Butler v. S & S Partnership

EYLER, JAMES R., J. On October 9, 2007, 1 Hector Butler, Jr., appellant, by his mother, Yvonne Crosby (“Crosby”), brought suit in the Circuit Court for Baltimore City, against S&S General Partnership (“S & S G.P.”), Lee Shpritz (“Shpritz”), Barbara Benjamin (“Benjamin”), 2 S&S Partnership (“S & S”), Stanley and Rhoda Rochkind (the “Rochkinds”), N.B.S., Inc. (“N.B.S.”), Dear Management & Construction Co., Inc. (“Dear Management”), 3 and Charles Runkles (“Runkles”), 4 (collectively, “ap ⁶⁴ pellees”), 5 alleging injuries and damages resulting from lead paint exposure at two residential properties, 2288 Linden Avenue (“Linden Avenue”) and 2308 Bryant Avenue (“Bryant Avenue”) in Baltimore City, which properties were owned, operated, controlled and/or managed by appellees, either individually or in their capacity as agents/employees. Subsequently, appellees filed answers to the complaint, and discovery ensued. At the conclusion of discovery, each appellee, either individually or together, filed dispositive and/or discovery and/or scheduling order motions, raising several issues, including, inter alia, lack of ownership of the properties and/or lack of the presence of lead-based paint during the relevant time periods; lack of evidence of flaking, chipping, or peeling paint to support a Consumer Protection Act (“CPA”) claim; that the affidavit of appellant’s expert witness, Howard M. Klein, M.D. (“Dr. Klein”), should be stricken, as there was no factual basis to support his proffered opinion; that capillector screening tests 6 for appellant’s blood lead level related to Bryant Avenue should be stricken; and, that reports prepared by Arc Environmental, Inc. (“Arc”), which conducted tests to determine the presence of lead at each property, were not in compliance with the court’s scheduling order and, thus, should be stricken.

After a hearing on the motions on November 9, 2009, followed by subsequent additional motions and rulings, the court refused to strike the screening tests but ruled in favor of appellees on the other issues, including striking the Arc reports with respect to both properties, as appellant did ⁶⁵ not comply with the scheduling order. The court also struck the affidavit of Dr. Klein on the ground that it violated the scheduling order and Maryland Rule 2-402. After a final judgment was reached as to all parties, this appeal followed. On appeal, appellant raises several questions for our review, challenging the court’s rulings on the various motions.

We shall affirm. Factual & Procedural Background A. Discovery Appellant was born on October 11, 1986. From approximately August 7, 1987 through May of 1988, appellant resided with Crosby in a third-floor apartment at Linden Avenue. During the first twelve days of Crosby and appellant’s tenancy, S & S G.P. owned the Linden Avenue property.

Shpritz was a general partner in S & S G.P. On or about September 18, 1987, 7 S&S G.P. sold the Linden Avenue property to Benjamin. From approximately May of 1988 to August of 1991, appellant lived with Crosby in a second-floor apartment at Bryant Avenue. S&S owned the Bryant Avenue property from 1978 through 2008. The Rochkinds were partners in S & S. N.B.S., an entity related to S & S, did not own the Bryant Avenue property but, at some point, obtained a two million dollar loan secured by an indemnity deed of trust on the property.

On October 9, 2007, appellant filed a 139-page, multiple-count complaint—including a “Request for Entry Upon Land,” for testing of the subject properties within thirty days— against S&S G.P., Shpritz, Benjamin, S&S, the Rochkinds, and N.B.S., 8 alleging injuries related to lead paint exposure at ⁶⁶ both the Bryant and Linden Avenue properties. On November 29, 2007, the court issued a scheduling order. Following joint motions to modify the scheduling order, the court modified the scheduling order on March 19, 2009. The modified scheduling order, which was the order controlling at the time that all of the various motions at issue on this appeal were considered, was entered on April 21, 2009.

That scheduling order provided, in relevant part: 2. (a) All discovery including full resolution of all discovery disputes shall be completed no later than 09/09/09. Expert designations shall include all information specified in Rule 2-402(f)(l)(A) and (B).[ 9 ] (b) Defendant(s) shall respond to all interrogatory requests concerning the findings and opinions of experts, and shall have psychometric testing performed on the minor Plaintffis) and.serve such testing results no later than 08/10/09. (c) Defendants who still own a subject property shall allow the Plaintiffs to perform a non-destructive lead test upon the premises within 60 days of a written request ⁶⁷ provided that the request i[s] made no later than four months prior to the discovery deadline in paragraph 2(a).

The defendants shall be permitted to attend the lead test accompanied by a consultant(s) or expert(s). (d) All depositions of expert witnesses shall be completed no later than 09/09/09. 3. All dispositive motions shall be filed no later than 10/09/09. During the ensuing discovery, appellant identified 18 experts who he intended to call on his behalf, including Dr. Klein.

Specifically, on or about April 28, 2009, in answering an interrogatory propounded by Benjamin, which asked appellant to “[ijdentify ... all experts you intend to call at trial, setting forth their respective fields of expertise, the opinions to which they will testify and the facts upon which they will base their respective opinions, and attaching to your answers to these interrogatories copies of their reports,” appellant disclosed that he intended to call Dr. Klein as an “expert in pediatric lead poisoning,” and that Dr. Klein was expected to testify to the extent and permanency of [appellant’s] injuries due to exposure to lead paint. Dr. Klein [would] also testify to the probable source of the lead exposure. Dr. Klein [would] also testify that exposure to lead-based paint at all of the defendants’ subject premises, as stated in the [appellant’s] complaint, was a substantial factor in the [appellant’s] injuries. Appellant also answered that if Dr. Klein were to write a report, it would be provided to appellees.

