STANLEY SUGARMAN, et al.
CHAUNCEY LILES, JR.
Argued: June 1, 2018
Circuit Court for Baltimore City Case No.: 24-C-14-005808
Barbera, C.J., . Greene, Adkins, McDonald, Watts, Hotten,
case presents yet another opportunity for clarification of
when epidemiological studies relied upon by an expert provide
a sufficient factual basis for the expert's testimony.
Specifically, we shall consider whether an expert's
opinion on causation, relying on epidemiological studies,
suffers from the same "analytical gap" identified
in Rochkind v. Stevenson, 454 Md. 277 (2017). We
shall also assess whether an expert may offer an opinion on
specific causation when relying on epidemiological data
coupled with an individualized analysis of the plaintiff and
his claimed injuries. Finally, we consider the sufficiency of
proof required for a plaintiff to demonstrate a loss of
Chauncey Liles, Jr. sued Ivy Realty, Inc. and Stanley
Sugarman (collectively "Sugarman") in the Circuit
Court for Baltimore City. Liles alleged injury and damages
caused by lead paint exposure at a residential property (the
"Residence") owned by Sugarman. At trial, the
parties stipulated that, due to Sugarman's negligence,
Liles was exposed to deteriorating lead paint at the
Residence. The parties further stipulated that the exposure
caused Liles's elevated blood lead levels
("BLL"). The only remaining questions for the jury
were whether the lead exposure caused Liles any injury, and
if so, what damages he incurred.
was born in 1998. At the age of 2, Liles's BLL measured
11 mcg/dL. At the age of 3, his BLL was 10 mcg/dL. When he
entered the fourth grade, Liles began to have educational
difficulties. At the same time, Liles was experiencing grief
and anxiety from the death of several family members. His
educational records reflect that in fifth grade, as a result
of his educational difficulties, his teachers provided
additional accommodations, including one-on-one support,
individualized help on his math skills and test taking
practice, additional response time in class, additional time
to complete assignments, and repetition of directions.
Through middle school, Liles earned grades in the 90s, 80s,
and mid-to-high 70s.
middle school, Liles attended Baltimore City College
("City College"), a selective high school located
in Baltimore. He graduated in May 2016. In 2012, Liles broke
the thumb on his dominant hand. In 2012 and 2013, his
academic performance faltered. Initially, in a deposition,
Liles attributed this dip in his grades to not being able to
write with an injured hand. At trial though, he testified
that this was just an excuse meant to cover for his faltering
performance and difficulties paying attention. In 9th grade,
his GPA was 2.38. In 10th grade, he had a GPA of 1.09. His
GPA increased in 11th and 12th grade, when he earned GPAs of
2.57 and 3.36 respectively. He graduated 194th out of 301
students in his class.
described his grades at City College as "terrible."
He attributed his performance to his inability to focus and
claimed that he is easily distracted, has difficulty sitting
still, and stated that he "just can't grasp things
as fast as other people do." He claimed that these
issues started when he was young and that "as the work
got harder, [he] couldn't get it." Despite these
difficulties in the classroom, Liles tested at or above grade
level on the Maryland School Assessment and passed his High
School Assessment without any additional support. Liles was
accepted at West Virginia University and Bowie State
University, both of which are four-year schools. At trial,
Liles testified that he intended to pursue a bachelor's
degree from Bowie State.
mother graduated from high school and obtained some college
education, but has no college degree. His father also
graduated from high school but did not attend college and
works as a truck driver.
trial, Liles called four expert witnesses: (1) Robert Kraft,
Ph.D.; (2) Jacalyn Blackwell-White, MD; (3) Mark Lieberman;
and (4) Michael Conte, Ph.D. We shall examine the testimony
of each in turn.
offered Dr. Robert Kraft as an expert in the field of
psychology and neuropsychology. Dr. Kraft testified that he
conducted a neuropsychological examination of Liles, which
consisted of an interview as well as several tests
administered to assess various aspects of intelligence
including attention, memory, learning, and language.
