Roy v. Dackman , 219 Md. App. 452 ( 2014 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 558
September Term, 2013
JAKEEM ROY
v.
ELLIOT DACKMAN, et al.
Zarnoch,
Kehoe,
Leahy,
JJ.
Opinion by Leahy, J.
Filed: October 6, 2014
Jakeem Roy (“Roy” or “Appellant”) was exposed to lead before he reached age
two, according to his blood tests taken on September 17, 1997. Roy filed a complaint
through his mother, Latisha Hillery, in the Circuit Court for Baltimore City on June 29,
2011, against the owners of the two-story brick row house on 2525 Oswego Avenue
where he lived for a short period as a baby, and where, he claims, he was exposed to lead
paint. Roy asserts that as a result of the acts and omissions of the owners of the row
house, Elliot and Sandra Dackman, Jacob Dackman & Sons, L.L.C., and Brina
Corporation (“the Dackmans” or “Appellees”), he was exposed to quantities of chipping,
peeling, and flaking lead-based paint powder and dust which was a direct and proximate
cause of injuries he maintains he sustained from lead poisoning.
This appeal is from the circuit court’s grant of summary judgment in the
Dackmans’ favor.
Roy presents three issues for our review, which we have rephrased as follows:
1. Did the circuit court err when it excluded pediatrician’s testimony that Roy
suffered injuries from exposure to lead paint and that 2525 Oswego Avenue
was a substantial contributing cause of Roy’s injuries?
2. Did the circuit court err in granting summary judgment in favor of
Appellees based on the exclusion of pediatrician’s testimony and
Appellant’s failure to present expert medical evidence?
3. Did the circuit court err in finding that the circumstantial evidence
presented was insufficient to defeat summary judgment?
We find on all three questions that the circuit court did not err and we affirm its
grant of summary judgment. The court appropriately excluded the proffered expert
testimony of Appellant’s pediatrician because he was not qualified as an expert for the
1
same reasons we found him not qualified in City Homes v. Hazelwood, 210 Md. App.
615, cert. denied, 432 Md. 468 (2013), and because there was insufficient evidence to
form the factual predicate to support his testimony. The circumstantial evidence
presented (and upon which the pediatrician relied) was also insufficient to independently
establish a prima facie case for causation consistent with Hamilton, et al. v. Kirson, et ux.,
___ Md. ___, ___, No. 78-100, Sept. Term 2013 (filed June 20, 2014), and the three lead
paint causation links articulated in Ross v. Housing Auth. of Baltimore City, 430 Md. 648,
668 (2013).
Roy’s Complaint1
The amended complaint (“complaint”)2 alleges that Roy “ingested and consumed
paint chips and dust containing lead and lead pigments while living at the property,” and
that the Dackmans “fail[ed] to comply with laws, rules, regulations and ordinances of the
State of Maryland and City of Baltimore that prohibit flaking, loose or peeling paint, . . .
the use of paint with lead pigment, and the rental of dwellings that contain flaking, loose,
1
The complaint below was served on Elliot Dackman, individually and as trustee of the
assets of Jacob Dackman & Sons, L.L.C., and Sandra Dackman, individually and as trustee
of the assets of Brina Corporation. The record contains documents showing that 2525
Oswego Avenue was owned by Brina Corporation from August 1, 1990 until July 11, 1995,
when it was sold to Florine Payne. On November 25, 1996, Florine Payne assigned the
property back to Brina Corporation, and in 2003, Payne assigned the property to 2807 Violat
Avenue, LLC. However, Violat Avenue LLC was never named or joined as a party to this
action. On July 26, 2012, Appellees filed a Suggestion of Death notifying the circuit court
of the passing of Sandra Dackman on April 1, 2012.
2
The complaint was amended on December 18, 2012, to add the estate of Sandra
Dackman as an additional party defendant.
2
or peeling paint.”3 As a consequence, the complaint states Roy “suffered lead poisoning
. . . was subjected to painful testing and treatment . . . and has suffered permanent brain
damage resulting in developmental and behavioral injuries.” The complaint further
alleges that the Dackmans observed the condition of 2525 Oswego Avenue and therefore
had reason to know of the inherently unreasonable danger to which they exposed their
tenants, Roy and his family, to whom they owed a duty to use ordinary care to ensure the
property was safe and free of any lead contamination. Counts I, II, and V declare that
Roy’s lead poisoning and injuries are the direct, foreseeable and proximate result of the
Dackmans’ negligence. Counts II, IV, and VI claim the Dackmans engaged in unfair and
deceptive trade practices in violation of Maryland law by leasing the property to Roy and
his family, without notice or warning of its hazardous condition, and while concealing the
true condition of the property.4
Roy’s Childhood Residences
Roy was born in the City of Baltimore, Maryland, on April 26, 1996. He resided
at 2801 Virginia Avenue, Apartment C8, for approximately the first eight months to one
year of his life. The record is equivocal on the date Roy and his family moved to 2525
3
The complaint does not contain an allegation regarding the age of the row house,
but in response to the Dackmans’ Motion for Summary Judgment, Roy produced a copy
of a data search sheet for 2525 Oswego Avenue from the Maryland State Department of
Assessments showing that the primary structure was built in 1920.
4
Although the complaint contains three counts alleging unfair trade practices, in
violation of the Maryland Consumer Protection act (“CPA”), see Maryland Code (1975, 2013
repl. Vol.) Commercial Law Article, § 13-303, the parties did not raise any issue regarding
these counts on appeal. We do not discuss these claims further.
3
Oswego Avenue. Roy contends that he resided at 2525 Oswego Avenue from the “fall of
1996 through November 1998” in his brief submitted to the court; however, the complaint
alleges in paragraph four that Roy resided at the property from “approximately 1997 to
approximately 1998.” Roy’s mother, Latisha Hillery, testified during her deposition that
Roy moved into the premises in the fall 1996; however, Roy’s Answers to Interrogatories
indicate that Roy lived at 2525 Oswego Avenue from January 1997 to 1998.
Business records submitted by the Dackmans indicate that the property was
undergoing significant renovations from January 7, 1997 through April 3, 1997. These
renovations included extensive cleaning, painting, repairing the roof and skylights,
repairing ten windows, replacing doors and door frames, repairing walls and sheet rock
throughout the house, and installing metal on the window sills. The Dackmans contend
that the property would not have been occupied during that time. The record also
contains several work orders for minor repairs on the property dated May 2, 1997, one
including a note that a new tenant was moving in at the beginning of May 1997.
