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Rogers v. Home Equity USA, Inc.

Court of Special Appeals of Maryland

July 26, 2016

TERRENCE ROGERS
v.
HOME EQUITY USA, INC.

          Wright, Graeff, Eyler, James R. (Retired, Specially Assigned), JJ.

          OPINION

          Graeff, J.

         This appeal arises out of a complaint filed by Terrence Rogers, appellant, alleging that he suffered damages from exposure to lead while living at 3738 Towanda Avenue, in Baltimore, Maryland (the "Towanda Property"). In this Court, he challenges the order of the Circuit Court for Baltimore City granting summary judgment in favor of the owner of the Property, Home Equity USA, Inc. ("Home Equity"), appellee, on the ground that Mr. Rogers did not have sufficient evidence to demonstrate that the Towanda Property was the source of his lead exposure and elevated lead levels in 1997.

         On appeal, Mr. Rogers presents one question for our review, which we have rephrased slightly, as follows:

Did the circuit court err in granting Home Equity's Motion for Summary Judgment on the ground that Mr. Rogers failed to establish that the Towanda Property contained lead-based paint, and therefore, he failed to meet his burden to show that the Property was a substantial factor in causing his injuries?

         For the reasons set forth below, we shall affirm the judgment of the circuit court.

         FACTUAL AND PROCEDURAL BACKGROUND

         Mr. Rogers was born on February 28, 1994. From his birth until March 1998, when he moved to New York with his mother, Toni Rogers-Coy, Mr. Rogers lived in numerous locations in Baltimore, often staying at each location for very brief periods of time. [1]

         For the first "couple months" after Mr. Rogers was born, he lived at 2328 Nevada Street in Baltimore. Later in 1994, after temporarily residing at various other locations, Mr. Rogers moved to 6149 Chinquapin Parkway in Baltimore ("6149 Chinquapin"), where he lived until approximately October 1996.[2] For at least the first year of his residence at 6149 Chinquapin, the windows, doors, and radiators were in poor condition, with "broken pieces of paint."

         Following his residence at 6149 Chinquapin, Mr. Rogers moved to the Towanda Property, which was built in 1920. He lived at that residence for approximately six months.

         With respect to the presence of lead in the Towanda Property, Mr. Rogers admitted evidence that, in 1976, 20 years prior to his residency, the Baltimore City Health Department ("BCHD") required a lead abatement of the Towanda Property (the "1976 Abatement") after an inspection and analysis showed that certain areas tested positive for lead in paint-chip sampling, and eight areas of flaking paint were in need of corrective action. In October 1976, the BCHD issued an abatement card, indicating that abatement work had been completed.

         Subsequently, additional improvements were made to the property. In 1979, the Baltimore City Department of Housing and Community Development ("DHCD") issued a building permit for a new gas boiler. In 1983, the DHCD issued a rehab permit, which involved roofing, carpentry, plumbing repairs, and painting. In February 1994, DHCD issued a permit for $19, 000 worth of rehabilitation work, which included re-stuccoing the home and repairing the rear decks.

         Ms. Rogers-Coy moved to the Towanda Property when "[s]omeone told [her] about it, " and she paid rent to another tenant who was "just trying to help [her] out until [she] got where [she] was trying to go." Because she was not a party to the lease, she had no evidence of chipping, flaking, or peeling paint at the inception of the lease. She did not know if the tenant owned the property, and she paid him "what [she] could." In her deposition, Ms. Rogers-Coy described the windows in the Towanda Property as having "really bad" chipping and flaking paint, and she stated that they "were actually more flaky than Chinquapin was." Ms. Rogers-Coy testified in her deposition that she left the Towanda Property between March and April 1997, after residing there for approximately six months. At that point, she and Mr. Rogers moved to 2534 Loyola Northway.

         Mr. Rogers was tested for elevated lead levels on multiple occasions. His medical records show the following results, which the parties do not dispute:

Date

Blood Lead Level[3]

Address

6/29/95

7 μg/dL

6149 Chinquapin

3/25/96

14 μg/dL

6149 Chinquapin

1/8/97

21 μg/dL

3738 Towanda

3/26/97

20-21 μg/dL

3738 Towanda

4/30/97

17-18 μg/dL

2534 Loyola Northway

8/22/97

13 μg/dL

Foster care/ 2534 Loyola Northway

         Following his test on January 8, 1997, Mr. Rogers was referred to the Community Health Nurse for evaluation. On March 17, 1997, a caseworker from the Lead Paint Poisoning Prevention Program met with Ms. Rogers-Coy at the Towanda Property. The caseworker noted that the house was "in very [] dilapidated condition." Mr. Rogers, who was three years old at the time, was observed "mouthing the window sills in the house." The property had flaking paint "inside and outside, " but Mr. Rogers was "listed as playing indoors and not outdoors."

         As a result of Mr. Rogers' increased blood lead level test on January 8, 1997, he was referred to the Kennedy Krieger Institute Lead Poisoning Prevention Clinic. On March 26, 1997, Ms. Rogers-Coy took Mr. Rogers to Kennedy Krieger, and his blood lead level tested 20, 21 µg/dL. Ms. Rogers-Coy reported at that time that Mr. Rogers was at the Towanda Property "[a]ll the time, " and there was interior flaking paint on the ceiling, walls, window frame, windowsills, window wells, and woodwork. She reported exterior flaking paint on the front porch and window frames. There were no replacement windows. During a follow-up appointment on April 30, 1997, while Mr. Rogers was living at 2534 Loyola Northway, his blood lead levels were 17, 18 µg/dL.

