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Levitas v. Christian

Court of Appeals of Maryland

July 11, 2017

STEWART LEVITAS
v.
MICHAEL DAVON CHRISTIAN

          Argued: February 6, 2017

          Barbera, C.J. Greene Adkins McDonald Watts Getty Battaglia, Lynne A. (Senior Judge, Specially Assigned), JJ.

          OPINION

          ADKINS, J.

         Issues about an expert's qualifications and foundation for his opinion are no strangers to appellate courts, and the complex issues of causation in lead paint cases generally require expert testimony, which is often challenged. Today we review a case in which the trial court excluded the plaintiff's expert witness-a ruling fatal to his claim. We consider whether it erred in doing so.

         FACTS AND LEGAL PROCEEDINGS

         Respondent Michael Christian was born on February 12, 1990. From his birth until October 1992, he resided with his mother, Nickolas Skinner ("Nickolas"), and grandmother, Betty Skinner ("Betty"), [1] at 3605 Spaulding Avenue ("Spaulding") in Baltimore City.[2] Christian and his mother then moved to 4946 Denmore Avenue ("Denmore") in October 1992, where they resided for almost a year. In September 1993, Christian and his mother moved back to Spaulding and lived there for another four years, until September 1997.

         Christian's blood was tested eight times between November 1990 and October 1993. In April 1991, he exhibited an elevated free erythrocyte protoporphyrin ("FEP") level, which does not measure a child's blood lead level but is an initial screening test for lead exposure. From February 1992 to October 1993, Christian displayed elevated blood lead levels five times as follows:

Date Taken

Blood Lead Level [3]

Christian's Address [4]

February 20, 1992

9 μg/dL

Spaulding

February 18, 1993

10 μg/dL

Denmore

July 16, 1993

17 μg/dL

Denmore

September 2, 1993

12 μg/dL

Denmore

October 6, 1993

14 μg/dL

Spaulding

         In 2011, Christian filed suit in the Circuit Court for Baltimore City against Petitioner Stewart Levitas, the owner of Spaulding when he lived there, alleging negligence and violations of the Maryland Consumer Protection Act.[5] In February 2012, Arc Environmental, Inc. ("Arc") tested the interior and exterior of Spaulding for lead using x- ray fluorescence testing. Arc summarized its findings in a report for Christian ("Arc Report"). Thirty-one interior surfaces and five exterior surfaces tested positive for lead. The lead-positive interior surfaces included door jambs, baseboards, and window sills, casings, and sashes. Exterior window sashes, casings, and door jambs also tested positive for lead.

         During discovery, Christian designated Howard Klein, M.D., a pediatrician with experience treating lead-poisoned children, as an expert witness who would opine on the source of Christian's lead exposure-source causation-and his lead-caused injuries- medical causation. As to the source of Christian's lead exposure, Dr. Klein testified in his deposition that he was "of the opinion that [Christian] was exposed to lead-based paint" at Spaulding. The basis for his opinion was: (1) the age of Spaulding-built in 1944; (2) the Arc Report; (3) a Maryland Department of the Environment ("MDE") certification reflecting that the property was not lead free; (4) a Department of Housing and Community Development ("DHCD") violation that detailed the poor condition of the property; (5) Christian's elevated FEP and blood lead levels while he was living at Spaulding and Denmore; (6) Betty's and Nickolas's deposition testimony that Spaulding was in disrepair while Christian lived there; (7) Nickolas's testimony that she saw Christian touch areas where paint was peeling around the windowsills at Spaulding; and (8) Nickolas's testimony that Christian stayed at Spaulding under the supervision of family members while she was at work during the day, both while they were living at Spaulding and while they were living at Denmore. Dr. Klein further testified that these facts establish that "there was lead-based paint [at Spaulding]." Finally, he acknowledged that Denmore was also a source of Christian's lead exposure.

         In his expert report on medical causation, Dr. Klein concluded "within [a] reasonable degree of medical certainty" that lead caused Christian's mental retardation, impaired cognition, and learning disabilities. He further opined in his deposition that as a result of Christian's exposure to lead, he lost 7.4 to 9.4 IQ points. Dr. Klein based his opinion on: (1) a neuropsychological evaluation of Christian by Barry Hurwitz, Ph.D.; (2) Christian's medical records; (3) Christian's Answers to Interrogatories; (4) information on Spaulding and Denmore; (5) Christian's Maryland Department of Health and Mental Hygiene ("DHMH") lead testing records; (6) MDE records; (7) DHCD records; and (8) Christian's school records. To calculate Christian's IQ loss, he relied on the Lanphear study, [6] which found that children with certain average lifetime blood lead levels lost a specific number of IQ points. Dr. Klein averaged Christian's blood lead levels and then determined his loss in IQ points based on the study's results.

