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Oct. 22 — A lead paint ruling by Maryland's highest court that seeks to clarify how causation can be proved through expert evidence raises as many questions as it answers.
The Oct. 16 ruling by the Maryland Court of Appeals reinstated a lead paint poisoning suit against an apartment building owner on behalf of a Baltimore child (30 TXLR 1017, 10/22/15).
In a 5-2 decision, the court said medical causation and the source of lead exposure are distinct issues in lead paint cases in Maryland, and said a single expert witness can be found qualified to address medical causation, but not the exposure source, which the court called medical injury.
This case “certainly illustrates the degree to which courts scrutinize the specific qualifications of medical experts as to each specific issue on which they seek to opine,” Douglas G. Smith, a litigation partner at Kirkland & Ellis in Washington, told Bloomberg BNA in an Oct. 21 e-mail.
“Such scrutiny may lead to partial, if not total exclusion of an expert's opinions. Parties seeking to offer such testimony should pay close attention to each opinion an expert offers and whether the expert's qualifications provide an adequate basis for each opinion,” Smith said.
Derek Stikeleather, a partner at Goodell, Devries, Leech & Dann in Baltimore, said the ruling “leaves less ground for Maryland trial judges to exercise their discretion on medical causation experts in lead-paint cases.”
By applying a less-deferential “abuse of discretion” standard of review of the trial court's exclusion of lead-paint medical causation testimony, “Maryland's highest court seems to curtail the wide discretion that Maryland trial judges typically enjoy when ruling on the admissibility of such testimony,” Stikeleather told Bloomberg BNA in an Oct. 22 e-mail.
“At the same time, Roy re-affirms Maryland appellate courts’ hostility to expert testimony from pediatricians on the source of a plaintiff's early-childhood exposure to lead,” he said.
Practitioners will have to wait to see how courts apply Roy before knowing whether it represents “a substantive development in Maryland lead-paint law or, even more broadly, alters the standards for medical causation expert qualifications” in the state, Stikeleather said.
Plaintiffs' attorney Ronald V. Miller, Jr., of Miller & Zois in Baltimore, said the opinion “signals to plaintiffs’ lawyers that Maryland law is going to give them some latitude when their medical causation expert's qualification does not fit neatly in the framework of the qualifications you would like your expert to have.”
Miller said it would be “dangerous to interpret the opinion more broadly than that. Plaintiffs’ attorneys should still be doing everything possible to get the best qualified experts who are beyond this kind of scrutiny. Because this is not a fight you want to have even if you ultimately prevail,” he told Bloomberg BNA in an Oct. 22 e-mail.
The high court said pediatrician Dr. Eric Sundel was qualified to testify as to medical causation, and set aside that part of the Court of Special Appeals' contrary 2014 ruling in Roy v. Dackman, 219 Md. App. 452, 101 A. 3d 448 (Ct. Spec. App. 2014).
The top court, however, affirmed a second part of the appellate ruling that excluded Sundel's testimony as to medical injury. The high court said the expert's conclusion that the child's home was the source of his exposure to lead-based paint didn't rule out other potential sources.
The “medical causation” inquiry examined the deleterious effects on children like plaintiff Jakeem Roy, caused by the ingestion of lead-containing paint chips. The “medical injury” issue in this case concerned whether the source of those chips was the Baltimore rental house where Roy lived until age 2 with his mother, Latisha Hillery.
A dissent would have upheld Sundel's exclusion in its entirety and affirmed the granting of summary judgment to the building owner.
The dissenters didn't believe it was an abuse of discretion for the Maryland Circuit Court to conclude that the “enhancements” in Sundel's qualifications from a prior case in which he was excluded—“his longer reading list and his apparently better preparation for pre-trial depositions—did not convert him into a qualified expert on medical causation in this case.”
Smith, with Kirkland & Ellis, said the ruling that Sundel lacked the requisite qualifications and factual basis to offer opinions on the source of lead exposure was a “straightforward and correct application of accepted principles governing the admissibility of expert evidence.”
Courts frequently exclude the testimony of experts who seek to offer opinions beyond the scope of their expertise, in this case a physician seeking to offer opinions regarding the source of exposure, said Smith, a defense attorney who isn't involved in the case.
However, Smith said the part of the ruling allowing Sundel to testify as an expert on medical causation is “potentially more controversial.”
