WRIGHT, J.
This case arises from a complaint filed in the Circuit Court for Baltimore City by Jazminn E. Taylor, appellant, through her mother, Nellie Virginia Taylor, in which
On June 14, 2010, appellees filed a motion for summary judgment, in which they argued that the testimony of Jazminn's medical causation expert, Dr. Henri Merrick, was inadmissible pursuant to Maryland Rule 5-702 because she lacked a sufficient factual basis to testify that Jazminn was exposed to lead-based paint at 1025 N. Carrollton Avenue or that 1025 N. Carrollton Avenue was a lead source. Appellees further asserted that, without Dr. Merrick's testimony, Jazminn could not prove the elements of her claims, and therefore, appellees were entitled to judgment as a matter of law. On August 5, 2010, finding that there was no factual basis for Jazminn's causation expert to testify that 1025 N. Carrollton was a substantial factor in contributing to Jazminn's injuries or that it was a lead source, the circuit court granted appellees' motion for summary judgment. On December 22, 2010, Jazminn timely filed this appeal.
Jazminn presents two questions for our review, which we have consolidated and rephrased as follows:
Jazminn was born on June 7, 1990. From her birth until February 1993, Jazminn lived with her family at 2320 Riggs Avenue. She then moved with her family to 1025 N. Carrollton Avenue where she resided from February 1993 until March 1994. Thereafter, she lived at 828 Clintwood Court from March 1994 until 2005. While at each residence, Jazminn's blood was tested for the presence of lead. Between April 22, 1991 and November 21, 1996, Jazminn's blood was tested ten times, the results of which were as follows:
DATE BLOOD LEAD LEVEL (mcg/dL) 3
2320 Riggs Avenue-6/7/1990-02/1993 4/22/1991 5 10/31/1991 101025 North Carrollton Avenue-02/1993-03/1994 4/15/1993 17 5/28/1993 13 1/27/1994 7828 Clintwood Court-03/1994-2005 8/3/1994 6 7/19/1995 6 9/20/1995 3 5/6/1996 6 11/21/1996 4
According to the causation report prepared by Jazminn's expert, "since 1991, the accepted range [for a child's blood lead level] has been (0 to 9) mcg/dl." Thus, a blood lead level of 10mcg/dL and above is considered elevated. Therefore, on three occasions, Jazminn was found to have an elevated blood lead level. Two of the tests revealing an elevated blood lead level were conducted while Jazminn lived at 1025 N. Carrollton Avenue.
On December 10, 2007, Jazminn filed her initial complaint in the Circuit Court for Baltimore City against Fishkind, Lichter, and the HABC. According to the complaint, both 1025 N. Carrollton Avenue and 2320 Riggs Avenue contained lead-based paint in such a deteriorated condition that it was peeling, chipping, and flaking. The complaint further alleged that Jazminn ingested lead-based paint chips, dust, and powder while living at both properties and that she suffered permanent brain damage as a result.
On July 3, 2008, Jazminn identified Dr. Henri Frances Merrick, M.D. as one of her expert witnesses. As to Dr. Merrick's expected testimony and the basis for that testimony, Jazminn stated:
On July 28, 2008, after discovering that the HABC did not own the property at 2320 Riggs Avenue while she lived there, Jazminn amended her complaint to add Allan S. Bird and Bentalou Associates, LTD., whom she identified as the owners of 2320 Riggs Avenue during the relevant period. Shortly thereafter, on August 7, 2008, Jazminn agreed to dismiss the HABC. On November 26, 2008, Jazminn amended her complaint a second time to add MYAL Partnership Management Services, Inc., Real Properties Services Corporation,
During discovery, Jazminn retained Arc Environmental, Inc. ("Arc") to inspect 1025 N. Carrollton Avenue for lead-based paint. Arc inspected the property on June 3, 2009, and it issued a report with its findings the following day. According to the report, the inspection involved the use of an LPA-1 X-ray fluorescence ("XRF") spectrum analyzer to test a number of exterior
Room Wall 6 Component Paint Condition 7 Result 8 P, N, I 9
Front Exterior A Window Header I 0.0 N
A Window Apron I 6.5 P
A Window Sill I 0.0 N
A Wall Surface I 0.0 N
A Security Bars I 0.0 N
A Handrail F 0.0 N
Rear Exterior C Wall Surface (C) I 0.3 N C Security Bars I 0.0 N C Door Threshold P 0.5 N C Wall Surface (B) I 0.0 N C Door Jamb I 0.0 N C Window Sill I 0.0 N C Wall Foundation P 0.5 N
Thus, the only surface that tested positive for the presence of lead-based paint was an exterior window apron on the front of the house, and the paint on the window apron was intact. All other tested surfaces were negative for the presence of lead-based paint.
