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Dackman v. Robinson

Court of Appeals of Maryland

June 24, 2019

ELLIOT DACKMAN, ET AL.
v.
DAQUANTAY ROBINSON, ET AL.

          Argued: February 28, 2019

          Circuit Court for Baltimore City Case No. 24-C-12-006890

          Barbera, C.J., Greene, McDonald, Watts, Hotten, Getty, Adkins, Sally D. (Senior Judge, Specially Assigned), JJ.

          OPINION

          Watts, J.

         In this lead-based paint case, we are once again asked to address issues that are related to the admissibility of expert testimony. Unlike many of the lead-based paint cases that have come before this Court, this case does not involve an issue as to the reasonable probable source of lead exposure or medical causation. Instead, we decide whether the trial court abused its discretion in admitting expert testimony from two of the plaintiff's experts-a vocational rehabilitation expert and an economic expert. The vocational rehabilitation expert opined that, with the cognitive deficits caused by exposure to lead, the plaintiff would not have the academic and intellectual competency of a high school graduate, would work in unskilled or low-level semi-skilled jobs, and would have the earning capacity of someone with less than a twelfth-grade education. The vocational rehabilitation expert also opined that, absent cognitive deficits caused by exposure to lead, the plaintiff would have been able to graduate high school and attend a vocational technical school or a community college "where he would learn some type of . . . hands-on work." Relying on the vocational rehabilitation expert's conclusions about the plaintiff's vocational probabilities with and without deficits and general statistical data, the economic expert opined that the plaintiff's loss of earning capacity over his lifetime-the difference between his earning capacity absent deficits (i.e., an individual with some college education) and with deficits (i.e., an individual who was "a below[-]average high school graduate")-was $1, 073, 042.

         We decide whether the trial court abused its discretion in admitting the vocational rehabilitation expert's testimony and, in turn, the economic expert's testimony. Specifically, we decide whether there was a sufficient factual basis to support the vocational rehabilitation expert's opinion as to the plaintiff's vocational and educational attainment absent impairment. On a related note, we consider whether Lewin Realty III, Inc. v. Brooks, 138 Md.App. 244, 771 A.2d 446 (2001), aff'd, 378 Md. 70, 835 A.2d 616 (2003), and Sugarman v. Liles, 460 Md. 396, 190 A.3d 344 (2018) require an expert in a lead-based paint case to utilize statistical data or studies to support an opinion as to a plaintiff's vocational and educational attainment absent deficits. Lastly, we decide whether the trial court abused its discretion in denying a motion in limine to exclude the economic expert's testimony and report as untimely, and in admitting the economic expert's testimony.

         We hold that the vocational rehabilitation expert's testimony, and, specifically, her opinion as to the plaintiff's vocational and educational attainment absent cognitive deficits, was supported by a sufficient factual basis, as required by Maryland Rule 5-702(3). Moreover, we determine that Lewin Realty and Sugarman do not establish a requirement that an expert in a lead-based paint case must utilize statistical data or specific studies to support an opinion as to a plaintiff's vocational and educational attainment absent deficits. A sufficient factual basis supporting an opinion as to a plaintiff's vocational and educational attainment absent deficits may be grounded in the expert's detailed and individualized assessment of information about the plaintiff, coupled with the expert's experience and training, as was the circumstance here. As such, we conclude that the trial court did not abuse its discretion in admitting the vocational rehabilitation expert's testimony and, in turn, admitting the economic expert's testimony. Finally, we hold that the trial court did not abuse its discretion in denying a motion in limine to exclude the economic expert's testimony and report as untimely, and in admitting the economic expert's testimony at trial.

         BACKGROUND

         The Residential History

         Daquantay Robinson ("Respondent")[1] alleged that he suffered lead-based paint poisoning while residing at a row house located at 1642 East 25th Street in Baltimore City ("the Property"). Although no issue concerning lead hazards at the Property or Respondent's exposure to lead at the Property is before us, for completeness, we include a brief summary of Respondent's residential and medical history.

         On February 11, 1997, Respondent was born. Shortly before his birth, Respondent's mother, Tiesha Robinson, grandmother, Sandra Moses, and three other family members began residing in the Property, which, at all relevant times, was owned and managed by Elliot Dackman, the Estate of Sandra Dackman, and the Estate of Bernard Dackman (together, "Petitioners").[2] From his birth until July 2001, Respondent resided at the Property. For approximately the first eighteen months of his life, Respondent did not spend any significant amount of time at any other property.

