McDONALD, J.
Unlike the bullet or the misplaced banana peel, the effect of toxic substances on the body is often subtle and slow, leaving cause uncertain. This gap of understanding is often bridged through science, probability, and inference from provable facts. As a result, expert testimony has become central to toxic tort litigation.
This case arises out of an attempt to use expert opinion testimony of a pediatrician to establish the defendant's building as the source of the plaintiff's lead exposure and elevated blood lead levels. We hold that the Circuit Court did not abuse its discretion when it excluded the proposed expert testimony. However, the exclusion of that testimony was not necessarily a fatal blow to the plaintiff's case and we remand for reconsideration of the court's award of summary judgment in favor of the defendant.
The present dispute arises out of the alleged exposure of a woman to lead paint at the homes in which she spent her childhood. The Petitioner, Cherie Ross, was born on October 6, 1990. From that time until June 1992, Ms. Ross and her mother, Patricia A. Shandes, lived in Baltimore City at 934 N. Gilmor Street ("the Gilmor Street home"), then owned by Bernard Dackman. From June 1992 through at least 1996, they lived at 546 N. Payson Street ("the Payson Street home"), also in Baltimore City and owned by Respondent Housing Authority of Baltimore City ("HABC").
On May 7, 2008, Ms. Ross, by her mother, sued Mr. Dackman and HABC in the Circuit Court for Baltimore City, alleging that she had sustained permanent injuries from lead paint exposure at both properties. Specifically, Ms. Ross alleged that she had suffered permanent brain damage "resulting in developmental and behavioral injuries." The complaint included claims for negligence and unfair trade practices under the Consumer Protection Act as to each defendant. The claims against Mr. Dackman were settled shortly before the scheduled trial date in September 2010.
Shortly before the scheduled trial date, the Circuit Court took up a number of motions in limine, including a defense motion to exclude expert testimony concerning the source of Ms. Ross' lead exposure and ingestion. After hearing testimony from the proposed expert, the Circuit Court rendered a bench opinion granting HABC's motion to exclude that portion of the expert's testimony. HABC's counsel then made an oral motion for summary judgment, arguing that the exclusion of the expert testimony doomed the plaintiff's case. After brief argument on the oral motion, the Circuit Court granted summary judgment in favor of HABC.
Ms. Ross appealed the exclusion of the expert testimony and the grant of summary judgment. In an unreported opinion, the Court of Special Appeals affirmed the ruling on expert testimony, but declined to consider further whether summary judgment was appropriate on the ground that Ms. Ross had not separately challenged that ruling. Ms. Ross petitioned for certiorari, which we granted as to both issues.
In the absence of a trial or formal written submissions by the parties concerning HABC's summary judgment motion, we must glean the relevant facts from the hearing testimony and the materials submitted in connection with the motion to exclude expert testimony — to which the grant of summary judgment was closely linked by both the judge and the parties.
The evidence relied upon by the plaintiff to support the expert opinion and avoid summary judgment falls into four major categories: (a) results of tests of Ms. Ross' childhood blood lead levels; (b) results of tests to detect lead paint and lead dust in the two homes in which Ms. Ross resided; (c) discovery materials describing Ms. Ross' childhood — excerpted from interrogatory answers and the deposition testimony of Ms. Ross' mother; and (d) testimony of the proffered expert, both in deposition and at the motions hearing.
Reports by the Maryland Department of Health and Mental Hygiene indicate that, while Ms. Ross lived at the Gilmor Street home, her blood lead levels tested as follows:
Date Taken3 Blood Lead Level4 10/10/91 10μg/dL 1/9/92 8μg/dL 4/28/92 10μg/dL
Subsequent reports indicate that, while Ms. Ross lived at the HABC Payson Street home, her blood lead levels tested as follows:
Date Taken Blood Lead Level 11/30/92 10μg/dL 4/6/93 11μg/dL 8/31/93 14μg/dL 11/9/93 10μg/dL 12/16/94 9μg/dL 12/20/95 7μg/dL 3/25/96 7μg/dL
Ms. Ross relied on three reports from lead paint inspections performed in the HABC Payson Street home. Each indicated the presence of lead in certain parts of the house, although most of the test results were negative.
