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Sugarman v. Liles

Court of Special Appeals of Maryland

November 1, 2017

STANLEY SUGARMAN, ET AL.
v.
CHAUNCEY LILES, JR.

         Circuit Court for Baltimore City Case No. 24-C-14-005808

          Graeff, Friedman, Thieme, Raymond G., Jr. (Senior Judge, Specially Assigned), JJ.

          OPINION

          GRAEFF, J.

         Chauncey Liles, Jr., appellee, filed a complaint against Ivy Realty, Inc. and Stanley Sugarman (collectively "Ivy Realty"), appellants, in the Circuit Court for Baltimore City, alleging injury and damages caused by lead paint exposure at a residence (the "Property") managed, maintained, operated, and controlled by Ivy Realty. At trial, the parties stipulated that, due to Ivy Realty's negligence, Mr. Liles was exposed to deteriorating paint at the Property, and his exposure to lead paint substantially contributed to two documented elevated blood lead levels. The only remaining questions for the jury, therefore, were whether Mr. Liles' lead exposure caused injury, and if so, what, if any, damages were incurred.

         Mr. Liles presented four expert witnesses at trial to testify to his alleged injury and damages. At the close of his case, and again at the close of all evidence, Ivy Realty moved for judgment, asserting that the expert testimony was speculative and lacked a factual basis to support the causation and damages opinions, and the evidence was insufficient to establish that Mr. Liles had suffered a legally compensable injury. The court denied the motions. The jury ruled in favor of Mr. Liles, and judgment was entered against Ivy Realty in the amount of $1, 277, 610.[1]

         On appeal, appellant presents three questions for this Court's review, which we have rephrased and consolidated, as follows:

1. Was there sufficient evidence for the trial court to submit the case to the jury on the issue whether Mr. Liles' lead exposure caused injury?
2. Was there sufficient evidence for the trial court to submit the case to the jury on the issue whether any injury caused by the lead exposure resulted in damages?

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

         FACTUAL AND PROCEDURAL BACKGROUND

         I.

         Mr. Liles' Medical and Educational History

         Mr. Liles was born on February 17, 1998. When Mr. Liles was two and one-half years old, he had a blood lead level of 11 mcg/dL, and at age three, it was 10 mcg/dL.[2]Mr. Liles' medical records indicate that, at two years old, he suffered a seizure due to appendicitis. He had an emergency appendectomy and was hospitalized for two weeks, but he made a full recovery. In high school, Mr. Liles suffered a broken thumb. The thumb healed completely, and he suffered no long term effects from that injury.

         When Mr. Liles was nine years old, several close family members died within a one-year time period. Mr. Liles experienced grief and anxiety, for which he received counseling. No developmental concerns were documented within his medical records. The records indicated that Mr. Liles was "bright, cooperative and . . . functioning at the appropriate grade level (3rd)." His level of academic performance was assessed at "above average."

         In elementary school, Mr. Liles performed consistently at or above grade level until his 4th and 5th grade school years, when he had increased absences following the death of his family members and his treatment for anxiety. As a result of his performance, Mr. Liles attended summer school, and he received academic support, including "one on one support, " "small grouping, " "individualized help on his math skills and test taking practice, " "extra response time, " "extended time to complete assignments, " and "repetition of directions." In middle school, Mr. Liles raised his grades into the "70s, 80s, and 90s."

         In May 2016, Mr. Liles graduated from Baltimore City College High School ("City College"), a prestigious college preparatory school that requires admittees to pass an entrance examination. Mr. Liles described his grades at City College as terrible, stating that he had "a mid-C average, " and the "only A's" he received were in foreign language, "weight training, gym class, anything physical."[3]

         Mr. Liles blamed his poor grades in high school on his inability to focus, stating that he gets distracted a lot, does not like sitting still, and "just can't grasp things as fast as other people do." These issues started when he was young, but "as the work got harder, [he] couldn't get it." He stated that his parents had both done well in school, and they encouraged him to do well, which was his goal, but he "couldn't." His weighted Grade Point Average ("GPA") upon graduation from City College was 3.3, although his unweighted GPA was 2.1. He was ranked 194 out of 301 students.

         Mr. Liles tested at or above grade level on all Maryland School Assessment testing and passed his High School Assessment tests. His scores on the PSAT were in the 20th, 24th, and 54th percentiles during his 9th, 10th, and 11th grade years, respectively.

         Following high school, Mr. Liles was accepted to West Virginia University ("WVU") and Bowie State University ("BSU"). He decided to attend BSU because it was less expensive and closer to home. Mr. Liles stated that he would "not be able to focus" at WVU and would be easily distracted away from his family, without supervision.

         With respect to Mr. Liles' family members, his mother, Daronda Liles, is a high school graduate, with some college experience. His father, Chauncey Liles, Sr., is a high school graduate employed as a truck driver.[4] Mr. Liles has four siblings. The oldest three siblings all completed high school, and one is enrolled at the University of Maryland, Eastern Shore studying pre-med. His youngest sibling is still in grade school.

