Stewart LEVITAS v. Michael Davon CHRISTIAN
No. 58, Sept. Term, 2016
Court of Appeals of Maryland.
July 11, 2017
Reconsideration Denied August 24, 2017
164 A.3d 228
Adkins, J.
Argued by Brian S. Brown (Lea K. Barron, Brown & Barron, LLC, Saul E. Kerpelman & Associates of Baltimore, MD) on brief, for Respondent.
Argued before Barbera, C.J., Greene, Adkins, McDonald, Watts, Getty, Lynne A. Battaglia (Senior Judge, Specially Assigned), JJ.
Adkins, J.
Issues about an expert‘s qualifications and foundation for his opinion are no strangers to appellate courts, and the complex issues of causation in lead paint cases generally require expert testimony, which is often challenged. Today we review a case in which the trial court excluded the plaintiff‘s
FACTS AND LEGAL PROCEEDINGS
Respondent Michael Christian was born on February 12, 1990. From his birth until October 1992, he resided with his mother, Nickolas Skinner (“Nickolas“), and grandmother, Betty Skinner (“Betty“),1 at 3605 Spaulding Avenue (“Spaulding“) in Baltimore City.2 Christian and his mother then moved to 4946 Denmore Avenue (“Denmore“) in October 1992, where they resided for almost a year. In September 1993, Christian and his mother moved back to Spaulding and lived there for another four years, until September 1997.
Christian‘s blood was tested eight times between November 1990 and October 1993. In April 1991, he exhibited an elevated free erythrocyte protoporphyrin (“FEP“) level, which does not measure a child‘s blood lead level but is an initial screening test for lead exposure. From February 1992 to October 1993, Christian displayed elevated blood lead levels five times as follows:
| Date Taken | Blood Lead Level3 | Christian‘s Address4 |
|---|---|---|
| February 20, 1992 | 9 µg/dL | Spaulding |
| February 18, 1993 | 10 µg/dL | Denmore |
| July 16, 1993 | 17 µg/dL | Denmore |
| September 2, 1993 | 12 µg/dl. | Denmore |
| October 6, 1993 | 14 µg/dL | Spaulding |
[Editor‘s Note: The preceding image contains the references for footnotes 3, 4]
During discovery, Christian designated Howard Klein, M.D., a pediatrician with experience treating lead-poisoned children, as an expert witness who would opine on the source of Christian‘s lead exposure—source causation—and his lead-caused injuries—medical causation. As to the source of Christian‘s lead exposure, Dr. Klein testified in his deposition that he was “of the opinion that [Christian] was exposed to lead-
In his expert report on medical causation, Dr. Klein concluded “within [a] reasonable degree of medical certainty” that lead caused Christian‘s mental retardation, impaired cognition, and learning disabilities. He further opined in his deposition that as a result of Christian‘s exposure to lead, he lost 7.4 to 9.4 IQ points. Dr. Klein based his opinion on: (1) a neuropsychological evaluation of Christian by Barry Hurwitz, Ph.D.; (2) Christian‘s medical records; (3) Christian‘s Answers to Interrogatories; (4) information on Spaulding and Denmore; (5) Christian‘s Maryland Department of Health and Mental Hygiene (“DHMH“) lead testing records; (6) MDE records; (7) DHCD records; and (8) Christian‘s school records. To calculate Christian‘s IQ loss, he relied on the Lanphear study,6 which found that children with certain average lifetime blood lead levels lost a specific number of IQ points. Dr. Klein
Levitas filed a motion to exclude Dr. Klein from testifying about source causation on the grounds that he lacked both the necessary qualifications and a sufficient factual basis for his opinion.7 Levitas also moved for summary judgment in his favor if Dr. Klein were excluded.
...
On July 10, 2013, the Circuit Court held a hearing on Levitas‘s motion to exclude Dr. Klein. At the hearing, Levitas argued that Dr. Klein should be precluded from testifying about both source causation and medical causation. Ruling from the bench, the hearing judge excluded Dr. Klein‘s testimony on both of these topics. The court reasoned that Dr. Klein should be prevented from testifying about the source of Christian‘s lead exposure because “he did not, or had very little information concerning other sources [of lead exposure].”8 It also precluded Dr. Klein from testifying about the cause and extent of Christian‘s injuries because he was not qualified and his opinion lacked a sufficient factual basis under
In the first of two Court of Special Appeals opinions, the intermediate appellate court affirmed the Circuit Court‘s decision to exclude Dr. Klein. Christian appealed to this Court, and we, in a per curiam order, vacated the judgment and remanded the case for reconsideration in light of Roy v. Dackman, 445 Md. 23, 124 A.3d 169 (2015), reconsideration granted, (Nov. 24, 2015). Christian v. Levitas, 445 Md. 240, 126 A.3d 71 (2015). On remand, the Court of Special Appeals, in an unreported opinion, reversed the Circuit Court‘s decision to exclude Dr. Klein. Christian v. Levitas, 2016 WL 4076100, at *6 (Md. Ct. Spec. App. Aug. 1, 2016). It concluded that Dr. Klein was qualified and had a sufficient factual basis to opine that Christian was exposed to lead at Spaulding and that lead caused his injuries. Id. at *4-*5. Levitas appealed.