         On May 29, 2013, Mr. Rogers filed a complaint in the Circuit Court for Baltimore City against Home Equity and the owners of 6149 Chinquapin, asserting claims of negligence and unfair trade practices relating to his alleged exposure to lead: (1) between 1994 and 1996 at 6149 Chinquapin, and (2) between 1996 and 1997 at the Towanda Property, which was owned by Home Equity. He alleged that, at all times during his tenancies, the properties contained lead-based paint in such a deteriorated condition that it was peeling, chipping, and flaking from the walls, baseboards, windowsills, and other areas of the premises, and that Home Equity and the owners of 6149 Chinquapin knew or had reason to know of the hazardous conditions. He alleged that, as a consequence of his exposure to lead-based paint, Mr. Rogers "suffered permanent brain damage resulting in developmental and behavioral injuries."[4]

         On February 12, 2014, Home Equity answered the complaint, and discovery commenced. Dr. Robert Simon, a Ph.D. with ETI Environmental Laboratory ("ETI"), provided a report including the following conclusions:

It was my conclusion, to a reasonable degree of scientific probability, that [the Towanda Property] was a pre-1950 house confirmed with the presence of lead based paint by BCHD testing in 1976. The presence of lead based paint hazards was confirmed by BCHD in 1976 and on 03/17/97. The need for continuing abatement of lead based paint hazards from 2008 to 2013 was listed in the [housing authority] records.
It was my conclusion, to a reasonable degree of scientific probability, that the 21 µg/dL elevated blood lead levels of the plaintiff on 01/08/97 and 03/26/97 both occurred while he was living at [the Towanda Property]. The documented presence of lead based paint hazards and his [elevated blood levels] while residing there led me to conclude that [the Towanda Property] was a substantial contributing source of his lead exposure and lead poisoning during his early childhood.

         On December 8, 2014, Home Equity moved for summary judgment. In its motion, Home Equity asserted that, throughout his life, Mr. Rogers lived in, and was exposed to, lead in multiple residences, and therefore, he was unable to draw a causal relationship between his residence at the Towanda Property and any alleged damages.[5] Further, Home Equity asserted that Mr. Rogers' expert witnesses, Arc Environmental, Inc. ("Arc") and Dr. Simon, acknowledged that Mr. Rogers was exposed to lead at other residences and could not eliminate the other properties as the cause of his alleged injuries.

         Home Equity attached to the motion for summary judgment a November 1, 2013, report prepared by Arc, which showed that Arc tested the interior and exterior of 6149 Chinquapin and found lead-based paint above the Maryland standard. An October 15, 2014, report issued by Arc with respect to the Towanda Property, however, indicated that Arc tested only the exterior of the Towanda Property, and Home Equity asserted that mere testing of the exterior of a home is not sufficient to establish that the home was a substantial contributing source of alleged lead exposure.

         With respect to Dr. Simon, Mr. Rogers' causation expert, Home Equity stated that, although Dr. Simon asserted in his report, which was attached to the motion for summary judgment, that the Towanda Property was a substantial contributing source of Mr. Rogers' lead exposure, he conceded in his subsequent deposition that multiple properties likely contributed to Mr. Rogers' lead exposure, and based on an elevated blood lead level of 14µg/dL on March 25, 1996, "there existed a substantial contributing factor to [Mr. Rogers'] lead exposure before he ever lived at the Towanda Property." Dr. Simon admitted that he was not qualified to testify as to the specific causation of any injury to Mr. Rogers because he was not a medical doctor. He stated that he did not collect or analyze any samples in forming his opinion that the Towanda Property was a contributing cause of Mr. Rogers' alleged injuries.

         Home Equity asserted that Dr. Simon's conclusion that the Towanda Property was a substantial contributing cause of Mr. Rogers' alleged lead exposure was based solely on the age of the property, [6] the deposition testimony of Ms. Rogers-Coy, documentation of the 1976 Abatement, which he opined was a "limited abatement, " and the lack of information that any flaking paint at the Towanda Property in the 1990s was not lead- based.[7] Home Equity asserted that Dr. Simon's assertions "flatly contradict" Mr. Rogers' burden of proving all facts essential to the cause of action, and Mr. Rogers had "put forth no affirmative evidence to show that lead paint at the Towanda Property - and not at some other property - caused his alleged injuries."

         On December 29, 2014, Mr. Rogers filed a response to Home Equity's motion for summary judgment, asserting that he presented both

direct and circumstantial evidence of the existence of lead-based paint at [the Towanda Property] as well as expert toxicological and medical testimony opining that there was more likely than not lead-based paint exposure at [the Towanda Property] and that [he] was injured as [a] result of that exposure.

         Mr. Rogers stated that he was not required to present direct evidence, "by way of interior testing, " to prove that his blood lead levels were caused by exposure to lead at the Towanda Property because there was evidence of deteriorated paint located in areas that were easily accessible to him at the property during his tenancy, and he experienced his "highest elevated blood lead levels while living" at the property. He stated that he "had access to areas with chipping and flaking paint and was seen mouthing windowsills that tested positive for lead-based paint in 1976, " and he was ...


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