City Homes, Inc. v. Hazelwood

WATTS, J. This case involves an action brought by Brittany Hazelwood, appellee, against City Homes, Inc., appellant, for damages allegedly caused by her exposure to lead paint at 4 North Stockton Street, Baltimore, Maryland (“4 North Stockton”), a residence owned and operated by appellant. Following an eight-day trial, a jury sitting in the Circuit Court for Baltimore City returned a verdict in favor of appellee for a total of $5,100,000, including $900,000 in economic damages for lost earning capacity and $4,200,000 in non-economic damages. On ⁶¹⁹ post-trial motion, the circuit court reduced the non-economic damages award to $350,000 in accordance with the cap on non-economic damages, thereby reducing the total award to $1,250,000. After the denial of other post-trial motions and imposition of sanctions in the amount of $10,135.45 against appellant and in the amount of $10,000 against appellant’s counsel, William C. Parler, Jr., appellant noted this appeal.

On appeal, appellant presents nine issues, which we consolidate and quote: I. Whether the [circuit] court committed legal error or abused its discretion when it[: (1) ] erroneously denied [a]ppellant’s motions to exclude the testimony of Dr. Eric Sundel despite Dr. Sundel’s complete lack of experience in treating patients with lead exposure, diagnosing injuries based on lead exposure, or determining the source of an alleged exposure ... [; and (2) ] disregarded, in violation of Maryland Rule 5-702, the fact that Dr. Sundel had no factual basis upon which to base his opinions?

II

Whether the [circuit] court committed legal error or abused its discretion in denying [a]ppellant’s motions to exclude Christopher White as an expert regarding the testing conducted by A[rc] Environmental given that Mr. White was not present for the testing, had limited experience with the equipment used, and was unable to operate the equipment when challenged?

III

Whether the [circuit] court committed legal error or abused its discretion when it allowed the reports of A[rc] Environmental into evidence despite the known flaws regarding the equipment used?

IV

Whether the [circuit] court committed legal error or abused its discretion when it denied [a]ppellant’s motion to amend or alter the jury verdict regarding economic damages despite the fact that there was no legal or factual basis for the award and the award was not reduced to present value as required by Maryland law? ⁶²⁰ V. Whether the [circuit] court committed legal error or abused its discretion when it denied [appellant’s motion to amend or alter the jury verdict and allowed the verdict to exceed the liability insurance amount carried by [appellant, a charitable organization with immunity under Maryland law?

VI

Whether the [circuit] court committed legal error or abused its discretion by violating [appellant’s rights under the Fourteenth Amendment of the United States Constitution and Article 24 of the Maryland Declaration of Rights when it ordered post-trial sanctions against [appellant in the amount of $10,135.45?

VII

Whether the [circuit] court committed legal error or abused its discretion when it ordered sanctions against [appellant’s counsel in the amount of $10,000 for failure to produce documents responsive to discovery requests in violation of [appellant’s counsel’s due process rights under the Fourteenth Amendment of the United States Constitution and Article 24 of the Maryland Declaration of Rights?

VIII

Whether the [circuit] court committed legal error or abused its discretion when it quashed [appellant’s subpoena to obtain the records of the jury commissioner and denied [appellant’s motion for new trial challenging the admittance of an unqualified and biased juror onto the panel? For the reasons set forth below, we answer questions I, VI, and VII in the affirmative. In light of our answer to question I, we do not address questions III, IV, V, or VIII, and briefly address question II for guidance. We vacate the circuit court’s imposition of sanctions against appellant in the amount of $10,135.45 and against William C. Parler, Jr. in the amount of $10,000.

We, therefore, reverse and remand the case for further proceedings consistent with this opinion. FACTUAL AND PROCEDURAL BACKGROUND Appellee was born November 23, 1990. Appellee resided at 4 North Stockton from July 1993 through 2000, where she was ⁶²¹ allegedly exposed to lead paint. Having purchased the property on December 30, 1986, appellant owned 4 North Stockton during the period in which appellee resided at the property.

Appellee’s blood-lead levels were tested and reported on seven separate occasions — on October 8, 1992, April 8, 1993, July 16, 1993, August 16, 1994, April 18, 1995, July 17, 1995, and November 3,1998. 1 (1) Pretrial Proceedings (a) Complaint On May 28, 2009, appellee filed a Complaint and Demand for Jury Trial in the Circuit Court for Baltimore City against appellant and Barry Mankowitz, the person who “managed, maintained, operated and controlled the property at 4 N. Stockton Street.” In the complaint, appellee alleged: (1) Negligence against appellant; (2) Unfair Trade Practices against appellant; (3) Negligence against Mankowitz; and (4) Unfair Trade Practices against Mankowitz. (b) Amended Complaint On August 6, 2010, appellee filed an Amended Complaint and Demand for Jury Trial against appellant, Mankowitz, Helen H. Hunt, and the Estate of Helen H. Hunt. In the amended complaint, appellee alleged that appellant owned property located at both 4 North Stockton and 6 North Stockton Street (“6 North Stockton”), and that Mankowitz managed both properties. Appellee alleged that Hunt owned and managed property located at 1606 Lemmon Street (“1606 Lemmon”).

As to appellee’s residency history, appellee alleged: from 1990 to 2000, she resided with her parents at 4 North Stock ⁶²² ton; 2 from 1990 to 1998, she visited 6 North Stockton, where her grandfather leased property; and from 1990 to 1998, she resided at 1606 Lemmon. 3 Appellee alleged that, at each of the three properties, she was exposed to “chipping, peeling, and flaking lead-based paint powder and dust[.]” In the amended complaint, appellee alleged: (1) Negligence against appellant concerning 4 North Stockton; (2) Unfair Trade Practices against appellant concerning 4 North Stockton; (3) Negligence against Mankowitz concerning 4 North Stockton; (4) Unfair Trade Practices against Mankowitz concerning 4 North Stockton; (5) Negligence against appellant concerning 6 North Stockton; (6) Unfair Trade Practices against appellant concerning 6 North Stockton; (7) Negligence against Mankowitz concerning 6 North Stockton; (8) Unfair Trade Practices against Mankowitz concerning 6 North Stockton; (9) Negligence against Hunt concerning 1606 Lemmon; (10) Unfair Trade Practices against Hunt concerning 1606 Lemmon; (11) Negligence against the Estate of Helen H. Hunt concerning 1606 Lemmon; and (12) Unfair Trade Practices against the Estate of Helen H. Hunt concerning 1606 Lemmon. 4 ⁶²³ (c) Designation of Experts: Dr. Eric Sundel and Christopher J. White On April 12, 2010, appellee’s counsel sent a letter to appellant’s counsel designating, inter alia, Dr. Eric Sundel and Christopher J. White as expert witnesses. As to Dr. Sundel, appellee stated: Dr. Sundel is a pediatrician who will review records and reports and is expected to render an opinion that the deficits of [appellee] are related to [her] exposure to lead paint at the [subject] properties, and that [s]he has permanent brain damage and a loss of Intelligence Quotient points as a result of that lead exposure. Dr. Sundel’s opinions are based upon his review of the medical, environmental and school records, Answers to Interrogatories, Deposition testimony, photographs and any other documents related to this case and also upon the numerous medical studies that link cognitive deficiencies and IQ loss to early childhood exposure. Further, Dr. Sundel relies upon his medical education, training and experience in reaching his conclusions.

As to White, appellee stated: Christopher J. White, A[rc] Environmental Inc., Program Manager.... Based upon review of the testing of the subject property, Mr. White will render an opinion regarding the presence of lead-based paint on the interior and exterior of the property at the time of testing, as well as the time [appellee] lived at the subject property. Mr. White’s conclusions will be based upon the Federal ban on the use of lead based paint in residential housing in 1978, the Baltimore City Housing Code, the age of the dwelling, the condition of the dwelling at the time of testing the results of the testing performed, his education, training and experience. ⁶²⁴ (d) Motion to Strike Arc Environmental Report On October 26, 2010, appellant filed a Motion to Strike Arc Environmental Report, alleging that appellee failed to provide notice of lead testing occurring at 4 North Stockton on August 19, 2010, in violation of a scheduling order issued by the circuit court. Appellant contended that it was deprived of the opportunity to attend the lead testing, and thereby “not afforded an opportunity to ascertain what equipment was used for the testing, ... [and] to confirm that testing protocols for the lead samples were adhered to[.]” Appellant requested that the circuit court strike a report prepared by White dated September 2, 2010, for 4 North Stockton titled “Lead-based Paint Survey Report (Exterior Only)” (the “September 2nd Report”).

White prepared the report based on a lead-based paint testing data sheet completed by Arc technician Timothy Wilton as a result of the August 19, 2010, testing. On November 12, 2010, appellant filed a Line withdrawing the motion to strike filed on October 26, 2010. On November 15, 2010, appellant filed a second Motion to Strike September 2, 2010 Arc Environmental Report, raising the same arguments made in the earlier motion. On November 30, 2010, appellee filed an opposition to the motion to strike the September 2nd Report, contending that the motion was moot as appellant permitted testing at 4 North Stockton “for the existence of lead paint on November 2, 2010[,] and [a] representative from [appellant’s Counsel was present for the interi- or and exterior lead tests of [4 North Stockton] on November 2, 2010.” Attached to the opposition was a report dated November 5, 2010, prepared by White-based on technician Timothy Wilton’s lead-based paint testing data sheet — for 4 North Stockton titled “Lead-based Paint Survey Report” (the “November 5th Report”).

