HARRELL, J.
This is a companion case
On the record of this case, there is a dispute as to when the residents of the impacted Jacksonville neighborhood learned of the leak. While Exxon contends that it notified Herbert Meade, administrator for the oil control program in the Maryland Department of the Environment (MDE), of the spill on February 17, and that Meade contacted immediately the president of the local community association, Respondents maintain that they learned of the leak only after local media reported the story four days later.
Following notification of the leak, the MDE, pursuant to its statutory authority, ordered Exxon to submit an Interim Remedial Measure Plan. See Md.Code (1982, 2007), Environment Art., §§ 4-401-4-419. As part of its immediate remediation efforts, Exxon drilled wells for monitoring and recovery surrounding the proximate vicinity of the Exxon station. The monitoring wells were dug at various depths in order to conduct water samples indicating the presence and extent of the contamination, also known as the "strike line." The purpose of the recovery wells was to treat groundwater to prevent further expansion of the strike line. There were 227 monitoring wells installed by October 2007, and
Respondents filed suit in the Circuit Court for Baltimore County against Exxon. Their claims alleged that their properties had decreased in value, and that their health was threatened as a result of exposure to toxic chemicals — specifically, methyl tertiary-butyl ether ("MTBE"), a possible carcinogen, and benzene, a known carcinogen
A single complaint was filed on 17 October 2006. Respondents, composed of eighty-four households,
The claims of intentional infliction of emotional distress were dismissed subsequently by all Respondents, but the trespass counts were dismissed by only some Respondents. Petitioner admitted liability for trespass, private nuisance, negligence, and strict liability, but denied liability for fraud and punitive damages. Petitioner further maintained that certain of the compensatory damages claimed — non-economic emotional distress damages arising from injury to property and fear of cancer, and damages for medical monitoring costs — were not compensable under Maryland law.
The cases were consolidated by the Circuit Court for trial. On 14 October 2008, a jury trial began, presided over by the Honorable Maurice W. Baldwin, Jr., and lasted until 12 March 2009. Liability was not contested by Exxon, so the trial focused on whether any Respondents suffered compensable injuries as a proximate result of the leak and, if so, what compensatory damages should be awarded. The jury was asked also whether Exxon was liable for fraud warranting the award of punitive damages.
Of the eighty-seven properties implicated in this case, water testing of the residential potable wells in 2006 indicated MTBE concentrations above the MDE action level of 20 ppb in only two.
Monitoring wells installed on all properties were used also to measure the extent of MTBE and benzene contamination. Monitoring wells were dug on at least thirteen of Respondents' properties, ranging from one to a maximum of nineteen monitoring wells on each property. The samples from the monitoring wells showed MTBE concentrations exceeding the action level on five properties.
Respondents' testimony involved: the nature, extent, and impact of remediation activities on a particular property; the extent to which residents' outdoors and/or indoors activities were limited by the effects of the leak; the nature and extent of MTBE and/or benzene contamination on a property, as reflected by well test readings; whether harmful chemicals not attributable to gasoline were found in wells; the location of each property in relation to the strike line; the nature and extent of use of well water; the impact of the leak consequences on the value of each property;
Much of the expert testimony at trial turned on whether a property had been contaminated by MTBE or benzene as a result of the leak, based on a property's location in relation to the strike line and the extent of contamination, if any.
Respondents' attorney arranged for any Respondent, who wished to, to see Abdul Malik, M.D., a psychiatrist. Eighty-seven individual plaintiffs accepted the offer. Thirteen sought follow-up treatment in Dr. Malik's office. Dr. Malik, and his colleagues, interviewed these Respondents individually for about forty-five minutes to an hour each. The parties stipulated at the beginning of trial that if a witness from Dr. Malik's organization, Psych Associates of Maryland, were called to testify, the witness would testify that each of these Respondents was diagnosed with a disorder that was caused by, or exacerbated by, the leak. The stipulation included a recitation that Petitioner disagreed with the proffered testimony and asserted that none of the Respondents suffered permanent psychological injuries or long-term emotional distress.
Eight of the Respondents covered by the stipulation had pre-existing psychological conditions that, at some point, required psychotherapy, counseling, or medication. Of those other Respondents covered by the stipulation, Dr. Malik did not recommend therapy or counseling for thirty-six of them, recommended treatment for twenty-one Respondents with no prior history of treatment for emotional distress, and advised four Respondents with pre-existing conditions to continue therapy.
A second stipulation was entered by the parties as to the testimony of Nachman Brautbar, M.D., where they agreed that, if Dr. Brautbar were called to testify, he would state that all Respondents required medical monitoring.
Edward Sullivan, a geologist with a specialty in hydrogeology, employed by the Whitman Companies, also testified as an expert for Respondents. He described underground fractures, aquifers, and the movement of ground water generally. Sullivan opined that the detected levels of contamination were caused probably by the gasoline leak, that the Baigs' potable well likely would be contaminated in the future, and that the gasoline forced down in the deeper bedrock would likely not be recovered by remediation, and that it would be difficult to determine its movement.
Dr. Kenneth Rudo, a toxicologist employed by the State of North Carolina, also testified as an expert witness for Respondents. He stated that there is a relatively sparse body of knowledge relating to MTBE because it has been used in gasoline for only about twenty to thirty years. He opined that MTBE is a probable human carcinogen and a probable human mutagen, and that MTBE exposure can occur through ingestion, bathing or other skin contact, or breathing vapor containing MTBE. He stated that exposure produces an increased risk of cancer. Dr. Rudo testified that he could not state that any of the Respondents would, more likely than not, contract cancer as a result of the leak, but that there is "no safe level" of exposure to MTBE.
