Dackman v. Robinson

Watts, J. In this lead-based paint case, we are once again asked to address issues that are related to the admissibility of expert testimony. Unlike many of the lead-based paint cases that have come before this Court, this case does not involve an issue as to the reasonable probable source of lead exposure or medical causation. Instead, we decide whether the trial court abused its discretion in admitting expert testimony from two of the plaintiff's experts-a vocational rehabilitation expert and an economic expert. The vocational rehabilitation expert opined that, with the cognitive deficits caused by exposure to lead, the plaintiff would not have the academic and intellectual competency of a high school graduate, would work in unskilled or low-level semi-skilled jobs, and would have the earning capacity of someone with less than a twelfth-grade education.

The vocational rehabilitation expert also opined that, absent cognitive deficits caused by exposure to lead, the plaintiff would have been able to graduate high school and attend a vocational technical school or a community college "where he would learn some type of ... hands-on work." Relying on the vocational rehabilitation expert's conclusions about the plaintiff's vocational probabilities with and without deficits and general statistical data, the economic expert opined that the plaintiff's loss of earning capacity over his lifetime-the difference between his earning capacity absent deficits ( i.e. , an individual with some college education) and with deficits ( i.e. , an individual who was "a below[-]average high school graduate")-was $1,073,042. We decide whether the trial court abused its discretion in admitting the vocational rehabilitation expert's testimony and, in turn, the economic expert's testimony. Specifically, we decide whether there was a sufficient factual basis to support the vocational rehabilitation expert's opinion as to the plaintiff's vocational and educational attainment absent impairment. On a related note, we consider whether Lewin Realty III, Inc. v. Brooks , 138 Md. App. 244 , 771 A.2d 446 (2001), aff'd , 378 Md. 70 , 835 A.2d 616 (2003), and Sugarman v. Liles , 460 Md. 396 , 190 A.3d 344 (2018) require an expert in a lead-based paint case to utilize statistical data or studies to support an opinion as to a plaintiff's vocational and educational attainment absent deficits.

Lastly, we decide whether the trial court abused its discretion in denying a motion in limine to exclude the economic expert's testimony and report as untimely, and in admitting the economic expert's testimony. We hold that the vocational rehabilitation expert's testimony, and, specifically, her opinion as to the plaintiff's vocational and educational attainment absent cognitive deficits, was supported by a sufficient factual basis, as required by Maryland Rule 5-702(3). Moreover, we determine that Lewin Realty and Sugarman do not establish a requirement that an expert in a lead-based paint case must utilize statistical data or specific studies to support an opinion as to a plaintiff's vocational and educational attainment absent deficits. A sufficient factual basis supporting an opinion as to a plaintiff's vocational and educational attainment absent deficits may be grounded in the expert's detailed and individualized assessment of information about the plaintiff, coupled with the expert's experience and training, as was the circumstance here.

As such, we conclude that the trial court did not abuse its discretion in admitting the vocational rehabilitation expert's testimony and, in turn, admitting the economic expert's testimony. Finally, we hold that the trial court did not abuse its discretion in denying a motion in limine to exclude the economic expert's testimony and report as untimely, and in admitting the economic expert's testimony at trial. BACKGROUND The Residential History Daquantay Robinson ("Respondent") 1 alleged that he suffered lead-based paint poisoning while residing at a row house located at 1642 East 25th Street in Baltimore City ("the Property"). Although no issue concerning lead hazards at the Property or Respondent's exposure to lead at the Property is before us, for completeness, we include a brief summary of Respondent's residential and medical history.

On February 11, 1997, Respondent was born. Shortly before his birth, Respondent's mother, Tiesha Robinson, grandmother, Sandra Moses, and three other family members began residing in the Property, which, at all relevant times, was owned and managed by Elliot Dackman, the Estate of Sandra Dackman, and the Estate of Bernard Dackman (together, "Petitioners"). 2 From his birth until July 2001, Respondent resided at the Property. For approximately the first eighteen months of his life, Respondent did not spend any significant amount of time at any other property. In an affidavit that was filed as an exhibit to Respondent's memorandum in support of an opposition to a motion for summary judgment, Moses averred that, when the family first moved in, there was chipping, peeling, and flaking paint "all over the place[.]" Moses also averred that there was chipping, flaking, and peeling paint on the exterior of the Property-specifically, on the door, posts, and ceiling of the front porch.