Roy and his family vacated the house in November of 1998, following damage
caused by a house fire next door. Ms. Hillery testified that she moved with Roy and her
other children, Jamal and Jaquincia, to 3710 Hayward Avenue in Baltimore City.
Lead Paint Tests
The Baltimore City Health Department (“Health Department”) was one of the first
municipal agencies in the world to officially recognize the problem of lead poisoning in
4
children related to flaking and peeling lead paint in 1931.5 Since that time, the Health
Department has advocated for and maintained programs to address this public health
concern, including: lead-based paint usage prohibitions, rental property inspections, and
strict risk abatement procedures. Inspections are conducted by licensed inspection
contractors on behalf of the Maryland Department of the Environment (“MDE”) pursuant
to the Maryland Lead Risk Reduction in Housing Law. Code of Maryland Regulations
(“COMAR”) 26.16.01. The law requires that any rental dwelling unit constructed prior to
5
Richard Rabin, 79 Am J. Pub. Health, 1669 (Dec. 1989). Following several fatal
lead poisoning cases, in 1935 the Bureau of Laboratories for the department began
providing free testing services to health care providers for determining blood lead levels.
George W. Schucker, et al. Prevention of Lead Paint Poisoning Among Baltimore
Children, 80 Pub. Health Rep. 969 (Nov. 1965). Monitoring of the problem continued,
and in 1949 the city assigned a public health nurse to investigate reports of childhood lead
consumption further and began distributing pamphlets and educational materials to health
care providers and affected families. Efforts at legislative control followed throughout
the 1950s. Id.
In June of 1951, the Baltimore City Commissioner of Health adopted Regulation
17 which read: “[n]o paint shall be used for interior painting of any dwelling or dwelling
unit or any part thereof unless the paint is free from any lead pigment.” See Baltimore
City Health Dep’t, Baltimore Health News, 113–116 (Aug.-Sept. 1951) (reprinting data
and regulation). A study by the Bureau of Industrial Hygiene then concluded that there
was a 98 percent probability of finding lead paint in a Baltimore City home where
extensive paint samplings were taken. Schucker, supra, at 970.
Following the creation of Urban Renewal Districts in the 1960s, Health Regulation
17 was codified in Ordinance Number 902 (1966), Art. 13, § 706, of the Baltimore City
Code. Nancy L. Long, Maryland Lead Poisoning Litigation 12 (1986). Next, a 1969
ordinance required that: “[a]ll lead based paint shall be removed from interior surfaces of
dwellings before repainting.” Baltimore City Ordinances & Resolutions, No. 794, at 380
(1969-1970). Finally, in 1971, the Maryland General Assembly prohibited the use of
lead-based paint state-wide “on any interior surface; on any exterior surface to which
children commonly may be exposed; on any porch of any dwelling; or except for a lead-
based industrial paint that is applied to a household appliance, on any article that is
intended for household use.” 1971 Md. Laws, ch. 495; Maryland Code (1982, 2013 Repl.
Vol.) Environment Article § 6-301.
5
1950 be registered with MDE and inspected prior to new tenant occupancy. Maryland
Code (1982, 2013 Repl. Vol.), Environment Article (“Envir.”), § 6-811 et seq.
The Dackmans assert that they had the property inspected by the State and that the
Baltimore City Health Department has no record of any violations of Baltimore City
ordinances relating to lead paint at 2525 Oswego Avenue. The MDE Lead Paint Risk
Reduction Inspection Certificate issued for 2525 Oswego Avenue on April 22, 1997,
indicates that the property was in compliance with the Full Risk Reduction standards. A
further inspection conducted by MDE on September 14, 1999, also found the property to
be in full compliance. Although there are several lead paint inspection categories, the
inspections completed at 2525 Oswego Avenue were Full Risk Reduction inspections.6
Pursuant to the pre-trial scheduling order in the case on appeal, Roy employed
ARC Environmental Inc. (“ARC”) to conduct testing at 2525 Oswego Avenue. ARC
prepared a Lead-based Paint Survey Report in September of 2012. However, because the
property was vacant and boarded at the time of testing, only the exterior of the premises
was tested.7 Those test results indicated the positive presence of lead-based paint on the
6
A Full Risk Reduction inspection is generally conducted in a vacant unit prior to
occupancy by a new tenant. Envir. § 6-815. The Full Risk Reduction standard is met by
passing the test for lead-contaminated dust, provided that any chipping peeling, or flaking
paint has been removed or repainted on the interior and exterior of the rental dwelling unit.
Id. After verifying that paint condition meets the standard, the accredited inspector must
collect dust samples from each room in the unit. Id. Each dust sample must be analyzed by
a qualified laboratory, and the results must fall below specified levels. Envir. § 6-816.
7
The circuit court record includes a second ARC Environmental test that was
conducted on April 25, 2013, which included positive lead test results on the interior of
2525 Oswego. The test results are not referenced by either party. It was not presented to
the circuit court as an exhibit attached to any responsive motion opposing summary
6
exterior first floor window sill, wall surface, handrail, porch posts, basement window
sash, and basement door threshold of 2525 Oswego Avenue.
Blood Lead Levels
Although it is unknown what Roy’s blood lead level (“BLL”) was prior to living at
2525 Oswego Avenue, reports by the Maryland Department of Health and Mental
Hygiene indicate that he had elevated levels from late 1997 through 1999. His blood
levels tested as follows:
Sample Date Blood Lead Level
09/17/97 15 ug/dl
11/19/97 10 ug/dl
05/15/98 10 ug/dl
12/07/99 9 ug/dl
judgment nor was it presented at the May 6, 2013, hearing. Nonetheless, even assuming
the test results were able to survive challenge and be considered as evidence, the motion
for summary judgment would still have been providently granted because of the lack of
expert testimony regarding medical causation. As discussed infra, the Courts of
Maryland have never held that the full spectrum of causation in a lead-based paint claim
may be proved through circumstantial evidence. Although in Dow v. L & R Properties,
Inc., 144 Md. App. 67, 75 (2002), Ross v. Housing Authority of Baltimore City, 430 Md.
648, 668 (2013), and Hamilton, et al. v. Kirson, et ux., ___ Md. ___, ___, No. 78-100,
Sept. Term 2013, slip op. at 29 (filed June 20, 2014), the appellate courts of Maryland
have found that circumstantial evidence may be sufficient to establish the link between
the defendant’s property and the plaintiff’s exposure to lead, we can find no support in
Maryland for the proposition that the link between blood lead level and the specific
injuries of a plaintiff may be proved solely through circumstantial evidence.
