Brown v. DANIEL REALTY COMPANY

MEREDITH, J. This appeal seeks reversal of a judgment of the Circuit Court for Baltimore City that was entered upon a jury verdict in favor of the defendants in a case seeking damages for lead paint exposure. Appellant — Lanay Brown, through her legal ¹⁰⁶ guardian and next Mend Catherlina Queen — and Catherlina Queen, individually, were unsuccessful in persuading a jury that the appellees — Daniel Realty Company, Wendy Perlberg, Daniel Perlberg, and Marvin Perlberg — negligently maintained a house at 3630 Reisterstown Road in Baltimore City, where Ms. Queen and Ms. Brown resided for approximately four years. The plaintiffs claimed that, because of the defendants’ negligence, the property contained flaking, chipping, and peeling lead-based paint during the time Ms. Brown resided there. Ms. Queen alleged that Ms. Brown suffered permanent brain damage because of her exposure to the lead-based paint, and Ms. Queen also sought damages on her own behalf for medical expenses that she incurred as Ms. Brown’s legal guardian and for severe emotional distress and mental anguish that Ms. Queen allegedly suffered.

At the close of the plaintiffs’ case, the court granted the defendants’ unopposed motion for judgment as to Ms. Queen’s personal claims. At the conclusion of all evidence, the case was submitted to the jury on issues, and the jury found there was no flaking, chipping, or peeling paint at the subject property while Ms. Brown resided there. Based upon that dispositive finding of fact, the court entered judgment for the appellees. Only Ms. Brown noted an appeal.

Ms. Brown contends that the trial court committed reversible errors when it: (1) allowed appellees’ counsel to read the transcript of the de bene esse deposition of one of the plaintiffs’ experts to the jury rather than playing the videotape of the deposition; (2) admitted an unredacted copy of a test report that had been prepared by an expert for the plaintiff; and (3) allowed the appellees to read into evidence portions of Ms. Queen’s deposition after Ms. Queen’s personal claims had been disposed of by the appellees’ motion for judgment such that she was no longer an individual plaintiff. For the reasons set forth below, we affirm the judgment of the circuit court. Facts and Procedural History Lanay Brown was bom on December 17, 1990. Ms. Queen is Lanay Brown’s biological aunt and legal guardian, and Ms. ¹⁰⁷ Queen has cared for Ms. Brown as her defacto mother since the child’s birth.

Although the parties disputed the exact dates when Ms. Brown resided at 3630 Reisterstown Road, the appellees concede that Ms. Brown’s family began their tenancy no later than January 3, 1991, at which time Ms. Brown was two and a half weeks old. Ms. Brown lived at the subject property until 1994, when she and Ms. Queen moved to another address in Baltimore City. Appellee Daniel Realty Company owned the subject property from 1984 until October 11, 1995, and appellees Daniel Perlberg and Wendy Perlberg, among others, acted as property managers of the subject property. The appellees sold the property in 1995, and since that time, none of the appellees has owned any interest in the property.

As a consequence, the appellees had no knowledge of what, if any, painting and repairs were performed at the subject property after October 11, 1995. On May 26, 1999, at the request of appellant’s counsel, representatives of ARC Environmental (“ARC”) tested the subject property for the presence of lead. The test results indicated that the property contained lead. The present suit was filed on August 29, 2002.

On June 2, 2006, appellant’s counsel took the de bene esse deposition for use at trial of appellant’s expert who was the representative of the firm that tested the property for lead. Pursuant to Maryland Rule 2-416, the deposition of ARC’s President, Shannon Cavalier, was videotaped and stenographically recorded. Although appellant elected not to offer Mr. Cavalier’s deposition in evidence as part of the plaintiffs’ case at trial, the appellees read most of the deposition transcript to the jury. Two of appellant’s questions on appeal arise from the appellees’ use of Mr. Cavalier’s deposition.

At the outset, appellant contends that the trial court should not have permitted the appellees to read the transcript in lieu of playing the videotape. Further, appellant contends that the trial court erred in admitting into evidence the complete test report ¹⁰⁸ prepared by ARC and identified by Mr. Cavalier during his deposition. Mr. Cavalier testified that he is an environmental expert. His firm performs a variety of real estate services, including tests for the presence of lead.