Specifically, Dr. Kraft administered an IQ test, the Wechsler
Adult Intelligence Scale ("WAIS-IV"). Dr. Kraft
testified that Liles had a full-scale IQ of 94, which placed
him in the 34th percentile and in the normal range. Dr. Kraft
also explained that an average range IQ does not necessitate
a conclusion that there was no evidence of brain impairment.
addition to this overall score, the IQ test revealed several
sub-scores, which measured various aspects of intelligence.
Dr. Kraft found a "statistically significant"
discrepancy between some of Liles's sub-scores, which
indicated that Liles had some form of brain impairment. Liles
received a sub-score of 86 on two indexes Dr. Kraft
identified as most sensitive to attention and concentration.
according to Dr. Kraft, Liles scored 86 in both: (1) auditory
encoding of information in the working memory; and (2)
information processing speed. Dr. Kraft testified that these
are both factors of attention. Dr. Kraft described auditory
encoding in the following manner: "Any time an
individual gives you a piece of information that you are
expected to use in some way, you are encoding that
information until you've completed the task, then you can
forget about the information." Regarding information
processing speed, Dr. Kraft said:
Processing speed is your ability to independently focus and
complete a task in a self-direct manner. So any time a
student sits down to study, an adult, anyone sits down to
read a book, any time a person sits down to complete a
writing task-that requires information processing speed.
Dr. Kraft tested Liles's information processing speed a
second time, Liles received a scale score of 76, which placed
him in the 5th percentile. Liles also performed in the
"borderline" range on a test related to
"simple and complex visual motor tracking." This,
Dr. Kraft testified, was "consistent with his processing
speed difficulty and difficulty shifting attention." Dr.
Kraft opined that Liles's lower scores on these tests of
attention were statistically significant and attributable to
lower scores on auditory encoding and information processing
speed were the only impairments Dr. Kraft identified. On
cross-examination, when asked about how these attention
impairments related to Liles's academic performance, Dr.
Kraft said, "[h]e could, in fact, have these deficits
but still [have] B's all the way through [school]. These
deficits are mild, and they may not always show up in every
school year." He further stated, that "[m]y opinion
. . . is that he may not show any impairments in his school
performance at all based on these deficits, if he's able
to adapt and accommodate in some way for them."
Blackwell-White was accepted as an expert in the fields of
pediatrics and childhood lead poisoning. She testified that
lead is a neurotoxin that "causes damage to the central
nervous system." She explained that lead blocks the
transmission of neurotransmitters to the brain, which impedes
"learning pathways." Lead exposure during the
prenatal stage through at least age six or seven can cause
damage to the brain because it disrupts the learning pathways
during critical developmental periods. Dr. Blackwell-White
testified that this means that "attention is going to be
affected." She also explained that the Center for
Disease Control "issue[s] standards and protocols for
diagnosis and treatment of children who have elevated blood
lead levels . . ." and has set the current reference
level at 5 mcg/dL. The reference level was once higher, but
later lowered due to medical studies showing that BLLs under
10 mcg/dL are harmful to children.
Blackwell-White did not examine Liles, but instead reviewed
his medical records, Dr. Kraft's report, and other
associated records. She opined that, "within a
reasonable degree of medical certainty," Liles "was
exposed to sustained toxic blood lead levels at an early age.
. . . [and] [h]is documented period of toxicity was at least
12 months." Liles "incurred brain impairment as a
result of his early lead toxicity. . . ." This
impairment included, but was not limited to, a loss of
cognitive function. Dr. Blackwell-White also opined that
Liles lost 4 IQ points "as a result of early lead
Blackwell-White relied extensively on the United States
Environmental Protection Agency's Integrated Science
Assessment for Lead ("EPA-ISA"). She explained
that the EPA-ISA found causal relationships between lead
exposure and attention problems in children, as well as
issues with hyperactivity and impulse control. Dr.