         II.

         Mr. Liles' Expert Witnesses

         A.

         Robert Kraft, Ph.D.

         Dr. Robert Kraft, a licensed psychologist, testified as an expert in neuropsychology, the "relationship between behavior and the central nervous system functioning."[5] A clinical neuropsychology assessment is performed on an individual to "determine an individual's strengths and weaknesses in their brain functioning . . . to determine if they have any sort of neurodevelopmental disorder or brain-related impairments that may impact them, and to identify what those are." Brain-related impairments are not physically visible through neuroimaging, and it requires "specialized assessments in order to identify them." The assessment involves observing the individual, taking a history, and giving a "battery of tests that are designed to be presented under specific conditions and that an individual is expected to display specific behavior in response to these tests."

         Dr. Kraft's neuropsychological examination of Mr. Liles consisted of an interview, as well as a number of neuropsychological tests that Dr. Kraft administered to assess intelligence, memory, learning, academic achievement, executive functioning, attention, language, visual-spatial and perceptual motor functioning, and effort. Mr. Liles has a "full scale IQ of 94, " which "falls into an average range, " and his "performance on math was in the solid average range of the 61st percentile." Dr. Kraft stated, however, that having an average range IQ score does not mean that there is no evidence of brain impairment, and that Mr. Liles' "two index scores that are most sensitive to attention and concentration" were "significantly lower than his performance in perceptual reasoning, " which indicated the presence of "mild impairment." Specifically, Dr. Kraft stated that Mr. Liles had mild deficits "with respect to auditory encoding of information in the working memory, and information processing speed, " both of which "are factors of attention." In regard to both of these factors, Mr. Liles scored 86, which is statistically in the 18th percentile, and was "significantly lower than his performance in perceptual reasoning, " which was 104.[6] The discrepancy between the index scores and the IQ test was wide enough that it "is not considered to happen by chance alone, " but rather, it suggests "that there is some process that is responsible for the discrepancy."

         Dr. Kraft explained that auditory encoding is a person's "ability to hold information in mind for immediate manipulation and to make some sort of output with that information that you're holding in memory." For example, a waiter or waitress who takes orders without writing the orders down is using auditory encoding. Individuals "use auditory encoding in every aspect of life, " and that information is stored until the individual has completed the task, and then the information can be forgotten.

         Processing speed is an individual's "ability to independently focus and complete a task in a self-directed manner." For example, a student who sits down to study, or an adult who sits down to read a book or complete a writing task, requires information processing speed. Mr. Liles' ability "to do that independently . . . is lower than it should be based on his intellectual functioning and suggests a mild impairment in that area." Dr. Kraft suggested that Mr. Liles' mild deficit could be accommodated, stating that, although Mr. Liles "may take a little longer than the average peer, " he typically completes tasks "with accuracy and not a lot of compulsive errors."

         Dr. Kraft agreed that Mr. Liles did not suffer from any deficits in IQ, executive function, the visual-spatial realm, speech and language, or fine and gross motor skills. Mr. Liles scored high average to average on another test for auditory attention, scoring higher than 75% of the general population on one subtest and in the 50th percentile on another. Dr. Kraft described the tests on which Mr. Liles scored the highest as "logical memory tasks and visual reproduction tasks, " both of which "involve[] learning the information and storing it." Dr. Kraft further described Mr. Liles' "language skills [as] average or better, " and his "comprehension of instructions, which is a receptive language kind of task, " as "in the average range." Mr. Liles' "[v]erbal fluency was high average."

         As part of his evaluation, Dr. Kraft reviewed Mr. Liles' school records. Mr. Liles began to show some mild educational problems in fourth grade, and he was provided with math tutoring. In fifth grade, Mr. Liles "performed more poorly, " and the teacher's notes indicated that Mr. Liles was provided with accommodations, including "one-on-one teacher supports, " "extra response time, " and "extended time to complete assignments, " which Dr. Kraft thought was significant "because those are the exact accommodations that would be afforded to an individual who's having attention problems, particularly involving their ability to process information in a timely manner, " which was "consistent with" Dr. Kraft's findings during the evaluation. Dr. Kraft was aware that Mr. Liles had suffered deaths in his family during the fourth and fifth grades, and had been receiving counseling, but he opined that Mr. Liles would have needed accommodations regardless of this family circumstance.

         Dr. Kraft noted that Mr. Liles could have obtained B's in school because the "deficits are mild, and they may not always show up in every school year." In that regard, he stated that Mr. Liles may have had "courses that are easier than others, teachers that he click[ed] with better than others, and not necessarily need[ed] accommodations or [had] to struggle to adapt to the deficits." In other words, Mr. Liles' "deficits aren't always apparent in terms of how he would function at school . . . . if he's able to adapt and accommodate in some way for them."

