Deborah S., Nazarian, Wilner, Alan M. (Retired, Specially
Deborah S., J.
F. Arthur, J., did not participate in the Court's
decision to report this opinion pursuant to Md. Rule 8-605.1.
Circuit Court for Baltimore City, Starlena Stevenson sued
S&S Partnership ("S&S"), Stanley Rochkind,
and Dear Management & Construction Company
("Dear") for negligence and violations of the
Consumer Protection Act ("CPA"), Md. Code (1975,
2013 Repl. Vol.), section 13-301 et seq. of the
Commercial Law Article ("CL"). As relevant here,
she alleged that she suffered injuries as a result of
ingesting lead-based paint inside 3823 Fairview Avenue
("the Fairview Property"), which was owned by Mr.
Rochkind and S&S and was managed by Dear.
March of 2014, the case was tried to a jury with Judge Steven
Sfekas presiding ("the First Trial"). The jury
returned a verdict in favor of Ms. Stevenson, awarding her
$829, 000 in economic damages and $534, 000 in non-economic
damages. Mr. Rochkind moved for a new trial or, in the
alternative, a remittitur. Judge Sfekas granted the motion in
part, ordering a partial new trial on damages.
partial new trial was held before a jury in October and
November of 2014, with Judge Pamela White presiding
("the Second Trial"). The jury returned a verdict
awarding Ms. Stevenson $753, 000 in economic damages and
$700, 000 in non-economic damages. Mr. Rochkind filed a
motion for new trial, which was denied, and Ms. Stevenson
filed a motion for attorneys' fees, which also was
denied. Applying the cap on non-economic damages,
see Md. Code (1973, 2013 Repl. Vol.), section 11-108
of the Courts and Judicial Proceedings Article
("CJP"), Judge White reduced the judgment to $1,
Rochkind noted this appeal, presenting eleven questions for
review, which we have combined and rephrased as follows:
I. Did Judge Sfekas err by ordering a partial new trial,
instead of a full new trial, and did Judge White improperly
narrow the issues to be re-tried?
II. In the First and the Second Trials, did the court err by
declining to hold a Frye-Reed hearing and by ruling
that Cynthia Hall-Carrington, M.D., could testify that the
Fairview Property was a substantial contributing cause of
Stevenson's elevated blood lead levels, that Ms.
Stevenson's ADHD was caused by that lead exposure, and
that Ms. Stevenson lost a specific number of IQ points as a
result of that lead exposure?
III. In the Second Trial, did the circuit court err by not
holding a Frye-Reed hearing to assess the
methodologies employed by Mark Lieberman, a vocational
counselor, and by permitting him to opine that, but for Ms.
Stevenson's "cognitive defects, " she would
have functioned as an "average high school
IV. In the Second Trial, did the court err by permitting
Michael Conte, Ph.D to offer economic loss opinions premised
solely on Mr. Lieberman's testimony, which should have
V. In the Second Trial, did the court err by precluding Mr.
Rochkind's economics expert from testifying about
research that quantifies the loss of lifetime earnings caused
by incremental increases in blood lead levels?
VI. In the Second Trial, did the court err by precluding
defense counsel from cross-examining Dr. Conte about two
exhibits introduced into evidence by Ms. Stevenson that
showed that she may have been eligible for free job
Stevenson noted a cross-appeal, presenting one question: Did
the circuit court err by denying her request for
following reasons, we shall affirm the judgments of the
Stevenson was born on December 22, 1990. Her mother, Charlena
Montgomery, was 17 years old at the time. Ms. Stevenson was
raised by her mother and her maternal grandmother, Lorena
Cooks. Her father, Vernon Stevenson, was largely absent from
her life. She has a maternal half-brother, who is 22, and a
maternal half-sister, who is 16.
birth until age nine months, Ms. Stevenson lived with Ms.
Montgomery and Ms. Cooks at 2110 Clifton Avenue, in Baltimore
City ("2110 Clifton Property"). According to Ms.