         In an affidavit that was filed as an exhibit to Respondent's memorandum in support of an opposition to a motion for summary judgment, Moses averred that, when the family first moved in, there was chipping, peeling, and flaking paint "all over the place[.]" Moses also averred that there was chipping, flaking, and peeling paint on the exterior of the Property-specifically, on the door, posts, and ceiling of the front porch. Similarly, at a deposition, Robinson testified that there was chipping, flaking, and peeling paint on the window frames, as well as on the heater in her bedroom. Robinson also testified that there was a hole in the wall in her bedroom, which Respondent would pick at.

         Between 1997 and 2000, Respondent's blood-lead levels were tested on six occasions-December 3, 1997, May 13, 1998, November 11, 1998, June 11, 1999, February 18, 2000, and August 30, 2000-while he resided at the Property. On December 3, 1997, Respondent's blood-lead level was 12 micrograms per deciliter ("µg/dL"); on May 13, 1998, Respondent's blood-lead level was 13 µg/dL; on November 11, 1998, Respondent's blood-lead level was 12 µg/dL; on June 11, 1999, Respondent's blood-lead level was 14 µg/dL; on February 18, 2000, Respondent's blood-lead level was 9 µg/dL; and on August 30, 2000, Respondent's blood-lead level was 9 µg/dL.

         In July 2001, Respondent and Robinson moved out of the Property.

         On June 10, 2013, after litigation had commenced, Arc Environmental, Inc. conducted lead testing at the Property. Lead-based paint was detected on seven interior surfaces and two exterior surfaces. Specifically, lead-based paint was detected in the basement storage room on the door surface and door jam, and in the basement hallway, door casing, threshold, headers, and ceiling. Lead-based paint was also detected on the exterior of the Property on the front porch post and ceiling.

         The Litigation

         On November 28, 2012, in the Circuit Court for Baltimore City, Respondent, by and through his mother and next friend, Robinson, filed a complaint and demand for jury trial against Petitioners for negligence, violations of the Maryland Consumer Protection Act, and negligent misrepresentation arising out of Respondent's alleged exposure to lead-based paint at the Property.

         On January 30, 2013, the circuit court issued a scheduling order, which provided that discovery, including depositions of expert witnesses, was to be completed by May 10, 2014. The scheduling order established deadlines for discovery, including that Respondent was to "respond to all interrogatory requests concerning the findings and opinions of experts . . . no later than" August 7, 2013. Trial was scheduled to begin on September 9, 2014, and any motions in limine were to be filed no later than fifteen days before the first day of trial.

         In a letter to Petitioners' counsel dated May 9, 2013, Respondent's counsel designated various expert witnesses, including vocational rehabilitation experts and economic experts. Respondent's counsel identified Estelle L. Davis, Ph.D., as one of the vocational rehabilitation experts, stating:

[Dr.] Davis, [] Rehabilitation Counselor, . . . will review documents and reports and may conduct her own evaluation of [Respondent] and render an opinion as to the loss of earning capacity [Respondent] is expected to incur as a result of [his] exposure to lead and related injuries. Dr. Davis relies upon her education, training[, ] and experience, as well as the Chartbook on Work and Disability in the United States, dat[a] from the U.S. Census Bureau and the Dictionary of Occupational Titles[] in reaching [her] conclusions.

         (Underlining in original). Respondent's counsel identified Richard J. Lurito, Ph.D., as one of five economic experts, stating:

Dr. Lurito is an expert economist who, based upon his review of the records and the vocational assessment of [Respondent], is expected to render an opinion regarding the loss of future earning capacity [Respondent] has suffered as a result of the injuries due to lead poisoning. He will quantify, in a present dollar amount, how much of an economic loss [Respondent] is expected to suffer over [Respondent]'s expected lifetime. Dr. Lurito relies upon his education, training[, ] and experience in the field of economics in reaching his conclusion.

         In an answer to an interrogatory, Respondent again identified various expert witnesses, including Dr. Davis and Dr. Lurito.

         In a letter dated July 9, 2014, Dr. Davis evaluated Respondent's "employability and earning capacity given his impairments and absent his impairments." Dr. Davis noted that she had been provided several records from Respondent's file, including a report regarding a neuropsychological evaluation by Barry A. Hurwitz, Ph.D., [3] which Dr. Davis summarized as follows:

In the summary of his report[, ] Dr. Hurwitz states that [Respondent]'s performances were impaired on neuropsychological measures of attention and executive functions, visual/spatial and visual/motor skills, motor abilities and memory. There were no indications that negative influences due to emotional factors, fatigue[, ] or loss of interest played a significant role during his presentation.