The first lead inspection report, dated February 20, 1992, was from an inspection by a company called Martel and is identified in the record as a "Post Abatement Lead Swipe Analysis Report." That report showed test results for numerous locations in the house. The only swipe taken that indicated "high value" for lead was from an exterior window well of the living room. That reading measured 1,500 μg/SqFt.
The second lead inspection report, dated February 22, 1994, was from an inspection by a company called Mircon Inc. That report indicated that on the front exterior
The third lead inspection report, from a 2009 environmental survey by a company called ARC, detected lead on a stair-riser on an interior staircase.
At her deposition on October 15, 2009, Ms. Shandes testified to the following:
When Ms. Ross was born, Ms. Shandes resided at the Gilmor Street home. According to Ms. Shandes, her daughter did not visit any other properties or attend day care while they lived at the Gilmor Street address. Her daughter would crawl around and sit on the steps while living at the property. At the house, Ms. Shandes noticed flaking paint on the front porch and on the inside of the house around the windows and trim.
When Ms. Shandes moved with her daughter to the HABC Payson Street home, the property was in excellent condition except for the windows, which she described as "rotten" with "paint peeling." As at the Gilmor Street home, Ms. Shandes and her daughter sat outside on the steps of the Payson Street home. The outside steps were close to the flaking, peeling, and chipping paint around the windows.
As a child, Ms. Ross never visited a friend's house because "she had a problem. She didn't even start talking like a regular child would talk. She didn't start talking until she was almost four years old." After Ms. Ross began school, she spent time at her grandmother's house — also an HABC-owned property — three or four times a week. According to Ms. Shandes, her mother's property also had "stuff falling where it's painted at. Around the window frames falling and stuff."
Finally, the answers to interrogatories filed on behalf of Ms. Ross stated that, as a young baby, she would put non-food items in her mouth — a behavior sometimes referred to as "pica."
Counsel for Ms. Ross indicated that he intended to call several experts at trial.
Excerpts of Dr. Blackwell-White's deposition testimony were submitted to the court and she also testified in person at the hearing.
In her deposition testimony, Dr. Blackwell-White explained that, when presented with a child in her pediatric practice with an elevated blood lead level, she would question the child's parents about the age, location, and condition of their residence and other properties which the child visited. She indicated that chipping and peeling paint and lead dust in a child's residence were likely sources of lead exposure, although she conceded that there could be other sources, such as other houses in the neighborhood, toys, and environmental exposure such as automobile exhaust. In some instances she would contact the Baltimore City Health Department, which would then try to "more clearly identify" the source of the child's condition and, if traced to lead paint in the house, order the owner to remedy the condition.
At the motions hearing, Dr. Blackwell-White testified that she had an extensive practice identifying and treating children suffering from lead poisoning. She explained that, nonetheless, she was not capable of definitively determining the source of lead exposure. Rather, she was merely assessing risks. At the same time, she agreed that she was not a certified lead risk assessor.
When questioned as to her methodology, Dr. Blackwell-White testified that she used a questionnaire with a patient to assess risk for lead exposure. The questionnaire was derived from recommendations by the federal Centers for Disease Control ("CDC") and the American Academy of Pediatrics.
She further testified that scientific literature she had consulted indicates that, when a child has an elevated lead level, the most likely source of that lead is the property where the child resides: "If there's peeling, flaking paint in an old house, that is the most likely source of exposure for a child with elevated lead levels." She explained that this was because "they're crawling and walking all over that property, getting their fingertips full of lead. And even if you do [not] see them gnawing at the windowsill or with paint chips in their mouth, they're picking up lead dust on their little sticky fingers, and they're putting them in their mouths because that's what children do."
Dr. Blackwell-White stated that she relied on numerous academic and governmental
When asked what factors she takes into account when rendering an opinion in litigation as to the source of lead exposure for a child, she explained that "it's a little different from my clinical practice" in that she relies largely on documents provided to her and does not speak to the child or parents. She stated:
As to the significance of changes in a child's blood lead levels, Dr. Blackwell-White explained: "The higher the lead level the greater the exposure. If the lead levels fall it can either mean that the source of the lead has been removed or that the child has outgrown a lot of mouthing activity.... Sometimes the fall too can go towards season. Lead levels tend to be higher in the summer months, lower in the winter months."