In a July 2, 2009 letter to appellees, appellant essentially repeated the same information regarding Dr. Klein that he provided in his answers to interrogatories: ... [Appellant] intends to call the following experts at trial: Howard M. Dr. Klein, M.D.: Dr. Klein is an expert in pediatrics and pediatric lead poisoning. The designation in [appellant’s] Answers to Interrogatories is specifically incorporated herein. Dr. Klein is expected to testify to the ⁶⁸ extent and permanency of the [appellant’s] injuries due to exposure to lead-based paint. Dr. Klein will also testify to the probable source of the lead exposure[s].

Dr. Klein will also testify that exposure to lead-based paint at all of the [appellees’] subject premises, as stated in the [appellant’s] complaint, was a substantial contributing factor to the [appellant’s] injuries. He will also testify concerning the dangers of lead in general. Specifically, Dr. Klein will opine that the [appellant] was exposed to lead at all of the relevant addresses in this case, including the property owned and/or managed by [appellees]. He is also expected to opine that the exposure took place during relevant time period(s) as alleged in the Complaint.

He also is expected to opine that the [appellant’s] lead poisoning and resulting learning disabilities, cognitive deficits, and other issues set forth in the psychologist’s report, as well as other injuries (including but not limited to permanent brain damage, neurobehavioral deficits, math and reading disabilities, mental anguish, failure to achieve academically, emotional overlay and frustration) were caused by [appellant’s] exposure to lead at the [appellees’] properties. He is also expected to opine that [appellant] suffered a loss of IQ points as a result of exposure to lead. He is also expected to opine that all of [appellant’s] injuries are permanent and irreversible. He is also expected to testify that [appellee’s] exposure to lead at the subject addresses, as alleged in the complaint was a substantial contributing factor to [appellant’s] injuries.

He will also testify as to the [appellant’s] educational and vocational abilities, or lack thereof. Dr. Klein’s opinion is based on his review of the relevant medical, psychological, housing, school and other records as well as any reports generated by any other experts, including the [appellees’] own experts, in this case. It is also based on his review and knowledge of the relevant medical literature. It is also based [on] his review of any discovery conducted in this case or any prior filings in this case. ⁶⁹ Finally, it is based on his personal knowledge, training and experience.

All of Dr. Klein’s opinions will be made to a reasonable degree of medical probability. [Appellants] reserve the right to supplement this answer should Dr. Klein develop any additional opinions during the course of this litigation. If Dr. Klein produces a report, it will be provided. Dr. Klein will be made available for deposition at a mutually convenient time. On August 24, 2009, approximately 16 days before the close of discovery, pursuant to the modified scheduling order, appellant had the exteriors only of 2308 Bryant Avenue and 2238 Linden Avenue inspected for lead-based paint by Arc.

Appellant did not submit a written request to appellees or provide appellees with notice and the opportunity to attend the inspections. A report setting forth the results of the lead-based paint inspection was prepared for each property. Crosby was deposed on August 26, 2009. With regard to Bryant Avenue, Crosby testified that she occupied the second and third floors of the property.

According to Crosby, appellant played either inside the house or at a park across the street, and he never played outside in the front or the rear of the property. She stated that the property had been freshly painted when she moved in, but the paint subsequently began to chip around the baseboards, the doors, and the windowsills. With regard to Linden Avenue, Crosby testified that she resided on the third floor. When she first moved into the property, it was clean and painted.

She did not recall any deteriorated paint in the apartment at the beginning of her tenancy. Over time, however, Crosby noticed chipping paint around the windowsills. Appellant did not play outside at the Linden Avenue property. Crosby testified that she did not remember observing appellant put paint chips into his mouth.

She stated that appellant ⁷⁰ was never hospitalized for any lead-related problems, but he was tested for lead two or three times. Appellant’s medical records revealed that a capillector test was conducted on June 9, 1988, and capillector tests were conducted on September 7, 1988 and April 4,1990. The September 7,1988 capillector test indicated a blood lead level of 26 ug/dL, 10 and the April 4, 1990 capillector test indicated a blood lead level of 24 ug/dL. According to Department of Health & Mental Hygiene (“DHMH”) records, a single venipuncture test, taken on November 10, 1987, indicated a blood lead level of 24 ug/dL.

B. Motions As noted above, at issue on this appeal are the court’s rulings on various motions. For ease of reference, at this juncture we shall set forth a table of the relevant motions and the court’s baseline rulings on those motions. We will discuss the substance of the motions at issue and the court’s specific rulings in depth, infra. [[Image here]] ⁷¹ [[Image here]] ⁷² [[Image here]] ⁷³ [[Image here]] The substance of the motions, in relevant part, follows. N.B.S. asserted in its amended motion for summary judgment that S&S owned Bryant Avenue during all relevant time periods, and that N.B.S. had no involvement with the ownership, management or maintenance of the property at any time; thus, N.B.S. could not be held liable for negligence or for any violations of the CPA with respect to Bryant Avenue.

Attached to N.B.S.’s amended motion was an affidavit of Stanley Rochkind, who swore that N.B.S. had no ownership, management or control of Bryant Avenue. In response, appellant argued that in 1985, N.B.S. borrowed $2,600,000 from Suburban Bank and that S&S guaranteed the loan and secured its guaranty obligation by an indemnity deed of trust on property owned by S & S, including the Bryant Avenue property. Thus, according to appellant, N.B.S. had an “ownership interest” in Bryant Avenue, pursuant to the definition of “owner” in the Baltimore City Housing Code, making summary judgment inappropriate. Appellant also asserted that in light of N.B.S.’s amended motion for summary judgment, it had become necessary to depose Stanley Rochkind, pursuant to Rule 2-501(d)—after the close of discovery—as a deposition was necessary to obtain certain information concerning: (a)[ ] the extent of ...