We granted certiorari to answer the following questions:11
Did the trial court err in excluding Dr. Klein‘s testimony regarding lead-source causation? - Did the trial court err in excluding Dr. Klein‘s testimony regarding medical causation?
Because we answer these questions in the affirmative, we shall affirm the judgment of the Court of Special Appeals.
STANDARD OF REVIEW
It is often said that decisions to admit or exclude expert testimony fall squarely within the discretion of the trial court. See, e.g., Bryant v. State, 393 Md. 196, 203, 900 A.2d 227 (2006) (collecting cases). A discretionary ruling, however, is not boundless and must be tethered to reason. We have explained that an abuse of discretion is “discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.” Neustadter v. Holy Cross Hosp. of Silver Spring, Inc., 418 Md. 231, 241, 13 A.3d 1227 (2011) (emphasis added) (quoting Touzeau v. Deffinbaugh, 394 Md. 654, 669, 907 A.2d 807 (2006)). Appellate courts will not affirm a trial court‘s discretionary rulings “when the judge has resolved the issue on unreasonable or untenable grounds.”12 Id. (internal
Below we examine the Circuit Court‘s rationale for excluding a crucial expert witness to assess whether it abused its discretion.
DISCUSSION
Levitas contends that the Circuit Court correctly excluded most of Dr. Klein‘s testimony because he lacked a sufficient factual basis to opine about the source of Christian‘s lead exposure and the nature and extent his injuries related to such exposure.13 Christian flatly disagrees.
We have repeatedly explained that an expert may be qualified to testify if he “is reasonably familiar with the subject under investigation.” Roy, 455 Md. at 41, 124 A.3d 169 (emphasis added) (quoting Radman, 279 Md. at 169, 367 A.2d 472). This familiarity can come from “professional training, observation, actual experience, or any combination of these factors.” Radman, 279 Md. at 169, 367 A.2d 472. An expert, therefore, does not need to have hands-on experience with the subject about which he proposes to testify. Id. at 170-71, 367 A.2d 472 (citations omitted). The often-cited illustration of this concept is a law professor who is an expert in trial procedure even though she has never tried a case. Id. at 171, 367 A.2d 472 (citation omitted). Similarly, a doctor may be qualified to testify as a medical expert even though she does not have experience with a particular procedure or area of specialization. Id.
An expert‘s testimony is admitted “because it is based on his special knowledge derived not only from his own experience, but also from the experiments and reasoning of
Expert testimony must also have an adequate factual basis so that it is “more than mere speculation or conjecture.” Exxon Mobil Corp. v. Ford, 433 Md. 426, 478, 71 A.3d 105, as supplemented on denial of reconsideration, 433 Md. 493, 71 A.3d 144 (2013) (citation omitted). If an expert‘s conclusions are not supported by an adequate factual basis, his opinion has no probative force. Beatty v. Trailmaster Prod., Inc., 330 Md. 726, 741, 625 A.2d 1005 (1993) (citation omitted). The probative value of an expert‘s testimony is directly related to the “soundness of [the] reasons given” for his conclusions. Id. (citation omitted). An adequate factual basis requires: (1) an adequate supply of data; and (2) a reliable methodology for analyzing the data. Roy, 445 Md. at 42-43, 124 A.3d 169 (citation omitted); Ford, 433 Md. at 478, 71 A.3d 105 (citation omitted). In addition, if the facts and data that an expert relies on are “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject,” they need not be independently admissible at trial.
In assessing the expert-witness factors, the trial court is only concerned with whether the expert‘s testimony is admissible. “[O]bjections attacking an expert‘s training, expertise or basis of knowledge go to the weight of the evidence and not its admissibility.” Baltimore Gas & Elec. Co. v. Flippo, 112 Md.App. 75, 98, 684 A.2d 456 (1996), aff‘d, 348 Md. 680, 705 A.2d 1144 (1998) (citation omitted). An expert‘s qualifications and methods may be teased out during cross-examination, and the jury can then assess how much weight to give his testimo-
Lead-Source Causation
The third factor in
By contrast, Dr. Klein concluded—with a reasonable degree of medical certainty—that Spaulding was a reasonably probable source of Christian‘s lead exposure for several reasons:
- The 2012 Arc Report found that 31 interior locations and five exterior locations tested positive for lead;
- Lead paint was banned federally in 1978, and therefore it was unlikely that Spaulding had been painted with lead-based paint since Christian lived there in the 1990s;
- DHCD records described the poor condition of the property;17
- An MDE certification indicated that Spaulding was not lead free;
- Christian‘s FEP and blood lead levels were first found to be elevated while he was living at Spaulding, when he had not yet lived anywhere else;
- Family members testified that Spaulding was in a deteriorated condition while Christian was living there and that Christian touched peeling paint at the property; and
- Christian regularly stayed at Spaulding during the day while his mother was at work, both when he lived there and when he lived at Denmore.
