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Kennedy Krieger Institute, Inc. v. Partlow

Court of Appeals of Maryland

August 13, 2018

KENNEDY KRIEGER INSTITUTE, INC.
v.
ASHLEY PARTLOW

          Argued: May 8, 2018

          Circuit Court for Baltimore City Case No. 24-C-09-008243

          Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

          OPINION

          Watts, J.

         This case concerns the important question of whether a duty of care extends from a medical research institute to a child, who was not a participant in a research study that sought to investigate the effectiveness of lead-based paint abatement measures, [1] but who the medical research institute knew resided in a property subject to the research study along with a family member participating in the study, and who was allegedly injured by exposure to lead. If the answer to this question is "yes," then a child who was not a participant in the research study but who the medical research institute knew resided in the property with a participant of the research study, would have an opportunity for recourse in the event of an alleged injury, as the medical research institute would owe that child a duty of care. To prevail, such a person would, of course, still need to establish the other three elements of negligence, i.e., a breach of the duty of care, "a legally cognizable causal relationship between the breach of duty and the harm suffered, and damages." Kiriakos v. Phillips, 448 Md. 440, 456, 139 A.3d 1006, 1016 (2016) (cleaned up). If the answer to the question is "no," then a child who was not enrolled in the research study but who was allegedly injured would not have the ability to pursue a claim for negligence against the medical research institute, despite any purported injury. Thus, we must determine whether a duty of care exists under the circumstances.

         Before we answer this significant question, we briefly set the stage. From 1993 to 1999, Kennedy Krieger Institute, Inc. ("KKI"), Petitioner, conducted a "Lead-Based Paint Abatement and Repair and Maintenance Study" ("the R&M Study") to investigate the effectiveness of various levels of repair and maintenance interventions, i.e., lead-based paint abatement methods, in reducing exposure to lead in houses and reducing children's blood-lead levels. Shortly after the R&M Study concluded, in Grimes v. Kennedy Krieger Inst., Inc., 366 Md. 29, 48-56, 63, 782 A.2d 807, 819-24, 828 (2001), this Court discussed the R&M Study at length, and held that a trial court erred in granting KKI's motions for summary judgment in two cases in which the plaintiffs were child participants in the R&M Study by consent agreements. We explained:

Such research programs[, e.g., the R&M Study, ] normally create special relationships and/or can be of a contractual nature, that create duties. The breaches of such duties may ultimately result in viable negligence actions. Because, at the very least, there are viable and genuine disputes of material fact concerning whether a special relationship, or other relationships arising out of agreements, giving rise to duties existed between KKI and both sets of [plaintiff]s, we hold that the [trial c]ourt erred in granting KKI's motions for summary judgment in both cases . . . . Accordingly, we vacate the rulings of the [trial court] and remand the[] cases to that court for further proceedings[.]

Id. at 48, 782 A.2d at 819. Stated otherwise, in Grimes, id. at 48, 782 A.2d at 819, this Court concluded that a duty of care may exist between KKI and a participant in the R&M Study. In Grimes, id. at 113, 782 A.2d at 858, this Court concluded "that, under certain circumstances, [consent] agreements can, as a matter of law, constitute 'special relationships' giving rise to duties, out of the breach of which negligence actions may arise[, ]" and "that, normally, such special relationships are created between researchers and the human subjects used by the researchers."

         In this case, Ashley Partlow ("Ashley"), Respondent, filed in the Circuit Court for Baltimore City ("the circuit court") a complaint against KKI alleging negligence and violations of the Baltimore City Housing Code and the Maryland Consumer Protection Act. Unlike the plaintiffs in Grimes, however, Ashley was not a participant in the R&M Study, which only included children aged six months to four years. In May 1994, when Ashley's mother, Jacqueline Martin, completed an eligibility questionnaire for the R&M Study, Ashley was five years old, and was ineligible to be a participant. In May 1994, Ashley's younger sister, Anquenette Partlow ("Anquenette"), who was two years old, became a participant in the R&M Study through a consent form signed by Martin. Although Ashley was not a participant in the R&M Study, she lived in the subject property with her family, including Anquenette, during her younger sister's participation in the R&M Study.