In the November 5th Report, White reported: Lead-based paint was detected above the Maryland standard (> 0.7mg/cm 2 ) on the following components in this property: ⁶²⁵ Room Component front exterior basement door jamb; door jamb living room window casing; baseboard 1st floor hallway door casing and jamb; baseboard kitchen door casing and jamb; window sill lsh-2nd floor stairs stair stringer bathroom window casing 2nd floor hallway baseboard 2nd floor rear bedroom window casing; doorjamb 2nd floor front bedroom window casing; baseboard 2nd-3rd floor stairs stair stringer 3rd floor front bedroom window casing; closet door casing 3rd floor rear bedroom door jamb rear exterior door jamb In the November 5th Report, White stated that Wilson used an “LPA-1 x-ray fluorescence (‘XRF’) spectrum analyzer, serial # 1373, manufactured by Radiation Monitoring Devices, Inc. (RMD)” to perform the survey. White stated that “[c]alibration check readings [were conducted] to ensure that [the] XRF instrument [was] within acceptable precision and accuracy levels throughout the entire inspection process.” A handwritten note by Wilton stated that “a representative for defense counsel was present during testing.” On January 24, 2011, the circuit court issued an Order denying appellant’s motion to strike the September 2nd Report as moot. (e) Motions to Exclude Experts and for Summary Judgment On April 8, 2011, appellant and Mankowitz filed a “Motion to Exclude [Appellee]’s Experts and Motion for Summary Judgment.” As to Dr. Sundel, appellant and Mankowitz contended that Dr. Sundel “should be precluded from testifying as to the source of [appellee]’s alleged injuries or as to medical causation, as he lacks the qualifications and the factual basis to do so required by Md. Rule 5-702.” Appellant and Mankowitz argued that Dr. Sundel was not qualified to opine as to the source of appellee’s alleged lead exposure or the cause of appellee’s alleged injuries. Appellant and Mankowitz argued that there were numerous reasons why Dr. Sundel was not qualified to render an opinion as to the source of lead expo ⁶²⁶ sure, including that he was not a Maryland certified risk assessor, he had not conducted a full risk assessment, he had not examined or spoken with appellee, he “formulated his opinions solely based on the records selected and submitted to him by [appelleej’s counsel[,]” he had not published any articles concerning lead or been involved in any studies related to lead, he had treated only one patient suffering from lead exposure, and he lacked “the ability to determine whether declining lead levels are indicative of previously ingested lead being redistributed or newly ingested lead.” Appellant and Mankowitz maintained that Dr. Sundel was not qualified to testify as to the source of appellee’s injuries because he “did not have training or experience in determining whether lead exposure was the source of a patient’s injuries[,]” and did “not follow a reliable methodology when formulating his opinions regarding [appelleej’s IQ loss [because] he ‘extrapolate[d]’ from studies[.J” Appellant and Mankowitz asserted that Dr. Sundel lacked a “basic understanding of the relevant studies and surveys regarding lead exposure and medical causation.” Appellant and Mankowitz maintained that Dr. Sundel lacked a sufficient factual basis to opine that 4 North Stockton was a substantial contributing factor to appellee’s alleged injuries because his opinion was based solely on the “inadmissible testimony of [ ] White, and the fatally flawed and inadmissible Arc Environmental tests[,J” and the age of the property.

As to Arc Environmental, appellant and Mankowitz argued that the “reports [prepared] by Arc Environmental, and any testimony related to the reports, should be excluded as the ARC XRF test results are unreliable, unverifiable, and thus, inadmissible.” Appellant and Mankowitz asserted that, at a deposition taken on January 18, 2011, White testified that he has never been accepted as an expert by a trial court nor testified at any trial, and that Timothy Wilton — not White— conducted the lead testing at 4 North Stockton for Arc Environmental. As White did not perform and was not present for the testing at 4 North Stockton, appellant and Mankowitz asserted that White would be unable to offer an ⁶²⁷ opinion as to: (1) the condition of the equipment used; (2) the calibration of the XRF machine performed before and after testing at 4 North Stockton; (3) where the XRF machines were placed during the testing; or (4) the exact areas of the property that were tested. Appellant and Mankowitz alleged that, without knowing where the tests were performed at 4 North Stockton, they were unable to duplicate the tests “to ascertain the reliability of [appelleej’s test results.” Appellant and Mankowitz contended that the September 2nd and November 5th Reports were inadmissible for two reasons: (1) the XRF machines used “detect other sources of lead and, therefore, the results of the A[rc] Report are unreliable, unverifiable and unfairly prejudicial”; and (2) the Arc Environmental testing “was not a full risk assessment and thus, the results cannot be relied upon.” Specifically, appellant and Mankowitz alleged that the XRF machines tested more than the top layer of a given surface for lead, and instead “w[ould] test positive if there is lead within the substrate itself[,]” ie. “lead well beneath the surface of the exterior layer of paint produces a positive result, even if no lead paint existed on the surface.” 5 Appellant and Mankowitz contended that a full risk assessment — which includes tests of the water or soil at a property as well as a questionnaire completed by a plaintiffs family — was not performed, and that trial courts have excluded test results in circumstances where a full risk assessment is not conducted. Appellant and Mankowitz asserted that Arc Environmental performed only a “Lawyer 40 shot survey,” in which the inspector completes forty readings, with one test on each surface, and faded to perform the more comprehensive full risk assessment.

On April 26, 2011, appellee filed an Opposition to the motion to exclude and for summary judgment, contending that Dr. Sundel was qualified as an expert in pediatrics as a result of his knowledge, skill, experience, training, and education, and ⁶²⁸ that “his testimony is appropriate on the particular subject of lead poisoning.” Appellee argued that an expert’s knowledge may come from many sources, and that Dr. Sundel’s knowledge came “from his experiences and observations as a medical student and pediatrician[,] and his review of medical literature concerning lead paint poisoning.” Appellee asserted that because Dr. Sundel is an expert in pediatrics, it was permissible for him “to testify that 4 N[orth] Stockton [ ] was, more likely than not, a source of [her] exposure to lead paint and consequent injuries.” Appellee maintained that there was a sufficient factual basis for Dr. Sundel’s opinions that lead exposure occurred at 4 North Stockton and substantially contributed to her injuries. As to the September 2nd and November 5th Reports, and White’s expert testimony, appellee contended that the reports “are reliable and fall within a hearsay exception, and [ ] White is qualified to render opinions within his realm of expertise: lead inspection and lead risk assessment.” According to appellee, White is Timothy Wilton’s “direct supervisor at A[rc] Environmental[,]” the Program Manager at Arc Environmental, and a Maryland licensed and accredited Lead Inspector/Risk Assessor “qualified to interpret, review and explain to the jury how [ ] Wilton tested [4 North Stockton] and the results of said testing.” Appellee argued that XRF testing is reliable and verifiable and has been used for years, and that the reports were not inadmissible hearsay as they are records of regularly conducted business activity. On May 13, 2011, appellant and Mankowitz filed a Reply Memorandum in Support of Motion for Summary Judgment, reiterating the arguments for exclusion of the September 2nd Report, the November 5th Report, and Dr. Sundel’s and White’s testimony. On May 23, 2011, the circuit court held a hearing on the motion to exclude and for summary judgment.

On May 31, 2011, the circuit court issued an order denying the motion to exclude appellee’s experts “and/or exclude reports of Dr. Eric Sundel and Christopher White[,]” and the motion for summary judgment. ⁶²⁹ (f) Appellant’s Motion in Limine On May 26, 2011, appellant and Mankowitz began filing numerous pretrial motions, including a “Motion in Limine to Exclude [Appelleej’s Expert Dr. Eric Sundel and/or Request for Frye-Reed Hearing.” Appellant and Mankowitz argued that Dr. Sundel lacked the qualifications necessary to offer an opinion as to the source of appellee’s lead exposure and the cause of appellee’s alleged injuries. On May 27, 2011, appellant and Mankowitz filed a “Motion in Limine to Exclude [Appelleej’s Expert Arc En[ Jvironmental Services and its Designee, [ ] White,” arguing that the results of the September 2nd Report and November 5th Report and any testimony related thereto be ruled inadmissible. On June 7, 2011, appellant and Mankowitz filed a Line withdrawing the previously filed pretrial motions, including the motions in limine to exclude Dr. Sundel’s and White’s testimony and the September 2nd Report and November 5th Report, indicating that the motions would be “re-filed at the appropriate time on or before” trial. 6 On August 5, 2011, appellant re-filed the “Motion in Limine to Exclude [Appelleej’s Expert Arc En[ Jvironmental Services and its Designee, Christopher White” and “Motion in Limine to Exclude [Appelleej’s Expert Dr. Eric Sundel and/or Request for Frye-Reed Hearing.” On August 22, 2011, appellee filed an opposition to ⁶³⁰ the motions in limine to exclude Dr. Sundel, White, and the Arc Environmental Reports, arguing, in part, that appellant and Mankowitz had filed “identical motions on April 8, 2011, couched as motions for summary judgment[,]” which had already been denied by the circuit court following a hearing. On August 24, 2011, the circuit court held a pretrial motions hearing.