Dr. Klein acknowledged that Denmore was also a source of Christian‘s lead exposure. Thus, unlike the expert in Ross, he did not jump to the conclusion that Spaulding was a source merely because it contained lead paint.18 Spaulding‘s lead
The Dissent claims that expert witnesses in lead paint cases must exclude other properties to opine that a particular property was a substantial contributing factor to the plaintiff‘s injuries. Dissent Op. at 274-76, 164 A.3d 252-53. It also contends that the plaintiff must establish that “the subject property was a more probable source” of his injuries than other possible sources. Id. at 259, 164 A.3d at 244. Both of these assertions stem from a fundamental misunderstanding of the substantial factor test. The substantial factor test applies when “two or more independent negligent acts bring about an injury.” Pittway Corp. v. Collins, 409 Md. 218, 244, 973 A.2d 771 (2009). Under the test, an actor‘s conduct is a cause-in-fact of the plaintiff‘s injuries when it is “a substantial factor in bringing about the harm.” Id. (quoting Restatement (Second) of Torts § 431 (Am. Law Inst. 1965)). The substantial factor test does not require experts to exclude other properties as possible contributing sources or the plaintiff to show that one cause had a greater impact than any other substantial factor causing the harm. See Eagle-Picher Indus., Inc. v. Balbos, 326 Md. 179, 209, 604 A.2d 445 (1992). It would be illogical for us to require an expert to narrow the plaintiff‘s lead exposure down to a single source when the substantial factor test, by its very definition, permits more than one cause of injury.
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The discretion accorded to trial judges in evidentiary rulings calls for an exercise of judgment using applicable legal standards. Neustadter, 418 Md. at 241-42, 13 A.3d 1227. Here, the trial court excluded Dr. Klein‘s proffered testimony about source causation because he had “very little ... information concerning other sources [of lead exposure].” In doing so, it thus relied on a purported rule of law that an expert must exclude other properties before he can testify that the plaintiff was exposed to lead at the subject property. But, as discussed supra, this is not the rule. Moreover, in Hamilton v. Kirson, 439 Md. 501, 544, 96 A.3d 714 (2014), we dismissed concerns over
Medical Causation
The first factor of
Levitas takes issue with the factual basis for Dr. Klein‘s opinion that lead poisoning caused “[m]ental [r]etarda-tion” and “[i]mpaired cognition” in Christian. He argues that Dr. Klein should have conducted his own examination of Christian, rather than relying on Dr. Hurwitz‘s report, scientific research, Christian‘s school records, discovery materials, and deposition testimony. This argument reflects Levitas‘s misunderstanding about the nature of—and boundaries for—expert testimony.
In a leading case on expert witness qualifications, Radman v. Harold, we held that the trial court erred in precluding an internal medicine specialist from testifying about the standard of care for a hysterectomy because he had not “performed any
We recently reiterated in Roy the principle from Radman—that an expert witness is “not required necessarily to be a specialist” or have “specialized knowledge,” but her opinion must be based on “reliable knowledge, skill, and experience.” Roy, 445 Md. at 43, 50, 124 A.3d 169; see also
The record in this case establishes that Dr. Klein has the “knowledge, skill, experience, training, or education” required under
The Circuit Court precluded Dr. Klein from testifying about Christian‘s IQ loss on the grounds that he did not administer the “particular type of IQ test” that Dr. Hurwitz used in his own practice and he is “not able to explain to the jury how [] the psychologist got to [his] results.” But physicians are often knowledgeable about many tests, even those they do not use. Knowledge about a broad spectrum of available tests is part of the training received by a physician—and this knowledge need not be acquired through hands-on experience. Radman, 279 Md. at 170-71, 367 A.2d 472. In the lead paint litigation context, Roy makes clear that an expert need not administer the IQ test to be competent to testify that lead exposure caused a loss in IQ. In Roy, Dr. Hurwitz provided a neuropsychological report on the plaintiff. The expert, Dr. Sundel, did not administer the IQ test. Instead, he relied on Dr. Hurwitz‘s report to conclude that the plaintiff suffered a loss of IQ points and other attention and memory impairments. Roy, 445 Md. at 33, 124 A.3d 169. We nevertheless held that Dr. Sundel was qualified to testify about the plaintiff‘s injuries. Id. at 52, 124 A.3d 169.
Like Dr. Sundel, Dr. Klein developed his opinion based in part on Dr. Hurwitz‘s neuropsychological evaluation of Christian. Moreover, the record reflects that Dr. Klein was indeed familiar with and had previously graded the IQ test. He testified in deposition that he was “familiar enough with [the IQ test] to know how the test was generated,” had seen several editions of different IQ tests, and “[knew] the testing pretty intimately.” In short, Dr. Klein had ample knowledge, training, and experience to be qualified as an expert under
We next focus on whether Dr. Klein had a sufficient factual basis to testify as to Christian‘s IQ loss. Levitas submits that the court properly excluded Dr. Klein‘s testimony
As we have established, an expert can rely on facts and data “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.”