         In response to Ashley's complaint, KKI filed various motions for summary judgment, including one concerning the claim for negligence, arguing that it did not owe a legal duty to Ashley because Ashley was not a participant of the R&M Study and it did not own, lease, or operate the subject property. Following a hearing, the circuit court issued an order granting the motions for summary judgment. In a memorandum opinion, the circuit court concluded that KKI did not owe Ashley a duty of care, and that the researcher- subject duty that this Court recognized in Grimes did not extend to Ashley. The circuit court also ruled that KKI did not owe Ashley a duty of care under the Baltimore City Housing Code, and that Ashley had failed to allege facts sufficient to support a claim for violation of the Maryland Consumer Protection Act.

         Ashley appealed. In an unreported opinion, the majority of a panel of the Court of Special Appeals reversed the circuit court's grant of summary judgment in KKI's favor as to Ashley's negligence claim, concluding that a "special relationship created by the R & M Study encompassed her as well as her sister" Ashley Partlow v Kennedy Krieger Inst, et al, Nos 44 and 530, Sept Term, 2015, 2017 WL 4772626, *1 (Md Ct Spec App Oct 23, 2017) The Court of Special Appeals held that KKI owed Ashley a duty of care under the common law, stating "that KKI owed to Ashley the same duty of care it owed to R & M Study participants who lived in the same dwelling pursuant to the same lease agreement" Id. at *7, *9 The Court of Special Appeals held, however, that the circuit court properly granted summary judgment as to the claims for violations of the Baltimore City Housing Code and the Maryland Consumer Protection Act See Id. at *9, *10 The Honorable Stuart R Berger dissented as to the holding that KKI owed Ashley a duty of care under the common law, and concurred with the majority's holdings that the circuit court properly granted summary judgment on the claims for violations of the Baltimore City Housing Code and the Maryland Consumer Protection Act See Id. at *10 (Berger, J, concurring and dissenting).

         KKI filed a petition for a writ of certiorari, raising one issue: "Whether the [Court of Special Appeals], relying on Grimes, erred in imposing a duty on [KKI] to an individual who was not enrolled in the research study at issue[.]" This Court granted the petition. See Kennedy Krieger Inst. v. Partlow, 457 Md. 398, 178 A.3d 1242 (2018).

         In Doe v. Pharmacia & Upjohn Co., Inc., 388 Md. 407, 415, 879 A.2d 1088, 1092-93 (2005), we explained duty of care and the determination of whether a duty exists as follows:

Duty is an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another. There is no set formula for the determination of whether a duty exists. We have applied a foreseeability of harm test, which is based upon the recognition that duty must be limited to avoid liability for unreasonably remote consequences. We also have looked at the relationship of the parties.
At its core, the determination of whether a duty exists represents a policy question of whether the plaintiff is entitled to protection from the defendant.

(Cleaned up). And, in Kiriakos, 448 Md. at 486, 139 A.3d at 1033-34, we set forth "the classic factors we use to decide questions of duty under the common law":

the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost[, ] and prevalence of insurance for the risk involved.

(Cleaned up); see also Doe, 388 Md. at 416, 879 A.2d at 1093 (This Court set forth the same factors, characterizing them as a "non-exhaustive list for balancing the policy considerations inherent in the determination of whether a duty exists[.]").

         Against this backdrop, we hold that a duty of care exists in the limited circumstances where: (1) a medical research institute knows of the presence of a child, who is not a participant in a research study concerning lead-based paint abatement of a property, who resides at a property that is subject to the research study during a participant child's enrollment in the study; (2) the medical research institute has signed a consent agreement with a parent or guardian for a participant child's enrollment in the research study and both the participant and non-participant children reside at a property subject to the study; (3) the medical research institute knows or should know of the presence or suspected presence of lead in the property; (4) the medical research institute determined the level of lead-based paint abatement for the property; and (5) the non-participant child who resided at the property during the research study was allegedly injured by being exposed to lead at the property. Put plainly, under the circumstances of this case, KKI owed Ashley a duty of care under the common law. Our holding is based on the balance of the factors set forth in Kiriakos for determining the existence of a duty under the common law, as consideration of those factors weighs heavily in favor of imposing a duty on KKI to Ashley, and imposing a duty of care on KKI does not create an indeterminate class of potential plaintiffs exposing KKI to unending liability. Additionally, irrespective of the establishment of a duty under traditional tort analysis, the circuit court erred in granting summary judgment in KKI's favor because there was sufficient evidence of a special relationship between KKI and Ashley to submit the issue to the trier of fact.