As to the motion in limine to exclude Dr. Sundel, the circuit court denied appellant’s request for a Frye-Reed hearing concerning Dr. Sundel’s testimony, and held the matter sub curia, ruling from the bench, in pertinent part, as follows: I will tell you at least as a preliminary matter that I’m not inclined to grant a Frye-Reed hearing because I’m not hearing any dispute consistent with Blackwell about an issue with the scientific evidence that [appellee] through [her] experts expect[s] to present. The theory, the process of addressing IQ loss measured against blood lead levels at particular times, at particular stages of life, the, the technique or the methodology of engaging in ... that exercise, that’s[] not new stuff that warrants a Frye-Reed, hearing .... It does appear to me that there’s a significant issue as to how Dr. Sundel[ ] himself in this case on the facts and on the published authorities applied the methodology ... and I remained concerned about Dr. Sundel[]’s rook[ie] status in applying or misapplying the methodology. I am as I said going to take the motion under advisement.

I’m letting you know that I don’t contemplate a ... Frye-Reed hearing in the circumstances____In subpart 1 of 5-702, in making a determination about the admissibility of an expert’s testimony, I shall determine whether the witness is qualified as an expert by knowledge, skill, experience, training or education. It’s troubling that [Dr.] Sundelf] is without experience, pediatric treatment experience in a lead paint context. It’s troubling when ... the testimony out of his deposition is, is parsed and he doesn’t come off sounding or reading very, very well and I’m not of a mind to just pass off the deposition as being a rook[ie]’s combination of mistakes or misstatements.

It’s a concern [to] me, but that ⁶³¹ word “or” in addressing his qualifications by knowledge, skill, experience, training or education and the more recent [ajppellate authorities give me great pause about striking rookie Sundel[ ] from testifying based on qualifications, but I’m going to take it under advisement and make sure that I get myself back up to speed[.J ... [A]s to the factual basis for his testimony, [ ] I’ll take that under advisement as well, but I’m not going to address causation issues i.e., the factual basis for causation and Sundel[ J’s prospective testimony about that until or unless I hear the trial testimony. I think it’s [ ] premature to make a decision on causation or causation related issues, linking exposure to lead at a particular address at a particular time and consequent injury and/or damages.... I am going to wait until I hear the factual premises and [ ] the reliance testimony by Dr. Sundel[ ] to revisit the motion[.J So, what you’ve got is ... that I’m denying the motion in pertinent part and have taken into, and taken under advisement, will call it the qualifications piece, 5-702 subpart 1 after I revisit current authorities. As to the motion in limine to exclude White’s testimony and the September 2nd Report and November 5th Report, the circuit court held the matters sub curia.

(2) Trial Proceedings From August 26, 2011, to September 1, 2011, and September 6, 2011, to September 8, 2011, the circuit court conducted a civil jury trial. (a) Mankowitz’s Testimony As a witness for appellee, Mankowitz, the president of appellant, testified that appellant purchased 4 North Stockton in 1986, and that appellee’s mother signed a lease for the property on July 6, 1993. Mankowitz testified that he was certified to operate an XRF machine, which tests for the presence of lead-based paint. According to Mankowitz, in the 1990s, Scientific Testing, a company owned by an individual named Tony Smelgas, conducted testing for lead at appellant’s ⁶³² properties.

Mankowitz testified that it was appellant’s practice to place test results in “a folder for that particular property.” According to Mankowtiz, if there was no document in a file of test results from Scientific Testing, then Scientific Testing did not conduct such testing. According to Mankowitz, appellant began participating in studies with the Kennedy Krieger Institute, and, at some point prior to 1993, appellant “tried to send all the children seven and under for their protection to Kennedy Krieger to have their blood drawn and see if they had any ... elevated lead in their blood.” Mankowitz testified that appellee was tested at Kennedy Krieger Institute on July 16, 1993, and, at that time, had a blood lead level of 16 |xg/dL. Mankowitz testified that, after appellant received the test results from Kennedy Krieger Institute, it did not inspect 4 North Stockton for lead hazards and did not move appellee or her family out of the property to remediate or repaint the house. Mankowitz testified that appellant depended on Kennedy Krieger Institute, “which was renowned in lead paint problems with young childrenf,] to give [them] the course of action.” (b) Appellee’s Testimony On her own behalf, appellee testified that she recalled the baseboards and areas around the windows and windowsills on the first and second floors at 4 North Stockton had “[c]racked up[,]” or chipping, paint.

Appellee testified that she remembered her mother complaining that the house at 4 North Stockton needed to be painted and she recalled her mother painting in the house after scraping the walls. Appellee acknowledged that, at deposition, she testified that, as a child, she moved back and forth a couple of times between 4 North Stockton and 1606 Lemmon, where she resided for a couple of months at a time. (c) Dr. Sundel’s Voir Dire and Testimony As a witness for appellee, during voir dire, Dr. Sundel testified that he was currently employed at the Baltimore-Washington Medical Center and served as chairman of the ⁶³³ Department of Pediatrics from 2004 until January 2011. Dr. Sundel testified that he is a board-certified pediatrician licensed to practice medicine in Maryland.

Dr. Sundel described his medical training as follows: he attended Boston University School of Medicine for four years, and completed a pediatric internship and pediatric residency — a total of three years — at Bayview Hospital Columbia Presbyterian Medical Center in New York City. Dr. Sundel testified as follows as to the evaluation and treatment of a child with lead poisoning during his internship and residency: So we were, it is a large children’s, baby’s hospital so there would be cases where a child would have a very elevated lead level and he would require something called chelation. Which is, chelation is using a special medicine to try to remove some of the lead from the body, especially to try to remove it from the brain. So we would have children who would be admitted to the hospital for intravenous chelation.

They would get an IV placed and then they would require several days of daily doses of a special medication to try to reduce the level of lead. Dr. Sundel testified that, after his internship and residency, he was an attending pediatrician for one year at Lincoln Hospital in New York City. After leaving Lincoln Hospital, Dr. Sundel completed a pediatric fellowship for two years at Sinai Hospital of Baltimore and Johns Hopkins Hospital in Baltimore. Dr. Sundel testified that the pediatric fellowship entailed teaching medical students and young doctors, and learning how to conduct clinical research.

Dr. Sundel’s curriculum vitae listed publications, which Dr. Sundel acknowledged did not concern the topic of childhood lead poisoning. Dr. Sundel testified, however, that as a pediatrician, he keeps current with childhood lead poisoning issues because, working in the pediatric emergency department, he needs to be able to understand the “different things that can cause” illnesses he tries to treat. Dr. Sundel explained that, for example, lead poisoning or lead toxicity can cause seizures, encephalatrophy, acute mental status changes, and abdominal pain. Dr. Sundel testified that he is familiar ⁶³⁴ with the Centers for Disease Control (the “CDC”) and its articles and documents concerning lead poisoning, including a 1991 article and a 2005 article, both entitled “Preventing Lead Poisoning in Young Children.” Dr. Sundel testified that he is familiar with the American Academy of Pediatrics (the “AAP”) and its statement concerning childhood lead poisoning.

Appellee’s counsel asked what information, if any, the CDC and AAP publications contained concerning a pediatrician making an inquiry into a source of lead exposure, and Dr. Sundel responded as follows: So one of the things that’s recommended to pediatricians is to try to review with parents environmental risk factors for lead exposure which again, for most children in the United States, is basically a function of living in older homes when lead-based paint was still very widely used and if the paint is in proper condition or not, if there’s deterioration of paint and whether there’s any chipping, or flaking, or peeling of paint because that’s, that’s in the United States the main way that young children are exposed to lead-based paint with their, what little kids do, hand-mouth, they put everything in their mouth. Dr. Sundel testified that he is familiar with Nelson’s Textbook on Pediatrics, which covers the issue of childhood lead poisoning and discusses potential sources of exposure to children. Dr. Sundel testified that, based on his review of the literature, as well as his training and experience, pediatricians are trained to inquire about the potential sources of lead exposure as follows: So it’s a number of questions about where ... the children spend their time within the house, outside of the home, whether they engage in sort of mouthing behaviors. So most young children, of course, put everything in their mouth.

Some young children put non-food particles in their mouth.... So that’s to be asked about and addressed. And then the ... condition [and] the age of the house. Appellee’s counsel asked Dr. Sundel if there was any significance to there being flaking and chipping paint in an older ⁶³⁵ house with a child who may have a tendency to put non-food particles in their mouth.

Dr. Sundel responded: So the older houses in the United States usually have lead-based paint. The overwhelming majority of them have lead-based paint in the interior of the home. If the paint is in, if it’s flaking, peeling, chipping, then it’s going to fall to the ground, it’s going to be in dust, it’s going to be in microscopic particles. It may not be visible, it might be visible.

