HARRELL, J.
We consolidate these two cases, Hamilton v. Kirson, No. 78, September Term, 2013, and Alston v. 2700 Virginia Avenue Associates, No. 100, September Term, 2013, for purposes of this opinion. In each case, a plaintiff or plaintiffs brought, among other claims,
Because the facts and issues presented in the consolidated cases differ slightly, we set forth first the background of each case. Then, we shall address collectively the shared relevant legal precedents, applying the relevant case law and legal principles to each case.
On 26 January 2010, Candace Alston filed suit in the Circuit Court for Baltimore City against 2700 Virginia Avenue Associates, Theodore Julio, Lawrence Julio, and others, alleging that the defendants acted negligently as landlords in providing premises containing chipping, peeling, and flaking lead paint in violation of the Baltimore City Housing Code (hereinafter, "Housing Code").
For her part, the Alstons' mother, Leslie Sidbury, could not remember the exact time periods and locations of their residences during the relevant times. The Complaint alleged that the Alstons' mother and her children resided at a number of properties between 1989 and 1995. Specifically, Candace, who was born on 27 January
Subsequently, in the Amendment by Interlineation adding as a victim Brian Alston, who was born on 13 August 1990, the Alstons narrowed the matter somewhat that their mother lived at the 2810 Virginia Avenue property between 1992-1993. Then, they lived as a family at 2752 Virginia Avenue between 1993-1995. During the defendants' later deposition of Ms. Sidbury, it was discovered that she did not remember the exact location of their residence, but approximated that the house was located in the 2800 block on Virginia Avenue. Plaintiffs' blood lead level testing slips listed, however, only 3006 Woodland Avenue as their address.
During discovery, the Alstons identified Dr. Michael Weitzman as their expert witness. Dr. Weitzman opined, relying on circumstantial evidence solely, that 2752 Virginia Avenue and 2810 Virginia Avenue (hereinafter, the "subject properties") were a source of, and a substantial contributing factor to, the Alstons' lead paint poisoning and resulting injuries. To support this opinion, Dr. Weitzman relied on the following facts: (1) the Alstons lived in and/or visited the subject properties during the time period that they demonstrated elevated blood lead levels; (2) the residences had chipping, peeling, or flaking paint during the relevant time period; (3) the residences were older homes in Baltimore, built before 1979;
Defendants (Respondents here) filed a Motion for Summary Judgment on 22 December 2010, arguing that the Plaintiffs "failed to sustain their burden of proving that they were exposed to and ingested chipping, peeling, or flaking lead-based paint in violation of the Baltimore City Housing Code at the Defendants' properties...." Specifically, Respondents argued that Plaintiffs' expert relied on insufficient assumptions to provide a factual basis for his opinion that Plaintiffs were exposed to a lead paint hazard at Defendants' properties. Respondents emphasized that there is no direct evidence that Plaintiffs resided at Defendants' properties or "that Defendants' properties contained lead paint hazards, or defective lead-based paint, during Plaintiffs' alleged tenancy at the properties." Moreover, Respondents pointed out that "Plaintiffs' source expert also cannot eliminate [other] potential source[s] of Plaintiffs' recorded [blood] lead levels, which precludes Plaintiffs from providing adequate circumstantial evidence of exposure at the properties."
After a hearing on the motion on 6 February 2012, the trial judge granted summary judgment, stating:
(Emphasis added.) The trial judge issued a written order to like effect, stating that the Motion for Summary Judgment was granted "[f]or the reasons stated on the record at the hearing."
Plaintiffs appealed timely to the Court of Special Appeals. The intermediate appellate court affirmed the judgment of the trial court in an unreported opinion filed on 10 July 2013. Plaintiffs-Petitioners filed a Petition for a Writ of Certiorari, which this Court granted, 435 Md. 266, 77 A.3d 1084 (2013), to consider the following questions:
On 28 May 2009, Christopher Hamilton filed in the Circuit Court for Baltimore City his initial complaint alleging several negligence claims against Lola Singer, the previous owner of property at 2231 Barclay Street (hereinafter, the "Singer property"), and Benjamin and Karen Kirson (hereinafter, collectively the "Kirsons"), the previous owners of property at 754 Bartlett Avenue (hereinafter, the "Kirson property" or the "subject property"). According to the Complaint, these properties "contained lead-based paint in such deteriorated conditions that it was peeling, chipping and flaking from the walls, baseboards, windowsills and other areas of the premises," as well as the presence of lead paint dust and powder. It was alleged that Christopher, while living at these residences, ingested lead-based paint chips and dust and, as a consequence, suffered permanent brain damage resulting in developmental and behavioral injuries. The Complaint alleged that Christopher resided at 2231 Barclay Street from 1992-1993, and at 754 Bartlett Avenue from 1993-1995.
On 21 August 2009, the Complaint was amended to add a second plaintiff — Christopher's brother, Rickey — as well as additional defendants and allegations. Specifically, the Hamiltons added allegations that they were exposed to lead-based paint at 445 E. Lanvale Street, where they lived from 1991-1992 and which was owned and managed by Ralph Small and the Patella Realty Corporation, the added defendants. On 2 April 2010, the Hamiltons amended their complaint again to add allegations involving two additional properties which Plaintiffs visited as children and which were owned and managed by other newly-added defendants.