Montgomery, the interior walls of that property were covered
with wood paneling, the windows were vinyl, and there was no
chipping, peeling, or flaking ("deteriorated")
October of 1991, Ms. Stevenson and Ms. Montgomery moved to
the Fairview Property, a West Baltimore rowhouse that was
built in 1930. Ms. Montgomery recalled that the interior of
the property was repainted before they moved in. The painters
simply covered over the existing flaking and chipping paint,
however, and the paint soon deteriorated on the interior
walls. There also was deteriorated paint on the wood
windowsills, the ceilings, the heaters, and the front porch.
Stevenson lived at the Fairview Property for fifteen months.
During that time, she started walking. She liked to look out
the window. Ms. Montgomery saw her touching the windowsills
and then her mouth, and licking the windows. Ms. Stevenson
sometimes rested her food on the windowsill and ate while
first 13 months that she lived at the Fairview Property, Ms.
Stevenson spent from 7 a.m. to 3 or 4 p.m., five days a week,
at the house of a babysitter, while her mother attended high
school. The babysitter's house was located at 2114
Clifton Avenue ("2114 Clifton Property"), two doors
down from the 2110 Clifton Property. The 2114 Clifton
Property had been "gut rehabilitated" in 1985 and
had new windows. There was no deteriorated paint at that
January of 1993, soon after Ms. Stevenson turned two, she and
Ms. Montgomery moved to what Ms. Montgomery called a
"newer apartment, " on Pennsylvania Avenue
("the Pennsylvania Avenue Property"). According to
Ms. Montgomery, there was no deteriorated paint at that
Stevenson's blood was tested for lead four times,
beginning when she was almost two years old and was living at
the Fairview Property, and ending when she was seven years
old. The results were as follows:
Blood Lead Level
October 29, 1992
January 8, 1993
March 17, 1993
Pennsylvania Avenue Property
September 3, 1998
424 Oxford Court, Baltimore City or
1809 Raynor Avenue, Baltimore City
Ms. Stevenson was five years old, Ms. Montgomery took her to
the Kennedy Krieger Institute ("KKI") for an
evaluation because she was struggling to pay attention in
school and was "hyper." Thomas Ley, Ph.D, a KKI
psychologist, determined that Ms. Stevenson's cognitive
functioning was within the "low average to borderline
range, " with a full scale IQ of 76 ( 5). He
diagnosed her with Attention Deficit Hyperactivity Disorder
("ADHD"), for which he prescribed Adderal, and
recommended further testing to rule out a developmental
language disorder. Ms. Stevenson remained on Adderal until
she was 14.
in the third grade, Ms. Stevenson was placed in special
education classes. She was assigned a one-on-one aide who
assisted her in school.
13, Ms. Stevenson attempted suicide by cutting herself and
overdosing on prescribed medication. The following year, in
April of 2005, Ms. Montgomery took Ms. Stevenson to the Mount
Washington Pediatric Hospital ("MWPH") for an
evaluation. Ms. Stevenson was complaining of auditory
hallucinations and depression. In May of 2005, a psychologist
at MWPH tested Ms. Stevenson and determined that she had a
full scale IQ of 65, which is in the "Extremely Low
range of ability." She was diagnosed with major
depressive disorder and generalized anxiety disorder.
Stevenson never was held back in school or suspended. In
2008, she graduated from high school. She then enrolled in a
Division of Occupational Rehabilitation ("DORS")
program for job training and coaching. Through the DORS
program, she found a job as a "transporter" for the
University of Maryland Medical Systems. She was fired from
that position, however.
about 10 months in 2012 and 2013, Ms. Stevenson was employed
part-time at a Royal Farms store, in the kitchen and at the
cash register. She quit because she was bored. In 2014, she
worked as a babysitter for her cousin's children between
the hours of 7 p.m. and 7 a.m., earning approximately $200
every other week. At the times of the trials in this matter,
Ms. Stevenson was unemployed.
December 19, 2011, Ms. Stevenson filed suit against Mr.
Rochkind and the other defendants for negligence and unfair
trade practices. The First Trial began on March 6, 2014. Ms.
Stevenson testified and called three fact witnesses and nine
expert witnesses in her case. Ms. Stevenson's and Ms.
Montgomery's testimony was as we have recited the facts.
