Circumstantial Evidence in Maryland Lead Paint Cases

Christopher M. McNally, Esq.Bodie, Dolina, Hobbs, Friddell, & Grenzer, P.C.

Brian S. Brown, Esq.Saul E. Kerpelman & Associates, P.A.

Circumstantial Evidence in Maryland Lead Paint Cases

Threshold Elements

Relevant Law

Application

Practical Tips

Plaintiffs’ Burden of Proof in a Lead Paint Case

…the Plaintiff(s) bear the burden of proving to a reasonable degree of scientific/medical probability that they were injuriously exposed to deteriorated paint (a statutory violation of the Baltimore City Housing Code) that was lead-containing while residing and/or visiting the property at issue and that as a consequence of this exposure to lead, Plaintiff(s) suffered non-economic losses (pain/suffering/mental anguish) and/or economic losses (lost earnings potential)…

Elements of Owner/Operator Liability

Chipping, flaking, deteriorated lead-based paint in violation of the Baltimore City Housing Code

Failure to Inspect at Landlord’s Peril (Brooks v. Lewin Realty)

Other theories of negligence

Non-Delegable Duty to Maintain Property In Accordance with the Housing Code (Forrest v. P&L Real Estate, 134 Md. App. 371 (2000)).

Plaintiffs’ Burden of proof: preponderance of the evidence (51% more likely than not)

Note: lead dust, in and of itself, is not a violation of the Baltimore City Housing Code

Threshold Elements

Generally, to state a claim for negligence, a party must show: (1) that defendant was under a duty to protect the plaintiff from

injury; (2) that the defendant breached that duty; (3) that the plaintiff suffered actual injury; and (4) that the loss or injury proximately resulted from the

defendant’s breach of that injury.”

Hamilton v. Kirson, 439 Md. 501 (2014).

Direct vs. Circumstantial Evidence:Maryland Pattern Jury Instruction 1:8

There are two types of evidence — direct and circumstantial.

Direct Evidence Firsthand knowledge of a matter

Circumstantial Evidence Indirect and is proof of a chain of facts and circumstances

that point to the existence of certain facts.

Note: The law makes no distinction between the weight to be given to either type of evidence. No greater degree of certainty is required of circumstantial evidence than of direct evidence. In reaching a verdict, you should weigh all of the evidence presented, whether direct or circumstantial

Situations Where Direct Evidence of Lead May Be Impossible?

Properties can be demolished;

Access to properties can be limited due to hazardous conditions (fire, etc.)

Renovation/abatement In some instances

Current owners/counsel may limit access to the property.

Practical Considerations for Using Circumstantial Evidence

“By Failing to Prepare, You Are Preparing to Fail.”-Benjamin Franklin

PREPARATION is key!

Be sure to come tomorrow morning - CLE credit-

Circumstantial Evidence of Lead at a Property: It Started With Dow….Dow v. L & R Properties, 144 Md. App. 67 (2002)

Plaintiff introduced evidence that the home had been built prior to 1950 and thus more likely than not had lead paint;

That there was chipping and peeling paint; That the child spent most of her time in the home while she lived

there and did not have contact with other sources of lead during that period; and

That the child developed lead poisoning. Trial court granted summary judgment for Defendant, but the

Court of Special Appeals reversed, finding that Plaintiff could use circumstantial evidence creating the reasonable inference of the existence of lead-based paint at the property

What Specific Circumstantial Evidence of Lead Sufficed Under the Dow Holding

Age of the property – in Dow, the home was built in 1935 (**Note – Dow did specifically state, in dicta, that the age of the property alone was not sufficient to establish circumstantial evidence of lead**)

Plaintiff’s elevated blood lead levels

Residency

Testimony establishing deteriorated painted surfaces

Plaintiff spent virtually all of her time at the subject property

It Started With Dow….Dow v. L & R Properties, 144 Md. App. 67 (2002)

Plaintiffs’ Practice Tip:You do not need direct evidence in order to show that a property contained lead-based paint only if the Plaintiff did not spend substantial time elsewhere or was exposed to other sources of lead.