Rickey was born on 5 April 1989. From his birth until approximately April of 1990, Rickey lived with his mother, maternal grandparents, sister, and uncle somewhere on the 2300 block of Barclay Street. Rickey moved with the same family members to 445 East Lanvale Street approximately in the summer of 1990. A short time later, on 5 September 1990, Christopher was born and lived in the same house as Rickey from that point in time. At some point in 1992, the family moved to 2231 Barclay Street where they resided until approximately the fall of 1993, at which time the family moved again to 754 Bartlett Avenue. The family lived at that address until some point in 1995. Then, the family moved to 1604 Gorsuch Avenue, where they resided until 1998. Between 1990 and 1994, Rickey was tested six times for blood lead levels ("BLL"). Between 1991
DATE RICKEY'S RICKEY'S CHRIS' CHRIS' AGE BLL AGE BLL 2300 block of Barclay Street (5 April 1989 to approximately summer of 1990)
--- Newborn --- --- ---
445 East Lanvale Street (summer of 1990 to 1992)
15 August 1990 17 mos. NR --- ---
10 April 1991 24 mos. NR --- ---
27 June 1991 --- --- 9 mos. 7 mcg/dL
6 February 1992 --- --- 17 mos. 7 mcg/dL
23 April 1992 --- --- 19 mos. 8 mcg/dL
2231 Barclay Street * (some point in 1992 to fall of 1993)
12 January 1993 45 mos. 12 mcg/dL --- ---
26 March 1993 47 mos. 11 mcg/dL --- ---
13 May 1993 --- --- 32 mos. 14 mcg/dL
754 Bartlett Avenue ** (fall of 1993 to 1995)
24 September 1993 53 mos. 14 mcg/dL --- ---
10 November 1993 --- --- 38 mos. 17 mcg/dL
26 January 1994 --- --- 41 mos. 15 mcg/dL
12 May 1994 --- --- 44 mos. 15 mcg/dL
28 October 1994 66 mos. 10 mcg/dL --- ---
2 February 1995 --- --- 53 mos. 11 mcg/dL
11 October 1995 --- --- 61 mos. 10 mcg/dL
1504 Gorsuch Avenue (1995 to 1998)
13 March 1996 83 mos. 7 mcg/dL --- ---
[Editor's Note: The preceding image contains the reference for footnotes * and ** .]
* The 2231 Barclay house was owned by
Singer.
** The 754 Bartlett Ave. house was
owned by the Kirsons and is the subject of
the present appeal.
Shaded blocks represent those test results which indicate elevated blood lead levels.
During discovery, the Hamiltons retained Arc Environmental, Inc., to survey the 754 Bartlett Avenue property for lead-based paint. On 4 March 2011, Arc tested (or attempted to test) the property and issued a report of its findings on 9 March 2011. According to the report, the X-ray fluorescence analyzer detected lead-based paint, above the Maryland standard (>0.7 mg/cm
Additionally, as part of discovery, the Hamiltons identified Dr. Jacalyn Blackwell-White, a board-certified pediatrician, as a medical causation expert and Dr. Robert Simon as an industrial hygiene expert and environmental lead risk assessor. Drs. Blackwell-White and Simon authored causation reports and were deposed.
Dr. Blackwell-White opined:
With regard to Christopher Hamilton, Dr. Blackwell-White opined:
Plaintiffs asked Dr. Simon "to determine if [Rickey's and Christopher's] residency at 2231 Barclay Street and 754 Bartlett Street, Baltimore, MD, during their early childhood, were substantial contributing sources of lead exposure during that time period." Dr. Simon stated that the 754 Bartlett Avenue house "was built in 1920 and would more likely than not have had LBP [lead-based paint] based upon the age and use of lead paint during that time period...."
After discovery was completed, the Kirsons moved for summary judgment on several grounds. First, they argued that there was no Housing Code violation demonstrating a negligent act on the part of Defendants and, thus, Plaintiffs did not have an actionable negligence claim. Specifically, the Kirsons pointed out that Plaintiffs' medical causation expert, Dr. Blackwell-White, stated that the blood lead levels were consistent with exposure to airborne lead dust. Plaintiffs' negligence claims, however, are based on violations of the Housing Code's prohibition of peeling or chipping paint.
Second, the Kirsons argued that summary judgment was appropriate because there was no direct evidence that the subject property was the source of the Hamiltons' lead poisoning and, moreover, Plaintiffs' source experts' opinions that the Hamiltons' blood lead levels were caused by exposure to lead hazards at the subject property, 754 Bartlett Avenue, had an insufficient factual basis. The Kirsons maintained that, in order for the Hamiltons to prove that the property had lead-based paint, testing was required for the specific locations alleged as peeling, flaking, or chipping at the time of Plaintiffs' elevated blood lead levels. The testing undertaken by Plaintiffs, however, was only of locations on the exterior of the subject property. The Hamiltons' mother stated in her deposition that the exterior of the house was not in disrepair and, thus, according to the Kirsons, the Hamiltons failed to produce the direct evidence that they were exposed to hazardous lead-based paint at the subject property.
