Smith v. Kennedy Krieger Inst., Inc.

KIMBERLY SMITH, PERSONAL REPRESENTATIVE OF THE ESTATE OF CECIL HARRIS, III v. KENNEDY KRIEGER INSTITUTE, INC.

No. 2241

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2014

March 22, 2017

UNREPORTED

Leahy, Friedman, Kenney, James A. III, (Senior Judge, Specially Assigned), JJ.

Opinion by Leahy, 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.

This appeal comes to us under tragic circumstances. Cecil Harris, III, ("Cecil"), now deceased, was enrolled as a child in the "Lead-Based Paint Abatement and Repair and Maintenance Study" (the "R&M Study" or the "Study") conducted by the Kennedy Krieger Institute, Inc. ("KKI"), in the early-to-mid-1990s. The R&M Study measured the effectiveness of different tiers of lead remediation and abatement in residential housing by measuring the blood lead levels of children participating in the Study.

Cecil filed suit against KKI and several other parties¹ in the Circuit Court for Baltimore City on November 16, 2012, on multiple claims arising from his exposure to harmful levels of lead—reaching a height of 18 micrograms per deciliter on May 22, 1996—that caused irreparable injury to his brain. The trial court dismissed several claims on motion, and, following a lengthy trial, granted KKI's motion for judgment on another claim. The jury found in favor of KKI on all remaining claims. Cecil filed a timely appeal to this Court. Sadly, Cecil died during the early months of this appeal for unrelated reasons, and his mother, Kimberly Smith, formerly Kimberly Armstead, was eventually substituted as a party in this Court as the Personal Representative of the Estate.² The Estate presents the following questions, which we have reordered minimally:

1. "Was the admission of dust-lead test results produced by KKI's experimental [BRM-HVS3] vacuum sampler reversible error?"

2. "Did the trial court commit reversible error in admitting KKI[']s expert opinion on alternative sources of Plaintiff's lead exposure that lacked the sufficient factual basis required by Md. Rule 5-702?"

3. "Did the trial court err when it ruled that KKI was not an "operator" and granted judgment on Plaintiff's claims of negligence under the Baltimore City Code?"

4. "Did the question of fact concerning the substantial certainty that R&M Study children would suffer lead exposure preclude summary judgment on Plaintiff's battery claim?"

5. "Did the trial court commit legal error in granting summary judgment on Plaintiff's fraud claim on the basis [that] there was no triable question of fact concerning KKI's intent to deceive?"

6. "Did the trial court abuse its discretion by refusing to instruct the jury that the R&M Study consent form constituted a contract?"

7. "Did the trial court commit reversible error in admitting evidence of the prevalence of childhood lead poisoning in Baltimore City which was irrelevant and unfairly prejudicial?"

On the first question, we hold that the circuit court did not err in its determination, following a Frye-Reed hearing, that vacuum sampling is a generally accepted method for evaluating trends in levels of lead dust over time. Although we determine that the court did abuse its discretion by admitting into evidence Exhibit 84—an exhibit concerning dust-lead results that went beyond the scope established by the court's Frye-Reed order—we conclude the error was harmless. As to the Estate's second contention, we determine that, as evidenced by the verdict sheet, the jury never reached the issue of causation, therefore,the alleged errors concerning expert testimony on alternative sources of causation were harmless. Next, we hold that KKI was not an "operator" of the housing at issue, and that the circuit court did not err in granting summary judgment on the battery and intentional misrepresentation claims because Cecil generated no genuine dispute of material fact as to those claims. Finally, we conclude that the circuit court did not err in admitting evidence of the prevalence of childhood lead poisoning in Baltimore City, nor do we determine that the court abused its discretion in declining to give the requested instruction pertaining to the R&M Study consent form. We affirm the judgments of the circuit court.