7
Roy’s first documented elevated BLL occurred on September 17, 1997.8 This
initial elevated reading prompted a follow-up screening on November 19, 1997. The
second screening indicated that Roy’s BLL had fallen from 15 ug/dl to 10 ug/dl.
Additional screening results show that Roy’s BLL remained at 10 ug/dl for the duration
of his tenancy at 2525 Oswego Avenue.
Proposed Expert Testimony
The proffered expert who was the subject of the dispositive motion was Dr. Eric
Sundel (“Dr. Sundel”), a board-certified pediatrician with more than 20 years of
experience. Dr. Sundel was retained by counsel for Roy to provide an opinion on
whether Roy had been exposed to toxic lead levels at 2525 Oswego Avenue and whether
that exposure resulted in injury.
In 2012, Dr. Sundel reviewed Roy’s medical and school records. He also reviewed
the SDAT sheet and exterior ARC report for 2525 Oswego Avenue. Based on his review
of those documents, he prepared a report dated October 17, 2012, in which he noted that
the house at 2525 Oswego Avenue was constructed in 1920 and that “Jakeem’s mother
8
Roy’s BLL on September 17, 1997 was 15. BLL is measured in micro-grams per
deciliter. According to Preventing Lead Poisoning in Young Children, a 2005 publication
of the Centers for Disease Control (“CDC”) submitted by Roy, readings equal to or
greater than 15 ug/dl require follow-up action. In 2012, the CDC’s Advisory Committee
on Childhood Lead Poisoning Prevention report—relied upon by Dr. Sundel—
recommended that experts use a reference level of 5 ug/dl to identify children with
elevated blood lead levels requiring case management. Report of the Advisory Committee
on Childhood Lead Poisoning Prevention of the Centers for Disease Control and
Prevention, Low Level Lead Exposure Harms Children: A Renewed Call for Primary
Prevention (Jan. 4, 2012), available at
http://www.cdc.gov/nceh/lead/acclpp/final_document_010412.pdf.
8
recalls chipping, flaking and peeling paint on the windows and window frames when she
first moved in.” He noted that Roy’s school records revealed that Roy was “very
oppositional with staff” and “very hyper.” He noted that Roy had neuropsychological
testing performed in January, 2012, and that “his full-scale IQ was 78, which fell in the
borderline impaired range of intellectual function.” Dr. Sundel stated in this report:
From multiple studies, it has been established that the major source of lead
poisoning for children in the United States is the hand-to-mouth ingestion
of dust and chips from deteriorating lead paint on interior surfaces in older
homes. Hand-to-mouth activity is most common in the first six years of
life. According to the EPA, 97% of homes in the United States build before
1940 are likely to contain lead. In 1991, the CDC advised that blood lead
levels of 10 mcg/dl or greater should prompt public health action to
minimize the risk of neurological and other damage. In 2012, the CDC
advised that this blood lead level be lowered to 5 mcg/dl. To date, no safe
lower limit of detectable blood lead has been determined.
With respect to Roy’s specific history, Dr. Sundel concluded:
In summary, Jakeem Roy had three elevated blood lead levels while
residing at 2525 Oswego Avenue from about 8 months of age to just over
two years of life. The house at 2525 Oswego Avenue was built in 1920,
when virtually all homes were painted with lead-based paint. Furthermore,
ARC testing performed in 2012 of this house’s exterior confirmed the
presence of lead-based paint.
Dr. Sundel opined that Roy had been exposed to lead while residing at 2525 Oswego
Avenue resulting in “loss of IQ points, as well as other deficits including, impaired
attention, problems with memory, and problems with coordination,” and that “these
harmful effects are expected to be permanent.”
Dr. Sundel’s deposition testimony, taken November 13, 2012, established that he
had extensive practice in pediatric medicine. But his testimony also revealed that
9
although he was familiar with some relevant studies and literature on pediatric lead
poisoning, he had never diagnosed or studied an individual with injuries or issues related
to lead. Dr. Sundel testified as to his significant experience as a pediatric hospitalist
“clinically managing the inpatients, the hospitalized pediatric patients, as well as seeing
children in the emergency department.” During his career, however, Dr. Sundel’s single
experience with lead poisoning was his participation in the treatment of a child for lead
poisoning during his first or second year of residency at Columbia Presbyterian Babies
Hospital in either 1985 or 1986. Dr. Sundel had never authored or contributed to any
publications regarding lead exposure.
Regarding the medical effects of exposure to lead-based paint, Dr. Sundel had no
background in neurology, neuropsychology, or medical toxicology upon which to base
his conclusion that exposure resulted in a loss of IQ points for Roy. Dr. Sundel admitted
he did not administer IQ tests and did not know how such tests are scored. He had never
conducted or participated in any studies assessing the cognitive effects or consequences
of lead poisoning. Finally, in the matter before us, Dr. Sundel did not conduct a medical
history of Roy and did not examine Roy. Dr. Sundel explained in his April 11, 2013,
affidavit:
Lead exposure has no signature of physical characteristics that would assist
in the diagnosis of lead poisoning. It is, therefore, not necessary for me, or
any other pediatrician, to actually conduct a physical examination of Mr.
Roy who is currently 16 years of age to determine if he was suffering any
injuries due to lead.
10
The second expert offered by Roy was Industrial Hygienist Robert K. Simon,
Ph.D. (“Dr. Simon”).9 In his June 2, 2012, report, Dr. Simon opined that “2525 Oswego
Avenue, Baltimore, MD 21218 was the location at which Jakeem Roy was initially, and
continu[ally] exposed to lead-based paint hazards.” Dr. Simon admitted during his
deposition, however, that his opinion was based entirely on records provided to him by
Appellant’s counsel:
Q. And doctor, you’ve never inspected or tested the property in this case,
2525 Oswego Avenue; is that correct?
A. Correct.
Q. You have never visited the property?
A. No.
Q. Have you had any conversations with any family members of the
plaintiff in this case?
A. No.
Q. Have you had any conversations with any of the experts designated in
this case by either the plaintiff or the defendants?
A. No.
***
Q. Doctor, can we agree that your opinions in this case are based entirely on
records provided to you by Nicholl’s law office?
