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Cherie Ross v. Housing Authority of Baltimore City

March 22, 2013

CHERIE ROSS
v.
HOUSING AUTHORITY OF BALTIMORE CITY



The opinion of the court was delivered by: McDonald, J.

Maryland Supreme and/or Appellate Courts

Cherie Ross v. Housing Authority of Baltimore City

No. 10, September Term 2012

Expert Testimony - Maryland Rule 5-702. In a negligence action against a landlord arising out of injuries allegedly suffered by the plaintiff from her childhood ingestion of lead paint while residing in the landlord's property, the Circuit Court had discretion to exclude proposed expert opinion testimony of a pediatrician that the landlord's property was "the source" of the plaintiff's lead exposure and elevated blood lead levels. The pediatrician lacked the qualifications and factual basis required by Maryland Rule 5-702. In addition, the underlying premise for admission of expert opinion testimony under Rule 5-702 is that it will be helpful to the fact-finder at trial. Because the proposed opinion testimony was indistinguishable from lay opinion testimony, the Circuit Court acted within its discretion in concluding the proposed testimony would not be helpful to a jury.

Torts - Proof of Causation - Summary Judgment. Proof of causation is essential to proof of negligence, but some aspects of causation - such as childhood sources of lead exposure - may be proven by circumstantial evidence without need for expert opinion testimony. Accordingly, summary judgment may not be granted solely on the ground that proposed expert testimony has been excluded and that an expert opinion on source is thus unavailable.

Bell, C.J. Harrell Battaglia Greene Adkins Barbera McDonald, JJ.

Opinion by McDonald, J.

Unlike the bullet or the misplaced banana peel, the effect of toxic substances on the body is often subtle and slow, leaving cause uncertain. This gap of understanding is often bridged through science, probability, and inference from provable facts. As a result, expert testimony has become central to toxic tort litigation.*fn1 But not every inference is provable in court by expert opinion testimony. Nor need it be.

This case arises out of an attempt to use expert opinion testimony of a pediatrician to establish the defendant's building as the source of the plaintiff's lead exposure and elevated blood lead levels. We hold that the Circuit Court did not abuse its discretion when it excluded the proposed expert testimony. However, the exclusion of that testimony was not necessarily a fatal blow to the plaintiff's case and we remand for reconsideration of the court's award of summary judgment in favor of the defendant.

Procedural Background

The Parties

The present dispute arises out of the alleged exposure of a woman to lead paint at the homes in which she spent her childhood. The Petitioner, Cherie Ross, was born on October 6, 1990. From that time until June 1992, Ms. Ross and her mother, Patricia A. Shandes, lived in Baltimore City at 934 N. Gilmor Street ("the Gilmor Street home"), then owned by Bernard Dackman. From June 1992 through at least 1996, they lived at 546 N. Payson Street ("the Payson Street home"), also in Baltimore City and owned by Respondent Housing Authority of Baltimore City ("HABC").

The Complaint

On May 7, 2008, Ms. Ross, by her mother, sued Mr. Dackman and HABC in the Circuit Court for Baltimore City, alleging that she had sustained permanent injuries from lead paint exposure at both properties. Specifically, Ms. Ross alleged that she had suffered permanent brain damage "resulting in developmental and behavioral injuries." The complaint included claims for negligence and unfair trade practices under the Consumer Protection Act as to each defendant. The claims against Mr. Dackman were settled shortly before the scheduled trial date in September 2010.*fn2

The Dispositive Motions

Shortly before the scheduled trial date, the Circuit Court took up a number of motions in limine, including a defense motion to exclude expert testimony concerning the source of Ms. Ross' lead exposure and ingestion. After hearing testimony from the proposed expert, the Circuit Court rendered a bench opinion granting HABC's motion to exclude that portion of the expert's testimony. HABC's counsel then made an oral motion for summary judgment, arguing that the exclusion of the expert testimony doomed the plaintiff's case. After brief argument on the oral motion, the Circuit Court granted summary judgment in favor of HABC.

Ms. Ross appealed the exclusion of the expert testimony and the grant of summary judgment. In an unreported opinion, the Court of Special Appeals affirmed the ruling on expert testimony, but declined to consider further whether summary judgment was appropriate on the ground that Ms. Ross had not separately challenged that ruling. Ms. Ross petitioned for certiorari, which we granted as to both issues.

The Plaintiff's Evidence

In the absence of a trial or formal written submissions by the parties concerning HABC's summary judgment motion, we must glean the relevant facts from the hearing testimony and the materials submitted in connection with the motion to exclude expert testimony - to which the grant of summary judgment was closely linked by both the judge and the parties.

The evidence relied upon by the plaintiff to support the expert opinion and avoid summary judgment falls into four major categories: (a) results of tests of Ms. Ross=

childhood blood lead levels; (b) results of tests to detect lead paint and lead dust in the two homes in which Ms. Ross resided; (c) discovery materials describing Ms. Ross' childhood - excerpted from interrogatory answers and the deposition testimony of Ms. Ross' mother; and (d) testimony of the proffered expert, both in deposition and at the motions hearing.

a. Blood Lead Levels

Reports by the Maryland Department of Health and Mental Hygiene indicate that, while Ms. Ross lived at the Gilmor Street home, her blood lead levels tested as follows:

Date Taken*fn3 Blood Lead Level*fn4

10/10/91 10 :g/dL

1/9/92 8 :g/dL

4/28/92 10 :g/dL

Subsequent reports indicate that, while Ms. Ross lived at the HABC Payson Street home, her blood ...


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