         BACKGROUND

         The R&M Study

         From 1993 to 1999, KKI, a research organization associated with The Johns Hopkins Hospital, Johns Hopkins University, Johns Hopkins University School of Medicine, and Johns Hopkins University School of Public Health (together, "Johns Hopkins"), conducted the R&M Study to investigate the use of lead-based paint abatement measures in reducing exposure to lead in houses. In Grimes, 366 Md. at 36-37, 782 A.2d at 811-12, we provided the following overview of the R&M Study:

[KKI] created a nontherapeutic research program whereby it required certain classes of ho[us]es to have only partial lead paint abatement modifications performed, and in at least some instances, . . . arranged for the landlords to receive public funding by way of grants or loans to aid in the modifications. [KKI] then encouraged, and in at least one [instance], required, the landlords to rent the premises to families with young children. In the event young children already resided in one of the study houses, it was contemplated that a child would remain in the premises, and the child was encouraged to remain, in order for his or her blood to be periodically analyzed. In other words, the continuing presence of the children that were the subjects of the study was required in order for the study to be complete. . . .
The purpose of the research was to determine how effective varying degrees of lead paint abatement procedures were. Success was to be determined by periodically, over a two-year period of time, measuring the extent to which lead dust remained in, or returned to, the premises after the varying levels of abatement modifications, and . . . by measuring the extent to which the theretofore healthy children's blood became contaminated with lead, and comparing that contamination with levels of lead dust in the houses over the same periods of time.

(Footnote omitted).[2]

         The R&M Study was approved by the Johns Hopkins University Joint Committee on Clinical Investigation, an Institutional Review Board. See id. at 38-39, 782 A.2d at 813. Mark R. Farfel, Sc.D., who was the director of KKI's Lead Abatement Research Department throughout the R&M Study, testified at a deposition in one of the cases consolidated in Grimes that the R&M Study was specifically "designed to do less" than "full lead paint abatement" in older houses in Baltimore "in order to find out if more practical approaches had advantages" and that loan amounts for repairs were limited. The purpose of the R&M Study was to specifically determine the "short and long-term efficacy of full lead-paint abatement and more practical and lower cost Repair and Maintenance [] interventions for reducing levels of lead in residential house dust which in turn should reduce lead in children's blood." According to Dr. Farfel, KKI conducted the R&M Study to determine the impact of completing lead-based paint abatement work that was less than either complete lead-based paint removal or "enclosure, isolation[.]"

         The R&M Study divided participating properties into five test groups, each group consisting of twenty-five houses. See Grimes, 366 Md. at 50, 782 A.2d at 820. Of those five test groups, Groups 1, 2, and 3 "consisted of houses with a considerable amount of lead dust present therein and each group received assigned amounts of maintenance and repair." Id. at 50-51, 782 A.2d at 820 (footnote omitted). Group 4 consisted of houses that, at one time, had lead-based paint present, but that had received a supposedly complete abatement of lead dust. See id. at 51, 782 A.2d at 820. And, Group 5 consisted of modern houses that had never had lead dust present. See id. at 51, 782 A.2d at 820. The goal of the R&M Study "was to analyze the effectiveness of different degrees of partial lead paint abatement in reducing levels of lead dust present in" the houses in the different groups, and, ultimately, "to find a less than complete level of abatement that would be relatively safe, but economical, so that Baltimore landlords with lower socio-economical rental units would not abandon the units." Id. at 51, 782 A.2d at 820-21.