***
A. Correct.
9
Dr. Simon is the same industrial hygiene expert and environmental lead risk assessor
presented by the appellant in Hamilton, slip op. at 21.
11
Dr. Simon also testified that he neither tested nor considered any other properties as a
possible source of Roy’s lead exposure.
Motion to Exclude and for Summary Judgment
On January 2, 2013, the Dackmans filed a “Motion to Exclude Plaintiff’s Experts
and Motion for Summary Judgment” (hereinafter “Motion for Summary Judgment”).10
The Dackmans sought to exclude both of Roy’s expert witnesses, Dr. Sundel and Dr.
Simon, on the basis that they lack the qualifications and sufficient factual bases required
by Maryland Rule 5-702. After a full hearing before the circuit court on February 20,
2013, the motions were denied. Shortly thereafter, this Court published its opinion in
Hazelwood, a case involving facts very similar to those sub judice, in which we reversed
and remanded, finding that the circuit court abused its discretion in permitting the same
pediatrician, Dr. Sundel, to testify as an expert on childhood lead exposure and poisoning
because he was not qualified and lacked a sufficient factual basis for his opinions.
Hazelwood, supra, 210 Md. App. at 684-91. The Dackmans then renewed their Motion
for Summary Judgment.
On May 6, 2013, the Circuit Court for Baltimore City heard argument on the
motions. In its May 7, 2013, order, the circuit court granted the renewed motion, finding
that Dr. Eric Sundel “is not qualified to provide expert opinion as the source of lead
exposure that resulted in [Roy’s] elevated lead levels,” nor is he qualified to provide an
10
The Dackmans filed a single motion entitled “MOTION TO EXCLUDE
PLAINTIFF’S EXPERTS AND MOTION FOR SUMMARY JUDGMENT,” requesting the
singular relief that the court “enter summary judgment in the Plaintiff’s claim as a matter of
law.”
12
expert opinion “as to causation i.e. that [Roy] incurred injuries as a result of lead
exposure.” The court found that without the testimony of a medical expert, Roy could not
demonstrate “the link between [his elevated] blood lead levels and the injuries allegedly
suffered by the plaintiff.”
Additional facts will be presented as they pertain to the issues discussed.
DISCUSSION
I.
Exclusion of Dr. Sundel’s Testimony
Roy contends that the circuit court erred and abused its discretion in excluding Dr.
Sundel’s testimony. Roy argues that Dr. Sundel, as a longtime pediatrician who is
familiar with some of the current lead paint poisoning literature and studies, is qualified
as a medical expert by his “knowledge, skill, experience, training or education.” Md.
Rule 5-702. Roy further asserts that Dr. Sundel’s review of Roy’s medical records,
relevant property records, and the exterior ARC report provides a sufficient factual basis
for his testimony.
The Dackmans respond that Dr. Sundel (1) has never diagnosed or treated a patient
with lead poisoning; (2) is not a certified lead risk assessor; (3) has never published any
articles or participated in any studies related to lead; (4) has not examined Roy; (5) has no
experience in testing for lead; (6) did not know whether the water at any of Roy’s
residences had been tested for lead; and (7) did not know or inquire whether 2525
Oswego Avenue had been renovated or rehabilitated prior to Roy’s tenancy.
13
A.
Standard of Review
Generally, evidentiary rulings admitting or excluding expert testimony are
reviewed under an abuse of discretion standard, and the trial court’s determination is only
reversible where it is founded on an error of law, or where the trial court has clearly
abused its discretion. Hazelwood, 210 Md. App. at 675-76 (2013); Taylor v. Fishkind,
207 Md. App. 121, 137 (2012), cert. denied, 431 Md. 221 (2013). Here, as in Hamilton v.
Kirson, the evidence presented by Roy on causation was the same evidence the experts
relied upon to form their opinions.11 Hamilton v. Kirson, No. 1530, Sept. Term, 2011,
slip op. at 14-15 (Md. Ct. Spec. App. Apr. 30), cert. granted, 433 Md. 513 (2013)
(hereinafter “Kirson”). The Court of Appeals clarified that when a circuit court “grants a
summary judgment motion on the grounds that the plaintiff’s expert lacks a sufficient
factual basis of admissible facts and the admissible evidence (if any) is insufficient
independently to prove causation, the circuit court is making a decision on the
admissibility of the expert’s testimony as part of its summary judgment decision,” which
“is reviewed on appeal without deference.” Hamilton, slip op. at 17-18, n.11 (citing
Giant Food, Inc. v. Booker, 152 Md. App. 166, 176-78 (2003)). Further, “ordinarily an
appellate court will review a grant of summary judgment only upon the grounds relied
11
As described in f.n. 9, supra, the motion for summary judgment and exclusion of
experts was filed as one motion. In reviewing this motion, the determination of the
admissibility of the expert is part-and-parcel with the overall summary judgment decision.
Hamilton, slip op. at 17-18, n.11.
14
upon by the trial court.” Id., slip op. at 20 (citing Bishop v. State Farm, 360 Md. 225, 234
(2000)). Thus, we review the grant of the motion for summary judgment in this case to
determine whether the trial court’s decision was legally correct and give no deference to
the underlying determinations. Id., slip op. at 19 (citing Tyler v. City of Coll. Park, 415
Md. 475, 498 (2010); Beatty v. Trailmaster Products, Inc., 330 Md. 726, 737 (1993)).
B.
Law and Analysis
Expert testimony may be admitted if the court determines that the testimony will
assist the trier of fact in understanding the evidence or determining an issue of fact.
Maryland Rule 5-702 outlines the factors a court must evaluate when considering the
admission of expert testimony. The rule provides:
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. In making that
determination, the court shall determine (1) whether the witness is qualified
as an expert by knowledge, skill, experience, training, or education, (2) the
appropriateness of the expert testimony on the particular subject, and (3)
whether a sufficient factual basis exists to support the expert testimony.
Md. Rule 5-702. The instant case presents questions on both the first and third of these
delineated factors.
Factor 1 – Qualification
The first requirement is that an expert be sufficiently qualified, having “special
knowledge of the subject on which he is to testify that he can give the jury assistance in
solving a problem for which their equipment of average knowledge is inadequate.”
Casualty Ins. Co. v. Messenger, 181 Md. 295, 298 (1943); Md. Rule 5-702(1). In
15
summarizing the case law, the Court of Appeals has instructed 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.” Radman v.
Harold, 279 Md. 167, 167-68 (1977).
