WATTS, J.
This case involves an action brought by Brittany Hazelwood, appellee, against City Homes, Inc., appellant, for damages allegedly caused by her exposure to lead paint at 4 North Stockton Street, Baltimore, Maryland ("4 North Stockton"), a residence owned and operated by appellant. Following an eight-day trial, a jury sitting in the Circuit Court for Baltimore City returned a verdict in favor of appellee for a total of $5,100,000, including $900,000 in economic damages for lost earning capacity and $4,200,000 in non-economic damages. On post-trial motion, the circuit court reduced the non-economic damages award to $350,000 in accordance with the cap on non-economic damages, thereby reducing the total award to $1,250,000. After the denial of other post-trial motions and imposition of sanctions in the amount of $10,135.45 against appellant and in the amount of $10,000 against appellant's counsel, William C. Parler, Jr., appellant noted this appeal.
On appeal, appellant presents nine issues, which we consolidate and quote:
For the reasons set forth below, we answer questions I, VI, and VII in the affirmative. In light of our answer to question I, we do not address questions III, IV, V, or VIII, and briefly address question II for guidance. We vacate the circuit court's imposition of sanctions against appellant in the amount of $10,135.45 and against William C. Parler, Jr. in the amount of $10,000. We, therefore, reverse and remand the case for further proceedings consistent with this opinion.
Appellee was born November 23, 1990. Appellee resided at 4 North Stockton from July 1993 through 2000, where she was allegedly exposed to lead paint. Having purchased the property on December 30, 1986, appellant owned 4 North Stockton during the period in which appellee resided at the property. Appellee's blood-lead levels were tested and reported on seven separate occasions — on October 8, 1992, April 8, 1993, July 16, 1993, August 16, 1994, April 18, 1995, July 17, 1995, and November 3, 1998.
On May 28, 2009, appellee filed a Complaint and Demand for Jury Trial in the Circuit Court for Baltimore City against appellant and Barry Mankowitz, the person who "managed, maintained, operated and controlled the property at 4 N. Stockton Street." In the complaint, appellee alleged: (1) Negligence against appellant; (2) Unfair Trade Practices against appellant; (3) Negligence against Mankowitz; and (4) Unfair Trade Practices against Mankowitz.
On August 6, 2010, appellee filed an Amended Complaint and Demand for Jury Trial against appellant, Mankowitz, Helen H. Hunt, and the Estate of Helen H. Hunt. In the amended complaint, appellee alleged that appellant owned property located at both 4 North Stockton and 6 North Stockton Street ("6 North Stockton"), and that Mankowitz managed both properties. Appellee alleged that Hunt owned and
As to appellee's residency history, appellee alleged: from 1990 to 2000, she resided with her parents at 4 North Stockton;
On April 12, 2010, appellee's counsel sent a letter to appellant's counsel designating, inter alia, Dr. Eric Sundel and Christopher J. White as expert witnesses. As to Dr. Sundel, appellee stated:
As to White, appellee stated:
On October 26, 2010, appellant filed a Motion to Strike Arc Environmental Report, alleging that appellee failed to provide notice of lead testing occurring at 4 North Stockton on August 19, 2010, in violation of a scheduling order issued by the circuit court. Appellant contended that it was deprived of the opportunity to attend the lead testing, and thereby "not afforded an opportunity to ascertain what equipment was used for the testing, ... [and] to confirm that testing protocols for the lead samples were adhered to[.]"
Appellant requested that the circuit court strike a report prepared by White dated September 2, 2010, for 4 North Stockton titled "Lead-based Paint Survey Report (Exterior Only)" (the "September 2nd Report"). White prepared the report based on a lead-based paint testing data sheet completed by Arc technician Timothy Wilton as a result of the August 19, 2010, testing.
On November 12, 2010, appellant filed a Line withdrawing the motion to strike filed on October 26, 2010. On November 15, 2010, appellant filed a second Motion to Strike September 2, 2010 Arc Environmental Report, raising the same arguments made in the earlier motion. On November 30, 2010, appellee filed an opposition to the motion to strike the September 2nd Report, contending that the motion was moot as appellant permitted testing at 4 North Stockton "for the existence of lead paint on November 2, 2010[,] and [a] representative from [appellant]'s Counsel was present for the interior and exterior lead tests of [4 North Stockton] on November 2, 2010."
Attached to the opposition was a report dated November 5, 2010, prepared by White-based on technician Timothy Wilton's lead-based paint testing data sheet — for 4 North Stockton titled "Lead-based Paint Survey Report" (the "November 5th Report"). In the November 5th Report, White reported:
In the November 5th Report, White stated that Wilson used an "LPA-1 x-ray fluorescence (`XRF') spectrum analyzer, serial # 1373, manufactured by Radiation Monitoring Devices, Inc. (RMD)" to perform the survey. White stated that "[c]alibration check readings [were conducted] to ensure that [the] XRF instrument [was] within acceptable precision and accuracy levels throughout the entire inspection process." A handwritten note by Wilton stated that "a representative for defense counsel was present during testing."
On January 24, 2011, the circuit court issued an Order denying appellant's motion to strike the September 2nd Report as moot.
On April 8, 2011, appellant and Mankowitz filed a "Motion to Exclude [Appellee]'s Experts and Motion for Summary Judgment." As to Dr. Sundel, appellant and Mankowitz contended that Dr. Sundel "should be precluded from testifying as to the source of [appellee]'s alleged injuries or as to medical causation, as he lacks the qualifications and the factual basis to do so required by Md. Rule 5-702." Appellant and Mankowitz argued that Dr. Sundel was not qualified to opine as to the source of appellee's alleged lead exposure or the cause of appellee's alleged injuries. Appellant and Mankowitz argued that there were numerous reasons why Dr. Sundel was not qualified to render an opinion as to the source of lead exposure, including that he was not a Maryland certified risk assessor, he had not conducted a full risk assessment, he had not examined or spoken with appellee, he "formulated his opinions solely based on the records selected and submitted to him by [appellee]'s counsel[,]" he had not published any articles concerning lead or been involved in any studies related to lead, he had treated only one patient suffering from lead exposure, and he lacked "the ability to determine whether declining lead levels are indicative of previously ingested lead being redistributed or newly ingested lead."
Appellant and Mankowitz maintained that Dr. Sundel was not qualified to testify as to the source of appellee's injuries because he "did not have training or experience in determining whether lead exposure was the source of a patient's injuries[,]" and did "not follow a reliable methodology when formulating his opinions regarding [appellee]'s IQ loss [because] he `extrapolate[d]' from studies[.]" Appellant and Mankowitz asserted that Dr. Sundel lacked a "basic understanding of the relevant studies and surveys regarding lead exposure and medical causation." Appellant and Mankowitz maintained that Dr. Sundel lacked a sufficient factual basis to opine that 4 North Stockton was a substantial contributing factor to appellee's alleged injuries because his opinion was based solely on the "inadmissible testimony of [] White, and the fatally flawed and inadmissible Arc Environmental tests[,]" and the age of the property.
As to Arc Environmental, appellant and Mankowitz argued that the "reports [prepared] by Arc Environmental, and any testimony related to the reports, should be excluded as the ARC XRF test results are unreliable, unverifiable, and thus, inadmissible."
Appellant and Mankowitz contended that the September 2nd and November 5th Reports were inadmissible for two reasons: (1) the XRF machines used "detect other sources of lead and, therefore, the results of the A[rc] Report are unreliable, unverifiable and unfairly prejudicial"; and (2) the Arc Environmental testing "was not a full risk assessment and thus, the results cannot be relied upon." Specifically, appellant and Mankowitz alleged that the XRF machines tested more than the top layer of a given surface for lead, and instead "w[ould] test positive if there is lead within the substrate itself[,]" i.e. "lead well beneath the surface of the exterior layer of paint produces a positive result, even if no lead paint existed on the surface."
On April 26, 2011, appellee filed an Opposition to the motion to exclude and for summary judgment, contending that Dr. Sundel was qualified as an expert in pediatrics as a result of his knowledge, skill, experience, training, and education, and that "his testimony is appropriate on the particular subject of lead poisoning." Appellee argued that an expert's knowledge may come from many sources, and that Dr. Sundel's knowledge came "from his experiences and observations as a medical student and pediatrician[,] and his review of medical literature concerning lead paint poisoning." Appellee asserted that because Dr. Sundel is an expert in pediatrics, it was permissible for him "to testify that 4 N[orth] Stockton [] was, more likely than not, a source of [her] exposure to lead paint and consequent injuries." Appellee maintained that there was a sufficient factual basis for Dr. Sundel's opinions that lead exposure occurred at 4 North Stockton and substantially contributed to her injuries.
As to the September 2nd and November 5th Reports, and White's expert testimony, appellee contended that the reports "are reliable and fall within a hearsay exception, and [] White is qualified to render opinions within his realm of expertise:
On May 13, 2011, appellant and Mankowitz filed a Reply Memorandum in Support of Motion for Summary Judgment, reiterating the arguments for exclusion of the September 2nd Report, the November 5th Report, and Dr. Sundel's and White's testimony. On May 23, 2011, the circuit court held a hearing on the motion to exclude and for summary judgment. On May 31, 2011, the circuit court issued an order denying the motion to exclude appellee's experts "and/or exclude reports of Dr. Eric Sundel and Christopher White[,]" and the motion for summary judgment.
