Paula Bratton v. Halsey McDonough , 91 A.3d 1050 ( 2014 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2014 ME 64
Docket: Som-12-400
Argued November 20, 2013
Decided: May 6, 2014
*
Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.
PAULA BRATTON et al.
v.
HALSEY MCDONOUGH
GORMAN, J.
[¶1] Paula Bratton and Daniel Hills Sr., individually and on behalf of their
three minor children (collectively, the Brattons), appeal from a judgment of the
Superior Court (Somerset County, Cuddy, J.) granting Halsey McDonough’s
motion for judgment as a matter of law as to some of their claims and in favor of
McDonough based on a jury verdict on the remaining claims. The Brattons argue
that the trial court erred in excluding expert testimony on proximate causation;
refusing to instruct the jury in accordance with Lovely v. Allstate Insurance Co.,
658 A.2d 1091, 1092-93 (Me. 1995); and granting judgment as a matter of law on
the claims asserted on behalf of the two older children and on the counts for
intentional infliction of emotional distress (IIED) and punitive damages asserted on
*
Levy, J., sat at oral argument and participated in the initial conference but resigned before this
opinion was adopted.
2
behalf of all three children. Because the trial court’s errors created a
fundamentally unfair trial, we vacate the jury’s verdict and remand the case for a
new trial.
I. BACKGROUND
[¶2] The plaintiffs alleged the following facts and presented evidence in
support of their allegations at trial. In September of 2004, Paula Bratton, Daniel
Hills, and their two children, then ages three and one, moved into a house that they
rented from Halsey McDonough. Shortly after the move, medical tests revealed
that the children had elevated blood lead levels. The test results prompted Paula
Bratton to conduct a home lead test that revealed the presence of lead in the paint
at the property. When she contacted McDonough with the results of the home lead
test, he dismissed her concerns and denied that the property contained any lead.
Instead, he attributed the presence of lead in the dwelling to diesel trucks that
traveled on Route 201. With this assurance, the Brattons continued to live at the
property.
[¶3] Bratton and Hills had a third child in 2006. In 2008, medical tests
indicated that the youngest child also had an elevated blood lead level. The
Department of Health and Human Services became involved in the matter in 2008
pursuant to the Lead Poisoning Control Act, 22 M.R.S. §§ 1314-1329 (2013). The
Department arranged for the home to be tested for the presence of lead, and the test
3
results revealed numerous lead hazards throughout the property. Late in 2008, the
Department notified McDonough that he was required to relocate the Brattons
pursuant to 22 M.R.S. § 1322.
[¶4] The relocation process did not go smoothly, largely, the Brattons
allege, because McDonough refused to pay for the process. Although an initial
letter from the Department informed McDonough that the Brattons had to be
relocated by December 3, 2008, the process was not completed until March of
2009. In the interim, the Brattons lived at the property but cordoned off some of
the rooms in order to limit the spread of lead paint dust.
[¶5] In November of 2009, the Brattons filed a twelve-count complaint
alleging that the lead paint at the property had injured the children and seeking
recovery from McDonough on a number of theories, including negligence and
IIED, and seeking punitive damages.1 After an extended period of discovery, a
jury was selected on July 16, 2012. On the same date, the court issued rulings on
outstanding motions in limine. In one ruling, the court precluded the Brattons from
presenting portions of testimony from two of the Brattons’ experts.
1
At the time of trial, the parties and the court agreed that only the claims for negligence, IIED, and
punitive damages remained. Although all of these remaining counts were brought by Paula Bratton and
Daniel Hills individually and on behalf of the children, the parties do not raise on appeal the disposition
of any claims concerning the parents. We therefore address the remaining counts only as they apply to
the children.
4
[¶6] After the close of the Brattons’ case, McDonough moved for judgment
as a matter of law on the children’s negligence claims. The court granted
McDonough’s motion with regard to the two older children, concluding that the
evidence was insufficient to causally connect their conditions with the presence of
lead in the home. The court also granted judgment as a matter of law on the IIED
count as to all three children based on its determinations that McDonough’s
conduct was not extreme and that there was no evidence indicating that any of the
children suffered emotional distress. When it granted judgment to McDonough on
the IIED count, the court also granted judgment to McDonough on the Brattons’
punitive damages count.
[¶7] Based on its conclusion that there was a stronger connection between
the youngest child’s condition and his exposure to lead than the connection
between the older children’s condition and the lead, however, the court did allow
the youngest child’s negligence claims to proceed. After deliberation, the jury
unanimously answered the question posed to it—“Was the defendant, Halsey
McDonough, negligent which negligence proximately or legally caused injury to
[the youngest child]?”—in the negative.