An expert’s knowledge on a subject “may be derived from ‘observation or
experience, standard books, maps of recognized authority, or any other reliable sources,’
including ‘the experiments and reasoning of others, communicated by personal
association or through books or other sources.’” Wantz v. Afzal, 197 Md. App. 675, 683
(2011) (quoting Radman, 279 Md. at 169). A witness need not be personally involved in
the activity about which he is to testify. Id. (quoting Radman, 279 Md. at 171). Nor is it
required that an expert be a specialist to be competent to testify regarding medical matters
under Rule 5-702. Id. at 685 (citing Ungar v. Handelsman, 325 Md. 135, 146 (1992)).
In Hazelwood, as in the matter before us now, we examined whether the same
witness, Dr. Sundel, was qualified to offer an expert opinion in a lead paint case. We
could “discern no basis on which to conclude that Dr. Sundel had specialized knowledge
concerning childhood lead poisoning,” and “[n]othing about Dr. Sundel’s work generally
as a pediatrician [led] to the conclusion that he was qualified to render the expert opinions
he offered in [that] case.” Hazelwood, 210 Md. App. at 686. In accordance with those
findings, we held that Dr. Sundel was not qualified to offer expert opinion in a lead paint
case and that it was an abuse of discretion for the circuit court to allow such testimony.
16
At the May 6, 2013, hearing in the instant case on the renewed motion for
summary judgment, the circuit court acknowledged that Roy “ha[s] a problem with the
[Hazelwood] case.” The court also noted that the findings in Hazelwood—that Dr.
Sundel had not received any specialized training, had no experience in treating children
with lead poisoning and had no experience identifying the source of childhood lead
exposure—were the same arguments presented by the Dackmans.
The court observed, “[i]t would seem to me it would be an abuse of my discretion if in
fact this were on all fours [with Hazelwood] and I said nonetheless, I’m going to allow
Dr. Sundel to testify.” The court then appropriately inquired as to what additional
training, certification, or other supplementation to Dr. Sundel’s background could be
offered since Hazelwood that would qualify him as an expert in the instant case.
Roy’s counsel indicated that Dr. Sundel had recently attended seminars on the
process of testing a house for lead and cited Dr. Sundel’s affidavit as establishing his
additional bases for qualification. In his affidavit, Dr. Sundel asserts that since the
Hazelwood case, he has “reviewed approximately 20 other matters that included
environmental testing, … attended a seminar conducted by LeadTec regarding the use of
XRF testing instruments and interpretation of test results,” and “reviewed deposition
testimony of former sanitarians of the Baltimore City Health Department and defense
expert, Patrick Connor.” Nothing in the record, however, indicates that Dr. Sundel
received any further specific medical training or any certifications regarding lead or lead
paint related injuries and illnesses, or treated any additional patients with lead poisoning.
In its May 7, 2013, order granting summary judgment, the court pronounced: “this court
has not found any material differences between evidence offered in support of Dr.
Sundel’s expertise in Hazelwood and evidence offered in the present case.”
17
Factor 3 – Sufficient Factual Basis
Md. Rule 5-702(3) also requires a sufficient factual basis to support the offered
expert testimony. For an opinion to assist the trier of fact, the trier of fact must be able to
evaluate the reasoning underlying that opinion. Ross v. Housing Auth. of Baltimore City,
430 Md. 648, 663 (2013). The opinion of even the most highly qualified expert has no
probative force unless a sufficient factual basis to support a rational conclusion is shown.
Hazelwood, 210 Md. App. at 678-79.
Again, the Hazelwood opinion, through its detailed exposition of the facts and the
law, provides a platform for analyzing the basis for Dr. Sundel’s opinions. In Hazelwood,
as in this case, Dr. Sundel was not the treating physician, and the factual basis for his
opinions “boil[ed] down to his review of the records provided to him by appellee’s
counsel,” including the ARC Environmental report. Id. at 688. In both cases, Dr. Sundel
failed to investigate other properties where the plaintiff resided or consider other potential
sources of lead exposure. Id.
Although there is no dispute that an expert may base an opinion on data and facts
not directly ascertained by him but contained in the reports and studies of others, those
bases must permit reasonably accurate conclusions, not mere conjecture. Id. at 692
(citing Milton Co. v. Council of Unit Owners of Bentley Place Condo., 121 Md. App. 100,
120 (1998)). In this case, Dr. Sundel opines that the source of Roy’s lead exposure was
2525 Oswego Avenue based on: 1) deposition testimony from Latisha Hillery regarding
the presence of peeling paint; 2) the ARC report results for the exterior of the premises;
18
and 3) the age of the home. Dr. Sundel also opines that exposure to lead-based paint at
the house on 2525 Oswego Avenue resulted in a loss of IQ points for Roy, despite his
admissions that he has no background in neuropsychology; does not administer IQ tests;
does not know how such tests are scored; did not conduct a medical history of Roy; and
did not examine Roy. The bases advanced for Dr. Sundel’s opinions are consonant with
those presented in Hazelwood, in which we stated that “it is evident that Dr. Sundel’s
testimony amounted to no more than speculation.” Hazelwood, 210 Md. App. at 689.
As the circuit court observed, the instant case is “on all fours” with Hazelwood
regarding Dr. Sundel’s qualifications and the factual basis for his testimony. We find the
circuit court was legally correct in excluding the expert testimony of Dr. Sundel.
II.
Causation
Roy, relying on Dow v. L & R Properties, Inc., 144 Md. App. 67, 75 (2002),
contends that even in the absence of expert testimony, causation in a lead-based paint
case may be proved entirely through circumstantial evidence. Roy’s contention is
incorrect. In Dow, the issue raised in Appellee’s Motion for Summary Judgment was
specifically that “[t]he [Appellants] ha[d] identified no expert to testify that lead paint
existed on the premises....[and] [n]o expert was identified to testify regarding any lead
inspection or testing of the premises....” Id. at 70. In Dow, we held that the appellant
presented sufficient circumstantial evidence in response to the appellee’s motion for
summary judgment to generate a genuine dispute as to the material fact of whether the
19
paint in the rental property owned by defendant contained lead. Id. at 74. We were
“satisfied that appellants could properly establish that the paint in question was lead-
based” and was the only possible source of the appellant’s lead poisoning. Id. at 74-75.
Thus, our decision in Dow addressed establishing the presence of lead at the property and
did not address medical causation.