On July 10, 2009, Nellie, Jazminn's mother, was deposed. During her deposition, the following ensued:
Following her deposition, Nellie submitted an affidavit, in which she testified that she observed chipping and flaking paint at 1025 N. Carrollton Avenue, and that she saw Jazminn with paint chips and dust on her hands and in her mouth while they lived there. Specifically, Nellie stated:
In September 2009, Dr. Merrick authored a causation report in which she stated her opinion and the basis for her opinion regarding Jazminn's exposure to lead-based paint at 2320 Riggs Avenue and 1025 N. Carrollton Avenue. Specifically, Dr. Merrick stated:
Dr. Merrick further supported her opinion as follows:
On December 1, 2009, Dr. Merrick was deposed. Her testimony pertained to the basis for her opinion that Jazminn was exposed to lead-based paint at 1025 N. Carrollton Avenue. During Dr. Merrick's deposition, the following ensued:
On June 14, 2010, the Riggs Avenue defendants filed a motion for summary judgment. On August 11, 2010, the circuit court ruled on their motion, granting it in part and denying it in part, finding that there was sufficient circumstantial evidence for a jury to conclude that Jazminn was exposed to lead paint at 2320 Riggs Avenue. On August 26, 2010, the Riggs Avenue defendants reached a settlement agreement with Jazminn, and on November 30, 2010, Jazminn filed a stipulation of dismissal removing the Riggs Avenue defendants from the suit.
Appellees also filed a motion for summary judgment on June 14, 2010. In it, they argued that Dr. Merrick's testimony
Regarding Jazminn's claim for unfair trade practices in violation of the Consumer Protection Act, CL §§ 13-101 to 13-501, appellees argue that, without Dr. Merrick's testimony that 1025 N. Carrollton Avenue contained lead-based paint when Jazminn lived there, the only evidence of the condition of 1025 N. Carrollton Avenue at the inception of the tenancy was the rental agreement in which Jazminn's mother certified that she had inspected the premises and found them to be "safe, sanitary, and suitable for habitation." Appellees further asserted that Jazminn lacked standing to bring a claim under the Consumer Protection Act because she was not a party to the lease, and therefore, she was not a consumer according to the terms of the statute.
Jazminn responded that summary judgment was inappropriate because there was sufficient circumstantial evidence to show 1025 N. Carrollton Avenue contained lead-based paint such that a trier of fact could reasonably conclude Jazminn was exposed to lead-based paint while living there. Jazminn argued that 1025 N. Carrollton Avenue was built prior to 1918 and a number of government studies have found that most houses built at that time contain lead-based paint. Specifically, Jazminn cited a report issued by the Environmental Protection Agency ("EPA") in 1986, in which the EPA determined that 99% of houses built before 1940 contained lead-based paint. Jazminn further relied on a survey conducted by the Department of Housing and Urban Development ("HUD"), between 1989 and 1990, which indicated that, of the 77 million privately owned homes built before 1980, 57 million homes contained lead-based paint. Jazminn also cited a report issued by the Center for Disease Control ("CDC") in 1997, in which it declared that 83% of all homes built before 1978 still contained some lead-based paint. Thus, Jazminn asserted that the age of the house, the discovery of lead-based paint on the exterior of the house, and testimony from Jazminn's mother that the house had chipping and peeling paint established a sufficient factual basis for a trier of fact to infer that Jazminn was exposed to lead-based paint at 1025 N. Carrollton Avenue.