Moreover, the Kirsons argued that the Hamiltons' experts based their opinions of the source of the Hamiltons' lead exposure on the assumption that, if the exterior of the house had lead paint, the interior of the house also contained lead-paint. According to the Kirsons, the experts based this assumption (and, therefore, their opinions) on the age of the house, the condition of the house, and the age and recorded blood lead levels of the Hamiltons at the time of the tenancy. Such assumptions, it
The Hamiltons filed a Response in Opposition to the Kirsons' Motion for Summary Judgment, insisting that a sufficient factual basis existed to support the opinions of their experts. The Hamiltons emphasized that experts are permitted to use a combination of direct and circumstantial evidence to support their opinions. They maintained that, particularly in cases such as lead-paint poisoning, where often injured persons do not have the ability to obtain direct evidence through testing of the properties contemporaneously with their tenancy or afterwards in certain circumstances, circumstantial evidence is the only recourse. Specifically, in this case, the Hamiltons stated:
Thus, according to the Hamiltons, "there is sufficient direct and circumstantial evidence to support the opinions of Dr. Blackwell-White and Dr. Simon."
The Circuit Court held a hearing on 10 August 2011. After hearing argument, the Circuit Court stated, in pertinent part, on the record:
The Hamiltons appealed timely. On 30 April 2013, the Court of Special Appeals issued an unreported opinion affirming the Circuit Court's judgment granting summary judgment. We granted a Writ of Certiorari, on the Hamiltons' petition, 433 Md. 513, 72 A.3d 172 (2013), to consider the following questions:
We consolidate these cases for decision because they present a common, over-arching inquiry — under what circumstances, if any, will circumstantial evidence alone of the possible presence of lead-based paint inside a residential property be sufficient to survive a defense motion for summary judgment challenging the sufficiency of proof of the causation element of a negligence claim against the landlord. There is much recent case law, particularly from the Court of Special Appeals, on the proof of lead paint poisoning causation through circumstantial evidence. We aspire here to consider these cases, add our judicial gloss to them, and resolve any inconsistencies.
In the present cases, the Circuit Court granted defense motions for summary judgment, concluding that Plaintiffs failed to produce sufficient circumstantial evidence to make out a prima facie case regarding the causation element of a negligence claim. The Circuit Court, in granting the motions for summary judgment, rejected implicitly or explicitly Plaintiffs' experts' conclusions that the subject properties were a substantial contributing source of Plaintiffs' injuries. The Court of Special Appeals, in its unreported opinion in Hamilton, noted aptly the dual nature of the Circuit Court's decision:
Hamilton v. Kirson, No. 1530, September Term, 2011, slip op. at 14-15 (Md.App. April 30, 2013), cert. granted, 433 Md. 513, 72 A.3d 172 (2013). Regardless of the dual nature of the decision, the case involved
A circuit court may grant a motion for summary judgment, entering judgment in favor of the moving party, "if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law." Md. Rule 2-501(e). Maryland's summary judgment rule makes clear that "a trial court determines issues of law; it makes rulings as a matter of law, resolving no disputed issues of fact." Beatty v. Trailmaster Products, Inc., 330 Md. 726, 737, 625 A.2d 1005, 1011 (1993) (citing Heat & Power v. Air Products, 320 Md. 584, 591, 578 A.2d 1202 (1990)). "In this regard, the standard for appellate review of a trial court's grant of a motion for summary judgment is simply whether the trial court was legally correct," id. (citations omitted), and is subject to no deference. Tyler v. City of Coll. Park, 415 Md. 475, 498, 3 A.3d 421, 434 (2010) (citations omitted).
Id., 415 Md. at 498-99, 3 A.3d at 434.
That our appellate review is premised on assumptions favoring the non-moving party does not mean that the party opposing the motion for summary judgment prevails necessarily. Rather,
Beatty, 330 Md. at 737-39, 625 A.2d at 1011-12 (some internal citations omitted). Furthermore, "it is a settled principle of Maryland appellate procedure that ordinarily an appellate court will review a grant of summary judgment only upon the grounds relied upon by the trial court." Bishop v. State Farm, 360 Md. 225, 234, 757 A.2d 783, 787 (2000); see also Lovelace v. Anderson, 366 Md. 690, 695-96, 785 A.2d 726, 729 (2001).