Mr. Cavalier testified that the results of the lead testing performed by ARC at the subject property were summarized in a written report that was marked as Plaintiffs’ Exhibit 2 for identification (“the unredacted report”) during the de bene esse deposition. The unredacted report included a “Lead-Based Paint Testing Data Sheet” that reflected the information recorded by the technicians during the testing process, including descriptions of the rooms and structural components tested, the condition of the paint at each tested location as of the time of testing, and the lead levels, if any, detected during testing. During Mr. Cavalier’s deposition, the parties also marked as Plaintiffs’ Exhibit 1 a copy of the ARC Report (“the redacted report”) which differed from the unredacted report in only one respect: the column describing the condition of the paint at the time of testing had been blocked out by appellant’s counsel. Mr. Cavalier explained that the tests of the subject property were done by technicians from his company using an “XRF machine” that is capable of detecting the presence of lead below the top layer of paint without the need for an intrusive sample.

Mr. Cavalier explained that XRF is an acronym for x-ray fluorescence. Using the XRF machine, ARC technicians took 40 readings from various locations throughout the subject property and recorded the readings on a form that is customarily used by ARC. Based upon the data recorded, Mr. Cavalier was of the opinion that there was lead-based paint in two-thirds of the subject property. On cross-examination, Mr. Cavalier admitted that the XRF test detects lead regardless of whether the lead is in the outermost layer of paint or all the way down at the bottom layer of several layers of paint.

He conceded that if a tested door, for example, had once been painted with lead-based paint, and then was painted with ten coats of unleaded paint, ¹⁰⁹ the XRF machine would still give a positive reading for lead, and that reading did not provide any specificity with regard to whether the detected lead was buried beneath several layers of paint. Mr. Cavalier further conceded that some other testing devices, such as a “Niton machine,” could determine how close the lead is to the surface, but ARC does not own any of those machines. When asked about the column of data that had been blocked out on the redacted report, Mr. Cavalier explained that that column of data reflected the condition of the surface of each tested component at the time of testing, indicating whether the paint at that location was either intact, or in fair condition, or in poor condition. The paint is described as “intact” if the paint film is solid and there is no cracking or flaking, and the paint is not separating from the substrate.

Of the 38 interior surfaces tested at the subject property, all but two were described in the redacted column as intact, and the other two were in fair condition. (“Fair condition” describes a surface on which the paint is largely intact, but 10% or less of the surface is cracked, worn, or chipping.) Mr. Cavalier acknowledged that “[t]his condition section [of the report] is a piece of information that ... [Mr. Cavalier himself] deemed relevant for an inspector to take note of ... at the time of the inspection.” Trial began on June 19, 2006. For reasons that are not clear, several portions of the trial were not recorded. Nevertheless, the parties have stipulated to the circumstances under which the trial court admitted the evidence appellant now challenges on appeal.

The plaintiffs called Ms. Queen to testify during their case-in-chief. She testified that she and Lanay Brown lived at the subject property from the time the child was born in December 1990 until the end of 1994. She testified: “I’m the only mother [Lanay] knew.” Ms. Queen acknowledged that when she first moved into the property in December 1990, the paint “was okay.” But she recalled that, after five or six months, “the paint was chipping when you go up the stairs,” and “in the bathroom, the floor was chipping and the windows [were] chipping.” ¹¹⁰ The appellant also called Dr. Jerome Paulson as an expert witness in the field of childhood lead poisoning. Dr. Paulson is a board certified pediatrician who also teaches environmental and occupational health subjects at the School of Public Health of George Washington University.

Prior to trial, Dr. Paulson reviewed a number of documents, including the unredacted ARC report of the lead inspection performed on May 26, 1999. Based upon his review of Ms. Brown’s medical records and the ARC report, Dr. Paulson expressed the opinion that the appellant was exposed to lead-based paint at the subject property. Explaining his basis for that opinion, Dr. Paulson testified: [T]he CDC [ie., the Centers for Disease Control and Prevention] points out that the most likely place for a child to be poisoned is in the home in which they live. However, more importantly than that[,] we have documentation from an inspection done of the home at that address that there was lead paint on the surface, on multiple surfaces at that address.

