The Top 2014 and 2015 Decisions Affecting Lead-Based Paint Litigation in Maryland
Thomas W. Hale and Michael W. Fox
1. Using Circumstantial Evidence to Prove that a Property Contained Lead-Based Paint:
2. Pediatrician Who Has Not Treated Lead Ingestion Was Qualified to Testify as to Medical Causation: Roy v. Dackman, 2015 WL 6108017 (Md. Ct. App. October 16, 2015).
The Maryland Court of Appeals held that a jury may be assisted on the issue of medical causation in a lead-based paint case by a pediatrician who has not treated children for lead ingestion, but who has generally treated environmental exposures with the assistance of more specialized practitioners, and who has also reviewed relevant medical literature. Thus, the expert’s exclusion was an abuse of discretion.
The Court cited prior decisions stating that a medical expert can be qualified to offer expert medical causation testimony even though he or she does not specialize in the specific field upon which he or she is offering testimony. Instead, the expert may utilize acquired knowledge, skill, experience, training or experience in rendering such opinions. The distinction here was that the expert did not have “specialized knowledge,” or first-hand experience with a medical procedure. In this instance, it was sufficient for the sake of admissibility that the medical doctor had experience in determining the effect of general environmental exposures on patients with the assistance of similar specialists as utilized in the subject litigation, was familiar with the relevant literature, and was able to speak on the topic of specific causation.
In so holding,the Court emphasized three points. First, while the qualifications hurdle for admissibility of medical causation testimony is relatively low, any aspect of those qualifications that may be lacking beyond that hurdle are subject to cross-examination and may bear on the weight given to the expert’s opinions by the jury. Second, the Court limited the scope of its opinion to the medical expert’s medical causation opinions by concluding that the trial court did not abuse its discretion in excluding the same expert’s source of ingestion opinions. Finally, the Court, through dicta, reiterated the finding in Hamilton, that circumstantial evidence of lead using the Dow process of elimination is insufficient if it does not eliminate other potential sources.
3. Lead-Based Paint Liability and Medical Institutions: White v. Kennedy Krieger Institute, Inc., 221 Md. App. 601, 110 A.3d 724 (2015), cert. denied, 443 Md. 237, 116 A.3d 476 (2015).
The Maryland Court of Special Appeals held that Appellant’s proposed jury instruction setting forth Appellee’s “special duties” owed to Appellant arising from a “special relationship” was properly excluded. In reaching this decision, the Court interpreted Grimes v. Kennedy Krieger Institute, 366 Md. 29, 782 A.2d 807 (2001). In Grimes, the Court of Appeals held that parents cannot provide informed consent for their children in research studies that do not provide any treatment benefit to the child. It also held that a special relationship between an institution and a subject in such a non-therapeutic study may arise from the subject’s informed consent, creating special duties on the part of the institution. As the Court of Special Appeals later pointed out in White, however, Grimes did not set forth standards as to the formation of these “special relationships” or the resulting “special duties.” In fact, the Grimes court responded to a motion for reconsideration as to its opinion stating that the holding only stood for the proposition that summary judgment for the Kennedy Krieger Institute was improper based on the specific facts presented in Grimes.
Here, the Court of Special Appeals concluded that Appellant’s Grimes-based proposed jury instruction outlining the alleged special relationship and the resulting special duties of the Appellant was not erroneously excluded at trial for three reasons. First, the Court found that the proposed instruction did not accurately set forth the law because Grimes did not actually provide standards for how these special relationships arise and define the resulting duties. Second, it found that the study at issue was distinct from the non-therapeutic study in Grimes, as there was a treatment component. This made a jury instruction as to special duties owed in non-therapeutic studies irrelevant in White. Third, the Court found that the instruction was inapplicable because the Appellee did not receive the patients’ documented lead levels as part of the relevant study. This eliminated any potential duty to warn that was set forth in the proposed instruction.
The White court also dealt with proposed jury instructions that were not related to Grimes. These involved federal regulations regarding the informed consent process. The Court found that the instructions were unnecessary and properly excluded, as they pertained to non-therapeutic studies. Also, it found that jury instructions on informed consent were not relevant to Appellant’s sole remaining claim that Appellee negligently oversaw the study at issue.
Finally, the White court examined whether judgment in favor of Appellee was proper in relation to Appellant’s misrepresentation claims and his claims asserted under the Consumer Protection Act. It decided that, for the reliance requirement in a misrepresentation claim, the reliance of a parent can be imputed to his or her child when the misrepresentation is designed to elicit action by or on behalf of the child. The Court determined, however, that there was no misrepresentation by Appellee because it had never asserted to Appellant’s mother that it would be providing “lead free” housing as was alleged. As to Appellant’s Consumer Protection Act claim, the Court stated that a non-party to the underlying transaction can still be liable under the Act if its actions so related to the underlying transaction that it would not have occurred absent such actions. Nevertheless, the Court ruled that the Act did not apply to Appellee’s actions, as it only asserted that the property was “lead safe,” and not that it was “lead free.”
4. Providing Notice of a Tort Claim Pursuant to the Local Government Tort Claims Act, Md. Code Jud. Proc. § 5-301, et seq.: Housing Auth. of Baltimore City v. Woodland, 438 Md. 415, 92 A.3d 379 (2014).
The Maryland Court of Appeals held that it was not an abuse of discretion for the trial court to deny summary judgment in favor of the Appellant for Appellee’s failure to strictly comply with the 180 day notice requirement to governmental agencies as set forth in Local Government Tort Claims Act (Md. Code, Cts. & Jud. Proc., § 5-304 (2013)) (the “Act.”)
There are two exceptions to a plaintiff’s notice requirement under the Act: 1) substantial compliance effectuating the purpose of the Act; and 2) good cause for the failure to comply with the Act. In this case, the Court held that there was insufficient evidence of substantial compliance because the notice to the Appellant did not include the threat of legal action or the intention to sue. The Court determined, however, that the trial court did not abuse its discretion in finding that there was good cause for the failure to comply, as the Appellee’s family exhibited due diligence in notifying the Appellant of Appellee’s lead level. This allowed the Appellant to investigate the potential claim, as is intended by the notice requirement. It also found that the Appellant’s subsequent actions of inspecting the subject property and moving the Appellee and her family demonstrated that the Appellant received adequate notice of the potential claim. Thus, the Court found that the Appellee’s family reasonably relied on these actions to determine that additional formal notice was unnecessary.
Unrelated to the notice requirement, the Court also held that evidence of the Appellant’s efforts taken to comply with the Reduction of Lead Risk in Housing Act, Md. Code, Envir., § 6-801 (2011), et seq., after receiving Appellee’s notice, was inadmissible. The Court found that evidence of post-injury conduct was not relevant to Appellee’s negligence claims, as Appellant’s reasonableness was limited to what happened prior to the injury, not after.
Thomas W. Hale is a partner with Leder & Hale PC. He focusing his practice on toxic torts, construction defect litigation and automotive-related disputes.
Michael W. Fox is an associate with Leder & Hale PC. He focuses his practice on toxic torts, general litigation defense and construction defect litigation.
1The Court was referencing Dow v. L & R Props., Inc., 144 Md. App. 67, 796 A.2d 139 (2002) (Plaintiff was able to rule out all other possible sources to conclude that the subject property was the only probable source of her lead ingestion).
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