The Court of Appeals in Hamilton reasserted its analysis in Ross—that the theory
of causation in lead paint cases may be conceived as a series of three separate links:
(1) The link between the defendant’s property and the plaintiff’s exposure
to lead; (2) the link between specific exposure to lead and the elevated
blood lead levels, and (3) the link between those blood lead levels and the
injuries allegedly suffered by the plaintiff.
Hamilton, slip op. at 26 (emphasis omitted) (quoting Ross, 430 Md. at 668).12 In the
matter sub judice, the May 7, 2013, order of the circuit court granting summary judgment
states:
FOUND that in order to prove his case, [Roy] must show the link between
[his elevated] blood lead levels and the injuries allegedly suffered[.]
***
FOUND that whether [Roy] received injury due to [his] exposure to lead-
based paint requires the testimony of an expert, and with the exclusion of
Dr. Sundel’s testimony, [Roy] has no such evidence.
12
In applying the Ross theory of causation, we are mindful that the Court of Appeals in
both Hamilton and Ross cautioned that those decisions did not rule out the possibility that
a plaintiff might demonstrate that lead exposure was a substantial factor in a resulting injury
to an individual in other ways, Hamilton, slip op. at 26, n.15; Ross, 430 Md. at 668 n.20, but
Roy did not attempt to make such a showing to the circuit court.
20
(Citations omitted) (Internal quotation marks omitted). Thus, the circuit court determined
that Roy’s claim failed on the third of the causation links. As discussed infra, Dow, Ross,
and Hamilton each address when circumstantial evidence may be sufficient to establish
the link between the property and the plaintiff’s exposure to lead. Nonetheless, as a
general matter, it remains true that expert testimony is required for link three—medical
causation. Johnson v. Rowhouses, Inc., 120 Md. App. 579, 594 (1998) (“The issue of
whether [Appellant] received injury due to [] exposure to lead-based paint at the []
premises is one which requires the testimony of an expert.” (citing Bartholomee v. Casey,
103 Md. App. 34, 59 (1994))).
Roy’s complaint alleges that 2525 Oswego Avenue “contained lead-based paint in
such deteriorated condition that it was peeling, chipping, and flaking from the wall,
baseboards, windowsills and other areas of the premises.”13 The presence of flaking,
loose, or peeling paint is a violation of Housing Code, Baltimore City Code (2000 Repl.
Vol.), Art. 13, § 703. See Hamilton, slip op. at 22 (“[T]o establish a prima facie
negligence case for lead-paint poisoning based on violation of the [Baltimore City]
Housing Code, a plaintiff must show that there was flaking, loose, or peeling paint.”)
(citing Brooks v. Lewin Realty III, Inc., 378 Md. 70, 80 (2003)). In Brooks, the Court
13
Just as the Court of Appeals did in Hamilton, supra, slip op. at n.3, we also
presume the Roy’s complaint implicates violations of the Housing Code, Baltimore City
Code (2000 Repl. Vol.), Art. 13, § 702, 703 & 706. Specifically, section 703 provides, in
relevant part, that “good repair and safe condition shall include . . . [a]ll walls, ceilings,
woodwork, doors and windows shall be kept clean and free of any flaking, loose, or
peeling paint.”
21
stated that these “provisions of the Housing Code were clearly enacted to prevent lead
poisoning in children.” 378 Md. at 88. Because, as a child at the time of exposure, Roy
is in the class of people intended to be protected by statute and his injury is of the kind
intended to be prevented by the statute, the presence of a violation of the Baltimore City
Housing Code permits an inference of prima facie negligence on the part of the landlord.
Id. at 80. “Such an inference, however, does not eliminate the requirement that the
plaintiff prove that the landlord’s negligence caused proximately the injury.” Hamilton,
slip op. at 23 (emphasis in original).
In Hamilton, the Court of Appeals, in the interest of resolving inconsistencies,
surveyed the case law in Maryland to clarify “under what circumstances, if any, []
circumstantial evidence alone of the possible presence of lead-based paint inside a
residential property [will] be sufficient to survive a defense motion for summary
judgment challenging the sufficiency of proof of the causation element of a negligence
claim against the landlord.” Id., slip op. at 16. The Court noted that to make out a prima
facie case in a statutory lead paint poisoning negligence action a plaintiff must show: “(a)
the violation of a statute or ordinance designed to protect a specific class of persons
which includes the plaintiff, and (b) that the violation proximately caused the injury
complained of.” Id., slip op. at 21 (quoting Brooks, 378 Md. at 79). Assuming there was
a violation of the statute, the Court turned to the inquiry of “‘causation in fact’ one aspect
of proximate cause, ‘concerned with the more fundamental (and some have thought
22
metaphysical) inquiry of whether defendant’s conduct actually produced an injury.’” Id.,slip op. at 24 (quoting Peterson v. Underwood, 258 Md. 9, 16-17 (1970)).
The Hamilton Court advised: “[i]n the present case[], we are concerned with the
first link [from Ross].” Accordingly, the Court was concerned only with: “connect[ing]
the dots between a defendant’s property and a plaintiff’s exposure to lead.” Id., slip op. at
27. Absent evidence to satisfy all the links of causation, a defendant is entitled to
judgment as a matter of law. See Taylor, supra, 207 Md. App. at 148 (concluding that
summary judgment was appropriate where the appellant failed to show that the
defendant’s conduct was a “substantial factor” in bringing about the alleged injury);
Johnson, 120 Md. App. at 593 (affirming the circuit court’s grant of summary judgment
in favor of the defendant because the plaintiff’s expert did not express an opinion as to
whether exposure to lead on the defendant’s property was a substantial cause of plaintiff’s
injuries).
Although expert testimony is generally used to establish each of the links of
causation in a lead-based paint case, certainly, there is no requirement that causation be
proved by direct proof or with absolute certainty. Otis Elevator Co. v. LePore, 229 Md.
52, 57 (1962). Circumstantial evidence may support an inference of causation as long as
it “amounts to a reasonable likelihood, rather than a mere possibility.” Dow, 144 Md.
App. at 75 (quoting Peterson, 258 Md. at 17). Thus, in Ross, the court held that the link
“between a defendant’s property and a plaintiff’s childhood exposure to lead paint and
dust, may be established through circumstantial evidence.” 430 Md. at 669.