Defense Practice Tip:Be able to produce evidence showing that the alleged exposure was due to environmental or other property-related sources (other properties of visitation or residency).

Case #2: An Expert’s Factual Basis for Source of Exposure And Impact of Other Properties

Taylor v. Fishkind, 209 Md. App. 121 (2012)

Plaintiff alleged that she was injuriously exposed to lead-based paint from eating paint chips

Basic timeline 10/31/91: Plaintiff is residing at 2320 Riggs Ave. – records EBLL 10 2/93 – Plaintiff moves from 2320 Riggs Ave to Defendant property

1025 N. Carrollton Ave. 4/15/93: Plaintiff records EBLL of 17 (2 months after moving)

1025 N. Carrolton Ave

Elements of Court’s Decision as to Why Circumstantial Evidence Was Not Sufficient

In Taylor to Prove Presence of LeadAge of the house alone is insufficient (Dow, supra and Davis,

117 Md. App. At 393)

Absence of evidence of gut rehabilitation cannot affirmatively establish circumstantial evidence of lead for reasons in bullet #1

Exterior only-testing insufficient to infer evidence of lead on the interior

**Plaintiffs’ substantial factor causation expert (in this case medical) conceded that Plaintiff’s EBLL of 17, recorded 2 months after moving to the subject property, was not proof that Plaintiff was exposed to lead at the property

Expert Lacked Requisite Factual Basis for Opinion (Taylor, 207 Md. App. 121 at 145…)

An Expert’s Factual Basis for Source of ExposureTaylor v. Fishkind, 209 Md. App. 121 (2012)

TAKE-AWAY: An expert’s testimony as to injury at the property must be supported by a factual basis; mere testimony about the age of the property, in and of itself, will NOT suffice.

Application: Factors used in evaluating the admissibility of an expert’s testimony on source include: the expert’s ability to account for other sources.

The key is preparation of your experts…(both sides)

Prepare Your Experts!!!

Failing to Prepare is Preparing to Fail…

An Expert’s Factual Basis for Source of ExposureTaylor v. Fishkind, 209 Md. App. 121 (2012)

Plaintiffs’ Practice Tip:Do not rely solely on information based on the age of the dwelling and/or existence of exterior-only XRF Testing…beware of trends in lead levels as indicative of exposure or lack thereof – prior properties matter!! Be sure experts account for and truthfully distinguish other sources

Defense Practice Tip:Concentrate efforts on rebutting circumstantial arguments by focusing on evidence of exposure at other properties or other reasonably identified sources…proof of circumstantial evidence for Plaintiffs becomes more difficult with more sources than just subject property

The Three Links of Circumstantial Evidence

Link 3: From the blood lead levels to the

injuries

Link 2: From the exposure at subject

property to the elevated blood lead levels

Link 1: From the property to the exposure

Link #1: SourceRoss v. Housing Authority, 430 Md. 648 (2012)

Plaintiff alleged that she was injuriously exposed to lead paint and proffered expert testimony from a doctor as to source

The defendant alleged Plaintiff’s expert lacked technical knowledge regarding risk assessment no formal training in quantifying lead hazards – CSA Agreed and upheld exclusion of expert’s source opinion on these grounds

The defendant alleged Plaintiff’s expert expert disregarded evidence of other sources of lead in child’s home environment

The Court of Appeals also ruled that the Plaintiff need not produce expert testimony that subject property was source/substantial contributing factor to exposure

Trial court granted summary judgment for Defendant, and the Court of Appeals did the following: (1) affirmed the trial court’s exclusion of the medical doctor’s “source” opinion (2) allowing injury opinion – no expert is needed for source in a circumstantial case

Why Was Medical Expert Found to Be Not Qualified to Opine as to Source?

At motions hearing expert “was not capable of definitively determining source of lead exposure.”