On May 26, 2011, appellant and Mankowitz began filing numerous pretrial motions, including a "Motion in Limine to Exclude [Appellee]'s Expert Dr. Eric Sundel and/or Request for Frye-Reed Hearing." Appellant and Mankowitz argued that Dr. Sundel lacked the qualifications necessary to offer an opinion as to the source of appellee's lead exposure and the cause of appellee's alleged injuries. On May 27, 2011, appellant and Mankowitz filed a "Motion in Limine to Exclude [Appellee]'s Expert Arc En[]vironmental Services and its Designee, [] White," arguing that the results of the September 2nd Report and November 5th Report and any testimony related thereto be ruled inadmissible.
On June 7, 2011, appellant and Mankowitz filed a Line withdrawing the previously filed pretrial motions, including the motions in limine to exclude Dr. Sundel's and White's testimony and the September 2nd Report and November 5th Report, indicating that the motions would be "re-filed at the appropriate time on or before" trial.
On August 24, 2011, the circuit court held a pretrial motions hearing. As to the motion in limine to exclude Dr. Sundel, the circuit court denied appellant's request for a Frye-Reed hearing concerning Dr. Sundel's testimony, and held the matter sub curia, ruling from the bench, in pertinent part, as follows:
As to the motion in limine to exclude White's testimony and the September 2nd Report and November 5th Report, the circuit court held the matters sub curia.
From August 26, 2011, to September 1, 2011, and September 6, 2011, to September 8, 2011, the circuit court conducted a civil jury trial.
As a witness for appellee, Mankowitz, the president of appellant, testified that appellant purchased 4 North Stockton in 1986, and that appellee's mother signed a lease for the property on July 6, 1993. Mankowitz testified that he was certified to operate an XRF machine, which tests for the presence of lead-based paint. According to Mankowitz, in the 1990s, Scientific Testing, a company owned by an individual named Tony Smelgas, conducted testing for lead at appellant's properties. Mankowitz testified that it was appellant's practice to place test results in "a folder for that particular property." According to Mankowtiz, if there was no document in a file of test results from Scientific Testing, then Scientific Testing did not conduct such testing.
According to Mankowitz, appellant began participating in studies with the Kennedy Krieger Institute, and, at some point prior to 1993, appellant "tried to send all the children seven and under for their protection to Kennedy Krieger to have their blood drawn and see if they had any... elevated lead in their blood." Mankowitz testified that appellee was tested at Kennedy Krieger Institute on July 16, 1993, and, at that time, had a blood lead level of 16 μg/dL. Mankowitz testified that, after appellant received the test results from Kennedy Krieger Institute, it did not inspect 4 North Stockton for lead hazards and did not move appellee or her family out of the property to remediate or repaint the house. Mankowitz testified that appellant depended on Kennedy Krieger Institute, "which was renowned in lead paint problems with young children[,] to give [them] the course of action."
On her own behalf, appellee testified that she recalled the baseboards and areas around the windows and windowsills on the first and second floors at 4 North Stockton had "[c]racked up[,]" or chipping, paint. Appellee testified that she remembered her mother complaining that the house at 4 North Stockton needed to be painted and she recalled her mother painting in the house after scraping the walls. Appellee acknowledged that, at deposition, she testified that, as a child, she moved back and forth a couple of times between 4 North Stockton and 1606 Lemmon, where she resided for a couple of months at a time.
As a witness for appellee, during voir dire, Dr. Sundel testified that he was currently employed at the Baltimore-Washington Medical Center and served as chairman of the Department of Pediatrics from 2004 until January 2011. Dr. Sundel testified that he is a board-certified pediatrician licensed to practice medicine in Maryland. Dr. Sundel described his medical training as follows: he attended Boston University School of Medicine for four years, and completed a pediatric internship and pediatric residency — a total of three years — at Bayview Hospital Columbia Presbyterian Medical Center in New York City. Dr. Sundel testified as follows as to the evaluation and treatment of a child with lead poisoning during his internship and residency:
Dr. Sundel testified that, after his internship and residency, he was an attending pediatrician for one year at Lincoln Hospital in New York City. After leaving Lincoln Hospital, Dr. Sundel completed a pediatric fellowship for two years at Sinai Hospital of Baltimore and Johns Hopkins Hospital in Baltimore. Dr. Sundel testified that the pediatric fellowship entailed teaching medical students and young doctors, and learning how to conduct clinical research.
Dr. Sundel's curriculum vitae listed publications, which Dr. Sundel acknowledged did not concern the topic of childhood lead poisoning. Dr. Sundel testified, however, that as a pediatrician, he keeps current with childhood lead poisoning issues because, working in the pediatric emergency department, he needs to be able to understand the "different things that can cause" illnesses he tries to treat. Dr. Sundel explained that, for example, lead poisoning or lead toxicity can cause seizures, encephalatrophy, acute mental status changes, and abdominal pain. Dr. Sundel testified that he is familiar with the Centers for Disease Control (the "CDC") and its articles and documents concerning lead poisoning, including a 1991 article and a 2005 article, both entitled "Preventing Lead Poisoning in Young Children." Dr. Sundel testified that he is familiar with the American Academy of Pediatrics (the "AAP") and its statement concerning childhood lead poisoning. Appellee's counsel asked what information, if any, the CDC and AAP publications contained concerning a pediatrician making an inquiry into a source of lead exposure, and Dr. Sundel responded as follows:
Dr. Sundel testified that he is familiar with Nelson's Textbook on Pediatrics, which covers the issue of childhood lead poisoning and discusses potential sources of exposure to children.
Dr. Sundel testified that, based on his review of the literature, as well as his training and experience, pediatricians are trained to inquire about the potential sources of lead exposure as follows:
Appellee's counsel asked Dr. Sundel if there was any significance to there being flaking and chipping paint in an older house with a child who may have a tendency to put non-food particles in their mouth. Dr. Sundel responded:
Dr. Sundel acknowledged that he is not a certified lead risk assessor. Dr. Sundel testified that he has appeared and testified previously in court as an expert in a case involving child abuse, but conceded that he had never testified in court as an expert in a lead paint poisoning case. Thereafter, appellee's counsel offered Dr. Sundel as an expert in the field of pediatrics, including childhood lead poisoning.
During voir dire cross-examination, Dr. Sundel admitted that he was not a psychologist or neuropsychologist, and that he does not administer IQ or achievement tests. Dr. Sundel acknowledged that his one instance of involvement with chelation therapy occurred in the mid-1980s when he was a first or second year resident, and that, since that time, he could not recall being involved with any children receiving chelation therapy. Appellant's counsel questioned Dr. Sundel regarding deposition testimony, in which he admitted that, after being asked by appellee's counsel to testify as an expert, he went back to the literature to "bone up," but, when questioned, could not recall the articles he had read or reviewed. Dr. Sundel agreed that he did not have any accreditations or certifications related to lead inspection or lead assessments, and that he had never been involved in any Baltimore City tests of drinking water and soil for lead nor involved in any Maryland Department of the Environment studies on lead in the soil. Dr. Sundel acknowledged that he was not involved with the lead testing of 4 North Stockton, and had never visited the property. Dr. Sundel agreed that he was not aware of any peer reviewed medical or scientific literature stating that an expert may opine as to a source of lead ingestion by reviewing records, and that he had not published any articles related to lead, been involved in any studies related to lead, or delivered lectures on the topic of lead or lead ingestion. When asked by appellant's counsel whether, during the course of his career as a pediatrician, he had ever treated a child for symptoms or problems related to lead ingestion where he "determined that the child was injured or had some issue related in any way to lead[,]" Dr. Sundel responded: "Not that I recall." Dr. Sundel conceded that he had not taken a medical or nutritional history of appellee.
According to Dr. Sundel, a differential diagnosis is "sort of trying to consider the different possible causes of a chief complaint, the reason that someone is sick." Dr. Sundel testified that he could not remember having performed a differential diagnosis on a pediatric patient in which he had determined that the symptoms were due to lead ingestion.
After voir dire of Dr. Sundel, the jury was excused, and appellant's counsel objected pursuant to Maryland Rule 5-702(1) and (3) to Dr. Sundel being accepted as an expert. The circuit court overruled the objection, ruling, in pertinent part, as follows:
After the ruling, Dr. Sundel's testimony commenced. Dr. Sundel testified that he was provided records concerning appellee — including birth records, Kennedy Krieger Institute medical records, Baltimore City Health Department medical and environmental records, Maryland Department of Health and Mental Hygiene medical records, Maryland Department of the Environment medical records, school records, the Arc Environmental reports, a neuro-psychological report, the State Department of Assessment and Taxation records for the residences where appellee resided listing the year the homes were built, and appellee's and her father's deposition testimony — which he reviewed prior to issuing a written report on November 28, 2010. Dr. Sundel testified that he reviewed the various records regarding appellee's blood lead levels, and that the levels remained elevated for several years. Dr. Sundel testified that his review of the records indicated that appellee resided at and visited 4 North Stockton frequently and that this was significant because:
Appellee's counsel asked the basis for Dr. Sundel's opinion as to where appellee may have been exposed to lead, thus resulting in elevated blood lead levels. Dr. Sundel responded that "the main source of exposure for the majority of children in the United States is the residence where they live or spend a lot of time[,]" and that "[t]he older the home is, the more likely that lead-based paint was used." Dr. Sundel testified that a home built in 1900, like the residence at 4 North Stockton, would have a "higher risk" than a home built twenty, forty, or sixty years later. Dr. Sundel testified that "we know ... there was a lot of lead-based paint at 4 North Stockton [] because [of] the ARC study... [and] that there are multiple areas [] where the interior of the home seems not to have been in a good condition shortly after [appellee] moved into 4 North Stockton []." Dr. Sundel opined to a reasonable degree of medical probability that 4 North Stockton was the location where appellee was exposed to flaking and chipping lead-based paint.
