Barr v. Rochkind

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1152
September Term, 2014
_______________________________________
PATRICE BARR
v.
STANLEY ROCHKIND, et al.
Meredith,
Berger,
Leahy,
JJ.
Opinion by Meredith, J.
Filed: September 29, 2015
This appeal arises out of a lead paint action filed in the Circuit Court for Baltimore
City by Patrice Barr, appellant, against the following appellees: Stanley Rochkind, JAM #16
Corporation, Charles Runkles, Uptown Realty Co., and Dear Management and Construction
Company. Appellant alleges that she was exposed to lead-based paint while living in a rental
property owned and managed by appellees. Appellees moved for summary judgment,
arguing that appellant could not produce sufficient evidence to establish a prima facie case
of negligence. The circuit court granted the appellees’ motion, and this timely appeal
followed.
QUESTION PRESENTED
Appellant presented four questions for our review, which we have consolidated and
rephrased as follows:1
1
Appellant submitted the following questions for our review:
1. Whether the trial court erred in granting Appellees’ Motion for
Summary Judgment?
2. Whether the trial court erred and/or abused its discretion in
denying Appellant’s Motion for Reconsideration?
3. Under West, Can a Plaintiff Prove Her Case Circumstantially —
and Without Ruling Out Other Sources — Where Defendants
Have Brought Forth No Evidence of Other Possible Sources,
and Where the Totality of Facts Supports a Rational Inference
of Causation?
4. Under Hamilton, Can a Plaintiff Prove Her Case
Circumstantially — and Without Ruling Out Other Sources —
Where Defendants Have Brought Forth No Evidence of Other
“Reasonably Probably Sources,” and Where the Totality of Facts
Supports a Rational Inference of Causation?
Did the circuit court err by granting appellees’ motion for summary judgment?
Because we conclude that the circuit court did not err, we affirm the judgment of the
Circuit Court for Baltimore City.
FACTS & PROCEDURAL HISTORY
Appellant was born November 11, 1995. The record is unclear regarding appellant’s
residential history during her earliest years of life, but it is undisputed that, as a young child,
appellant lived in several different houses in Baltimore, including the property known as
2027 Ridgehill Avenue, which was owned or managed by appellees. It is not clear precisely
when appellant resided in each of her different homes, but appellant’s mother represented
to the circuit court that she and appellant moved to 2027 Ridgehill Avenue sometime in 2001
and resided there until sometime in 2003.
Between October 31, 1996, and April 1, 2002, appellant’s blood was tested
approximately annually for lead, and each test showed that her blood lead level was elevated.
During that time span, appellant lived in at least two properties before moving to 2027
Ridgehill Avenue. The lead levels, as disclosed by the tests, peaked at 12 micrograms per
deciliter on April 27, 1999, and then dropped to 8 micrograms per deciliter on February 25,
2000. When appellant’s blood was tested for lead on January 17, 2001 — before her move
to 2027 Ridgehill Avenue — the results showed that her blood contained 6 micrograms of
lead per deciliter. The document reporting the results indicated that she was not living at
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2027 Ridgehill Avenue at the time of that test in January 2001. In April 2002, a blood test
revealed that her blood lead levels had risen to 8 micrograms per deciliter.
Although appellant apparently did not exhibit any developmental delays during early
childhood, psychological tests performed on appellant at age 17 showed that her IQ is
approximately 77 and that she suffers from “brain-related neuropsychological impairment”
as a result of childhood exposure to lead.
On October 3, 2012, appellant and her mother, Penny Travers, filed a negligence suit
against appellees, alleging that appellant was exposed to lead-based paint while living at
2027 Ridgehill Avenue.2 In April 2013, appellees filed two motions for partial summary
judgment. In the first motion, appellees argued that Travers’s claims were barred by the
statute of limitations. Neither appellant nor Travers opposed the first motion for summary
judgment. In the second motion, appellees argued that there was insufficient evidence to
demonstrate that appellees’ property contained lead-based paint that caused appellant’s
injuries. Appellant opposed the second motion as to 2027 Ridgehill Avenue, and insisted
that there was sufficient evidence to establish a prima facie case as to that property.
