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Roy v. Dackman

Court of Special Appeals of Maryland

October 6, 2014

JAKEEM ROY
v.
ELLIOT DACKMAN, et al

Page 449

[Copyrighted Material Omitted]

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Argued by: Scott E. Nevin (George E. Swegman, Law Offices of Peter T. Nicholl of Baltimore, MD), (John Amato, IV, Goodman, Meagher & Enoch, LLP of Balitimore, MD) all on the brief for Appellant.

Argued by: William C. Parler, Jr. (Kelley A. Grafton, Parler & Wobber, LLP on the brief) all of Towson, MD for Appellee.

Zarnoch, Kehoe, Leahy, JJ. Opinion by Leahy, J.

OPINION

Page 451

[219 Md.App. 457] Leahy, J.

Jakeem Roy (" Roy" or " Appellant" ) was exposed to lead before he reached age two, according to his blood tests taken on September 17, 1997. Roy filed a complaint through his mother, Latisha Hillery, in the Circuit Court for Baltimore City on June 29, 2011, against the owners of the two-story brick row house on 2525 Oswego Avenue where he lived for a short period as a baby, and where, he claims, he was exposed to lead paint. Roy asserts that as a result of the acts and omissions of the owners of the row house, Elliot and Sandra Dackman, Jacob Dackman & Sons, L.L.C., and Brina Corporation (" the Dackmans" or " Appellees" ), he was exposed to quantities of chipping, peeling, and flaking lead-based paint powder and dust which was a direct and proximate cause of injuries he maintains he sustained from lead poisoning.

This appeal is from the circuit court's grant of summary judgment in the Dackmans' favor.

Roy presents three issues for our review, which we have rephrased as follows:

1. Did the circuit court err when it excluded pediatrician's testimony that Roy suffered injuries from exposure to [219 Md.App. 458] lead paint and that 2525 Oswego Avenue was a substantial contributing cause of Roy's injuries?
2. Did the circuit court err in granting summary judgment in favor of Appellees based on the exclusion of pediatrician's testimony and Appellant's failure to present expert medical evidence?
3. Did the circuit court err in finding that the circumstantial evidence presented was insufficient to defeat summary judgment?

We find on all three questions that the circuit court did not err and we affirm its grant of summary judgment. The court appropriately excluded the proffered expert testimony of Appellant's pediatrician because he was not qualified as an expert

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for the same reasons we found him not qualified in City Homes v. Hazelwood, 210 Md.App. 615, 63 A.3d 713, cert. denied, 432 Md. 468, 69 A.3d 476 (2013), and because there was insufficient evidence to form the factual predicate to support his testimony. The circumstantial evidence presented (and upon which the pediatrician relied) was also insufficient to independently establish a prima facie case for causation consistent with Hamilton, et al. v. Kirson, et ux., 439 Md. 501, 520, 96 A.3d 714 (filed June 20, 2014), and the three lead paint causation links articulated in Ross v. Housing Auth. of Baltimore City, 430 Md. 648, 668, 63 A.3d 1 (2013).

Roy's Complaint[1]

[219 Md.App. 459] The amended complaint (" complaint" )[2] alleges that Roy " ingested and consumed paint chips and dust containing lead and lead pigments while living at the property," and that the Dackmans " fail[ed] to comply with laws, rules, regulations and ordinances of the State of Maryland and City of Baltimore that prohibit flaking, loose or peeling paint, . . . the use of paint with lead pigment, and the rental of dwellings that contain flaking, loose, or peeling paint." [3] As a consequence, the complaint states Roy " suffered lead poisoning . . . was subjected to painful testing and treatment . . . and has suffered permanent brain damage resulting in developmental and behavioral injuries." The complaint further alleges that the Dackmans observed the condition of 2525 Oswego Avenue and therefore had reason to know of the inherently unreasonable danger to which they exposed their tenants, Roy and his family, to whom they owed a duty to use ordinary care to ensure the property was safe and free of any lead contamination. Counts I, II, and V declare that Roy's lead poisoning and injuries are the direct, foreseeable and proximate result of the Dackmans' negligence. Counts II, IV, and VI claim the Dackmans engaged in unfair and deceptive trade practices in violation of Maryland law by leasing the property to Roy and his family, without notice or warning of its hazardous condition, and while concealing the true condition of the property.[4]