Dr. Sundel testified that he reviewed appellee's school records and that appellee "academically [] had a lot of trouble." Dr. Sundel explained that elevated blood lead
Dr. Sundel testified that, academically, appellee had difficulties with certain subjects and with other school performance issues, such as "with listening comprehension, with attending to task, with coping skills, with ability to handle frustration, ability to follow directions, [and] ability to follow classroom and school rules." Dr. Sundel opined to a reasonable degree of medical probability that lead exposure at 4 North Stockton was a substantial contributing factor to injuries appellee sustained, which he described as "[c]ognitively she sustained loss of IQ points. Behaviorally, she sustained damage in terms ... of aggressiveness, in terms of externalizing behaviors in terms of hyperactivity." Dr. Sundel offered the opinion that lead exposure was a substantial contributing factor to appellee's "brain impairment[.]" Dr. Sundel opined that "the permanent injuries" appellee sustained resulted from exposure to flaking, chipping, lead-based paint at 4 North Stockton.
On cross-examination, Dr. Sundel testified that he was first contacted by appellee's counsel by letter dated November 15, 2010, when he was asked to formulate opinions based on documents sent to him. Appellant's counsel questioned Dr. Sundel as to how appellee's counsel designated him as an expert and stated what his opinion would be in a letter dated April 12, 2010, months before he was contacted and received any records related to the case. Dr. Sundel responded that he did "[n]ot really" know how that occurred. Dr. Sundel admitted that appellee's case was his first lead paint case and the first time he ever had his deposition taken.
Dr. Sundel acknowledged that, prior to trial, he had no contact with appellee or her family, and had not examined appellee. Dr. Sundel agreed that he was not provided with a household questionnaire form completed by appellee's family and that he never requested that appellee or her family complete such a questionnaire form. Dr. Sundel conceded that he never met with appellee to conduct a medical history nor conducted soil lead tests at 4 North Stockton. Dr. Sundel testified that he never met with appellee's family to inspect the residences she visited or resided in or to ask questions as to whether appellee had access to or chewed on woodwork, furniture, and toys as a child.
Dr. Sundel admitted he had never administered an IQ test, and acknowledged that, during his deposition, he testified that appellee has lost three to five IQ points or four to ten IQ points. Dr. Sundel acknowledged that he does not know how to score an IQ test, and responded that he did not know whether the standard of error of measurement of the Weschler IQ test was plus or minus three points. Appellant's counsel asked Dr. Sundel
As a witness for appellee, White testified that he is the program manager for the lead-based paint group at Arc Environmental, which he described as an environmental consulting firm that, among other things, conducts lead surveys, mold testing, asbestos sampling, and indoor air quality testing. White testified that he is a licensed lead-based paint assessor in Maryland and several other jurisdictions, and has received training on the operation of XRF machines. White described the XRF machine as follows:
White testified that he has used the XRF machine previously in conducting several hundred lead surveys. White testified that he prepares reports describing the lead surveys.
Appellee's counsel moved to have the circuit court accept White as an expert in lead risk assessment, and the parties voir dired White as to his qualifications. Out of the presence of the jury, appellant's counsel argued that White not be permitted to testify as an expert because he was not qualified to offer an opinion, did not conduct the testing, lead risk assessment or lead inspection of 4 North Stockton, was not present during the testing, and had no personal knowledge of the testing. The circuit court ruled from the bench:
The jury returned, and the circuit court announced that White had been accepted as an expert in lead risk assessment and lead inspection. White testified that Wilton conducted lead testing at 4 North
The following exchange occurred when appellee's counsel asked White questions about the procedures Wilton used when conducting the August 19, 2010, lead test:
White testified that the Scitec MAP4 machine was used to conduct lead testing on August 19, 2010, and that he was familiar with the machine and had been trained on the use of the machine. White testified that Wilton used the Scitec MAP4 machine by placing it against the component he was testing, pulling the trigger on the machine, and waiting for the machine to provide a digital reading. According to White, at the time of the August 19, 2010, lead testing, a positive lead reading was anything greater than 0.7 milligrams per centimeter squared, and that three of the nine readings taken on August 19, 2010, were classified as positive — the basement door jamb, the first floor door jamb, and the first floor door casing.
As to the presence of lead paint on surfaces at 4 North Stockton, appellee's counsel asked White for his opinion in the following exchange:
The circuit court overruled appellant's counsel's objection and motion to strike White's testimony regarding lead-based paint existing prior to 2010. White testified that, had additional readings been taken and tested negative, his opinion would remain unchanged "as it pertains to the components that we did find to be positive."
During cross-examination, appellant's counsel requested that White set up the XRF machines — the Scitec MAP4 and the RMD LPA-1 — in the mode in which they were used when Wilton performed the testing at 4 North Stockton. Appellant's counsel asked that White demonstrate how the Scitec MAP4 is calibrated, and that after calibrating the machine, he take a test reading of a courtroom wall. As to the Scitec MAP4 machine, appellant's counsel asked whether the machine would detect lead "regardless of whether the lead is in the outermost layer of the paint or all the way down to the bottom layer of many layers of paint[.]" White responded "yes[,]" and testified "that's the standard for any XRF." White acknowledged that it is possible that the XRF could give a positive reading for lead of a door that had been painted with lead-based paint but subsequently painted with ten coats of unleaded paint.
During the in-court demonstration, White had difficulty switching the Scitec MAP4 machine to the proper mode, stating: "I'm just trying to maneuver and it's giving me a problem." White testified that the RMD LPA-1 machine has different performance characteristics, although the calibration procedure is the same as that of the Scitec MAP4 machine. White performed three calibration testings with the RMD LPA-1 machine. With the jury excused, White was asked to perform a
At the beginning of the next day of trial, appellee's counsel moved to admit Plaintiff's Exhibit Nos. 14 and 15, the September 2nd Report and the November 5th Report. The circuit court admitted the reports into evidence over appellant's objection and ruled that White's expert testimony was admissible, stating as follows:
At the conclusion of White's testimony, appellant's counsel moved to strike the testimony, arguing that White had never been trained or certified in the operation of the Scitec MAP4 machine, and could not operate the machine in court, and that White had received minimal manufacturer training on the RMD LPA-1 in 2010. Appellant's counsel contended that the 40 shot surveys conducted by Arc Environmental do not constitute a lead risk assessment, and that the existence of lead paint is not violative of the city housing code or any state statute or regulation. Appellant's counsel asserted that White's testimony was not probative and that White was not qualified to testify. Appellant's counsel maintained that the Arc Environmental Reports were unverifiable as White was unable to testify as to the location of the readings. The circuit court denied the motion to strike White's testimony, ruling:
As a witness for appellant, Patrick Connor, an environmental consultant and licensed lead risk assessor, testified that he is the president of a company known as Connor Environmental, which conducts environmental engineering and, specifically, forensic work in the area of lead-based paint. Connor testified that he is an accredited instructor for the State of Maryland for lead-based paint inspectors and a lead risk assessor. Connor was accepted as an expert in the field of lead risk assessment and identifying lead hazards.
Connor testified that a full risk assessment consists of an "on-site investigation
The following exchange occurred between appellee's counsel and Connor:
(Emphasis added). Connor testified that he had "no reliable evidence of lead-based paint at 4 North Stockton."
At the conclusion of Connor's testimony, appellee's counsel requested a bench conference, and the following occurred:
Appellee's counsel informed the circuit court that appellant's counsel did not have a copy of the December 29, 1993, report referenced by Connor, and appellee had been prejudiced by the failure to produce the document. The circuit court advised that it would appreciate appellant's counsel's "best efforts to get the materials to [appellee's counsel] as quickly as possible[,]" and stated that "the motion for sanctions which remains open and under advisement is necessarily going to be the subject of briefing."
After the jury had begun deliberating but before a verdict was returned, the circuit court received a letter from Parler, appellant's counsel, via facsimile, stating as follows:
Attached to the letter, Parler provided an eleven-page report titled "Kennedy Krieger Institute Spectrum Analyzer" for 4 North Stockton dated December 29, 1993. The report indicates that lead was detected on multiple surfaces, labeled as being in an "intact" condition, throughout 4 North Stockton, including on door frames, windows, and baseboards. One window jamb that was "non-intact" tested positive for lead.
On September 8, 2011, prior to the return of a verdict, the circuit court briefly addressed the facsimile, noting that the Kennedy Krieger report "appear[ed] to be a very thorough analysis room by room on December 29th, 1993, and there's some suggestion in the face of Mr. Parler's letter that this document wasn't formally requested by [appellee]. I just can't imagine... any scenario where a study of ... 4 North Stockton and the identification of lead content in any of the rooms and windows and doors in December of 1993 would not have been a critically relevant document."