Stanley Rochkind’s involvement with ... N.B.S. ... and S&S ..., details surrounding the Indemnity Deed of Trust, and all the [appellees’] relationship with ⁷⁴ the subject property 2308 Bryant Avenue [and] (b)[ ] Any other Information relevant to issues raised in the [N.B.S.’s] motion. Runkles, joined by the Rochkinds, N.B.S. and S&S, moved to strike the Arc report related to Bryant Avenue, asserting that on August 24, 2009, an employee of Arc conducted a lead paint survey on the premises of Bryant Avenue, but that appellant did not submit “any written request to the owner or manager of the property prior to having Arc conduct the lead paint survey,” and failed “in all respects to comply with the requirements of the [scheduling [o]rder,” 13 which order required: (c) Defendants who still own a subject property shall allow the Plaintiffs to perform a non-destructive lead test upon the premises within 60 days of a written request provided that the request i[s] made no later than four months prior to the discovery deadline in paragraph 2(a). The defendants shall be permitted to attend the lead test accompanied by a eonsultant(s) or expert(s).

Appellant responded that the lead inspection was conducted prior to the conclusion of discovery and that the “current title owner” of Bryant Avenue was “S & S Business Trust,” which entity was not a defendant in the matter. Appellant asserted that the lead inspection in “no manner violate[d]” the scheduling order because Paragraph 2(c) relates to the rules for filing Motions to Enter Upon Land to defendants who still hold title to a subject property, and does not apply to properties owned by non parties. No language in the [scheduling [o]rder precludes a plaintiff from obtaining a lead inspection of a non party property as long as the inspection was conducted within the discovery timeframe. ⁷⁵ Furthermore, appellant asserted that he did file written motions to enter upon the property along with the filing of his complaint. Appellant requested that the court deny the motion to strike.

Runkles asserted in his reply to appellant’s opposition to Runkles’ motion to strike the Arc report that appellant’s arguments were contradictory in that in one vein appellant argued that he did serve S&S with notice of the testing pursuant to his motion to enter upon the property filed with the original complaint, and in another vein appellant argued that the inspection was valid because the current owner, S&S Business Trust, was “not the original Defendant upon whom Plaintiff claims service of its Motion to Enter Upon the Property,” and consequently, appellant was not bound by the requirements of the scheduling order. Benjamin asserted in her motion for summary judgment that, with respect to the CPA claim against her, Crosby and appellant moved into Linden Avenue prior to Benjamin’s ownership of the property; thus, it would have been impossible for Benjamin to have made any misrepresentations about the condition of the property at the inception of the lease. Benjamin further asserted that there was no evidence, aside from a single blood lead level of 24 ug/dL, reported on November 20,1987, that remotely suggested the presence of a lead hazard at Linden Avenue. Benjamin also asserted that the Arc report was based on a test that was completed without Benjamin’s knowledge and without an inspector present on her behalf, in contravention of the scheduling order; thus, the results of that inspection could not be considered as evidence in the case.

In his response to Benjamin’s motion, 14 appellant attached Dr. Klein’s affidavit, dated October 20, 2009, which appellant alleged contained a “sufficient factual basis to conclude that ⁷⁶ [appellant] was exposed to lead and injured at 2238 Linden Avenue.” The affidavit provided, inter alia: 6. It is my opinion within a reasonable degree of medical probability that the premises 2238 Linden Avenue, Apt. # 3 contained lead-based paint during the entire time period [appellant] resided [there] in 1987. I base this opinion on interrogatory, deposition testimony and Baltimore City Department of Public Works property card stating that the property was an old house built in 1921, in poor- condition with flaking paint from the inception of the lease on the windows, sills, baseboards, doors, bathroom walls and bedroom walls, Baltimore City Health Department records showing that the home contained lead in 1977, and evidence that the exterior of the property was inspected for lead by Arc Environmental, Inc. in 2009 and multiple exterior components were found to be positive including window cases and sills. I also base this opinion on practical experience as a doctor who has treated thousands of children for lead exposure, the fact that lead-based paint was banned in Baltimore City in 1950 and by the federal government in 1978, medical and environmental records and testimony I have reviewed, specific facts as to this instant child’s case, as well as medical, scientific, and U.S. Governmental Studies accepted in the scientific community as authoritative.... * ❖ * 7.

Based on the information that is now at my disposal, which includes interrogatory and deposition testimony reflecting that the premises 2238 Linden Avenue, Apt. # 3 contained chipping and flaking paint around windows, windowsills, baseboards, doors, bathroom walls and bedroom walls, interrogatory testimony and lease documents establishing that [appellant] resided at ... Linden Avenue ... from August 7, 1987 and continuing through 1987, during tender years ... under the age of six when the property contained deteriorated paint; medical evidence that [appellant] had his first documented elevated blood lead levels on November 10, 1987 of 24 ug/DL only three months after moving into the subject property, it is my opinion to a ⁷⁷ reasonable degree of medical probability that [appellant] suffered childhood lead poisoning as a result of ingestion of lead paint at 2238 Linden Avenue, Apt. 3. 8. It is my opinion -within a reasonable degree of medical probability that [appellant’s] exposure to lead-based paint at the premises 2238 Linden Avenue, Apt. # 3 was a substantial causal factor in his lead poisoning and resulting cognitive injuries, substantial meaning significant as opposed to insignificant. 9. Based on my review of the records in this instant case including medical records that [appellant] suffered an elevated blood lead level of 24 ug/DL on November 10, 1987 and an elevated FEP of 55(wb) on November 10, 1987 while residing at ...

Linden Avenue ... at the tender age of 13 months; review of the accepted medical literature and my training and experience in treating childhood lead exposure, it is my further opinion within a reasonable degree of medical probability that [appellant] was exposed to lead based paint during each and every instance that he resided at ... Linden Avenue.... Each and every instance of exposure at ... Linden Avenue ... caused damage to [appellant] at the cellular level substantially contributing to [appellant’s] cumulative lead exposure and cognitive injuries.

