Barr v. Rochkind

MEREDITH, J. 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 ³³⁸ 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 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. ³³⁹ 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 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 neu-ropsychological impairment” as a result of childhood exposure to lead. On October 3, 2012, appellant and her mother, Penny Tra-vers, 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, appel-lees 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 ³⁴⁰ 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 Ridge-hill Avenue, but she argued that the existence of lead-based paint could be reasonably inferred from circumstantial evidence, namely, that the 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 ³⁴¹ appellant’s intellectual 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 ³⁴² 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 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 Plaintiffs 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 fo ³⁴³ cused 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 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 , 96 A.3d 714 (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 ³⁴⁴ 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. 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 CMC, Inc., 194 Md.App. 375, 386 , 4 A.3d 515 (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 ³⁴⁵ 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 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 , 796 A.2d 139 (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 Ridge-hill 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