The jury returned a verdict in favor of appellee, answering "yes" to the following four questions: (1)"[D]o you find that there was flaking, loose, or peeling paint at 4 North Stockton [] at the beginning of
On September 14, 2011, appellant filed a "Motion for a New Trial or in the Alternative, Motion to Alter or Amend the Judgment," requesting a new trial because Dr. Sundel "was neither qualified nor had a factual basis for his testimony" as to the source of appellee's lead exposure, and Dr. Sundel was not qualified to testify as to the source of appellee's alleged injuries, i.e. what caused appellee's injuries. In addition, appellant argued that: (1) the non-economic damages award must be reduced from $4,200,000 to $350,000 pursuant to the applicable statutory cap on non-economic damages; (2) the economic damages award must be reduced from $900,000 to $461,934, as Dr. Lurito testified that the present value of appellee's future lost earning capacity and appellee only sought future lost earning capacity in the amount of $461,934; and (3) its total liability as a charitable organization could not exceed $1,000,000, the limit of its liability insurance policy.
On September 19, 2011, appellant filed a "Motion for New Trial — Supplemental Submission," asserting that it was deprived of a fair trial because Juror Number Four was not qualified to serve on the jury as a result of prior criminal convictions. On September 21, 2011, appellant filed a "Second Supplemental Submission in Support of [Its] Motion for New Trial." In a footnote in the second supplemental submission, appellant noted that it had "issued a subpoena to the [c]ircuit [c]ourt [] Jury Commissioner for the executed questionnaire[] for [J]uror [Number Four.]" On September 29, 2011, appellant filed a "Motion for New Trial — Third Supplemental Submission or, in the Alternative, Motion for New Trial Pursuant to Md. Rule 2-535(c)," alleging that: "Beyond [Juror Number Four]'s statutory lack of qualifications to serve as a juror, the nature of his convictions, all drug related, rendered him both disqualified and inherently biased to consider issues related to [appellee]'s impairment due to drug use or abuse."
On September 30, 2011, appellee filed an opposition to the motion for new trial. Appellee contended that the issue of Dr. Sundel's testimony was not appropriately raised in a motion for new trial as the issue had been raised and decided in connection with pretrial motions for summary judgment and in limine. On the merits, appellee contended that Dr. Sundel was qualified to testify as an expert in pediatrics and childhood lead poisoning, and that there was a strong factual basis underpinning his opinions. On October 24, 2011, appellant filed a Reply in support of its motion for new trial.
On September 16, 2011, appellant filed Motion for Judgment Notwithstanding the
On October 4, 2011, appellee filed an opposition to the Motion for Judgment Notwithstanding the Verdict, arguing, in pertinent part:
On September 21, 2011, appellant sent a Notice to Take Deposition Duces Tecum and Subpoena to Nancy Dennis of the Office of the Jury Commissioner for the Circuit Court for Baltimore City requesting a copy of the completed jury questionnaires for the six individuals who served on the jury, including Juror Number Four. On September 30, 2011, Jury Commissioner Nancy Dennis filed a Motion to Quash Subpoena and for Protective Order.
On October 24, 2011, appellant filed a "Motion to Compel Discovery and Opposition to Jury Commissioner Dennis's Motion to Quash Subpoena and for Protective Order." In the motion to compel, appellant alleged that Juror Number Four "was in fact not qualified to serve as a juror as a result of a long history including multiple drug-related felony criminal convictions[,]" and that it was of "paramount" importance for it to discover whether Juror Number Four had disclosed his criminal history in his jury questionnaire. On October 27, 2011, the Jury Commissioner filed an opposition to the motion to compel and a reply to the opposition to the motion to quash.
On September 29, 2011, appellee filed a Motion for Sanctions, requesting that the circuit court sanction Parler. Appellee argued that Parler engaged in repeated misconduct throughout the trial. As to the seventh day of trial, appellee alleged the following facts:
As to the December 29, 1993, lead report, appellee argued that Parler intentionally withheld the report, and that whether flaking and chipping lead based paint existed in 4 North Stockton was a contested issue. Appellee pointed out that Parler raised "the issue of insufficient factual bases of no lead paint hazard being present in 4 N. Stockton" in various pretrial and post-trial motions, despite knowing he had the 1993 lead report that was "contemporaneous with [appellee]'s tenancy reflecting deteriorated lead based paint." Appellee contended that, had the 1993 lead report been provided, she would not have been required to pay Arc Environmental to conduct two separate tests of 4 North Stockton nor would she have been required to retain White as an expert. Appellee attached, as exhibits to the Motion for Sanctions, invoices detailing fees and costs related to Arc Environmental totaling $10,135.45 as follows: testing for the September 2nd Report — $510; testing for the November 5th Report — $905; hourly review of reports and deposition preparation of White — $1,056.25; transcript of White's deposition testimony — $366.70; and trial preparation and trial appearance by White, including one day's lost revenue — $7,297.50. Appellee argued that, had she known of the report,
Appellee requested the following sanctions:
On October 19, 2011, Parler filed an Opposition to [the] Motion for Sanctions and a Request for Hearing. Parler argued that the motion for sanctions be denied because: (1) appellee failed to attach a copy of the relevant discovery request to the motion; (2) the discovery requests propounded by appellee did not create an obligation on the part of appellant to produce the 1993 report; and (3) the failure to produce the 1993 report was inadvertent. According to Parler, after Connor's testimony regarding the 1993 report at trial, he conducted an investigation and located the 1993 report as a PDF file on his computer. Parler alleged he did not know how he obtained the 1993 test report, but "the most logical explanation is that [it] was among the documents obtained from [appellant] and it was scanned onto [his] computer, but it was inadvertently not included in the notebook [of documents produced to appellee]." Parler contended that the 1993 report was not intentionally withheld, and argued that the document could have been helpful to rebut testimony about the presence of flaking paint in 4 North Stockton. As to who conducted the 1993 test, Parler alleged that the test was not performed by appellant or Mankowitz, but rather was performed by Smelgus, "who was affiliated with an independent testing company." Parler alleged that, had appellee deposed Connor, she could have obtained a copy of the 1993 report.
On October 31, 2011, the circuit court held a post-trial motions hearing. As to the motion for judgment notwithstanding the verdict as to Dr. Sundel's testimony, the circuit court denied the motion, ruling as follows:
As to the motion to quash and motion to compel discovery of the juror questionnaires, ruling from the bench, the circuit court granted the motion to quash and denied the motion to compel. As to the motion for new trial on the ground that Juror Number Four was disqualified, the circuit court denied the motion, ruling that appellant had an opportunity for voir dire and that, although appellant argued there was prejudice due to Juror Number Four's drug-related convictions "[t]here is no further explanation that has been presented... about the nature or extent of prejudice to [appellant]."
As to the motion for a new trial or to alter and amend the judgment on the ground that the non-economic damages exceeded the statutory cap, the circuit court granted the motion to amend the judgment as to the non-economic damages, reducing the award of $4,200,000 to $350,000. Concerning the economic damages, the circuit court denied the motion to alter or amend the judgment. As to the motion for a new trial on the ground of charitable immunity, the circuit court denied the motion, "relying on ... Maryland Code, Courts and Judicial Proceedings Article, Section 5-406." The circuit court observed that it found "no basis, looking at the answer, to construe or contrive a charitable immunity affirmative defense in the circumstances[.]"
As to the motion for sanctions, the circuit court found that the 1993 lead test report "was relevant and disclosable[.]" The circuit court commented on Parler's conduct, stating as follows:
The circuit court granted, in part, and denied, in part, the motion for sanctions, noting that it granted the motion for the reasons that appeared on the record, but that it would need to examine the record further to determine the amount of the sanctions.
On November 2, 2011, appellee's counsel sent a letter to the circuit court via facsimile to "inform [the court] of a misstatement" made during the October 31, 2011, hearing, stating, in pertinent part, as follows:
On November 10, 2011, in a letter to the circuit court, counsel for Parler advised that, after the 1993 lead paint test "came to light[,]" Parler began investigating the test "to determine if the test was in his possession and if so, how it came into his possession and why it had not been produced." Parler's counsel stated as follows concerning the investigation:
Parler's counsel argued that the "reason why the 1993 test was not produced was not a determination that it was not requested in the propounded discovery, but instead due to an inadvertent human error, it had been scanned into the computer file, but it had not been copied for the paper version of the file." Parler's counsel alleged that the 1993 test was performed on behalf of Kennedy Krieger Institute, not appellant, and that Mankowitz "confirmed he had no memory of requesting Mr. Smelgus on behalf of [appellant] test 4 N[orth] Stockton" and Smelgus confirmed "that he was hired and paid by [Kennedy Krieger Institute], not [appellant] to perform the 1993 test." Parler's counsel urged the circuit court to deny the motion for sanctions because appellee "could not establish that the discovery requests" required production of a document performed at the behest of Kennedy Krieger Institute.