Regarding her claim under the Consumer Protection Act, Jazminn argued that summary judgment was inappropriate because
In their reply, appellees argued that Nellie's testimony regarding her observation of chipping and peeling paint at 1025 N. Carrollton Avenue does not establish that Jazminn was exposed to lead-based paint at that property. Appellees further asserted that there was no factual basis for Dr. Merrick to testify that any interior surface contained lead-based paint when Jazminn lived at 1025 N. Carrollton Avenue. Additionally, they reiterated that the presence of lead on the exterior of the house does not prove that the interior of the house contained lead-based paint, that the age of the house does not establish a presumption that it contained lead-based paint, and that Jazminn's blood lead levels while living at 1025 N. Carrollton Avenue do not prove ongoing consumption of lead.
On August 4, 2010, the circuit court held a hearing on appellees' motion for summary judgment. At the end of the hearing, the circuit court granted the motion stating as follows:
On August 5, 2010, the circuit court issued a written order granting appellees' motion for summary judgment and stating:
(Footnote omitted).
The circuit court's decision to grant summary judgment in favor of appellees was predicated on its determination that Dr. Merrick's expert testimony was inadmissible because she lacked a sufficient factual basis to conclude that Jazminn was exposed to lead-based paint at 1025 N. Carrollton Avenue. Thus, we must first review the circuit court's decision to exclude Dr. Merrick's testimony before we consider whether the circuit court correctly granted summary judgment in favor of appellees.
The Court of Appeals has frequently stated that "the admissibility of expert testimony is a matter largely within the discretion of the trial court, and its action in admitting or excluding such testimony will seldom constitute a ground for reversal." Bryant v. State, 393 Md. 196, 203, 900 A.2d 227 (2006) (citing Clemons v. State, 392 Md. 339, 359, 896 A.2d 1059
"Whether summary judgment was granted properly is a question of law." Livesay v. Baltimore County, 384 Md. 1, 9, 862 A.2d 33 (2004). Therefore, we will review the circuit court's ruling on appellees' motion for summary judgment de novo. Id. Summary judgment is appropriate where "there is no genuine dispute as to any material fact and ... the party in whose favor judgment is entered is entitled to judgment as a matter of law." Md. Rule 2-501(f). Thus, on appeal, we conduct an independent review of the record "to determine whether the parties properly generated a dispute of material fact and, if not, whether the moving party is entitled to judgment as a matter of law." Wells Fargo Home Mortgage, Inc. v. Neal, 398 Md. 705, 714, 922 A.2d 538 (2007) (citation omitted). "We review 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) (citation omitted).
On appeal, Jazminn argues that the circuit court erred when it excluded Dr. Merrick's testimony on the grounds that she lacked a sufficient factual basis to support her opinion that Jazminn was exposed to lead-based paint at 1025 N. Carrollton Avenue and granted summary judgment in favor of the appellees after concluding that Jazminn could not prove causation without Dr. Merrick's testimony. Specifically, Jazminn asserts that, to defeat a motion for summary judgment, she need not present direct evidence that she was exposed to lead-based paint at 1025 N. Carrollton Avenue; rather, she contends that circumstantial evidence of exposure is sufficient if it amounts to a probability of exposure at the subject property instead of a mere possibility. Jazminn further avers that Dr. Merrick's opinion as to causation was supported by sufficient circumstantial evidence, including the age of the property,
Jazminn asserts that, to establish causation in a lead-paint case, the plaintiff must prove by a preponderance of the evidence "that the injured child was exposed to lead-based paint while occupying the leased residential premises, and that the exposure was to sufficient quantities of lead so as to bring about the injury suffered." She contends that the above evidence is sufficient circumstantial evidence that her injuries were caused by exposure to lead-based paint at 1025 N. Carrollton Avenue because it exceeds the level of evidence that we held was sufficient to defeat a motion for summary judgment in Dow. Jazminn notes that in Dow, 144 Md. App. at 75-76, 796 A.2d 139, we held that the plaintiff had put forth sufficient circumstantial evidence of exposure to lead-based paint at the subject property to defeat a motion for summary judgment where the plaintiff presented evidence that the dwelling was built prior to 1950, that such dwellings often contain lead-based paint, that the plaintiff ate paint chips in the dwelling, and that the plaintiff was diagnosed with lead poisoning. Jazminn further claims that in reaching this conclusion, we did not require lead assessment reports or documented blood lead levels, both of which Jazminn has provided in this case.