Therefore, it is my opinion within a reasonable degree of medical probability that [appellant] was exposed to lead based paint during the limited time frame of the inception of the lease on August 7, 1987 until September 18, 1987. It is my further opinion within a reasonable degree of medical probability that this limited exposure from August 7, 1987 through September 18, 1987 is a substantial contributing factor to [appellant’s] injuries, “substantial” meaning significant as opposed to insignificant. With respect to the Arc report, appellant asserted that when he served Benjamin with the complaint, he also served her with a “Request for Entry Upon Land,” but Benjamin ignored the request, and the lead inspection conducted on August 24, 2009 was obtained during the discovery period. ⁷⁸ Appellant did not oppose the entry of summary judgment with respect to the CPA claim. Benjamin responded, inter alia, that neither the 1977 test nor the Arc test performed in 2009 tested the third floor apartment where appellant resided for the presence of lead-based paint, and moreover, the Arc report was obtained in contravention of the scheduling order.

Benjamin asserted that Dr. Klein’s “blanket statement in his affidavit that because 2288 Linden Avenue was built in 1921, it must therefore contain lead,” was nothing more than mere speculation. With regard to appellant’s assertion that Benjamin was served with a “Request for Entry Upon Land,” Benjamin responded that “at no time whatsoever did [appellant’s counsel] ever contact [Benjamin or Benjamin’s counsel] to request property testing, arrange for property testing, or file a certificate of good faith effort to resolve a discovery dispute.” Rather, appellant retained Arc, who trespassed upon the property and performed testing without Benjamin’s knowledge. Benjamin reiterated that because the “testing was performed well beyond the deadlines set forth by [the court] for testing in the scheduling order[,] [t]he report must be stricken (which would leave Dr. Klein without any reliable evidence of lead at 2238 Linden Avenue).” Benjamin attached to her reply an “Affidavit of Patrick Connor,” a certified lead-based paint inspector and risk assessor, and an “Affidavit of Michael Spodak, M.D.,” a medical doctor specializing in the diagnosis and treatment of brain-related illnesses and neurocognitive dysfunction,” who would opine that there was “no reliable evidence of deteriorated lead-based paint at ... Linden Avenue Apt # 3 during the timeframe of [appellant’s] alleged residency.” Shpritz and S&S G.P. asserted in their motion for summary judgment that there was no evidence as to either the presence of lead paint in the Linden Avenue property unit where appellant resided or that exposure to lead paint during the approximately one-month period when S&S G.P. owned the property was a substantial contributing factor to appel ⁷⁹ lant’s alleged injuries.

According to Shpritz and S&S G.P., Crosby entered into a lease on the property on August 7,1987, and S&S G.P. sold the property to Benjamin within a month of that date. Appellant’s first lead level was drawn on November 10, 1987, nearly two months after S&S sold the property to Benjamin. Moreover, appellees asserted that there was no evidence “demonstrating that there [was] lead-based paint present on the interior of the [property during the time period that [appellees] were associated with it and when [appellant] resided there.” Appellees noted that although there was a lead inspection of the exterior of the property in 2009, there was no evidence to demonstrate that there was lead-based paint in its interior from August 7, 1987 through the time they sold the property to Benjamin. Shpritz and S&S G.P. did not assert that the Arc report violated the scheduling order or that expert designations were inadequate.

Appellant’s response to Shpritz and S&S G.P.’s motion was essentially the same as his response to Benjamin’s motion, supra, including the attachment of Dr. Klein’s October 20, 2009 affidavit with respect to Linden Avenue. N.B.S. and S & S’s motion to exclude the testimony of Dr. Klein, appellant’s capillector screening tests in connection with Bryant Avenue, and the Arc report, and motion for summary judgment, all joined by the Rochkinds, provided as follows, in relevant part. Appellees asserted that appellant did not have any medically reliable evidence that he ever had an elevated lead level at the Bryant Avenue property, “as one test proffered by [appellant] fails to indicate a blood lead level for [appellant] at all and the other two tests were capillector screening tests which are regarded by the medical community as unsuitable for diagnostic purposes and prone to contamination.” According to appellees, the capillector tests are used by the medical community for screening purposes only and are not a reliable indication of a patient’s blood lead level. Rather, blood lead levels are not considered accurate unless derived from a venous blood sample.

Thus, appellees asserted that the re- ⁸⁰ suits of the capillector tests done on September 7, 1988 and April 4, 1990 should be excluded from evidence and, thus, appellant should be precluded from referencing any of the blood screening tests in connection with Bryant Avenue. Appellees also asserted that appellant had “failed to produce any evidence of the presence of lead-based paint in the interior of 2308 Bryant Avenue during the time of [appellant’s] alleged tenancy as the interior of the property was not tested and the testing of the exterior of the property,” which served as the basis for the Arc report, “was done eighteen years after the ... alleged tenancy.” With respect to Dr. Klein’s testimony, appellees asserted that because capillector tests are unreliable and appellant had not produced any evidence of the existence of lead-based paint in the interior of the Bryant Avenue property during the time of appellant’s tenancy, Dr. Klein would have no factual basis on which to establish his opinions on causation. Appellees asserted that Dr. Klein “has no factual basis on which he can conclude (1) that [appellant] had an elevated lead level, and (2) that [appellant] sustained any injuries from an elevated lead level.” Thus, in the absence of expert testimony, appellant could not prove his claims. In addition to lead paint related literature and other attachments, appellees appended affidavits by Edward A. Emmett, M.D. and Marianne Schueliein, M.D. to their motion.

In his response to appellees’ motion to exclude Dr. Klein’s testimony, et cetera, appellant asserted that although venous sampling is preferred for confirmation, capillary sampling is an accepted method for blood lead screening. Appellant also pointed to Baltimore City Health Department records, which indicated that Bryant Avenue contained lead in 1979. Appellant asserted that the Arc testing “of the property” in 2009 confirmed those findings. Moreover, with respect to Bryant Avenue and appellees S&S, N.B.S., and the Rochkinds, 15 ⁸¹ appellant attached an affidavit by Dr. Klein, dated October 26, 2009, which provided that, inter alia: 7.