Numerous courts have noted that physicians aren't automatically qualified to testify on all medical issues, he said, explaining that medicine involves different specialties, and courts frequently scrutinize the specific qualifications of medical experts to ensure that they have the specific expertise to offer the opinions at issue in each case.
But here, where the expert acknowledged he had never treated a child who suffered lead paint poisoning, and was relying solely on a review of medical literature, the “court itself seemed to recognize that whether such a physician should be allowed to testify regarding medical causation issues was a close question,” Smith said.
Courts may well conclude that such “‘expertise’ is too attenuated to provide an adequate and reliable foundation for expert testimony,” he said.
Stikeleather, a defense attorney who isn't involved in the case, said an important issue for Maryland lead paint litigators is understanding why Sundel, a board-certified pediatrician with more than 20 years in practice, was entirely excluded in one lead paint case, City Homes, Inc. v. Hazelwood, 210 Md. App. 615, 63 A.3d 713, cert. denied sub nom.Hazelwood v. City Homes, 432 Md. 468, 69 A.3d 476 (2013), but partially allowed to testify here in Roy, a similar case.
In Hazelwood, Sundel was found unqualified, but the appeals court also ruled there was an insufficient factual basis for his opinions. Despite Sundel's post-Hazelwood efforts in Roy to rehabilitate his qualifications and opinions and address Hazelwood's criticisms with an affidavit, the Court of Special Appeals affirmed the trial court's decision to exclude him.
Reversing that finding, the high court distinguished—instead of overruling—Hazelwood, Stikeleather said.
Although Roy criticized Hazelwood for its “overly demanding” standard for minimum qualifications of a lead-paint medical causation expert under Maryland evidence rule 5-702(1), it based its holding on the “major difference” between the factual record in Hazelwood and the one in Roy—specifically, Sundel's affidavit touting his continuous review of all relevant literature, citing specific articles, and CDC statements on childhood lead poisoning.
“Thus, in Maryland, Dr. Sundel's Hazelwood causation opinion apparently still must be excluded under Rule 5-702(1) for his lack of qualification while his Roy causation opinion must be admitted as being from a qualified expert,” Stikeleather said.
The Court of Appeals’ opinion never tackled the intermediate court's premise that there is “no support for the idea that a witness working in a broadly related field may become an expert in a complex and specialized medical matter solely by reviewing related literature over the course of several months,” Stikeleather said.
“Yet, Roy implicitly seems to endorse that mode of expert ‘qualification’ as Dr. Sundel went from being unqualified per se in Hazelwood to qualified per se in Roy simply by submitting an affidavit that detailed months of relevant literature review.”
Stikleather said this type of “litigation-driven expert work would be more appropriately analyzed under [Maryland evidence rule] 5-702(3)’s inquiry into an expert opinion's factual basis and supporting methodology than subsection 5-702(1)’s inquiry into the underlying qualifications of a board-certified pediatrician with decades of practice experience.”
Miller said the top court reached the correct result in Roy in allowing Sundel to advance as an expert.
“While certainly not the best witness to speak to medical causation, I think a pediatrician who follows the medical literature is qualified to give this not particularly complex or controversial opinion even if he has not treated lead paint victims,” Miller said.
Miller, an experienced product liability litigator in Maryland who is also not involved in the case, said the decision doesn't significantly change the status quo in the state.
“What it does tell us is that on close Maryland Rule 5-702 calls, Maryland courts are going to continue to lean towards admissibility,” he said.
Under that rule, expert testimony is admissible if it assists the trier of fact to understand the evidence or determine a fact in issue the expert has the sufficient “knowledge, skill, experience, training, or education.” This opinion “underscores the “or,'” Miller said.
Miller said the federal version of this rule doesn't have the same “expansive language” as the Maryland rule, so he “would not be surprised to see a different result in federal court.”
He said he doubts the opinion would prove influential to courts in other jurisdictions.
“States are pretty provincial about their own rules of evidence and tend to look internally on how to interpret evidence rules,” he said.
Attempts to contact the litigators in the case weren't successful.
Scott E. Nevin, with the Law Office of Peter T. Nichol in Baltimore, represented the plaintiffs.
William C. Parler, Jr. and Kelly A. Grafton, with Parler & Wobber in Towson, Md., represented the defendants.
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The opinion is available at http://www.bloomberglaw.com/public/document/Roy_v_Dackman_No_6_2015_BL_340881_Md_Oct_16_2015_Court_Opinion.
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