When asked about the significance of outside exposure, she explained: "I consider outside exposure because children go outside, and if there's lead dust flaking from the outside of the residence it can be, number one, tracked in on shoes to the inside where children can get to it. And then again in the summer months windows go up and the dust blows in." She further emphasized that the child's ability to have access to the areas that might be deteriorated is a significant factor.
With respect to this case, Dr. Blackwell-White said that it was her opinion that the HABC Payson Street home was "the source" of the elevated blood lead levels of Ms. Ross during the period from March 1992 through 1994. Dr. Blackwell-White explained that her opinion was based on the following factors: (1) the increase in Ms. Ross' elevated blood lead levels when she moved from the previous address to the HABC Payson Street home; (2) the age and condition of the property as well as the lead inspection tests from the Payson Street home, which Dr. Blackwell-White described as indicating the presence of lead (although she conceded that some of the test levels on which she relied did not meet HUD thresholds for lead hazard); (3) the access Ms. Ross had, as a child, to the areas suspected to contain lead paint dust inside the house; (4) the possibility that lead dust would escape into the living area (a) from the exterior window frame
On cross-examination, Dr. Blackwell-White was asked: "Is it your opinion that if there is intact lead-based paint inside the house it is automatically considered to be the contributing cause of elevated blood lead levels?" She replied: "If there is lead-based paint inside a house, I will consider it to be a contributing cause to elevated lead levels." She elaborated that she would assume the home to be the most probable source of elevated blood lead levels "until proven otherwise," particularly if the house was built before 1970.
While Dr. Blackwell-White's testimony had covered a range of subjects related to lead poisoning in children, the key point was her opinion that the HABC Payson Street home was the source of Ms. Ross' exposure to lead and a resulting elevation in her blood lead level during the period from 1992 to 1994. In moving to exclude that opinion, HABC initially asserted that such opinion testimony was not admissible under the Frye/Reed standard
The court concluded that the proffered expert testimony on causation failed to satisfy the first and third prongs of the rule. In particular, the Circuit Court concluded that Dr. Blackwell-White lacked the qualifications to give that opinion.
In the course of its ruling, the court noted that Dr. Blackwell-White was qualified to testify as an expert in pediatrics and childhood lead-poisoning. This, however, the court found to be distinct from the question of whether Dr. Blackwell-White could offer an opinion as to the source of Ms. Ross' lead exposure and elevated blood levels, which the court referred to as an opinion on "substantial contributing factor" or "causation." Thus, as best we can determine from the record, the only portion of Dr. Blackwell-White's testimony that was excluded was her opinion that the Payson Street home was the source of Ms. Ross's lead exposure during the relevant time period that led to enhanced blood lead levels.
Following the grant of the motion to exclude Dr. Blackwell-White's opinion, counsel for HABC moved for summary judgment. The Circuit Court granted the motion, reasoning that, "there being an absence of testimony with respect to causation in this matter and no genuine dispute of material facts" relating to causation, the defendant was entitled to judgment as a matter of law.
The first question before us is whether the Circuit Court acted within its discretion in excluding Dr. Blackwell-White's opinion as to the source of Ms. Ross' lead exposure. See Rollins v. State, 392 Md. 455, 500, 897 A.2d 821 (2006) (decision to admit or exclude expert opinion testimony under Maryland Rule 5-702 reviewed under abuse of discretion standard).
We agree with the Court of Special Appeals that the Circuit Court acted within its discretion when it determined that Dr. Blackwell-White lacked qualifications to provide an expert opinion as to "the source" of lead exposure that resulted in Ms. Ross' elevated lead levels.
Most importantly, the premise for admission of an expert opinion under Rule 5-702 is a determination by the trial court that the opinion "will assist the trier of fact to understand the evidence or to determine a fact in issue." In order for an opinion to assist a trier of fact, the trier of fact must be able to evaluate the reasoning underlying that opinion. E.g., Mid-State Fertilizer Co. v. Exchange Nat'l Bank, 877 F.2d 1333, 1339-40 (7th Cir.1989). Dr. Blackwell-White did not explain adequately how she reached the conclusion that the Payson Street home was "the source" of the lead exposure that resulted in Ms. Ross' elevated blood lead levels. Merely reciting certain information that she took into account and then stating the ultimate conclusion without explaining how and by what expert method that information was weighed did not provide a basis by which the trier of fact could evaluate that opinion. Indeed, she testified that, in her own practice, she simply identified risks and relied upon the Health Department to find the actual source of a child's exposure.