During the 25 plus years I practiced in Baltimore, I saw thousands of children who had been exposed to lead. The vast majority of these children were determined to have lead poisoning because of the results of capillary testing. I saw these children both in my private practice and in my capacity as a faculty member at the University of Maryland School of Medicine. In that capacity, I designed the pediatric curriculum for the Sinai Hospital.

That curriculum contained extensive instruction on the area of childhood lead poisoning because Baltimore, Maryland had one of the highest incident rates of childhood lead poisoning in the country. 8. It is incorrect to say that capillary testing is not a reliable method to determine whether a child has lead poisoning. In fact, the exact opposite is true. Based on a review of ... literature which is relied upon and generally accepted in the medical community, capillary testing is [a] widely accepted test used to determine whether a child has been exposed to lead.

The tests results contained in [DHMH records] are reliable tests confirming the presence of lead in [appellant’s] body. The opinions [contained in expert affidavits from other lead paint lawsuits] to the contrary are incorrect. Contrary to their statements, the capeillector [sic] test is viewed by the medical community as a scientifically reliable test for making a diagnosis regarding the blood-lead level in a patient. In fact, this method was regularly used and accepted in Baltimore during the time period relevant in this case. 9.

In this case, the [appellant] had at least three blood tests which indicate that he had an elevated blood-lead level while residing at 2808 Bryant Avenue. The first test (6/9/88) measured what is known as FEP. FEP is not a blood-lead level, but is a measure of other chemicals which show the presence of lead. In this case, [appellant’s] FEP was elevated, indicating the possible presence of lead.

This is especially true given the fact that a note on the laboratory ⁸² report indicates that [appellant’s] blood lead (as opposed to FEP) was measured at 20 ug/d[L] when the sample was retested in the [lab]. The second test (9/7/88) showed a blood-lead level of 26 ug/d[L] which even back in 1988 was considered to be elevated. It should be noted that in 1988, the science had not yet fully developed as to the dangers of lead and therefore, FEP and blood-lead levels which today are considered to be extremely elevated were considered to be normal. In fact, since 1991, the level of concern for lead in blood has been 10 ug/d[L].

The third test (4/4/90) sho[w]ed a blood-lead level of 24 ug/d[L] also extremely elevated. Each of these tests shows that [appellant] was exposed to lead. 10. I am able to conclude to a reasonable degree of medical probability, that [appellant] was exposed to lead and injured at 2308 Bryant Avenue because each of these blood-lead levels occurred while he was living there. Further, the property was shown to contain lead through two different sources.

First, the Baltimore City Health Department tested the Property for Lead and it was found to be lead-containing (EXHIBIT G). Second [Arc] environmental tested the property for lead and it was found to be lead-containing (EXHIBIT H). The fact that the [Arc] test was performed many years after [appellant] lived at the subject property does not change my opinion because the application of lead-based paint was banned for residential properties in Baltimore City since 1950. Therefore, when taken together with all the other evidence in this case, it is reasonable for me [to] conclude that the lead was present at 2308 Bryant Avenue when [appellant] lived there in 1988.

This information, taken with information in Answers to Interrogatories that the property contained chipping and peeling paint, leads me to conclude within a reasonable degree of medical probability that the premises 2308 Bryant Avenue contained lead-based paint during the entire time period [appellant] resided there. * * * ⁸³ In response, appellees reasserted that capillector or “finger-stick” tests that have not been confirmed by venous testing are not “an accepted method for the diagnosis of an elevated blood lead level.” Appellees also asserted that Bryant Avenue was abated as of July 31, 1979, and appellant failed to provide any evidence of the presence of lead-based paint within the property. Appellees reiterated that nothing in the record suggested that the paint at Bryant Avenue contained lead when appellant lived there, and the Arc test of Bryant Ave— exterior only—was conducted eighteen years after appellant moved from the property. Thus, appellees asserted that without “evidence to establish the presence of deteriorated, peeling or flaking lead-based paint within 2308 Bryant Avenue during the period of [appellant’s tenancy], [appellant’s] claims must fail as a matter of law. With regard to the Arc report, appellees asserted that the court should not consider it because it was not supported by an affidavit or other written statement under oath, as is required by Maryland Rule 2-501.

Appellees did not make any further arguments with respect to Dr. Klein’s testimony, or the affidavit that appellant attached to his response. In their motion for partial summary judgment, N.B.S. and S & S, joined by the Rochkinds, asserted that there existed no dispute of material fact with regard to appellant’s claims that appellees violated the CPA or otherwise engaged in negligent or intentional misrepresentation. Appellees asserted that Crosby’s deposition testimony that there was no chipping, peeling, or flaking paint at Bryant Avenue at the inception of her tenancy negated any CPA claim, and appellant’s claims of misrepresentation were based on a non-existent agreement. C. Heating On November 9, 2009, 16 the court held a hearing on the various motions.

At the hearing, the following transpired, in relevant part. ⁸⁴ At the start of the hearing, appellant’s counsel indicated to the court that he had received “replies to [appellant’s] response[s] to the various motions,” within “the last two business days.” Counsel asserted that “[s]ome of these replies, if not all of them, contain new evidence, new affidavits, new deposition testimony, none of which [appellant] has had the chance under the Maryland Rules—which gives us 15 days if hand-delivered and 18 days if mailed—to review, respond to, and provide a surreply if necessary.” According to counsel, the replies were, “in essence, new motions....” On that basis, counsel moved to “strike all the replies and refuse to consider them and the affidavits and deposition testimony and arguments contained therein” or, alternatively, to postpone the matter. The court responded that it would address appellant’s concern “as we go through motion by motion ... [and] we will take that as each motion comes up.” With respect to N.B.S.’s amended motion for summary judgment, which was made on the ground, inter alia, that there was no evidence that N.B.S. ever acted as the owner or manager of the Bryant Avenue property, N.B.S. asserted that appellant’s argument—that because N.B.S. borrowed $2,600,000 from Suburban Bank and S&S guaranteed the loan and secured its guaranty obligation by an indemnity deed of trust in property owned by S & S, including the Bryant Avenue property—was not “legally enough ... to confer either ownership or management responsibilities” to N.B.S. under the Baltimore City Housing Code. As a secondary argument, appellant requested that he be permitted to depose Stanley Rochkind on the issue “which was raised for the first time in” the summary judgment motion. After hearing arguments on the ownership issue, the court ruled as follows: [The request to depose Mr. Rochkind] is denied as unnecessary and outside of the discovery period.