And then little kids, what they do is they explore their environment. They crawl and they start to walk around and they touch everything. And they put then-hands in their mouths and they put their toys in their mouths and food. Obviously when they eat there’s a possibility that some of that flaking, chipping, peeling paint is going to fall into areas where food is stored.

Um, so that’s the main way that children are exposed to lead in the United States. Dr. Sundel acknowledged that he is not a certified lead risk assessor. Dr. Sundel testified that he has appeared and testified previously in court as an expert in a case involving child abuse, but conceded that he had never testified in court as an expert in a lead paint poisoning case. Thereafter, appellee’s counsel offered Dr. Sundel as an expert in the field of pediatrics, including childhood lead poisoning.

During voir dire cross-examination, Dr. Sundel admitted that he was not a psychologist or neuropsychologist, and that he does not administer IQ or achievement tests. Dr. Sundel acknowledged that his one instance of involvement with chelation therapy occurred in the mid-1980s when he was a first or second year resident, and that, since that time, he could not recall being involved with any children receiving chelation therapy. Appellant’s counsel questioned Dr. Sundel regarding deposition testimony, in which he admitted that, after being asked by appellee’s counsel to testify as an expert, he went back to the literature to “bone up,” but, when questioned, could not recall the articles he had read or reviewed. Dr. Sundel agreed that he did not have any accreditations or certifications related to lead inspection or lead assessments, ⁶³⁶ and that he had never been involved in any Baltimore City tests of drinking water and soil for lead nor involved in any Maryland Department of the Environment studies on lead in the soil.

Dr. Sundel acknowledged that he was not involved with the lead testing of 4 North Stockton, and had never visited the property. Dr. Sundel agreed that he was not aware of any peer reviewed medical or scientific literature stating that an expert may opine as to a source of lead ingestion by reviewing records, and that he had not published any articles related to lead, been involved in any studies related to lead, or delivered lectures on the topic of lead or lead ingestion. When asked by appellant’s counsel whether, during the course of his career as a pediatrician, he had ever treated a child for symptoms or problems related to lead ingestion where he “determined that the child was injured or had some issue related in any way to lead[,]” Dr. Sundel responded: “Not that I recall.” Dr. Sundel conceded that he had not taken a medical or nutritional history of appellee. According to Dr. Sundel, a differential diagnosis is “sort of trying to consider the different possible causes of a chief complaint, the reason that someone is sick.” Dr. Sundel testified that he could not remember having performed a differential diagnosis on a pediatric patient in which he had determined that the symptoms were due to lead ingestion.

After voir dire of Dr. Sundel, the jury was excused, and appellant’s counsel objected pursuant to Maryland Rule 5-702(1) and (3) to Dr. Sundel being accepted as an expert. The circuit court overruled the objection, ruling, in pertinent part, as follows: The [C]ourt [of Appeals] noted, and I’ll quote here, ... that “a witness is qualified to testify as an expert when he exhibits such a degree of knowledge as to make it appear that his opinion is of some value whether such knowledge has been gained from observation or from experience, standard books, maps, or recognized authority or any other reliable sources.” ⁶³⁷ I listened attentively ... and observed while I was listening to Dr. Sundel’s testimony about his familiarity with the cited authorities and I find that the ... Radman case’s reminder about the fundamentals of what it takes for me to exercise my discretion under [ ] Rule 5-702,1 am reminded, for example, when Radman says, ... that a witness may be competent to express an expert opinion if he is reasonably familiar with the subject under investigation regardless of whether the special knowledge is based upon professional training, observation, actual experience, or any combination of these factors. I revisited the so-called classic formulation on these points of concern in Radman, I also am reminded of the starting point under the Rule, as well as the articulation or explication in Radman, reminding us that what we’re talking about is whether and how the expert, the proffered expert has such special knowledge on the subject on which he’s to testify that he can give the jury assistance in solving a problem for which their equipment or average knowledge, their equipment of average knowledge is inadequate.

It is sufficient if the court is satisfied that the expert has in some way gained such experience in the matter as would entitle his evidence to credit. And of course ultimately, upon, even upon recognizing an expert for his opinion, the jury is ultimately going to be told that they can give such weight, or not, to the testimony of an expert. Give it as much value, or no value, as they in their experience determine appropriate. I am going to recognize, I am recognizing Dr. Sundel as an expert pediatrician, especially with the concentration or including the concentration on his research and experience in childhood lead paint because his testimony is reflective of his special knowledge derived not just, or not only, from his own experience but also from the experiments and reasoning of others, communicated by personal association or through books or other sources.

That’s out of the Radman case and of course you’ve heard me read on a daily basis subpart (1) of Rule 5-702 and the use of the or, the ⁶³⁸ disjunctive to inquire whether the witness is qualified as an expert by knowledge, skill, experience, training, or education. There are a couple of examples that were provided in Radman that I found useful to hark back on---- The witness was disqualified by the court because the witness could not qualify as an expert in the flooring trade as he had never previously laid a floor. A witness may qualify if he possesses special and sufficient knowledge regardless of whether such knowledge was obtained from study, observation or experience. A law professor ... may be an expert on trial procedure even though he has never tried a case....

That’s an example, frankly, that is repeated ofttimes by the appellate authorities.... Collectively, the cases and relying especially on Radman v. Harold, indicate that one doesn’t have to be a specialist or even have to have personal experience dealing with a particular type of injury or a medical treatment or a procedure in order to qualify as an expert under 5-702. It seems to me that it’s a broad standard for what [ ] constitutes “qualified” under 5-702. We are reminded of that by the Wantz case in particular as to whether and how I ought to be exercising my discretion.

I believe that Dr. Sundel’s experience as a pediatric hospitalist along with his own training as he described it here today in lead poisoning, in his reading, in his reliance on the authorities that were cited, renders him qualified to testify on the causal relationship between ingestion of lead and [appelleej’s alleged injuries. After the ruling, Dr. Sundel’s testimony commenced. Dr. Sundel testified that he was provided records concerning appellee — including birth records, Kennedy Krieger Institute medical records, Baltimore City Health Department medical and environmental records, Maryland Department of Health and Mental Hygiene medical records, Maryland Department of the Environment medical records, school records, the Arc ⁶³⁹ Environmental reports, a neuro-psychological report, the State Department of Assessment and Taxation records for the residences where appellee resided listing the year the homes were built, and appellee’s and her father’s deposition testimony — which he reviewed prior to issuing a written report on November 28, 2010. Dr. Sundel testified that he reviewed the various records regarding appellee’s blood lead levels, and that the levels remained elevated for several years.

Dr. Sundel testified that his review of the records indicated that appellee resided at and visited 4 North Stockton frequently and that this was significant because: tilt’s well recognized that the main source of lead for young children almost always is the primary residence where they either live or visit often. And then more than, so the residence, when its an older home, so for example homes built before 1960 something like two-thirds of them or three-quarters of them have lead-based paint. So a big risk is older homes. And then if there’s deterioration of the paint, that’s where there’s chipping, flaking, peeling, that’s the way young children can get access to that lead-based paint and then unfortunately get into trouble by ingesting it and ending up with an elevated blood lead level and then o[f] course the blood goes everywhere [in the body].

So it’s very important to know where the children, when they’re young, in the first few years of life, where they spent the majority of their time. Where they lived, where they visited. Appellee’s counsel asked the basis for Dr. Sundel’s opinion as to where appellee may have been exposed to lead, thus resulting in elevated blood lead levels. Dr. Sundel responded that “the main source of exposure for the majority of children in the United States is the residence where they live or spend a lot of time[,]” and that “[t]he older the home is, the more likely that lead-based paint was used.” Dr. Sundel testified that a home built in 1900, like the residence at 4 North Stockton, would have a “higher risk” than a home built twenty, forty, or sixty years later.

Dr. Sundel testified that “we know ... there was a lot of lead-based paint at 4 North ⁶⁴⁰ Stockton [ ] because [of] the ARC study ... [and] that there are multiple areas [ ] where the interior of the home seems not to have been in a good condition shortly after [appellee] moved into 4 North Stockton [ ].” Dr. Sundel opined to a reasonable degree of medical probability that 4 North Stockton was the location where appellee was exposed to flaking and chipping lead-based paint. Dr. Sundel testified that he reviewed appellee’s school records and that appellee “academically [ ] had a lot of trouble.” Dr. Sundel explained that elevated blood lead levels “cause loss of IQ points” as well as behavioral problems, such as hyperactivity, attention deficit disorder with hyperactivity, or aggressiveness. Dr. Sundel testified that appellee’s IQ in verbal and non-verbal areas was “lower than one would wish.” Dr. Sundel offered the opinion that appellee sustained an IQ loss of seven to ten IQ points as a result of her elevated blood lead levels. When asked by appellee’s counsel why he provided a range of seven to ten IQ points, Dr. Sundel testified that “there are many studies that show loss of IQ points with lead[,]” with one study showing that children whose blood lead levels were less than ten micrograms per deciliter sustained an IQ loss of seven IQ points and another study showing that children with blood lead levels above ten micrograms per deciliter sustained an IQ loss of more IQ points, “somewhere around one [ ] to four, one to five, something in that range[,]” for each additional ten micrograms per deciliter.

