Sugarman v. Liles

234 Md.App. 442

172 A.3d 971

Stanley SUGARMAN, et al.

v.Chauncey LILES, Jr.

No. 1460, Sept. Term, 2016

Court of Special Appeals of Maryland.

November 1, 2017

Argued by: Michele R. Kendus (Richard L. Nilsson, Goodell, DeVries, Leech & Dann, LLP on the brief) all of Baltimore, MD, for Appellant.

Argued by: Bruce H. Powell (Law Office of Peter T. Nicholl on the brief) all of Baltimore, MD, for Appellee.

Panel: Graeff, Friedman, Raymond G. Thieme, Jr. (Senior Judge, Specially Assigned), JJ.

Graeff, J.Chauncey Liles, Jr., appellee, filed a complaint against Ivy Realty, Inc. and Stanley Sugarman (collectively "Ivy Realty"), appellants, in the Circuit Court for Baltimore City, alleging injury and damages caused by lead paint exposure at a residence (the "Property") managed, maintained, operated, and controlled by Ivy Realty. At trial, the parties stipulated that, due to Ivy Realty's negligence, Mr. Liles was exposed to deteriorating paint at the Property, and his exposure to lead paint substantially contributed to two documented elevated blood lead levels. The only remaining questions for the jury, therefore, were whether Mr. Liles' lead exposure caused injury, and if so, what, if any, damages were incurred.

Mr. Liles presented four expert witnesses at trial to testify to his alleged injury and damages. At the close of his case, and again at the close of all evidence, Ivy Realty moved for judgment, asserting that the expert testimony was speculative and lacked a factual basis to support the causation and damages opinions, and the evidence was insufficient to establish that Mr. Liles had suffered a legally compensable injury. The court denied the motions. The jury ruled in favor of Mr. Liles, and judgment was entered against Ivy Realty in the amount of $1,277,610.¹

On appeal, appellant presents three questions for this Court's review, which we have rephrased and consolidated, as follows:

1. Was there sufficient evidence for the trial court to submit the case to the jury on the issue whether Mr. Liles' lead exposure caused injury?

2. Was there sufficient evidence for the trial court to submit the case to the jury on the issue whether any injury caused by the lead exposure resulted in damages?

For the reasons set forth below, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

I.Mr. Liles' Medical and Educational History

Mr. Liles was born on February 17, 1998. When Mr. Liles was two and one-half years old, he had a blood lead level of 11 mcg/dL, and at age three, it was 10 mcg/dL.² Mr. Liles' medical records indicate that, at two years old, he suffered a seizure due to appendicitis. He had an emergency appendectomy and was hospitalized for two weeks, but he made a full recovery. In high school, Mr. Liles suffered a broken thumb. The thumb healed completely, and he suffered no long term effects from that injury.

When Mr. Liles was nine years old, several close family members died within a one-year time period. Mr. Liles experienced grief and anxiety, for which he received counseling. No developmental concerns were documented within his medical records. The records indicated that Mr. Liles was "bright, cooperative and ... functioning at the appropriate grade level (3^rd)." His level of academic performance was assessed at "above average."

In elementary school, Mr. Liles performed consistently at or above grade level until his 4th and 5th grade school years, when he had increased absences following the death of his family members and his treatment for anxiety. As a result of his performance, Mr. Liles attended summer school, and he received academic support, including "one on one support," "small grouping," "individualized help on his math skills and test taking practice," "extra response time," "extended time to complete assignments," and "repetition of directions." In middle school, Mr. Liles raised his grades into the "70s, 80s, and 90s."

In May 2016, Mr. Liles graduated from Baltimore City College High School ("City College"), a prestigious college preparatory school that requires admittees to pass an entrance examination. Mr. Liles described his grades at City College as terrible, stating that he had "a mid-C average," and the "only A's" he received were in foreign language, "weight training, gym class, anything physical."³

Mr. Liles blamed his poor grades in high school on his inability to focus, stating that he gets distracted a lot, does not like sitting still, and "just can't grasp things as fast as other people do." These issues started when he was young, but "as the work got harder, [he] couldn't get it." He stated that his parents had both done well in school, and they encouraged him to do well, which was his goal, but he "couldn't." His weighted Grade Point Average ("GPA") upon graduation from City College was 3.3, although his unweighted GPA was 2.1. He was ranked 194 out of 301 students.