Dr. Ira Whitman, Ph.D, a civil engineer, and Dr. Jerold Jaynes, Ph.D, an economist, were the last two experts who testified for Respondents. Dr. Whitman testified as an expert in environmental engineering and worked with the geologists, Cohen and Sullivan, to explain that thirty-eight or thirty-nine potable wells were likely contaminated between 13 January 2006 and 17 February 2006. He noted that, as of the date of his 2006 report, fifty homes showed some contamination at some point in time, and that number later rose to sixty-six homes.
Petitioner's expert, Dr. Gary Krieger, M.D., testified that all people in this country are exposed to carcinogens and mutagens, including MTBE and benzene, every day, including in food and water that is consumed. He emphasized that the dose is the real issue — essentially, that mere exposure does not cause cancer. He further stated that the risk of disease Respondents faced was no different than the risk of disease for the general population.
Ronald Lipman, a real estate appraiser, testified that, in 2007 and 2008, there was a general downturn in the real estate market nationally, and that the effect of the gasoline leak on property values in Jacksonville ranged from 0% to 15 %, depending on the property.
Another expert for Petitioner was Gregory Martin, who described the remediation efforts conducted pursuant to a consent order entered into between the MDE and Petitioner. In compliance with the order, Petitioner filed a corrective action plan and intends to continue efforts until the remediation goals are met.
Herbert Meade, administrator for the oil control program in the MDE, testified regarding the Maryland action level for MTBE. He asserted that the MDE action level is protective of human health. Significantly, he noted that MTBE is the most frequently found ground water contaminant in Maryland. With respect to the properties in this case, he stated that some needed filter systems and others should have them as a precautionary matter, but that the potable well water is safe to drink. Meade also acknowledged that, because of the lack of human studies, he did not know the long term effects of exposure to MTBE.
Before the trial court gave the jury instructions on causation and damages, the court advised the jury that the instructions applied to each plaintiff, unless otherwise indicated.
The same format for the jury's awards appeared in the verdict sheets for each plaintiff: each asked essentially "(A) do you find ... fraud by concealment? (B) do you find that [Petitioner's admitted liability for negligence, strict liability, nuisance, and trespass] caused [the plaintiffs] any injuries and damages? and (C) if the answer to (A) or (B) is yes, how much [compensatory] damages do you award?" The last question was followed by individual categories of damages to be filled-in if the jury responded "yes":
On 12 March 2009, the jury returned its verdicts. The jury returned a verdict in favor of Exxon with respect to the fraudulent concealment and punitive damage claims, but found in favor of all remaining plaintiffs
Petitioner filed six post-judgment motions
On 9 September 2009, Exxon noted an appeal to the Court of Special Appeals. It challenged the sufficiency of the evidence supporting the jury's awards for complete diminution of property value, damages for emotional distress, and damages for future medical monitoring costs. It also challenged the jury instructions regarding the legal standards to be applied by the jury in deciding the claims for damages based on fear of developing cancer and future medical monitoring costs. Respondents contended, in turn, that Exxon's attorney at trial waived Exxon's right to challenge the compensatory damage awards by certain things he said in opening statement and closing argument.
On 6 January 2010, the Court of Special Appeals consolidated the eighty-eight appeals. In January 2011, a three-judge panel of that court (consisting of Judges Meredith, Zarnoch, and retired Judge Thieme, the latter specially assigned) heard argument. The panel did not issue a decision. Thus the court ordered rehearing in banc on 9 June 2011.
On 9 February 2012, the in banc panel, consisting of nine incumbent members of
The intermediate appellate court rejected unanimously the Respondents' contention that Petitioner was estopped from challenging the compensatory damages awards, and concluded unanimously that the Circuit Court had not abused its discretion in admitting Respondents' expert testimony in support of their claims of diminution in property values. See id. at 10-11, 40 A.3d at 519 (per curiam).
Different majorities of the sitting court explained, in various written opinions, their support for the remaining portions of the judgment announced by the per curiam opinion. Regarding the claims for diminution in property value, six of the nine judges affirmed the portion of the judgments that awarded damages to each Respondent (whose judgments had not been remitted by the Circuit Court or the Court of Special Appeals based on the post-leak sale of the property for value) in an amount equal to the value of their property prior to the leak. See id. at 11, 40 A.3d at 519. The reasoning for this result, however, differed in several respects between the judges' opinions. See id. at 34-50, 40 A.3d at 534-43 (Zarnoch, J., joined by Meredith, Woodward, and Wright, JJ.), id. at 148-68, 40 A.3d at 600-12; (J. Eyler, J., joined by Watts, J.); id. at 241-44, 40 A.3d at 655 (Graeff, J.), id. at 247-52, 40 A.3d at 658-60 (Watts, J.); id. at 269-74, 40 A.3d at 671-74 (D. Eyler, J).
The court's decision as to the non-economic damages awards also resulted from different views. Most of the court concluded that a plaintiff may recover damages for emotional distress based on fear of contracting cancer in certain circumstances, and that an error in the jury instructions related to this issue required reversal of all of the judgments for non-economic damages. The judges disagreed, however, about whether the circumstances that would permit recovery had been established and about the legal standard that should apply to such claims. See id. at 52-53, 40 A.3d at 541-42 (Zarnoch, J.).