5
II. DISCUSSION
[¶8] The Brattons’ arguments on appeal can be separated into two
categories: those arguments relevant to the negligence counts and those relevant to
the IIED and punitive damages counts.
A. Negligence
[¶9] The Brattons argue that the court (1) abused its discretion by excluding
expert testimony regarding proximate causation; (2) erred by ruling as a matter of
law that they had failed to prove causation as to the negligence claims concerning
the two oldest children; and (3) erred by failing to instruct the jury on proximate
causation and damages pursuant to Lovely, 658 A.2d at 1092-93. We address each
challenge in turn.
1. Expert Testimony
[¶10] In their case in chief, the Brattons intended to present testimony from
two expert witnesses—Richard Parent, Ph.D., a toxicologist, and Ronald Savage,
Ed.D., a brain injury treatment specialist—to explain how the children’s exposure
to lead while residing at McDonough’s property caused harm to the children. The
court limited the scope of both experts’ testimony, however—precluding
Dr. Parent from testifying that the children “have suffered a poisoning by lead” and
precluding Dr. Savage from testifying about “the causation of any of the deficits of
the . . . children as being caused by lead exposure”—as not sufficiently reliable
6
because both lacked a medical degree. “We review a court’s foundational finding
that expert testimony is sufficiently reliable for clear error.” Searles v. Fleetwood
Homes of Penn., Inc., 2005 ME 94, ¶ 24, 878 A.2d 509.
[¶11] In excluding Dr. Parent’s testimony, the court stated, “I am not at all
comfortable . . . in terms of reliability that [Dr. Parent] goes beyond the area of his
discipline and provides a causation as to this case and these children and this lead
exposure.” In so ruling, the court misapprehended the role of a toxicologist. Much
of the jurisprudence in this area comes from the federal courts, where toxic tort
litigation often takes place. In that arena, when the only argument against the
admission of a toxicologist’s opinion is the lack of a medical degree, the majority
of federal courts admit the testimony as reliable evidence of causation. See, e.g.,
Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 758 (8th Cir. 2006) (“We have
previously held that a toxicologist may testify that exposure to a chemical caused a
person’s symptoms and injuries.”); In re Paoli R.R. Yard PCB Litig., 916 F.2d 829,
855-56 (3d Cir. 1990) (holding that the trial court erred in excluding a
toxicologist’s testimony “simply because the expert did not have the degree or
training which the district court apparently thought would be most appropriate”);
see also 2 Toxic Torts Practice Guide § 16:3 (West, Westlaw through Nov. 2013).
Excluding Dr. Parent’s expert testimony because of the nature of his advanced
degree was clear error.
7
[¶12] Dr. Savage is a brain injury specialist with a degree in special
education. At the hearing held in response to McDonough’s challenge to his
expected testimony, Dr. Savage acknowledged that he was not a medical doctor
but explained that he had worked under the direction of a board-certified
neurologist and psychiatrist, operated a center for neurological rehabilitation, run a
day treatment program for people with brain injuries, and lectured on rehabilitation
of individuals with brain injuries and on brain behavior relationships. He testified
that he had taken courses on brain injury, read extensively on the subject, was the
only member on the editorial board of the Journal of Neurology who did not have a
medical degree, and was certified by the American Academy for the Certification
of Brain Injury Specialists.
[¶13] Dr. Savage testified that his opinion was based on the children’s
medical history, which indicated the presence of lead in their blood, and on their
psychological and neurophysiological testing. He described how lead is absorbed
into the body and how it damages the brain, and the effects of that damage on brain
development. Finally, he described how the children’s injuries would affect their
lives in the future, what types of continuing treatment they would need, and how
much the treatment would cost. Dr. Savage stated that, in formulating his opinion,
he had considered factors other than the presence of lead—including the children’s
home environment and the father’s alcoholism—but had not specifically
8
considered the parents’ IQs. He testified that the contributing factors he
considered did not account for all of the children’s medical and psychological
symptoms.
[¶14] The trial court determined that Dr. Savage’s qualifications did not
provide a level of reliability that would assist the fact-finder. Specifically, it found
that “the core of his experience is his academic proficiency . . . in the field of
determining the needs and deficits of children that [have] educational difficulties
[and] in recommending treatments and developing plans or proposals for helping
those children.” The court went on to explain that Dr. Savage’s “self-imposed
focus and refocus on the area of brain injury are not, as far as this [c]ourt is
concerned, sufficient to provide opinions which would assist the fact finder on [the
issue of causation].” Based on this reasoning, the court precluded the Brattons
from presenting any testimony by Dr. Savage on causation, but allowed his
testimony concerning damages.