White, a certified lead risk assessor for Arc Environmental,
Inc. ("Arc"), testified that, on July 13, 2012, Arc
performed x-ray fluorescence ("XRF") testing on the
interior and exterior surfaces of the Fairview Property. The
XRF testing revealed 22 interior painted surfaces and nine
exterior painted surfaces that were positive for the presence
of lead-based paint. Inside the property, door jambs, window
casings, baseboards, and door casings all tested positive.
Mr. White opined that, based upon the age of the house, and
the fact that lead-based paint has been prohibited for use in
residential properties in Baltimore City since 1978, it was
more likely than not that the lead-based paint had been
present at the Fairview Property in 1991, when Ms. Stevenson
and Ms. Montgomery moved in.
Simon, Ph.D, an industrial hygienist, toxicologist, and lead
risk assessor, testified, based on his review of the records
in this case, that neither the 2110 Clifton Property, the
2114 Clifton Property, the Pennsylvania Avenue Property, nor
other environmental lead were the source of Ms.
Stevenson's lead exposure. He explained that because the
2110 Clifton Property had wood paneling throughout the
interior, with the exception of a bathroom, and had vinyl
windows, any lead-based paint was "encased" and was
not a source of lead exposure. Similarly, because the 2114
Clifton Property had been gut-rehabilitated in 1985, had
cement steps, new carpet, and no deteriorated paint, it was
not a source of lead exposure. He had reviewed a 2010 Arc
report that showed that XRF testing inside the vestibule area
of the Pennsylvania Avenue Property was negative for
lead-based paint; and he knew that Ms. Montgomery had
testified that the paint at the Pennsylvania Avenue Property
was not deteriorated. According to Dr. Simon, this evidence
ruled out the Pennsylvania Avenue Property as a source of Ms.
Stevenson's lead exposure. In light of the age of the
Fairview Property, the Arc testing of that property, and the
observed presence of deteriorating paint at that property in
the 1991-1993 timeframe, Dr. Simon opined that there were
lead-based paint hazards present at the Fairview Property
when Ms. Stevenson lived there.
Kraft, Psy.D, a psychologist, performed a neuropsychological
evaluation of Ms. Stevenson on August 4, 2012. Her full scale
IQ was 72, which is in the "borderline range of general
intelligence, " and her verbal IQ was 66, which is in
the "extremely low range." Her verbal comprehension
lagged far behind her perceptual reasoning skills, an
indication of a language-based learning disability. Her
memory and executive functioning skills were normal, however,
and her motor functioning was above average. Dr. Kraft opined
that Ms. Stevenson suffered from numerous cognitive deficits,
including in general intelligence, attention, language
function, visual motor functioning, and academic achievement.
He further opined that these deficits are permanent and are
likely to negatively affect her ability to find employment,
manage her personal finances, and maintain social
connections. (He offered no opinion about the cause of any of
Ms. Stevenson's cognitive deficits.)
Hall-Carrington, M.D., whose testimony we shall discuss in
greater detail below, opined that the Fairview Property was a
substantial contributing cause of Ms. Stevenson's
elevated blood lead levels. Based upon Ms. Montgomery's
answers to interrogatories and the Arc testing at the
Pennsylvania Avenue Property, she ruled out the 2114 Clifton
Property, the 2110 Clifton Property, and the Pennsylvania
Avenue Property as sources of Ms. Stevenson's lead
exposure. She testified that Ms. Stevenson was injured as a
result of her elevated blood lead levels, opining that she
suffered "deficits and loss of IQ, as well as ADHD and
academic decrements also." She estimated that Ms.
Stevenson had lost between 5 and 6 IQ points as a result of
Lieberman, a certified rehabilitation counselor, testified
about Ms. Stevenson's vocational marketability. His
ultimate opinion was that, although Ms. Stevenson graduated
from high school, she will not function in the job market as
an "average high school graduate." Rather, she only
will be able to obtain "basic jobs, " for example
as a cashier or a lobby attendant, earning the minimum wage
(then $7.25/hour), for an annual salary of around $15,
Jobs of this sort are likely to be part-time, 20-30 hours per
week. In Mr. Lieberman's view, Ms. Stevenson will require
job coaching on a weekly basis in order to maintain
Conte, an economist, relied upon Mr. Lieberman's expert
vocational opinion to render an opinion about Ms.