Respondents' awards for damages for future medical monitoring costs also produced split majorities of the in banc panel. Although a majority would recognize a claim for monetary damages for medical monitoring, see id. at 63-70, 40 A.3d at 550-55 (Zarnoch, J. joined by Meredith, Woodward, and Wright, JJ.), id. at 247, 40 A.3d at 658 (Graeff, J.), a differently aligned majority decided that the evidence did not warrant any plaintiff's entitlement to this form of damages. See id. at 11, 40 A.3d 514 (per curiam); id. at 132-47, 40 A.3d at 591-600 (J. Eyler, J.), id. at 247, 40 A.3d at 658 (Graeff, J.), id. at 255-57, 40 A.3d at 663-64 (Watts, J.).
On 27 February 2012, Respondents filed a motion under Maryland Rule 8-605 requesting that the Court of Special Appeals reconsider its February 9 in banc decision because the portions of that decision that were supported by fewer than seven judges "violate the clear mandate" of Section 1-403(c) of Court and Judicial Proceedings Article ("CJP") authorizing the court to decide an appeal through the in banc mechanism.
On 26 March 2012, Exxon filed a Petition for Writ for Certiorari.
We address first a threshold procedural issue raised by Respondents in their cross-petition: whether the Court of Special Appeals violated CJP § 1-403(c)
We begin our analysis with a brief summary of the in banc proceedings in the intermediate appellate court. As the court noted in its 6 March 2012 denial of the Respondents' second Motion for Reconsideration, the appeal before the in banc panel was argued before nine incumbent qualified judges of the Court of Special Appeals, a majority of which participated in deciding each of the issues on appeal. Exxon Mobil Corp. v. Ford, 204 Md.App. 274, 281, 40 A.3d 674, 678 (2012). The intermediate appellate court's March 6 ruling stated that three members of the court elected to disqualify themselves under Rule 2.11 of the Maryland Code of Judicial Conduct,
Even if we were to agree with Respondents' argument that the in banc panel did not decide certain issues by the requisite majority (which we do not so decide), our precedent allows us to treat the present appeal as if a writ or writs of certiorari had been granted on bypass "prior to entry of a proper judgment by the Court of Special Appeals." Wildwood Med. Ctr., LLC v. Montgomery Cnty., 405 Md. 489, 496, 954 A.2d 457, 461 (2008).
Here, we granted both parties' petitions for Writs of Certiorari, which, as in Wildwood, enables us to consider and decide "all the issues that would have been cognizable by the intermediate appellate court." Id. (citing Md. R. 8-131(b)(2)).
Respondents contend that Petitioner's counsel waived Petitioner's right to appeal the compensatory damages awards when he made certain statements during opening and closing arguments. According to Respondents, Petitioner's waiver arose when Petitioner sought a "quid pro quo" arrangement with the jury, promising the jury that Exxon would pay any compensatory damages awarded in exchange for the jury's decision not to award punitive damages. We see it differently and agree with the unanimous in banc panel of the Court of Special Appeals.
Respondents contend that, in Exxon's opening statement, Exxon's counsel "made it abundantly clear that the trial was not about compensatory damages but was about punitive damages[,]" quoting the following excerpt:
(Emphasis added).
Regarding the compensatory damages for diminution in property value, Petitioner's attorney told the jury, also in his closing argument:
These statements, Respondents contend, amounted to Petitioner forfeiting its right to appeal by its counsel's anticipatory acquiescence to the jury's verdict. We hold that these statements did not indicate that Petitioner's counsel acquiesced to the jury's judgment or waived Petitioner's right to appeal the subsequent judgments.
Waiver is conduct from which it may be inferred reasonably an express or implied "intentional relinquishment" of a known right. Gould v. Transamerican Assocs., 224 Md. 285, 294, 167 A.2d 905, 909 (1961). "The doctrine of acquiescence — or waiver — is that `a voluntary act of a party which is inconsistent with the assignment of errors on appeal normally precludes that party from obtaining appellate review.'" Bd. of Physician Quality Assurance v. Levitsky, 353 Md. 188, 200, 725 A.2d 1027, 1032 (1999) (quoting Franzen v. Dubinok, 290 Md. 65, 69, 427 A.2d 1002, 1004 (1981)) (emphasis in original). The doctrine of waiver is also known as "estoppel, acceptance of benefits creating mootness, and acquiescence in judgment." Downtown Brewing Co. v. Mayor & City Council of Ocean City, 370 Md. 145, 149, 803 A.2d 545, 547 (2002).
A party's right to appeal may be waived only "where there is acquiescence in the decision from which the appeal is taken or by otherwise taking a position inconsistent with the right to appeal." Grandison v. State, 305 Md. 685, 765, 506 A.2d 580,
We concluded that a waiver of a right to appeal was warranted where a party accepted a condemnation award in the underlying proceeding, but later sought to appeal that same judgment. See Downtown Brewing, 370 Md. at 151, 803 A.2d at 548. We recognized that "the right to appeal may be lost by acquiescence in, or in recognition of, the validity of the decision below from which an appeal is taken.'" Id. at 149, 803 A.2d at 547 (quoting Rocks v. Brosius, 241 Md. 612, 630, 217 A.2d 531 (1966)).
Moreover, waiver by acquiescence is limited to a party's post-judgment conduct. Except for consent to a judgment, we have not applied waiver by acquiescence to conduct before entry of judgment, namely because a party cannot relinquish knowingly a right to appeal the nature and effect of a judgment before that judgment is known and entered. Boyd, 145 Md.App. at 666, 806 A.2d at 331.