         Dr. Davis concluded that, "given his impairments, [Respondent] will graduate from high school[, ]" and that "[g]iven his Low Average IQ, and his impairments in Attention and in Executive Functions, he will likely do best with a job that is routine and repetitive." Dr. Davis also stated that, "[a]ssuming that [Respondent] can control his anger, his earnings are likely to be equivalent to the lower range of someone with a high school education." Dr. Davis determined, however, that if Respondent's "anger continue[d] to be problematic[, ] his earnings are likely to be equivalent to someone with less than a high school education." Dr. Davis observed that Respondent would like to attend college, but that "he would likely need to complete non[-]credit courses before qualifying to take college[-]level coursework." And, according to Dr. Davis, "considering [Respondent's] past academic performance[, ]" it was "not likely" that Respondent would "be successful in completing college beyond the prerequisite coursework."

Dr. Davis concluded that, on the other hand,
[a]bsent his impairments[, Respondent] would likely function at a higher cognitive level. He would likely not have issues with Attention and Executive Functions. His school attendance and interest in school would be as it is now, and he would have more control over his temper. His grades in academic subjects would likely be higher.

         Dr. Davis concluded that, "absent his impairments[, Respondent] would finish two year[s] of college or the equivalent in a technical school, and have earnings comparable to someone with that level of education." Dr. Davis's letter was forwarded to Petitioners' counsel as an attachment to a letter dated July 14, 2014, from Respondent's counsel. On August 15, 2014, Dr. Davis was deposed.

         In July 2014, Dr. Lurito prepared a report entitled "Present Value of Lost Future Earnings of [Respondent]."[4] In the first sentence of the report, Dr. Lurito stated that the purpose of the assessment was "to determine the economic value [] of the projected lost earnings of [Respondent] as a result of his cognitive deficits[, ] which," he had been "advised by Dr. [] Davis, a rehabilitation counselor, have reduced [Respondent's] earning capacity." Throughout the report, Dr. Lurito relied on Dr. Davis's opinion. In the report, Dr. Lurito identified "two important aspects" concerning "the economic value today of [Respondent]'s projected lost earnings": (1) "a projection must be made of his probable future earnings, absent and given deficits"; and (2) "a single lump-sum must be determined[, ] which would be equivalent to his lost future earnings year after year over his expected working life[, ]" and that lump-sum would be "equal to the so-called 'present value' of the individual's lost future earnings." Dr. Lurito concluded that, "absent deficits, [Respondent] had the capacity to earn an income of $2, 862, 509 in present value terms, if he had earned the income of the typical male with an Associate's degree in the United States as Dr. Davis opined."

         Dr. Lurito noted that Dr. Davis had "opined that[, ] given deficits [Respondent] may be able to earn what the typical male earns with a high school education in the low average range, if he can control his anger." Dr. Lurito concluded that, in that case, Respondent "would earn $1, 714, 201." Dr. Lurito reported that, if he was not able to control his anger, Respondent's "earnings would be $1, 186, 732, based on the earnings of males with less than a high school education." As such, Dr. Lurito determined that Respondent "has likely suffered an income loss of $1, 148, 308 or $1, 675, 777 due to his cognitive deficits ($2, 862, 509 - $1, 714, 201[, ] or $1, 186, 732)." And, Dr. Lurito stated that "a lump-sum payment of $1, 148, 308 or $1, 675, 777 needs to be made to [Respondent] to compensate him for the pecuniary loss he has suffered owing to his deficits." Dr. Lurito noted, though, that the lost earnings figures did "not include any medical and medical-related costs that [Respondent] has had to incur to date due to injury, nor [did they] reflect the cost of the medical and medical-related care he may incur in the future." In a letter to Petitioners' counsel dated July 29, 2014, which was both mailed and faxed, Respondent's counsel stated that he had attached Dr. Lurito's report.

