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Md. high court finds lead paint expert qualified to testify

This 1993 photograph shows two masked workers removing debris from a bay window that had been dismantled by hand, demonstrating exterior renovation methods typically used on residences where lead-based paint was present. (Centers for Disease Control and Prevention photo)

This 1993 photograph shows two masked workers removing debris from a bay window that had been dismantled by hand, demonstrating exterior renovation methods typically used on residences where lead-based paint was present. (Centers for Disease Control and Prevention photo)

An expert in a lead paint case can testify about the medical causation and source of lead exposure based on a review of records, literature and other doctors’ reports, the state’s top court has held.

The Court of Appeals on Tuesday reiterated the logic behind its 2015 opinion in Roy v. Dackman, which held a board-certified physician with 20 years’ experience could testify to the harm caused by lead exposure despite not having firsthand experience treating a patient with lead poisoning.

In the more recent case, a pediatrician was precluded from testifying at trial about the source and medical causation of Michael Davon Crhristian’s lead exposure but the high court determined the doctor had a sufficient basis for his opinions to satisfy the Maryland Rules of Evidence and saw “no sustainable reason why the trial court would conclude otherwise.”

“It’s going to help future clients who make these kind of claims, not just in lead paint cases but in all kinds of cases, because it really solidifies the standard which an expert must overcome in order to have his or her opinions accepted by the court,” said Brian S. Brown, a lawyer for Christian.

Christian filed suit in Baltimore City Circuit Court in 2011 against Stewart Levitas, the owner of a property where Christian lived when he was born and later as a toddler, experienced elevated blood-lead levels. Pediatrician Howard Klein, the expert designated to testify about source causation and medical causation, reviewed site information, testimony about Christian’s time at the property as well as his medical and school records.

Levitas filed a motion to exclude Klein, arguing he lacked the necessary qualifications and a sufficient factual basis for his opinion because he did not examine Christian, as well as did not have information concerning other sources of lead exposure.

The trial court granted the defense motion, which was affirmed by the Court of Special Appeals. But the decision in Roy was issued while Christian’s petition for certiorari was pending, leading the top court or remand the case to the intermediate appellate court. This time, the Court of Special Appeals sided with Christian, prompting Levitas to appeal.

‘Competent’ testimony

Writing for a 6-1 majority, Judge Sally D. Adkins found Klein was qualified to testify about the effects of the lead exposure on Christian, including a loss of IQ points, despite not conducting his own examination or administering the type of IQ test used in the report he relied on.

Klein has more than 20 years of experience treating lead-poisoned children and testifying in lead paint cases, Adkins wrote, and as the court held in Roy, “an expert need not administer the IQ test to be competent to testify that lead exposure cause a loss in IQ.”

Klein’s opinion on source causation, which was based on a review of site records, Christian’s blood lead levels and his history with the residence, was also sufficient to qualify him to tell a jury that the property was a substantial factor causing the harm, she added.

Adkins noted at several time that some of the defense arguments were “grist for cross-examination” and went to the weight of Klein’s testimony, not its admissibility.

“As long as an expert’s opinion will assist the trier of fact in understanding the evidence or determining a fact at issue, he should be permitted to testify,” she wrote.”

Levitas had argued the plaintiff needed to establish that the subject property was a more-probable source of his injuries than others, which Judge Joseph M. Getty agreed with in his dissent. Adkins said the assertion is “a fundamental misunderstanding of the substantial factor test.”

Brown, of Brown & Barron LLC in Baltimore, said the court’s language “reaffirms what the courts have said in other contexts but related it directly to the lead paint context.”

Levitas was represented by William C. Parler Jr. and Kelly A. Grafton of Parler & Wobber LLP in Towson. Parler did not respond to a request for comment Thursday.

The case is Stewart Levitas v. Michael Davon Christian, No. 58 September Term 2016.


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