In the present case, Respondents maintain that, before the return of the jury's verdicts and the entry of judgment, the Petitioner's counsel's statements to the jury in argument constituted acquiescence in what became the jury's verdict and a waiver of Petitioner's right to appeal the resultant entry of final judgment. The Circuit Court and the Court of Special Appeals rejected Respondents' waiver argument. We agree with their reasoning. A reasonable view of the closing argument of Petitioner's counsel is that, by counsel saying "we pay," Petitioner's counsel asserted only his client's intention to take responsibility for its actionable and proven conduct affecting adversely Respondents. Counsel's other statements, taken within their context, urged the jury to award an appropriate compensatory award based on the properly admitted evidence at trial and proper jury instruction. Counsel's arguments illustrate strategic advocacy, rather than a blatant offer of a quid pro quo arrangement with the jury to avoid a punitive damage award.
In any event, the conduct of Petitioner's counsel occurred before the rendition of the jury's verdict and entry of judgment, and thus it is unreasonable for Respondents to argue that Petitioner could relinquish knowingly the right to challenge the jury's decision. As there was no implicit or express consent to the jury's actual judgment, we hold that the conduct of Petitioner's counsel was not inconsistent with the Petitioner's right to appeal the final judgment, and therefore did not amount to Petitioner's waiver of the right to appeal.
In Exxon Mobil Corp. v. Albright, we addressed directly whether a plaintiff may recover emotional distress damages based on a fear of contracting a latent disease after tortious exposure to a toxic substance. 433 Md. at 349-64, 71 A.3d at 58-67. Exxon seeks here also reversal of the trial judge's denial of its motion for judgment not withstanding the verdict ("JNOV") regarding damages for fear of contracting cancer as well as medical monitoring. We review a trial court's decision to allow or deny judgment or JNOV to determine whether it was correct
Respondents argue that the Court of Special Appeals erred when it concluded that the jury instruction on fear of cancer was erroneous and prejudicial. "The standard of review for jury instructions is that so long as the law is fairly covered by the jury instructions, reviewing courts should not disturb them." Univ. of Md. Med. Sys. Corp. v. Malory, 143 Md.App. 327, 337, 795 A.2d 107, 113 (2001) (quoting Farley v. Allstate Ins. Co., 355 Md. 34, 46, 733 A.2d 1014 (1999)). "This standard for reversible error places the burden on the complaining party to show both prejudice and error." Farley, 355 Md. at 46, 733 A.2d at 1020.
In Albright, we held that, to recover emotional distress damages for fear of contracting a latent disease, a plaintiff must show that (1) he or she was exposed actually to a toxic substance due to the defendant's tortious conduct; (2) which led him or her to fear objectively and reasonably that he or she would contract a latent disease; and, (3) as a result of the objective and reasonable fear, he or she manifested a physical injury capable of objective determination. 433 Md. at 363-64, 71 A.3d at 67. Hence, we hold that, viewed in the light most favorable to the Respondents, the evidence in this record is insufficient as a matter of law to support Respondents' claims for emotional distress damages based on a fear of contracting cancer. We hold further that, as the trial court's jury instructions did not cover fairly the standard for recovery that we have adopted, the jury instructions were erroneous.
The test results, at the maximum detection levels, for the potable wells on the Respondents' properties showed that the potable wells of seventeen
Dr. Rudo, the toxicologist who testified as an expert witness on Respondents' behalf, testified that MTBE is a mutagen that causes changes in DNA, and, therefore, there is "no safe level" of exposure to MTBE. In contrast, the MDE (consistent with the EPA standard) has set an action level for MTBE at 20 ppb. Herbert Meade from the MDE testified that aesthetic standards, such as the MTBE 20-40 ppb standard, which is consistent with the EPA standard, do not evince any evidence
It is significant that none of the Respondents claimed sickness or symptoms of a disease attributable to the leak, despite their claims that they had a fear of contracting a latent disease. None of the Respondents claimed a physical injury, apart from emotional distress caused allegedly by the leak.
As there are no air samples or vapor studies in evidence to demonstrate that breathing vapors may have caused exposure to MTBE or benzene, the only evidence relevant to assessing actual contamination and consequent exposure is that collected from the Respondents' potable wells and the monitoring wells. No other evidence was presented to show that exposure could occur absent contamination in a potable well.
The evidence reflects that there are seventeen properties for which there was no past or current evidence that the potable wells were contaminated by the leak, or that would become contaminated in the future. Respondents' experts testified that the chance of future contamination of the wells for these properties was "low," which they meant as unlikely to occur. Further, Respondents owning these particular properties did not adduce any evidence that contamination was present in the ambient air or water vapor in any of their houses (including those using well water for bathing). Thus, without proof of contamination in the potable wells on these 17 properties, there can be no ingestion or skin contact with contaminated water. As there is no indicia that these Respondents were in contact with any form of contamination as a consequence of the leak, the likelihood of potential future exposure is insufficient as a matter of law.
Despite the absence of proof of contamination, the Respondents who own these seventeen properties received awards for emotional distress damages based on fear of contracting cancer. In the absence of any exposure, there can be no objective reasonable fear of cancer. The trial court erred in not granting Petitioner's motion for JNOV with respect to these Respondents' emotional distress claims.
For the remaining Respondents' fears to be objectively reasonable, they must have a rational basis to apprehend reasonably that they would develop cancer as a result of exposure to the toxic substances of the leak. The evidence presented at trial indicated that all Marylanders are exposed to toxic substances (some carcinogens, some mutagens) in our daily lives.
204 Md.App. 1, 128-29, 40 A.3d 514, 590 (2012) (J. Eyler, dissenting and concurring) (emphasis added). Claiming mere exposure to MTBE as a result of the leak is insufficient under the standard we adopted in Albright. Based on the evidence presented, mere exposure to MTBE would not lead a reasonable person in the Respondents' position to believe that they will develop cancer.