Lead-based paint was found at over 20 sites at that address when the home was inspected in May of 1999. (Emphasis added.) Dr. Paulson identified the ARC report as the only documentation he relied upon regarding the presence of lead-based paint at the subject property. Over appellees’ objection, plaintiffs’ counsel handed Dr. Paulson a copy of the redacted report which had been marked for identification only. In response to the appellees’ objection that the unredacted report was what the doctor had seen before trial, the trial judge ruled: “I’m going to let [plaintiffs’ counsel] hand [the witness] a redacted copy.

When you get him on cross you can show him an un-redacted copy.” Questioning of Dr. Paulson by plaintiffs’ counsel continued: Q. Let me ask you this question. Can you explain to the members of the jury how you can use a test for lead in 1999 to determine whether Lanay was exposed back in 1990 to 1994? ¹¹¹ A. The lead-based paint that’s placed on a wall or a floor, or a door jam does not deteriorate over time. So ... it stays there unless it’s physically removed it is, it’s there. So that’s one point.

Also, since 1978 it has been illegal to use lead-based paint for painting interior surfaces in homes. So if one were to assume that there was no lead-based paint at 3630 Reisterstown Road at the time Lanay Brown lived there and that there is lead-based paint or there was lead-based paint on May 26, 1999, one would have to assume that the house, the interior of the house had been painted with lead-based paint between the time she moved out and the time this test was done. Given the age of the home it is very likely that the home was painted with lead-based paint when it was built after it was built [sic] and that that’s the origin of lead-based paint. It would make no sense that between 1994 when the family moved out of that address [and] 1999 someone would have gone in and [done] something illegal, that is paint, use lead-based paint in a house.

Based upon the ARC report, Dr. Paulson expressed the opinion that appellant suffered damage, including a loss of IQ, due to lead poisoning caused by her exposure to lead-based paint at the subject property. The appellees’ cross examination of Dr. Paulson is one of the portions of the trial for which no trial transcript could be produced. The individual defendants were also called as witnesses during the plaintiffs’ case. During the cross examinations of those witnesses, appellees introduced documentary evidence and testimony tending to show that the property had been thoroughly wallpapered and painted in late 1990 and early 1991, before and shortly after the time the plaintiffs began their occupancy of the premises.

At the close of the plaintiffs’ case, the court granted the appellees’ unopposed motion for judgment as to the claims asserted by Ms. Queen on her own behalf. During the ¹¹² defendants’ case, over appellant’s objection, defendants read excerpts of Ms. Queen’s discovery deposition. Defendants also read the stenographic transcript of Mr. Cavalier’s videotape deposition testimony during their case even though the appellant had not utilized that deposition. When appellant objected to Mr. Cavalier’s deposition being read, and requested that the videotape of the testimony be played instead, counsel for appellees explained to the court that the appellees preferred to read the transcript excerpts to save time and avoid having to stop the videotape at the portions that the court had ruled were inadmissible.

The trial court agreed that the transcript could be read to save time. While presenting Mr. Cavalier’s deposition testimony to the jury, appellees offered the unredacted ARC report into evidence. Appellant objected on the ground that the column of the report describing the condition of the paint at the time of testing in 1999 had no relevance to the case because it described conditions at the house five years after Ms. Brown had moved out and four years after appellees had relinquished all interest in the property. Appellees argued that the unredacted report was admissible because the data contained within the report, including the description of the paint’s condition, had been relied upon by appellant’s experts and, in part, formed the basis of the experts’ opinions.

The circuit court admitted the unredacted report into evidence. Following six days of trial, the case was submitted to the jury on issues. See Maryland Rule 2-522(c). In response to the first issue, the jury found that there was no flaking, chipping, or peeling of the paint at the subject property while appellant resided there.

The verdict sheet instructed the jury to proceed no further if that was its answer to the first issue. Accordingly, judgment was entered in favor of appellees as to all remaining counts. Appellant filed a motion for new trial, raising the same issues that she raises on appeal. Following a hearing, the circuit court denied appellant’s motion for new trial, and this appeal followed. ¹¹³ Discussion 1.