Generally, "[t]o state a claim for negligence a party must show `1) that the defendant was under a duty to protect the plaintiff from injury, 2) that the defendant breached that duty, 3) that the plaintiff suffered actual injury or loss, and 4) that the loss or injury proximately resulted from the defendant's breach of the duty.'" Taylor v. Fishkind, 207 Md.App. 121, 148, 51 A.3d 743, 759 (2012) (quoting Rosenblatt v. Exxon Co., U.S.A., 335 Md. 58, 76, 642 A.2d 180 (1994)). Where an applicable statutory scheme is designed to protect a class of persons which includes the plaintiff, "the defendant's duty ordinarily `is prescribed by the statute' or ordinance and... the violation of the statute or ordinance is itself evidence of negligence." Brooks v. Lewin Realty III, Inc., 378 Md. 70,
This Court set out in Brooks the requirements for a plaintiff to make out a prima facie showing in a statutory violation lead paint poisoning negligence action:
378 Md. at 79, 835 A.2d at 621 (internal quotation marks and citation omitted). Once a plaintiff makes out a prima facie case in negligence, i.e., where he or she produces "evidence that the violation of the statute proximately caused the plaintiff's injury," such evidence is sufficient so as to "`warrant the court in submitting the case to the jury on the question of the [defendant's] negligence.'"
In the present cases, the plaintiffs relied upon violations of the City Housing Code
378 Md. at 89, 835 A.2d at 627 (footnote omitted).
Although peeling, chipping, or flaking paint (of any kind) constitutes a violation of the Housing Code, such a Code violation permits merely an inference of prima facie negligence on the part of the homeowner or landlord. Such an inference, however, does not eliminate the requirement that the plaintiff prove that the landlord's negligence caused proximately the injury. As the Court of Special Appeals explained in Hamilton v. Dackman, 213 Md.App. 589, 613, 75 A.3d 327, 340-41 (2013) (hereinafter, "Raymond Hamilton"), "although the Court of Appeals suggested in Brooks that a statutory violation may constitute a prima facie case of negligence, 378 Md. at 79, 835 A.2d 616, that holding does not relieve a plaintiff of the obligation to establish causation." More specifically, the intermediate appellate court stated:
Raymond Hamilton, 213 Md.App. at 613, 75 A.3d at 341 (emphasis added in original).
In the present cases, because we elect to resolve the cases on the issue of causation, we accept the premise that the subject properties were afflicted with, peeling, chipping, or flaking paint. Accepting such premise, the Hamiltons and the Alstons made out prima facie cases that the defendants — the owners and/or landlords of the residences — committed negligent acts in violation of the Housing Code. Thus, we address what quality or quantum of circumstantial evidence of causation is sufficient to make out a prima facie showing for that element of the negligence case.
"It is fundamental that in a negligence action the plaintiff has the burden of proving all the facts essential to constitute the cause of action." Peterson v. Underwood, 258 Md. 9, 15, 264 A.2d 851, 854 (1970). One element of a negligence case is that the defendant's negligence was a proximate cause of the accident or injury. See, e.g., Raymond Hamilton, 213 Md.App. at 613, 75 A.3d at 341. The inquiry here focuses on "causation in fact," one aspect of proximate cause, "concerned with the more fundamental (and some have thought metaphysical) inquiry of whether
We have recognized repeatedly that a plaintiff may prove causation in fact through circumstantial evidence, as well as direct evidence or a mixture of the two. For example, in Peterson, the Court stated:
258 Md. at 17, 264 A.2d at 855 (emphasis added) (some internal citations omitted).
When a plaintiff does not offer a direct explanation of the cause of the injury or accident, a plaintiff is "compelled to rely entirely on the inference." Peterson, 258 Md. at 18-19, 264 A.2d at 856. The validity of an inference "depends on commonly experienced relationships of acts and forces," id., 258 Md. at 18, 264 A.2d at 856, or "depends on logical deduction from an established fact." Id., 258 Md. at 19, 264 A.2d at 856. Certain sets of facts may make an inference less valid than other sets of facts. See, e.g., id., 258 Md. at 21, 264 A.2d at 857 (concluding that the passage of time between the negligent act and the injury rendered the inference of causation illogical and thus concluded that the trial court's granting of summary judgment was proper). The conclusion that an inference is not valid due to a lack of supporting facts or an articulable logical relationship does not mean that we place greater weight on direct evidence than on circumstantial evidence. Rather, it means that we require inferences to be sound logically, and we refuse to allow a jury of laymen to engage in "`guesswork, speculation and conjecture.'" Id., 258 Md. at 21, 264 A.2d at 857 (quoting Wilhelm v. State Traffic Safety Comm., 230 Md. 91, 101, 185 A.2d 715, 719 (1962)).
In the context of lead paint cases, this Court's next most recent decision on causation is Ross v. Housing Authority of Baltimore City, 430 Md. 648, 63 A.3d 1 (2013). In Ross, the Court recognized aptly
Ross, 430 Md. at 668, 63 A.3d at 12-13 (emphasis added) (footnote omitted). In the present cases, we are concerned with the first link. To prove this link, circumstantial evidence may be used, "so long as it creates `a reasonable likelihood or probability rather than a possibility' supporting a `rational inference of causation,' and is not `wholly speculative.'" West, 212 Md. App. at 170-71, 66 A.3d at 1150 (citations omitted). The Hamiltons' and Alstons' cases hinge on that fine distinction between circumstantial evidence that amounts to a reasonable likelihood or probability and circumstantial evidence that amounts only to a possibility and speculation.