In Roy, Dr. Sundel also used the Lanphear study to calculate the plaintiff‘s individual IQ loss. The Roy defendants argued that the study could not provide a sufficient factual basis for Dr. Sundel‘s IQ-loss opinion because other reputable studies contradicted the Lanphear study‘s results and cautioned against using it to calculate individual IQ loss. Roy, 445 Md. at 51-52 n.16, 124 A.3d 169. We rejected this argument, explaining that “reliance on the Lanphear study does not invalidate the entire basis of [an expert‘s] opinion, even if the
Finally, Levitas contends that Dr. Klein lacked a sufficient factual basis for his opinion that Christian has “impaired cognition” due to: (1) a 10-point difference between the IQ scores computed for Christian by Dr. Hurwitz and the defense expert; and (2) Dr. Klein‘s acknowledgment that there is no evidence of Christian being diagnosed with an “attention impairment” or a learning disability.21 But these fact-based arguments go to the weight of Dr. Klein‘s testimony, not its admissibility. See Ford, 433 Md. 426 at 481, 71 A.3d 105 (rejecting the argument that an expert‘s testimony was inadmissible because he did not reach the same conclusions as the other party‘s expert using the same data); Roy, 445 Md. at 43, 124 A.3d 169 (“Cross-examination is the usual crucible for persuading the fact-finder which witness merits the greater weight.“). As long as an expert‘s opinion will assist the trier of fact in understanding the evidence or determining a fact at issue, he should be permitted to testify. See
Because Dr. Klein is competent to testify about lead-source causation and medical causation, the Circuit Court erred when it excluded his testimony. Therefore, we affirm the judgment of the Court of Special Appeals.
JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY THE PETITIONER.
Getty, J., dissents.
Getty, J.
I respectfully dissent from the Majority‘s conclusion that Howard Klein, M.D., the pediatrician expert witness offered by the Respondent, Michael Christian, offered a sufficient factual basis for his opinion that lead-based paint inside the property owned by Stewart Levitas, Petitioner, at 3605 Spaulding Avenue (“the Spaulding Property“), was a substantial factor cause of Mr. Christian‘s harm from lead poisoning. See Majority Op. at 246-51, 164 A.3d at 236-39. Although I agree with the Majority that evidence in the record may have been sufficient for Dr. Klein to reasonably conclude that Mr. Christian “was exposed to lead-based paint at the [Spaulding Property],” Dr. Klein did not adequately explain the methodology by which he reached that conclusion. And, the record does not show that Dr. Klein had an adequate supply of data, or offered any methodology in support of his opinion that it was Mr. Christian‘s exposure to lead-based paint at the Spaulding Property that was the substantial factor cause of his elevated blood lead levels and injuries from lead paint poisoning, as opposed to his period of residency at another property at which he resided as a child, 4946 Denmore Avenue (“the Denmore Property“), which Dr. Klein agreed also appeared to be a source of lead ingested by Mr. Christian.
Maryland courts have consistently held that an expert lacks an adequate factual basis for an opinion as to source causation in a lead paint case unless the expert can show an adequate supply of data and describe the methodology that enabled the
As Dr. Klein failed to provide a factual basis adequate to exclude the Denmore Property as a probable source of Mr. Christian‘s harm, as required by Roy, and did not describe the methodology he used to reach his opinions as to lead source causation, I would affirm the trial court‘s grant of the motion to exclude his testimony regarding lead source causation. Therefore, I respectfully dissent.
A. Causation in Lead Paint Litigation
When a plaintiff raises a negligence claim alleging injury from the presence of lead-based paint in a property owned by a defendant, the plaintiff bears the burden of proof for all essential elements of that claim, including “that the defendant‘s negligence was a proximate cause of the accident or injury.” Hamilton v. Kirson, 439 Md. 501, 526, 96 A.3d 714 (2014) (quoting Peterson v. Underwood, 258 Md. 9, 15, 264 A.2d 851 (1970)). One aspect of proximate cause is causation-in fact or, in other words, “whether [a] defendant‘s conduct actually produced an injury.” Id. When there are two or more independent possible causes of an injury, courts apply the “substantial factor” test to determine whether a defendant‘s conduct produced the injury.
This Court first applied the substantial factor test in a lead paint case in Ross v. Housing Authority of Baltimore City,
(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. To be a substantial factor in causing [a plaintiff‘s] alleged injuries, the [subject property] must have been a source of [the plaintiff‘s] exposure to lead, that exposure must have contributed to the elevated blood lead levels, and the associated increase in blood lead levels must have been substantial enough to contribute to her injuries.
Ross, 430 Md. at 668, 63 A.3d 1. The three links described in Ross can be labelled as “(1) source, (2) source causation, and (3) medical causation.” Rogers v. Home Equity USA, Inc., 453 Md. 251, 265, 160 A.3d 1207 (2017). This Court later clarified that in order to establish the first “source” link in the chain, “the plaintiff must tender facts admissible in evidence that, if believed, establish two separate inferences: (1) that the property contained lead-based paint, and (2) that the lead-based paint at the subject property was a substantial contributor to the victim‘s exposure to lead.” Kirson, 439 Md. at 529-30, 96 A.3d 714.