Respondents' claims arise from the same factual background as in Albright. In Albright, we determined that the rational basis for an objective and reasonable fear arising from the leak's toxic exposure was at the point a reasonable person under these circumstances would believe that a toxic chemical was actually present in their potable water.
None of the Respondents' evidence or testimony provided sufficient manifestation of physical injury as a matter of law. As we discussed in Albright, to sustain an award for emotional distress for fear of cancer, a plaintiff must prove that as a result of actual exposure and his or her objective reasonable fear, he or she sustained an objectively demonstrable physical injury manifesting emotional distress, which may include a mental state, physiological or psychological symptoms, or an actual physical harm. 433 Md. at 358-64, 71 A.3d at 63-67. Pursuant to Vance v. Vance, 286 Md. 490, 500-01, 408 A.2d 728, 733-34 (1979), and Hunt v. Mercy Med. Ctr., 121 Md.App. 516, 524-25, 710 A.2d 362, 366 (1998), a physical injury is manifested and objective if the evidence is not conclusory or speculative, and provides some quantifiable basis for the jury to determine the appropriate award.
The trial court erred in denying Petitioner's motion for JNOV with respect to the emotional distress awards entered in favor of Respondents who did not testify, and therefore presented no evidence to show that they experienced any emotional distress.
The trial court erred in denying Petitioner's motion for JNOV regarding the awards for emotional distress entered in favor of Respondents who briefly and intermittently mentioned in testimony and provided minimal-to-no evidence of emotional distress.
Most of these Respondents did not provide any supporting medical testimony as to their emotional distress. Further, these Respondents, based on the opinion of their expert, Dr. Rudo, asserted that their physical injuries included subcellular changes as a result of exposure to MTBE's likelihood of causing cell mutation and increasing the risk of cancer. As discussed in Albright, however, such injuries are not compensable in Maryland without symptoms of disease or actual impairment. 433 Md. at 362, 71 A.3d at 66. There is no such evidence or testimony in this record. We reverse those judgments and remand to the Court of Special Appeals with directions to order remand to the Circuit Court for the entry of judgment in favor of Petitioner.
Our holdings by no means exclude the filing of future actions by those Respondents who may develop, unfortunately, a future latent disease as a result of exposure to the 2006 leak. Such claims would not be barred by res judicata or the statute of limitations: the tolling period for causes of action for latent disease would begin to run only when a plaintiff knew or should have discovered reasonably the nature and cause of the disease. See Hecht v. Resolution Trust Corp., 333 Md. 324, 334, 635 A.2d 394, 399 (1994); Pierce v. Johns-Manville Sales Corp., 296 Md. 656, 663, 464 A.2d 1020, 1025 (1983).
Maryland recognizes now a remedy of recovery for medical monitoring costs due to enhanced risk from sufficient exposure to toxic substances resulting from defendant's tortious conduct. Albright, 433 Md. at 381-82, 71 A.3d at 77-78. Petitioner argues that the trial court erred in denying its motion for JNOV regarding damages for medical monitoring. Respondents urge us to affirm the jury's awards for medical monitoring costs to all of the Respondents. Our consideration of these contentions requires us to view the evidence in the record "taken in the light most favorable to the nonmoving party." Gallagher, 182 Md.App. at 101, 957 A.2d at 632. Viewing the evidence in that light, we conclude that it was insufficient to sustain the jury's awards for medical monitoring and thus hold that the trial court was legally incorrect in denying Petitioner's motion for JNOV.
To sustain an award for recovery of medical monitoring costs, a plaintiff must show that such costs are necessary due to a reasonably certain and significantly increased risk of developing a latent disease as a result of exposure to a toxic chemical. Albright, 433 Md. at 389-90, 71 A.3d at 83. In determining whether to award relief, a court must consider whether the plaintiff has shown: (1) that the plaintiff was exposed significantly to a proven hazardous substance through the defendant's tortious conduct; (2) that, as a proximate result of significant exposure, the plaintiff suffers a significantly increased risk of contracting a latent disease; (3) that increased risk makes periodic diagnostic medical examinations reasonably necessary; and (4) that monitoring and testing procedures exist which make the early detection and treatment of the disease possible and beneficial. Id. To determine what is a "significantly increased risk of contracting a latent disease" for a particular plaintiff, the plaintiff must present quantifiable and reliable medical expert testimony that indicates the individual plaintiff's particularized chances of developing the disease
Here, the jury awards indicated that if, at any point in time, a household's potable well had a MTBE reading above 0.5 ppb, the members of that household received 100% of his or her claimed costs for future medical monitoring; if the MTBE reading was less than 0.5 ppb, that individual received 50% of his or her claimed costs for future medical monitoring; and, lastly, if a household's potable well never tested positively for MTBE, each member of that household nonetheless received 25% of his or her claimed future medical monitoring costs. As discussed in our summary of the contamination results in Section II of the procedural history of this case, tests of the potable wells on the all properties showed that seventeen properties did not suffer any contamination as a result of the leak. Monitoring well results show that benzene levels above the action level were found only in five of the Respondents' potable wells, while six of the properties contained contamination above the MTBE action level.
Those Respondents who owned and/or resided on properties where the potable well lacked any contamination failed to show exposure to a toxic substance, which is a threshold requirement to recover for medical monitoring.
