Dackman v. Robinson

ELLIOT DACKMAN, ET AL. v. DAQUANTY ROBINSON, a Minor,by his Mother and Next Friend, TIESHA ROBINSON

No. 2035

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2014

August 31, 2018

Circuit Court for Baltimore City

Case No. 24-C-12-0006890

UNREPORTED

Woodward, C.J., Berger, Arthur, JJ.

Opinion by Woodward, C.J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

In this case, we are again confronted with the complexities of proximate causation that arise in childhood lead paint poisoning litigation. Daquantay Robinson, appellee, by and through his mother and next friend, Tiesha Robinson, filed suit against appellants, the property owners¹ of a row house located at 1642 E. 25th Street, Baltimore, Maryland, for injuries resulting from lead paint poisoning from 1997 to 2001. At the conclusion of a five-day jury trial in the Circuit Court for Baltimore City, the jury found against appellants and awarded appellee $2,088,330 in damages. The circuit court, however, granted appellants' motion for remittitur and reduced that award to $1,530,000.

On appeal, appellants present six questions for our review, which we have consolidated and rephrased as follows:²

1. Did the circuit court abuse its discretion by denying appellants' motion for summary judgment as to negligence?

2. Did the circuit court abuse its discretion by denying appellants' motion in limine to exclude the testimony of Dr. Jacalyn Blackwell-White and allowing Dr. Blackwell-White to provide testimony concerning the source of appellee's lead exposure at trial?

3. Did the circuit court abuse its discretion by denying appellants' motion in limine to exclude the testimony of Estelle Davis, Ph.D., C.R.C., and Richard Lurito, Ph.D., and allowing those experts to provide testimony at trial?

4. Did the circuit court abuse its discretion by denying appellants' motion in limine to exclude the report and testimony of Richard Lurito, Ph.D., and by denying appellants' motion to postpone the trial?

5. Did the circuit court err or abuse its discretion by denying appellants' motion for judgment at the conclusion of appellee's case, motion for judgment at the conclusion of all evidence, motion for judgment notwithstanding the verdict, and/or motion for new trial?

6. Did the circuit court err or abuse its discretion by denying appellants' request to remit appellee's economic loss award to $0.00 pursuant to appellants' motion for remittitur?

For the reasons that follow, we conclude that the circuit court did not err or abuse its discretion, and thus shall affirm the judgment of that court.

BACKGROUND

Appellee was born on February 11, 1997. Shortly before his birth, appellee's mother, grandmother, and three other family members began residing in a row house located at 1625 E. 25th Street in Baltimore City, ("the Property"), a property owned and managed by appellants. Until he began attending daycare at eighteen months old, appellee stayed exclusively at the Property and did not visit any other properties. Appellee lived at the Property from his birth in 1997 until 2001, and had the following blood-lead level test results:

Date Taken

Blood-Lead Level3

December 3, 1997

12 μg/dL

May 13, 1998

13 μg/dL

November 11, 1998

12 μg/dL

June 11, 1999

14 μg/dL

February 18, 2000

9 μg/dL

August 30, 2000

9 μg/dL

With respect to the condition of the Property, appellee's grandmother, Sandra Moses, stated in her affidavit that "there was chipping, peeling[,] and flaking paint all over the place" when they moved in. Moses stated that there was chipping, flaking, and peeling paint on the window frames, as well as "in the basement on the ceiling, doors[,] anddoorframes." As to the exterior of the house, Moses testified that there was chipping, flaking, and peeling paint "on the door, posts[,] and ceiling" of the front porch. In her deposition, appellee's mother, Tiesha Robinson ("Ms. Robinson"), similarly recalled chipping, flaking, and peeling paint on the window frames, as well as the heater in the room that she shared with appellee. There was also a hole in the wall of appellee's room that Ms. Robinson stated appellee would pick at.

In 2012, appellee, by and through his mother and next friend, Ms. Robinson, sued Elliot Dackman, individually and as trustee of the assets of Dackman Company and Jacob Dackman & Sons, LLC, (appellants or "the Dackmans"),⁴ in the circuit court for alleged injuries sustained from exposure to lead-based paint at the Property. The complaint alleged claims based on appellants' negligence, violation of the Maryland Consumer Protection Act ("MCPA"), and negligent misrepresentation.