Dr. Sundel testified that, academically, appellee had difficulties with certain subjects and with other school performance issues, such as “with listening comprehension, with attending to task, with coping skills, with ability to handle frustration, ability to follow directions, [and] ability to follow classroom and school rules.” Dr. Sundel opined to a reasonable degree of medical probability that lead exposure at 4 North Stockton was a substantial contributing factor to injuries appellee sustained, which he described as “[cjognitively she sustained loss of IQ points. Behaviorally, she sustained damage in terms ... of aggressiveness, in terms of externalizing behaviors in terms of hyperactivity.” Dr. Sundel offered the opinion that ⁶⁴¹ lead exposure was a substantial contributing factor to appellee’s “brain impairment[.]” Dr. Sundel opined that “the permanent injuries” appellee sustained resulted from exposure to flaking, chipping, lead-based paint at 4 North Stockton. On cross-examination, Dr. Sundel testified that he was first contacted by appellee’s counsel by letter dated November 15, 2010, when he was asked to formulate opinions based on documents sent to him. Appellant’s counsel questioned Dr. Sundel as to how appellee’s counsel designated him as an expert and stated what his opinion would be in a letter dated April 12, 2010, months before he was contacted and received any records related to the case.

Dr. Sundel responded that he did “[n]ot really” know how that occurred. Dr. Sundel admitted that appellee’s case was his first lead paint case and the first time he ever had his deposition taken. Dr. Sundel acknowledged that, prior to trial, he had no contact with appellee or her family, and had not examined appellee. Dr. Sundel agreed that he was not provided with a household questionnaire form completed by appellee’s family and that he never requested that appellee or her family complete such a questionnaire form.

Dr. Sundel conceded that he never met with appellee to conduct a medical history nor conducted soil lead tests at 4 North Stockton. Dr. Sundel testified that he never met with appellee’s family to inspect the residences she visited or resided in or to ask questions as to whether appellee had access to or chewed on woodwork, furniture, and toys as a child. Dr. Sundel admitted he had never administered an IQ test, and acknowledged that, during his deposition, he testified that appellee has lost three to five IQ points or four to ten IQ points. Dr. Sundel acknowledged that he does not know how to score an IQ test, and responded that he did not know whether the standard of error of measurement of the Weschler IQ test was plus or minus three points.

Appellant’s counsel asked Dr. Sundel whether he would agree that, as a doctor looking at the results of a neuropsychological testing of appellee without knowing the child’s history, he could not tell ⁶⁴² from the test performance whether the child had a history of having elevated blood lead levels. Dr. Sundel agreed. (d) White’s Yoir Dire and Testimony and Admission of Arc Environmental Reports As a witness for appellee, White testified that he is the program manager for the lead-based paint group at Arc Environmental, which he described as an environmental consulting firm that, among other things, conducts lead surveys, mold testing, asbestos sampling, and indoor air quality testing. White testified that he is a licensed lead-based paint assessor in Maryland and several other jurisdictions, and has received training on the operation of XRF machines.

White described the XRF machine as follows: [T]he XRF is a handheld device that’s placed up against any painted component. There is a triggering mechanism that’s pulled which then emits gamma radiation into the particular component that we’re sampling. That gamma radiation excited the electrons and produces a numerical reading on the screen of the device, which is a concentration of lead on that particular component. Wliite testified that he has used the XRF machine previously in conducting several hundred lead surveys.

Wfiiite testified that he prepares reports describing the lead surveys. Appellee’s counsel moved to have the circuit court accept White as an expert in lead risk assessment, and the parties voir dired White as to his qualifications. Out of the presence of the jury, appellant’s counsel argued that WTiite not be permitted to testify as an expert because he was not qualified to offer an opinion, did not conduct the testing, lead risk assessment or lead inspection of 4 North Stockton, was not present during the testing, and had no personal knowledge of the testing. The circuit court ruled from the bench: Mr. White’s perspective testimony is on a very thin edge as to whether his testimony about the presence in 2010 of lead-based paint in the house would assist the jury to understand the evidence or to determine whether in the 1990s there was a lead paint hazard.

But we haven’t heard his substantive ⁶⁴³ testimony on that subject____Right now I am compelled to find that [White] is qualified to offer an opinion as to lead risk assessment and/or lead inspection within the meaning of the CRF and/or HUD because ... White acknowledged his familiarity and his appreciation for what those regulations were, what they were intended to do and how they were normally expected to be applied or in what circumstances they were expected to be applied. He also testified on direct examination as to the certifications and licensures, his training, his supervisory responsibilities. I am prepared, and I do find that Mr. White is qualified as an expert in the field of lead risk assessment and/or lead inspection within the meaning of, and only within the meaning of, Rule 5-702(1).

I have made no determination at this point in time whether the expert testimony that he’s engaged to offer is appropriate, and I have made no determination as to whether a sufficient factual basis exists to support his testimony. The jury returned, and the circuit court announced that White had been accepted as an expert in lead risk assessment and lead inspection. White testified that Wilton conducted lead testing at 4 North Stockton on two separate occasions. White explained that the September 2nd Report contained the lead test results from an exterior testing conducted on August 19, 2010.

Appellee’s counsel asked White to explain how Wilton used the XRF machine and White responded: Sure, upon his arrival at the site, he would perform calibration checks with the machine to ensure that it is operating properly. He would take three readings from a known standard that we refer to that has a known concentration of lead. As long as those three readings fall within the acceptable range that’s been described for this machine, we can assume that the machine is operating properly. He would have then proceeded to test, again in this case since it was only the exterior, any exterior painted components that were accessible to him at that time.

Upon ⁶⁴⁴ completion of that testing he would again calibrate the machine in the same manner he did the first time. The following exchange occurred when appellee’s counsel asked White questions about the procedures Wilton used when conducting the August 19, 2010, lead test: [APPELLEE’S COUNSEL]: And then with regards to [Wilton’s] training, how does he record the information that the machine reads with regards to any surfaces? [WHITE]: We utilize what we refer to as a lead-based paint testing data sheet that is included with our report. The data sheet includes all of the essential information as to which component was tested and the reading itself. On each line, as Mr. Wilton performs the testing, he records that information. [APPELLEE’S COUNSEL]: And in Plaintiffs Exhibit No. 14 [the September 2nd Report] is the information that Mr. Wilton collected in the report? [WHITE]: Yes, it is. [APPELLEE’S COUNSEL]: And does Mr. Wilton also take photographs at the time[?] [WHITE]: Yes, he does ... to provide a current look of the property conditions while we’re there performing the testing. [APPELLEE’S COUNSEL]: Is the job or Mr. Wilton or ARC Environmental to determine whether there are any lead-based hazards present at the time of the testing in August of 2010? [WHITE]: Again, we would simply be looking for the presence or absence of lead-based paint. [APPELLEE’S COUNSEL]: And what happens then when Mr. Wilton returns to the office after conducting the test? [WHITE]: He would provide me with the photographs and the data sheet that he completed and then I would complete the report and it would be issued. [APPELLEE’S COUNSEL]: Do you review the information? ⁶⁴⁵ [WHITE]: Ido.

White testified that the Scitec MAP4 machine was used to conduct lead testing on August 19, 2010, and that he was familiar with the machine and had been trained on the use of the machine. White testified that Wilton used the Scitec MAP4 machine by placing it against the component he was testing, pulling the trigger on the machine, and waiting for the machine to provide a digital reading. According to White, at the time of the August 19, 2010, lead testing, a positive lead reading was anything greater than 0.7 milligrams per centimeter squared, and that three of the nine readings taken on August 19, 2010, were classified as positive — the basement door jamb, the first floor door jamb, and the first floor door casing. As to the November 5th Report, White testified that Wilton conducted lead testing of the interior and exterior of 4 North Stockton on November 2, 2010, using an RMD LPA-1 machine.

According to White, Wilton took forty readings during the testing on November 2, 2010. White described the calibration procedure for the RMD LPA-1 machine, and testified that the calibration readings were described in the November 5th Report. White testified that, according to the November 5th Report, twenty-two surfaces were found to contain lead-based paint, including the kitchen door casing and jamb, the kitchen window sill, the stair stringer from the first floor to the second floor, and the second floor hallway baseboard. As to the presence of lead paint on surfaces at 4 North Stockton, appellee’s counsel asked White for his opinion in the following exchange: [APPELLEE’S COUNSEL]: Mr. White, based on your training, knowledge, and experience and your review of the two ARC reports of the testing that Mr. Wilton did at 4 North Stockton [ ], do you have an opinion within a reasonable degree of scientific probability as to whether 4 North Stockton [] had lead paint on its wood surfaces in 2010? [WHITE]: I would have the opinion to a reasonable degree of scientific probability that the components that we identi ⁶⁴⁶ fied on the interior of the property contained lead-based paint from at least, from when we performed the testing in 2010, from at least 1966 when lead-based paint was banned for interior use in the City of Baltimore.