         In a motion in limine, [5] Petitioners sought to exclude the reports and testimony of Dr. Davis and Dr. Lurito, contending that Dr. Davis was "not qualified to make the medically based assumptions which form[ed] the core of her opinions[, ] and[, ] therefore, the[] assumptions lack[ed] an adequate factual basis and depend[ed] upon an unreliable methodology." (Cleaned up). Specifically, among other things, Petitioners argued that Dr. Davis lacked an adequate factual basis to offer an opinion as to Respondent's employment capabilities absent lead exposure, stating:

         Despite the fact that Dr. Davis is being offered as a vocational

rehabilitation expert, and not a medical expert, she is, in effect, offering a medical opinion regarding [Respondent]'s alleged pre-injury cognitive ability and earning capacity. Dr. Davis cannot logically make this unsupported assumption (i.e.[, ] that the minor [Respondent] would have had the potential, absent injury, to function at the level of one holding a two[-]year associate[] degree) without possessing, at a bare minimum: (a) detailed medically based knowledge of [Respondent]'s pre-morbid cognitive state prior to the alleged injury; and (b) a medical expert's understanding of the nature and extent of [Respondent]'s present alleged cognitive impairments. In fact, Dr. Davis conceded that she had not even reviewed the report of [Respondent]'s primary medical expert.

         Petitioners requested that "Dr. Davis'[s] report and testimony regarding [Respondent]'s future employability and loss of earning claim [] be excluded." Petitioners asserted that, because "Dr. Lurito's report, opinions[, ] and calculations of [Respondent]'s alleged economic loss" relied on Dr. Davis's opinion, Dr. Lurito's report and testimony should also be excluded.

         On August 28, 2014, Petitioners filed a motion in limine to exclude Dr. Lurito's report and testimony as untimely. According to Petitioners, although Respondent's answers to interrogatories identified Dr. Lurito as a potential economic expert, his answers "failed to provide the substance of Dr. Lurito's opinions[, ]" which Petitioners did not obtain until they received Dr. Lurito's report on August 4, 2014, the date of the pretrial conference. Petitioners contended that, by that date, Respondent's "vocational rehabilitation expert had already been deposed, [Petitioners'] experts had already reached their conclusions and issued [] reports, and the depositions of any experts who had not yet been deposed had been scheduled." Petitioners argued that Dr. Lurito's report was produced after the discovery deadline, in violation of the circuit court's scheduling order, and that they suffered prejudice as a result.

         From September 15 to 19, 2014, the circuit court conducted a jury trial. On the first day of trial, the circuit court heard argument on the various motions in limine, including the motions as to the reports and testimony of Dr. Davis and Dr. Lurito, and denied the motions. As to the motion to exclude Dr. Lurito's report and testimony as untimely, Petitioners' counsel contended that, because Petitioners had not timely received an economic report from Respondent, Petitioners had not designated their own economic expert. The circuit court denied the motion, and ruled that it was not going to deny Respondent "use of the expert when, under the circumstances, it was listed and noted far before the date that we're referring to." The circuit court observed that, although Petitioners received Dr. Lurito's report weeks before trial, Dr. Lurito was listed on Respondent's expert designation, and Petitioners failed to depose Dr. Lurito or request a postponement after they received his report on August 4, 2014. The circuit court, however, offered to permit Petitioners to take the deposition of Dr. Lurito that day and to designate their own economic expert. Petitioners' counsel stated that he would like to take Dr. Lurito's deposition, but he said nothing about designating an economic expert for Petitioners.

         As to the motion in limine to exclude the reports and testimony of Dr. Davis and Dr. Lurito, after hearing brief argument from the parties, the circuit court denied the motion, ruling: "[I]t appears that [Dr. Davis] would be qualified as an expert. She will be allowed to give her opinion as an expert. This area is subject to cross-examination and attack as her opinions become[] a question for the trier of fact, based on the credibility questions raised by opposing counsel."

         At trial, without objection, the circuit court accepted Dr. Davis as an expert "in the area of vocational rehabilitation counseling." Dr. Davis testified that she earned a Ph.D. in rehabilitation counseling, and has been a certified vocational rehabilitation counselor since the late 1970s. Dr. Davis explained that a vocational rehabilitation counselor "works with individuals to help them find employment, generally, or to identify employment or to evaluate them to help them make decisions on employment." Dr. Davis estimated that she has conducted at least 100 vocational evaluations of young adults. Dr. Davis testified that, generally, "the purpose of [an] evaluation is to help to set some idea of what the earning capacity of the person is." According to Dr. Davis, as part of such an evaluation, a vocational rehabilitation counselor assesses an individual's educational background, including whether the individual has "some interest in pursuing further education," as well as "medical records to understand [] the nature and extent of any impairments that the individual may have and to find out how permanent that is." Dr. Davis testified that a vocational rehabilitation counselor also looks at an individual's work history or background. In a case where there is no work history, a vocational rehabilitation counselor would "look [] more at family issues, the social issues, at their maturity, at their school records[, a]nd . . . there might be testing that's already been done, and sometimes psychological reports."