Stevenson's potential future earnings and her loss of
those earnings as a result of her cognitive impairments. He
opined that, as an average high school graduate, Ms.
Stevenson could have earned $1, 636, 458 in wages and fringe
benefits over her lifetime. Her lifetime wages and fringe
benefits as a minimum wage employee would be $806, 753. The
difference between those two figures-$829, 705- was Ms.
Stevenson's lost future earnings.
Rochkind testified that in 1984 he incorporated Dear and was
its sole director. The following year, he purchased S&S
and became its general partner. At that time, the Fairview
Property was an asset of the partnership. In 1991, Charles
Runkles was hired as the property manager for Dear. Dear was
responsible for keeping the rental properties owned by
S&S in compliance with the Baltimore City Housing Code
lead-based paint prohibitions.
Runkles testified that Dear has no records about the Fairview
Property from when Ms. Stevenson lived there. He was unable
to recall whether Dear painted the property before Ms.
Montgomery and Ms. Stevenson moved in and whether Dear
received any complaints about the condition of the property
while they lived there.
case, Mr. Rochkind called three expert witnesses: Neil
Blumberg, M.D., a forensic psychiatrist; Cynthia Munro, Ph.D,
a neuro-psychologist; and Joseph Sheller, M.D., a pediatric
Blumberg reviewed Ms. Stevenson's medical records, her
deposition, and Ms. Cooks's deposition. He met with Ms.
Stevenson for two hours in May of 2013. He diagnosed her with
"borderline intellectual functioning" and
"major depressive [dis]order, single episode severe with
psychotic features that is currently in full remission."
He opined that Ms. Stevenson's cognitive impairment
resulted from her home environment, coupled with genetic
predisposition, and that if her IQ were 4 to 6 points higher
she still would fall within the borderline range of
intellectual functioning. He testified that Ms.
Stevenson's "relatively mild" exposure to lead
was not a substantial contributing factor to her cognitive
impairment or to her depressive disorder.
Munro conducted a full-day neuropsychological evaluation of
Ms. Stevenson, on April 8, 2013, and interviewed Ms.
Montgomery that day. She measured Ms. Stevenson's full
scale IQ to be 74, which is in the borderline range (between
70 and 79), and her verbal IQ to be 70. She testified that
individuals within the borderline range of intelligence have
not necessarily suffered any brain injury. The result of
other tests she performed were not consistent with Ms.
Stevenson's having suffered a brain injury.
Munro diagnosed Ms. Stevenson with borderline intellectual
functioning and major depressive disorder, in partial
remission. She opined that genetic factors played "a
large role" in Ms. Stevenson's cognitive impairment
and that her evaluation of Ms. Stevenson revealed no evidence
that she had brain damage caused by a toxic exposure. Dr.
Munro did not diagnose Ms. Stevenson with ADHD or any
attention deficit disorder. She explained that, because Ms.
Stevenson had depression, and because depression affects
attention, she could not make an attention deficit diagnosis.
Moreover, she was not convinced that Ms. Stevenson ever
should have been diagnosed with ADHD, given that the initial
diagnosis at KKI was based largely on a questionnaire
completed by Ms. Montgomery and, at the time of her
diagnosis, Ms. Stevenson was not getting adequate sleep,
which could have caused her attention difficulties.
Sheller met with Ms. Stevenson and Ms. Montgomery a few
months before the First Trial and reviewed Ms.
Stevenson's medical records. He diagnosed Ms. Stevenson
with borderline intellectual functioning. Based upon his
review of scientific studies about the neurological impact of
blood lead levels similar to Ms. Stevenson's, he opined
that she may have lost one to two IQ points as a result of
her lead exposure. He testified that a difference of between
one and six IQ points will not have any apparent effect on
cognitive functioning. He noted that Ms. Stevenson's
half-sister was evaluated at KKI when she was 5 years old and
that KKI could not rule out ADHD. He opined that there is
"a very powerful genetic link" for ADHD and, given
that Ms. Stevenson's mother, half-brother, father, and
possibly her half-sister also have attention difficulties, it
is not surprising that Ms. Stevenson has deficits in that
area. He further opined that the majority of children outgrow
ADHD symptoms in adulthood.
case was sent to the jury on a special verdict that listed
the following questions:
1. Do you find that [the Fairview Property] contained
chipping, flaking, or peeling paint at the beginning of the
2. Do you find that [Ms. Stevenson] has proven by a
preponderance of the evidence that there was flaking,
chipping and/or peeling lead-based paint at [the Fairview
Property] during the relevant time period?