Appellant did not claim that she would be able to produce direct evidence that there
was lead-based paint at 2027 Ridgehill Avenue, but she argued that the existence of lead-
based paint could be reasonably inferred from circumstantial evidence, namely, that the
2
The suit also asserted a claim relative to the appellees’ property at 2135 Harford
Road, but appellant has abandoned any claim based upon that property. For simplicity, we
will refer to 2027 Ridgehill Avenue as the only property that is the subject of this appeal.
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property contained deteriorated paint and was at least 90 years old at the time she lived there,
combined with the fact that her observed blood lead levels increased by 33% while she was
living there as a 5 to 7-year-old child. Appellant’s opposition to the motion for summary
judgment was supported by an affidavit from Travers that stated in relevant part:
3. Patrice resided with me at 2027 Ridgehill Avenue from approximately
2001 until approximately 2003.
4. During the time we resided at 2027 Ridgehill Avenue, I recall chipping
peeling and flaking paint throughout the property in the windows, front door
frame, bannister and around the tub in the bathroom.
5. Patrice would constantly put her fingers in her mouth and suck on them
during the time we lived at Ridgehill Avenue.
6. Patrice would frequently play with her toys on the floor in the living
room.
7. I recall that she would also put her toys in her mouth while she was
playing.
The mother’s affidavit did not state, however, whether appellant spent any of her waking
hours at other properties during the period when she was living at 2027 Ridgehill Avenue,
and the affidavit did not make any assertions that ruled out appellant’s exposure to other
potential sources of lead during the time period when she resided at the Ridgehill Avenue
property.
Appellant’s opposition to the motion for summary judgment also included an affidavit
from Dr. Daniel Levy, a pediatrician with expertise in treating childhood lead poisoning. Dr.
Levy had reviewed appellant’s medical records, and opined that appellant’s intellectual
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impairments were caused, at least in part, by her exposure to lead-based paint at 2027
Ridgehill Road. The affidavit stated in part:
2. I am a Pediatrician currently licensed to practice medicine in the State
of Maryland. I have been involved in the prevention, diagnosis, treatment, and
neurocognitive developmental follow up of childhood lead poisoning for over
thirty years. See attached curriculum vitae further outlining my credentials.
3. A treating doctor’s duty in the case of a child with lead poisoning is to
identify sources of lead exposure so that future exposure can be minimized and
further damage to the child prevented. Because of this duty a doctor treating
children with lead poisoning must make himself aware of possible sources of
lead in general in the environment, as well as sources of lead specifically
available to the child being treated. Within the medical community it is a well
recognized role of the treating doctor to form an opinion of the likely sources
of a child’s lead exposure based upon research studies, practical experience
and the specific facts in the specific child’s case. Although it is very typical
to see a whole laundry list of esoteric items which in theory could be the
source of lead exposure — such as old battery casings, lead in gasoline, naval
paint, bullets, fishing weights, ceramic pottery — in almost 100% of cases
the child’s lead exposure turns out to be attributable to deteriorated paint
in the home in which the child is living and has daily exposure, therefore,
to lead paint chips and lead dust.
4. Figuring out where a child most likely got lead poisoning from is a
process of elimination. If sources other than paint are eliminated a doctor can
be confident to a reasonable degree of medical certainty that deteriorated paint
is the child’s source of lead exposure.
5. It is my opinion within a reasonable degree of medical probability
that the premises 2027 Ridgehill Avenue contained lead-based paint
during the time period Patrice Barr resided at 2027 Ridgehill Avenue
from 2001 until 2003. I base this opinion on the Property Card from the
Baltimore City Department of Public Works, Property Location Section,
showing that the residence was an old house in existence from at least 1920,
and affidavit testimony stating that the property had chipping, peeling and
flaking paint throughout, that Plaintiff frequently played on the floor in the
property and that plaintiff had constant hand to mouth activity. I also base this
opinion on my medical training, knowledge and experience, as well as
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practical experience as a doctor who has treated hundreds of children for lead
exposure and taught pediatric residents and medical students how to manage
children diagnosed with lead poisoning, the fact that lead-based paint was
banned by Baltimore City in 1950 and by the federal government in 1978,
medical and environmental records and testimony I have reviewed, specific
facts as to the instant children’s [sic] case, as well as medical, scientific, and
U.S. Governmental Studies accepted in the scientific community as
authoritative and listed in Preventing Lead Poisoning in Young Children, A
Statement by the United States Centers for Disease Control (1991).
