Rochkind v. Stevenson

229 Md.App. 422

145 A.3d 570

Stanley Rochkind

v.Starlena Stevenson

No. 418

Sept. Term, 2015

Court of Special Appeals of Maryland.

September 1, 2016

Argued by: M. Natalie McSherry (Christopher C. Jefferies, Kramon & Graham PA of Baltimore, MD, and Thomas J. Cullen, Jr., Constantine J. Themelis, Goodell, DeVries, Leech & Dann, LLP of Baltimore, MD, and Ronald D. Getchey, Sheppard, Mullin, Richter & Hampton, LLP of San Diego, CA) all on the brief, for Appellant.

Argued by: Scott E. Devin & Robert J. Leonard (Law Office of Peter T. Nicholl on the brief) all of Baltimore, MD, for Appellee.

Panel: Deborah S. Eyler, Nazarian, Alan M. Wilner (Retired, Specially Assigned), JJ.

Deborah S. Eyler, J.

In the Circuit Court for Baltimore City, Starlena Stevenson sued S&S Partnership (“S&S”), Stanley Rochkind, and Dear Management & Construction Company (“Dear”) for negligence and violations of the Consumer Protection Act (“CPA”), Md. Code (1975, 2013 Repl. Vol.), section 13–301 et seq . of the Commercial Law Article (“CL”).¹ As relevant here, she alleged that she suffered injuries as a result of ingesting lead-based paint inside 3823 Fairview Avenue (“the Fairview Property”), which was owned by Mr. Rochkind and S&S and was managed by Dear.

In March of 2014, the case was tried to a jury with Judge Steven Sfekas presiding (“the First Trial”). The jury returned a verdict in favor of Ms. Stevenson, awarding her $829,000 in economic damages and $534,000 in non-economic damages. Mr. Rochkind moved for a new trial or, in the alternative, a remittitur. Judge Sfekas granted the motion in part, ordering a partial new trial on damages.

The partial new trial was held before a jury in October and November of 2014, with Judge Pamela White presiding (“the Second Trial”). The jury returned a verdict awarding Ms. Stevenson $753,000 in economic damages and $700,000 in non-economic damages. Mr. Rochkind filed a motion for new trial, which was denied, and Ms. Stevenson filed a motion for attorneys' fees, which also was denied. Applying the cap on non-economic damages, see Md. Code (1973, 2013 Repl. Vol.), section 11–108 of the Courts and Judicial Proceedings Article (“CJP”), Judge White reduced the judgment to $1,103,000.

Mr. Rochkind noted this appeal, presenting eleven questions for review, which we have combined and rephrased as follows:

I. Did Judge Sfekas err by ordering a partial new trial, instead of a full new trial, and did Judge White improperly narrow the issues to be re-tried?

II. In the First and the Second Trials, did the court err by declining to hold a Frye–Reed hearing and by ruling that Cynthia Hall-Carrington, M.D., could testify that the Fairview Property was a substantial contributing cause of Stevenson's elevated blood lead levels, that Ms. Stevenson's ADHD was caused by that lead exposure, and that Ms. Stevenson lost a specific number of IQ points as a result of that lead exposure?

III. In the Second Trial, did the circuit court err by not holding a Frye–Reedhearing to assess the methodologies employed by Mark Lieberman, a vocational counselor, and by permitting him to opine that, but for Ms. Stevenson's “cognitive defects,” she would have functioned as an “average high school graduate”?

IV. In the Second Trial, did the court err by permitting Michael Conte, Ph.D to offer economic loss opinions premised solely on Mr. Lieberman's testimony, which should have been excluded?

V. In the Second Trial, did the court err by precluding Mr. Rochkind's economics expert from testifying about research that quantifies the loss of lifetime earnings caused by incremental increases in blood lead levels?

VI. In the Second Trial, did the court err by precluding defense counsel from cross-examining Dr. Conte about two exhibits introduced into evidence by Ms. Stevenson that showed that she may have been eligible for free job coaching?^[2]

Ms. Stevenson noted a cross-appeal, presenting one question: Did the circuit court err by denying her request for attorneys' fees?

For the following reasons, we shall affirm the judgments of the circuit court.

FACTS AND PROCEEDINGS

Ms. Stevenson was born on December 22, 1990. Her mother, Charlena Montgomery, was 17 years old at the time. Ms. Stevenson was raised by her mother and her maternal grandmother, Lorena Cooks. Her father, Vernon Stevenson, was largely absent from her life. She has a maternal half-brother, who is 22, and a maternal half-sister, who is 16.

From birth until age nine months, Ms. Stevenson lived with Ms. Montgomery and Ms. Cooks at 2110 Clifton Avenue, in Baltimore City (“2110 Clifton Property”). According to Ms. Montgomery, the interior walls of that property were covered with wood paneling, the windows were vinyl, and there was no chipping, peeling, or flaking (“deteriorated”) paint.