Blackwell-White relied on other studies, chiefly one by Dr.
Bruce Lanphear, ("Lanphear Study"),  showing a causal
relationship between lead exposure in childhood and the loss
of IQ points. We shall examine the conclusions of both the
EPA-ISA and the Lanphear Study in more detail infra.
Dr. Blackwell-White offered her opinion, within a reasonable
degree of medical certainty that, Liles "suffered brain
damage as a result of his early lead exposure." She also
testified that the cognitive deficits Dr. Kraft described
were caused by Liles's early lead exposure. She explained
that injuries suffered from lead exposure are permanent.
asked on cross-examination whether the EPA-ISA set forth a
causal relationship between elevated BLLs and the specific
attention deficits Dr. Kraft identified, Dr. Blackwell-White
answered that the EPA-ISA speaks only to attention
"generally." She concluded that the attention
problems identified by Dr. Kraft fell under the umbrella term
"attention" as used in the EPA-ISA.
trial court accepted Mark Lieberman as an expert in
vocational rehabilitation counseling. Lieberman explained
that a vocational rehabilitation expert assesses how an
individual's physical, cognitive, or psychiatric
disability will affect the individual's ability to learn
new skills and function in the job market. In evaluating
Liles, Lieberman met with him, reviewed Dr. Kraft's
report, and Liles's medical and educational records. With
this information he then applied the RAPEL methodology to
evaluate Liles's employment capacity. Lieberman explained
that each letter in "RAPEL" stands for a separate
stage of the vocational rehabilitation analysis. We have
paraphrased his description below:
• R = Rehabilitation plan. This
assesses the responsibilities of the rehabilitation
counselor, the client time frames, and the expenses of
• A = Access to labor market. What type
of job can the client acquire?
• P = Placeability. Who will hire the
client and why?
• E = Earning capacity. How much can
the client earn in his current condition and how much could
they have earned prior to the disability?
• L = Labor force participation. What
is known about persons with the specific type of limitations
that the client presents?
on the report from Dr. Kraft, Lieberman concluded that Liles
suffered from major cognitive problems, including problems
with attention. He recognized that Liles has difficulty with
auditory encoding and information processing speed. He
explained that these issues "affect your ability to
learn when you're sitting, listening to a lecture."
He said this was "[b]ecause you [need] to hear the
information, quickly process it based on other stuff you
know, and put everything together to understand the new
concept that's being presented."
also administered the Career Ability Placement Survey
("CAPS"), which he described as an
"eight[-]part test," for "mechanical
reasoning, spatial relations, verbal reasoning, . . . math, .
. . grammar, [and] word knowledge." Liles scored below
average on some aspects of the test, particularly reading and
math. Although Lieberman explained that Liles had the skills
of a high school graduate, he anticipated that difficulties
would arise for Liles once he started college. Lieberman
stated that Liles "has the IQ potential and basic
academics to be . . . at least an Associate['s] degree
graduate." He also opined that Liles would be unable to
attain that degree:
It's his ability to function in the college setting as
the work gets more difficult. It's my expectation, I see
[Liles] as going to college, being able to pass some classes,
but eventually hitting that brick wall-the point where
he's not going to be able to get the Associate['s]
degree. . . . And what we see here is that [Liles is] going
to get up to the level of an individual with a high school
diploma and some college, but won't eventually reach the
earnings of an individual with at least an Associate['s]
next offered Dr. Michael Conte as an expert in economics. Dr.
Conte explained the concept of loss of earning capacity,
which he described as the difference between "how much
you probably would have earned absent a certain impediment or
insult versus how much you're likely to earn now."