23
The Court of Appeals’ decision in Ross made clear that expert testimony on the
first link of causation is not necessary for a plaintiff to survive summary judgment. In
Hamilton v. Dackman, 213 Md. App. 589, 608 (2013) (“Raymond Hamilton”) focusing
on the first Ross link, we stated:
Ross held that although an expert can helpfully connect the causal dots
between lead in a building and a plaintiff’s injuries, the dots can be
connected without any expert as well. At the same time, an expert cannot
transform thin evidence or assumptions into viable causal connections
simply by labeling them an expert opinion. As such, Ross recalibrated the
causation analysis to (re-)focus it on the quality of the evidence the parties
marshal rather than the existence vel non or qualifications of experts.
213 Md. App. at 608-09 (emphasis in original) (internal citations omitted).
Notwithstanding, where a plaintiff relies on the inferences generated by circumstantial
evidence, “we require [those] inferences to be sound logically, and we refuse to allow a
jury of laymen to engage in ‘guess work, speculation and conjecture.’” Hamilton, slip op.
at 26 (quoting Wilhelm v. State Traffic Safety Comm., 230 Md. 91, 101 (1962)).
Returning to the matter before us, Roy’s arguments conflate the first link in
causation w ith the entirety of the lead paint causation spectrum .
Evidence—circumstantial, expert, or otherwise—must be presented, allowing a
reasonable fact-finder to make reasonable inferences regarding all three links of
causation. Ross, 430 Md. at 670.
Link 1 – Source Property
In lead paint cases, such as the one before us, involving more than one potential
source of exposure, the framework for analysis finds its genesis in Bartholomee v. Casey.
24
In Bartholomee, supra, we stated “[w]here the conduct of a defendant was a substantial
factor in bringing about the suffering of an injury, such conduct will be deemed to have
caused the injury.” 103 Md. App. at 56. (Citation omitted). Often the conduct of more
than one defendant may be a substantial factor in causing the outcome. Where it is clear
that multiple properties were potential sources of lead contamination, the inferences
necessary to connect the dots from defendant’s property to plaintiff’s harm are likewise
multiplied. It remains, however, well established that there must be some evidence as to
where culpability lies that “[a]mounts to a reasonable likelihood or probability rather than
a possibility.” Dow, 144 Md. App. at 75 (quoting Peterson, 258 Md. at 17).
In Dow, absent expert testimony, the evidence before the trial court revealed that
the property concerned was built prior to 1950 when lead paint was commonly used, that
the plaintiff had been observed eating paint chips on the property, that the plaintiff had
elevated BLLs, and that there were no other potential sources of lead exposure. Id. at 70-
75. Viewing this in the light most favorable to the plaintiff, we determined that a fact-
finder could make a reasonable inference regarding the first link of causation; therefore,
summary judgment on that basis was improper. By contrast, in both Taylor v. Fishkind,
supra, and Raymond Hamilton, supra, absent expert testimony, the evidence before the
trial court revealed that the property in question had been built prior to 1950 when lead
paint was commonly used, the plaintiffs had been observed with paint chips on their
hands, and they had elevated BLL. There was, however, evidence that there may have
been multiple sources of lead exposure and direct evidence did not exist regarding any of
25
the sources. In both cases, we determined that the plaintiffs had failed to establish a
prima facie link between the subject property and plaintiffs’ lead exposure. In Raymond
Hamilton, we stated:
[A] plaintiff bears the burden to establish the presence of lead in the child’s
environment, and cannot just assume it merely from the age or location of
the house. We also recognize the real-life evidentiary challenges that
proving lead paint injuries poses (based on practical realities like the
relocation of residents and subsequent gut-rehabilitation or remediation of
properties that improves present living conditions but spoils potential
evidence pertinent to a plaintiff’s lawsuit), but we have declined the
invitation to assume causation away.
* * *
[A] plaintiff must connect the dots between a particular lead-laden
environment and a particular child. By allowing a plaintiff to meet this
burden with circumstantial evidence, we recognize that the causal path may
not always reveal itself fully through documents, real-time tests or
inspections of the property, or other forms of direct evidence. But just as a
plaintiff cannot assume causation, he cannot surmount this hurdle through
speculation—the overarching principle, which is neither new nor
indigenous to lead paint cases, is that “[c]ircumstantial evidence may
support a negligence determination if it ‘amount[s] to a reasonable
likelihood or probability rather than a possibility.”
213 Md. App. at 613-14 (internal citations omitted). Unlike Dow, the plaintiffs in Taylor
and Raymond Hamilton could not rely on an inference that any lead in their blood came
from a specific property simply by virtue of that property being the only possible source.
Nor can Roy rely on such an inference.
Roy presented evidence that he resided at 2525 Oswego Avenue during a critical
early-childhood period during which he experienced elevated BLL. He presented
evidence that the property was constructed prior to 1950 when the use of lead paint was
common, and he presented testimony indicating that there was flaking or chipping paint
26
in some areas. However, at the summary judgment stage, Roy presented no direct
evidence that he was exposed to any lead paint from the interior of the property.
Furthermore, prior to his first BLL test, Roy also lived for at least one year at a different
address in Baltimore. Though Roy need not rule out every other potential source, in the
absence of such an exclusion, he must present evidence sufficient to give rise to the
reasonable inference that 2525 Oswego Avenue was probably a source of lead exposure,
not merely possibly.
Link 2 – Elevated Blood Level
The second causation link in lead paint cases requires evidence “that exposure
must have contributed to the [plaintiff’s] elevated blood lead levels.” Ross, 430 Md. at
668. Traditionally, this has been the province of both expert testimony and circumstantial
evidence and is the least controversial or contested of the three Ross causation links. For
that reason, we will forego a lengthy analysis of the principle and merely apply the facts
of the present matter.
Roy presented evidence indicating his increased blood lead levels during early
childhood and testimony citing peeling or chipping paint. Further, the deposition
testimony given by industrial hygienist and lead risk assessment expert, Dr. Simon,
indicates that if lead-based paint were present during the relevant period of childhood,
Roy could likely have ingested enough of the material to increase his blood lead levels
detrimentally. If the inference of a probable source of the lead exposure were proper,
Roy would likely meet his burden regarding this second link.
27
Link 3 – Medical Harm
Despite Roy’s contention that “Dr. Sundel, was at a minimum, qualified to opine
as to Roy’s medical injuries,” the circuit court’s ruling on May 7, 2013, found that Dr.