         Groups 1, 2, and 3 were the experimental groups of the R&M Study, and properties in Groups 1, 2, and 3 received different levels of repair and maintenance, with properties in Group 1 receiving a minimal level of repair and maintenance with costs capped at $1, 650, properties in Group 2 receiving a greater level of repair and maintenance with costs capped at $3, 500, and properties in Group 3 receiving an even greater level of repair and maintenance with costs capped between $6, 000 and $7, 000. See id. at 52-53, 782 A.2d at 821-22. In Grimes, id. at 53, 782 A.2d at 822, we explained the differences of repair and maintenance among Groups 1, 2, and 3:

Repair & Maintenance Level I interventions were capped by [the Department of Housing and Community Development ("DHCD")] at $1, 650 and included wet-scraping of peeling and flaking lead-based paint and paint of unknown composition on all interior surfaces, including walls, trim, and doors; repainting of treated surfaces; installation of window well caps; repainting of all exterior window trim, repainting of all interior window sills; vacuuming of all horizontal surfaces and window components with a high efficiency particulate (HEPA) vacuum; and wet cleaning all horizontal surfaces. Level II interventions were capped by DHCD at $3, 500 and included all the elements of Level I intervention plus two key additional elements: use of sealants and paints to make floors smoother and more easily cleanable, and in-place window and door treatments to reduce abrasion of lead-painted surfaces. Level III interventions were capped by DHCD at $6, 000-$7, 000 and added window replacement and encapsulation of exterior door trim with aluminum, and the use of coverings on some floors and stairs to make them smooth and more easily climbable.

(Footnote omitted).

         With respect to properties in Groups 1, 2, and 3, measurements of children's blood-lead levels, lead dust, lead in the soil, and lead in the drinking water were to be taken at certain points in time:

Measurements of lead in the blood of the children and vacuum dust samples from the houses were to be obtained at the following times: pre-intervention, immediately post intervention, and one, three, six, twelve, eighteen, and twenty-four months post intervention. Measurements of lead in the exterior soil were to be obtained at pre-intervention, immediately post intervention, and twelve and twenty-four months post intervention. Measurements of lead in drinking water were to be obtained at pre-intervention, and twelve and twenty-four months post intervention. Additionally, the parents of the child subjects of the study were to fill out a questionnaire at enrollment and at six-month intervals.

Grimes, id. at 53-54, 782 A.2d at 822.

         The key requirement for properties that were to be a part of Groups 1, 2, and 3 was the presence, or suspected presence, of lead in the property. Testifying at deposition, Dr. Farfel described the requirements that applied to the occupants of properties enrolled in the R&M Study:

For the family participant side, we were looking for families that obviously were willing to cooperate with the study by signing informed consent statements. We were looking for families that had at least one child under the age of 48 months and older than five months at the start of the study. These children were not to be mentally retarded or severely handicapped in any way that would limit their physical movement. . . . We asked the families if they had any immediate plans to move. If they did, then they weren't eligible because we were interested in following the family over a period of years.

         Put simply, the key requirement with respect to occupants of the properties was the presence of young children in a certain age group who would occupy the properties for a period of years.

         To entice property owners to permit their properties to be used in the R&M Study, "and in return for limiting their tenants to families with young children, KKI assisted the landlords in applying for and receiving grants or loans of money to be used to perform the levels of abatement required by KKI for each class of ho[us]e." Id. at 52, 782 A.2d at 821. KKI visited properties to obtain consent from the parents to measure the blood-lead levels of the young children. KKI did so by having parents sign a "Clinical Investigation Consent Form." The Clinical Investigation Consent Form signed by Ashley's mother for Ashley's sister's enrollment in the R&M Study provided boilerplate language setting forth the "purpose" of the R&M Study and its "benefits":