On December 2, 2011, the circuit court issued an order resolving the post-trial motions as follows:
On December 5, 2011, the circuit court issued a Post Trial Sanctions Opinion and Order. In the opinion, as to Parler's trial tactics, the circuit court found as follows:
(Footnote omitted). The circuit court set forth the following as to Parler's conduct and credibility:
(Footnotes and citation omitted) (some alterations in original).
As to the amount of the sanctions, the circuit court ruled:
(Ellipses and some alterations in original).
As to sanctions against Parler, the circuit court ruled:
(Footnotes and some citations omitted) (omission and alteration in original).
In the order attached to the Post Trial Sanctions Opinion, the circuit granted the motion for sanctions, in part, as follows:
On February 3, 2012, the circuit court issued a Supplemented Post Trial Sanctions Opinion. In a footnote in the supplemented opinion, the circuit court stated as follows concerning against whom sanctions may be imposed: "Parler's discovery violations are attributable to [appellant] through its President, Barry Mankowitz, because Parler acted as agent. Additionally, the duty to preserve and produce relevant evidence extends not only to a party's attorney, but the party himself." (Citations and italics omitted).
On November 4, 2011, appellant filed a Notice of Appeal, stating, in pertinent part, "City Homes appeals the award of attorney's fees or sanctions for any alleged discovery violations." On December 8, 2011, following issuance of the circuit court's orders, appellant filed an Amended Notice of Appeal, stating, inter alia, that "City Homes appeals the award of attorney's fees or sanctions for any alleged discovery violations including both the ruling
On December 21, 2011, Parler filed a Motion to Reconsider the Court's Post Trial Sanctions Order and Request for Hearing. In an accompanying memorandum, Parler argued that the sanctions against him and appellant were improper. On January 9, 2012, appellee filed a motion to strike the motion to reconsider or, in the alternative, an opposition to the motion to reconsider. Appellee pointed out that appellant had filed a notice of appeal and an amended notice of appeal, thereby terminating the circuit court's jurisdiction over the matter. On February 1, 2012, the circuit court held a hearing on Parler's motion to reconsider and appellant's and Mankowitz's memorandum in support. On February 3, 2012, the circuit court issued an order dismissing the motion to reconsider, stating:
Appellant contends that the circuit court erred and abused its discretion in failing to exclude Dr. Sundel's testimony. Appellee argues that Dr. Sundel is a pediatrician who lacked the necessary knowledge, skill, experience, training or education required by Maryland Rule 5-702(1) to offer an opinion as to the source of appellee's lead exposure because Dr Sundel: (1) never diagnosed or treated a patient with lead poisoning; (2) is not a certified lead risk assessor or lead paint inspector technician; (3) conducted no investigation to determine the environmental source of appellee's alleged lead exposure; (4) has no training in the use of the XRF machine; and (5) has no experience in testing soil and drinking water for lead. Appellant asserts that appellee's counsel designated Dr. Sundel as an expert months before Dr. Sundel reviewed materials related to the case and formulated an opinion. Appellant maintains that the opinion — that 4 North Stockton was the source of appellee's lead exposure and injuries — was appellee's counsel's opinion and not Dr. Sundel's.
Appellant contends that the circuit court erred and abused its discretion in permitting Dr. Sundel to testify as to causation — i.e. that appellee incurred injuries as a result of lead exposure at 4 North Stockton — as he lacked the qualifications to do so. Appellant argues that Dr. Sundel opined that appellant has a "cognitive deficit resulting in a loss" of IQ points, but Dr. Sundel has never administered an IQ test, does not know how to score an IQ test, and is not qualified to interpret IQ test results. Appellant asserts that, in calculating appellee's loss of IQ points allegedly resulting from lead exposure, Dr. Sundel engaged in impermissible speculation. Appellant asserts that Dr. Sundel was not qualified to render a differential diagnosis and opine that appellee's alleged injuries were caused by lead exposure at 4 North Stockton.
Appellee responds that an expert's knowledge may come from a variety of sources, and that an expert need not be a specialist in a particular field nor be personally involved in the activity for which he is testifying. Appellee contends that Dr. Sundel's knowledge was derived from his experiences and observations as a medical student and pediatrician, as well as his review of medical journal articles concerning lead poisoning. Appellee argues that "Dr. Sundel's experience, as demonstrated through his discovery deposition and curriculum vitae, as well as his review of [her] relevant medical records, created the requisite basis necessary for him to offer causation and injury opinions[.]"
Appellee contends that Dr. Sundel based his opinions on blood lead level readings taken during the time she resided at 4 North Stockton, the age of the property, reports by other experts, lead testing conducted at 4 North Stockton, and appellee's residence history. Specifically, appellee argues that Dr. Sundel's testimony was supported by an adequate factual basis consisting of the following information: (1) appellee visited or resided in 4 North Stockton from 1990 to 2002; (2) appellee's blood lead levels rose to 21 μg/dL after residing in 4 North Stockton for one year and remained elevated through 1998; (3) 4 North Stockton was built during or before 1920, and was more likely to contain lead-based paint; (4) appellee visited or resided 4 North Stockton at times when there was flaking and chipping paint, as appellee's father testified to during deposition; and (5) Arc Environmental lead testing revealed lead paint in both the interior and exterior of 4 North Stockton. Appellee contends that trial courts have routinely permitted experts, such as Dr. Sundel, to testify whether a property is more likely than not a source of lead exposure. Appellee argues that she was not required to prove a single source of lead exposure or a single cause for her injuries.
In a reply brief, appellant contends that the objection to Dr. Sundel was not "that he is a pediatrician or that medical experts cannot be used in lead paint cases, but that Dr. Sundel was not qualified and did not have the requisite factual basis upon which to base his opinion." Appellant reiterates that Dr. Sundel failed to consider that appellee lived at and visited other homes during the same time period that her blood lead levels were elevated, and that one of the other residences may have been a source of appellee's lead exposure. Appellant asserts that Dr. Sundel failed to consider other environmental sources of lead, such as water and soil. Appellant maintains that Dr. Sundel provided no testimony that would have assisted the jury with "weighing the impact of [a]ppellee's exposure at 4 N. Stockton Street (if any) with other sources of lead exposure."
In Taylor v. Fishkind, 207 Md.App. 121, 137, 51 A.3d 743 (2012), this Court explained the standard of review for
(First alteration added) (omission in original) (citations and internal quotation marks omitted); see also Wantz v. Afzal, 197 Md.App. 675, 682, 14 A.3d 1244, cert. denied, 420 Md. 463, 23 A.3d 895 (2011) ("[I]t is well-settled that `the determination by the trial court of the experiential qualifications of a witness will only be disturbed on appeal if there has been a clear showing of abuse of the trial court's discretion.'" (Citation omitted)); Brown v. Contemporary OB/GYN Assocs., 143 Md.App. 199, 252, 794 A.2d 669, cert. denied, 369 Md. 659, 802 A.2d 438 (2002) ("The trial court's determination [to admit expert testimony] is reversible [only] if it is founded on an error of law or some serious mistake, or if the trial court clearly abused its discretion." (Citation and internal quotation marks omitted) (second alteration in original)).
Maryland Rule 5-702, governing testimony by experts, provides:
In Giant Food, Inc. v. Booker, 152 Md.App. 166, 182, 831 A.2d 481, cert. denied, 378 Md. 614, 837 A.2d 926 (2003), this Court explained that Maryland Rule 5-702 "delineates three factors a court must evaluate for the admission of expert testimony: (1) an expert must be qualified (Rule 5-702(1)); [(2) ] the expert testimony must be appropriate for the particular subject (Rule 5-702(2)); and (3) a sufficient factual basis must exist to support that testimony (Rule 5-702(3))."
In Radman v. Harold, 279 Md. 167, 167-68, 367 A.2d 472 (1977), a medical malpractice case, the Court of Appeals held that the trial court improperly refused to allow "an expert witness to express an opinion regarding the manner in which the defendant surgeon rendered his professional services." In Radman, id. at 168, 367 A.2d 472, Radman, a gynecologist and surgeon, performed a total abdominal hysterectomy upon Harold, and while doing so, unintentionally knicked Harold's bladder, causing her to undergo two additional procedures in order to repair the bladder. At trial, Harold proffered an internal medicine specialist as an expert witness qualified to testify as to the standard of care required of a surgeon performing a hysterectomy. Id. The trial court ruled that the internal medicine specialist lacked the necessary qualifications to testify. Id.
In Radman, id. at 169, 367 A.2d 472, the Court of Appeals stated that case law stood for the proposition that "a witness may be competent to express an expert opinion if he is reasonably familiar with the subject under investigation, regardless
Id. at 169-70, 367 A.2d 472 (citations omitted). The Court of Appeals observed that "the mere fact that a person offered as a witness has not been personally involved in the activity about which he is to testify does not, as such, destroy his competency as an expert." Id. at 170, 367 A.2d 472. The Court of Appeals affirmed this Court's reversal and remand of the case, observing that the trial court needed to determine whether Harold's expert, based on his overall familiarity with the hysterectomy procedure, was qualified to testify as an expert. Id. at 176, 367 A.2d 472.
