Argued: February 5, 2016
Circuit Court for Baltimore City Case No. 24-C-11-006715
Barbera, C.J. Battaglia Greene Adkins McDonald Watts Wilner, Alan M. (Retired, Specially Assigned), JJ.
In this case, we are asked yet again to address causation in a lead-based paint case where a plaintiff's case rests on circumstantial-as opposed to direct-evidence, and, in this context, we are called upon to attempt to define what constitutes a reasonable probable source of lead exposure. Specifically, here, we decide whether, in the absence of direct evidence that a property contained lead-based paint, there was sufficient admissible circumstantial evidence produced by a plaintiff, who alleged that she was injured as a child by lead-based paint at a property that the defendant owned and managed, to survive the defendant's motion for summary judgment, such that the trial court erred in granting summary judgment in the defendant's favor as to the plaintiff's negligence claim.
We hold that the trial court erred in granting summary judgment in the defendant's favor as to the plaintiff's negligence claim where, even without direct evidence that the subject property contained lead-based paint and without expert testimony as to the source of the plaintiff's lead exposure, there was sufficient admissible circumstantial evidence from which a trier of fact could conclude that the subject property contained lead-based paint; and, the evidence was sufficient for a jury to conclude that the subject property was a reasonable probable source of the plaintiff's lead exposure, and that there were no other reasonably probable sources of lead exposure.
The Residential History
Myishia Smith ("Smith"), Respondent, alleges that she suffered lead-based paint poisoning while residing at 1622 East Oliver Street ("the Oliver Street Property") from approximately 1991 to 1993. At various times during the first years of her life, Smith also resided at 418 South Monroe Street ("the Monroe Street Property") and 1508 North Collington Avenue ("the Collington Avenue Property"), and visited 2017 Ashland Avenue ("the Ashland Avenue Property").
On October 21, 1991, Smith was born. According to Smith's mother, Doris Plater ("Plater"), Smith lived at the Monroe Street Property from her birth until Spring 1992. At her deposition, Plater testified that the Monroe Street Property was in "[g]ood condition."
No later than Spring 1992, Plater and Smith moved from the Monroe Street Property to the Oliver Street Property. At that time, Rowhouses, Inc. ("Rowhouses"), Petitioner, owned and managed the Oliver Street Property. According to Plater, approximately "three to four months" after she and Smith moved into the Oliver Street Property, she noticed that the paint on the "[w]indowsills, the banister[, and the] baseboards" "started chipping and peeling[.]" Plater also noticed dust on the floor. During the time that Plater and Smith lived at the Oliver Street Property, Smith began to walk at age ten months, and Plater testified that Smith spent time in areas in the house near deteriorated paint and that she observed Smith put her hands in her mouth while living in the Oliver Street Property. Indeed, according to Plater, Smith put her hands in mouth "three or four times out of a day." Smith spent most of her time at the Oliver Street Property, and did not attend daycare and was not babysat at any other address while residing at the Oliver Street Property. In Spring 1993, Plater and Smith moved from the Oliver Street Property to the Collington Avenue Property, where they resided until Spring 1994.
While Smith resided at the Monroe Street Property, the Oliver Street Property, and the Collington Avenue Property, Plater took Smith to visit her grandmother at the Ashland Avenue Property "[e]very week" for approximately "[t]wo, three hours." Plater never observed any chipping, flaking, or peeling paint at the Ashland Avenue Property.
Smith's blood-lead levels were tested on three occasions between 1992 and 1993- September 25, 1992, May 28, 1993, and September 21, 1993. On September 25, 1992, while Smith was residing at the Oliver Street Property, Smith's blood-lead level was reported as 11 micrograms per deciliter (µg/dL); on May 28, 1993, Smith's blood-lead level was reported as 7 µg/dL; and on September 21, 1993, while Smith was residing at the Collington Avenue Property, Smith's blood-lead level was reported as 15 µg/dL.