Jazminn also cites the decision of the Commonwealth Court of Pennsylvania in Ford v. Philadelphia Housing Authority, 848 A.2d 1038 (Pa.Cmwlth.2004), in support of her position that Dr. Merrick's testimony as to causation should have been admitted. Jazminn contends that in Ford, the court concluded that the trial court did not err in relying on the testimony of plaintiff's causation expert because it was supported by a sufficient factual basis. Thus, Jazminn argues that the circuit court should have admitted Dr. Merrick's testimony because "Dr. Merrick's opinions in the case at bar, and the factual bases supporting those causative opinions, are almost a carbon copy of [the expert's opinions] that were upheld in the Ford case."
Additionally, Jazminn contends that the circuit court erred when it excluded Dr. Merrick's testimony because the court based its decision on its own credibility determinations. See Davis v. Goodman, 117 Md.App. 378, 700 A.2d 798 (1997) (concluding that the circuit court erred where it determined that the plaintiff's causation expert was not credible and reached its own conclusion on the issue of causation). Specifically, Jazminn asserts that the circuit court "substituted its judgment on
Appellees respond that the circuit court properly excluded Dr. Merrick's testimony because the circumstantial evidence that Jazminn presented was insufficient to demonstrate a probability, rather than just a possibility, that Jazminn was exposed to lead-based paint at 1025 N. Carrollton Avenue. Specifically, appellees assert that Dr. Merrick was unable to testify that Jazminn's blood lead level increased while living at 1025 N. Carrollton Avenue, in part because, as Dr. Merrick conceded, she did not know Jazminn's blood lead level when Jazminn began living at 1025 N. Carrollton Avenue. Appellees also contend that Jazminn's blood lead levels declined while she lived at 1025 N. Carrollton Avenue, and that Dr. Merrick testified that this decrease in Jazminn's blood lead levels indicated a lack of exposure to lead between April 1993 and January 1994. Appellees aver that Dr. Merrick admitted that Jazminn's blood lead level of 17 mcg/ dL, two months after moving to 1025 N. Carrollton Avenue, is not proof that Jazminn was exposed to lead at that property.
Moreover, appellees argue that Dr. Merrick lacked evidence to support her opinion that the interior of 1025 N. Carrollton Avenue contained lead-based paint, and that Dr. Merrick was unqualified to make such a determination. In particular, appellees allege that Dr. Merrick did not have any information regarding the maintenance history of 1025 N. Carrollton Avenue, and Dr. Merrick admitted that she did not have any information regarding whether the property contained lead-based paint when Jazminn lived there or if any lead-based paint that may have existed inside the property had been removed prior to Jazminn living there. Appellees further contend that because Dr. Merrick testified that she is not certified in lead paint inspection and is not certified as a lead paint risk assessor, she is not qualified to render an opinion about the source of a person's lead exposure.
Appellees argue that because Jazminn cited no evidence as to causation beyond Dr. Merrick's inadmissible testimony, Jazminn could not carry her burden of proof on that element of her claims, and therefore, the circuit court correctly granted summary judgment in favor of appellees.