In October of 1991, Ms. Stevenson and Ms. Montgomery moved to the Fairview Property, a West Baltimore rowhouse that was built in 1930. Ms. Montgomery recalled that the interior of the property was repainted before they moved in. The painters simply covered over the existing flaking and chipping paint, however, and the paint soon deteriorated on the interior walls. There also was deteriorated paint on the wood windowsills, the ceilings, the heaters, and the front porch.

Ms. Stevenson lived at the Fairview Property for fifteen months. During that time, she started walking. She liked to look out the window. Ms. Montgomery saw her touching the windowsills and then her mouth, and licking the windows. Ms. Stevenson sometimes rested her food on the windowsill and ate while standing there.

For the first 13 months that she lived at the Fairview Property, Ms. Stevenson spent from 7 a.m. to 3 or 4 p.m., five days a week, at the house of a babysitter, while her mother attended high school. The babysitter's house was located at 2114 Clifton Avenue (“2114 Clifton Property”), two doors down from the 2110 Clifton Property. The 2114 Clifton Property had been “gut rehabilitated” in 1985 and had new windows. There was no deteriorated paint at that property.

In January of 1993, soon after Ms. Stevenson turned two, she and Ms. Montgomery moved to what Ms. Montgomery called a “newer apartment,” on Pennsylvania Avenue (“the Pennsylvania Avenue Property”).

According to Ms. Montgomery, there was no deteriorated paint at that property.

Ms. Stevenson's blood was tested for lead four times, beginning when she was almost two years old and was living at the Fairview Property, and ending when she was seven years old. The results were as follows:

Date

Blood Lead Level

Ms. Stevenson's Address

October 29, 1992

14 µg /dL

Fairview Property

January 8, 1993

13 µg /dL

Fairview Property

March 17, 1993

11 µg /dL

Pennsylvania Avenue Property

September 3, 1998

8 µg /dL

424 Oxford Court, Baltimore City or 1809 Raynor Avenue, Baltimore City³

[Editor's Note: The preceding image contains the reference for footnote³ ]When Ms. Stevenson was five years old, Ms. Montgomery took her to the Kennedy Krieger Institute (“KKI”) for an evaluation because she was struggling to pay attention in school and was “hyper.” Thomas Ley, Ph.D, a KKI psychologist, determined that Ms. Stevenson's cognitive functioning was within the “low average to borderline range,” with a full scale IQ of 76 (+/- 5). He diagnosed her with Attention Deficit Hyperactivity Disorder (“ADHD”), for which he prescribed Adderal, and recommended further testing to rule out a developmental language disorder. Ms. Stevenson remained on Adderal until she was 14.

Beginning in the third grade, Ms. Stevenson was placed in special education classes. She was assigned a one-on-one aide who assisted her in school.

At age 13, Ms. Stevenson attempted suicide by cutting herself and overdosing on prescribed medication. The following year, in April of 2005, Ms. Montgomery took Ms. Stevenson to the Mount Washington Pediatric Hospital (“MWPH”) for an evaluation. Ms. Stevenson was complaining of auditory hallucinations and depression. In May of 2005, a psychologist at MWPH tested Ms. Stevenson and determined that she had a full scale IQ of 65, which is in the “Extremely Low range of ability.” She was diagnosed with major depressive disorder and generalized anxiety disorder.

Ms. Stevenson never was held back in school or suspended. In 2008, she graduated from high school. She then enrolled in a Division of Occupational Rehabilitation (“DORS”) program for job training and coaching. Through the DORS program, she found a job as a “transporter” for the University of Maryland Medical Systems. She was fired from that position, however.⁴

For about 10 months in 2012 and 2013, Ms. Stevenson was employed part-time at a Royal Farms store, in the kitchen and at the cash register. She quit because she was bored. In 2014, she worked as a babysitter for her cousin's children between the hours of 7 p.m. and 7 a.m., earning approximately $200 every other week. At the times of the trials in this matter, Ms. Stevenson was unemployed.

On December 19, 2011, Ms. Stevenson filed suit against Mr. Rochkind and the other defendants for negligence and unfair trade practices. The First Trial began on March 6, 2014. Ms. Stevenson testified and called three fact witnesses and nine expert witnesses in her case. Ms. Stevenson's and Ms. Montgomery's testimony was as we have recited the facts.

Christopher White, a certified lead risk assessor for Arc Environmental, Inc. (“Arc”), testified that, on July 13, 2012, Arc performed x-ray fluorescence (“XRF”) testing on the interior and exterior surfaces of the Fairview Property. The XRF testing revealed 22 interior painted surfaces and nine exterior painted surfaces that were positive for the presence of lead-based paint. Inside the property, door jambs, window casings, baseboards, and door casings all tested positive. Mr. White opined that, based upon the age of the house, and the fact that lead-based paint has been prohibited for use in residential properties in Baltimore City since 1978, it was more likely than not that the lead-based paint had...