In regards to the exterior components, I would again share the same opinion that, I would feel that lead-based paint was present on those components from at least 1978, when the use of lead-based paint was federally banned. The circuit court overruled appellant’s counsel’s objection and motion to strike White’s testimony regarding lead-based paint existing prior to 2010. White testified that, had additional readings been taken and tested negative, his opinion would remain unchanged “as it pertains to the components that we did find to be positive.” During cross-examination, appellant’s counsel requested that White set up the XRF machines — the Scitec MAP4 and the RMD LPA-1 — in the mode in which they were used when Wilton performed the testing at 4 North Stockton. Appellant’s counsel asked that White demonstrate how the Scitec MAP4 is calibrated, and that after calibrating the machine, he take a test reading of a courtroom wall.

As to the Scitec MAP4 machine, appellant’s counsel asked whether the machine would detect lead “regardless of whether the lead is in the outermost layer of the paint or all the way down to the bottom layer of many layers of paint[.]” White responded “yes[,]” and testified “that’s the standard for any XRF.” White acknowledged that it is possible that the XRF could give a positive reading for lead of a door that had been painted with lead-based paint but subsequently painted with ten coats of unleaded paint. During the in-court demonstration, White had difficulty switching the Scitec MAP4 machine to the proper mode, stating: “I’m just trying to maneuver and it’s giving me a problem.” White testified that the RMD LPA-1 machine has different performance characteristics, although the calibration procedure is the same as that of the Scitec MAP4 machine. White performed three calibration testings with the RMD ⁶⁴⁷ LPA-1 machine. With the jury excused, White was asked to perform a test reading of a courtroom wall using the RMD LPA-1 machine. 7 At the beginning of the next day of trial, appellee’s counsel moved to admit Plaintiffs Exhibit Nos. 14 and 15, the September 2nd Report and the November 5th Report.

The circuit court admitted the reports into evidence over appellant’s objection and ruled that White’s expert testimony was admissible, stating as follows: I’ve read both reports____The “overview” closed quote of each report can be read as inconsistent with Mr. White’s testimony even contradictory to cited standards whether it’s COMAR or in the CFR. Nevertheless, that observation goes to the weight of the evidence and not the admissibility of Mr. White’s opinions or the admissibility of the reports. [ ] I have [ ] referred to and focused on and will address [ ] why I have addressed [Maryland Rule] 5 — 702[ ], allowing Mr. White to testify on XRF testing procedures generally as an expert on the subject and [Maryland Rule] 5-703 allowing him to testify as to the testing procedures specific as to 4 N. Stockton [ ] especially as the testing procedures were record on the reports themselves. [D]rawing on 5-703(a), I believe and find that Mr. White as an expert witness may interpret and draw his conclusions from reports prepared by Mr. ... Wilton [] so long as the reliance on those reports is reasonable.... I’ve reviewed the authorities as to whether, why and how to permit Mr. White’s testimony to proceed in front of the jury based on those reports and relying on those reports[.] ...

I also referred to and I will quote from Consolidated Mechanic [Mechanical ] Contractors v. Ball, ... 263 Md. 328 [ 283 A.2d 154 ] (1971) decision of the Court of Appeals and here’s the quote, “Although an expert witness must base his opinions on facts in evidence, those facts need not be ascertained by him through physical examination of a patient, but rather maybe facts contained in ⁶⁴⁸ reports or examinations by third parties.” I find that it was reasonable and apt and appropriate for White to rely on the reports by Mr. Wilton in this case. “An expert may extrapolate from data and facts contained in other’s reports and studies in order to form his expert opinion just as with any other facts relied on by an expert in forming his opinion, the facts contained in third party reports or examinations must be legally sufficient to sustain the opinion of the expert.” That’s coming out of the Keene Corp. v. Hall decision that I already cited.... And, of course, in addition to referring to 5-703(a), I have referred to Maryland Rule 5-702. I’ve already quoted that rule at length and ... am now focusing on subparts 2 and 3, the appropriateness of White’s testimony and the [ ] sufficiency of the factual basis, namely the reports to support his expert testimony. As to the scope of White’s testimony concerning the XRF testimony — White regularly conducted XRF testing, testing and/or he is trained to do so as part of his job duties with ARC. 5-702 allows White to testify as to how the XRF testing is conducted generally and how an XRF machine is usually operated.

That testimony is relevant and probative [] because a fact finder could infer that the XRF testing conducted at 4 N. Stockton was conducted in the usual [ ] manner. I’ve already found White to be qualified to testify on XRF testing by virtue of his training or experience. As to appropriateness of his testimony and his reliance on the reports, I find that the testimony indeed may be helpful to the jury because it would allow them to assess the strengths and weaknesses of XRF testing generally which is something not within the knowledge of lay people and the jury may also infer that the XRF testing conducted at 4 N. Stockton comported with the usual standards of XRF testing notwithstanding the doubts inflicted upon Mr. White’s testimony upon cross-examination. [R]eferring to the factual basis for Mr. White’s testimony, his experience with XRF testing provides that factual basis together with the reports. The ARC Reports generated, Exhibit Nos. 14 and 15 do contain a record of how the testing at 4 N. Stockton was ⁶⁴⁹ conducted.

Rule 5-703 allows Mr. White to disclose and explain what that record indicates. The reports can be disclosed to the jury under 5-703(b). I’m relying on Milton Company case as well Brown v. Daniel Realty at 409 Md. 565 [ 976 A.2d 300 ] (2009) decision by the Court of Appeals. I am admitting Exhibit Nos. 14 and 15 for reasons stated under both rules.

At the conclusion of White’s testimony, appellant’s counsel moved to strike the testimony, arguing that White had never been trained or certified in the operation of the Scitec MAP4 machine, and could not operate the machine in court, and that White had received minimal manufacturer training on the RMD LPA-1 in 2010. Appellant’s counsel contended that the 40 shot surveys conducted by Arc Environmental do not constitute a lead risk assessment, and that the existence of lead paint is not violative of the city housing code or any state statute or regulation. Appellant’s counsel asserted that White’s testimony was not probative and that White was not qualified to testify. Appellant’s counsel maintained that the Arc Environmental Reports were unverifiable as White was unable to testify as to the location of the readings.

The circuit court denied the motion to strike White’s testimony, ruling: In the wake of [ ] cross-examination, there may well be jurors who are less than enthusiastic and less than impressed with the recognition of the expert qualifications of Mr. White, but the problems with Mr. White’s testimony do go to the weight of the evidence as opposed to his qualifications and as opposed to the appropriateness of his testimony and addressing the existence in certain locations of lead or lead paint in the ... house and the outside of the house. His opinions were quite limited as to the presence of lead period and his qualifications make that determination unaffected by the reliability factors that have been pointed out by [appellant’s counsel]. Again, the issues that [appellant’s counsel] raises seem to me to relate to the weight of the evidence as opposed to his underlying qualifications. I will deny the motion to strike Mr. White’s testimony. ⁶⁵⁰ (e) Patrick Connor’s Testimony As a witness for appellant, Patrick Connor, an environmental consultant and licensed lead risk assessor, testified that he is the president of a company known as Connor Environmental, which conducts environmental engineering and, specifically, forensic work in the area of lead-based paint.

Connor testified that he is an accredited instructor for the State of Maryland for lead-based paint inspectors and a lead risk assessor. Connor was accepted as an expert in the field of lead risk assessment and identifying lead hazards. Connor testified that a full risk assessment consists of an “on-site investigation to determine the existence, nature, severity and location of lead-based paint hazards and the provision of a report by the individual or the firm conducting the risk assessment explaining the results of the investigation and options for reducing lead-based paint hazards.” Connor described the process of conducting a lead-based paint inspection, and testified that a lead-based paint inspection differs from a full risk assessment because the inspection does not identify lead-based paint hazards and “typically does not have [ ] the interview that would occur because you’re really just looking for the presence or absence of lead-based paint.” Connor testified that the Arc Environmental reports were lead-paint surveys, not inspections or full risk assessments. According to Connor, the Niton machine has a depth indicator and can detect which layer or depth of the layer of lead-based paint.

Connor opined that the Arc Environmental reports were unreliable because of the “lack of proper calibration checking, the lack of quality control, and a lack of evaluating the quality of the XRF test data.” The following exchange occurred between appellee’s counsel and Connor: [APPELLEE’S COUNSEL]: In this beginning of this trial Mr. Mankowitz said he believed there was lead paint in this house in 1993, do you agree with that? ... Do you agree with the opinion that Mr. Mankowitz held ... that in 1993 ⁶⁵¹ this house, 4 North Stockton, contained lead-based paint, based on everything you’ve seen in this case? [CONNOR]: The only thing I recall — may I look at my notes? ... A prior — well, it’s close. December 29th, 1993, I have in my notes that there was a Kennedy Krieger Institute Inspection, but I have it as, “No inspector, no instrument, not calibration check,” and they — that report identified positive locations.

So I don’t know if that was the foundation of [Mankowitz’s] knowledge. I mean — I don’t know what — I don’t know why he would have known, but I don’t know. (Emphasis added). Connor testified that he had “no reliable evidence of lead-based paint at 4 North Stockton.” (f) The December 29, 1993, Report At the conclusion of Connor’s testimony, appellee’s counsel requested a bench conference, and the following occurred: [APPELLEE’S COUNSEL]: During the testimony of Mr. Connor, he revealed that he might have a document that reflects positive lead tests back in 1993 of 4 North Stockton.