Given the uncontroverted evidence that there were various other sources of lead exposure in Ms. Ross' environment, including her prior residence, and that she came to the Payson Street home with already elevated blood lead levels, there were likely multiple causes of her elevated blood lead levels. For example, Ms. Ross' mother testified that the house next door had considerable flaking exterior paint, some of which was visible on the ground around the Payson Street home. Each of those causes presumably contributed a certain amount of lead to Ms. Ross's blood. The real question for the fact-finder is how much exposure to lead at the Payson Street home contributed to Ms. Ross's blood lead levels over the pertinent time period — and ultimately to the developmental and behavioral injuries alleged in the complaint. Dr. Blackwell-White testified at one point that she was merely identifying "potential risk" and could not make any statement as to causation with certainty. In that context, Dr. Blackwell-White's ultimate conclusion identifying the Payson Street home as "the source" was as likely to confuse as to assist a jury.
In those circumstances, the qualification of the witness as an expert would endow such an opinion — which otherwise appears difficult to distinguish from a lay opinion — with the imprimatur of court-endorsed expert status. It may be perfectly reasonable to conclude from the evidence that the Payson Street home was a source of lead exposure. But just because a conclusion is reasonable does not mean that a court must permit an expert to make it. "[T]he trial judge ought to insist that a proffered expert bring to the jury more than the lawyers can offer in argument." In re Air Crash Disaster at New Orleans, 795 F.2d 1230, 1233 (5th Cir.1986). Even where an expert may be better able to articulate an explanation that does not require expertise, the utility of the testimony may be outweighed by the risk that a jury would give the opinion undue weight because it was stated by a court-qualified expert. In such circumstances, a trial court is well within its discretion in concluding that the testimony of the expert would not assist the trier of fact.
HABC argues that Ms. Ross agreed that she needed Dr. Blackwell-White's opinion testimony to survive summary judgment and thus waived appellate review of the court's ruling in light of the absence of that testimony. Although we agree that Ms. Ross could have better developed her alternative argument in the trial and intermediate appellate courts, she did not waive the issue.
Following the Circuit Court's ruling as to Dr. Blackwell-White's testimony, HABC orally moved for summary judgment. Counsel for Ms. Ross stated that, while he was under the impression that Maryland law required expert testimony as to causation in order to proceed to a jury in a case such as this one, he was not conceding that summary judgment was warranted. The Circuit Court then stated that, although there might well remain disputed issues of material fact in the case, the exclusion of Dr. Blackwell-White's opinion on the source of lead exposure dealt a fatal blow to the plaintiff's proof of causation. Accordingly, the court awarded summary judgment in favor of the defendant.
In her brief before the Court of Special Appeals, Ms. Ross listed the propriety of summary judgment as one of the "issues presented," but did not specifically brief the issue separately from the question of admissibility of the expert opinion. The Court of Special Appeals reasonably concluded that Ms. Ross was not challenging the grant of summary judgment apart from her argument to reverse the Circuit Court's ruling on the proffered expert opinion testimony. Accordingly, the intermediate appellate court accepted the implicit concession and did not separately analyze the grant of summary judgment. In her petition for certiorari, Ms. Ross, for the first time, explicitly argued that summary judgment was inappropriate even if the exclusion of Dr. Blackwell-White's testimony concerning causation is affirmed.
Maryland Rule 8-131 provides that appellate review is generally limited to those issues that were "raised in or decided by the trial court." While this rule generally precludes a party from asserting new grounds on appeal,
A trial court may grant summary judgment if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Maryland Rule 2-501(f). The court is to consider the record in the light most favorable to the nonmoving party and construe any reasonable inferences that may be drawn from the facts against the moving party. Myers v. Kayhoe, 391 Md. 188, 203, 892 A.2d 520 (2006). Accordingly, because the trial court's decision turns on a question of law, not a dispute of fact, an appellate court is to review whether the trial court was legally correct. Piscatelli v. Smith, 424 Md. 294, 305, 35 A.3d 1140 (2012).