         B.

         Jacalyn Blackwell-White, MD

         Dr. Blackwell-White, who was admitted as an expert in pediatrics and childhood lead poisoning, had seen hundreds of children in her practice that had elevated blood lead levels.[7] She explained that lead is a neurotoxin, "a substance which causes damage to the central nervous system, " i.e., the "brain and the way the brain functions." Children are more susceptible to brain injuries from neurotoxins because their brain is rapidly developing, and lead exposure interferes with the neurotransmitter which transmits messages from "one neuron to another" through the myelin sheath. The "learning pathways" are disrupted, which "in real-speak [means] that "attention is going to be affected. You're not going to have a nice message go from one neuron to another." The damage that happens to a child's brain from lead poisoning is permanent.

         Dr. Blackwell-White stated that the Centers for Disease Control ("CDC"), which "issue[s] standards and protocols for diagnosis and treatment of children who have elevated blood lead levels, " has set the current reference level at five micrograms per deciliter of blood-lead, i.e., 5 mcg/dL. Previously, in the "early 80s, " the reference level was 25 mcg/dL. It was lowered to 15 mcg/dL, then to 10 mcg/dL, and most recently, in 2012, it was lowered to 5 mcg/dL. The reference level was lowered based on medical literature and many studies indicating that blood lead levels under 10 mcg/dL were damaging to children.

         Dr. Blackwell-White reviewed Mr. Liles' medical records, which indicated that his blood lead levels around the year 2000 were 10 mcg/dL and 11 mcg/dL. The reference level for the CDC at that time was less than 10 mcg/dL.

         Dr. Blackwell-White also discussed the Environmental Protection Agency's ("EPA") Integrated Science Assessment ("EPA-ISA") on lead.[8] The EPA is a regulatory agency that surveys the impact of health concerns to the population, and it reviewed years of literature regarding "the impact of lead on the environment and on the population." Dr. Blackwell-White testified that the EPA-ISA found that there is a causal relationship between childhood lead exposure and certain cognitive problems, including "attentional problems in children - impulse control . . . . and hyperactivity." She explained that these problems were found in children with lead levels between 7 mcg/dL and 14 mcg/dL, and "cognitive IQ point loss was caused by early lead exposure." Mr. Liles' blood lead levels were 10 and 11, "within the range." Dr. Blackwell-White testified that "many studies" link lead exposure in childhood to loss of IQ points, citing two leading studies that "looked at the impact of IQ loss in children for lead levels under 10."

         In reaching her opinion in this case, Dr. Blackwell-White relied, in part, on the EPA-ISA's determination of a causal relationship between lead exposure and cognitive defects. After reviewing Mr. Liles' medical records, Dr. Blackwell-White opined that Mr. Liles suffered lead poisoning as a child. The basis for that opinion was Mr. Liles' two elevated lead levels at ages two and one-half and three.

         Dr. Blackwell-White also reviewed Dr. Kraft's neuropsychological evaluation reports, on which she relied heavily. Dr. Kraft's report indicated that Mr. Liles had cognitive impairments in processing speed and auditory encoding, measures of attention. Dr. Blackwell-White testified that, in her opinion, Mr. Liles "suffered brain damage as a result of his early lead exposure, " and the cognitive deficits identified by Dr. Kraft were permanent and caused by Mr. Liles' exposure to lead.

         Dr. Blackwell-White noted that one of the other leading studies, "the International Pooled Analysis by Dr. Bruce Lanphear" (the "Lanphear Study"), concluded that lead, independently of "other things going on in these children's lives, " was responsible for IQ loss. Based on the Lanphear Study, Dr. Blackwell-White opined that Mr. Liles had lost four IQ points as a result of his elevated blood lead levels.

         On cross-examination, Dr. Blackwell-White agreed that a history of emotional distress potentially could put a child at risk for cognitive difficulties. She further testified that the EPA-ISA is not typically relied upon by pediatricians in their clinical practice, and she "came across it through her work as an expert in litigation." She acknowledged that the CDC had also reviewed the epidemiological literature that was available in 2012, but it did not make any statements of causality. Indeed, the CDC stated in 1991 "that adverse effects of blood levels of 10 to 14 are subtle and are not likely to be recognized or measurable in the individual child."

         When asked whether the causal connection found by EPA-ISA between lead and attention included the specific attention deficits found by Dr. Kraft, i.e., "auditory encoding and processing speed, " Dr. Blackwell-White stated:

Not only the EPA, but a good much of the lead literature involving children speaks to attention. They don't parse it out as to what kind of attention. They are using the umbrella term "attention". And so it is in my opinion that the deficits that Dr. Kraft found are part of that umbrella term "attention".

         Dr. Blackwell-White opined that every child exposed to lead loses IQ points. This opinion was based completely on the epidemiological literature, which is "all we have." She cited the Lanphear Study, concluding that exposure to up to ...


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