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Kirson v. Johnson

Court of Special Appeals of Maryland

April 2, 2018


          Circuit Court for Baltimore City Case No. 24-C-14-005926

          Kehoe, Nazarian, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned), JJ.


          NAZARIAN, J.

         Devon Johnson sued his former landlords, Benjamin L. Kirson, individually and as trustee of assets of BenLee Realty, LLC (collectively the "Landlords"), in the Circuit Court for Baltimore City. He alleged that he had been poisoned by lead-based paint during the time he lived in a home that the Landlords owned and managed. At the close of Mr. Johnson's case, the Landlords moved for judgment, and the trial court denied the motion. After a six-day trial, a jury returned a verdict in Mr. Johnson's favor and awarded damages in the amount of $1, 628, 000.

         The Landlords moved for judgment notwithstanding the verdict ("JNOV") or, in the alternative, a new trial, and moved to reduce the amount of non-economic damages. The trial court denied their JNOV motion but reduced the non-economic damages to $1, 173, 000. The Landlords appeal and we affirm.

         I. BACKGROUND

         Mr. Johnson was born on April 18, 1997 at Union Memorial Hospital. From December 1997[1] until February 2000, he lived with his mother, Varnell Thames, at 741 E. 36th Street ("36th Street" or the "Property") in Baltimore City. 36th Street was owned and managed by BenLee Realty, LLC, of which Benjamin Kirson was a member. Mr. Kirson managed the day-to-day operations of the company and oversaw its properties, including 36th Street. Before Ms. Thames rented the Property, she performed a walk-through inspection with an unidentified man who handled the execution of her lease.

         Ms. Thames testified that when she moved into the home, she saw chipping paint on the window sills in the basement and bedrooms and on the front porch door. Mr. Johnson and his brother often played in the basement, on top of the washing machine, especially while it was running, and on the front porch during the summer. She testified that she saw paint chips on Mr. Johnson's fingertips and on the bottom of a bottle of bleach that sat on the window sill behind the washing machine in the basement.

         Mr. Johnson's blood was tested eight times for lead between August 1998 and January 2012, and the tests revealed elevated blood lead levels four times between the time he lived at 36th Street and the time he moved away:

Date Taken

Blood Lead Level[2]

August 17, 1998

16 μg/dL

October 27, 1998

16 μg/dL

March 18, 1999

17 μg/dL

April 22, 1999

13 μg/dL

         In 2014, Ms. Thames, on Mr. Johnson's behalf, sued the Landlords in the Circuit Court for Baltimore City, alleging negligence and unfair trade practices in violation of the Maryland Consumer Protection Act ("CPA"). During discovery, Arc Environmental ("Arc") tested 36th Street for lead-based paint and issued a report (the "Report") identifying six areas of the Property that contained lead in excess of the Maryland standard.[3] The Report identified lead-based paint in the rear exterior of the Property's basement door casing, the window casing in the basement, the front door's casing and threshold, and the front porch's post and header.

         Mr. Johnson designated two experts: (1) Dr. Paul Rogers, a pediatrician who specializes in neurodevelopmental disabilities in children, as an expert witness to testify on the source of his lead exposure (source causation) and the cause of his injuries (medical causation); and (2) Edward Rush Barnett, an accredited lead risk assessor, as an environmental safety and health expert to testify on the presence of lead-based paint hazards at 36th Street. In his December report, Dr. Rogers concluded that "[Mr. Johnson] had extensive exposure to lead based paint at [36th Street] that caused his elevated blood levels and subsequent poisoning and was a substantial contributing factor to his neurodevelopmental disabilities." He based his opinion on a variety of documents, including: (1) Mr. Johnson's medical and school records, blood lead test results, and neuropsychological evaluation; (2) the age of the Property, which was built in 1927; (3) Maryland Department of the Environment ("MDE") records indicating 36th Street is registered with its lead paint prevention program;[4] (4) Ms. Thames's affidavit, which described flaking, chipping, and peeling paint in the Property; and (5) the Arc Report. In contrast, during his deposition, Dr. Rogers testified that he couldn't say that, each taken individually, the rear exterior basement door and window casing, front exterior door's casing and threshold, and front porch's post and header contributed substantially to Mr. Johnson's injuries. But at trial, Dr. Rogers testified again that "the aggregate dust production from these several sources . . . and what was tracked in the house [ ] more likely than not contributed to [Mr. Johnson's] elevated lead levels" and subsequent injuries. Mr. Barnett also testified that the deteriorating paint conditions of the lead-based paint at the Property contributed to Mr. Johnson's elevated lead levels.

         The Landlords moved in limine to preclude Mr. Johnson from presenting evidence or eliciting testimony about parts of the Property not identified in the Report, and to preclude Dr. Rogers from opining that the basement window casing alone was a "substantial factor" in causing Mr. Johnson's injuries. The court granted both motions. After a six-day trial, the jury found the Landlords liable and awarded damages totaling $1, 628, 000. After the circuit court denied the Landlords' motion for JNOV and reduced the non-economic damages portion of the award, the Landlords appealed. We will supply additional facts as appropriate below.

         II. ...

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