[¶15] The trial court erred by not allowing Dr. Savage to testify about
causation. The record shows that Dr. Savage relied on established scientific
principles with which he is clearly familiar. Further, pursuant to the test we set out
in Searles, 2005 ME 94, ¶ 23, 878 A.2d 509, most of the indicia of scientific
reliability are satisfied. As with Dr. Parent, any challenge to Dr. Savage’s
9
qualifications is an issue of weight rather than admissibility. See State v. Pineo,
2002 ME 93, ¶ 6, 798 A.2d 1093.
[¶16] The court’s order excluding the experts’ testimony was based on its
flawed application of our decision in Tolliver v. Department of Transportation,
2008 ME 83, 948 A.2d 1223, and on its erroneous understanding that an individual
must have a medical degree in order to present expert testimony about lead
exposure and toxicity. In Tolliver, we held that the trial court erred in admitting
the testimony of an expert as to the cause of a pedestrian-vehicle accident not
because the expert did not possess a particular degree, but because he had limited
knowledge about the accident scene and the condition of the persons involved and
therefore “lacked the foundation necessary to offer an opinion as to the cause of
this particular accident.” Id. ¶¶ 34-35; see also id. ¶ 53 (Silver, J., dissenting in
part and concurring in part) (stating that the issue of the expert’s testimony
“ultimately turns on weight rather than admissibility”). Here, in contrast, the trial
court should have recognized McDonough’s arguments about the proffered
testimony from Drs. Parent and Savage as challenges to the weight of the opinions
rather than to their admissibility.
10
2. Judgment as a Matter of Law
[¶17] In entering a judgment as a matter of law for McDonough on his
M.R. Civ. P. 50(a) motion concerning the causes of action brought on behalf of the
two older children, the court stated:
The proximate causation evidence which came from Dr. Salvato made
it abundantly clear to the [c]ourt by his descriptive phraseology as to
the involvement of lead that it was a contributing factor, but he made
it clear in his testimony . . . that he really could not say how much or
how little each of these factors played with respect to [the two older
children].
The testimony to which the court referred was one answer that John A. Salvato,
M.D., a pediatrician who had treated all three children, provided during the course
of his trial deposition. In other portions of his testimony, however, Dr. Salvato
stated that the two older children’s developmental and behavioral problems were
explainable in part by their exposure to lead. By focusing on the portion of
Dr. Salvato’s testimony that did not support the Brattons’ claims, the court
demonstrated that it was reviewing the evidence in a light most favorable to
McDonough rather than to the Brattons. In so doing, the court erred. See Lewis v.
Knowlton, 1997 ME 12, ¶ 6, 688 A.2d 912 (stating that a court may not grant a
motion for judgment as a matter of law if “any reasonable view of the evidence
could sustain a verdict for the opposing party pursuant to the substantive law that is
an essential element of the claim”); Fournier v. Rochambeau Club, 611 A.2d 578,
11
579 (Me. 1992) (stating that a plaintiff is required to prove that a defendant’s
negligence was a proximate cause, but not necessarily the sole proximate cause, of
a plaintiff’s injury).
3. Jury Instructions
[¶18] The Brattons proposed an instruction that followed our language in
Lovely. See 658 A.2d at 1092-93. They argued that Lovely requires a trial court to
instruct the jury that the burden of apportioning damages to independent or
subsequent causes falls on the defendant and does not require that a plaintiff
disprove the defendant’s assertions of alternative causes for the plaintiff’s injuries.
Further, the Brattons specifically sought an instruction based on Lovely “that
makes it clear that it is [McDonough’s] burden to differentiate causation on prior
conditions.” The trial court, however, declined to give a Lovely instruction,
reasoning that
[i]t is not an issue of mitigation or the burden to mitigate or burden to
apportion, I think it is more in the context of an independent event as
opposed to a mitigating event . . . . I intend [the instruction] to be
focused toward independent events and that’s where I am going to
leave it.
Instead, the court instructed the jury that
where there have been independent events affecting the Plaintiff’s
condition before or after the incident which gave rise to this trial, you
must separate out damages attributable to the prior or subsequent
events, and award the Plaintiff only those damages you find to have
been proximately caused by the Defendant’s fault.
12
After it began deliberations, the jury asked the court to clarify the definition of
proximate cause, to which the court responded, “proximate means something that
played a substantial part,” and referred the jury to the written instructions.