A thorough review of the record leads us to conclude that the circuit court did not abuse its discretion when it excluded Dr. Merrick's testimony. Dr. Merrick's opinion that 1025 N. Carrollton Avenue contained lead-based paint is only supported by the age of the house and the presence of lead on one component of the exterior of the house. Moreover, the only evidence that Jazminn was exposed to lead at 1025 N. Carrollton Avenue was her elevated blood lead level while living at that property. However, by Dr. Merrick's own admission, she could not conclude that Jazminn's blood lead level rose while living at 1025 N. Carrollton Avenue nor could she rule out the possibility that Jazminn's elevated blood lead level was caused by an exposure to lead that occurred prior to her moving to 1025 N. Carrollton Avenue. In light of Dr. Merrick's inability to rule out other sources of lead, such as 2320 Riggs
Maryland Rule 5-702 governs the admissibility of expert testimony and provides as follows:
In Giant Food, Inc. v. Booker, 152 Md.App. 166, 182-83, 831 A.2d 481 (2003), this Court stated that "[a]n expert's opinion testimony must be based on [an] adequate factual basis so that it does not amount to conjecture, speculation, or incompetent evidence." (Citation omitted). In Terumo Med. Corp. v. Greenway, 171 Md.App. 617, 624, 911 A.2d 888 (2006), we reiterated this proposition stating that "[t]estimony amounting only to speculation or conjecture, or testimony based on improper or insufficient data, or testimony lacking factual support in the admitted evidence, is inadmissible." (Citation omitted). A factual basis "may arise from a number of sources, such as facts obtained from the expert's first-hand knowledge, facts obtained from the testimony of others, and facts related to an expert through the use of hypothetical questions." Sippio v. State, 350 Md. 633, 653, 714 A.2d 864 (1998) (citation omitted).
First, Jazminn relies on the age of the house to support Dr. Merrick's conclusion that the house contains lead-based paint. Jazminn cites a number of government reports that have found that older houses, particularly those built before 1940, contain lead-based paint.
Second, Jazminn relies on the absence of any evidence that 1025 N. Carrollton Avenue has been gut rehabilitated to further support Dr. Merrick's conclusion that the property contains lead-based paint. However, the absence of any evidence that
Next, Jazminn argues that her mother's testimony that 1025 N. Carrollton Avenue contained chipping and flaking paint, and that she observed Jazminn consuming paint chips at the property, supports Dr. Merrick's conclusion that Jazminn was exposed to lead at 1025 N. Carrollton Avenue. However, the presence of chipping and flaking paint only increases the likelihood that Jazminn was exposed to lead-based paint if the damaged paint contained lead, and here, Jazminn did not present any evidence that the interior of the house contained lead-based paint. In fact, Jazminn did not have the interior of the house tested for the presence of lead-based paint. Instead, Jazminn only tested the exterior of the house. Although a window apron on the exterior of the house contained lead-based paint, the paint on the window apron was intact, and there is no evidence that Jazminn ever came in contact with the window apron such that it could have been the source of her lead exposure. Moreover, the circuit court could reasonably conclude that the presence of lead-based paint on the exterior of the house is not sufficient evidence that the interior of the house, to which Jazminn had access, also contained lead-based paint. Thus, the positive test of the window apron and Nellie's testimony that she observed chipping and flaking paint are not sufficient to support Dr. Merrick's conclusion that Jazminn was exposed to lead at 1025 N. Carrollton Avenue.
Finally, Jazminn contends that Dr. Merrick's conclusion that Jazminn was exposed to lead-based paint at 1025 N. Carrollton Avenue is supported by Jazminn's elevated blood lead level while living at the property and by the fact that Jazminn's blood lead level rose while she lived there; however, this assertion is contradicted by Dr. Merrick's own testimony. In her deposition, Dr. Merrick admitted that she does not know what Jazminn's blood lead level was when Jazminn moved to 1025 N. Carrollton Avenue due to the absence of testing shortly before or shortly after Jazminn moved. Thus, Dr. Merrick was unable to testify that Jazminn's blood lead level rose while she lived at 1025 N. Carrollton Avenue, and she instead testified that the most she could determine was that Jazminn's blood lead level was found to be elevated while she lived at 1025 N. Carrollton Avenue. Dr. Merrick further testified that lead has a half-life of about 30 days in blood but that lead's half-life in bones and teeth is years and years. Dr. Merrick also stated that lead in the bones and teeth can leach out into the blood. Therefore, as Dr. Merrick conceded, Jazminn's blood lead level of 17 mcg/dL, two months after moving to 1025 N. Carrollton Avenue, is not proof that Jazminn was exposed to lead at 1025 N. Carrollton Avenue.