In Giant Food, 152 Md.App. at 171, 831 A.2d 481, we held that "although [the] medical expert was qualified to render an opinion ... the expert's testimony lacked a sufficient factual basis, and the opinion was not the product of reliable principles and methods." As such, the circuit court erred in denying the defendants' motions for judgment and for judgment notwithstanding the verdict. Id. at 169, 190, 831 A.2d 481. Booker was exposed to Freon gas while employed at Giant Food and approximately fourteen months later, was diagnosed with adult on-set asthma. Id. at 169, 831 A.2d 481. Booker filed a claim alleging that exposure to Freon caused his asthma. Id. at 169-70, 831 A.2d 481. At trial, Booker's medical expert "conceded that he had never read about, nor knew of, asthma being caused by exposure to Freon[,]" yet the expert testified that the exposure to Freon caused Booker's asthma. Id. at 176, 178, 831 A.2d 481.
In Giant Food, id. at 182-83, 831 A.2d 481, in examining Maryland Rule 5-702(3) and the use of expert testimony, we explained:
(Citations omitted).
After reviewing Booker's expert's testimony, we stated: "Despite having been qualified as an expert in pulmonary medicine, [the expert's] testimony regarding the cause-and-effect relationship does not rise above the level of mere speculation or conjecture. A review of [the expert's] deposition testimony highlights the absence of an adequate factual basis, as well as an unsupportable methodology for his conclusions[.]" Id. at 185, 831 A.2d 481. We noted that the expert had little factual information about the Freon incident, "did not rely on a single medical or scientific study suggesting a causal relationship between Freon exposure and asthma[,]" had not reviewed Booker's full medical records, and that it was "clear that [the expert] did not conduct an exhaustive medical textbook or journal review." Id. at 174, 187, 189, 831 A.2d 481. As such, "a juror could not reasonably find that the [Freon] incident... caused Booker's adult on-set asthma when [the expert's] theory provided no rational explanation for why that had occurred, other than simply coming to that conclusion." Id. at 189-90, 831 A.2d 481.
In Wantz, 197 Md.App. at 678, 14 A.3d 1244, this Court held that the trial court abused its discretion in precluding the plaintiff's witnesses from testifying as experts on the ground that the witnesses lacked qualifications and a factual basis. In Wantz, id. at 677-78, 14 A.3d 1244, the plaintiff's mother died after developing a staph infection at the site of spinal fusion surgery. Prior to trial, the defendants filed motions to exclude three experts designated by the plaintiff, arguing that none of the witnesses were qualified to express an opinion as to causation. Id. at 678, 14 A.3d 1244. The trial court granted the defendants' motions, finding that the three experts were either unqualified, or lacked a sufficient factual basis, or both, to offer expert testimony and opinion pursuant to Maryland Rule 5-702. Id.
In Wantz, as to Maryland Rule 5-702(1), concerning a witness's qualifications to offer expert testimony, we quoted with approval from Radman that an expert's special knowledge on a subject "may be derived from `observation or experience, standard books, maps of recognized authority, or any other reliable sources[.]'" Id. at 683, 14 A.3d 1244. We reiterated that a medical expert "`need not be a specialist in order to be competent to testify on medical matters,' and qualify under Rule 5-702." Id. at 685, 14 A.3d 1244 (citation omitted). As to Maryland Rule 5-702(3)'s requirement that an expert have a sufficient factual basis for his or her testimony, we observed that "there is a broad range of sources capable of forming the requisite factual basis[,]... 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." Id. at 684, 14 A.3d 1244 (citation and internal quotation marks omitted). We stated that "`an expert's opinion must be based on a[n] adequate factual basis so that it does not amount to conjecture, speculation, or incompetent evidence.'" Id. at 691, 14 A.3d 1244 (quoting Giant Food, 152 Md.App. at 182-83, 831 A.2d 481) (alteration in original). Accordingly, based on our review of the plaintiff's expected evidence and in
In Taylor, 207 Md.App. at 123, 141-42, 51 A.3d 743, a lead paint case, we held that the trial court did not abuse its discretion when it excluded the plaintiff's medical expert's testimony as the expert's opinion that the subject property "contained lead-based paint [was] only supported by the age of the house and the presence of lead on one component of the exterior of the house." We further held that "the only evidence that [the plaintiff] was exposed to lead [at the property] was her elevated blood lead level while living at that property." Id. at 142, 51 A.3d 743. The plaintiff resided at one property for approximately two and one-half years before moving to the property at issue, where she lived for just over a year before moving to a third property, where she resided for ten years. Id. at 125, 51 A.3d 743. On three different occasions spanning five years, the plaintiff's blood lead levels were elevated when tested, two of which occurred while living in the property. Id. at 125-26, 51 A.3d 743. The plaintiff designated a doctor — a pediatrician — as one of her expert witnesses, stating that the doctor would opine that the plaintiff experienced permanent brain damage and a loss of IQ points as a result of lead exposure, and that the doctor's opinions were based "upon her review of the medical, environmental and school records related to th[e] case[,] ... the numerous medical studies that link cognitive deficiencies and IQ loss to early childhood lead exposure[, and] her medical education, training and experience[.]" Id. at 126, 51 A.3d 743. A lead paint test conducted during discovery demonstrated that only an exterior window apron on the front of the property, with intact paint, tested positive for the presence of lead-based paint. Id. at 128-29, 51 A.3d 743.
The doctor submitted a "causation report" offering the opinion that the plaintiff was exposed to lead at the first two properties she resided in, and basing her opinion on "the age of the dwellings, the described conditions of the [property], the detection of lead in an exterior window apron of this [property] and [the plaintiff]'s blood lead levels while living at each dwelling." Id. at 129-30, 51 A.3d 743. The doctor further stated that the dwellings were located in an area "known to contain lead paint" and of an age "to most probably contain lead based paint." Id. at 130, 51 A.3d 743. At her deposition, the doctor admitted that there was no blood lead level data for a period of a year and a half immediately preceding and following the time when the plaintiff moved into the property. Id. at 131, 51 A.3d 743. The doctor was unable to state whether the plaintiff's blood lead level rose while residing in the property, acknowledging that the "only thing [she] kn[e]w is that [the plaintiff] was living there when it was found to be up." Id. at 132, 51 A.3d 743. The doctor agreed that the fact that the plaintiff had an elevated blood lead level while residing at the property was not proof that she was exposed to lead at the property as the lead could have been in her body "from some other source prior to the time that she moved in[.]" Id. at 133, 51 A.3d 743. Throughout the deposition, the doctor responded "I don't know" when asked questions by the defendant's counsel. Id. at 131-33, 51 A.3d 743. After the deposition, the defendant filed a motion for summary judgment, arguing that the doctor's testimony was inadmissible because
In Taylor, id. at 142, 51 A.3d 743, we agreed and concluded that the trial court properly found that the "circumstantial evidence" supporting the medical expert's opinion "amounted to no more than a possibility that [the plaintiff] was exposed to lead-based paint" at the property. Of significance was the expert's inability to rule out other sources of lead or to conclude that the plaintiff's blood lead level rose while living at the property. Id. Notably, the plaintiff had alleged that she was exposed to lead-based paint at two properties, and there was insufficient evidence to prove that the property at issue in the case was the only possible source, especially in light of the medical expert's deposition testimony that the plaintiff's elevated blood lead level at the property "could have been the result of lead that was already in her body from a source prior to when she moved to" the property. Id. at 146, 51 A.3d 743. As to the age of the property, this Court stated that age alone is not enough to support a conclusion that a house contains lead-based paint as there is no presumption that old houses contain lead-based paint. Id. at 143, 51 A.3d 743 (citation omitted). Indeed, we noted: "`[T]he mere fact that most old houses in Baltimore have lead-based paint does not mean that a particular old Baltimore house has a similar deficiency.'" Id. (quoting Davis v. Goodman, 117 Md.App. 378, 393, 700 A.2d 798 (1997)). Ultimately, we held as follows:
Id. at 147-48, 51 A.3d 743. See also N.B.S., Inc. v. Harvey, 121 Md.App. 334, 339-41, 709 A.2d 162 (1998) (We held that the trial court did not abuse its discretion in excluding the defendant's expert in a lead paint case where the expert had retired ten years prior to trial — during which "medical research in the field of lead poisoning had advanced substantially" — and "was unable to point to a single medical doctor currently practicing medicine or involved in such research who would agree with her view of the effects of lead poisoning.");
Returning to the instant case, we conclude that the circuit court abused its discretion in failing to exclude Dr. Sundel's testimony. For the reasons explained below, we agree with appellant that Dr. Sundel was not qualified to testify as an expert with a concentration in childhood lead poisoning, or to offer an opinion as to the source of appellee's lead exposure or as to causation, i.e. that appellee incurred injuries as a result of lead exposure, and that there was an insufficient factual basis for the testimony.