PURPOSE OF STUDY:
As you may know, lead poisoning in children is a problem in Baltimore City and other communities across the country. Lead in paint, house dust and outside soil are major sources of lead exposure for children. Children can also be exposed to lead in drinking water and other sources. We understand that your house is going to have special repairs done in order to reduce exposure to lead in paint and dust. On a random basis, ho[us]es will receive one of two levels of repair. We are interested in finding out how well the two levels of repair work. The repairs are not intended, or expected, to completely remove exposure to lead.
We are now doing a study to learn about how well different practices work for reducing exposure to lead in paint and dust. We are asking you and over one hundred other families to allow us to test for lead in and around your ho[us]es up to 8 times over the next two years provided that your house qualifies for the full two years of study. Final eligibility will be determined after the initial testing of your ho[us]e. We are also doing free blood lead testing of children aged 6 months to 7 years, up to 8 times over the next two years. We would also like you to respond to a short questionnaire every 6 months. This study is intended to monitor the effects of the repairs and is not intended to replace the regular medical care your family obtains.
* * *
BENEFITS:
To compensate you for your time answering questions and allowing us to sketch your ho[us]e we will mail you a check in the amount of $5.00. In the future we would mail you a check in the amount of $15 each time the full questionnaire is completed. The dust, soil, water, and blood samples would be testified for lead at [KKI] at no charge to you. We would provide you with specific blood-lead results. We would contact you to discuss a summary of house test results and steps that you could take to reduce any risks of exposure.

         As we summarized in Grimes, id. at 55-56, 782 A.2d at 823-24, the basic parameters of the R&M Study were as follows:

KKI conducted a study of five test groups of twenty-five houses each. The first three groups consisted of houses known to have lead present. The amount of repair and maintenance conducted increased from Group 1 to Group 2 to Group 3. The fourth group consisted of houses, which had at one time lead present but had since allegedly received a complete abatement of lead dust. The fifth group consisted of modern houses, which had never had the presence of lead dust. The twenty-five ho[us]es in each of the first three testing levels were then to be compared to the two control groups: the twenty-five ho[us]es in Group 4 that had previously been abated and the 25 modern ho[us]es in Group 5. The research study was specifically designed to do less than full lead dust abatement in some of the categories of houses in order to study the potential effectiveness, if any, of lesser levels of repair and maintenance.
. . . [I]t would benefit the accuracy of the test, and thus KKI, the compensated researcher, if children remained in the houses over the period of the study even after the presence of lead dust in the houses became evident.

(Footnote omitted).

         This Case

         The Property

         From 1982 to 1992, Lawrence Polakoff owned a house located at 1906 East Federal Street in Baltimore City ("the Property"). In 1992, Polakoff transferred ownership of the Property to CFOD-2 Limited Partnership, a limited partnership that had an entity known as Chase Management, Inc. as its general partner. Polakoff is the president of Chase Management, which took care of the day-to-day operations and management of the Property. According to Polakoff, he was solicited by KKI, and volunteered the Property to be a part of the R&M Study.

         In December 1993, KKI hired an outside contractor to test the Property for the presence of lead-based paint and lead dust. The Property tested positive for the presence of lead-based paint throughout the house, at a multitude of locations. The Property also tested positive for the presence of lead dust throughout the house. According to Dr. Farfel, both the testing for lead-based paint and lead dust qualified the Property for the R&M Study, and the Property was deemed structurally sound. Once it qualified for the R&M Study, the Property was randomly assigned to Level II intervention, i.e., Group 2. As such, the cost of repairs was capped at $3, 500. In a letter dated April 12, 1994, a company named Environmental Restorations, Inc. sent Polakoff a "Lead Paint Abatement/Construction Proposal" proposing repairs totaling $3, 500 that were "designed to remove or encapsulate certain lead[-]based painted surfaces within the [P]roperty." Polakoff gave approval for the repairs in that amount to be done, and the repairs were completed sometime shortly thereafter.

         Ashley

         On December 10, 1988, Ashley was born. From birth until 1994, Ashley resided with her mother, Martin, at various properties. At some point in 1994, Martin and her friend, Catina Higgins, learned that the Property was available to rent. According to Martin, when the women asked about renting the Property, they were advised that, as part of the rental application, they would need to provide their children's blood-lead level test results. According to Martin, after she asked why blood-lead level test results were needed, the management office responded that it was required because the Property was "lead-free" and that either $7, 000 or $17, 000 worth of repairs had been done on the Property.