Expert agreed she was not a certified risk assessor

Expert admitted she did not follow her own methodology in her pediatric practice in her forensic work (which included more expansive questionnaire about sources in addition to CPF paint)

She testified “if there is lead-based paint inside a house, I will consider it to be a contributing cause to elevated blood lead levels…”

Court found that this expert was not qualified as an expert “by knowledge, skill, experience, training or education” and “lacked a sufficient factual basis to support the expert testimony” by failing to explain why other potential identified sources in evidence were not substantial factors

A Series of LinksRoss v. Housing Authority, 430 Md. 648 (2012)

TAKE-AWAY: Causation is conceived of 3 links: (1) Link between defendant’s

property and plaintiff’s exposure to lead;

(2) Link between the specific exposure to plaintiff’s elevated blood lead levels; and

(3) Link between the blood lead levels to injuries allegedly suffered by the plaintiff

Application: Where it is undisputed that there are multiple reasonably probable identified sources of exposure, Plaintiff must be able to exclude those sources

A Series of LinksRoss v. Housing Authority, 430 Md. 648 (2012)

Plaintiffs’ Practice Tip:Plaintiff doesn’t need an expert to exclude other reasonably probably sources but best practice says you should…think creatively about whether identified sources are reasonably probable…

Defense Practice Tip:In dealing with multiple sources of exposure, defense experts should be prepared to show that subject property you are defending was not a substantial contributing factor of the alleged injuries

Where it is undisputed that there are multiple reasonably probable identified sources of exposure, Plaintiff’s expert must be able to exclude those sources

The Plaintiff’s Burden to Exclude Other Sources in Circumstantial Cases - West and

Hamilton

West v. Rochkind

Hamilton v. Kirson

…”that which is possible…”West v. Rochkind, 212 Md. App. 164 (2013)

Plaintiff alleged that he was injuriously exposed to lead-based paint while at insured property

There was disputed testimony concerning Plaintiff’s residential history – therefore Plaintiff argued there was a dispute of fact

Trial court granted summary judgment for Defendant, and Court of Appeals affirmed because: Expert failed to properly consider rule out other reasonably possible

sources of lead exposure (Plaintiff had lived in multiple properties and had what the Court described as a “chaotic residential history.”)

Plaintiff could not show that Defendant’s property was the only possible source of exposure.

Court’s Opinion Re: Circumstantial Evidence – Process of Elimination Must Include All

Possible Sources (West)

Which House? Satisfying Link 1West v. Rochkind, 212 Md. App. 164 (2013)

TAKE-AWAY: Presence of lead paint at a particular site can only be inferred through the process of elimination from: (1) the effect of lead poisoning on plaintiff and (2) the fact that the site in question was the exclusive source of exposure

Application: alleges residency in multiple properties within a time frame, he must use the process of elimination to satisfy the first link of causation.

Which House? Satisfying Link 1West v. Rochkind, 212 Md. App. 164 (2013)

Plaintiffs’ Practice Tip:When a plaintiff alleges multiple residences during time frame of exposure, source expert must use the process of elimination to show that the property in question was the only source of exposure.

Defense Practice Tip:In a case involving multiple residencies during time frame of exposure, source expert should be able to show that the property in question was not the exclusive possible source of exposure.

The “Probable” Source of Exposure: Satisfying Link 1

Hamilton v. Kirson, 439 Md. 501 (2013) The birth of probable!!!

In order to prevail on a circumstantial evidence of lead argument, Plaintiffs must put forth a theory of causation and sufficient factual supporting evidence to permit a jury to draw the necessary logical inferences of the presence of lead-based paint on the premises at the relevant times

Plaintiffs provided evidence of a lead test that was only done on the exterior of the homes

Trial court granted summary judgment for Defendants, and appellate court affirmed because: Plaintiffs failed to connect their elevated blood lead levels to specific

properties Experts relied on a lead test that was done only on the exterior of the home

Modified the decision in West

Hamilton/Kierson – Circumstantial Evidence Must Be Probable

Hamilton/Kirson also Reinforced the “No Other Logical Source” Rule

Ways the Hamilton/Kierson Court Suggests that Other “Reasonably Probable” inferences of lead can be proven

The “Middle Rowhouse” Theory

The Source of Exposure: Satisfying Link 1Hamilton v. Kirson, 439 Md. 501 (2013)

TAKE-AWAY: In order to prevail under Dow, a plaintiff must rule out other reasonably probable (AS OPPOSED TO POSSIBLE) sources of lead exposure in order to prove that it is probable (more likely than not – 51%) that the property in question contained lead-based paint.