To understand an individual's prospects in the labor
market, Dr. Conte typically relies on an evaluation from a
vocational rehabilitation expert. Here, he relied on
Lieberman's conclusions regarding Liles's likely
outcomes without his disability, and his likely outcome with
the disability. In addition to reviewing Lieberman's
report, Dr. Conte spoke with Lieberman regarding what Liles
could have accomplished without his current deficits.
reach a conclusion on earnings, Dr. Conte factored in
assumptions including sex, educational attainment, and
work-life expectancy. In Liles's case, Dr. Conte assumed
Liles suffers from a cognitive disability, and . . . on the
basis of Lieberman's opinions, that he would not most
likely have been able to compete in the labor market as an
Associate's degree holder, absent the severity of his
current deficits. [A]t this point in time however, he manages
to proceed in the course of obtaining additional educational
credits, that when he decides to enter the competitive labor
market, he will most likely be able to compete at the level
of a high school graduate with some college.
Conte then offered an opinion as to Liles's lost earning
capacity. He described this as the difference between the
career earnings of someone with the educational attainment of
an Associate's degree, $3, 456, 127 (Liles's likely
earnings without any deficits) and the career earnings of
someone with the educational attainment of a high school
diploma and some college, $1, 757, 320 (Liles's likely
earnings with deficits). This difference, $1, 698, 808,
represents the sustained loss of earnings resulting from
also called expert witnesses: (1) David Nelson, MD; (2) Scott
Beveridge, Ph.D.; (3) Jack Spector, MD; and (4) Jerome
David Nelson was accepted as an expert in pediatrics,
epidemiology, and childhood lead exposure. Like Dr.
Blackwell-White, Dr. Nelson did not examine Liles but
reviewed his medical records, education records, and relied
upon Dr. Kraft's neuropsychological testing. Dr. Nelson
testified that, based on his review of the epidemiological
literature, he would not expect a BLL of 10 mcg/dL or even 15
mcg/dL to be significant in terms of causing brain
impairment. Rather, he opined that he would expect a BLL of
20 mcg/dL or above to have a significant effect. Dr. Nelson
also testified that Liles's educational records did not
indicate any difficulty due to cognitive impairment. Instead,
Dr. Nelson attributed Liles's educational difficulties to
severe anxiety from the loss of several family members while
in the fifth grade and Liles's broken thumb in high
school. Dr. Nelson offered his expert opinion that, within a
reasonable degree of medical certainty, Liles's lead
exposure did not cause him any issues at all, that Liles does
not suffer any cognitive damage from any cause, and that even
if Liles had never been exposed to lead, he would not be any
better off than he is today.
Scott Beveridge was offered as an expert in forensic
vocational rehabilitation counseling. Dr. Beveridge reviewed
Liles's medical records, his educational records, and the
reports from Dr. Kraft, Dr. Blackwell-White, and Lieberman.
He also met with Liles just before his 18th birthday. Dr.
Beveridge administered an IQ test that revealed a full-scale
IQ of 96. Dr. Beveridge identified this IQ as in the
Lieberman, Dr. Beveridge was asked to perform a vocational
evaluation "to determine if there was any impact on
[Liles's] ability to work and maintain employment."
Dr. Beveridge employed the PEEDS-RAPEL method of analysis, a
method that differs from the RAPEL method employed by
Lieberman. Dr. Beveridge testified that the PEEDS-RAPEL
method also accounts for parental history and educational
attainment when considering the likely outcome of an
evaluated individual. Based on this evaluation, Dr. Beveridge
testified that Liles has the capacity to complete an
Associate's degree. Dr. Beveridge explained that Liles
had expressed an interest in going into the medical field and
that he could likely pursue further education in nursing
after obtaining an Associate's degree. He further opined
that Liles could work as a nurse throughout his normal life,
and that his educational and vocational capacity was the same
as it was before his lead exposure.
conclusion of Liles's case in chief, Sugarman moved for
judgment. Sugarman argued that Liles had not proven that his
elevated lead levels caused any injury, and that he had not
proven the existence of any damages beyond mere speculation.
Regarding causation, Sugarman pointed to Dr.