Mr. Liles tested at or above grade level on all Maryland School Assessment testing and passed his High School Assessment tests. His scores on the PSAT were in the 20th, 24th, and 54th percentiles during his 9th, 10th, and 11th grade years, respectively.

Following high school, Mr. Liles was accepted to West Virginia University ("WVU") and Bowie State University ("BSU"). He decided to attend BSU because it was less expensive and closer to home. Mr. Liles stated that he would "not be able to focus" at WVU and would be easily distracted away from his family, without supervision.

With respect to Mr. Liles' family members, his mother, Daronda Liles, is a high school graduate, with some college experience. His father, Chauncey Liles, Sr., is a high school graduate employed as a truck driver.⁴ Mr. Liles has four siblings. The oldest three siblings all completed high school, and one is enrolled at the University of Maryland, Eastern Shore studying pre-med. His youngest sibling is still in grade school.

II.Mr. Liles' Expert Witnesses

A.Robert Kraft, Ph.D.

Dr. Robert Kraft, a licensed psychologist, testified as an expert in neuropsychology, the "relationship between behavior and the central nervous system functioning."⁵ A clinical neuropsychology assessment is performed on an individual to "determine an individual's strengths and weaknesses in their brain functioning ... to determine if they have any sort of neurodevelopmental disorder or brain-related impairments that may impact them, and to identify what those are." Brain-related impairments are not physically visible through neuroimaging, and it requires "specialized assessments in order to identify them." The assessment involves observing the individual, taking a history, and giving a "battery of tests that are designed to be presented under specific conditions and that an individual is expected to display specific behavior in response to these tests."

Dr. Kraft's neuropsychological examination of Mr. Liles consisted of an interview, as well as a number of neuropsychological tests that Dr. Kraft administered to assess intelligence, memory, learning, academic achievement, executive functioning, attention, language, visual-spatial and perceptual motor functioning, and effort. Mr. Liles has a "full scale IQ of 94," which "falls into an average range," and his "performance on math was in the solid average range of the 61st percentile." Dr. Kraft stated, however, that having an average range IQ score does not mean that there is no evidence of brain impairment, and that Mr. Liles' "two index scores that are most sensitive to attention and concentration" were "significantly lower than his performance in perceptual reasoning," which indicated the presence of "mild impairment." Specifically, Dr. Kraft stated that Mr. Liles had mild deficits "with respect to auditory encoding of information in the working memory, and information processing speed," both of which "are factors of attention." In regard to both of these factors, Mr. Liles scored 86, which is statistically in the 18th percentile, and was "significantly lower than his performance in perceptual reasoning," which was 104.⁶ The discrepancy between the index scores and the IQ test was wide enough that it "is not considered to happen by chance alone," but rather, it suggests "that there is some process that is responsible for the discrepancy."

Dr. Kraft explained that auditory encoding is a person's "ability to hold information in mind for immediate manipulation and to make some sort of output with that information that you're holding in memory." For example, a waiter or waitress who takes orders without writing the orders down is using auditory encoding. Individuals "use auditory encoding in every aspect of life," and that information is stored until the individual has completed the task, and then the information can be forgotten.

Processing speed is an individual's "ability to independently focus and complete a task in a self-directed manner." For example, a student who sits down to study, or an adult who sits down to read a book or complete a writing task, requires information processing speed. Mr. Liles' ability "to do that independently ... is lower than it should be based on his intellectual functioning and suggests a mild impairment in that area." Dr. Kraft suggested that Mr. Liles' mild deficit could be accommodated, stating that, although Mr. Liles "may take a little longer than the average peer," he typically completes tasks "with accuracy and not a lot of compulsive errors."

Dr. Kraft agreed that Mr. Liles did not suffer from any deficits in IQ, executive function, the visual-spatial realm, speech and language, or fine and gross motor skills. Mr. Liles scored high average to average on another test for auditory attention, scoring higher than 75% of the general population on one subtest and in the 50th percentile on another. Dr. Kraft described the tests on which Mr. Liles scored the highest as "logical memory tasks and visual reproduction tasks," both of which "involve[ ] learning the information and storing it."...