A plaintiff may establish the required causation links in a lead paint case through either direct or circumstantial evidence. Id. at 527, 96 A.3d 714. This Court has endorsed two separate theories whereby a plaintiff may rely on circumstantial evidence to establish the first two of the Ross links, “source” and “source causation.” Under a Dow theory, first articulated by the Court of Special Appeals in Dow v. L & R Properties, Inc., a plaintiff may establish that a property was the source of lead exposure, and that the exposure at that property caused elevated blood lead levels, if the plaintiff can “rule out” other reasonably probable sources of lead exposure, and thereby show that the subject property is the “only
I dissented from this Court‘s endorsement and application of a new theory of causation in Rogers. In part, that dissent was based on my view that, the proper standard of proof under which a plaintiff‘s case should be scrutinized at the summary judgment stage is whether the plaintiff has shown that it was “more probable than not” that a particular property was a substantial factor cause of his exposure to lead and elevated blood lead levels, as opposed to a “reasonable probability.”1 Rogers, 453 Md. at 264-69, 160 A.3d 1207. But, of greater significance to the motion to exclude at issue in this case, I also disagreed with the Rogers Majority‘s narrow focus on evidence as to the subject property owned by the defendant, when other evidence in the record indicated that another property was an equally likely source of the plaintiff‘s harm. Id. at 268-72, 160 A.3d 1207. In my view, when there are multiple potential sources of a plaintiff‘s exposure to lead-based paint and elevated blood lead levels, each of which is
The Majority in this case asserts that the standard which I described in my dissent in Rogers “stem[s] from a fundamental misunderstanding of the substantial factor test.” See Majority Op. at 250, 164 A.3d at 238. The Majority notes that the substantial factor test “applies when ‘two or more independent negligent acts bring about an injury.‘” Id. (quoting Pittway Corp. v. Collins, 409 Md. 218, 244, 973 A.2d 771 (2009)). As “the substantial factor test, by its very definition, permits more than one cause of injury,” the Majority concludes that “[i]t would be illogical for us to require an expert to narrow the plaintiff‘s lead exposure down to a single source.” Id.
A plaintiff may certainly raise a claim under the substantial factor test that there was more than one cause of his harm. As I noted in a footnote in my Rogers dissent, in a lead paint negligence case a plaintiff may claim “that the defendant‘s property is a contributing source of his harm from lead exposure, as part of a claim that multiple sources of lead exposure cumulatively proximately caused his harm.” Rogers, 453 Md. at 259 n.1, 160 A.3d 1207. (Emphasis in original). In such a scenario, I believe that the appropriate burden that the plaintiff would need to meet would be to show that the causes that he identified, considered as a whole, were a more probable than not source of his harm. But, firstly, the plaintiff must actually raise such a claim, and produce evidence in support of it as to the other alleged sources of lead exposure. And, secondly, as the Court of Special Appeals pointedly noted in Hamilton v. Dackman, such a claim would be a “hard case” to
In contrast, when a plaintiff only identifies a single property that he claims was the source of his exposure to lead and lead poisoning, but evidence before the trial court shows that there are other reasonably likely sources of that harm, the question before the trier of fact is not whether the defendant‘s property was merely a contributor to some of his lead exposure along with the other cause(s) the plaintiff has identified. Rather, the issue becomes whether that property was, compared to the other reasonably likely causes, a substantial contributor to the plaintiff‘s lead exposure and consequent lead poisoning. In such a case, although the plaintiff does not need to show that a defendant‘s property was the only contributing cause of his lead exposure and injury, he must show at least that the property was “an important or significant contributor to [his] injuries.” Rogers, 453 Md. at 261, 160 A.3d 1207 (quoting Black‘s Law Dictionary (10th ed. 2014)). In my view, that requires the plaintiff to show that the defendant‘s property was a more probable source of his exposure and elevated blood lead levels than the other property(s).
Expert Testimony and Causation
Under either a Dow or Kirson/Rogers theory of causation, a plaintiff can overcome summary judgment and place the issue of whether the defendant‘s property caused the plaintiff‘s lead exposure and elevated blood lead levels before the trier of fact through a sufficient showing of direct or circumstantial evidence. Dow, 144 Md.App. at 75, 796 A.2d 139; Rogers, 453 Md. at 248, 160 A.3d 1207. The plaintiff is not required, as a matter of law, to have an expert opinion as to causation. See e.g., Ross, 430 Md. at 669, 63 A.3d 1 (holding 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, even if expert opinion testimony is not
The standard for admissibility of expert testimony as to source causation is thus a vital one in lead paint actions. The Majority holds today that an expert who gives an opinion that a defendant‘s property caused a plaintiff‘s harm does not need to show or explain that other reasonably probable sources did not cause the plaintiff‘s harm. Majority Op. at 250-51, 164 A.3d at 238 (holding that it is “not the rule” that a source causation expert in a lead paint action “must exclude other properties before he can testify that the plaintiff was exposed to lead at the subject property“) The Majority‘s removal of the requirement that a source causation expert must exclude other reasonably probable sources in order for his expert testimony to be admitted at trial, in combination with the Court‘s earlier decision in Rogers, is likely to lead to the widespread adoption of the new Kirson/Rogers theory of causation in lead paint actions, and the abandonment of the Dow theory. When a plaintiff has resided at more than one property that may have contained lead paint, he is unlikely to go to the time and expense of gathering evidence or obtaining an expert opinion to exclude all the properties that did not cause his harm if, instead, he can simply focus in on a particular defendant‘s property and show that it was a reasonably probable source of its harm. However, as I shall explain below, the Majority‘s holding is not only likely to usher in a major change in the
B. Factual Basis Requirement for Expert Opinion Testimony in Lead Paint Litigation
Maryland appellate courts have had several occasions in recent years to apply these principles in lead paint litigation to evaluate the adequacy of the factual basis supporting an expert opinion offered by a pediatrician as to source or source
Court of Special Appeals Cases
In Taylor v. Fishkind, the Court of Special Appeals considered whether a trial court had abused its discretion in granting summary judgment in favor of the defendant based upon a finding that the plaintiff‘s pediatrician expert witness, Dr. Henri Merrick, lacked an adequate factual basis as to his opinions regarding lead paint source and source causation. 207 Md.App. 121, 124, 51 A.3d 743 (2012), cert. denied, 431 Md. 221, 64 A.3d 497 (2013). Dr. Merrick‘s report concluded that the plaintiff was exposed to lead-based paint at two separate properties, based on “the age of the dwellings, the described conditions of the first dwelling, the detection of lead in an exterior window apron of this first dwelling and [the plaintiff‘s] blood lead levels while living at each dwelling.” Id. at 130, 51 A.3d 743.