Blackwell-White's testimony and argued that her opinion
rested solely on epidemiological literature "without any
identification of measurement for the individual to support
her opinions that there has been cognitive loss caused by
lead exposure." Sugarman also argued that Liles had not
sufficiently proven that, but for his cognitive difficulties,
he would have obtained a college degree. The trial court
concluded that there was enough evidence for the issues to go
to the jury and denied Sugarman's motion. At the
conclusion of all the evidence, Sugarman again moved for
judgment and raised the same arguments. Once again, the trial
court deemed the evidence sufficient for the jury's
jury returned a verdict for Liles in the amount of $1, 302,
610 ($600, 000 in non-economic damages and $702, 610 in
economic damages). Final judgment was entered in the amount
of $1, 277, 610 after a reduction consistent with the
statutory cap on non-economic damages.
filed a timely appeal and argued that Dr. Blackwell-White did
not have a sufficient factual basis for her opinions
regarding causation. Sugarman also contended that Liles had
not sufficiently proven that his claimed injuries had
resulted in any damages. In a reported opinion, the Court of
Special Appeals affirmed the final judgment of the trial
court. See Sugarman v. Liles, 234 Md.App. 442
granted Sugarman's petition for writ of certiorari to
answer the following questions:
1. Did Dr. Blackwell-White's causation opinion have a
sufficient factual basis to establish a causal relationship
between lead exposure and cognitive defects identified in
Liles or his IQ loss?
2. Was there sufficient evidence for the trial court to
submit the case to the jury on the issue of whether
Liles's lead exposure resulted in damages?
moved for judgment on two occasions, at the end of the
presentation of Liles's case in chief, and at the
conclusion of the evidence. The trial court denied both
motions and the case was ultimately submitted to the jury.
"A judge must grant a civil defendant's motion for
judgment as a matter of law if the plaintiff failed to
present evidence that could persuade the jury of the elements
of the tort by a preponderance of the
evidence." Darcars Motors of Silver Spring,
Inc. v. Borzym, 379 Md. 249, 270 (2004) (emphasis in
original). See also District of Columbia v.
Singleton, 425 Md. 398, 406-07 (2012) ("Where the
defendant, in a jury trial for negligence, argues that
plaintiffs' evidence is insufficient to create a triable
issue, the court determines whether an inference of
negligence is permissible; that is, whether the evidence
demonstrates that it is more probable than not that the
defendant was negligent."). The court considers the
evidence and reasonable inferences drawn from the evidence in
the light most favorable to the non-moving party.
Singleton, 425 Md. at 407. We review the trial
court's decision to grant or deny a motion for judgment
in a civil case without deference. Id. at 406.
Causation And Attention Decrements
Court of Special Appeals held that Liles had produced
sufficient evidence that his lead exposure caused
injury-specifically his deficits in the areas of auditory
encoding and processing speed-to survive a motion for
judgment. Sugarman, 234 Md.App. at 469. It relied on
our analysis set forth in Rochkind v. Stevenson, 454
Md. at 288-91, wherein we observed that epidemiological
evidence showing a causal link between exposure and injury is
usually sufficient for general causation. Liles's
experts-Dr. Kraft and Dr. Blackwell- White-both testified
that Liles's specific deficits were measures, or factors,
of attention. Because the studies in the EPA-ISA found a
causal link between lead exposure and attention decrements,
the intermediate appellate court reasoned that there was no
analytical gap. Sugarman, 234 Md.App. at 469. Thus,
there was a sufficient factual basis for Dr.
Blackwell-White's opinion and the Circuit Court correctly
determined that the weight and credibility of the
parties' dueling experts was a matter for the jury to
urges us to reverse the intermediate appellate court, arguing
that Liles did not satisfy his burden to produce legally
sufficient evidence because Dr. Blackwell-White's
testimony lacked a sufficient factual basis under Md. Rule
5-702. Sugarman maintains that the opinion suffers the same
analytical gap present in Rochkind because
epidemiological literature does not establish a causal
relationship between lead and Liles's specific deficits.