He even made reference that there was a Kennedy Krieger record. I believe this would have — based on just on my knowledge and experience — and I think that came having to do with an agreement that Mr. Mankowitz had with Kennedy Krieger, so it appears to be a document of a lead test that hasn’t been produced. We weren’t aware of it. We would ask — we would ask that Mr. Connor be directed, obviously outside of the presence of the jury, I’m not asking that, to obtain that document and provide it to both counsel and the Court as soon as possible because it may be relevant to a future motion after the trial’s over.

THE COURT: Do you have the documents that were provided — do you have counsel’s copies of the documents provided to this witness? [APPELLANT’S COUNSEL]: We may have counsel’s copies. I know that I was personally the person that gave ⁶⁵² everyone all of the records. Pat Connor — my recollection was that they were all subpoenaed records, but we might be able — I don’t [know] whether or not we still have a copy of that CD, but I can certainly check with the staff. THE COURT: All right.

During what ever passes for a lunch break you can make a call to inquire. Pm going to rely on counsel to produce the information knowing that they can get in contact with this witness. I’m not going to order the witness to produce the document. Appellee’s counsel informed the circuit court that appellant’s counsel did not have a copy of the December 29, 1993, report-referenced by Connor, and appellee had been prejudiced by the failure to produce the document.

The circuit court advised that it would appreciate appellant’s counsel’s “best efforts to get the materials to [appellee’s counsel] as quickly as possible[,]” and stated that “the motion for sanctions which remains open and under advisement is necessarily going to be the subject of briefing.” After the jury had begun deliberating but before a verdict was returned, the circuit court received a letter from Parler, appellant’s counsel, via facsimile, stating as follows: We have reviewed our files and have found the document referenced by Patrick Connor in testimony. This Kennedy Krieger Institute document was contained in a City Homes file. We have confirmed that it was not produced to [appellee] in response to [appellee]’s Request for Production of Documents to [ ] Mankowitz, although it appears that it was not formally requested. I have attached a copy of the subject document as well as a copy of Barry Mankowitz’s Response to Request for Production of Documents for your review.

Both [appellant] and [appellee] were working with the universe of documents which had been produced in the Response to Request for Production of Documents as the case documents. While I was unaware that this record existed in my computer files, I believe this record would have helped [appellant] because it shows no peeling lead- ⁶⁵³ based paint, with the exception of one area on a window jam (pg. 1, under the heading “Window”). I wish to meet with the [circuit c]ourt as soon as possible to discuss this matter. Attached to the letter, Parler provided an eleven-page report titled “Kennedy Krieger Institute Spectrum Analyzer” for 4 North Stockton dated December 29, 1993.

The report indicates that lead was detected on multiple surfaces, labeled as being in an “intact” condition, throughout 4 North Stockton, including on door frames, windows, and baseboards. One window jamb that was “non-intact” tested positive for lead. On September 8, 2011, prior to the return of a verdict, the circuit court briefly addressed the facsimile, noting that the Kennedy Krieger report “appear[ed] to be a very thorough analysis room by room on December 29th, 1993, and there’s some suggestion in the face of Mr. Parler’s letter that this document wasn’t formally requested by [appellee]. I just can’t imagine ... any scenario where a study of ... 4 North Stockton and the identification of lead content in any of the rooms and windows and doors in December of 1993 would not have been a critically relevant document.” (g) Jury Verdict The jury returned a verdict in favor of appellee, answering “yes” to the following four questions: (l)“[D]o you find that there was flaking, loose, or peeling paint at 4 North Stockton [] at the beginning of [appellee’s mother’s] lease in July 1993[?]”; (2) “Do you find that flaking, loose, or peeling paint at the beginning of the lease in July 1993 at 4 North Stockton [] caused lead paint poisoning to [appellee]?”; (3) “Do you find that [appellant] was negligent as owner or operator of 4 North Stockton [ ] when [appellee] resided at or visited that address[?]”; and “(4) Do you find that [appellee] sustained injury caused by [appellant’s negligence at 4 North Stockton [ ] when she resided at or visited that address[?]” The jury awarded $5,100,000 in damages to appellee, including $900,000 in economic damages for lost earning capacity and $4,200,000 in non-economic damages. ⁶⁵⁴ (3) Post-Trial Proceedings (a) Motion for New Trial or to Alter or Amend the Judgment On September 14, 2011, appellant filed a “Motion for a New Trial or in the Alternative, Motion to Alter or Amend the Judgment,” requesting a new trial because Dr. Sundel “was neither qualified nor had a factual basis for his testimony” as to the source of appellee’s lead exposure, and Dr. Sundel was not qualified to testify as to the source of appellee’s alleged injuries, ie. what caused appellee’s injuries.

In addition, appellant argued that: (1) the non-economic damages award must be reduced from $4,200,000 to $350,000 pursuant to the applicable statutory cap on non-economic damages; (2) the economic damages award must be reduced from $900,000 to $461,934, as Dr. Lurito testified that the present value of appellee’s future lost earning capacity and appellee only sought future lost earning capacity in the amount of $461,934; and (3) its total liability as a charitable organization could not exceed $1,000,000, the limit of its liability insurance policy. On September 19, 2011, appellant filed a “Motion for New Trial — Supplemental Submission,” asserting that it was deprived of a fair trial because Juror Number Four was not qualified to serve on the jury as a result of prior criminal convictions. On September 21, 2011, appellant filed a “Second Supplemental Submission in Support of [Its] Motion for New Trial.” In a footnote in the second supplemental submission, appellant noted that it had “issued a subpoena to the [c]ircuit [c]ourt [ ] Jury Commissioner for the executed questionnaire[ ] for [J]uror [Number Four.]” On September 29, 2011, appellant filed a “Motion for New Trial — Third Supplemental Submission or, in the Alternative, Motion for New Trial Pursuant to Md. Rule 2 — 535(c),” alleging that: “Beyond [Juror Number Four]’s statutory lack of qualifications to serve as a juror, the nature of his convictions, all drug related, rendered him both disqualified and inherently biased to consider issues related to [appellee]’s impairment due to drug use or abuse.” ⁶⁵⁵ On September 30, 2011, appellee filed an opposition to the motion for new trial. Appellee contended that the issue of Dr. Sundel’s testimony was not appropriately raised in a motion for new trial as the issue had been raised and decided in connection with pretrial motions for summary judgment and in limine.

On the merits, appellee contended that Dr. Sundel was qualified to testify as an expert in pediatrics and childhood lead poisoning, and that there was a strong factual basis underpinning his opinions. On October 24, 2011, appellant filed a Reply in support of its motion for new trial. (b) Motion for Judgment Notwithstanding the Verdict On September 16, 2011, appellant filed Motion for Judgment Notwithstanding the Verdict, reiterating that Dr. Sundel was not qualified to testify as to the source of lead exposure or causation, and that he did not have an adequate factual basis for his testimony. Appellant argued that “[tjhere [was] no credible evidence that [appellee] ingested lead, or was injured due to lead, from 4 N[orth] Stockton [] or that [appellee] suffered any damages.” On October 4, 2011, appellee filed an opposition to the Motion for Judgment Notwithstanding the Verdict, arguing, in pertinent part: For the fourth time in this matter, [appellant] argues that [appelleejs medical expert, Eric Sundel, M.D., lacks both the qualifications and the factual basis to offer opinions about the cause of [appellee]’s elevated blood lead levels and resulting injuries.

This court has previously denied [appellant’s Motion for Summary Judgment and Motion in Li-mine on this exact issue. [Appellant] has raised the identical argument in its Motion for New Trial, which is currently pending before this Court. [Appellant] has literally “cut- and-pasted” the same argument contained in those previous three Motions. There is not a single reference to Dr. Sundel’s trial testimony. Rather, [appellant] quotes from Dr. Sundel’s deposition testimony. There is simply no new ground broken here.

This Court should not reconsider this issue for a fourth time. ⁶⁵⁶ (c) Motion to Quash On September 21, 2011, appellant sent a Notice to Take Deposition Duces Tecum and Subpoena to Nancy Dennis of the Office of the Jury Commissioner for the Circuit Court for Baltimore City requesting a copy of the completed jury questionnaires for the six individuals who served on the jury, including Juror Number Four. On September 30, 2011, Jury Commissioner Nancy Dennis filed a Motion to Quash Subpoena and for Protective Order. On October 24, 2011, appellant filed a “Motion to Compel Discovery and Opposition to Jury Commissioner Dennis’s Motion to Quash Subpoena and for Protective Order.” In the motion to compel, appellant alleged that Juror Number Four “was in fact not qualified to serve as a juror as a result of a long history including multiple drug-related felony criminal convictions[,]” and that it was of “paramount” importance for it to discover whether Juror Number Four had disclosed his criminal history in his jury questionnaire. On October 27, 2011, the Jury Commissioner filed an opposition to the motion to compel and a reply to the opposition to the motion to quash.