The Court of Special Appeals determined that Dr. Merrick‘s opinion that the property contained lead-based paint was “only supported by the age of the house and the presence of lead on one component of the exterior of the house.” Id. at 142, 51 A.3d 743. The intermediate appellate court explained that he could not rely upon a presumption that the house contained lead paint simply “because it was built at a time when many houses contained lead-based paint.” Id. Moreover, the court discounted the exterior testing because the plaintiff had provided only “scant” circumstantial evidence that the interior of the property contained lead-based paint. Id. at 142, 51 A.3d 743. Likewise, the Court of Special Appeals concluded that the only evidence on which the expert relied to conclude that the plaintiff was exposed to lead at the defendant‘s property was evidence that her blood lead levels were elevated while she resided there. Id. at 145, 51 A.3d 743. The Court of Special Appeals held that “more is required to support Dr. Merrick‘s opinion that [the plaintiff] was exposed to lead-based paint at [the defendant‘s property]” because she conceded that she
The Court of Special Appeals considered a factually similar case in City Homes, Inc. v. Hazelwood, in which the plaintiff‘s pediatrician expert, Dr. Eric Sundel, testified that the property owned by the defendant “was the source of the [plaintiff‘s] lead exposure” and “a substantial contributing factor to injuries [the plaintiff] sustained.” 210 Md.App. 615, 687, 63 A.3d 713, cert. denied, 432 Md. 468, 69 A.3d 476 (2013). The intermediate appellate court held that Dr. Sundel‘s testimony lacked a sufficient factual basis, and the circuit court abused its discretion in permitting that testimony, because Dr. Sundel had “limited knowledge of [the plaintiff‘s] ... potential exposure to lead from other sources,” and had “failed to investigate other potential sources—i.e., to determine whether lead had been found in other residences in which appellee had lived or visited—to gain insight into whether [the defendant‘s property] was a source of [the plaintiff‘s] lead exposure.” Id. at 689, 63 A.3d 713. This Court declined to grant the plaintiff‘s petition for a writ of certiorari. 432 Md. 468, 69 A.3d 476 (2013).
Court of Appeals Cases
In
This Court affirmed the circuit court‘s grant of a motion to exclude Dr. Blackwell-White‘s testimony as lacking an adequate factual basis. Id. at 662-63, 63 A.3d 1. We concluded that “Dr. Blackwell-White did not explain adequately how she reached the conclusion that the [defendant‘s] home was ‘the source’ of the lead exposure that resulted in [the plaintiff‘s] elevated blood lead levels.” Id. at 663, 63 A.3d 1. We emphasized that “[m]erely reciting certain information that she took into account and then stating the ultimate conclusion without explaining how and by what expert method that information was weighed did not provide a basis by which the trier of fact could evaluate that opinion.” Id.
Furthermore, we noted that because there was evidence in the record as to “various other sources of lead exposure in [the plaintiff‘s] environment,” there were multiple potential causes of the plaintiff‘s exposure and elevated blood lead levels, and thus “[t]he real question for the fact-finder is how much exposure to lead at the [defendant‘s property] contributed to [the plaintiff‘s] [elevated] blood lead levels over the pertinent time period.” Id. at 664, 63 A.3d 1. As Dr. Blackwell-White did not offer any definitive opinion as to that question, we held that her “ultimate conclusion identifying the [defendant‘s property] as ‘the source’ was as likely to confuse as to assist a jury.” Id. We concluded our analysis by cautioning
Prior to today‘s opinion, this Court most recently addressed whether there was an adequate factual basis for a pediatrician expert‘s opinion as to source and source causation in a lead paint case in Roy v. Dackman, 445 Md. 23, 124 A.3d 169 (2015). In Roy, the petitioner, through his mother, filed a suit against the respondent property owners, alleging that the owners’ property was “the only source of lead paint” which he had ingested as a child. Id. at 30, 124 A.3d 169. The petitioner had resided for the first eight months of his life at another property before moving to that owned by the respondents, where he then resided for a two year period. Id. at 31, 124 A.3d 169. During his period of residency at the respondents’ property, tests were performed that showed elevated blood lead levels. Id. at 32, 124 A.3d 169. The respondent‘s property was built in 1920, and petitioner‘s counsel had obtained testing of the exterior of the property positive for lead-based paint. Id. at 31-32, 124 A.3d 169. Petitioner‘s mother also testified to the presence of flaking and chipping paint in both the interior
This Court held that the circuit court did not abuse its discretion in excluding Dr. Sundel‘s testimony, concluding that there was not an adequate factual basis, and the “proposed opinion falls victim to the same problems as those discussed in Taylor and Ross.” Id. at 47, 124 A.3d 169. We determined that the proposed opinion “was based solely on scant circumstantial evidence, including the age of the home and exterior tests of the paint on the dwelling,” and “did not rule out other probable sources” of lead exposure. Id. at 47-48, 124 A.3d 169. Furthermore, we noted that there was “no discussion in the record of Dr. Sundel‘s methods” that he used to reach his opinion. Id. at 48, 124 A.3d 169.