***
Thus, based on the age of the house in existence since at least 1920, the
condition of the house containing deteriorated paint, and the Plaintiff’s
elevated blood lead levels while residing at 2027 Ridgehill Avenue, my
knowledge, training and experience and the aforementioned publications and
other medical and scientific literature information that I have familiarized
myself throughout my medical career, it is my opinion, within a reasonable
degree of medical probability, that the home at 2027 Ridgehill Avenue
contained lead-based paint during Patrice Barr’s residence from 2000
until 2003 and that deteriorated lead paint at this property was a
substantial contributing source of Patrice Barr’s lead exposure, elevated
blood lead levels, and resulting injury.
(Emphasis added.)
The circuit court conducted a hearing on appellees’ motion for summary judgment on
June 13, 2014. The hearing focused primarily on whether appellant had proffered sufficient
evidence to show that 2027 Ridgehill Avenue contained lead-based paint. Appellant’s
counsel noted that appellees had filed no affidavit or other evidence in support of the motion
for summary judgment, and therefore, it was appellant’s position that she had presented
sufficient circumstantial evidence to defeat the motion. In other words, because the
appellees’ motion for summary judgment had put forth no evidence that appellant was in fact
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exposed to sources of lead outside her home during the period when she was living at 2027
Ridgehill Avenue, it was appellant’s position that there was no obligation upon her to rule
out any other possible sources of lead exposure during 2001 to 2003.
The circuit court was not persuaded, and granted appellees’ motion for summary
judgment as to all claims. Appellant filed a motion for reconsideration, which was summarily
denied. This timely appeal followed.
STANDARD OF REVIEW
Summary judgment may be entered “in favor of or against the moving party if the
motion and response show that there is no genuine dispute as to any material fact and that the
party in whose favor judgment is entered is entitled to judgment as a matter of law.”
Maryland Rule 2-501(f). In the course of reviewing two lead paint cases in which summary
judgment had been granted, the Court of Appeals described the applicable standard of
appellate review as follows in Hamilton v. Kirson, 439 Md. 501, 522-23 (2014) (quotation
marks and citations omitted):
[T]he standard for appellate review of a trial court's grant of a motion for
summary judgment is simply whether the trial court was legally correct, and
is subject to no deference.
As such, in reviewing a grant of summary judgment, we review
independently the record to determine whether the parties generated a dispute
of material fact and, if not, whether the moving party was entitled to judgment
as a matter of law. We review the record in the light most favorable to the
non-moving party and construe any reasonable inferences that may be drawn
from the well-pled facts against the moving party.
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That our appellate review is premised on assumptions favoring the
non-moving party does not mean that the party opposing the motion for
summary judgment prevails necessarily. Rather, in order to defeat a motion for
summary judgment, the opposing party must show that there is a genuine
dispute as to a material fact by proffering facts which would be admissible in
evidence. Consequently, mere general allegations which do not show facts in
detail and with precision are insufficient to prevent summary judgment.
The mere existence of a scintilla of evidence in support of the
plaintiffs’ claim is insufficient to preclude the grant of summary judgment;
there must be evidence upon which the jury could reasonably find for the
plaintiff.
See also Central Truck Center, Inc. v. Central GMC, Inc., 194 Md. App. 375, 386
(2010) (summary judgment is appropriate where a party fails to make a legally adequate
showing as to an element for which it bears the burden of proof).
DISCUSSION
Appellant contends that the circuit court erred by granting summary judgment in favor
of appellees because, in her view, she presented sufficient evidence to establish that she was
exposed to lead-based paint at 2027 Ridgehill Avenue. The parties agree that there is no
direct evidence in the record proving that appellees’ property at 2027 Ridgehill Avenue
contained lead-based paint, and also agree, at least in principle, that a plaintiff in a lead paint
case can prove that a property contained lead paint by producing circumstantial evidence
showing that she suffered from lead poisoning while living in the home and by presenting
evidence that her exposure did not occur elsewhere. The question at the heart of this appeal
is whether a lead paint plaintiff who relies on circumstantial evidence to establish the
elements of her prima facie negligence case — including proof that the defendant’s property
8
contained lead paint — has a burden of production to present evidence ruling out any
reasonable probability that her elevated blood lead levels were caused by other potential
sources of lead exposure. It appears to us that Maryland cases compel us to answer that
question “yes.”