Sundel was not qualified to testify to either the source of the lead—link one—or the
medical injuries—link three. In Hazelwood, this court stated:
[I]t is patently clear that Dr. Sundel was simply not qualified to testify as to
appellee’s IQ or the loss of IQ points resulting from lead exposure or any
alleged “brain impairment.” The record fails to substantiate that Dr. Sundel
possessed specialized knowledge about lead poisoning from either his own
observation, or any experience or training—which was extremely bare and
lacking as to lead poisoning.
210 Md. App. at 686. Despite Dr. Sundel’s affidavit noting that he has reviewed
additional relevant materials and attended a LeadTec seminar on XRF testing, this case is
“on all fours” with Hazelwood. Just as in Hazelwood, Dr. Sundel still:
has not received any specialized training nor does he have any experience in
treating children with lead poisoning or in identifying the source of a child’s
lead exposure[;]
***
has not evaluated and diagnosed children with lead poisoning, or monitored
the progress of children diagnosed with lead poisoning[;]
***
has [n]ever treated a child for symptoms related to lead ingestion where he
“determined that the child was injured or had some issues related in any
way to lead”[;]
***
has not published any articles related to lead, been involved in any studies
related to lead, or delivered lectures on the topic of lead or lead ingestion[;]
***
28
is not a board-certified psychologist or neuropsychologist, and [] does not
administer IQ or achievement tests[;]
***
does not know how to score an IQ test, and did not know the standard of
error for the Weschler IQ test[;]
***
[and] has not conducted a medical or nutritional history of appellee nor
ha[s] he examined appellee.
Id. at 684-86.
Certainly we have recognized that an expert’s knowledge on a subject may be
derived from standard books and other reliable sources. Wantz, 197 Md. App. at 683.
However, the expert witness must still “possess special and sufficient knowledge
regardless of whether such knowledge was obtained from study, observation or
experience.” Radman, 279 Md. at 171 (quoting Rotwein v. Bogart, 227 Md. 434, 437
(1962). The classic example of this concept was articulated by the Court of Appeals:
“[a] law professor may be an expert on trial procedure even though he has never tried a
case[, and] [t]here are many expert astronauts who have yet to make a space flight.”
Rotwein, 227 Md. at 437. However, the Court in Radman also recognized “the
complexity of knowledge required in the various medical specialties,” and found that
“more than a casual familiarity with the specialty [] is required.” 279 Md. at 172. Dr.
Sundel is neither a professor lecturing on lead poisoning nor a lead poisoning researcher
preparing for his first patient trials. Further, we can find no support for the idea that a
witness working in a broadly related field may become an expert in a complex and
29
specialized medical matter solely by reviewing related literature over the course of
several months. Accordingly, we can find no basis to conclude that Dr. Sundel has
specialized knowledge concerning childhood lead poisoning or its effects on development
and cognitive function.
Roy argues that under Ross, even without the testimony of Dr. Sundel, causation
may be proved through the testimony of their second expert, Industrial Hygienist Robert
Simon, Ph.D., and other circumstantial evidence. However, Dr. Simon was proffered as
an expert in lead risk assessment and toxicology, and he acknowledged, in his November
9, 2012, deposition testimony that he “would not [perform a medical differential
diagnosis] or give specific causation testimony.” He continued, stating: “I am not a
medical doctor. You have to be a medical doctor to be, quote, a medical toxicologist, per
se.” Further, Dr. Simon’s report submitted by Roy opines that 2525 Oswego Avenue was
a source of Roy’s lead exposure but makes no conclusions or claims about the medical
significance of such exposure.
Notably, in Ross, the medical expert, Dr. Blackwell-White, was excluded as an
expert to the source of lead exposure, but not as to the medical link between the level of
exposure as evidenced by BLL testing and the injury. 430 Md. at 670. The causation link
established through circumstantial or other expert testimony in that case was only
regarding the presence of lead at the subject property. Expert testimony regarding the
medical effect of such exposure was still present to be considered. In that case, the
30
presence of evidence that would allow a fact-finder to make reasonable inferences
regarding all three links of causation, therefore, precluded summary judgment. Id. at 671.
Here, in the absence of expert medical testimony, the testimony of Industrial
Hygienist Dr. Simon fails to establish the link between Roy’s lead exposure and his
alleged injury. Under the “substantial factor” analysis from Ross, even if Dr. Simon’s
testimony were sufficient to show that 2525 Oswego Avenue was a source of Roy’s
exposure to lead, it would not support the inference that the associated increase in blood
lead level was substantial enough to contribute to Roy’s injuries. See Bartholomee 103
Md. App. at 59-60 (explaining that expert testimony would be required to demonstrate
that the child’s exposure to lead during a particular window of time was “by itself” a
substantial cause of child’s alleged lead poisoning and that “of course, to establish
causation, Dr. Chisolm would have to testify as to the impact of the limited exposure”).
As we have noted previously, “causation evidence that is wholly speculative is not
sufficient.” Dow, 144 Md. App. at 75 (quoting Lyon v. Campbell, 120 Md. App. 412, 437
(1998)). This fundamental point was not contradicted in Ross, in which the Court
acknowledged that where “the limits of the inferences in plaintiff’s favor are evident,
summary judgment might still be warranted.” Ross, 430 Md. at 671. Dr. Simon’s
testimony is insufficient to establish medical causation.
Based on the record before this Court and making all reasonable inferences in
favor of Roy, such inferences would only include that 2525 Oswego Avenue was a source
of lead exposure, and that Roy’s BLL peaked during his residence there. The record
31
provides no evidence to link Roy’s elevated BLL with his alleged neurological injuries as
exemplified through behavioral and academic deficits. Moreover, we find no reason to
adopt such an assumption. Roy failed to offer sufficient evidence from which a
reasonable fact-finder could reasonably infer that his injuries resulted from his exposure
to lead at 2525 Oswego Avenue.
To survive the motion for summary judgment, Roy needed to present sufficient
evidence that, when viewed most favorably to him, a jury could find that the house at
2525 Oswego Avenue contained lead-based paint to which Roy was exposed; that Roy’s
exposure to lead-based paint at the house was a substantial contributing cause of his
elevated BLL; and that Roy’s associated increase in BLL must have been substantial
enough to cause injury. Without a medical expert in the case, neither the testimony of
Dr. Simon nor the circumstantial evidence presented by Roy can sustain this burden of
proof. Accordingly, the circuit court’s grant of summary judgment in favor of the
Dackmans was proper.
JUDGMENT OF THE CIRCUIT
COURT FOR BALTIMORE
CITY AFFIRMED. COSTS TO
BE PAID BY APPELLANTS.
32