         Levitas filed a motion to exclude Dr. Klein from testifying about source causation on the grounds that he lacked both the necessary qualifications and a sufficient factual basis for his opinion.[7] Levitas also moved for summary judgment in his favor if Dr. Klein were excluded.

         On July 10, 2013, the Circuit Court held a hearing on Levitas's motion to exclude Dr. Klein. At the hearing, Levitas argued that Dr. Klein should be precluded from testifying about both source causation and medical causation. Ruling from the bench, the hearing judge excluded Dr. Klein's testimony on both of these topics. The court reasoned that Dr. Klein should be prevented from testifying about the source of Christian's lead exposure because "he did not, or had very little . . . information concerning other sources [of lead exposure]."[8] It also precluded Dr. Klein from testifying about the cause and extent of Christian's injuries because he was not qualified and his opinion lacked a sufficient factual basis under Maryland Rule 5-702. As to his qualifications, the court reasoned that Dr. Klein would not be able to explain the IQ test results to the jury because he does not use the test in his own practice. As to his factual basis, the court explained that Dr. Klein relied on information from Dr. Hurwitz and Christian's attorney in developing his opinion, rather than examining Christian himself, which was not sufficient. The Circuit Court declined to grant Levitas's motion for summary judgment, however, because the Arc Report was "direct evidence" of lead at Spaulding.

         On August 20, 2013, the Circuit Court entered a written order precluding Dr. Klein from offering expert opinions on "source, IQ loss, alleged injuries due to lead, or other causation issues."[9] For the purposes of appealing the Circuit Court's decision to exclude Dr. Klein, the parties agreed that without Dr. Klein's testimony, Christian could not make out a prima facie case of negligence because he could not establish medical causation. Therefore, the parties requested that the Circuit Court enter summary judgment in Levitas's favor to allow Christian to appeal the expert's exclusion.[10] The court granted the request, and Christian appealed.

         In the first of two Court of Special Appeals opinions, the intermediate appellate court affirmed the Circuit Court's decision to exclude Dr. Klein. Christian appealed to this Court, and we, in a per curiam order, vacated the judgment and remanded the case for reconsideration in light of Roy v. Dackman, 445 Md. 23 (2015), reconsideration granted, (Nov. 24, 2015). Christian v. Levitas, 445 Md. 240 (2015). On remand, the Court of Special Appeals, in an unreported opinion, reversed the Circuit Court's decision to exclude Dr. Klein. Christian v. Levitas, 2016 WL 4076100, at *6 (Md. Ct. Spec. App. Aug. 1, 2016). It concluded that Dr. Klein was qualified and had a sufficient factual basis to opine that Christian was exposed to lead at Spaulding and that lead caused his injuries. Id. at *4- *5. Levitas appealed.

         We granted certiorari to answer the following questions:[11]

1. Did the trial court err in excluding Dr. Klein's testimony regarding lead-source causation?
2. Did the trial court err in excluding Dr. Klein's testimony regarding medical causation? Because we answer these questions in the affirmative, we shall affirm the judgment of the Court of Special Appeals.

         STANDARD OF REVIEW

         It is often said that decisions to admit or exclude expert testimony fall squarely within the discretion of the trial court. See, e.g., Bryant v. State, 393 Md. 196, 203 (2006) (collecting cases). A discretionary ruling, however, is not boundless and must be tethered to reason. We have explained that an abuse of discretion is "discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." Neustadter v. Holy Cross Hosp. of Silver Spring, Inc., 418 Md. 231, 241 (2011) (emphasis added) (quoting Touzeau v. Deffinbaugh, 394 Md. 654, 669 (2006)). Appellate courts will not affirm a trial court's discretionary rulings "when the judge has resolved the issue on unreasonable or untenable grounds."[12] Id. (internal quotation marks omitted). Such grounds include "when a trial judge exercises discretion in an arbitrary or capricious manner or when he or she acts beyond the letter or reason of the law." Garg v. Garg, 393 Md. 225, 238 (2006) (citation omitted). The trial court must apply the correct legal standard and "a failure to consider the proper legal standard in reaching a decision constitutes an abuse of discretion." Neustadter, 418 Md. at 242 (emphasis added).