Notably in Roy, we referenced our opinion in Kirson, 439 Md. at 537-38, 96 A.3d 714, where we had indicated in dicta that a plaintiff may be able to show sufficient evidence to “rule in” a property as containing lead-based paint even without excluding all other possible sources.3 Nevertheless, we held in Roy that, without excluding other potential sources of lead, there is not an adequate factual basis “for an expert to
The Roy Court appeared to rest this distinction upon
Factual Basis Standard for Causation Expert Opinions Offered In a Lead Paint Negligence Action
I distill from reviewing the above-described cases4 that an expert opinion in a lead paint case as to source and source causation—that a plaintiff‘s elevated blood lead levels were caused by exposure to lead while living at the subject property
C. Factual Basis in this Case
I agree with several portions of the Majority‘s analysis with respect to the factual basis for Dr. Klein‘s testimony as to source causation. Initially, I agree with the Majority that Dr. Klein did not lack an adequate factual basis for his opinion merely because he did not conduct an “independent investigation” or otherwise obtain first-hand knowledge of Mr. Christian or the properties at issue. It is true that Dr. Klein was not a treating physician, and that he had not seen or questioned Mr. Christian or his family members directly. He stated in his deposition testimony that all of his opinions in the report that he prepared for trial were based upon records that he had received from Mr. Christian‘s counsel‘s office. Additionally,
Furthermore, I agree with the Majority that Dr. Klein had adequate data to support his expert opinion that, to reasonable degree of medical probability, Mr. Christian “was exposed to lead-based paint at the [Spaulding Property].” As the Majority notes, there was substantial circumstantial evidence on which Dr. Klein relied in formulating that opinion:
Dr. Klein concluded—with a reasonable degree of medical certainty—that Spaulding was a reasonably probable source of Christian‘s lead exposure for several reasons:
- The 2012 Arc Report found that 31 interior locations and five exterior locations tested positive for lead;
- Lead paint was banned federally in 1978, and therefore it was unlikely that Spaulding had been painted with lead-based paint since Christian lived there in the 1990s;
- [Department of Housing and Community Development] records described the poor condition of the property;
- A[] [Maryland Department of the Environment] certification indicated that Spaulding was not lead free;
- Christian‘s [free erythrocyte protoporphyrin (“FEP“)] and blood lead levels were first found to be elevated while he was living at Spaulding, when he had not yet lived anywhere else;
- Family members testified that Spaulding was in a deteriorated condition while Christian was living there and that Christian touched peeling paint at the property; and
Christian regularly stayed at Spaulding during the day while his mother was at work, both when he lived there and when he lived at Denmore.
Majority Op. at 248-50, 164 A.3d at 237-38.5 (Emphasis in original, footnote omitted). The 2012 Arc Report that determined multiple interior locations of the Spaulding Property tested positive for lead was not direct evidence that lead-based paint was present during the period of time that Mr. Christian resided at that property. But, when combined with the fact that lead paint had been banned federally prior to Mr. Christian‘s period of residency at the Spaulding Property, it was strong circumstantial evidence that lead paint was present on the property during the relevant time period. Moreover, the evidence of Mr. Christian‘s elevated lead blood tests at the Spaulding Property, the Department of Housing and Community Development records describing the poor condition of the property, as well as interrogatory testimony of several of Mr. Christian‘s relatives that described poor condition of the property while Mr. Christian lived there and that he regularly stayed in the home during the daytime, while circumstantial, was more than “scant” evidence that Mr. Christian was exposed to lead while living at that property. Dr. Klein thus had sufficient data from which he could conclude that defects in the Spaulding Property‘s interior such as chipping and flaking paint exposed Mr. Christian to lead while residing at that property.
However, Dr. Klein did not explain the methodology he used to assess that data and reach his conclusion that Mr. Christian was exposed to lead at the Spaulding Property. Instead, in both his report and his deposition testimony, he merely cited the “information that [he] took into account and then stat[ed]
Much more troubling, however, is that the Majority has overlooked the absence of any factual basis or methodology in support of Dr. Klein‘s additional opinion that it was Mr. Christian‘s exposure to lead-based paint at the Spaulding Property that was the substantial factor cause of his elevated blood lead levels and injuries from lead poisoning, as opposed to his period of residency at the Denmore Property, which Dr. Klein agreed was also a source of his exposure to lead. The Majority states that Dr. Klein did “not ignore[]” and “considered” information in the record as to the Denmore Property, referencing his report in which he stated that he considered “[p]roperty information for 3605 Spaulding Avenue [and] 4946 Denmore Avenue.” Majority Op. at 247-48 n.15, 250, 164 A.3d at 236-37 n.15, 238. However, it was not sufficient for Dr. Klein to have merely looked at or briefly “considered” information as to the Denmore Property. Rather, under this Court‘s precedent in Ross and Roy, he needed to put forth an adequate supply of data to show that it was exposure to lead at the Spaulding Property, and not the Denmore Property, that was the probable substantial cause of his harm from lead poisoning. See Roy, 445 Md. at 47, 124 A.3d 169; Ross, 430 Md. at 663-64, 63 A.3d 1. And, he needed to explain what methodology he used to rule out the Denmore Property as a probable source of exposure. Id.