Similarly, at a deposition, Robinson testified that there was chipping, flaking, and peeling paint on the window frames, as well as on the heater in her bedroom. Robinson also testified that there was a hole in the wall in her bedroom, which Respondent would pick at. Between 1997 and 2000, Respondent's blood-lead levels were tested on six occasions-December 3, 1997, May 13, 1998, November 11, 1998, June 11, 1999, February 18, 2000, and August 30, 2000-while he resided at the Property. On December 3, 1997, Respondent's blood-lead level was 12 micrograms per deciliter ("µg/dL"); on May 13, 1998, Respondent's blood-lead level was 13 µg/dL; on November 11, 1998, Respondent's blood-lead level was 12 µg/dL; on June 11, 1999, Respondent's blood-lead level was 14 µg/dL; on February 18, 2000, Respondent's blood-lead level was 9 µg/dL; and on August 30, 2000, Respondent's blood-lead level was 9 µg/dL.

In July 2001, Respondent and Robinson moved out of the Property. On June 10, 2013, after litigation had commenced, Arc Environmental, Inc. conducted lead testing at the Property. Lead-based paint was detected on seven interior surfaces and two exterior surfaces. Specifically, lead-based paint was detected in the basement storage room on the door surface and door jam, and in the basement hallway, door casing, threshold, headers, and ceiling.

Lead-based paint was also detected on the exterior of the Property on the front porch post and ceiling. The Litigation On November 28, 2012, in the Circuit Court for Baltimore City, Respondent, by and through his mother and next friend, Robinson, filed a complaint and demand for jury trial against Petitioners for negligence, violations of the Maryland Consumer Protection Act, and negligent misrepresentation arising out of Respondent's alleged exposure to lead-based paint at the Property. On January 30, 2013, the circuit court issued a scheduling order, which provided that discovery, including depositions of expert witnesses, was to be completed by May 10, 2014. The scheduling order established deadlines for discovery, including that Respondent was to "respond to all interrogatory requests concerning the findings and opinions of experts ... no later than" August 7, 2013.

Trial was scheduled to begin on September 9, 2014, and any motions in limine were to be filed no later than fifteen days before the first day of trial. In a letter to Petitioners' counsel dated May 9, 2013, Respondent's counsel designated various expert witnesses, including vocational rehabilitation experts and economic experts. Respondent's counsel identified Estelle L. Davis, Ph.D., as one of the vocational rehabilitation experts, stating: [Dr.] Davis, [ ] Rehabilitation Counselor, ... will review documents and reports and may conduct her own evaluation of [Respondent] and render an opinion as to the loss of earning capacity [Respondent] is expected to incur as a result of [his] exposure to lead and related injuries. Dr. Davis relies upon her education, training[,] and experience, as well as the Chartbook on Work and Disability in the United States , dat[a] from the U.S. Census Bureau and the Dictionary of Occupational Titles [ ] in reaching [her] conclusions.

(Underlining in original). Respondent's counsel identified Richard J. Lurito, Ph.D., as one of five economic experts, stating: Dr. Lurito is an expert economist who, based upon his review of the records and the vocational assessment of [Respondent], is expected to render an opinion regarding the loss of future earning capacity [Respondent] has suffered as a result of the injuries due to lead poisoning. He will quantify, in a present dollar amount, how much of an economic loss [Respondent] is expected to suffer over [Respondent]'s expected lifetime. Dr. Lurito relies upon his education, training[,] and experience in the field of economics in reaching his conclusion.

In an answer to an interrogatory, Respondent again identified various expert witnesses, including Dr. Davis and Dr. Lurito. In a letter dated July 9, 2014, Dr. Davis evaluated Respondent's "employability and earning capacity given his impairments and absent his impairments." Dr. Davis noted that she had been provided several records from Respondent's file, including a report regarding a neuropsychological evaluation by Barry A. Hurwitz, Ph.D., 3 which Dr. Davis summarized as follows: In the summary of his report[,] Dr. Hurwitz states that [Respondent]'s performances were impaired on neuropsychological measures of attention and executive functions, visual/spatial and visual/motor skills, motor abilities and memory. There were no indications that negative influences due to emotional factors, fatigue[,] or loss of interest played a significant role during his presentation. Dr. Davis concluded that, "given his impairments, [Respondent] will graduate from high school[,]" and that "[g]iven his Low Average IQ, and his impairments in Attention and in Executive Functions, he will likely do best with a job that is routine and repetitive." Dr. Davis also stated that, "[a]ssuming that [Respondent] can control his anger, his earnings are likely to be equivalent to the lower range of someone with a high school education." Dr. Davis determined, however, that if Respondent's "anger continue[d] to be problematic[,] his earnings are likely to be equivalent to someone with less than a high school education." Dr. Davis observed that Respondent would like to attend college, but that "he would likely need to complete non[-]credit courses before qualifying to take college[-]level coursework." And, according to Dr. Davis, "considering [Respondent's] past academic performance[,]" it was "not likely" that Respondent would "be successful in completing college beyond the prerequisite coursework." Dr. Davis concluded that, on the other hand, [a]bsent his impairments[, Respondent] would likely function at a higher cognitive level.