As discussed in our analysis related to emotional distress damages for fear of contracting cancer, the evidence demonstrates that most Marylanders are exposed to MTBE every day. Evidence at trial demonstrated that exposure to MTBE above the 20 ppb action level is still considered safe, and that the selected 20 ppb standard measures merely the point at which an individual's level of tolerance to the odor and taste of MTBE in water becomes an impediment to its consumption. Those who are exposed to MTBE or benezene at well-recognized safety levels are no more at risk of developing a latent disease than the rest of the population — much less face a significantly increased risk in relation to other Marylanders' exposure to MTBE. Hence, those Respondents whose properties tested below 20 ppb are not suffering, as a matter of law, a significantly increased risk of developing a latent disease for which medical monitoring costs are necessary.
Lastly, Respondents from the remaining six households
No such evidence was presented in this case. Although some Respondents consulted with Dr. Malik and were evaluated for their described symptoms, neither Dr. Malik nor Dr. Brautbar indicated any particularized evidence that an individual Respondent faced an increased risk of developing a future disease that was significantly higher than similar risks posed to the general population. Rather, Respondents' expert testimony generalized that all Respondents faced a significantly increased risk of developing a future disease, without providing individual assessments of any Respondent. Accordingly, the trial court erred in denying the Petitioner's motion for JNOV with regard to these Respondents. We reverse those judgments and remand to the Court of Special Appeals with directions to direct entry of judgment in favor of Petitioner.
Respondents sought damages for diminution in their property values as a result of the leak. The jury found that all of their properties had become worthless, and awarded the owners of each home 100% of the pre-leak market value based on (1) the difference in market value prior to and subsequent to when notice of the leak became public; and, (2) loss of use and enjoyment for the time between the date of the leak to the commencement of trial. Judge Baldwin granted Petitioner's blanket post-trial motion challenging the award, but as to only three Respondents' households who had sold their homes following the leak,
Petitioner appeals Judge Baldwin's denial of its motion for a new trial or, in the alternative, a remittitur (on the basis of excessive compensatory damages) because (1) the testimony of Respondents' real estate appraisal expert, Kenneth Acks, was inadmissible; (2) Respondents produced insufficient evidence to warrant a jury verdict
We hold that the trial court was correct in admitting Acks' expert testimony. Nevertheless, we hold also that, because no competent evidence in this record indicated that Respondents' properties had "zero value," the trial court's denial of Petitioner's motion for JNOV or a new trial was erroneous. Thus, Respondents shall receive a new trial for their claims of property damage based on diminution in value, in light of our decision in Albright, 433 Md. at 395-426, 71 A.3d at 86-105.
Ordinarily, an abuse of discretion standard governs appellate scrutiny of the admissibility of expert testimony and the denials of motions for a new trial or remittitur. We will find an abuse of discretion when the court's ruling is "clearly against the logic and effect of facts and inferences before the court[,]" when the decision is "clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result[,]" when the ruling is "violative of fact and logic[,]" or when it constitutes an "untenable judicial act that defies reason and works an injustice." Powell v. Breslin, 430 Md. 52, 62, 59 A.3d 531, 537 (2013) (citing North v. North, 102 Md.App. 1, 13-14, 648 A.2d 1025, 1031 (1994) (internal quotation marks omitted)). Thus, the admissibility of expert opinion "is within the sound discretion of the trial judge and will not be disturbed on appeal unless clearly erroneous." Blackwell v. Wyeth, 408 Md. 575, 618, 971 A.2d 235, 261 (2009) (quoting Wilson v. State, 370 Md. 191, 200, 803 A.2d 1034, 1039 (2002)); see Radman v. Harold, 279 Md. 167, 173, 367 A.2d 472, 476 (1977) ("[T]he trial court's determination [regarding expert qualification]... may be reversed if it is founded on an error of law or some serious mistake, or if the trial court clearly abused its discretion.").
When a trial judge denies a motion for a new trial and/or remittitur based on the excessiveness of compensatory damages, we consider his or her exercise of discretion based on "whether the verdict is `grossly excessive,' or `shocks the conscience of the court,' or is `inordinate' or `outrageously excessive,' or even simply `excessive.'" Banegura v. Taylor, 312 Md. 609, 624, 541 A.2d 969, 976 (1988). The grant or denial of a motion for a new trial is "within the sound discretion of the trial court." Buck v. Cam's Broadloom Rugs, Inc., 328 Md. 51, 56, 612 A.2d 1294, 1296 (1992) (quoting Brinand v. Denzik, 226 Md. 287, 292, 173 A.2d 203, 206 (1961)). We reverse the trial court's denial of a motion for a new trial and/or remittitur only upon a showing that the trial court abused its discretion. See Merritt v. State, 367 Md. 17, 28, 785 A.2d 756, 763 (2001).
The admissibility of expert testimony generally is subject to evaluation
"Expert testimony is required ordinarily to establish diminution in property value resulting from environmental contamination." Albright, 433 Md. at 418, 71 A.3d at 100; Hous. Auth. of City of New Brunswick v. Suydam Investors, LLC, 355 N.J.Super. 530, 810 A.2d 1137, 1150 (Ct. App.Div.2002) ("[T]he effect of environmental contamination upon a property's value must be determined on the basis of expert appraisal evidence."), aff'd in part and rev'd in part on other grounds, 177 N.J. 2, 826 A.2d 673 (2003).
In evaluating the factual basis of an expert's testimony, "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing." Md. R. 5-703(a). If those facts or data are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence." Id.