[¶19] Lovely stands for two related negligence principles. The first places
the burden of apportioning damages on a defendant who seeks to limit liability on
the basis of a preexisting or a subsequent injury. See, e.g., Mahar v. StoneWood
Transp., 2003 ME 63, ¶ 41, 823 A.2d 540 (Alexander, J., concurring in part and
dissenting in part) (discussing Lovely, 658 A.2d at 1092-94). The second requires
that when a defendant asserts that an independent factor, rather than the
defendant’s acts, caused the plaintiff’s harm, it is the defendant’s burden to prove
that independent causation by a preponderance of the evidence. See, e.g., Merrill
v. Sugarloaf Mountain Corp., 2000 ME 16, ¶ 12, 745 A.2d 378 (citing Lovely,
658 A.2d at 1093-94) (Lipez, J., concurring); see also Alexander, Maine Jury
Instruction Manual § 7-83 cmt. at 7-114 (2014 ed.) (“A defendant, asserting that
there is an independent intervening event that excuses liability, has the burden of
proving the event and its causation of plaintiff’s damages.”). In short, the principle
that the party affirmatively asserting a theory bears the burden of proving that
theory has been applied both to the element of causation and to the element of
damages.
13
[¶20] The trial court must give instructions that are applicable to the
evidence in the case. Isaacson v. Husson Coll., 332 A.2d 757, 762 (Me. 1975). A
party is entitled to a requested instruction if it “(1) states the law correctly; (2) is
generated by the evidence in the case; (3) is not misleading or confusing; and (4) is
not otherwise sufficiently covered in the court’s instructions.” Frustaci v. City of
S. Portland, 2005 ME 101, ¶ 15, 879 A.2d 1001 (quotation marks omitted). The
Brattons’ proposed instructions satisfied all four criteria. First, the Brattons
suggested that the court instruct the jury that “if the Plaintiff has an injury that
preexist[s] the Defendant’s wrongdoing . . . it is the defendant’s burden to
apportion damages” and that “it is the Defendant’s burden to differentiate
causation [arising from] prior conditions.” These are accurate restatements of
Lovely. 658 A.2d at 1092-93. Second, McDonough presented evidence showing
that the injuries to the children were caused by factors independent of lead
poisoning, including genetics, the father’s alcoholism, and the mother’s depression.
Because giving a Lovely instruction would not have been misleading or confusing,
and because the principle it explains was not otherwise addressed in the court’s
instructions, the third and fourth criteria are also satisfied.
[¶21] Instead of giving the requested Lovely instruction, however, the court
gave an instruction that advised the jury to “separate out damages attributable to
the prior or subsequent events, and award the Plaintiff only those damages you find
14
to have been proximately caused by the Defendant’s fault,” making no reference to
McDonough’s burden to prove that damages were caused by the independent
factors. The Brattons were entitled to the proposed instruction, and the trial court
erred when it failed to give it. Cf. Gould v. Bangor & Aroostook R.R. Co.,
292 A.2d 837, 843 (Me. 1972) (ordering new trials because the jury instructions
“were so inadequate and misleading as to leave the jury without the guidance
essential to its task”).
B. Intentional Infliction of Emotional Distress and Punitive Damages
[¶22] To recover on a claim of IIED, a plaintiff must show (1) either that
the defendant intentionally or recklessly inflicted severe emotional distress or that
his or her conduct was substantially certain to inflict severe emotional distress,
(2) that the defendant’s conduct was “so extreme and outrageous as to exceed all
possible bounds of decency and must be regarded as atrocious” and “utterly
intolerable in a civilized community,” (3) that the defendant’s conduct caused the
plaintiff’s emotional distress, and (4) that the emotional distress was “so severe
that no reasonable person could be expected to endure it.” Lyman v. Huber,
2010 ME 139, ¶ 16, 10 A.3d 707 (quotation marks omitted). On appeal from a
judgment as a matter of law, we view the evidence in the light most favorable to
the party opposing the motion, and will not affirm the grant of such a motion if
“any reasonable view of the evidence could sustain a verdict for the opposing party
15
pursuant to the substantive law that is an essential element of the claim.” Lewis,
1997 ME 12, ¶ 6, 688 A.2d 912.
[¶23] Here, the court granted the motion for judgment as a matter of law on
the IIED claims because it determined that the evidence did not show that
McDonough’s conduct was extreme or that the children suffered severe emotional
distress. Viewed in the light most favorable to the plaintiff, the evidence shows
that McDonough allowed a family with young children to live in a house that
exposed the children to toxic levels of lead for several years. It further shows that,
even after the house had been declared a lead hazard by the State and although
McDonough had a legal duty to relocate the Brattons, he failed to do so for four
months. We cannot say as a matter of law that no reasonable juror could find
McDonough’s actions extreme and outrageous. See Colford v. Chubb Life Ins. of
Am., 687 A.2d 609, 616 (Me. 1996) (“Where reasonable people may differ, it is for
the jury . . . to determine whether, in a particular case, the conduct has been
sufficiently extreme and outrageous to result in liability.” (alteration omitted)
(quotation marks omitted)).