On October 24, 2011, Smith filed in the Circuit Court for Baltimore City ("the circuit court") a complaint and demand for jury trial against Rowhouses and the Collington Avenue Property's owner for negligence and violations of the Maryland Consumer Protection Act arising out of Smith's alleged exposure to lead-based paint at the Oliver Street Property and the Collington Avenue Property. By the time that Smith filed the complaint, the Oliver Street Property had been demolished and thus could not be tested for lead-based paint. Moreover, before being razed, the Oliver Street Property had not been tested for lead-based paint, and there were no violation notices issued for lead-based paint hazards. In other words, there was no direct evidence that the Oliver Street Property contained lead-based paint.
The parties engaged in discovery and identified expert witnesses. Smith designated Robert K. Simon, Ph.D. ("Dr. Simon"), as an expert in "toxicology, lead risk assessment[, ] and industrial hygiene." On October 11, 2013, Dr. Simon prepared a report evaluating whether certain properties "were substantial contributing sources of lead exposure during [Smith's] early childhood." As to the Oliver Street Property, Dr. Simon stated that "deed records showed that the [Oliver Street Property] was built most likely in the early 1900s or before[, ]" and that "[t]he age of th[e] house would presume the presence of lead[-]based paint[.]" Dr. Simon concluded that "it was more likely than not that [the Oliver Street Property] contained lead[-]based paint hazards during [Smith]'s residency." Dr. Simon noted that the information that had been provided to him indicated the presence of "deteriorated paint" at the Oliver Street Property while Smith resided there. In the report, Dr. Simon opined:
It is my opinion to a reasonable degree of scientific probability that [S]mith was initially exposed to lead[-]based paint hazards during her residency at [the Oliver Street Property] from some months to about 2 years. She then continued to be exposed to lead[-]based paint hazards when she lived at [the Collington Avenue Property] from age 2 to 3 years. . . . It is my opinion to a reasonable degree of scientific probability that [the Oliver Street Property] and [the Collington Avenue Property] were both substantial, contributing sources for her lead exposure, elevated blood[-]lead levels  and lead poisoning during  Smith's early childhood.
(Paragraph break omitted).
On April 30, 2014, in response to supplemental documents that had been provided to him, Dr. Simon sent a letter to Smith's counsel. In the letter, Dr. Simon noted that Plater had provided the following information at her deposition:
[Plater] reported on deteriorated paint at [the Oliver Street Property] that was similar to the information [that was previously] provided[.]
[Plater] did not report deteriorated paint at other  childhood residences[ of Smith's].
[Plater] reported that [Smith] visited . . . [the Ashland Avenue Property] for several hours each week during her early childhood. [Plater] reported that this location did not have deteriorated paint.
[Plater] reported that [Smith] did not visit parks, playgrounds or attend daycare during her early childhood. [Plater] reported that she  provided child care for [Smith] at their residences.
According to Dr. Simon, review of this supplemental information did not necessitate any change to his October 11, 2013 report, in which he opined that the Oliver Street Property was a substantial contributing source of Smith's lead exposure.
On May 5, 2014, Dr. Simon was deposed. At his deposition, the following exchange occurred as to potential sources of lead exposure during Smith's early childhood:
[ROWHOUSES'S COUNSEL:] As we sit here today[, ] do you have an opinion as to whether or not [the Monroe Street Property] was a source of lead ingested by [Smith]?
[DR. SIMON:] Yes.
[ROWHOUSES'S COUNSEL:] And what is your opinion, Doctor?
[DR. SIMON:] Most likely not for two reasons. First of all, I have no blood[-]lead data indicating an exposure at that location. Number two, [Smith] really lived there approximately six months, so [Smith] is out of that location before [she]'s really crawling, walking, moving around to get into any kind of lead risk. By eleven months we're at [the Oliver Street Property]. So again I don't think there's any data that would indicate to me that there was a problem of potential exposure at [the Monroe Street Property]. I can't say absolutely there couldn't have been, but I don't see any information that would indicate that it was likely to have occurred.
[ROWHOUSES'S COUNSEL:] And just for my clarification purposes, you're basing that opinion on because you did not see any blood[-]lead testing data that would indicate [the Monroe Street Property] as a record address as part of your basis. Is that correct?
[DR. SIMON:] That's part of it. And she was born October 21st, 1991. By the spring of 1992 they had moved to [the Oliver Street Property]. She's five or six months old. Normally until the child is crawling around and can get into stuff on their own, they're sitting in various restrainer type of chairs or cribs or whatever, and normally they're not going to be at high risk of being exposed at that young age. So for both of those reasons I would say more likely than not she wasn't exposed at [the Monroe Street Property].