Based on the evidence in the record, Dr. Klein both failed to offer an adequate supply of data and failed to describe his methodology in support of his opinion that the Spaulding Property was the substantial factor cause of Mr. Christian‘s elevated blood lead levels and harm from lead poisoning. Some
Relying on the Court‘s suggestion in Kirson, 439 Md. at 537-38, 544, 96 A.3d 714, that a plaintiff may be able to show that a property was a source of lead exposure without excluding other reasonably probable sources of such exposure, the Majority holds that it “is not the rule” in Maryland that an expert as to source causation in a lead paint case must “exclude other [reasonably probable] properties before he can testify that the plaintiff was exposed to lead at the subject property.” Majority Op. at 250, 164 A.3d at 238. The Majority is incorrect. As noted above, when this Court last considered expert testimony as to lead paint source causation in Roy, the Court recognized that Kirson had suggested “that a lead poisoning case may succeed grounded on suitable circumstantial evidence as to source,” without needing to exclude other properties. Roy, 445 Md. at 47, 124 A.3d 169. Nonetheless, the Court expressly held in Roy that expert testimony must be held to a higher standard, holding that “it is not enough for an
The Majority today is, therefore, overturning an express holding of this Court, less than two years from the date that holding was issued, in direct contravention of the principle of stare decisis. See e.g., DRD Pool Serv., Inc. v. Freed, 416 Md. 46, 63, 5 A.3d 45 (2010) (describing stare decisis as meaning “to stand by the thing decided,” and that it is “the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process“). The holding in Roy from which the Majority departs today was not an outlier but rather, as I described above, entirely in accord with this Court‘s precedent in Ross, as well as the Court of Special Appeals’ holdings in Taylor and Hazelwood. Moreover, in Roy and Ross this Court provided a cogent reason for requiring a lead source expert to exclude other probable sources—explaining that permitting an expert to opine that the defendant‘s property was the substantial cause of the plaintiff‘s lead poisoning, without explaining why other properties that evidence in the record showed were reasonably probable causes of exposure were not, is “as likely to confuse as to assist a jury.” Roy, 445 Md. at 48, 124 A.3d 169 (quoting Ross, 430 Md. at 664, 63 A.3d 1). However, the Majority has offered no such rationale for its holding today that sweeps away that requirement.
D. Conclusion
In summary, I would hold that when an expert witness is offered to show that a plaintiff was exposed to lead at a particular property, and that the exposure at that property caused the plaintiff‘s elevated blood levels and injury from lead poisoning, that expert meets the requirement in
The Majority‘s holding that Dr. Klein was not required to exclude other probable sources of Mr. Christian‘s lead poisoning is contrary to this Court‘s prior holdings in Ross and Roy. Furthermore, the Majority‘s holding will encourage trial courts to place the “imprimatur of court-endorsed expert status” on expert opinions that do not clearly establish that the defendant‘s property was, more likely than not, a substantial factor cause of the plaintiff‘s harm, and thereby lead to confusion among jurors who are called to decide that very issue. See Ross, 430 Md. at 664, 63 A.3d 1.
For the above stated reasons, I would affirm the trial court‘s grant of the motion to exclude Dr. Klein‘s testimony regarding lead-source causation and, therefore, I respectfully dissent.
Notes
- Whether the Court of Special Appeals erred in reconsidering all issues in this case when this Court‘s order for “reconsideration in light of Roy [v. Dackman, 445 Md. 23, 124 A.3d 169 (2015), reconsideration granted, (Nov. 24, 2015),]” should have only impacted the issue of expert qualifications.
- Whether the trial court abused its discretion in excluding Dr. Klein‘s testimony where the record showed that Dr. Klein did not have a sufficient factual basis to support either his opinion as to the source of lead exposure or the cause and extent of Mr. Christian‘s alleged injuries.
Id. at 599, 80 A.3d 269 (citations omitted). In that case, we reviewed de novo the trial court‘s decision to exclude a bank examiner‘s report on the grounds that it was inadmissible hearsay. Id. at 628-32, 80 A.3d 269.Some matters, such as the weighing of the relevance of proffered evidence as against unfair prejudice or other considerations, are left to the “sound discretion” of the trial court. Such decisions will be reversed only for abuse of discretion. Other evidentiary rulings are based on a “pure legal question.” In those circumstances, an appellate court considers the legal question without deference to the decision of the trial court.
Levitas also claims that “Christian targeted [Spaulding], then provided Dr. Klein with information pertaining only to that property.” Levitas mischaracterizes the record. Dr. Klein‘s own report lists the records that he reviewed in developing his opinion. On that list is “[p]roperty information for 3605 Spaulding Avenue [and] 4946 Denmore Avenue.”