Relying on Dow v. L&R Properties, 144 Md. App. 67 (2002), appellant argues that
the affidavits she submitted describing the age and deteriorated condition of the appellees’
property, combined with the fact that appellant’s blood lead levels went up while she was
living at 2027 Ridgehill Avenue, provided sufficient circumstantial evidence to prove that
that property contained lead-based paint that was the probable source of her exposure to lead.
Appellees, on the other hand, contend that this circumstantial evidence is insufficient,
because appellant failed to present any testimony or other evidence ruling out the possibility
that she was exposed to some other source of lead during the years she resided at 2027
Ridgehill Avenue. Appellant counters that there is no evidence in the record that
affirmatively suggests that her exposure occurred elsewhere, and, she argues, therefore, that
she carried her burden, as the non-moving party responding to a motion for summary
judgment, of providing facts that could prove by a preponderance of evidence that her
exposure to lead occurred at appellees’ property.
The plaintiff in a lead paint lawsuit alleging negligence has the burden of proving “1)
that the defendant was under a duty to protect the plaintiff from injury, 2) that the defendant
breached that duty, 3) that the plaintiff suffered actual injury or loss, and 4) that the loss or
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injury proximately resulted from the defendant’s breach of the duty.” Taylor v. Fishkind, 207
Md. App. 121, 148 (2012) (quoting Rosenblatt v. Exxon Co., U.S.A., 355 Md. 58, 76 (1994)).
To satisfy the causation element of her negligence claim, a lead paint plaintiff “must tender
facts admissible in evidence that, if believed, establish . . . that the property contained
lead-based paint, and . . . that the lead-based paint at the subject property was a substantial
contributor to the victim’s exposure to lead.” Hamilton v. Kirson, supra, 439 Md. at 530.
A plaintiff need not present direct evidence showing that the subject property contained lead,
and instead “may prove circumstantially that the subject property contained lead-based paint
in a number of ways.” Id. at 537. See also West v. Rochkind, 212 Md. App. 164, 175 (“A
lead paint plaintiff may, of course, establish a prima facie case of negligence based solely on
circumstantial evidence.”), cert. denied, 435 Md. 270 (2013).
In Hamilton v. Kirson, the Court of Appeals affirmed the grant of the defendants’
motions for summary judgment in two cases (consolidated for appeal) where the plaintiffs
sought damages for lead poisoning but had no direct evidence that the defendants’ houses
contained lead-based paint. Although the appellant in the present case urges us to conclude
that Hamilton does not support the circuit court’s entry of summary judgment for appellees,
we interpret the Court of Appeals’s opinion as support for the appellees’ position with
respect to appellant’s burden of production.
The Court of Appeals, in Hamilton v. Kirson, 439 Md. at 537-38, affirmed the central
holdings of this Court’s opinions in Dow and West. The Hamilton Court noted that it had
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referred to “multiple analytical layers” in establishing causation in lead paint cases in Ross
v. Housing Authority of Baltimore City, 430 Md. 648, 688 (2013), and that it had noted in
Ross that a plaintiff’s proof of causation requires proof of “the link between the defendant’s
property and the plaintiff’s exposure to lead.” The Court explained in Hamilton that, in cases
in which a plaintiff relies on circumstantial evidence to prove this first link (“between the
defendant’s property and the plaintiff’s exposure to lead”), other potential sources of
exposure to lead are factors to be considered. The Court stated, 439 Md. at 529-30:
In the present cases, we are concerned with the first link. To prove this link,
circumstantial evidence may be used, “so long as it creates ‘a reasonable
likelihood or probability rather than a possibility’ supporting a ‘rational
inference of causation,’ and is not ‘wholly speculative.’” West, 212 Md. App.
at 170–71, 66 A.3d at 1150 (citations omitted). The Hamiltons’ and Alstons’
cases hinge on that fine distinction between circumstantial evidence that
amounts to a reasonable likelihood or probability and circumstantial evidence
that amounts only to a possibility and speculation.