Despite the shortcomings in Jazminn's evidence, she contends that, in Dow, we held on less evidence that the plaintiff had presented sufficient circumstantial evidence of exposure to lead-based paint at the subject property. There, the plaintiff, by and through her mother, claimed that she was exposed to lead-based paint at the subject property but did not present any
Because Jazminn claims that she was exposed to lead-based paint at two properties, a similar evidentiary showing is insufficient to prove that 1025 N. Carrollton Avenue was the only possible source of Jazminn's elevated blood lead level. Here, the evidence is inconclusive as to the source of Jazminn's lead exposure. It is entirely possible from the evidence presented that Jazminn was exposed to lead-based paint at 2320 Riggs Avenue and not at 1025 N. Carrollton Avenue. The affidavit provided by Jazminn's mother, if believed, eliminates other residences where Jazminn stayed as possible lead sources, but it does not eliminate 2320 Riggs Avenue as a possible lead source. Furthermore, Dr. Merrick conceded in her deposition that Jazminn's elevated blood lead level at 1025 N. Carrollton Avenue could have been the result of lead that was already in her body from a source prior to when she moved to 1025 N. Carrollton Avenue. Therefore, more is required to support Dr. Merrick's opinion that Jazminn was exposed to lead-based paint at 1025 N. Carrollton Avenue because, unlike in Dow, Jazminn could not rule out all other sources for her lead exposure.
Jazminn contends that the proof offered in this case is virtually identical to that offered in Ford, 848 A.2d at 1051-52, where the Commonwealth Court of Pennsylvania held that there was sufficient evidence for the trial court to conclude that the subject property contained lead-based paint and the plaintiff was exposed to lead-based paint while living there. We disagree. Both the proof offered and the facts of the case are materially different in Ford. First, like in Dow, the plaintiff in Ford only alleges exposure to lead-based paint at one residence. Id. at 1042. Second, the plaintiff had documented blood lead levels ranging from a low of 9 mcg/ dL, on December 18, 1992, to a high of 55 mcg/dL, on September 22, 1994, while residing at the subject property. Id. at 1044. Third, the interior of the subject property was tested for lead-based paint and positive readings were found in multiple rooms in the property. Id. Here, Jazminn failed to rule out 2320 Riggs Avenue as a potential lead source, she did not have documented blood lead levels that rose while she lived at 1025 N. Carrollton Avenue, and the interior of 1025 N. Carrollton Avenue was not tested for the presence of lead-based paint. Because of the substantial factual differences between the decision of the Commonwealth Court of Pennsylvania
In light of the facts before the circuit court, we cannot conclude that it abused its discretion when it ruled that Dr. Merrick's testimony was inadmissible because she lacked an adequate factual basis to support her conclusion that Jazminn was exposed to lead-based paint at 1025 N. Carrollton Avenue. Dr. Merrick testified at her deposition that she did not know if Jazminn's blood lead level rose while she lived at 1025 N. Carrollton Avenue, and that it was possible that Jazminn's elevated blood lead level, when she moved to 1025 N. Carrollton Avenue, was the result of a prior exposure. In fact, Jazminn's complaint alleges that she had a prior exposure to lead-based paint at 2320 Riggs Avenue. Additionally, Jazminn's only evidence that 1025 N. Carrollton Avenue contained lead-based paint was the age of the house and the presence of lead on one component of the exterior of the house. We conclude that, on the basis of Dr. Merrick's testimony and the facts before the circuit court, a reasonable person could find that Jazminn's injuries could have been caused by exposure to lead-based paint at 2320 Riggs Avenue rather than at 1025 N. Carrollton Avenue. Therefore, the circuit court did not abuse its discretion in excluding Dr. Merrick's testimony.