3. Do you find that Defendant, S&S Partnership acted
negligently in its ownership and/or management of [the
Fairview Property] during the relevant time period?
4. Do you find that Defendant, Dear . . . acted negligently
in its management of [the Fairview Property] during the
relevant time period?
5. Do you find that Defendant, . . . [Mr.] Rochkind, acted
negligently in his ownership/operation of [the Fairview
Property] during the relevant time period?
6. Do you find that [Ms. Stevenson] has proven by a
preponderance of the evidence that she suffered injury as a
result of lead exposure at [the Fairview Property]?
7. Do you find that [Ms. Stevenson] has proven by a
preponderance of the evidence that she should be awarded
8. What amount of damages, if any, do you award [Ms.
Stevenson] as damages for her non-economic losses?
9. Do you find that [Ms. Stevenson] has proven by a
preponderance of the evidence that she has suffered economic
10. What amount of damages, if any, do you award [Ms.
Stevenson] as damages for economic damages?
March 18, 2014, the jurors returned their verdict. They
answered questions 1 through 7 and question 9 in the
affirmative. On question 8, they awarded Ms. Stevenson $539,
000 in non-economic damages and, on question 10, they awarded
her $829, 000 in economic damages.
ten days, Mr. Rochkind, S&S, and Dear moved to alter or
amend or for a new trial or remittitur. As relevant here,
they argued that the court erred by permitting Mr. Lieberman
to express an opinion at trial that was not disclosed in
discovery, and by permitting Dr. Conte to rely upon that new
opinion to himself offer a new opinion. On April 28, 2014,
the court heard argument on the defendants'
motions. It ruled that Dr. Conte's trial
testimony was a new opinion never disclosed in discovery and
that its admission had "unfair[ly] disadvantage[d]"
the defense. On that basis, it granted a new trial on
economic damages. Because the jurors' assessment of
non-economic damages may have been "skewed" due to
their award of economic damages, the court also granted the
defendants a new trial on non-economic damages. The court
ruled that the jurors' findings with respect to liability
first day of the Second Trial, Judge White denied the
defendants' renewed motions in limine pertaining
to Mr. Lieberman and Drs. Hall-Carrington and Conte. In her
case, Ms. Stevenson testified and called five witnesses from
the First Trial: Dr. Kraft, Mr. Lieberman, Dr.
Hall-Carrington, Dr. Conte, and Ms. Montgomery. She also
called two new lay witnesses: Alice Crowder, a DORS employee;
and Jamie Weaver, Ms. Stevenson's supervisor at the Royal
testimony of Ms. Stevenson, Ms. Montgomery, Dr. Kraft, and
Dr. Hall-Carrington did not differ from their testimony in
the First Trial.
Lieberman, who had met with Ms. Stevenson in the interim
between the trials, opined, as he had at the first trial,
that her cognitive deficits made her employable only in
"very low skill positions requiring limited independent
decision making, limited ability to read and remember
information and require a high level of supervision."
These jobs would be part-time, involve "unskilled manual
labor, " and pay "at or near minimum wage."
Mr. Lieberman reiterated his opinion that Ms. Stevenson would
require the services of a job coach for "a couple hours
a week" in order to maintain employment. He testified
that a job coach typically charges $38 per hour.
Conte offered a new economic loss opinion at the Second
Trial. In making his calculations, he assumed that Ms.
Stevenson had a work-life expectancy of 32.5 years, that she
would be employable in minimum-wage jobs working
approximately 25 to 30 hours per week, and that she would
require a job coach to maintain employment. He compared her
lifetime earnings in that scenario to the lifetime earnings
of an "African-American high school graduate."