To connect the dots between a defendant’s property and a plaintiff’s
exposure to lead, the plaintiff must tender facts admissible in evidence that, if
believed, establish two separate inferences: (1) that the property contained
lead-based paint, and (2) that the lead-based paint at the subject property was
a substantial contributor to the victim's exposure to lead. At times, these
separate inferences may be drawn from the same set of facts, but parties would
do well to remember that these inferences are separate and often will require
different evidentiary support.
After observing that the plaintiff in Dow had offered proof that showed “the child
victim spent most of her time at the subject property where she lived and did not have
contact with other possible sources of lead during the relevant period,” id. at 531 (emphasis
added), in contrast to the proof in the West case, where the child “spent substantial amounts
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of time at a variety of houses,” id. at 534, the Hamilton Court summarized again what a
plaintiff must show when there is no direct evidence that the subject property had lead-based
paint, id. at 535-36:
Reiterating, the necessary two-steps are (1) the plaintiff must show first that
the subject property had lead-based paint, and (2) then the plaintiff must show
that his or her exposure at the subject property “was an effective cause of his
lead poisoning.” [West, 212 Md. App. at 173.] According to the West court, the
second step, “[t]he proof of ultimate causation[,] does not demand
exclusivity.” Id. The first step, the proof that the subject property had lead
paint, however, does demand exclusivity. Id.
Based on the distinction between the proof required to satisfy these two
steps, the West court concluded that “where [there was] no direct evidence that
[the subject property] even contained lead paint, [West] may only rely on that
critical fact, as a necessary part of his circumstantial evidence, if he can show
by the process of elimination that [the subject property] was the only possible
cause for the critical effect of lead poisoning.” West, 212 Md. App. at 175, 66
A.3d at 1151. In other words, “[the court] may only infer the existence of lead
paint at [the subject property] from [West]'s condition if lead paint at [the
subject property] is shown to have been the only possible explanation for
[West]'s condition.” Id.
(Emphasis added.)
The Hamilton Court indicated that, although there may be other alternatives for
proving the presence of lead in a house for which the plaintiff has no direct evidence of lead,
in a case in which the plaintiff seeks to rely on the child’s elevated blood level as
circumstantial evidence of the existence of lead, other possible sources of exposure must be
ruled out. The Court stated:
We agree with the West court's analysis for application to those cases
where a plaintiff relies on a Dow theory of causation. Under a Dow theory of
causation, a plaintiff must rule out other reasonably probable sources of
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lead exposure in order to prove that it is probable that the subject property
contained lead-based paint. Where the plaintiff fails to rule out other
reasonably probable sources, the necessary inferences for a Dow theory
of causation cannot be drawn with sufficient validity to allow the claim to
survive summary judgment.
Hamilton, 439 Md. at 536-37 (emphasis added). But, “if a plaintiff is able to exclude other
reasonably probable sources of lead, such as in Dow, then the plaintiff presents a prima facie
case.” Id. at 537.
In Hamilton, summary judgment in favor of the defendants was upheld because the
plaintiffs had not produced evidence to rule out other reasonably probable sources of lead
exposure. The Court of Appeals stated, id. at 546:
Plaintiffs bear the initial burden of proving circumstantially a prima facie
negligence case. Part of that burden is to advance a viable theory of causation.
In the Alstons’ case, they argued a Dow theory of causation, but, as the Circuit
Court noted, the Alstons failed to produce the quantum or quality of evidence
noted in Dow, namely, they failed to eliminate other reasonably probable
identified sources of lead exposure. Thus, the Circuit Court’s comparison of
the Alstons’ case to Dow was appropriate and its ultimate conclusion that the
Alstons failed to meet their initial burden was correct.
(Emphasis added.)
Accordingly, the burden is on the plaintiff to rule out other reasonably probable
sources of exposure, and the defendant has no obligation to identify other likely sources of
lead in order to trigger a plaintiff’s obligation to rule out other reasonably probable sources
of exposure. “Where a plaintiff . . . does not produce evidence to support another theory of
causation and, instead, relies on a causation theory similar to that espoused in Dow, the
validity of the necessary inference is limited to those circumstances where the plaintiff is
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able also to exclude other reasonably probable sources of lead exposure.” Id. at 538
(emphasis added).
