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Rochkind v. Stevenson

Court of Special Appeals of Maryland

September 1, 2016


          Eyler, Deborah S., Nazarian, Wilner, Alan M. (Retired, Specially Assigned) JJ.


          Eyler, Deborah S., J.

         Kevin F. Arthur, J., did not participate in the Court's decision to report this opinion pursuant to Md. Rule 8-605.1.

         In the 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").[1] 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.

         In 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.

         The 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, 103, 000.

         Mr. 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 graduate"?
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 been excluded?
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 coaching?[2]

         Ms. Stevenson noted a cross-appeal, presenting one question: Did the circuit court err by denying her request for attorneys' fees?

         For the following reasons, we shall affirm the judgments of the circuit court.


         Ms. 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.

         From 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") paint.

         In 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.

         Ms. 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 standing there.

         For the 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 property.

         In 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 property.

         Ms. 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

Ms. Stevenson's


October 29, 1992

14 μg/dL

Fairview Property

January 8, 1993

13 μg/dL

Fairview Property

March 17, 1993

11 μg/dL

Pennsylvania Avenue Property

September 3, 1998

8 μg/dL

424 Oxford Court, Baltimore City or

1809 Raynor Avenue, Baltimore City[3]

         When 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.

         Beginning 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.

         At age 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.

         Ms. 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.[4]

         For 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.

         On 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.

         Christopher 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.

         Robert 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.[5] 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.

         Robert 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.)

         Cynthia 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 lead exposure.

         Mark 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, 000.[6] 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 employment.

         Dr. 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.

         Mr. 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.

         Mr. 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.

         In his 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 neurologist.

         Dr. 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.

         Dr. 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.

         Dr. 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.

         Dr. 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.

         The 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 tenancy?
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 non-economic damages?
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 damages?
10. What amount of damages, if any, do you award [Ms. Stevenson] as damages for economic damages?

         On 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.

         Within 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.[7] 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.[8] 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 would stand.

         On the 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 Farms store.

         The testimony of Ms. Stevenson, Ms. Montgomery, Dr. Kraft, and Dr. Hall-Carrington did not differ from their testimony in the First Trial.

         Mr. 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.

         Dr. 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, 114.

         Ms. 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.

         Ms. 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 rehire policy."

         In his 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 rehabilitation counselor.

         Dr. 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.

         Drs. 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 exposure.

         Mr. 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.

         Dr. 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.

         At the 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.

         Within 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' fees.

         On 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.

         Meanwhile, 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.

         On April 29, 2015, Rochkind noted this timely appeal. S&S and Dear did not note appeals.[9] Ms. Stevenson noted a timely cross-appeal from the denial of her motion for attorneys' fees and ...

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