To connect the dots between a defendant's property and a plaintiff's exposure to lead, the plaintiff must tender facts admissible in evidence that, if believed, establish two separate inferences: (1) that the property contained lead-based paint, and (2) that the lead-based paint at the subject property was a substantial contributor to the victim's exposure to lead. At times, these separate inferences may be drawn from the same set of facts, but parties would do well to remember that these inferences are separate and often will require different evidentiary support.
In an effort to contribute to clarification of any confusion, we consider first Dow v. L & R Properties Inc., 144 Md.App. 67, 796 A.2d 139 (2002), which represents a scenario where multiple inferences seek to draw succor from the same factual reservoir:
Ross, 430 Md. at 669-70, 63 A.3d at 13 (summarizing Dow).
In sum, the facts in Dow showed that (1) the child victim spent most of her time at the subject property where she lived and did not have contact with other possible sources of lead during the relevant period; (2) the child was observed ingesting regularly flaking or chipping paint at that property; (3) the child played frequently in the area of the flaking or chipping paint; and (4) the child had high blood lead levels during that time period, i.e., developed lead poisoning. The court concluded that, under those circumstances, there was more than a mere possibility that the house where the child resided and spent most of her time was the only possible source of the lead exposure. As such, because the child spent almost all of her time at the house, the court concluded additionally that it was more than a mere possibility that the house contained lead-based paint. Even though there was no direct evidence of lead at that property, i.e., no scientific testing, it was reasonable to infer that there had to be lead at that property because the child would not have suffered otherwise from lead poisoning. In that sense, the plaintiff eliminated all other possible sources of lead poisoning in order to make reasonable and probable those conclusions. Thus, the court drew two necessary, separate inferences on the basis of the same set of facts.
In a very instructive case, Ross, this Court found, in reviewing the grant of summary judgment in favor of defendants, that a reasonable inference would be "that the lead investigation reports for the [plaintiffs'] home accurately identified lead on the property." 430 Md. at 670, 63 A.3d at 14. The Ross Court detailed the facts supporting this inference:
Ross, 430 Md. at 671 n. 23, 63 A.3d at 14 n. 23.
The present cases, in contrast, lack the same or similar quality of circumstantial evidence undergirding the desired inferences. Despite this difference, Plaintiffs here cling to the same theory of causation advanced by the plaintiffs in Dow. Specifically, Plaintiffs ask this Court to permit a fact-finder to draw multiple inferences from a singular group of facts, even though Plaintiffs failed to exclude other potential sources of lead in these cases. Moreover, Plaintiffs declined to use seemingly available judicial methods
In West, the plaintiff alleged that he sustained injuries from ingesting chipping and flaking paint while living with his grandmother in a property owned and leased out by the defendants. West's negligence claim was based on circumstantial evidence because the property, since razed, had not been the subject of lead testing. The defendants filed a motion for summary judgment, which the Circuit Court for Baltimore City granted, concluding that West failed to make out a prima facie negligence case because, unlike in Dow, West's mother stated during deposition that West either resided or spent substantial amounts of time at a variety of houses during the first six years of his life, during which he experienced lead poisoning. The Circuit Court reasoned that, in light of West's "uncertain residential history and the lack of any direct evidence that [the subject property owned by the defendants] ever contained lead paint, [West] could not point to [the subject property] as the source of his lead poisoning." West, 212 Md.App. at 166, 66 A.3d at 1146.
On appeal, the Court of Special Appeals agreed. The intermediate appellate court acknowledged that "[a] lead paint plaintiff may, of course, establish a prima facie case of negligence based solely on circumstantial evidence." West, 212 Md.App. at 175, 66 A.3d at 1151. For example, the court cited Dow, in which there was also no direct evidence that lead paint was present at the subject property. The court distinguished Dow, however, on the grounds that "the process of elimination showed ineluctably that [the subject property] had to have been (not could have been, but had to have been), a place containing lead paint." Id., 212 Md.App. at 172, 66 A.3d at 1149. The West court explained:
Id., 212 Md.App. at 172, 66 A.3d at 1149-50.
That the facts in Dow permitted the court to derive two analytic steps from a singular set of facts, the West court cautioned, "should not obscure the fact that there was still involved a two-step analytic process, and that what may be said about one step in that analytic process does not necessarily apply to the other step."
Based on the distinction between the proof required to satisfy these two steps, the West court concluded that "where no direct evidence that [the subject property] even contained lead paint, [West] may only rely on that critical fact, as a necessary part of his circumstantial evidence, if he can show by the process of elimination that [the subject property] was the only possible cause for the critical effect of lead poisoning." West, 212 Md.App. at 175, 66 A.3d at 1151. In other words, "[the court] may only infer the existence of lead paint at [the subject property] from [West]'s condition if lead paint at [the subject property] is shown to have been the only possible explanation for [West]'s condition." Id. To expound on this "subtle," "critical" distinction, the West court explained further:
West, 212 Md.App. at 175-76, 66 A.3d at 1151-52.