Acks' estimation of property values in the instant case was buttressed by the following facts and data: (1) the stipulated pre-leak appraised values of the Respondents' homes; (2) the presence of actual potable well contamination; (3) another expert's determinations of the risk of future contamination;
Petitioner challenges the admission of Acks' testimony under the third requirement of Maryland Rule 5-702, asserting that (1) the methodology underlying his diminution in value estimates was unreliable; and (2) those estimates lacked a sufficient factual basis because he ignored actual comparable sales of real property
Petitioner first asserts that Acks' conclusions "ignored" the comparable sales of forty-nine properties, five of which belonged to plaintiffs, located near or within a half-mile radius of the strike line. Comparable sales are often utilized in determining fair market value of single-family residential properties, and "ha[ve] long been accepted in Maryland." Albright, 433 Md. at 423, 71 A.3d at 103; Bern-Shaw Ltd. P'ship v. Mayor & City Council of Balt., 377 Md. 277, 289, 833 A.2d 502, 509 (2003) (citing Brinsfield v. City of Balt., 236 Md. 66, 202 A.2d 335 (1964)) (discussing use of comparable sales in condemnation cases). The use of comparable sales data, however, is not the only methodology accepted to appraise the fair market value of a residential property. See Albright, 433 Md. at 423-24, 71 A.3d at 103-04. The record indicates that, rather than ignoring the data of comparable sales in the strike line area, Acks thought the comparable sales were of minimal use to his assessment of the value of Respondents' properties, either because (1) the four properties sold by plaintiffs since the leak were "low-hanging fruit,"
Acks recognized thus the existence of the comparable sales data and explained his reasons for rejecting or minimizing the utility of that information in his appraisal calculations, rather than completely rejecting the use of such data, as alleged by Petitioner.
Likewise, the exclusion of market fluctuations in Acks' appraisals did not render his testimony inadmissible. Acks considered the data of the 2006, 2007, and 2008 Baltimore County housing market provided by the Maryland Association of Realtors, but concluded that, as the market went up in 2006 and 2007, but dropped in 2008, the fluctuations were not helpful in his assessments. Petitioner's claim that Acks did not reach the same conclusions as its own expert, based on the same data, is a "critique going to the weight, not the
Lastly, we examine Petitioner's assertion that Acks' methodology rendered his testimony inadmissible. Petitioner contends that Acks used "`combined' aspects of various methodologies," instead of a single commonly accepted appraisal method. To constitute reliable methodology, "an expert opinion must provide a sound reasoning process for inducing its conclusion from the factual data" and must have "an adequate theory or rational explanation of how the factual data led to the expert's conclusion." CSX Transp., Inc. v. Miller, 159 Md.App. at 202-03, 858 A.2d at 1071. The explanation must not be conclusory, or constitute a "because I say so" approach. Wood v. Toyota Motor Corp., 134 Md.App. 512, 525, 760 A.2d 315, 323 (2000) (concluding that the trial judge had not erred in excluding an expert's opinion where the expert determined that the cause of the plaintiff's injuries was the size and location of the vent holes in an air bag in a motor vehicle, but provided no rational explanation why such information had anything to do with the injuries sustained).
Acks stated that he employed a combination of methods because, in his experience, the leak presented an unusual situation requiring several methods to obtain the most accurate appraisal of the leak-impacted properties. Further, he cited a peer-reviewed publication that recommended the use of several "techniques" of valuation in instances of toxic substance contamination of groundwater in rural areas.
Respondents' expert's testimony indicates that, although he did not identify a peer-reviewed article sanctioning the exact
For expert testimony to be admissible, his or her conclusions must be based on a sound reasoning process explaining how the expert arrived at those conclusions. Here, Acks' calculations included consideration of market fluctuations and recognition of comparable sales data, using a combination of reasonably explained methods, but did not reach the same conclusions as Petitioner's experts based on that information. The trial court thus did not abuse its discretion in finding Acks' testimony admissible.
In addition to recovering for emotional distress damages for fear of cancer, Respondents sought and recovered damages for the diminution in value of their properties; the loss of use and enjoyment of their properties; nuisance due to annoyance, embarrassment, inability to use their yards, noise, dust, and unusual traffic; and, anxiety about the loss in value of their properties. Petitioner challenges these judgments in its conditional cross-petition, arguing that Maryland law denies compensation for emotional distress resulting from damage (or fear of damage) to property. Petitioner therefore asks us to adopt Judge James Eyler's dissenting and concurring opinion in Ford reversing the emotional distress awards and allowing only thirty-five of the Respondents to pursue emotional distress claims at a new trial. In light of our decision in Albright, 433 Md. at 395-98, 71 A.3d at 86-88, we hold that Maryland law does not recognize ordinarily recovery for emotional distress resulting from injury to real property, and therefore reverse all judgments of such awards to all Respondents.
We recognized in Albright that ordinarily, absent evidence of fraud or malice in the underlying tort, emotional distress resulting from property damage (or fear of property damage) is not compensable in Maryland. Albright, 433 Md. at 396-97, 71 A.3d at 87; Ford, 204 Md.App. at 101, 40 A.3d at 573 (Eyler, J., concurring and dissenting in part). See also H & R Block, Inc. v. Testerman, 275 Md. 36, 48-49, 338 A.2d 48, 55 (1975), abrogated on other grounds by Owens-Illinois v. Zenobia, 325 Md. 420, 601 A.2d 633 (1992), (recognizing that "Maryland decisions have generally denied compensation for mental anguish resulting from damage to property"); Zeigler v. F. Street Corp., 248 Md. 223, 226, 235 A.2d 703, 705 (1967) (emotional distress damages attendant to injury to property may be recovered only where there is fraud or malice). As the jury rendered judgment in favor of Petitioner
When trial began, Petitioners sought damages for diminution in their properties' market values and the loss of use and enjoyment, with each owner claiming damages for the difference between the fair market value of property before disclosure of the leak and its fair market value after disclosure. The evidence at trial focused on the post-leak value because the parties stipulated to the pre-leak value of those properties.