He would likely not have issues with Attention and Executive Functions. His school attendance and interest in school would be as it is now, and he would have more control over his temper. His grades in academic subjects would likely be higher. Dr. Davis concluded that, "absent his impairments[, Respondent] would finish two year[s] of college or the equivalent in a technical school, and have earnings comparable to someone with that level of education." Dr. Davis's letter was forwarded to Petitioners' counsel as an attachment to a letter dated July 14, 2014, from Respondent's counsel.

On August 15, 2014, Dr. Davis was deposed. In July 2014, Dr. Lurito prepared a report entitled "Present Value of Lost Future Earnings of [Respondent]." 4 In the first sentence of the report, Dr. Lurito stated that the purpose of the assessment was "to determine the economic value [ ] of the projected lost earnings of [Respondent] as a result of his cognitive deficits[,] which," he had been "advised by Dr. [ ] Davis, a rehabilitation counselor, have reduced [Respondent's] earning capacity." Throughout the report, Dr. Lurito relied on Dr. Davis's opinion. In the report, Dr. Lurito identified "two important aspects" concerning "the economic value today of [Respondent]'s projected lost earnings": (1) "a projection must be made of his probable future earnings, absent and given deficits"; and (2) "a single lump-sum must be determined[,] which would be equivalent to his lost future earnings year after year over his expected working life[,]" and that lump-sum would be "equal to the so-called 'present value' of the individual's lost future earnings." Dr. Lurito concluded that, "absent deficits, [Respondent] had the capacity to earn an income of $2,862,509 in present value terms, if he had earned the income of the typical male with an Associate's degree in the United States as Dr. Davis opined." Dr. Lurito noted that Dr. Davis had "opined that[,] given deficits [Respondent] may be able to earn what the typical male earns with a high school education in the low average range, if he can control his anger." Dr. Lurito concluded that, in that case, Respondent "would earn $1,714,201." Dr. Lurito reported that, if he was not able to control his anger, Respondent's "earnings would be $1,186,732, based on the earnings of males with less than a high school education." As such, Dr. Lurito determined that Respondent "has likely suffered an income loss of $1,148,308 or $1,675,777 due to his cognitive deficits ($2,862,509 - $1,714,201[,] or $1,186,732)." And, Dr. Lurito stated that "a lump-sum payment of $1,148,308 or $1,675,777 needs to be made to [Respondent] to compensate him for the pecuniary loss he has suffered owing to his deficits." Dr. Lurito noted, though, that the lost earnings figures did "not include any medical and medical-related costs that [Respondent] has had to incur to date due to injury, nor [did they] reflect the cost of the medical and medical-related care he may incur in the future." In a letter to Petitioners' counsel dated July 29, 2014, which was both mailed and faxed, Respondent's counsel stated that he had attached Dr. Lurito's report. In a motion in limine , 5 Petitioners sought to exclude the reports and testimony of Dr. Davis and Dr. Lurito, contending that Dr. Davis was "not qualified to make the medically based assumptions which form[ed] the core of her opinions[,] and[,] therefore, the[ ] assumptions lack[ed] an adequate factual basis and depend[ed] upon an unreliable methodology." (Cleaned up).

Specifically, among other things, Petitioners argued that Dr. Davis lacked an adequate factual basis to offer an opinion as to Respondent's employment capabilities absent lead exposure, stating: Despite the fact that Dr. Davis is being offered as a vocational rehabilitation expert, and not a medical expert, she is, in effect, offering a medical opinion regarding [Respondent]'s alleged pre-injury cognitive ability and earning capacity. Dr. Davis cannot logically make this unsupported assumption (i.e.[,] that the minor [Respondent] would have had the potential, absent injury, to function at the level of one holding a two[-]year associate[ ] degree) without possessing, at a bare minimum: (a) detailed medically based knowledge of [Respondent]'s pre-morbid cognitive state prior to the alleged injury; and (b) a medical expert's understanding of the nature and extent of [Respondent]'s present alleged cognitive impairments. In fact, Dr. Davis conceded that she had not even reviewed the report of [Respondent]'s primary medical expert. Petitioners requested that "Dr. Davis'[s] report and testimony regarding [Respondent]'s future employability and loss of earning claim [ ] be excluded." Petitioners asserted that, because "Dr. Lurito's report, opinions[,] and calculations of [Respondent]'s alleged economic loss" relied on Dr. Davis's opinion, Dr. Lurito's report and testimony should also be excluded.