Therefore, Sugarman reasons, Dr. Blackwell-White's
opinion does not permit a conclusion of general causation and
is ultimately speculative. Sugarman forecasts dire
consequences if we affirm the Court of Special Appeals, such
as medical experts offering increasingly abstract testimony
in the absence of scientific evidence or research.
maintains that Dr. Blackwell-White's testimony,
referencing numerous medical studies in addition to the
EPA-ISA, satisfied Liles's burden of proof and that the
Circuit Court properly denied Sugarman's motion for
judgment. Liles also points to Rochkind, emphasizing
that this Court observed that the EPA-ISA identifies a causal
relationship between lead exposure and "general
attention deficits." Liles emphasizes that the EPA-ISA
does not examine the effects of lead exposure in a
"hyper-specific, granular manner[, ]" but rather,
the studies linking lead exposure to attention decrements use
"attention" as an "umbrella term." This,
Liles concludes, is a sufficient basis for Dr.
Blackwell-White's testimony, and there is no analytical
first address the "sufficient factual basis"
required by Md. Rule 5-702, which permits expert testimony
"in the form of an opinion or otherwise," if the
trial court determines "that the testimony will assist
the trier of fact to understand the evidence or determine a
fact in issue." Id. To make that assessment,
the trial court evaluates: "(1) whether the witness is
qualified as an expert by knowledge, skill, experience,
training, or education[;] (2) the appropriateness of the
expert testimony on that particular subject[;] and (3)
whether a sufficient factual basis exists to support the
expert testimony." Id. The proponent of the
expert testimony carries the burden of demonstrating that
these requirements are satisfied. Rochkind, 454 Md.
"sufficient factual basis" requires both "an
adequate supply of data and a reliable methodology."
Id.; see also Roy v. Dackman, 445 Md. 23,
42-43 (2015). As we explained in Rochkind,
"[t]o constitute 'more than mere speculation or
conjecture,' the expert's opinion must be based on
facts sufficient to 'indicate the use of reliable
principles and methodology in support of the expert's
conclusions.'" 454 Md. at 286 (quoting Exxon
Mobil Corp. v. Ford, 433 Md. 426, 478 (2013)). Materials
relied upon by an expert need not be admissible provided that
they are of the kind reasonably relied upon by experts in the
particular field to form opinions or inferences on the
subject. See Md. Rule 5-703(a).
satisfy the requirement of a reliable methodology, "an
expert opinion must provide a sound reasoning process for
inducing its conclusion from the factual data and must have
an adequate theory or rational explanation of how the factual
data led to the expert's conclusion." Exxon
Mobil Corp. v. Ford, 433 Md. 426, 481 (2013). Expert
opinions must be able to assist a trier of fact. To satisfy
that requirement, the trier of fact must be able to evaluate
the reasoning underlying the opinion. Ross v. Housing
Auth. of Balt. City, 430 Md. 648, 663 (2013). Conclusory
or ipse dixit assertions are not helpful- an expert
"must be able to articulate a reliable methodology for
how she reached her conclusion." Rochkind, 454
Md. at 287.
delving into Dr. Blackwell-White's factual basis for her
testimony, it is helpful to illuminate some principles of
causation in cases in which an injury is alleged based on
exposure to substances.
causation addresses whether a particular substance can cause
the kind of injury suffered by the plaintiff. See,
e.g., id. at 291-92; Blackwell v.
Wyeth, 408 Md. 575, 600 (2009). Specific causation
addresses whether the substance actually caused the
plaintiff's injury. See, e.g., Aventis
Pasteur, Inc. v. Skevofilax, 396 Md. 405, 442 (2007);
Wilhelm v. State Traffic Safety Comm'n, 230 Md.
91, 99-100 (1962); see also Norris v. Baxter Healthcare
Corp., 397 F.3d 878, 881 (10th Cir. 2005) ("General
causation is whether a substance is capable of causing a
particular injury or condition in the general population and
specific causation is whether a substance caused a particular
Ross, 430 Md. at 668, we explained a common pattern
of specific ...