Having concluded that the circuit court did not abuse its discretion in ruling that Dr. Merrick's testimony was inadmissible, we turn to consider whether the circuit court erred in granting summary judgment as a result. As stated above, summary judgment is available when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Md. Rule 2-501(f). Here, the material facts are not in dispute, so we must determine whether the court's ruling was legally correct. In Rosenblatt v. Exxon Co., U.S.A., 335 Md. 58, 76, 642 A.2d 180 (1994), the Court of Appeals reiterated that to state a claim for negligence a party must show "1) that the 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 or loss, and 4) that the loss or injury proximately resulted from the defendant's breach of the duty." To establish the last element, causation, a plaintiff must show that the defendant's conduct was a "substantial factor" in bringing about the alleged injury. See Johnson v. Rowhouses, Inc., 120 Md.App. 579, 593, 707 A.2d 933 (1998) (affirming the circuit court's grant of summary judgment in favor of the defendant because the plaintiff's expert did not express an opinion as to whether exposure to lead on the defendant's property was a substantial cause of plaintiff's injuries); Bartholomee v. Casey, 103 Md.App. 34, 56-57, 651 A.2d 908 (1994) ("Absent proof that a defendant's conduct was a substantial factor in causing the injuries, a defendant is entitled to judgment.") (Citation omitted). Here, Jazminn relied exclusively on Dr. Merrick's testimony to establish that exposure to lead-based paint at 1025 N. Carrollton Avenue caused Jazminn's injuries; therefore, without Dr. Merrick's testimony, Jazminn was unable to state a claim for negligence and the appellees were entitled to judgment as a matter of law.
Jazminn challenges the circuit court's grant of summary judgment in favor of the appellees on the grounds that the circuit court made its own findings as to Dr. Merrick's credibility and substituted its own judgment on causation for that of Dr. Merrick. Specifically, Jazminn argues that the circuit court erred when it discounted
Id. at 391-92, 700 A.2d 798. After concluding that the motions judge did not believe the expert's testimony that a child's blood lead levels could become elevated simply because the child was in the immediate vicinity of chipping or flaking paint on the exterior of the house, we reversed the circuit court's grant of summary judgment in favor of the defendant stating that "no principle is more firmly ingrained in summary judgment jurisprudence than that a motions judge should not decide issues of credibility." Id. at 395, 700 A.2d 798. We further stated that "a judge, in deciding a summary judgment motion, is not empowered to take judicial notice of the answers to complicated medical issues such as the issue of causation." Id. at 395-96, 700 A.2d 798.
Here, we lack a similar basis to conclude that the circuit court granted summary judgment in favor of the appellees because it found that Dr. Merrick's testimony was not credible. Jazminn directs our attention to a statement by the circuit court at the summary judgment hearing where the court stated in reference to the testimony of Jazminn's mother:
Jazminn then claims that this statement clearly indicates that the circuit court based its decision as to summary judgment on its conclusion that Jazminn's mother's testimony was not credible, and therefore, Dr. Merrick's testimony was not credible because she relied on the testimony of Jazminn's mother. We disagree. In issuing its decision from the bench at the end of the summary judgment hearing, the court started by stating that it was "really very much aware of the fact, extremely aware of the fact that on a motion for summary judgment the Court does not make credibility findings." The circuit court went on to state that it found the evidence in this case did not come close to the kind of circumstantial evidence that is required to proceed to trial. In supporting its decision, the circuit court did not disregard Dr. Merrick's testimony but, in fact, relied on her statements as to what she could and could not determine from the facts before her. The circuit court then stated that it was going to grant the appellees' motion "for the reasons stated in the Motion and the reasons argued here by Defense and, basically, for based upon Dr. Merrick's testimony." From this record, we find no basis for concluding that the circuit court based its ruling on credibility
For the reasons stated above, we affirm the circuit court's grant of summary judgment in favor of appellees.