         As to her vocational evaluation of Respondent, Dr. Davis testified that she had met with Respondent and Robinson, and had reviewed Respondent's "Answers to Interrogatories, [Respondent]'s deposition transcript, [Robinson]'s deposition transcript," Dr. Hurwitz's neuropsychological report, hospital records, Baltimore City Public School records, and a report from Petitioners' pediatric neurology expert, Joseph M. Scheller, M.D.

         Relying on Dr. Hurwitz's report, Dr. Davis testified that Respondent has "some neuropsychological problems that are ongoing and have stood in the way of his school progress and will likely be in the way of his vocational progress." Dr. Davis noted that Dr. Hurwitz found that Respondent has problems with executive function, which is "the part of the brain that helps you organize and to multitask and to put things in order." Dr. Davis also observed that Dr. Hurwitz determined that Respondent "has problems with attention[, ]" and that Respondent "can't focus long enough on something to be able to carry through." According to Dr. Davis, Dr. Hurwitz's academic testing demonstrated that Respondent has poor reading comprehension, and that "[h]e can [only] do math at the level for . . . social survival[.]"

         Dr. Davis testified that, in completing a vocational evaluation of an individual who has no work history, like Respondent, it is customary for a vocational rehabilitation counselor to "look at . . . the likely educational attainment of the individual, rather than citing specific jobs that they might do." Examining Respondent's academic records, Dr. Davis explained that Respondent's "academic progress has not been good[, ]" and that his grade point average for tenth grade was 0.17. Dr. Davis observed that Respondent's academic records showed that he "had some problems with behavior, not being able to sit still, not focusing." Over objection, Dr. Davis expressed the opinion that, at the time she wrote her report, she "felt that [Respondent] would get his high school diploma, but he would likely have to do the bridge program, which is an alternative doing projects instead [of] doing the Maryland Achievement Test." Dr. Davis explained that, generally, an individual must pass the High School Assessments "in order to get their high school diploma," and, if an individual cannot "make the score, then they can apply to do . . . a bridge project in whatever subject they're weak in." According to Dr. Davis, Respondent had taken the High School Assessments, "[b]ut he had not quite made . . . passing scores at that point in any of them." Dr. Davis testified that, thus, Respondent may be able to complete a bridge project to graduate.

         Dr. Davis testified to a reasonable degree of vocational probability that Respondent would not have the academic and intellectual competency of a high school graduate. Dr. Davis explained that Respondent "will be in unskilled or low-level semi-skilled jobs[, ]" and would have the earning capacity of "someone with less than a 12th grade education[.]" Dr. Davis testified that Respondent's issues with executive function, focus, and anger would be problematic for his employability, "even in the most simple jobs[.]"

         Respondent's counsel asked Dr. Davis whether she had "an opinion to a reasonable degree of vocational probability as to what [Respondent]'s earnings would have been absent his cognitive deficits, [what] his earning capacity would have been absent his cognitive deficits[.]" Petitioners' counsel objected, and the circuit court conducted a bench conference. Petitioners' counsel contended that Dr. Davis was being asked to give a medical opinion even though she is not a medical doctor, and that such an opinion would be "tensely speculative." The circuit court sustained the objection as to the form of the question, but ruled that "the basis for the question [was] properly laid." The circuit court explained:

As she relies on Dr. Hurwitz and others as to their testing, she may rely on medical information and their results. She may rely on statistics and data given to her by other sources and governmental agencies. In so doing, is that her expertise is applying that information to the facts of the individual presented before her.
Then in terms, she's allowed to give her opinion as to that data, information, in her field. She has been, in fact, qualified as an[] expert, and she's allowed to utilize the information referred to. It is not that she's a medical doctor.
She is, however, expected and as an expert to review information and take into consideration that which would be from medical doctors in terms of her opinion and apply it to her interpretation.
So let's not misunderstand is that the fact she's not a doctor does not allow her to take into consideration is that Johnny has [a] heart problem and cannot be a fullback from the Ravens, as her opinion. That is not her being a doctor. That is her interpretation of the data and information and applying it to the person before her.

         The circuit court stated that the "credibility and the weight that should be given [to Dr. Davis's opinion] is a ...


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