Please ensure Javascript is enabled for purposes of website accessibility

Pediatrician’s experience prevails, Court of Appeals finds

Judges revive lead-paint suit, limit doctor's testimony

A board-certified pediatrician with 20 years’ experience can testify to the harm caused by lead exposure but not to the source of the poisoning without having examined the child, a divided Maryland high court ruled in reviving a Baltimore lead-poisoning lawsuit.

‘The nature of the job is to do meaningful things,” says retiring Judge Glenn T. Harrell Jr., of serving on the bench. ‘It’s all very infused with significance and importance. You makethings happen.’ (Maximilian Franz/The Daily Record)

‘Although Dr. [Eric] Sundel may not be the most qualified expert witness on medical causation, a court’s concern at the summary-judgment stage is whether his testimony is admissible,’ Judge Glenn T. Harrell Jr. wrote in reviving a lead-paint lawsuit, which a Baltimore City Circuit Court judge had thrown out over Sundel’s testimony. (Maximilian Franz/The Daily Record)

In its 5-2 decision, the Court of Appeals vacated a trial judge’s summary-judgment grant to the defense after he ruled the pediatrician, an expert witness for the plaintiff, could not testify as to injuries caused by lead poisoning because the doctor had never treated a patient with the affliction — including Jakeem Roy, the alleged victim in the case.

The high court said Dr. Eric Sundel’s knowledge of pediatric illness, gleaned from years of keeping up with medical studies, qualified him under the Maryland rules of civil procedure to testify at trial as to the cause and effect of lead poisoning generally.

But Sundel’s research-based knowledge did not qualify him to testify regarding Roy’s specific condition or whether the source of his cognitive delays was flaking and chipping paint at the home his family rented from Sandra B. Dackman on Oswego Avenue. Such testimony would have to come at trial from his other experts, including an industrial hygienist and toxicologist, the high court said.

“Although Dr. Sundel may not be the most qualified expert witness on medical causation, a court’s concern at the summary-judgment stage is whether his testimony is admissible,” Judge Glenn T. Harrell Jr. wrote for the majority. “Based on Dr. Sundel’s background, affidavit, and deposition … it is apparent that he is competent, under the standards set forth in Md. Rule 5-702, to testify as to medical causation here.”

‘Sufficient background’

The Roy lawsuit marked the second time Sundel’s qualifications to testify in a lead-poisoning case came under scrutiny.

In 2013, the intermediate Court of Special Appeals held in City Homes Inc. v. Hazelwood that Sundel was not competent to testify as an expert because he had only read articles generally about lead poisoning but had not studied the matter intensively.

However, since the Hazelwood trial, Sundel stated he has extensively studied the causes of lead poisoning and has consulted often with neurologists and psychologists regarding whether environmental toxins, such as lead, might have caused a patient’s brain damage, cognitive defects or physical symptoms.

“With this experience and as a board-certified pediatrician, Dr. Sundel was shown on this record to possess a sufficient background from which to provide an opinion as to the injuries claimed to have been suffered by Roy as the result of alleged exposure to lead,” wrote Harrell, a retired judge specially assigned to hear the case. “Whether a jury will find his testimony persuasive will depend, in large measure, on the effectiveness of [Dackman’s] cross examination and a comparison/weighing by the jury against [Dackman’s] competing witness(es)’ testimony.”

Dissenting from Harrell’s opinion, Judge Robert N. McDonald said the majority should have deferred to the trial judge’s reasonable conclusion that Sundel lacked the expertise to testify in Roy’s lead-poisoning case.

“In my view, the answer provided by the majority opinion as to whether Dr. Sundel should be allowed to testify on medical causation in lead-paint cases is probably the better answer, but that does not mean that the circuit court here abused its discretion in ruling as it did,” wrote McDonald, who was joined by Judge Lynne A. Battaglia. “Indeed, it seems odd to hold that a circuit court ‘abused its discretion’ by following a very recent appellate decision precisely on point.”

Link not shown

Neither Roy’s attorney, Scott E. Nevin, nor William C. Parler Jr. and Kelley Grafton, Dackman’s counsel, returned telephone messages seeking comment Friday on the high court’s decision. Nevin is with The Law Offices of Peter T. Nicholl in Baltimore; Parler and Grafton are with Parler & Wobber LLP in Towson.

Roy, now 19, lived at the Oswego Avenue home with his mother and siblings for most of the first two-and-a-half years of his life.

According to Roy’s complaint, the home was built in 1920 and contained chipping, peeling and flaking paint, which he ingested. The lead exposure caused him to suffer elevated blood-lead levels, which have reduced his intelligence quotient and impaired his attention, coordination and memory, stated the lawsuit, filed June 29, 2011.

Baltimore City Circuit Judge Charles J. Peters excluded Sundel as a witness before trial and granted summary judgment for Dackman in May 2013, ruling that, without a medical expert, Roy could not show the link between his elevated lead levels and the Oswego Avenue home.

The Court of Special Appeals affirmed Peters’ summary judgment order in a reported opinion last October, prompting Roy to seek review by the high court.

Harrell was joined in the majority opinion by Chief Judge Mary Ellen Barbera and Judges Clayton Greene Jr., Sally D. Adkins and Alan M. Wilner, another retired jurist sitting by special assignment.

The case is Jakeem Roy v. Sandra B. Dackman et al., No. 6, September Term 2015.