Based upon those assumptions, he opined that, "absent
the deficits" described by Mr. Lieberman, Ms. Stevenson
could have earned $1, 595, 114 over her lifetime. In
contrast, her potential lifetime earnings with her deficits
would be a "net" "negative earnings" once
the cost of job coaching was factored in. Therefore, the
value of her lost wages and benefits was the full $1, 595,
Crowder is a technical specialist with DORS, who assists
youths with disabilities to transition into adulthood. She
testified that she worked with Ms. Stevenson for about three
years, helping her to obtain training and employment.
Ordinarily, once a DORS client finds a job and maintains
employment for 90 days, the client's case is closed. A
DORS client who has "difficulty on the job" may
contact DORS and request post-employment services, which
might include job coaching or other services to help the
client maintain employment. Ms. Crowder testified that Ms.
Stevenson had been advised that she was eligible for
supplemental security income ("SSI") benefits and
that that made her eligible for DORS services cost-free.
Weaver testified that she worked at the Royal Farms store in
Morrell Park for eight years and was the manager for three
years, including when Ms. Stevenson worked there in 2012. She
characterized Ms. Stevenson's job performance as
"okay, " noting that she "had to instruct her
on what to do on a daily basis." Ms. Stevenson's
attendance was "[f]air." When Ms. Stevenson worked
at the cash register, she "seemed confused, like she was
a new employee every day." She had a "[g]reat
attitude" but did not retain skills. She could not be
rehired at Royal Farms because the company has a "no
case, Mr. Rochkind again called Drs. Blumberg, Munro, and
Scheller and also called two new witnesses: Michael
Brookshire, Ph.D, an economist, and Robert Taylor, a
Blumberg's testimony was for the most part the same as
his testimony in the First Trial. He modified his diagnosis
of Ms. Stevenson slightly, based upon records he had reviewed
in the interim between the trials. He explained that he
originally had diagnosed Ms. Stevenson with a single episode
of major depression that was now in full remission, but he
now believed her major depressive disorder to be recurrent.
Munro and Scheller testified consistent with their testimony
in the First Trial. Dr. Munro elaborated on her view that Ms.
Stevenson's impaired cognitive functioning was caused by
her genetic predisposition, coupled with her chaotic home
environment and depressive disorder, and not by lead
Taylor was accepted by the court as an expert in vocational
rehabilitation counseling. He testified, based upon Ms.
Stevenson's vocational history and Dr. Munro's
report, that Ms. Stevenson is capable of working full-time in
a number of jobs, including as a food service worker,
housekeeper, childcare worker, and in certain clerical jobs.
In his view, she could earn more than the federal minimum
wage in these jobs, estimating an income of between $18, 000
and $21, 000 a year. He opined that Ms. Stevenson's
injuries linked to her exposure to lead had not resulted in
any loss in earning capacity. Rather, her "significant
barriers" to employment arose from other
"confounding variables" in her life.
Brookshire testified that Ms. Stevenson had not
"sustained any loss of earning capacity or work-life
expectancy due to claimed exposure to lead" and there
were "significant other issues that would have affected
her academic and vocational outcomes." He opined that
there was "no difference" between Ms.
Stevenson's "pre- and . . . post-injury earning
capacity due to lead exposure" and the "total cost
of additional rehabilitation services" required to
assist her in finding full-time employment was in the range
of $3, 453 to $6, 036.
conclusion of all the evidence, the jurors were asked to find
the amount, if any, of economic and non-economic damages Ms.
Stevenson sustained as a result of her exposure to lead-based
paint at the Fairview Property. On November 3, 2014, the jury
returned a verdict awarding Ms. Stevenson $753, 000 in
economic damages and $700, 000 in non-economic damages.
ten days, Mr. Rochkind, S&S, and Dear moved for new trial
or, in the alternative, for a remittitur, and, on December
10, 2014, Ms. Stevenson filed a motion for attorneys'
March 18, 2015, the court entered an order denying the motion
for attorneys' fees. Within ten days, Ms. Stevenson moved
for reconsideration of that order. On June 8, 2015, the court
denied that motion.
on April 2, 2015, the court denied the motion for new trial.
The court reduced the judgment in accordance with the cap on
non-economic damages and entered an amended judgment in the
amount of $1, 103, 000.
April 29, 2015, Rochkind noted this timely appeal. S&S
and Dear did not note appeals. Ms. Stevenson noted a timely
cross-appeal from the denial of her motion for attorneys'
fees and ...