Application: An expert (if the Plaintiff decides to use one) must be able to eliminate other reasonably probable identified sources of lead exposure; reliance on an exterior lead test is NOT sufficient.

Question: Who has to identify the alternate sources????

The Source of Exposure: Satisfying Link 1Hamilton v. Kirson, 439 Md. 501 (2013)

Plaintiffs’ Practice Tip:Do not rely solely on exterior lead tests; however, exterior tests may be used in combination with other evidence to make a circumstantial case. In addition, best practice would be to take the offense on other sources; the “middle rowhouse theory” not exclusive way to prove circumstantially prove

Defense Practice Tip:Detailed preparation encompasses an expert’s ability to show that property in question was not a probable source of exposure.

Who Bears the Burden? Satisfying Link 1Barr v. Rochkind, Maryland Court of Special Appeals

No. 1152 (2015)

Plaintiff alleged that she was injuriously exposed to lead paint at an insured property;

Cite Court re: burden of production…

During the time span of Plaintiff’s elevated blood lead levels, she had lived in three different houses;

Plaintiff asserted that the insured property was the source of her exposure because it was built before 1950; the age of the house was Plaintiff’s primary basis for liability

Trial court granted summary judgment for Defendant, and appellate court affirmed because: Plaintiff did not meet her burden in ruling out other reasonably identified sources of

lead An expert cannot base a conclusion on source solely on the age of the property

Barr – Burden Rests with Plaintiffs – But…what does that mean practically???

What’s the Problem with Barr???Don’t you have to identify

alternate sources of exposure in order to rule them out???

What if Plaintiffs fail to produce evidence – how will Defendants know about other sources???

Who Bears the Burden? Satisfying Link 1Barr v. Rochkind, Maryland Court of Special

Appeals No. 1152 (2015)

Plaintiffs’ Practice Tip:Plaintiff bears the burden of ruling out other reasonably probable identified sources of exposure – this should be at the forefront of aggressive case workup…

Defense Practice Tip:Although a defendant has no obligation to identify other sources, defense experts should be prepared to show that other sources of lead could reasonably have caused the alleged injury.

Connecting the Dots: Satisfying Link 2Myishia Smith v. Rowhouses, Inc.,

Maryland Court of Special Appeals No. 993, September Term (2015)

Caution: This Case is on Cert. to the Court of Appeals….

Plaintiff alleged that she was injuriously exposed to lead-based paint at insured property;

Plaintiff identified 2 other properties that she visited frequently, but established that those did not have deteriorating paint;

Trial court granted summary judgment for Defendant, but appellate court reversed because: Plaintiff ruled out other reasonably probable sources of exposure There was sufficient circumstantial evidence to show a link between

the insured property and plaintiff’s elevated blood lead levels

Connecting the Dots: Satisfying Link 2Myishia Smith v. Rowhouses, Inc.,

Maryland Court of Special Appeals No. 993, 2015

Plaintiffs’ Practice Tip:When there are other reasonably probable identified properties, she can rule out other sources by providing evidence regarding the absence of deteriorated paint and/or the age of the property

Defense Practice Tip:Defense experts should look for other reasonably probable identified sources of exposure, such as environmental hazards or other properties.