(d) Motion for Sanctions On September 29, 2011, appellee filed a Motion for Sanctions, requesting that the circuit court sanction Parler. Appellee argued that Parler engaged in repeated misconduct throughout the trial. As to the seventh day of trial, appellee alleged the following facts: On the last day of trial, during the testimony of the last Defense expert, Patrick Connor, Mr. Connor disclosed that he had made a note that one of the documents that he reviewed for his testimony at trial was a lead paint test conducted by Kennedy Kr[ie]ger Institute (KKI) of the subject property, 4 N. Stockton [], while [appellee] had been residing in the property. Throughout the trial it was made known that [appellant] had a relationship with KKI and would have its tenants tested for lead.

It was obvious that Mr. Connor must have received the document from [Parler] long before the trial. Mr. Connor did not have a ⁶⁵⁷ copy of the lead paint test with him at trial, and [Parler] claimed to not have a copy of it either. The document was not produced to the Court until after closing arguments and during the jury’s deliberations the next morning. Upon the discovery of the existence of the lead paint test, the Court ordered [Parler] to provide a copy to the Court and [appellee]’s counsel immediately. [Parler] faxed a copy to the Court on September 8, 2011. [Appellee]’s counsel had contacted [Parler’s] office on the morning of September 8th and was told that since the jury had announced that they had reached a verdict, they were not going to fax [ ] a copy that day.

Rather, [Parler] placed [appellee]’s copy in the mail on September 8th and it was not received by [appellee]’s counsel until the next day, September 9, 2011. As to the December 29, 1993, lead report, appellee argued that Parler intentionally withheld the report, and that whether flaking and chipping lead based paint existed in 4 North Stockton was a contested issue. Appellee pointed out that Parler raised “the issue of insufficient factual bases of no lead paint hazard being present in 4 N. Stockton” in various pretrial and post-trial motions, despite knowing he had the 1993 lead report that was “contemporaneous with [appellee]’s tenancy reflecting deteriorated lead based paint.” Appellee contended that, had the 1993 lead report been provided, she would not have been required to pay Arc Environmental to conduct two separate tests of 4 North Stockton nor would she have been required to retain White as an expert. Appellee attached, as exhibits to the Motion for Sanctions, invoices detailing fees and costs related to Arc Environmental totaling $10,135.45 as follows: testing for the September 2nd Report— $510; testing for the November 5th Report — $905; hourly review of reports and deposition preparation of White— $1,056.25; transcript of White’s deposition testimony— $366.70; and trial preparation and trial appearance by White, including one day’s lost revenue — $7,297.50.

Appellee argued that, had she known of the report, significantly less effort would have been needed to prove exposure of [appellee] to deteriorated lead based paint. ⁶⁵⁸ The factual basis for the medical expert opinions would have been substantially stronger. Chances for a settlement and the avoidance of an 8-day trial would also have possibly increased and saved the Court a substantial amount of time and expense. Appellee requested the following sanctions: In addition to the monetary reimbursement for the unnecessary expenses related to lead paint testing that was unnecessary, [appellee] is also demanding that [Parler] be ordered to pay [appellee]’s counsel for the five (5) hours it has taken to prepare and file this Motion for Sanctions. Although [appellee]’s counsel is a contingency fee attorney, a Court in Montgomery County has previously ordered payment of attorney fees at a rate of $300.00 per hour. [Appellee]’s counsel also requests that this Court impose other sanction that it deems appropriate, including, but not limited to reporting the conduct of [Parler] with Bar Counsel.

WHEREFORE, [appellee] respectfully requests that this Honorable Court grant this Motion for Sanctions and: 1. Order that [Parler] is to pay [appellee]’s counsel $10,135.45 as reimbursement for unnecessary expenses; and 2. Order that [Parler] pay [appellee]’s counsel $1,500.00 for attorneys fees related to preparing this Motion; and 3. Report [Parleras conduct with Bar Counsel; and 4.

For such other relief as this Court shall deem appropriate. On October 19, 2011, Parler filed an Opposition to [the] Motion for Sanctions and a Request for Hearing. Parler argued that the motion for sanctions be denied because: (1) appellee failed to attach a copy of the relevant discovery request to the motion; (2) the discovery requests propounded by appellee did not create an obligation on the part of appellant to produce the 1993 report; and (3) the failure to produce the 1993 report was inadvertent. According to Parler, after Connor’s testimony regarding the 1993 report at trial, he ⁶⁵⁹ conducted an investigation and located the 1993 report as a PDF file on his computer.

Parler alleged he did not know how he obtained the 1993 test report, but “the most logical explanation is that [it] was among the documents obtained from [appellant] and it was scanned onto [his] computer, but it was inadvertently not included in the notebook [of documents produced to appellee].” Parler contended that the 1993 report was not intentionally withheld, and argued that the document could have been helpful to rebut testimony about the presence of flaking paint in 4 North Stockton. As to who conducted the 1993 test, Parler alleged that the test was not performed by appellant or Mankowitz, but rather was performed by Smelgus, “who was affiliated with an independent testing company.” Parler alleged that, had appellee deposed Connor, she could have obtained a copy of the 1993 report. (e) Post-Trial Motions Hearing and Orders On October 31, 2011, the circuit court held a post-trial motions hearing. As to the motion for judgment notwithstanding the verdict as to Dr. Sundel’s testimony, the circuit court denied the motion, ruling as follows: On reviewing my trial notes in the absence of a trial transcript, I did assume the truth of the credible evidence and all inferences reasonably deduced from Dr. Sundel’s testimony.

I am reminded by a couple of appellate decisions and reiterate that if there is any competent evidence, however slight, to support [appellee]’s right to recovery in this case, the motion for judgment JNOV should be denied. I denied the motion for judgment. I denied the motion in limine held sub curia. I am about to deny the motion for JNOY as to Dr. Sundel’s qualifications and causation testimony. ... [O]ne doesn’t have to be a specialist or even have personal experience dealing with a particular type of injury or medical treatment or procedure in order to qualify as an expert under [Maryland Rule] 5-702.

The broad standard for what constitutes “qualified” encompasses Dr. Sundel’s experience as a pediatric hospitalist, ... along with his own training ⁶⁶⁰ and reading in the area of lead poisoning. All of that renders him qualified to testify on the causal relationship between the ingestion of lead and [appelleej’s alleged injuries. So, revisiting his trial testimony, revisiting his identification of qualifications, revisiting the evidentiary support upon which he relied to address causation issues, I will deny the motion for judgment notwithstanding the verdict as to Dr. Sundel’s testimony. It may be worth reiterating ..., but the inference is raised in the motion that ... in advance of the motion in limine ... a Frye-Reed hearing should have been held to address methodology, if not qualifications of Dr. Sundel to address methodology of measuring IQ loss.

I will pause to note, based on his testimony, based on the authorities that he cites, including the American Association of Pediatrics, that his reference and his reliance on IQ loss methodology in the published literature is and was reliant on relevant scientific methodology and it was reliable given the state of the literature[.] As to the motion to quash and motion to compel discovery of the juror questionnaires, ruling from the bench, the circuit court granted the motion to quash and denied the motion to compel. As to the motion for new trial on the ground that Juror Number Four was disqualified, the circuit court denied the motion, ruling that appellant had an opportunity for voir dire and that, although appellant argued there was prejudice due to Juror Number Four’s drug-related convictions “[t]here is no further explanation that has been presented ... about the nature or extent of prejudice to [appellant].” As to the motion for a new trial or to alter and amend the judgment on the ground that the non-economic damages exceeded the statutory cap, the circuit court granted the motion to amend the judgment as to the non-economic damages, reducing the award of $4,200,000 to $850,000. Concerning the economic damages, the circuit court denied the motion to alter or amend the judgment. As to the motion for a new trial on ⁶⁶¹ the ground of charitable immunity, the circuit court denied the motion, “relying on ...

Maryland Code, Courts and Judicial Proceedings Article, Section 5-406.” The circuit court observed that it found “no basis, looking at the answer, to construe or contrive a charitable immunity affirmative defense in the eircumstances[.]” As to the motion for sanctions, the circuit court found that the 1993 lead test report “was relevant and disclosable[.]” The circuit court commented on Parler’s conduct, stating as follows: I will tell you that [appellee’s counsel] is correct to remind us that I said that I was appalled at the nonproduction of the Kennedy Krieger test information in December of '93. It would also be correct to say how deeply disappointed I was in Mr. Parler’s repeated failures to attend to what I refer to as the “fundamentals of trial.” It wasn’t just a question of counsel taking liberties and engaging in sharp tactics. Mr. Parler’s conduct throughout the entirety of the case was more than disappointing. Indeed, it was way over the ethical line[.] The circuit court granted, in part, and denied, in part, the motion for sanctions, noting that it granted the motion for the reasons that appeared on the record, but that it would need to examine the record further to determine the amount of the sanctions.

On November 2, 2011, appellee’s counsel sent a letter to the circuit court via facsimile to “inform [the court] of a misstatement” made during the October 31, 2011, hearing, stating, in pertinent part, as follows: You may recall that I informed the Court that I believed that the December 1993 lead paint test results of 4 North Stockton [ ] were performed by Kennedy Krieger Institute and that the