I cannot find in any of the authorities discussing the definition of “owner” under the Baltimore City Code or on the face of the Baltimore City Code’s definition any way in which to rationally hold in N.B.S. as an owner on the property. ⁸⁵ The allegations or the assertions in the [appellant’s] opposition to the motion that Stanley Rochkind or N.B.S.— and/or N.B.S. and S&S Partnership are so closely related as to hold them in does not seem to be borne out by any of the applicable case authorities. I am going to grant the amended motion for summary judgment by N.B.S. to dismiss N.B.S. from those counts in which N.B.S. is asserted or alleged to have been an owner in 2308 Bryant at any time between 1978 and January of 2008. I make no decision as to Stanley Rochkind because the motion was not made on Stanley Rochkind’s behalf. My determination is limited to and focused on ...

N.B.S., Inc. Next, the court heard arguments on Runkles’ motion, joined by N.B.S., S&S and the Rochkinds, to strike the Arc report related to Bryant Avenue. Counsel for the Rochkinds argued that while appellant did file a request for entry upon land with the complaint, no testing was completed within 30 days of that request, and in fact was not completed until August 24, 2009. In the interim, S&S sold the property to another entity, which entity did not receive notice of the August 24, 2009 testing. Counsel asserted that the discovery deadline was August 10, 2009, and that appellant tested the property in violation of that deadline.

Counsel for S & S argued that S & S did not receive notice of the inspection either. Appellant’s counsel countered that discovery did not conclude until September 9, 2009, not August 10, 2009; thus, the Arc report was received by appellees within the discovery period. The following colloquy then ensued: THE COURT: Well, when—was anybody at [Arc] designated to testify about this report? APPELLANT’S COUNSEL: No later than the time the report was provided, which was within the discovery deadline. ⁸⁶ THE COURT: The current scheduling order anticipates that all experts were to be designated, including all information under 2-402(g)(l), by what date?

APPELLANT’S COUNSEL: I don’t have—that issue not having been raised by any party, Your Honor, I’m not prepared to answer that question. THE COURT: Well, the [c]ourt’s raising that concern, [appellant’s counsel]. The interrogatory answers about expert’s findings and opinions were to be provided according to the scheduling order no later than August 10th, 2009. When were the parties ever given notice about the factual information, the opinions, the findings that you expect [the expert] to testify about?

APPELLANT’S COUNSEL: I don’t know, Your Honor. THE COURT: All right. You may proceed to respond to the motion. APPELLANT’S COUNSEL: Your Honor, with regard to each of these [appellees], none of them have standing to raise the issues that they have raised.

The issue with regard to notice to the party who owns the property applies when the defendant is still-the owner of the property at issue. In this case— THE COURT: Tell me, what are you relying on? APPELLANT’S COUNSEL: The scheduling order provision which states that notice must be given to a defendant who is still the owner of the subject property prior to the time the testing is done. In this case, the current owner of the property is not a defendant to the case. [Counsel for S&S] stood up and said that S&S ... owns the property.

That’s not correct. SS Business Trust now owns the property at issue in this case. There was no obligation upon [appellant], pursuant to the scheduling order, with regard to this property, to provide notice to any of these [appellees]— THE COURT: [Appellees] weren’t—didn’t have a right to accompany the inspection? ⁸⁷ APPELLANT’S COUNSEL: Not under the language of the scheduling order. None of them still owned the property, Your Honor, and that’s what the— THE COURT: So why should I—why should I pay attention to the scheduling order language in that narrow frame and ignore the rest of the scheduling order about your obligations under 2-402(g)(l)?

APPELLANT’S COUNSEL: Well, I haven’t answered that question, Your Honor. My obligations under 2—402(g)(1) were not raised as a basis of the exclusion, if it even is appropriate, of any testimony from [an expert of] Arc Environmental. So for the [c]ourt, it’s not different. The [c]ourt raising this question to me now is no different than getting an affidavit from one of the [appellees] the day before the hearing and expecting me to come in and argue it.

THE COURT: Well, there are a bunch of other motions for summary judgment and/or to exclude [Arc] reports, whether as to Linden or as to Bryant, because of the late disclosure. APPELLANT’S COUNSEL: And that’s a different issue. THE COURT: So it’s relevant. Let me get an answer to my question about why I should view [appellant] as having limitless permission to conduct testing without notifying the [appellees].

APPELLANT’S COUNSEL: Because, simply put, the scheduling order requires notice to be given if a defendant is still the owner of the property. And with regard to this piece of property at issue here, Bryant Avenue, none of the defendants still owned the property. Therefore, [appellant was] not obligated under the scheduling order to provide notice to the [appellees] that the testing was to occur. When we obtained the test results, we provided them timely to the [appellees] within the scheduling deadline that’s set forth in the amended scheduling order.

And just for the record, Your Honor, a motion to enter upon land was filed with the complaint. And at that time, [S & S] still did own the subject property. ⁸⁸ * * * THE COURT: So it’s superfluous language that there was an expectation or an instruction that the testing was to be completed not later than four months prior to the close of discovery? APPELLANT’S COUNSEL: It’s not superfluous because it doesn’t apply. If any of these defendants still owned the property, you might have a point, but these defendants don’t.

THE COURT: Did you ... file an action to the new non-defendant owner looking for access to the property? * * * APPELLANT’S COUNSEL: No. THE COURT: The inspection took place only as to the exterior of the property? APPELLANT’S COUNSEL: That’s right, Your Honor. THE COURT: And your expert, Dr. Klein ... is relying in pertinent part on the findings of the exterior? APPELLANT: And other evidence, Your Honor.

