Lead Paint Injury Evidence Clarified in Maryland

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By Bruce Kaufman

Oct. 19 — A lead paint poisoning suit filed on behalf of a child in Baltimore is reinstated as Maryland's top court issues a ruling clarifying causation and expert issues related to lead paint law in that state.

Questions concerning medical causation and the source of lead exposure are distinct issues in lead paint cases in Maryland, and a single expert witness can be found qualified to testify on one of those issues but not the other, Maryland's highest court ruled Oct. 16.

In a 5-2 ruling, Maryland Court of Appeals said an experienced pediatrician possessed the requisite expertise to testify as to medical causation, but not as to medical injury.

The “medical causation” inquiry examined the deleterious effects in general from the ingestion of lead-containing paint chips by injured children like plaintiff Jakeem Roy. 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 mother Latisha Hillery.

Medical Causation Testimony Allowed 

Judge Glenn T. Harrell said plaintiffs' medical expert Dr. Eric Sundel possessed the requisite expertise 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 intermediate court stressed Sundel's lack of direct hands-on experience with treating lead poisoning patients. However, that reasoning was “overly demanding,” the top court said, noting Maryland law doesn't require an expert to have “specialized knowledge” because the purpose of expert testimony is to “assist the finder of fact, in this case, a jury composed likely of lay persons.”

Sundel's academic and experiential qualifications were adequate here to advance the suit, the court said. “With his experience and as a board-certified pediatrician, Dr. Sundel was shown on this record to possess a sufficient background from which to provide an opinion as to the injuries claimed to have been suffered by Roy as the result of alleged exposure to lead,” the court said.

Medical Injury Proof Properly Rejected 

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. It seemed to be based solely on the assumption that a child's home was the most probable source of elevated blood lead levels, particularly because the structure was built before 1970, the court said.

“With no personal knowledge and his reliance on circumstantial evidence as to how and where [Jakeem] Roy was exposed to lead paint,” the court said Sundel wasn't qualified to testify as to the source of Roy's exposure.

Although Sundel was barred from testifying on medical injury, that exclusion wasn't fatal to the plaintiff's claims against the landlord and owners of the property because another expert was available to testify about the source of the injury.

Earlier Exclusion of Expert Distinguished 

A dissent by Judges Robert N. McDonald and Lynne A. Battaglia would have upheld Sundel's exclusion in its entirety and affirmed the granting of summary judgment to defendants.

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.”

The prior lead paint case referenced by the dissenters was 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). In that case, Sundel was excluded from testifying.

Distinguishing those two cases, the majority said that in Hazelwood, Sundel testified that he read articles generally about lead paint poisoning, but had not studied intensively the written materials.

Here, “Sundel endeavored to be more specific and shore-up the supposed deficiencies in his qualifications,” the majority said. He attested that he had read extensively on lead paint poisoning in adolescents, including a study by Bruce Lanphear relating to IQ loss and childhood lead poisoning.

To contact the reporter on this story: Bruce Kaufman in Washington at bkaufman@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

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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