We agree with the West court's analysis for application to those cases where a plaintiff relies on a Dow theory of causation. Under a Dow theory of causation, a plaintiff must rule out other reasonably probable sources of lead exposure in order to prove that it is probable that the subject property contained lead-based paint. Where the plaintiff fails to rule out other reasonably probable sources, the necessary inferences for a Dow theory of causation cannot be drawn with sufficient validity to allow the claim to survive summary judgment. See also Taylor, 207 Md.App. at 136, 150, 51 A.3d at 752, 760-61 (concluding that the trial court granted aptly the defense motion for summary judgment on the grounds that "[t]he evidence in this case does not come close to the kind of circumstantial evidence that the Court found sufficient in Dow and that ... it's not simply the age of the house and even the peeling"). That certain facts are missing to establish a Dow theory of causation, however, does not mean that the lead-poisoned
A lead-paint poisoned plaintiff may prove circumstantially that the subject property contained lead-based paint in a number of ways. As discussed above, if a plaintiff is able to exclude other reasonably probable sources of lead, such as in Dow, then the plaintiff presents a prima facie case. By way of another example, consider this illustration representing a traditional short series of row houses in Baltimore:
In this hypothetical, row house "B" is the subject property (designated with the "X") that a plaintiff hopes to prove, through circumstantial evidence, contains lead-based paint. Perhaps the row house was razed, however, and direct testing is impossible at the time of the litigation. There exists, however, evidence that these four row houses were built at the same time in the 1920's and that they were owned as a group by a series of persons or entities through the 1950's. Moreover, the City's records reveal that row houses "A" and "C" (designated with stripes) tested positive previously for lead paint on the interior of the houses. Thus, in this hypothetical (at least in the absence of evidence of lead abatement measures), the plaintiff is able to present circumstantial evidence from which a jury could infer reasonably that the subject property contained lead-based paint — without having to exclude all other sources of potential exposure to lead-paint poisoning.
Where a plaintiff who does not produce evidence to support another theory of causation and, instead, relies on a causation theory similar to that espoused in Dow, the validity of the necessary inference is limited to those circumstances where the plaintiff is able also to exclude other reasonably probable sources of lead exposure.
Plaintiffs in the present cases argue that their experts' testimony bridged any evidentiary gap in their circumstantial proof. Specifically, their experts opined that the subject properties were probably a substantial contributor to Plaintiffs' injuries.
During discovery in Raymond Hamilton, the plaintiff presented a report of the results of a technician's lead testing on eight exterior surfaces of the Appleton property. Of the eight areas tested, only one — the rear exterior door transom — tested positive for the presence of lead paint. Additionally, the plaintiff identified two experts: Dr. Robert K. Simon, Ph.D., a chemist and industrial hygienist (the same expert as appears in Hamilton v. Kirson), and Dr. Jacalyn Blackwell-White, M.D., a board-certified pediatrician (the same expert as appears in Ross, 430 Md. at 656, 63 A.3d at 5, as well as in Hamilton v. Kirson). The Court of Special Appeals described Dr. Simon's opinion as:
Raymond Hamilton, 213 Md.App. at 595-96, 75 A.3d at 330.
Dr. Blackwell-White "opined that the Appleton Street, Harlem Avenue, and Fulton Avenue properties all were sources of lead-based paint and that [the plaintiff]'s injuries were caused by exposure at the sites...." Id., 213 Md.App. at 597, 75 A.3d at 331. She explained, in part: "Both properties [the Appleton Street and Harlem Avenue properties] were old and in the absence of physical lead assessment information, are presumed to have contained lead based paint." Id. During a deposition of Dr. Blackwell-White, defense counsel asked repeatedly whether Dr. Blackwell-White could rule out the other properties as a contributing source. Dr. Blackwell-White replied that she could not. When she was asked what was the basis of her opinion, she stated: "That [the Harlem Avenue property] too, was an older property in disrepair. And it was the property of residence when the elevated lead levels were found." Id., 213 Md.App. at 600, 75 A.3d at 333.
Dackman moved for summary judgment, arguing (1) that the plaintiff "had failed to provide either direct or circumstantial evidence demonstrating the presence of lead at the Appleton Street property during the relevant time period, and (2) that he could not rule out other properties as potential sources." Id. In particular, "Dackman also claimed that because Raymond's experts admitted they were unable to rule out other sources of lead exposure or other properties as containing lead, they lacked
The plaintiff retorted that there was abundant evidence:
Id., 213 Md.App. at 601, 75 A.3d at 333. The Circuit Court granted the defense motion for summary judgment, holding that the plaintiff "had not produced evidence sufficient to establish a prima facie case of lead exposure at the one property at issue here, and the court declined to allow [the plaintiff's expert] to fill the causal gaps." Id., 213 Md.App. at 591-92, 75 A.3d at 328.