THE COURT: And when was Dr. Klein provided the Bryant property [Arc] report? APPELLANT’S COUNSEL: On or about the same time the [appellees] were, Your Honor. THE COURT: When were [appellees] first given any notice of [appellant’s] intention to rely on [the Arc] report? APPELLANT’S COUNSEL: [I]t wasn’t raised [by appellees], there may have been a designation made some time prior to the August 24th report, but no later than their receipt of the August 24th report.

I don’t know for certain whether a letter or other designation went out concerning [Arc] prior to that time. But, again, it was not raised by them as a basis of their motion. ^ ^ ⁸⁹ After counsel for appellees argued their positions, the court noted that it would take the issue under advisement until hearing the other motions relating to the Arc reports. The court next heard arguments on Benjamin’s motion for summary judgment. Appellant’s counsel argued that neither affidavit attached to Benjamin’s reply to appellant’s response in opposition to Benjamin’s motion for summary judgment, i.e., the affidavit of Patrick Connor and the affidavit of Dr. Spodak, had been attached to Benjamin’s original motion for summary judgment; thus, appellant asserted that he was deprived of the opportunity to “review these new affidavits, to discuss with his experts whether or not there can be a counter-affidavit filed as if it were an original motion for summary judgment.

And the reply itself ... incorporates the testimony of [Patrick Connor and Dr. Spodak] to bolster [appellee’s] arguments.” The court responded, “Isn’t this a perfect example of how and why there’s a problem with the [Arc] test because the [appellees’] experts weren’t afforded an opportunity or any advance notice or knowledge about the test?” The following then transpired. APPELLANT’S COUNSEL: The [Arc] test is only one of the many pieces of evidence upon which Dr. Klein relies to base his opinion to a reasonable degree of medical probability that the [appellant] was exposed to lead in the [Linden Avenue] property. THE COURT: So your hope is that I exclude the reply, and I shouldn’t consider the responsive information because, somehow or other, the defendants knew or should have known that Klein was going to rely on the Arc report, and the [appellee’s] experts shouldn’t have an opportunity to respond to the [Arc] report or the Klein report? APPELLANT’S COUNSEL: No. What I’m saying, Your Honor, is if the [c]ourt is going to consider the new affidavits, which [appellant] has not seen before [a few days prior], the [c]ourt should treat it as a newly filed motion for summary judgment which, in essence, it is, and allow the ⁹⁰ [appellant] the time provided under the Maryland Rule to respond, if they can, with a counter-affidavit or legal arguments which address the new matters that were raised in the [appellee’s] reply.

THE COURT: How are they new matters? APPELLANT’S COUNSEL: They contain affidavits from experts that were not attached to the initial motion for judgment. THE COURT: What’s the earliest that these affidavits could have been generated by the [appellees]? APPELLANT’S COUNSEL: On or before the summary judgment deadline, Your Honor.

These affidavits don’t go just to the— THE COURT: When was Dr. Klein’s report or attachment to your opposition to the summary judgment first produced [to appellees]? APPELLANT’S COUNSEL: I don’t know when the report was first produced to the defendants. * if? * THE COURT: [Addressing Benjamin’s counsel] I want to hear first as to whether, why, and how I should receive and review and/or rely on the reply memoranda, especially as it includes an affidavit of Patrick Connor and an affidavit of Michael Spodak. BENJAMIN’S COUNSEL: Your Honor, first and foremost, the first time that I ever saw Dr. Klein’s affidavit was when I received [appellant’s] response to our initial summary judgment filing.... The earliest that I saw it ... would not have been before October ... 30th.... * * * [Appellant’s] reply to my motion contained a detailed affidavit from Dr. Klein with information specific to my property, 2238 Linden Avenue, that had never been provided to me in discovery by way of answers to interrogatories, by way of ⁹¹ affidavit, or anything, specifically relying upon the [Arc] ... report, as well as 1977 testing done on my property to establish that our property was a substantial factor.

The ... reply that I filed.... I don’t like filing these things at the last minute. The problems [sic] was ... that I only had about five days to get a response to Dr. Klein’s affidavit, which raised a whole host of issues that I had never seen. In fairness to [appellant’s counsel], I tried to get it to him with ample time Friday and over the weekend to review it.

It’s not a very long opposition____It merely attempts to point out certain arguments that we have that things that Dr. Klein was relying upon are simply improperly relied upon. THE COURT: Am I correct in understanding that you had never received a report from Dr. Klein? BENJAMIN’S COUNSEL: This is correct. And to date, Your Honor, I don’t believe we have received a report.

THE COURT: All right. And Dr. Klein was identified as an expert at some point by [appellant’s counsel]? BENJAMIN’S COUNSEL: I believe Dr. Klein was ... designated. * * * THE COURT: Did the answers to interrogatories provide any of the detail focused on the Linden Avenue address that appears to be presented in the affidavit that accompanies [appellant’s] response to your motion? BENJAMIN’S COUNSEL: Absolutely not....

THE COURT: All right. I am going to allow the reply to be filed and received, and I will review it in connection with this motion. I will consider in the circumstances whether [appellant’s] identify any need to engage in further discovery of Mr. Connor and/or Dr. Spodak, as I also consider whether, when, why, and how the [appellees] may require ⁹² further discovery from Dr. Klein, given the late arriving affidavit. In her motion for summary judgment, Benjamin also raised the argument that the Arc report pertaining to Linden Avenue should be stricken because it violated the scheduling order.