Other Sources of Exposure

Lead dust (other properties, legacy)

Soil lead

Other environmental hazards

Other properties

Day care centers

Railroads

Airports

The Final Link: Satisfying Link 3Roy v. Dackman, Maryland Court of Appeals

No. 6 (2015)

NOTE: Very recent decision; opinion filed October 16, 2015

Plaintiff alleged that he was injuriously exposed to lead paint;

To show causation for exposure, he offers testimony of doctor who did not have specialized knowledge in childhood lead poisoning;

Trial court grants summary judgment for Defendant, intermediate appellate court affirms, but Court of Appeals reversed because: Doctor conducted extensive research on effects of lead poisoning and

reviewed report of a pediatric neurologist he prepared thoroughly before offering an opinion

Court holds that doctor could offer an opinion on causation

The Final Link: Satisfying Link 3Roy v. Dackman, Maryland Court of Appeals

No. 6 (2015)

However, the Court held that the doctor could still not offer an opinion on source because he relied on assumptions about the age of the home and used that as the primary basis for his source conclusion

Expert does not need to be a certified lead risk assessor to offer a qualified opinion on source (i.e. link from the property to the exposure)

But, a source opinion cannot be based solely on assessment of risks and assumption of presence of lead; expert must be able to rule out environmental and other sources

Mere fact that a person offered as a witness has not been personally involved in the activity does not as such destroy his competency as a medical expert…

No case has held that medical experts, per se, may not testify as to sources of exposure – each expert must be evaluated on his or her own merits and qualifications

Wantz v. Afzal 197 Md. App. 675 (2011)

The Final Link: Satisfying Link 3Roy v. Dackman, Maryland Court of Appeals

No. 6, September Term (2015)

TAKE-AWAY: A medical causation expert need not have specialized knowledge concerning childhood lead poisoning; an expert can strengthen his qualifications through extensive research

Application: Simply because an expert basis his/her opinion solely based on medical literature does not justify the exclusion of that expert.

Roy strengthens arguments for medical causation experts on behalf of plaintiffs and defendants

The Final Link: Satisfying Link 3Roy v. Dackman, Maryland Court of Appeals

No. 6, September Term (2015)

Plaintiffs’ Practice Tip:Assume that defense experts will aggressively develop arguments about a child’s environment…seek experts with as much direct experience with lead and/or knowledge of lead literature

Defense Practice Tip:Develop the best possible arguments about a child’s environment….seek experts with as much direct experience with lead and/or knowledge of lead literature

Practice Tips:For Plaintiffs’ Attorneys

• You do not need to present direct evidence of chipping, flaking, or peeling lead-based paint.

• Do not rely solely on information based on the age of the dwelling.

• When there are multiple probable sources of exposure, counsel should be able to show that the property in question was a substantial contributing factor to alleged injuries.

• In dealing with multiple residences during the same time frame, the Plaintiff must use the process of elimination.

• Plaintiff bears burden of ruling out other reasonably probable sources.

Practice Tips:For Plaintiffs’ Attorneys

Do not rely solely on exterior lead tests.

Plaintiff bears the burden of ruling out other reasonably probable identified sources of exposure.

When a plaintiff has identified multiple properties, he can rule out other sources by providing evidence on the condition of other properties.

Assume that defense experts will aggressively develop arguments about a child’s environment.

No expert is needed for source (but it is strongly recommended)!!

Practice Tips:For Defense Attorneys

• Be able to produce circumstantial evidence showing that the alleged exposure was due to environmental or other sources.

• Ensure that your experts are able to rule out other reasonably identified sources of exposure.

• In dealing with multiple sources of exposure, defense experts should be prepared to show that property in question was not a substantial contributing factor of the injuries.

• In a case involving multiple residencies during same time frame, be able to show that the property was not the exclusive possible source of exposure.

Practice Tips:For Defense Attorneys

Detailed preparation encompasses an expert’s ability to show that the property in question was not a probable source of exposure.

Although a defendant has no obligation to identify other sources, experts should strive to show that other sources of lead could reasonably have contributed to injury.

Defense experts should look for other probable sources of exposure, such as environmental hazards or other properties.

Develop the best possible arguments about a child’s environment.

Thank you/Questions!!

Christopher M. McNally, Esq.Bodie, Dolina, Hobbs, Friddell, & Grenzer, P.C.Brian S. Brown, Esq.Saul E. Kerpelman & Associates, P.A.