First, we note that Andrea Greco and Veronica Greco withdrew their claims for property damages and resulting diminution in value. Nonetheless, they received property damages equal to the full pre-leak value of their property. Thus, the Circuit Court erred in denying Petitioner's motion for JNOV with respect to the Grecos' claims. We reverse that judgment and remand to the Court of Special Appeals with directions to remand to the Circuit Court for the entry of judgment in favor of Petitioner.
Second, in light of Albright, those Respondents here who owned or resided in non-detect properties
Third, as the remaining Respondents requested damages for diminution in value based on the difference between their properties' pre-leak fair market value and fair post-leak market value (essentially, full compensation for a permanent injury), we presume that Respondents' property damage claims were based on their properties' allegedly permanent diminutions in value. The evidence presented at trial — namely, Acks' expert testimony, the evidence of contamination as to some of Respondents' properties, the evidence and testimony of Petitioner's experts that there was substantial value retained by Respondents' properties — raises a question for the jury as to whether Respondents
Petitioner asserts that the jury's finding that each property was "worthless" was contrary to all of the evidence. Petitioner maintains, and we agree, there was evidence showing that: Respondents' properties retained some market value after disclosure of the leak; although two of the eight Respondents who decided to sell their homes post-leak were unsuccessful,
Petitioner argues that the lay witness testimony had no probative value — or if it did, that value was limited to the homes of those owners.
Owners of seventy-three of the eighty-seven properties involved presently in this litigation testified as to their own opinion of their properties' post-leak value or as to the marketability of other properties in the neighborhood.
The reasons provided by the Respondents for the diminution in value of their homes were: (1) the lack of or diminished safety and convenience due to actual contamination of their properties' wells and the potential risk for future contamination;
Respondents described what they believed were the post-leak value of their properties; however, their testimony was not probative to measure damages for a property's diminution in value. Rather, such damages in a claimed toxic contamination situation must be measured by the market value of property — a definite valuation produced by analysis of the property in relation to any impact produced by contamination. See Albright, 433 Md. at 420-21, 423, 71 A.3d at 101-02, 103. This valuation may generally be made reliably only by expert testimony. Id. at 420-21, 71 A.3d at 101-02.
A landowner who testifies as to the value of his or her property is "not opining as to market value but rather is opining as to the effect of the contamination of the landowner's property." Ford, 204 Md.App. at 151, 40 A.3d at 602 (J., Eyler, J., concurring and dissenting.). It is well established that expert testimony is not required "on matters of which the jurors would be aware by virtue of common knowledge." Hartford Accident & Indem. Co. v. Scarlett Harbor Assocs., 109 Md.App. 217, 257, 674 A.2d 106, 125-26 (1996) (citing Babylon v. Scruton, 215 Md. 299, 307, 138 A.2d 375, 379 (1958)). As we recognized in Albright, the effect of contamination on a property's value is ordinarily beyond common knowledge and therefore requires expert testimony. See 433 Md. at 420-21, 71 A.3d at 101-02; see Ford, 204 Md.App. at 151, 40 A.3d at 602 (J., Eyler, J., concurring and dissenting.); Cunningham v. Masterwear Corp., 569 F.3d 673, 676 (7th Cir.2009) (concluding that, even though a property owner knew his property value at certain time periods, he could not offer a responsible opinion about the cause of a change in the value of his property; rather, the landowner needed evidence by a real estate agent or real estate appraiser to establish the contamination effect on his property's value); Hous. Auth. v. Suydam Investors, 355 N.J.Super. 530, 810 A.2d 1137, 1149-50 (Ct.App.Div.2002), aff'd in part and rev'd in part on other grounds, 177 N.J. 2, 826 A.2d 673 (2003) ("[T]he effect of environmental contamination upon a property's value must be determined on the basis of expert appraisal evidence.").
Respondents' testimony indicated that they believed their properties had decreased in value, but did not offer substantive valuations. Instead, several Respondents asserted in a conclusory fashion that they could not sell their properties in good conscience, and they believed therefore that their properties had zero sale value. While lay testimony may be relevant to any possible loss of use and enjoyment suffered in conjunction with Respondents' property damage claims, it offered no probative value as to the diminution in value claims. None of the Respondents — even those who identified themselves as real estate agents — testified as offered-and-accepted experts, and none testified based on any relevant training or expertise to accredit their lay opinions. While almost all
No evidence in this record supports the jury's verdict that Respondents' properties became worthless in terms of market value as a result of the leak; however, there is evidence that the properties suffered diminution in value. The trial court erred, however, in not performing an individualized assessment of each verdict in ruling on the motion for new trial or remittitur. Therefore, we hold that the trial court's denial of Petitioner's motion for a new trial was legally incorrect. We reverse the judgments in favor of Respondents who received awards despite owning or residing on non-detect properties. We reverse the jury's verdicts as to the remaining property diminution damage judgments, and direct remand of those cases for a new trial in light of our opinion here and in Albright.
Benzene is a toxic chemical classified as a carcinogen. It has an MCL of 5 ppb, as established by the EPA. The MDE has promulgated the same standard for benzene. See COMAR 26.04.01.07(D).
(Emphasis added). Apart from this testimony, Dr. Rudo did not testify as to any other Respondent's increased risk to contracting cancer.
(Emphasis added).
Sessions; panels; hearings in banc.
204 Md.App. at 272, 40 A.3d at 673 (D. Eyler, J.).
