to minimize the possibility of unauthorized or unwary persons entering the pool area. Laws of Montgomery County, 1971, Executive Regulation No. 3-71 Section III(B). And, under the 1970 and 1975 BOCA Basic Building Codes, the defendants were required to “erect and maintain thereon an adequate enclosure either surrounding the property or pool area, sufficient to make such body of water inaccessible to small children.” 1970 BOCA Basic Building Code §429.83; 1975 BOCA Basic Building Code §428.8.3.

Similarly, under the 1990s statutes and regulations, the defendants were required to enclose the swimming pool with a “barrier designed so as to minimize the possibility of unauthorized or unwary persons entering the pool area.” COMCOR 51.00.01.03(B). In addition, pursuant to COMAR 10.17.01.21A(3), defendants were required to surround the pool with a barrier such that, “except when the entrance gate is open, an opening in the barrier and in the gate does not allow passage of a sphere 4 inches in diameter.” Thus, the statutes and regulations from the 1970s and 1990s demonstrated that the defendants, and all other owners of public swimming pools, were required to meet certain minimum standards as to the construction and maintenance of an adequate pool barrier.

As to which set of statutes and regulations applied to the pool at the time of the near drowning on June 13, 2010, the circuit court incorrectly determined that COMAR 10.17.01.21, and, specifically, the requirement that openings in the pool barrier and gate “not allow passage of a sphere 4 inches in diameter” did not apply to the pool at Country Place. The Country Place pool was a “recreational pool,” as defined in COMAR 10.17.01.05(19)(f)(v). Pursuant to COMAR 10.17.01.05B(18)(b)(ii), a recreational pool is a public pool for purposes of the chapter. COMAR 10.17.01.03, a “grandfathering” provision, provides limited exemptions for previously approved pools. Significantly, however, COMAR 10.17.01.03A(1) does not exempt recreational pools from complying with COMAR 10.17.01.13A and B, which mandate that owners of existing recreational pools comply with the chapter, generally, as well as with applicable State and local codes — both of which set certain minimum standards concerning pool barriers, including the four-inch sphere requirement for pool barriers contained in COMAR 10.17.01.21A(3).

COMAR 10.17.01.03B permits previously approved pools, under certain circumstances, to be maintained in their original condition. However, by the statutory terms, this exemption applies only in certain circumstances, including where repairing the pool to its original condition “does not create a danger or allow a danger to continue that threatens the health and safety of an individual using the pool.” COMAR 10.17.01.03D(1) specifically provides that the limited exemptions detailed in section B are not applicable if the previously approved pool has a condition that jeopardizes the health or safety of the public, in which case the owner shall ensure that the condition is corrected to meet the requirements of the chapter.

Thus, the exemptions provided for in COMAR 10.17.01.03A and the mandatory regulations set forth in COMAR 10.17.01.03E concern national standards promulgated for pools and spas. Both subsections are silent as to a previously approved pool’s compliance with COMAR 10.17.01.21, governing pool barriers. However, read together, the subsections of COMAR 10.17.01.03, as a whole, provide that the limited exemptions set forth in COMAR 10.17.01.03A do not apply if a condition exists that poses a threat to the health or safety of an individual or the public. As such, pursuant to COMAR 10.17.01.03, previously approved pools are required to comply with COMAR 10.17.01.21 and COMAR regulations not specifically exempted by subsection A, in circumstances where a condition exists that poses a danger that threatens the health and safety of pool users, and the circuit court erred in concluding otherwise.

In sum, as adopted, the COMAR regulations demonstrate an intent to provide measures to increase public health and safety at public swimming pools in Maryland. In light of this explicit purpose and scope, and given the legislative history demonstrating an intent to protect children at pools, in part through the adoption of the four-inch sphere requirement as set forth in the Model Barrier Code, the Country Place pool was clearly required to comply with the 1997 COMAR regulations, including COMAR 10.17.01.21. The defendants were required, by statute and regulation, to comply with the regulations and code provisions relevant to public swimming pools, in general, and pool barriers, in particular, and that the circuit court found otherwise was error.

Accordingly, judgment of the circuit court was reversed.

COMMENTARY: The statutes and regulations at issue here clearly met the requirements for adoption of standard of care as set forth in §§286 and 288 of the Restatement, Second of Torts, titled “When Standard of Conduct Defined by Legislation or Regulation Will Be Adopted.”

First, the defendants allegedly violated the applicable statutes and regulations by maintaining a pool barrier which: (1) allowed passage of a sphere greater than 4 inches in diameter when the gate was closed and (2) failed to minimize the possibility of unauthorized or unwary persons entering the pool area. COMAR 10.17.01.21A(3); COMCOR 51.00.01.03(B).

Second, the injury that resulted, Christopher’s near drowning, was a type of injury which the statutes and regulations were specifically designed to prevent. And third, Christopher was a member of the class that the statutes and regulations were designed to protect: he was a small child, a member of the general public who used a public swimming pool, and an “unauthorized or unwary person” entering the pool area.

Therefore, the defendants’ violation of the statutes and regulations properly served as evidence of negligence. See Joseph v. Bozzuto Mgmt. Co., 173 Md. App. 305, 321-22 (2007).

With regard to the final element of causation, the circuit court erred in finding that, because there was no direct proof of proximate causation — that is, no direct evidence of how Christopher circumvented the fence — Alicia Paul failed to make out a prima facie case of negligence. However, proximate cause need not be proven with direct evidence, but rather may be shown through circumstantial evidence. See, e.g., Dow v. L & R Props., Inc., 144 Md. App. 67, 75 (2002).

Given the chain of circumstantial evidence presented here, the circuit court erred in finding there was not a “scintilla of evidence” demonstrating exactly how Christopher circumvented the fence, and in granting summary judgment on the issue of causation.

PRACTICE TIPS: In a claim alleging negligence per se based on violation of a statute, the plaintiff need not show that the defendant had knowledge of the statutory violation. However, the statute itself might require knowledge in order to establish a violation.