Appellant relies primarily on the affidavit of Dr. Levy to rule out other possible
sources of exposure to lead. But the Hamilton Court rejected the use of similar expert
opinion evidence for establishing the presence of lead in a particular place the plaintiff
resided. The Court said: “Plaintiffs in the present cases argue that their experts’ testimony
bridged any evidentiary gap in their circumstantial proof. Specifically, their experts opined
that the subject properties were probably a substantial contributor to Plaintiffs’ injuries.” Id.
at 538. The Hamilton Court quoted with approval this Court’s observation that “the mere
fact that most old houses in Baltimore have lead-based paint does not mean that a particular
old Baltimore house has a similar deficiency.” Id. at 541 (citations omitted). If a plaintiff’s
expert reaches “the conclusion that the house contained lead-based paint [based] on a
presumption that houses built during a certain time period contain typically lead-based paint”
— which is the essence of Dr. Levy’s opinion in the present case — then “[s]uch a factual
basis is insufficient for an expert to reach the conclusion that the interior of a specific
property contained lead-based paint during the relevant time period.” Id. at 544. Accord
Smith v. Rowhouses, Inc., 223 Md. App. 658, 666 (2015). See also Roy v. Dackman, 219 Md.
App. 452, 473 (2014), cert. granted, 441 Md. 217 (2015) (oral argument conducted
September 3, 2015), where we held that a pediatrician’s opinion that a particular home was
the source of the plaintiff’s lead exposure “‘amounted to no more than speculation’” where
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there was no direct evidence of lead in the interior of the premises and the pediatrician based
his opinion on deposition testimony regarding the presence of “peeling paint,” the age of the
home, and a test confirming lead paint on the exterior of the house (quoting City Homes, Inc.
v. Hazelwood, 210 Md. App. 615, 689, cert. denied, 432 Md. 468 (2013)).
Our conclusion that appellant was obligated to rule out the existence of other
reasonably probable sources of lead exposure is bolstered by this Court’s holding in Dow.
In that case, there was no evidence in the record showing that the plaintiff had been exposed
to lead anywhere other than the defendant’s property. Nevertheless, in reversing the grant
of summary judgment in favor of the defendant, we relied heavily on the fact that the
plaintiff’s mother had signed an affidavit attesting that the plaintiff “did not spend time
anywhere else and was never exposed to other sources of lead.” Dow, supra, 144 Md. App.
at 144. We held that the mother’s affidavit, “coupled with the undisputed fact that homes
built before 1950 often contain lead-based paint, could indeed support an inference that the
paint in question contained lead.” Id.
Similarly, in Smith v. Rowhouses, Inc., 223 Md. App. at 668, we held that the plaintiff
had produced sufficient circumstantial evidence to survive a motion for summary judgment
even though there was no direct evidence that the subject property contained lead paint. We
noted that the plaintiff in that case had produced evidence that showed she “had her first
elevated blood-lead level when she was living at the [defendant’s property, and the plaintiff]
did not have contact with any other known source of exposure to lead at that time. . . .” Id.
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The lack of other known exposures “could support a reasonable inference by the trier-of-fact
that [the defendant’s property] was the only reasonably probable source of the lead to which
[the plaintiff] was exposed before she first tested positive for lead. . . .” Id. at 668-69.
In the present case, there was a gap in the circumstantial evidence provided by the
appellant. In order for the fact-finder to rationally conclude that the lead level in her blood
most likely went up because she was exposed to lead paint in 2027 Ridgehill Avenue, she
needed to provide facts from which one could conclude that the appellant was not exposed
to other known sources of lead that could reasonably account for the increase lead level in
her blood. Such evidence was not included in the material appellant filed in opposition to the
appellees’ motions for summary judgment. Consequently, we conclude that the circuit court
did not err by granting the motion for summary judgment.
JUDGMENT OF THE CIRCUIT
COURT FOR BALTIMORE
CITY AFFIRMED. COSTS TO
BE PAID BY APPELLANT.
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