[219 Md.App. 460] Roy's Childhood Residences

Roy was born in the City of Baltimore, Maryland, on April 26, 1996. He resided at 2801 Virginia Avenue, Apartment C8, for approximately the first eight months

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to one year of his life. The record is equivocal on the date Roy and his family moved to 2525 Oswego Avenue. Roy contends that he resided at 2525 Oswego Avenue from the " fall of 1996 through November 1998" in his brief submitted to the court; however, the complaint alleges in paragraph four that Roy resided at the property from " approximately 1997 to approximately 1998." Roy's mother, Latisha Hillery, testified during her deposition that Roy moved into the premises in the fall 1996; however, Roy's Answers to Interrogatories indicate that Roy lived at 2525 Oswego Avenue from January 1997 to 1998.

Business records submitted by the Dackmans indicate that the property was undergoing significant renovations from January 7, 1997 through April 3, 1997. These renovations included extensive cleaning, painting, repairing the roof and skylights, repairing ten windows, replacing doors and door frames, repairing walls and sheet rock throughout the house, and installing metal on the window sills. The Dackmans contend that the property would not have been occupied during that time. The record also contains several work orders for minor repairs on the property dated May 2, 1997, one including a note that a new tenant was moving in at the beginning of May 1997.

Roy and his family vacated the house in November of 1998, following damage caused by a house fire next door. Ms. Hillery testified that she moved with Roy and her other children, Jamal and Jaquincia, to 3710 Hayward Avenue in Baltimore City.

Lead Paint Tests

The Baltimore City Health Department (" Health Department" ) was one of the first municipal agencies in the world to officially recognize the problem of lead poisoning in children related to flaking and peeling lead paint in 1931.[5] Since that [219 Md.App. 461] time, the Health Department has advocated for and maintained programs to address this public

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health concern, including: lead-based paint usage prohibitions, rental property inspections, and strict risk abatement procedures. Inspections are conducted by licensed inspection contractors on behalf of the Maryland Department of the Environment (" MDE" ) pursuant to the Maryland Lead Risk Reduction in Housing Law. Code of Maryland Regulations (" COMAR" ) 26.16.01. The law requires that any rental dwelling unit constructed prior to 1950 be registered with MDE and inspected prior to new tenant occupancy. Maryland Code (1982, 2013 Repl. Vol.), Environment Article (" Envir." ), § 6-811 et seq.

[219 Md.App. 462] The Dackmans assert that they had the property inspected by the State and that the Baltimore City Health Department has no record of any violations of Baltimore City ordinances relating to lead paint at 2525 Oswego Avenue. The MDE Lead Paint Risk Reduction Inspection Certificate issued for 2525 Oswego Avenue on April 22, 1997, indicates that the property was in compliance with the Full Risk Reduction standards. A further inspection conducted by MDE on September 14, 1999, also found the property to be in full compliance. Although there are several lead paint inspection categories, the inspections completed at 2525 Oswego Avenue were Full Risk Reduction inspections.[6]

Pursuant to the pre-trial scheduling order in the case on appeal, Roy employed ARC Environmental Inc. (" ARC" ) to conduct testing at 2525 Oswego Avenue. ARC prepared a Lead-based Paint Survey Report in September of 2012. However, because the property was vacant and boarded at the time of testing, only the exterior of the premises was tested.[7] [219 Md.App. 463] Those test results indicated the positive presence of lead-based paint on the exterior first floor window sill, wall surface, handrail, porch posts, basement window sash, and basement door threshold of 2525 Oswego Avenue.

Blood Lead Levels

Although it is unknown what Roy's blood lead level (" BLL" ) was prior to living

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at 2525 Oswego Avenue, reports by the Maryland Department of Health and Mental Hygiene indicate that he had elevated levels from late 1997 through 1999. His blood levels tested as follows:

Sample Date

Blood Lead Level

09/17/97

15 ug/dl

11/19/97

10 ug/dl

05/15/98

10 ug/dl

12/07/99

9 ug/dl

Roy's first documented elevated BLL occurred on September 17, 1997.[8] This initial elevated reading prompted a follow-up screening on November 19, 1997. The second screening indicated that Roy's BLL had fallen from 15 ug/dl to 10 ug/dl. Additional screening results show that Roy's BLL remained at 10 ug/dl for the duration of his tenancy at 2525 Oswego Avenue.

