Rowhouses, Inc. v. Smith

446 Md. 611

133 A.3d 1054

ROWHOUSES, INC.

v.Myishia SMITH.

No. 60, Sept. Term, 2015.

Court of Appeals of Maryland.

March 25, 2016.

William C. Parler, Jr. and Kelly A. Grafton (Paler & Wobber, L.L.P., Towson, MD), on brief, for petitioner.

Scott E. Nevin (The Law Offices of Peter T. Nicholl, Baltimore, MD; Suzanne C. Shapiro, Suzanne C. Shapiro Law, LLC, Baltimore, MD), on brief, for respondent.

Argued before BARBERA, C.J., BATTAGLIA, GREENE, ADKINS, McDONALD, WATTS, and ALAN M. WILNER (Retired, Specially Assigned), JJ.

WATTS, J.

In this case, we are asked yet again to address causation in a lead-based paint case where a plaintiff's case rests on circumstantial—as opposed to direct—evidence, and, in this context, we are called upon to attempt to define what constitutes a reasonable probable source of lead exposure.

Specifically, here, we decide whether, in the absence of direct evidence that a property contained lead-based paint, there was sufficient admissible circumstantial evidence produced by a plaintiff, who alleged that she was injured as a child by lead-based paint at a property that the defendant owned and managed, to survive the defendant's motion for summary judgment, such that the trial court erred in granting summary judgment in the defendant's favor as to the plaintiff's negligence claim.

We hold that the trial court erred in granting summary judgment in the defendant's favor as to the plaintiff's negligence claim where, even without direct evidence that the subject property contained lead-based paint and without expert testimony as to the source of the plaintiff's lead exposure, there was sufficient admissible circumstantial evidence from which a trier of fact could conclude that the subject property contained lead-based paint; and, the evidence was sufficient for a jury to conclude that the subject property was a reasonable probable source of the plaintiff's lead exposure, and that there were no other reasonably probable sources of lead exposure.

BACKGROUND

The Residential History

Myishia Smith ("Smith"), Respondent, alleges that she suffered lead-based paint poisoning while residing at 1622 East Oliver Street ("the Oliver Street Property") from approximately 1991 to 1993. At various times during the first years of her life, Smith also resided at 418 South Monroe Street ("the Monroe Street Property") and 1508 North Collington Avenue ("the Collington Avenue Property"), and visited 2017 Ashland Avenue ("the Ashland Avenue Property").

On October 21, 1991, Smith was born. According to Smith's mother, Doris Plater ("Plater"), Smith lived at the Monroe Street Property from her birth until Spring 1992. At her deposition, Plater testified that the Monroe Street Property was in "[g]ood condition."

No later than Spring 1992, Plater and Smith moved from the Monroe Street Property to the Oliver Street Property.¹ At that time, Rowhouses, Inc. ("Rowhouses"), Petitioner, owned and managed the Oliver Street Property. According to Plater, approximately "three to four months" after she and Smith moved into the Oliver Street Property, she noticed that the paint on the "[w]indowsills, the banister[, and the] baseboards" "started chipping and peeling[.]" Plater also noticed dust on the floor. During the time that Plater and Smith lived at the Oliver Street Property, Smith began to walk at age ten months, and Plater testified that Smith spent time in areas in the house near deteriorated paint and that she observed Smith put her hands in her mouth while living in the Oliver Street Property. Indeed, according to Plater, Smith put her hands in mouth "three or four times out of a day." Smith spent most of her time at the Oliver Street Property, and did not attend daycare and was not babysat at any other address while residing at the Oliver Street Property. In Spring 1993, Plater and Smith moved from the Oliver Street Property² to the Collington Avenue Property, where they resided until Spring 1994.

While Smith resided at the Monroe Street Property, the Oliver Street Property, and the Collington Avenue Property, Plater took Smith to visit her grandmother at the Ashland Avenue Property "[e]very week" for approximately "[t]wo, three hours."³ Plater never observed any chipping, flaking, or peeling paint at the Ashland Avenue Property.

Smith's blood-lead levels were tested on three occasions between 1992 and 1993—September 25, 1992, May 28, 1993, and September 21, 1993. On September 25, 1992, while Smith was residing at the Oliver Street Property, Smith's blood-lead level was reported as 11 micrograms per deciliter (µg/dL); on May 28, 1993, Smith's blood-lead level was reported as 7 µg/dL;⁴ and on September 21, 1993, while Smith was residing at the Collington Avenue Property, Smith's blood-lead level was reported as 15 µg/dL.⁵

The Litigation

On October 24, 2011, Smith filed in the Circuit Court for Baltimore City ("the circuit court") a complaint and demand for jury trial against Rowhouses and the Collington Avenue Property's owner for negligence and violations of the Maryland Consumer Protection Act arising out of Smith's alleged exposure to lead-based paint at the Oliver Street Property and the Collington Avenue Property.⁶ By the time that Smith filed the complaint, the Oliver Street Property had been demolished and thus could not be tested for lead-based paint.