On appeal, the Court of Special Appeals stated that "an expert cannot transform thin evidence or assumptions into viable causal connections simply by labeling them an expert opinion." Id., 213 Md.App. at 608, 75 A.3d at 338; see also Taylor v. Fishkind, 207 Md.App. 121, 142, 51 A.3d 743, 756 (2012) ("`[a]n expert's opinion testimony must be based on [an] adequate factual basis so that it does not amount to conjecture, speculation, or incompetent evidence.'") (quoting Giant Food, Inc. v. Booker, 152 Md.App. 166, 182-83, 831 A.2d 481 (2003) (alterations in original)). Moreover, the court stated that Maryland courts "have for some time required more of a plaintiff than simply a showing that he lived in an old house in an area where lead-based paint historically was present." Raymond Hamilton, 213 Md.App. at 612, 75 A.3d at 340; see also id. ("`[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.'") (quoting Davis v. Goodman, 117 Md.App. 378, 393, 700 A.2d 798, 805 (1997)).
In sum, Dow does not define the only set of circumstantial facts that may satisfy a plaintiff's burden to establish a prima facie negligence case for lead paint poisoning. The pertinent question to be asked is whether the particular circumstantial evidence permits an inference or inferences of the desired ultimate fact or facts as a "reasonable likelihood or probability," and not a mere "possibility." To the extent that the Court of Special Appeals's opinions discussed in this opinion suggest that the only way to prove a prima facie negligence case circumstantially is to eliminate every other reasonable possibility as an alternative source, we do not agree with the exclusivity of such a conclusion. With this understanding and these principles in mind, we shall apply them to the present cases.
There was no direct evidence adduced of lead-based paint in the interior of 754 Bartlett Avenue. Moreover, there was no evidence, as there was in Dow, that the children spent substantially all of their time in one house, the subject property, such that the Circuit Court could conclude that a fact-finder could be persuaded that there was a reasonable probability that the subject property contained lead-based paint. The Court of Special Appeals, in an unreported opinion, emphasized that, in order to prove a prima facie case, "the evidence ... would have had to provide the experts with enough information to rule out other possible sources of lead exposure to create the circumstantial evidence that the Hamiltons were exposed to lead at the Bartlett house." Hamilton, slip op. at 21. The intermediate appellate court held that the evidence in the Hamiltons' case did not do so:
Id. at 20-21. In so holding, the court acknowledged that "more than one home can be a substantial contributing source of lead and therefore, more than one landowner could be liable for a child's lead poisoning." Id. at 21. The court went on, though, stating:
Id. at 21-22 (emphasis added).
The Court of Special Appeals recognized aptly the multi-layered nature of the causation analysis in circumstantial evidence cases. The court stated that the Hamiltons were not required "to establish that the only place responsible for the Hamiltons' lead poisoning was the Bartlett house, but [were required] to show that the Bartlett house contained lead." Id. at 21. We depart from the reasoning of the intermediate appellate court, however, that, without direct evidence, "the Hamiltons' only option was to eliminate other sources of lead poisoning." Id. As we discussed above at 537-38, 96 A.3d at 735-37 in our hypothetical of the block of row houses, there may be other ways that an injured plaintiff may establish that it was probable that the interior of a subject house contained lead. Accordingly, the sole concern should not be that the Hamiltons' experts were provided with little information on other potential sources of lead exposure. Rather, the concern should be that the Hamiltons' experts reached the conclusion that the house contained lead-based paint on a presumption that houses built during a certain time period contain typically lead-based paint. Such a factual basis is insufficient for an expert to reach the conclusion that the interior of a specific property contained lead-based paint during the relevant time period.
In Alston, at the end of the motions hearing, the Circuit Court concluded that the defense motion for summary judgment should not be granted on the basis of uncertainty over where Plaintiffs lived, even though there was very little evidence and that which was adduced was "extremely sketchy in this case." Instead, the judge granted the defendant's motion for summary judgment on the basis of a failure to offer sufficient proof of causation linking the plaintiff's elevated blood lead levels and the specific conditions of the subject properties. The Circuit Court's reasoning is important to our (and its) analysis and, thus, we expound further.
The Circuit Court accepted that Plaintiffs showed that the subject properties had "deteriorating paint" and that, at least for purposes of the summary judgment motion, Plaintiffs "exhibited elevated blood lead levels at around the time that they say they were living in these properties." Moreover, the Circuit Court acknowledged correctly that generally Plaintiffs could prove a causal link "indirectly by circumstantial means." The Circuit Court concluded, however, that the plaintiffs failed to forge the first inferential link because:
(Emphasis added.) The Circuit Court stated on the record that "there may be a
The problem, the Circuit Court stated, was that "you simply have two wide open possible properties at the same time, either of which could have been the source of the lead that is alleged. And that is insufficient to establish the prima facie case that the plaintiff would have to show on negligence."
On appeal, the Alstons argue that this analysis was defective. We disagree. Plaintiffs bear the initial burden of proving circumstantially a prima facie negligence case. Part of that burden is to advance a viable theory of causation. In the Alstons' case, they argued a Dow theory of causation, but, as the Circuit Court noted, the Alstons failed to produce the quantum or quality of evidence noted in Dow, namely, they failed to eliminate other reasonably probable identified sources of lead exposure. Thus, the Circuit Court's comparison of the Alstons' case to Dow was appropriate and its ultimate conclusion that the Alstons' failed to meet their initial burden was correct.