[219 Md.App. 464] Proposed Expert Testimony

The proffered expert who was the subject of the dispositive motion was Dr. Eric Sundel (" Dr. Sundel" ), a board-certified pediatrician with more than 20 years of experience. Dr. Sundel was retained by counsel for Roy to provide an opinion on whether Roy had been exposed to toxic lead levels at 2525 Oswego Avenue and whether that exposure resulted in injury.

In 2012, Dr. Sundel reviewed Roy's medical and school records. He also reviewed the SDAT sheet and exterior ARC report for 2525 Oswego Avenue. Based on his review of those documents, he prepared a report dated October 17, 2012, in which he noted that the house at 2525 Oswego Avenue was constructed in 1920 and that " Jakeem's mother recalls chipping, flaking and peeling paint on the windows and window frames when she first moved in." He noted that Roy's school records revealed that Roy was " very oppositional with staff" and " very hyper." He noted that Roy had neuropsychological testing performed in January, 2012, and that " his full-scale IQ was 78, which fell in the borderline impaired range of intellectual function." Dr. Sundel stated in this report:

From multiple studies, it has been established that the major source of lead poisoning for children in the United States is the hand-to-mouth ingestion of dust and chips from deteriorating lead paint on interior surfaces in older homes. Hand-to-mouth activity is most common in the first six years of life. According to the EPA, 97% of homes in the United States build before 1940 are likely to contain lead. In 1991, the CDC advised that blood lead levels of 10 mcg/dl or greater should prompt public health action to minimize the risk of neurological and other damage. In 2012, the CDC advised that this blood lead level be lowered to 5 mcg/dl. To

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date, no safe lower limit of detectable blood lead has been determined.

With respect to Roy's specific history, Dr. Sundel concluded:

In summary, Jakeem Roy had three elevated blood lead levels while residing at 2525 Oswego Avenue from about 8 months of age to just over two years of life. The house at [219 Md.App. 465] 2525 Oswego Avenue was built in 1920, when virtually all homes were painted with lead-based paint. Furthermore, ARC testing performed in 2012 of this house's exterior confirmed the presence of lead-based paint.

Dr. Sundel opined that Roy had been exposed to lead while residing at 2525 Oswego Avenue resulting in " loss of IQ points, as well as other deficits including, impaired attention, problems with memory, and problems with coordination," and that " these harmful effects are expected to be permanent."

Dr. Sundel's deposition testimony, taken November 13, 2012, established that he had extensive practice in pediatric medicine. But his testimony also revealed that although he was familiar with some relevant studies and literature on pediatric lead poisoning, he had never diagnosed or studied an individual with injuries or issues related to lead. Dr. Sundel testified as to his significant experience as a pediatric hospitalist " clinically managing the inpatients, the hospitalized pediatric patients, as well as seeing children in the emergency department." During his career, however, Dr. Sundel's single experience with lead poisoning was his participation in the treatment of a child for lead poisoning during his first or second year of residency at Columbia Presbyterian Babies Hospital in either 1985 or 1986. Dr. Sundel had never authored or contributed to any publications regarding lead exposure.

Regarding the medical effects of exposure to lead-based paint, Dr. Sundel had no background in neurology, neuropsychology, or medical toxicology upon which to base his conclusion that exposure resulted in a loss of IQ points for Roy. Dr. Sundel admitted he did not administer IQ tests and did not know how such tests are scored. He had never conducted or participated in any studies assessing the cognitive effects or consequences of lead poisoning. Finally, in the matter before us, Dr. Sundel did not conduct a medical history of Roy and did not examine Roy. Dr. Sundel explained in his April 11, 2013, affidavit:

[219 Md.App. 466] Lead exposure has no signature of physical characteristics that would assist in the diagnosis of lead poisoning. It is, therefore, not necessary for me, or any other pediatrician, to actually conduct a physical examination of Mr. Roy who is currently 16 ...

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