[ROWHOUSES'S COUNSEL:] Doctor, have you been furnished with any records at all for [the Ashland Avenue Property]?
[DR. SIMON:] [The Ashland Avenue Property]? No. Originally I knew nothing about that location until I read [Plater]'s deposition that that was apparently the residence of the maternal grandmother for a number of years and that [Smith] had visited there during her early childhood, but I know nothing about [the Ashland Avenue Property] other than that [Plater] made the comment that there was no deteriorated paint. Other than that, I have no information about that address.
[ROWHOUSES'S COUNSEL:] Do you have an opinion as to whether or not [the Ashland Avenue Property] was a source of lead ingested by [Smith]?
[DR. SIMON:] No, because I have no data on it. I couldn't rule it in, and I couldn't rule it out at this point.
Dr. Simon was also questioned about the significance of the age of a property, and the following colloquy occurred:
[ROWHOUSES'S COUNSEL:] Doctor, you mentioned that you presume that a property contains lead-based paint or contains lead based on its age, particularly if it is built before 1950, correct?
[DR. SIMON:] Correct.
[ROWHOUSES'S COUNSEL:] If we take away the age of the property in this case, are you able to make a determination or an opinion that there was lead in the property without having any information about the age if we didn't know that?
[DR. SIMON:] I don't know the answer to that question because if you're taking the age away, then what do I know about the property?
[ROWHOUSES'S COUNSEL:] Assuming you have all the other information that you have here today, if you didn't know the age of the property, would you then be able to opine that there was lead or lead-based paint hazards inside [the Oliver Street Property]?
[DR. SIMON:] No. If the house was built in 2014, then I wouldn't assume it had lead-based paint hazards. So again the age of the property has to be one where we're going to have used lead-based paint. In Baltimore we've already said no interior paint after 1966, no exterior paint after the federal banning in 1978. So yeah, if the house was built after 1978, then more likely than not it didn't contain lead-based paint.
On cross-examination by Smith's counsel, when asked whether "age of the property was a consideration but not the only consideration that led [him] to [his] opinions with regard to" the Oliver Street Property, Dr. Simon responded: "Correct. It's one of the considerations or parameters that you review in coming to this type of assessment as to whether there w[ere] lead-based paint hazards."
Dr. Simon opined that the Oliver Street Property was a "substantial contributing source" of Smith's lead exposure. Dr. Simon testified that he based this opinion on the age of the Oliver Street Property, Plater's "testimony about deteriorated paint[, ]" and Smith's elevated blood-lead levels, age, and "hand to mouth activity" while she was residing at the Oliver Street Property.
Smith designated Vera B. Brown, MD ("Dr. Brown"), a pediatrician, as a medical expert. On November 18, 2013, Dr. Brown prepared a report in which she opined:
Smith was exposed to flaking and peeling paint at [the Oliver Street Property] and [the Collington Avenue Property]. This exposure took place during the first 2 years of her life when her developing brain would have been most susceptible to the effects of lead. This caused loss of IQ and cognitive deficits as well as neuropsychological abnormalities all attributable to lead exposure and resulting brain damage. Records show consistently elevated (by today's standards) of [blood-]lead [levels] until at least 6 years old.  Smith was therefore injured as a result of lead exposure. She had numerous absences[, ] which are common in lead[-]exposed children. She had difficulty learning and eventually quit school. These injuries are permanent and will likely lead to loss of income and inability to properly care for her child. The exposure to lead at a critical time in her life is an extremely important cause of these injuries.
On May 29, 2014, Rowhouses filed a motion for summary judgment and memorandum in support, arguing that Dr. Simon lacked an adequate factual basis for his opinion that the Oliver Street Property was a source of Smith's lead exposure, that Dr. Simon should be precluded from offering his opinion, and that Smith had failed to produce other evidence showing that the Oliver Street Property contained lead-based paint. Rowhouses asserted that it was entitled to judgment as a matter of law because, absent "credible evidence that [Smith] ingested any lead from" the Oliver Street Property, Smith could ...