In conducting this review, an appellate court is confined to the basis relied on by the trial court. Sadler v. Dimensions Healthcare Corp., 378 Md. 509, 536, 836 A.2d 655 (2003). In this case, the basis of the Circuit Court's decision is clear. The Circuit Court determined that, "there being an absence of testimony with respect to causation" as a result of the exclusion of Dr. Blackwell-White's opinion on source, HABC was entitled to judgment as a matter of law.
This Court has not previously undertaken an examination of causation in the context of a case involving injuries allegedly due to lead paint exposure. In Bartholomee v. Casey, 103 Md.App. 34, 56, 651 A.2d 908 (1994), the Court of Special Appeals stated that causation in lead paint cases may be proven by showing that the defendant's negligence was a "substantial factor" in causing the plaintiff's injury. That conclusion was derived from past decisions of this Court applying that standard in other contexts
The theory of causation presented in this case
Expert opinion testimony could be helpful in establishing any of the links and might sometimes be essential in proving the second and third links.
In our view, the link between a defendant's property and a plaintiff's childhood exposure to lead paint and dust may be established through circumstantial evidence, even if expert opinion testimony is not available. The Court of Special Appeals' decision in Dow v. L & R Properties Inc., 144 Md.App. 67, 796 A.2d 139 (2002), is instructive. In that case, a child and her mother sued their landlord for injuries the child allegedly suffered as a result of ingesting lead paint in their home. The discovery materials and an affidavit of the mother indicated that the home had been built prior to 1950 and thus likely had lead paint, that there was chipping and peeling paint in areas where the child played and that the child placed paint chips in her mouth, 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.
The landlord in Dow moved for summary judgment, arguing that (1) the plaintiff had not identified an expert who would testify that there was lead paint on the premises and (2) there was no other direct evidence that the paint contained lead. As a result, the landlord argued, there was insufficient evidence to prove causation and the landlord was entitled to judgment as a matter of law. The Court of Special Appeals rejected that argument and concluded that the circumstantial evidence was sufficient to generate a genuine issue of material fact and thus defeat the landlord's motion for summary judgment. 144 Md.App. at 74-75, 796 A.2d 139. The court reasoned that it was not necessary for the plaintiff to prove causation by direct evidence; circumstantial evidence that "amounts to a reasonable likelihood or probability rather than a possibility" would suffice. Id. (quoting Peterson v. Underwood, 258 Md. 9, 17, 264 A.2d 851 (1970)). The court held that evidence offered by the plaintiff in opposition to the motion, if believed by the fact-finder, could support an inference that the property was the only possible source of the child's lead poisoning. Id. at 76, 796 A.2d 139.
In the present case, Ms. Ross argues that the test results and testimony adduced in her case would similarly permit a jury to infer that lead exposure at the Payson Street home was a substantial contributing factor to her blood lead levels and that therefore summary judgment is not appropriate. At this stage of the case, all reasonable inferences must be taken in favor of Ms. Ross as the non-moving party. On the record before us, it appears that
On the other hand, it may well be that, once the parties have marshaled the evidence without the expert opinion on source, it is clear which facts are disputed and which are not, and the limits of the inferences in plaintiff's favor are evident, summary judgment might still be warranted. For example, unlike Dow, there is evidence of other possible sources of lead exposure in this case. Moreover, because the parties and the Circuit Court were focused on whether Dr. Blackwell-White's expert opinion testimony established the Payson Street home as the source of lead exposure,
In the end, we hesitate to attempt a thorough analysis of all of the evidence in this case. Neither the parties nor the judge in the Circuit Court did so, as all appeared to labor under the impression that Dr. Blackwell-White's opinion on source was the linchpin of plaintiff's proof of causation. On remand, the parties will have the opportunity to review the evidence and argue whether, taking the evidence and inferences in the light most favorable to Ms. Ross, there remains a fatal gap in her proof.
The exclusion of expert opinion testimony identifying HABC's Payson Street
Restatement 2d of Torts § 431.