[¶24] In addition, the Brattons testified that the children were scared and
confused when their home was posted as “not safe for children.” They testified
that after sections of the house had been cordoned off to prevent lead dust from
spreading, the children could not play with their toys, run around the house, go into
16
one of the bedrooms, or touch any of their things that were in that bedroom. They
would scream “the poison is going to kill us” if a child attempted to enter the
closed-off area. Again, because we cannot say that no reasonable juror could find
that McDonough’s conduct was extreme and outrageous and that this conduct
caused the children severe emotional distress, the court’s judgment as a matter of
law on the IIED count must be vacated. See Restatement (Second) of Torts § 46
cmt. j (1965) (“It is for the court to determine whether on the evidence severe
emotional distress can be found; it is for the jury to determine whether, on the
evidence, it has in fact existed.”); see also German v. Fed. Home Loan Mortg.
Corp., 885 F. Supp. 537, 571-72 (S.D.N.Y. 1995), clarified on other grounds,
896 F. Supp. 1385 (S.D.N.Y. 1995) (concluding that the plaintiffs pleaded their
IIED cause of action sufficiently where landlords knowingly exposed tenants to
lead paint, “a highly toxic substance to children,” thereby putting them at risk for
physical and mental injuries (quotation marks omitted)).
[¶25] With the IIED count restored, we must also consider whether the
court erred when it granted judgment as a matter of law on the punitive damages
count. “[P]unitive damages are available based upon tortious conduct only if the
defendant acted with malice.” Tuttle v. Raymond, 494 A.2d 1353, 1361
(Me. 1985). Malice can be express or it can be demonstrated by conduct that “is so
outrageous that malice toward a person injured as a result of that conduct can be
17
implied.” Id. Implied malice, however, cannot be established by the defendant’s
“mere reckless disregard of the circumstances.” Id.
[¶26] The evidence, taken in the light most favorable to the Brattons, shows
that McDonough affirmatively represented to them that there was no lead in the
house when he knew that lead was indeed present. The nature of this intentional
misrepresentation could be sufficient for a fact-finder to find implied malice.
Although McDonough presented evidence to rebut this assertion, this factual
dispute should be settled by the jury. Cf. Gagne v. Stevens, 1997 ME 88, ¶ 8,
696 A.2d 411.
C. Conclusion
[¶27] In sum, the court improperly excluded the Brattons’ qualified expert
witnesses, which constituted clear error, see Searles, 2005 ME 94, ¶ 24,
878 A.2d 509; it erroneously entered judgment as a matter of law for McDonough
on the negligence claims of the two older children, as well as the IIED and punitive
damages claims of all three children, by failing to view the evidence in the light
most favorable to the Brattons, see Lewis, 1997 ME 12, ¶ 6, 688 A.2d 912; and it
improperly shifted the burden of proof onto the Brattons to disprove McDonough’s
independent causation theories and refused to give the jury a proper and requested
instruction, see Merrill, 2000 ME 16, ¶ 14, 745 A.2d 378. That the errors
concerning the experts were made on the eve of trial compounded their effect, and
18
those errors, when considered with the other erroneous rulings, materially and
substantially prejudiced the Brattons. Cf. Wheeler v. White, 1998 ME 137,
¶¶ 11-12, 714 A.2d 125 (Lipez, J., dissenting) (noting that the trial court’s
erroneous jury instruction on the issue of causation was compounded by its
misstatement of the plaintiff’s burden of proof). For all of these reasons, the
Brattons are entitled to a new trial on the claims they brought on behalf of their
children in Counts I, II, III, XI, and XIII.
The entry is:
Judgment vacated. Remanded for a new trial.
On the briefs:
Melissa A. Hewey, Esq., and Michael L. Buescher, Esq.,
Drummond Woodsum, Portland, for appellants Paula Bratton
et al.
Martica S. Douglas, Esq., Douglas, Denham, Buccina & Ernst,
Portland, for appellee Halsey McDonough
At oral argument:
Melissa A. Hewey, Esq., for appellant Paula Bratton, et al.
Martica S. Douglas, Esq., for appellee Halsey McDonough
Somerset County Superior Court docket number CV-2009-59
FOR CLERK REFERENCE ONLY