In an abuse of discretion, the circuit court found that Dr. Sundel was qualified to testify as an expert with a concentration in "childhood lead paint" by virtue of "his special knowledge derived not just, or not only, from his own experience but also from the experiments and reasoning of others, communicated by personal association or through books or other sources." A review of the record, with respect to Dr. Sundel's qualifications, however, reveals that, although he is a board-certified pediatrician licensed to practice medicine in Maryland, he has not received any specialized training nor does he have any experience in treating children with lead poisoning or in identifying the source of a child's lead exposure. During voir dire, Dr. Sundel testified that his only experience in evaluating and treating children with lead poisoning occurred during his internship and residency. Although Dr. Sundel testified children suffering elevated blood lead levels would be treated with chelation therapy, in which a medication is administered intravenously to remove lead from the body, Dr. Sundel acknowledged that his only involvement with chelation therapy occurred during the mid-1980s when he was a resident. Dr. Sundel could not recall being involved with any children receiving chelation therapy since that time. Dr. Sundel acknowledged that he has not evaluated and diagnosed children with lead poisoning, or monitored the progress of children diagnosed with lead poisoning. Indeed, when asked whether he has ever treated a child for symptoms related to lead ingestion where he "determined that the child was injured or had some issues related in any way to lead[,]" Dr. Sundel responded: "Not that I recall."
Dr. Sundel has never testified as an expert in a lead paint poisoning case, has never been involved in any Baltimore City tests of drinking water and soil for lead nor involved in any Maryland Department of the Environment studies on lead in the soil, and acknowledged that he is not a certified lead risk assessor. In fact, Dr. Sundel testified that appellee's case was his first lead paint case and the first time he ever had his deposition taken. Dr. Sundel acknowledged that he has not published any articles related to lead, been involved in any studies related to lead, or delivered lectures on the topic of lead or lead ingestion.
Dr. Sundel testified that, as a pediatrician, he keeps current on childhood lead poisoning issues and is familiar with articles from the CDC and AAP as well as Nelson's Textbook on Pediatrics. Significantly,
Most troubling are Dr. Sundel's qualifications to render opinions concerning causation — for example, that appellee sustained an IQ loss of seven to ten IQ points and that lead exposure was a substantial contributing factor to appellee's "brain impairment[.]" Dr. Sundel admitted that he is not a board-certified psychologist or neuropsychologist, and that he does not administer IQ or achievement tests. Dr. Sundel conceded that he had not conducted a medical or nutritional history of appellee nor had he examined appellee. On cross-examination, Dr. Sundel admitted that, during deposition, he testified that appellee had lost three to five IQ points or four to ten IQ points. Dr. Sundel acknowledged that he does not know how to score an IQ test, and did not know the standard of error for the Weschler IQ test. Based on the record, it is patently clear that Dr. Sundel was simply not qualified to testify as to appellee's IQ or the loss of IQ points resulting from lead exposure or any alleged "brain impairment."
From the record and Dr. Sundel's testimony, we discern no basis on which to conclude that Dr. Sundel had specialized knowledge concerning childhood lead poisoning, and specifically, the determination of the source of a child's lead exposure and causation. Radman, 279 Md. at 169, 367 A.2d 472 ("[T]o qualify as an expert, [the witness] should have special knowledge of the subject on which he is to testify that he can given the jury assistance in solving a problem for which their equipment of average knowledge is inadequate."). Nothing about Dr. Sundel's work generally as a pediatrician leads to the conclusion that he was qualified to render the expert opinions he offered in this case on diminishment of IQ, causation, source of lead exposure, and brain impairment. We acknowledge that a witness need not be personally involved in the activity about which he or she is to testify, and that a witness may become qualified through "observation or experience, standard books, ... or any other reliable sources." Id. at 170, 367 A.2d 472. The record fails to substantiate that Dr. Sundel possessed specialized knowledge about lead poisoning from either his own observation, or any experience or training — which was extremely bare and lacking as to lead poisoning. Indeed, other than reviewing the limited records provided to him by appellee's counsel and stating that he was generally aware of certain publications — the names of which he could not recall when asked at deposition — Dr. Sundel did not identify any studies, publications, or sources that he relied upon in forming his opinions. As such, Dr. Sundel had no greater basis than any person would have had to determine the nature and extent of appellee's alleged lead exposure at 4 North Stockton. The circuit court abused its discretion in admitting Dr. Sundel as "an expert pediatrician, especially with the concentration or including the concentration on his research and experience in childhood lead paint because his testimony is reflective of his special knowledge[.]" Simply put, the record does not support this finding.
Similarly, we conclude that the circuit court abused its discretion in permitting Dr. Sundel to testify because the record demonstrates that he lacked a sufficient factual basis for his opinions, as required by Maryland Rule 5-702(3). In Wantz, 197 Md.App. at 684, 14 A.3d 1244, this Court observed that "there is a broad range of sources capable of forming the requisite factual basis[,] ... such as facts obtained from the expert's firsthand knowledge, facts obtained from the testimony of others, and facts related to an expert through the use of hypothetical questions." (Citations and internal quotation marks omitted). The question before us is whether Dr. Sundel had an adequate factual basis to testify that: the property at 4 North Stockton was the source of appellee's lead exposure, appellee sustained an IQ loss of seven to ten IQ points based on exposure to lead, and lead exposure at 4 North Stockton was a substantial contributing factor to injuries appellee sustained, such as IQ loss, aggressiveness, hyperactivity, and brain impairment. We conclude that Dr. Sundel lacked the requisite factual basis for this testimony and explain.
Dr. Sundel was not a treating physician, but rather was retained to review records and provide an opinion as to source and causation. Dr. Sundel had limited knowledge of appellee's medical history, appellee's current medical condition, or appellee's potential exposure to lead from other sources. Dr. Sundel indicated that he had not seen or questioned appellee or her family, and thus, his factual basis in the case boils down to his review of the records provided to him by appellee's counsel, appellee's trial testimony, and his knowledge obtained from his experience and training. Dr. Sundel opined that, based on the Arc Environmental reports, 4 North Stockton was a source of appellee's lead exposure.
In this case, appellee amended the complaint to identify other sources of lead exposure, including 6 North Stockton and 1606 Lemmon.
Dr. Sundel lacked an adequate factual basis to offer opinions concerning appellee's alleged loss of IQ points, aggressiveness, hyperactivity, and brain impairment. As to the loss of IQ points, although Dr. Sundel testified that he arrived at his opinion — that appellee sustained a loss of seven to ten IQ points as a result of lead exposure — based on his review of documents, including an IQ test report completed by a different doctor, and his knowledge and training, it is evident that Dr. Sundel's testimony amounted to no more than speculation based on articles he read that correlated diminished IQ with lead exposure. When questioned as to how he arrived at the range of a loss of seven to ten IQ points, Dr. Sundel testified:
Thus, in addition to not being qualified to testify as to appellee's alleged loss of IQ points, the above testimony demonstrates that Dr. Sundel lacked an adequate factual basis for the testimony, i.e. his opinion that appellee sustained a loss of seven to ten IQ points was pure conjecture based upon general literature.
In light of our conclusion as to Issue I, we need not address Issue II. We make the following observations, however, for guidance. Although we do not necessarily agree with appellant that White was not qualified to testify as an expert in the field of lead risk assessment and inspection, we note that there were troubling aspects concerning the admission of White's testimony.
We observe that, at trial, White's expert testimony veered dangerously close to fact testimony — namely, White testified as to how Wilton used the XRF machine during lead testing at 4 North Stockton and how Wilton conducted lead testing, circumstances about which White would have no personal knowledge. Although White may have possessed knowledge about how an XRF machine is generally used during lead testing and how lead testing is generally conducted, as White was not present during the testing at 4 North Stockton and Wilton's testing data contains no information about how the tests were performed, White was unable to testify about how Wilton actually performed the tests. White's testimony as to how Wilton performed a testing impressed us as exceeding the permissible bounds of expert opinion and entering the arena of fact testimony. Had appellee sought to elicit information as to how the XRF machine was used at 4 North Stockton or how testing was performed at 4 North Stockton, Wilton or another witness with knowledge of those facts was required to testify.
There is no dispute that an expert "may give an opinion based on facts contained
Appellant contends that the circuit court's imposition of sanctions violated due process as it was "not on notice that it was subject to being sanctioned, and, as a result, [] did not have an opportunity to present a defense to the claim that sanctions against it [were] warranted." Appellant argues that appellee sought sanctions against Parler only, and, therefore, it (appellant) did not file an opposition or present any argument at the hearing concerning the motion for sanctions. Appellant asserts that the circuit court may impose sanctions against a party only after the party is given notice and an opportunity to be heard, which did not occur.
Appellee responds that the sanctions issued against appellant are not properly before this Court for appellate review. Appellee argues that the sanctions award, issued after the entry of judgment, was not included in the judgment. In support of this argument, appellee asserts that appellant filed a motion for reconsideration of the sanctions after it filed the notice of appeal, and that the circuit court improperly dismissed the motion for reconsideration. As to the merits, appellee concedes that she did not move for sanctions against appellant, but argues that reimbursement for her expenses for Arc Environmental's services constitutes an appropriate sanction that should have been assessed against Parler, not appellant.
We are satisfied that the circuit court abused its discretion as to the imposition of sanctions against appellant. On brief, appellee acknowledged that it never requested sanctions against appellant. At oral argument, appellee stated that it would leave the issue of the propriety of the entry of sanctions against appellant to this Court's discretion. Sanctions were imposed against appellant for $10,135.45, the expenses appellee incurred in retaining Arc Environmental, when lead testing of 4 North Stockton had already been performed and documented in the December 29, 1993, report. Although, on brief, appellee argued the issue of sanctions against appellant is not properly before the Court, the matter has been fully briefed by the parties, and the parties agree that appellee did not request sanctions against appellant. In the circuit court, appellant had no notice that the court might impose sanctions.