         Below we examine the Circuit Court's rationale for excluding a crucial expert witness to assess whether it abused its discretion.

         DISCUSSION

         Levitas contends that the Circuit Court correctly excluded most of Dr. Klein's testimony because he lacked a sufficient factual basis to opine about the source of Christian's lead exposure and the nature and extent his injuries related to such exposure.[13]Christian flatly disagrees.

         Expert testimony is meant to assist the jury in resolving an issue outside the average person's realm of knowledge. Roy, 445 Md. at 41 (citing Radman v. Harold, 279 Md. 167, 169 (1977)). Under Maryland Rule 5-702, expert testimony "may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue." The court bases this determination on three factors: "(1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education[;] (2) the appropriateness of the expert testimony on the particular subject[;] and (3) whether a sufficient factual basis exists to support the expert testimony." Md. Rule 5-702.[14]

         We have repeatedly explained that an expert may be qualified to testify if he "is reasonably familiar with the subject under investigation." Roy, 455 Md. at 41 (emphasis added) (quoting Radman, 279 Md. at 169). This familiarity can come from "professional training, observation, actual experience, or any combination of these factors." Radman, 279 Md. at 169. An expert, therefore, does not need to have hands-on experience with the subject about which he proposes to testify. Id. at 170-71 (citations omitted). The often-cited illustration of this concept is a law professor who is an expert in trial procedure even though she has never tried a case. Id. at 171 (citation omitted). Similarly, a doctor may be qualified to testify as a medical expert even though she does not have experience with a particular procedure or area of specialization. Id.

         An expert's testimony is admitted "because it is based on his special knowledge derived not only from his own experience, but also from the experiments and reasoning of others, communicated by personal association or through books or other sources." Id. at 170 (citation omitted). "It is sufficient if the court is satisfied that the expert has in some way gained such experience in the matter as would entitle his evidence to credit." Id. at 169 (citation omitted). A trial court may not exclude an expert if "his reading can be assumed to constitute part of his general knowledge adequate to enable him to form a reasonable opinion of his own." Id. at 170 (citation omitted).

         Expert testimony must also have an adequate factual basis so that it is "more than mere speculation or conjecture." Exxon Mobil Corp. v. Ford, 433 Md. 426, 478, as supplemented on denial of reconsideration, 433 Md. 493 (2013) (citation omitted). If an expert's conclusions are not supported by an adequate factual basis, his opinion has no probative force. Beatty v. Trailmaster Prod., Inc., 330 Md. 726, 741 (1993) (citation omitted). The probative value of an expert's testimony is directly related to the "soundness of [the] reasons given" for his conclusions. Id. (citation omitted). An adequate factual basis requires: (1) an adequate supply of data; and (2) a reliable methodology for analyzing the data. Roy, 445 Md. at 42-43 (citation omitted); Ford, 433 Md. at 478 (citation omitted). In addition, if the facts and data that an expert relies on are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, " they need not be independently admissible at trial. Md. Rule 5-703(a).

         In assessing the expert-witness factors, the trial court is only concerned with whether the expert's testimony is admissible. "[O]bjections attacking an expert's training, expertise or basis of knowledge go to the weight of the evidence and not its admissibility." Baltimore Gas & Elec. Co. v. Flippo, 112 Md.App. 75, 98 (1996), aff'd, 348 Md. 680 (1998) (citation omitted). An expert's qualifications and methods may be teased out during cross-examination, and the jury can then assess how much weight to give his testimony. Roy, 445 Md. at 43. "Even if a witness is qualified as an expert, the fact finder need not accept the expert's opinion." Walker v. Grow, 170 Md.App. 255, 275 (2006).

         Lead-Source Causation

         The third factor in Rule 5-702-"sufficient factual basis"-garners the most debate between the parties. The Circuit Court restricted Dr. Klein's testimony on the ground that he did not have a "substantial factual basis" for his opinion that lead inside Spaulding caused Christian's elevated blood lead levels because he lacked "information concerning other possible sources." Levitas asks us to affirm this ruling. Relying on Ross v. Housing Authority of Baltimore City, 430 Md. 648 (2013), Levitas argues that Dr. Klein could not conclude that Spaulding was a source of Christian's lead exposure because he did not consider other properties or conduct an independent investigation.[15] We are not persuaded.

