Kehoe, Watts, Moylan, Charles E., Jr. (Retired, Specially Assigned), JJ.
This case is about lead paint poisoning, but the appeal calls for us to analyze the use of the process of elimination to prove a necessary constituent element of lead paint poisoning. In order to infer backward from a subsequent effect to a particular antecedent cause by using the process of elimination, it is necessary for the proponent actually to eliminate all but one of the eligible causes. The process of elimination, as its name implies, demands some efficacious eliminating. A graphic illustration of the process of elimination in action is Dow v. L & R Properties, Inc., 144 Md.App. 67, 796 A.2d 139 (2002), the case that is the fulcrum of this appeal.
We hasten to point out that our analysis in this case does not go to the ultimate proof of causation, but only to the use of the cause-and-effect relationship to infer a critical fact that enters into the ultimate question of causation.
The Case Before Us
In this lead paint case, the Circuit Court for Baltimore City granted summary judgment in favor of the appellees, NBS, Inc., and Stanley Rochkind, who owned and operated a residential property, 1814 Lorman Street, from May 4, 1990, through June of 2001. The appellant, Dominique West ("Dominique"), alleged that he sustained injury from having ingested lead paint while living with his grandparents at 1814 Lorman Street from his birth in 1989 through February 10, 1992.
The case was necessarily based on circumstantial evidence because no lead paint tests were ever conducted on 1814 Lorman Street and the property has since been razed. Answers to interrogatories and deposition testimony by Dominique's mother, Yarrell Duppins, revealed that Dominique either resided or spent substantial amounts of time at a variety of different residences during the first six years of his life – including 1814 Lorman Street, 428 Cummings Court, 1311 Ballard Way, and 2696 Aisquith Street. Judge Lawrence P. Fletcher-Hill ultimately ruled that Dominique had not made out a prima facie case of negligence against the appellees. He reasoned that, given Dominique's uncertain residential history and the lack of any direct evidence that 1814 Lorman Street ever contained lead paint, Dominique could not point to 1814 Lorman Street as the source of his lead poisoning. We agree with Judge Fletcher-Hill and, for the following reasons, shall affirm the judgment of the circuit court.
A Chaotic Residential History
Dominique was born prematurely, at 29 weeks, on June 28, 1989. He weighed two-and-a-half pounds at birth. The evidence as to precisely where Dominique lived for the first six years of his life was ambiguous in the extreme. Dominique exhibited elevated blood lead levels in capillector screening tests performed on August 21, 1990, December 19, 1990, and March 11, 1991. Of present pertinence is that those test results all listed Dominique's address as 1814 Lorman Street. Dominique also exhibited elevated blood lead levels in capillector screening tests performed on January 21, 1992 and August 5, 1992, and in a confirmatory venipuncture test performed on April 22, 1992. Those test results all listed Dominique's address as 428 Cummings Court. In answers to interrogatories signed by Dominique, he provided the following peripatetic residential history:
1814 Lorman Street
1311 Ballard Way
428 Cummings Court
??? Lakebrook Circle
2696 Aisquith [Street]
In a deposition taken on March 3, 2011, Dominique's mother, Yarrell Duppins, testified that she resided at 1627 Appleton Street at the time Dominique was born. When asked whether "anybody else live[d] there besides you, Willie West, Helen Brown, and after he was born, Dominique?" she replied "No." Later in the deposition, however, she testified that her son, Dominique, went to stay with his grandparents (her mother and father) at 1814 Lorman Street "immediately after birth from the hospital." For the first 11 months of Dominique's life, however, the appellees were not yet the owners of 1814 Lorman Street.
Yarrell Duppins also testified that her parents, Ethel and Calvin Duppins, were awarded legal custody of Dominique when he was four years old, i.e., in 1993 or 1994. That assumption of legal custody, however, only occurred after the Duppinses had moved away from 1814 Lorman Street. Ethel Duppins leased 1814 Lorman Street from some time before Dominique was born until she moved out on February 10, 1992. In an earlier deposition, taken on November 11, 2009, moreover, Yarrell Duppins had testified that, "most of the time, " when she was living at various other addresses, including 1627 Appleton Street, 428 Cummings Court, 2430 Druid Hill Avenue, and 1311 Ballard Way, she would provide her parents' address (1814 Lorman Street) instead of her own when seeking medical treatment.
Dominique was evaluated at the Kennedy Krieger Institute for behavioral problems in August of 1998, when he was nine years old. By that point, Dominique's legal guardian was his grandmother, Ethel Duppins. The Kennedy Krieger report states: "Dominique has been living with the Duppins [his grandparents] since the age of five. Prior to that period, he had lived with his mother." That report effectively excluded 1814 Lorman Street as a place of residence, for by the time that Dominique was five his grandparents had moved away from Lorman Street. Over the span of 20 years, of course, memories inevitably had ...