Appellant contends that the circuit court improperly sanctioned Parler for an alleged discovery failure. Appellant argues that the circuit court does not have unlimited inherent authority "to issue punitive sanctions without following proper procedures." Appellant asserts that the case law relied on by the circuit court in issuing sanctions against Parler "do[es] not stand for the proposition that it had the power to fine an attorney who engaged in a discovery violation in the absence of finding that the attorney was guilty of contempt following a hearing conducted pursuant" to the Maryland Rules governing contempt. According to appellant, the circuit court failed to provide Parler notice that it was "contemplating the extraordinary sanction of a fine in the amount of $10,000," in violation of Parler's due process rights.
Appellant maintains that the circuit court had only two options: (1) issue a sanction pursuant to the rules governing discovery or (2) initiate contempt proceedings and hold a hearing providing Parler with an opportunity to be heard. Appellant contends that the circuit court's sanction against Parler was, in essence, a finding that Parler was in direct criminal contempt. Appellant argues that the circuit court failed to follow the procedures governing contempt proceedings. Appellant asserts that Parler did not have notice that the circuit court intended to fine him and, therefore, did not present argument at the post-trial motions hearing regarding such a fine.
Alternatively, appellant contends that the circuit court lacked authority to issue sanctions against Parler pursuant to Maryland Rule 1-341 because there was no "clear evidence" that Parler withheld the 1993 Kennedy Krieger Institute test in bad faith. According to appellant, the evidence presented in post-trial motions and at the post-trial motions hearing indicated only that the 1993 Kennedy Krieger Institute test was withheld inadvertently, not intentionally and in bad faith.
Appellant argues that an explanation for the amount of the sanction levied against Parler — $10,000 — is not contained in the record. Appellant asserts that the circuit court failed to set forth any specific findings detailing how the court arrived at the $10,000 figure, and that, as such, the sanction against Parler is unjustified.
Appellee responds that the circuit court properly imposed sanctions against Parler. As an initial matter, appellee contends that Parler failed to properly appeal the sanction imposed against him as the notice of appeal filed by appellant did not clearly indicate that Parler was appealing too. As to the merits, appellee argues that the sanctions against Parler were "entirely appropriate" given his pattern of misconduct.
In Schneider v. Little, 206 Md.App. 414, 432-33, 49 A.3d 333, cert. granted, 429 Md. 303, 55 A.3d 906 (2012), this Court explained the standard of review governing
In Newman v. Reilly, 314 Md. 364, 382-83, 386, 550 A.2d 959 (1988), the Court of Appeals held that a notice of appeal filed by the plaintiff, signed by his attorney, concerning imposition of sanctions against the plaintiff and the attorney, could be read as including review of the sanctions against the attorney. In the case, the trial court granted the defendant doctor's request for sanctions, finding that the plaintiff and his attorney initiated a claim before the Health Claims Arbitration Board without "any investigation and/or in total disregard of the necessity to prove the applicable standard of care and/or a breach thereof or causation." Id. at 374, 550 A.2d 959. The trial court agreed with the defendant doctor that the plaintiff's lawsuit should never have been filed. Id. at 375, 550 A.2d 959. Accordingly, the trial court awarded the defendant doctor $21,165.05 in attorney's fees, which was reduced to judgments against the plaintiff in the amount of $10,583.53 and against the attorney in the amount of $10,583.52. Id. Within thirty days, a notice of appeal was filed signed by the attorney as "Attorney for Plaintiff," stating: "Please enter an appeal on behalf of the Plaintiff to the Court of Special Appeals from the Judgment, in the above captioned matter, in favor of the Defendants, ... dated April 1, 1987 and entered on April 2, 1987." Id. at 376, 550 A.2d 959.
In Newman, id. at 383, 550 A.2d 959, the Court of Appeals initially observed that the Maryland Rules, unlike the Federal Rules, "do not regulate the content of an order for appeal to the Court of Special Appeals." Conversely, the corresponding Federal Rule prescribed the content required in a notice of appeal, including that the notice of appeal specify "the party or parties taking the appeal[.]" Id. The Court of Appeals stated that had the attorney signed the notice of appeal, as attorney for the plaintiff, and had the notice of appeal only read "`Please note an appeal to the Court of Special Appeals[,]' ... the legal effect would have been to bring up for appellate review all appealable judgments in the case[,]" including the sanctions against the attorney. Id.
Accordingly, the Court of Appeals held that the "order for appeal in the instant case does not operate to exclude [the attorney,]" and that Maryland appellate courts "have generally been quite liberal in construing timely orders for appeal." Id. at 386, 550 A.2d 959. The Court of Appeals discussed several cases in which Maryland appellate courts have construed notices of appeal broadly to encompass the right of those not specifically named in the notices of appeal to appeal. Id. at 386-87, 550 A.2d 959.
Maryland Rule 2-433, entitled "Sanctions," provides, in pertinent part:
This Court has stated that, "[i]mplicit in [R]ule [2-433] is the requirement that the moving party[] include in the motion for sanctions a request for expenses ... and the amount of expenses requested supported by an itemization of those expenses[.]" Davis v. Davis, 97 Md.App. 1, 26, 627 A.2d 17 (1993), aff'd, 335 Md. 699, 646 A.2d 365 (1994) (emphasis omitted).
Returning to the instant case, as an initial matter, we agree with appellee that the notices of appeal filed by appellant failed to indicate that Parler appealed the imposition of sanctions against him individually. The record reflects that Parler did not file his own notice of appeal nor his
As to the merits, in the motion for sanctions, appellee requested that the circuit court: (1) order Parler to pay $10,135.45 as reimbursement for expenses and $1,500 in attorney's fees for preparation of the motion for sanctions; (2) report Parler to Bar Counsel; and (3) grant "such other relief as this Court shall deem appropriate." Although appellee asked that the circuit court grant "such other relief" the court deemed appropriate, other than the request of expenses and attorney's fees, appellee did not seek a specific monetary sanction against Parler. Given our reversal of the award of sanctions against appellant as stated in Section VI, supra, and Maryland Rule 2-433's explicit authorization of sanctions in the form of expenses and attorney's fees against attorneys whose conduct necessitated the motion for sanctions, and in light of appellee's lack of a request that a separate monetary sanction — aside from expenses and attorney's fees — be imposed, we reverse the circuit court's imposition of sanctions against Parler and remand for additional consideration of the merits.
In imposing sanctions against Parler, the circuit court stated that it had "inherent power to sanction" and, in determining the amount of the sanction, relied, in part, upon the case of Klupt v. Krongard, 126 Md.App. 179, 197, 728 A.2d 727, cert. denied, 355 Md. 612, 735 A.2d 1107 (1999), in which we held that trial courts "`have the power to sanction the destruction of evidence, whether that authority is derived from [the discovery sanctions rule] or from their inherent powers.'" (Citation omitted) (alteration in original). The monetary sanctions requested by appellee — expenses and attorney's fees — for Parler's alleged discovery violations in this case may properly be resolved under Maryland Rule 2-433, which provides a vehicle for expenses and attorney's fees as sanctions in circumstances involving the failure to disclose discoverable evidence, without resort to the circuit court's inherent authority. We remand the case with instructions to the circuit court to determine whether sanctions pursuant to Maryland Rule 2-433 in the form of an award of expenses and/or attorney's fees against Parler are appropriate.
In an affidavit, Mankowitz averred that Kennedy Krieger Institute hired Smelgus from Scientific Labs to perform the 1993 test, and that he did not discuss the 1993 report with anyone until after the trial. Mankowitz averred that, although appellant has hired Smelgus and Scientific Labs to conduct XRF testing on its properties, when it does so, Smelgus used his own test report forms rather than Kennedy Krieger Institute test report forms. Smelgus averred in his affidavit that Scientific Labs performed the 1993 test for Kennedy Krieger Institute.
In Dixon, 206 Md.App. at 185-86, 202, 47 A.3d 1038, an asbestos case, we held that the plaintiff's expert's opinion that "every exposure to asbestos[,]" even a single event, "is a substantial contributing cause" to the development of mesothelioma, "lacked any information that would `assist the trier of fact to understand the evidence or to determine a fact in issue' as required by [Maryland] Rule 5-702." In Dixon, id. at 197, 47 A.3d 1038, we held that such testimony was inadmissible absent quantitative epidemiological evidence supporting its conclusions. We conclude that Dr. Sundel's testimony is akin to the situation in Dixon. Although Dr. Sundel did not explicitly testify that no blood lead level was safe or that every exposure to lead was a substantial contributing cause of appellee's injuries, when asked "so although the CDC set the action level at ten [micrograms per deciliter], that doesn't mean less than ten is safe necessarily, does it?[,]" Dr. Sundel agreed, "[n]o, it doesn't." Dr. Sundel's response demonstrated his belief that blood lead levels under ten micrograms per deciliter are unsafe. Dr. Sundel failed to provide, however, any explanation for his belief that blood lead levels under ten micrograms per deciliter were unsafe or to cite any study or report supporting his conclusion. Accordingly, as in Dixon, id. at 202, 47 A.3d 1038, such testimony "lacked any information that would `assist the trier of fact to understand the evidence or to determine a fact in issue[,]'" and should have been excluded.