% Containing LBP Built Age of Housing 87% before 1940 69% between 1940 to 1960 24% between 1960-1978
Dr. Simon referred also to a press release on a report by the Maryland Department of the Environment, which cited the U.S. Census Bureau as reporting that "95% of houses were likely to have LBP if built before 1950 and that 75% of houses were likely to have LBP if built between 1950 and 1978." See Press Release, First Lady Hon. Kathleen O'Malley, MDE Announce Results of Lead Poisoning Report (Aug. 27, 2010), http://www.mde.state.md.us/programs/PressRoom/Pages/1296.aspx (referring to the Maryland Department of the Environment, Childhood Blood Lead Surveillance in Maryland Annual Report 2009 (Aug.2010)).
This Court recognizes that "in order to pass muster at a summary judgment proceeding, the opponent must produce evidence that would be admissible at trial." Helinski v. Rosenberg, 90 Md.App. 158, 166, 600 A.2d 882, 886 rev'd, 328 Md. 664, 616 A.2d 866, rev'd on other grounds, Rosenberg v. Helinski, 328 Md. 664, 616 A.2d 866 (1992) (citing Gooch v. Maryland Mechanical Sys., Inc., 81 Md.App. 376, 396, 567 A.2d 954 (1990)); see also Gooch, 81 Md.App. at 396, 567 A.2d at 954 ("facts proffered in opposition to the granting of a motion for summary judgment must be admissible in evidence") (citations omitted). Maryland Rule 5-702, which governs the admissibility of expert testimony, provides:
(Emphasis added.) Accordingly, where a circuit court grants a summary judgment motion on the grounds that the plaintiff's expert lacks a sufficient factual basis of admissible facts and the admissible evidence (if any) is insufficient independently to prove causation, the circuit court is making a decision on the admissibility of the expert's testimony as part of its summary judgment decision and, thus, is making a legal decision. Such a decision is reviewed on appeal without deference, as the grant of all summary judgment motions are. See, e.g., Giant Food, Inc. v. Booker, 152 Md.App. 166, 176-78, 831 A.2d 481, 486-87 (2003) (reviewing the denial of a motion for judgment and a motion for judgment notwithstanding the verdict without deference, even though the reasoning for the trial judge's decision was based upon the admissibility of the expert testimony due to an allegedly sufficient factual basis for concluding that accidental exposure to Freon caused the plaintiff's asthma).
Ross, 430 Md. at 671, 63 A.3d at 14.
In contrast, though, in those lead-paint cases in which the defendant is a former owner and a different person or entity owns the subject property at the time of the litigation, such as the present cases, the plaintiffs may not avail themselves of Md. Rule 2-422. See Webb v. Joyce Real Estate, Inc., 108 Md.App. 512, 517 n. 2, 672 A.2d 660, 662 n. 2 (1996) (concluding that Md. Rule 2-422 did not authorize entry onto property owned by a nonparty because, under Rule 2-422, "nonparties may not be compelled to submit to an inspection of their property"). The Court of Special Appeals made clear in Stokes v. 835 N. Washington Street, LLC, 141 Md.App. 214, 784 A.2d 1142 (2001), however, that a plaintiff so situated may have other judicial avenues through which he or she may seek testing of the interior of a house owned by a non-party.
In Stokes, the defendant was the former owner of the subject property. The current owner of that property refused the plaintiffs' request for access to that property in order to conduct a test for the presence of lead-based paint. The plaintiffs filed an action against the current owner, seeking an order for entry upon the property to conduct a "noninvasive and nondestructive test" on the paint in the interior of the residence. The Circuit Court denied that motion. Plaintiffs appealed.
The Court of Special Appeals recognized that the plaintiffs were not permitted under Md. Rule 2-422 to enter onto the property owned by a non-party, and that no other Maryland rule provided explicitly for the circuit court to grant such relief. Despite the absence of a rule, however, the court held that the plaintiffs were permitted to request such relief from the circuit court, and "the circuit courts have the power to order inspection of a non-party's property on a case-by-case basis through the equitable bill of discovery." Stokes, 141 Md.App. at 221, 784 A.2d at 1146-47. The intermediate appellate court reasoned that "the absence of a rule expressly authorizing an inspection does not preclude the circuit court from granting that relief when it is in the interest of justice to do so." Id., 141 Md.App. at 222, 784 A.2d at 1147-48.
We note the lack of direct evidence not because it is required per se. We note it in response to the Hamiltons' and the Alstons' arguments that to require more evidence than Plaintiffs presented in these cases is an "insurmountable burden" for lead-paint plaintiffs generally. Without evidence that Plaintiffs exhausted reasonable avenues to gather direct or circumstantial evidence of the presence of lead paint, we find it impossible to conclude that this standard is "insurmountable." Moreover, this Court acknowledged in many negligence cases that some cases simply do not have enough information to hold the defendant to trial. In this regard, an "insurmountable burden" is appropriate for cases that would leave the jury to guesswork and speculation.