Moreover, before being razed, the Oliver Street Property had not been tested for lead-based paint, and there were no violation notices issued for lead-based paint hazards. In other words, there was no direct evidence that the Oliver Street Property contained lead-based paint.

The parties engaged in discovery and identified expert witnesses. Smith designated Robert K. Simon, Ph.D. ("Dr. Simon"), as an expert in "toxicology, lead risk assessment[,] and industrial hygiene." On October 11, 2013, Dr. Simon prepared a report evaluating whether certain properties "were substantial contributing sources of lead exposure during [Smith's] early childhood." As to the Oliver Street Property, Dr. Simon stated that "deed records showed that the [Oliver Street Property] was built most likely in the early 1900s or before[,]" and that "[t]he age of th[e] house would presume the presence of lead[-]based paint[.]" Dr. Simon concluded that "it was more likely than not that [the Oliver Street Property] contained lead[-]based paint hazards during [Smith]'s residency." Dr. Simon noted that the information that had been provided to him indicated the presence of "deteriorated paint" at the Oliver Street Property while Smith resided there. In the report, Dr. Simon opined:

It is my opinion to a reasonable degree of scientific probability that [S]mith was initially exposed to lead[-]based paint hazards during her residency at [the Oliver Street Property] from some months to about 2 years. She then continued to be exposed to lead[-]based paint hazards when she lived at [the Collington Avenue Property] from age 2 to 3 years.... It is my opinion to a reasonable degree of scientific probability that [the Oliver Street Property] and [the Collington Avenue Property] were both substantial, contributing sources for her lead exposure, elevated blood[-]lead levels [ ] and lead poisoning during [ ] Smith's early childhood.

(Paragraph break omitted).

On April 30, 2014, in response to supplemental documents that had been provided to him, Dr. Simon sent a letter to Smith's counsel. In the letter, Dr. Simon noted that Plater had provided the following information at her deposition:

[Plater] reported on deteriorated paint at [the Oliver Street Property] that was similar to the information [that was previously] provided[.]

[Plater] did not report deteriorated paint at other [ ] childhood residences [ of Smith's].

[Plater] reported that [Smith] visited ... [the Ashland Avenue Property] for several hours each week during her early childhood. [Plater] reported that this location did not have deteriorated paint.

* * *

[Plater] reported that [Smith] did not visit parks, playgrounds or attend daycare during her early childhood. [Plater] reported that she [ ] provided child care for [Smith] at their residences.

According to Dr. Simon, review of this supplemental information did not necessitate any change to his October 11, 2013 report, in which he opined that the Oliver Street Property was a substantial contributing source of Smith's lead exposure.

On May 5, 2014, Dr. Simon was deposed. At his deposition, the following exchange occurred as to potential sources of lead exposure during Smith's early childhood:

[ROWHOUSES'S COUNSEL:] As we sit here today[,] do you have an opinion as to whether or not [the Monroe Street Property] was a source of lead ingested by [Smith]?

[DR. SIMON:] Yes.

[ROWHOUSES'S COUNSEL:] And what is your opinion, Doctor?

[DR. SIMON:] Most likely not for two reasons. First of all, I have no blood [-]lead data indicating an exposure at that location. Number two, [Smith] really lived there approximately six months, so [Smith] is out of that location before [she]'s really crawling, walking, moving around to get into any kind of lead risk. By eleven months we're at [the Oliver Street Property]. So again I don't think there's any data that would indicate to me that there was a problem of potential exposure at [the Monroe Street Property]. I can't say absolutely there couldn't have been, but I don't see any information that would indicate that it was likely to have occurred.

[ROWHOUSES'S COUNSEL:] And just for my clarification purposes, you're basing that opinion on because you did not see any blood[-]lead testing data that would indicate [the Monroe Street Property] as a record address as part of your basis. Is that correct?

[DR. SIMON:] That's part of it. And she was born October 21st, 1991. By the spring of 1992 they had moved to [the Oliver Street Property]. She's five or six months old. Normally until the child is crawling around and can get into stuff on their own, they're sitting in various restrainer type of chairs or cribs or

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