         On May 13, 1994, Martin and Higgins signed a lease, renting the Property. The lease stated that the following individuals would reside at the Property: Higgins, Martin, Myron Higgins (identified as a "child"), [3] Ashley (identified as a "child"), and Anquenette (identified as a "child"). Shortly after the lease was signed, all five individuals-the two women and three children-moved into the Property. At that time, Ashley was five years old and Anquenette was two years old.

         According to Martin, shortly after moving into the Property, she met with a KKI representative, completed a questionnaire, and agreed to send Ashley and Anquenette to KKI to have their blood drawn. The questionnaire was completed on May 24, 1994. The questionnaire was designed to be used by a KKI representative to determine whether a household would or would not be eligible for participation in the R&M Study. The questionnaire that Martin completed appears to have been filled in by a KKI representative; Martin's signature is not on the questionnaire, but the KKI representative's initials are. According to the questionnaire, Martin indicated that one child between the ages of six months and four years lived in the Property, and she provided Anquenette's information, including her date of birth. Significantly, as part of the questionnaire, the KKI representative asked Martin to identify the name, age, sex, and race of each occupant of the Property. According to the questionnaire, Martin identified herself, Higgins, Ashley, Myron, and Anquenette, and indicated the respective ages of the individuals, including that Ashley was five years old.[4] On May 24, 1994, the same day that Martin answered questions for the eligibility questionnaire, Martin enrolled Anquenette in the R&M Study by signing a Clinical Investigation Consent Form.

         At a deposition, as part of this case, Martin testified about the circumstances surrounding leasing the Property and blood-lead level testing of her children:

[MARTIN:] I asked if we didn't -- if the doctors didn't -- if they didn't get the lead levels, what would be -- would we still be able to rent the house. They said no.
[JOHNS HOPKINS'S COUNSEL:] Okay. And who said that?
[MARTIN:] The representative at the rental office.
[JOHNS HOPKINS'S COUNSEL:] Okay. That was when they asked --when they said we need to get your children's lead levels?
[MARTIN:] Yes.
[JOHNS HOPKINS'S COUNSEL:] And you said if I don't get them, can I rent and --
[MARTIN:] If they didn't receive the kids' lead levels, we wouldn't be able to move in.

         Martin also testified that someone in the management office told her that the Property was "lead-free" before she moved in, but that Polakoff told her that the basement had lead-based paint in it. Martin testified that she believed that KKI was testing Ashley and Anquenette to ensure that their blood-lead levels were safe, and denied knowing that the family was participating in the R&M Study:

[W]hen [KKI] came to the house, they -- when they asked me did I want my kids to go to [KKI] to get their lead levels taken, which I thought would be a good gesture, a good thing to make sure my kids didn't -- did not have lead, that's how I took it. I didn't know -- she never mentioned to me by word of mouth that it was a study. . . . So I -- I'm feeling as a parent that, okay, I live in a lead-free house. Now, here is [KKI] telling me, okay, we're going to monitor your kids to -- we're going -- we're taking them to [KKI]. We're drawing their blood. We're getting their lead levels to show you they have safe lead levels. That was my end take on it. I wasn't told that it was - they were - they were being part of a study[.]

         In a letter dated June 24, 1994, one month after Anquenette was enrolled in the R&M Study, KKI notified Martin and Higgins that dust in the Property had been tested for lead on May 17, 1994, that the chart included in the letter indicated the areas where dust was collected, and that an asterisk was placed "next to areas where the amount of lead was higher than might be found in a completely renovated house." The letter also advised: "Remember there is no rule for how much lead is allowed in the dust from a house like yours." In the letter, KKI stated that dust had been collected from various locations throughout the first and second floors of the Property; no asterisk appeared next to any of the locations, thereby indicating that the amount of lead in the dust was not "higher than [what] might be found in a completely renovated house."

         On September 14, 1994, KKI sent Martin and Higgins an identical letter, except that the letter had an asterisk indicating that the dust collected from "Floor" in "Rooms without windows" on the first floor of the Property contained an "amount of lead [that] was higher than might be found in a completely renovated house." On February 7, 1995, KKI sent another letter, this one indicating that the amount of lead collected in the dust from the "Floor" in "Rooms with windows" on the second floor of the Property "was higher than might be found in a completely renovated house." In all three letters, KKI stated ...


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