Reading Transcript of Expert’s Deposition With respect to the trial court’s decision to allow appellees’ counsel to read the stenographic transcript of the videotape deposition of Shannon Cavalier into evidence, one missing portion of the trial transcript is any discussion that may have transpired between court and counsel on the day the deposition was read. But when the appellees’ counsel, at the end of the previous day’s proceedings, advised the court of his intention to read the transcript, rather than play the videotape, appellant asserted no objection. The available transcript of that exchange includes the following: JUDGE MURDOCK: Okay. We are on schedule but I’m not sure where your schedule is anymore.

Tuesday at 10:00 we are going to put on the video or are you going to— [Defense counsel]: We are going to read it. JUDGE MURDOCK: Read it. Which will take longer? [Defense counsel]: No, actually it takes much less. JUDGE MURDOCK: Why, because you are not going to read it all? [Defense counsel]: We are going to read it but we are not going to have the video pauses — Believe me.

Reading a deposition is always quicker than the video and I have done it both ways 15 times. JUDGE MURDOCK: Believe me, it depends on who’s reading it. [Defense counsel]: It will be [my associate] and I. I’ll be on the stand, boom. JUDGE MURDOCK: Okay. [Defense counsel]: She will be asking the questions and I will get it out. [Plaintiffs’ counsel]: Don’t forget the objections— [Defense counsel]: I think we’ve got it all marked. JUDGE MURDOCK: Okay.

And you want me to rule on those objections? ¹¹⁴ [Defense counsel]: We already have. JUDGE MURDOCK: Oh, you have. [Defense counsel]: Yes. JUDGE MURDOCK: Okay. Good.

So you think that’s going to take 52 minutes, is that the one that’s going to take 52? [Defense counsel]: 40. It will take 40. The parties have stipulated on appeal, however, that appellant objected to the trial court permitting appellees to read Mr. Cavalier’s deposition into evidence and that this objection was overruled. According to the parties’ stipulation, which we will honor because of the lack of a transcript, the appellant argued that Maryland Rule 2-419(a)(3) permits the use of a witness’s deposition only upon a showing that the witness is “unavailable,” and that appellees made no showing that Mr. Cavalier was not available to testify live.

Further, according to the stipulation, the appellant requested that the circuit court require the de bene esse videotaped deposition be played, rather than read to the jury, and in response to an inquiry from the court, appellees explained that they preferred to read the transcript rather than play the videotape in order to avoid having to stop the videotape at those portions that the court already had ruled were inadmissible, which, appellees asserted, would save time. Because trial courts have broad discretion with respect to the management of trial proceedings, and in the absence of any contention that the videotape would have in some material way presented Mr. Cavalier’s testimony in a light more favorable to appellant than the transcript did, we find no abuse of discretion in the trial court’s decision to permit the reading of the stenographic transcript of the videotape deposition. Appellant contends that the court erred in permitting appellees to read the deposition transcript of a witness because there is no rule that specifically permits that to be done. Appellant notes that Maryland Rule 2-419(a)(3) is not applicable because there was no showing that the witness was unavailable.

Appellant further asserts that the express language of Rule 2-419(a)(4) does not permit reading the tran ¹¹⁵ script because it makes no mention of using the transcript of a videotaped deposition, but rather permits only the use of the “videotape.” Maryland Rule 2-419(a)(4) reads in pertinent part: “A videotape deposition ... of any expert witness may be used for any purpose even though the witness is available to testify if the notice of that deposition specified that it was to be taken for use at trial.” When the courts are called upon to interpret judicial rules of procedure, the canons of statutory construction are generally applicable. Hoile v. State, 404 Md. 591, 624 , 948 A.2d 30 (2008); State v. Williams, 392 Md. 194, 206-07 , 896 A.2d 973 (2006); State ex rel. Lennon v. Strazzella, 331 Md. 270, 274-75 , 627 A.2d 1055 (1993). We endeavor to discern the plain meaning of the words used in the rule.

We seek to give a common sense interpretation to the language of the rule. Further, we do not construe individual rules in isolation, but seek to harmonize rules that deal with related matters. As the Court of Appeals has stated in the context of