         Ross lends scant support to Levitas-markedly more facts underlie Dr. Klein's opinion than were present in that case. In Ross, lead testing was conducted on the subject property, but the testing only detected lead-based paint on the exterior and one interior surface. Ross, 430 Md. at 654-55. The testimony of the expert, Pamela Blackwell-White, M.D., was quite equivocal-saying that if there was any lead-based paint in a property, she assumed it was the most probable source of lead exposure "until proven otherwise, " especially if it was built before 1970.[16] Id. at 660. Importantly, she testified that "she was merely identifying 'potential risk' and could not make any statement as to causation with certainty." Id. at 664. We concluded that she lacked an adequate factual basis to opine that the subject property was the source of the plaintiff's lead exposure. Id. at 663. We reasoned that because Dr. Blackwell-White could not explain how she weighed certain pieces of information in reaching her conclusion, her opinion would confuse rather than assist the trier of fact. Id.

         By contrast, Dr. Klein concluded-with a reasonable degree of medical certainty- that Spaulding was a reasonably probable source of Christian's lead exposure for several reasons:

• The 2012 Arc Report found that 31 interior locations and five exterior locations tested positive for lead;
• Lead paint was banned federally in 1978, and therefore it was unlikely that Spaulding had been painted with lead-based paint since Christian lived there in the 1990s;
• DHCD records described the poor condition of the property;[17] • An MDE certification indicated that Spaulding was not lead free;
• Christian's FEP and blood lead levels were first found to be elevated while he was living at Spaulding, when he had not yet lived anywhere else;
• Family members testified that Spaulding was in a deteriorated condition while Christian was living there and that Christian touched peeling paint at the property; and
• Christian regularly stayed at Spaulding during the day while his mother was at work, both when he lived there and when he lived at Denmore.

         Dr. Klein acknowledged that Denmore was also a source of Christian's lead exposure. Thus, unlike the expert in Ross, he did not jump to the conclusion that Spaulding was a source merely because it contained lead paint.[18] Spaulding's lead testing was one of multiple facts that Dr. Klein considered when developing his lead-source opinion.

         The Dissent claims that expert witnesses in lead paint cases must exclude other properties to opine that a particular property was a substantial contributing factor to the plaintiff's injuries. Dissent Slip Op. at 22-23. It also contends that the plaintiff must establish that "the subject property was a more probable source" of his injuries than other possible sources. Id. at 5. Both of these assertions stem from a fundamental misunderstanding of the substantial factor test. The substantial factor test applies when "two or more independent negligent acts bring about an injury." Pittway Corp. v. Collins, 409 Md. 218, 244 (2009). Under the test, an actor's conduct is a cause-in-fact of the plaintiff's injuries when it is "a substantial factor in bringing about the harm." Id. (quoting Restatement (Second) of Torts § 431 (Am. Law Inst. 1965)). The substantial factor test does not require experts to exclude other properties as possible contributing sources or the plaintiff to show that one cause had a greater impact than any other substantial factor causing the harm. See Eagle-Picher Indus., Inc. v. Balbos, 326 Md. 179, 209 (1992). It would be illogical for us to require an expert to narrow the plaintiff's lead exposure down to a single source when the substantial factor test, by its very definition, permits more than one cause of injury.

         The discretion accorded to trial judges in evidentiary rulings calls for an exercise of judgment using applicable legal standards. Neustadter, 418 Md. at 241-42. Here, the trial court excluded Dr. Klein's proffered testimony about source causation because he had "very little . . . information concerning other sources [of lead exposure]." In doing so, it thus relied on a purported rule of law that an expert must exclude other properties before he can testify that the plaintiff was exposed to lead at the subject property. But, as discussed supra, this is not the rule. Moreover, in Hamilton v. Kirson, 439 Md. 501 (2014), we dismissed concerns over the experts being "provided with little information on other potential sources of lead exposure." Id. at 544. We explained, "[T]here may be other ways that an injured plaintiff may establish that it was probable that the interior of a subject house contained lead" besides eliminating other possible sources of lead exposure. Id. We have only required that an expert be able to adequately explain how he determined that a property was a source of the plaintiff's lead exposure so that the trier of fact can evaluate his reasoning. Ross, 430 Md. at 663-64 (citation omitted). By relying on the wrong legal standard, the trial court abused its discretion.

         Medical Causation

         The first factor of Rule 5-702-qualification by knowledge, skill, experience, training, or education-comes into play as we consider the Circuit Court's exclusion of Dr. Klein's testimony about the cause of Christian's injuries. Although the parties dispute the exact grounds for this ruling, our examination of the record reveals that the Circuit Court precluded Dr. Klein from testifying about Christian's injuries ...


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