BACKGROUND

A. The Repair and Maintenance Study

In 1992, Congress passed the Residential Lead-Based Hazards Reduction Act ("1992 Act"). 42 U.S.C. §§ 4851 et seq. At the time, it was estimated that 57 million private housing units in the United States contained lead paint, and that nearly 2.5 million pre-school children had blood-lead levels that placed them at risk for adverse health effects.³ One of the purposes of the 1992 Act was "to mobilize national resources expeditiously, through a partnership among all levels of government and the private sector, to develop the most promising, cost-effective methods for evaluating and reducing lead-based paint hazards." 42 U.S.C. § 4851a (5). The 1992 Act authorized the U.S.Department of Housing and Urban Development ("HUD") to provide grants "to evaluate and reduce lead-based paint hazards in housing." 42 U.S.C. § 4852(a). The R&M Study, conducted by KKI from 1993 to 1999, was one of those studies funded and supervised by the U.S. Environmental Protection Agency ("EPA") and HUD.⁴ The Study involved research on the effectiveness of lead abatement measures on reducing lead contamination in homes, measured by the blood lead levels of minor children living in the Study homes.⁵ Specifically, the stated purpose of the Study was

to characterize and compare the short and long-term efficacy of comprehensive lead-paint abatement and less costly and potentially more cost-effective Repair and Maintenance interventions for reducing levels of lead in residential house dust which in turn should reduce lead in children's blood.

Quality Assurance Project Plan, Chapter 1, p. 1.

The homes involved in the R&M Study were first tested for eligibility. Based on dust test results, a "dwelling with an insufficient number of surfaces with elevated dust-lead levels would be disqualified." Id. at Chapter 2, p. 65. Eligible dwellings were then randomly classified into three groups that received levels of lead remediation that increased with ascending numerical order—"R&M Level 1," "R&M Level 2," and "R&M Level3,"—with R&M Level 3 receiving the highest level of remediation. Id. These homes were compared to two control groups—a fourth group of homes that had been completely abated of lead, and a fifth group of homes that were built after 1980 and never contained lead-based paint. According to testimony elicited by KKI in the trial in this case, before families moved into the homes, all homes passed clearance standards for abatement set at the time by the Maryland Department of the Environment ("MDE").⁶

KKI used a vacuum sampler to test various surfaces in the Study homes for lead at intervals of 2, 6, 12, 18, and 24 months, after completing the abatement or remediation work consistent with the designated tier. The vacuum used in the Study, as will be described in greater detail infra, is called a BRM-HVS3 ("BRM Sampler"),⁷ which was a modification from the HVS3,⁸ a commercially available sampling vacuum. KKI expertstestified in the proceedings below that the BRM Sampler used the same cyclone⁹ as the HVS3, used in many studies, but that the Study modified the HVS3 so that it would be able to vacuum more difficult-to-reach surfaces, such as windowsills.

The leaders of the R&M Study, Dr. Julian Chisolm, M.D., and Dr. Mark Farfel, D.Sc. analyzed the effectiveness of various tiers of lead abatement and remediation by testing the blood of children who lived in the abated or remediated homes. At the time of the Study, researchers at KKI were aware that exposure to lead-bearing dust was particularly hazardous to children, and that the neuro-behavioral and learning deficits in young children were "long lasting, if not indeed permanent." Id. at p. 2.

Blood lead level is measured in micrograms per deciliter. See U.S. Agency for Toxic Substances and Disease Registry, The Nature and Extent of Lead Poisoning in United States: A Report to Congress (1988), at 2. In 1991, the United States Centers for Disease Control ("CDC") revised the intervention level from 25 micrograms per deciliter to 10 micrograms per deciliter, noting that "[s]ome adverse health effects have been documented at blood lead levels at least as low at 10 micrograms per deciliter[.]"¹⁰ SeeCenters for Disease Control and Prevention, Preventing Lead Poisoning in Young Children, Chapter 1 (1991), available at https://www.cdc.gov/nceh/lead/publications/books/plpyc/chapter1.htm [https://perma.cc/6SUV-QEME]

Each household participating in the R&M Study required at least one child six months to four years of age who was "not mentally retarded or physically handicapped." To determine eligibility for the Study, KKI used questionnaires. KKI administered the questionnaire by having a KKI employee read each paragraph aloud to the interviewee and ask the interviewee whether he or she had any questions after each paragraph. Families accepted into the Study were given educational materials on lead, including materials from the EPA and the Centers for Disease Control ("CDC") warning of the risks and hazards associated with exposure to lead, along with a cleaning kit and an educational coloring book.

City Homes, Inc. ("City Homes")—which, at the time, owned and managed "approximately 200 low-income rental units in Baltimore City"—provided many of the dwellings for the R&M groups. See Quality Assurance Project Plan, Chapter 2, p. 1. City Homes agreed to provide houses to be used for the R&M Study and to prioritize renters with children under five years of age for participation in the Study, as detailed in a June 29, 1992 letter of agreement from Dr....