In June 2013, ARC Environmental, Inc. ("ARC") conducted lead testing at the Property. The testing detected lead-based paint on seven interior surfaces and two exterior surfaces. Specifically, lead-based paint was detected in the basement storage room on the "door surface and jam[,]" and in the basement hallway on the "door casing, threshold, [ ] headers[, and] ceiling." Lead-based paint was also detected on the front exterior on the "porch post and ceiling."

During discovery, the parties named a number of expert witnesses. Appelleeidentified pediatrician, Jacalyn Blackwell-White, M.D., as an expert witness. Dr. Blackwell-White filed a report concluding to "a reasonable degree of medical probability" that appellee had been exposed to lead at the Property. Estelle L. Davis, Ph.D., was identified as an expert in rehabilitation counseling and prepared a report assessing appellee's "employability and earning capacity given his impairments and absent his impairments." Dr. Davis opined that absent his impairments, appellee "would likely function at a higher cognitive level[;] [h]e would likely not have issues with [a]ttention and [e]xecutive [f]unctions[;]"he would likely "finish two year[s] of college or the equivalent in a technical school[;] and [he would likely] have earnings comparable to someone with that level of education." Appellee further identified Richard Lurito, Ph.D, an economist, to determine "the economic value today of the projected lost earnings of [appellee] as a result of his cognitive deficits." Based on Dr. Davis's opinion, Dr. Lurito concluded in his report that appellee "has likely suffered an income loss of $1,148,308 or $1,675,777 due to his cognitive deficits."

On July 22, 2014, appellants filed a motion for summary judgment, asserting that appellee could not meet his burden of establishing the necessary elements for negligence, violation of the MCPA, or negligent misrepresentation. After a hearing held on August 25, 2014, the court granted appellants' motion for summary judgment as to the MCPA and negligent misrepresentation claims but denied the motion as to the negligence claim. Based on the evidence that appellee presented, the court held that "the jury could find that [the Property] was the source[,]" of appellee's lead exposure.

Prior to trial, appellants filed numerous motions in limine seeking to exclude the reports and testimony of Drs. Blackwell-White, Davis, and Lurito. Appellants argued that Dr. Blackwell-White should not be permitted to testify that the Property was the source of appellee's lead exposure, and that Dr. Davis lacked an adequate factual basis to opine about appellee's employment capabilities absent lead exposure. Because Dr. Lurito relied on Dr. Davis's opinion, appellants argued that his report and testimony should also be excluded. In addition, appellants also filed a motion in limine to exclude Dr. Lurito's report and testimony because it was produced after the end of discovery in violation of the court's scheduling order. On the first day of trial, the court heard argument and subsequently denied each of appellants' above-mentioned motions.

At trial, Ms. Robinson testified that during the first eighteen months of his life, appellee stayed at the Property exclusively. During this period of exclusive residence at the Property, appellee had blood lead levels of 12 μg/dL and 13 μg/dL. Ms. Robinson stated that appellee spent "[m]ost of his time [ ] in the house[,]" in various areas including the basement and his bedroom. According to his mother, appellee also spent time outside on the porch where he would "ride his bike, or play with his toys[.]" Ms. Robinson admitted that she observed her son putting "his hands [and] toys in his mouth when he was a very young child." Appellee began attending daycare at other properties when he was approximately eighteen months old. Ms. Robinson testified that she used vouchers from the Maryland Social Services Administration to pay for appellee's daycare, and did not see chipping, peeling, or flaking paint at those facilities.

Both Ms. Robinson and Moses testified concerning the condition of the Property.When Ms. Robinson brought appellee home from the hospital to the Property, she said that there was chipping and peeling paint in multiple areas of the house including, "[t]he window frames, the heaters, [and the] wall" in the bedroom that Ms. Robinson shared with appellee. Consistent with her deposition testimony, Ms. Robinson recounted that there was a hole in the wall of the bedroom that appellee would often pick at. Ms. Robinson further stated that appellee spent "everyday" with his great-grandfather in the basement of the house. Moses testified that there was chipping, flaking, and peeling paint throughout the house, including on the "basement door and on the walls[,]" as well as on the front door, baseboards, windows, and front porch.

A number of experts testified on behalf of appellee as to the condition of the Property. Appellee called Edward Rush Barnett, "an expert in lead risk assessment and lead paint inspection." Barnett testified that it was his opinion, "to a reasonable degree of [professional] probabilit...