In that regard, Benjamin argued the following, in relevant part. BENJAMIN’S COUNSEL: [I]n our original filing we had raised the argument ... that the [Arc] report that was generated as a result of testing done on our property, which we received at or near the same time as the report that was generated for Bryant Avenue, was prepared and was the result of testing that was grossly in contravention of the scheduling order in this case____ And then [after Arc] generated a report, which Dr. Klein then relies upon in rendering opinions about the interior third-floor apartment where [appellant] allegedly lived in this case, which ... based on the arguments we’ve raised, is preposterous. But setting that to the side ... what we are requesting is simply that the report against Linden Avenue be stricken as we were never contacted. Subsequently, the court heard appellant’s arguments regarding Benjamin’s “reply,” which included the affidavits.

The following ensued. THE COURT: I need to understand when was the first time the [appellees] were fairly and reasonably apprised of the causation that [appellant’s] expected to present in this case? APPELLANT’S COUNSEL: [The appellees] did not raise at any time any argument of untimely named experts, insufficient expert designation, or any like argument. What they raised ... is that [appellant’s] cannot make their case. ⁹³ In reply to that, the [appellant’s] attached ... among other things, the affidavit of Dr. Klein....

What we have here ... even without the [Arc] report, is sufficient evidence from which a jury could conclude that the [appellant] was exposed to lead and injured at the [appellees’] property. Even if this [c]ourt were to accept the affidavits of Dr. Spodak and Mr. Connor, without giving the time for [appellant] to reply as required by the Maryland Rules, the worst the [appellant’s] position is is that there’s a dispute of fact for the jury to decide. Do they accept Dr. Klein’s interpretation of the facts, or do they wish to accept Dr. Spodak’s and Mr. Connor’s interpretation of the facts? All these affidavits do, if they’re accepted over [appellant’s] objection, is create a dispute of fact.

In reality, prior to the time the [appellees] filed their reply, the [appellant was] in the position where [he] had the evidence, and the [appellees] failed to raise a dispute of fact ... contrary to [that] position. But ... [w]e are here now with counter-affidavits from opposing experts who have different views of what the evidence says. The [appellees] have never argued to this [c]ourt any type of deficiencies in any of the designations that were provided to them by way of designations of experts to the [appellant]. They’re jumping on the bandwagon now because the [c]ourt raised it sua sponte, but that’s not the motion that the [appellant] was put to the test to respond to today.

And in response ... Dr. Klein, based upon his review of the testimony of Ms. Crosby, based upon his review of not just the [Arc] report, but of the earlier lead testing, based upon his review of the age of the property, which, again, was attached as an exhibit, based upon his review of the condition of the property while the [appellant] was living there, based upon his review of the fact that [appellant] had an elevated blood lead level.... [I]t’s certainly enough to overcome the [appellees’] motion[s] for summary judgment. ⁹⁴ Further ... if the [c]ourt is ... persuaded by [appellee’s] affidavits, certainly the [appellant] should have the opportunity to present those affidavits to his own experts and see what, if any, reply there may be. Because all the information upon which the [appellee’s] experts rely, every scintilla of it, was in their possession and could have been relied upon by them when they filed their motion for summary judgment in the first place. There is no reason why those affidavits could not have been included in their first motion for summary judgment.

Then, of course ... [appellant] would have [been] put to the test of having Dr. Klein reply to them then. THE COURT: Why ... would you feel compelled to produce the Klein affidavit in response to the motion then? APPELLANT’S COUNSEL: ... [0]ut of an abundance of caution. THE COURT: And when was the first time that the opinions that Dr. Klein gave in that affidavit get disclosed to the [appellees]?

APPELLANT’S COUNSEL: Again, Your Honor, as that issue as to the timeliness of the opinions—his opinions being provided to the [appellees] were not raised by anyone at any time for any reason, I’m not prepared to answer that question. I know I was presented with a motion for summary judgment ... and I replied accordingly. * * * THE COURT: And [Benjamin’s] Interrogatory Number 6 [asks appellant to identify] experts and set[ ] forth experts’ fields of expertise, the opinions to which they will testify, and the facts upon which they will base their respective opinions. And is____that the opinion and the facts provided as to Dr. Klein’s expert testimony that was provided to ... Benjamin? ⁹⁵ APPELLANT’S COUNSEL: I don’t know if that’s the only information.

Again, that issue was not raised by the [appellees]. THE COURT: All right. I’ll hear from [Benjamin’s counsel]. ... BENJAMIN’S COUNSEL: We have ... a very general statement of Dr. Klein’s opinions and answers to interrogatories ....

I didn’t know what Dr. Klein was going to say before he wrote his affidavit, and that is precisely the reason why we felt compelled to respond to it. ... I would also state ... that when you strip away the information that Dr. Klein relies upon, the [Arc] ... report, the 1977 testing, what he is left with is pure speculation.... * * * The court next heard arguments on Shpritz and S&S G.P.’s motion for summary judgment. The court first asked movants’ counsel to address whether and why it ought to consider the reply filed by them. The following transpired in that regard.

COUNSEL FOR SHPRITZ AND S&S G.P.: ... [T]he reply only addresses those arguments set forth in the opposition filed by [appellant]. There has been some questions as to when any of the parties received the more detailed causation evidence from Dr. Klein. And from my clients’ standpoint, the first date that we received that level of detail was within the opposition, was contained as an exhibit to the [appellant’s] opposition to my clients’ motion for summary judgment. So the reply merely addresses the issues that were set forth in Dr. Klein’s affidavit, and merely further supports our motion for summary judgment, but there aren’t any new ⁹⁶ issues.

There is no new deposition or affidavit or anything of that nature. * * * ... [The reply] was our only ability to respond to the affidavit filed by Dr. Klein. * * * And ... as the first more detailed information with regard to [appellant’s] causation evidence was received with the opposition, so we now have the [appellant’s] answer to interrogatory and then this affidavit from Dr. Klein. * * * THE COURT: All right. Given the responsive nature of the reply to the Klein affidavit and the causation assertions by [appellant’s] in opposition to the motion for summary judgment by [Shpritz] and S&S [G.P.], I will permit the reply and refer to it as appropriate. Counsel for Shpritz and S&S G.P. then proceeded to argue the merits of the motion for