On August 28, 2014, Petitioners filed a motion in limine to exclude Dr. Lurito's report and testimony as untimely. According to Petitioners, although Respondent's answers to interrogatories identified Dr. Lurito as a potential economic expert, his answers "failed to provide the substance of Dr. Lurito's opinions[,]" which Petitioners did not obtain until they received Dr. Lurito's report on August 4, 2014, the date of the pretrial conference. Petitioners contended that, by that date, Respondent's "vocational rehabilitation expert had already been deposed, [Petitioners'] experts had already reached their conclusions and issued [ ] reports, and the depositions of any experts who had not yet been deposed had been scheduled." Petitioners argued that Dr. Lurito's report was produced after the discovery deadline, in violation of the circuit court's scheduling order, and that they suffered prejudice as a result. From September 15 to 19, 2014, the circuit court conducted a jury trial.

On the first day of trial, the circuit court heard argument on the various motions in limine , including the motions as to the reports and testimony of Dr. Davis and Dr. Lurito, and denied the motions. As to the motion to exclude Dr. Lurito's report and testimony as untimely, Petitioners' counsel contended that, because Petitioners had not timely received an economic report from Respondent, Petitioners had not designated their own economic expert. The circuit court denied the motion, and ruled that it was not going to deny Respondent "use of the expert when, under the circumstances, it was listed and noted far before the date that we're referring to." The circuit court observed that, although Petitioners received Dr. Lurito's report weeks before trial, Dr. Lurito was listed on Respondent's expert designation, and Petitioners failed to depose Dr. Lurito or request a postponement after they received his report on August 4, 2014. The circuit court, however, offered to permit Petitioners to take the deposition of Dr. Lurito that day and to designate their own economic expert.

Petitioners' counsel stated that he would like to take Dr. Lurito's deposition, but he said nothing about designating an economic expert for Petitioners. As to the motion in limine to exclude the reports and testimony of Dr. Davis and Dr. Lurito, after hearing brief argument from the parties, the circuit court denied the motion, ruling: "[I]t appears that [Dr. Davis] would be qualified as an expert. She will be allowed to give her opinion as an expert. This area is subject to cross-examination and attack as her opinions become[ ] a question for the trier of fact, based on the credibility questions raised by opposing counsel." At trial, without objection, the circuit court accepted Dr. Davis as an expert "in the area of vocational rehabilitation counseling." Dr. Davis testified that she earned a Ph.D. in rehabilitation counseling, and has been a certified vocational rehabilitation counselor since the late 1970s.

Dr. Davis explained that a vocational rehabilitation counselor "works with individuals to help them find employment, generally, or to identify employment or to evaluate them to help them make decisions on employment." Dr. Davis estimated that she has conducted at least 100 vocational evaluations of young adults. Dr. Davis testified that, generally, "the purpose of [an] evaluation is to help to set some idea of what the earning capacity of the person is." According to Dr. Davis, as part of such an evaluation, a vocational rehabilitation counselor assesses an individual's educational background, including whether the individual has "some interest in pursuing further education," as well as "medical records to understand [ ] the nature and extent of any impairments that the individual may have and to find out how permanent that is." Dr. Davis testified that a vocational rehabilitation counselor also looks at an individual's work history or background. In a case where there is no work history, a vocational rehabilitation counselor would "look [ ] more at family issues, the social issues, at their maturity, at their school records[, a]nd ... there might be testing that's already been done, and sometimes psychological reports." As to her vocational evaluation of Respondent, Dr. Davis testified that she had met with Respondent and Robinson, and had reviewed Respondent's "Answers to Interrogatories, [Respondent]'s deposition transcript, [Robinson]'s deposition transcript," Dr. Hurwitz's neuropsychological report, hospital records, Baltimore City Public School records, and a report from Petitioners' pediatric neurology expert, Joseph M. Scheller, M.D. Relying on Dr. Hurwitz's report, Dr. Davis testified that Respondent has "some neuropsychological problems that are ongoing and have stood in the way of his school progress and will likely be in the way of his vocational progress." Dr. Davis noted that Dr. Hurwitz found that Respondent has problems with executive function, which is "the part of the brain that helps you organize and to multitask and to put things in order." Dr. Davis also observed that Dr. Hurwitz determined that Respondent "has problems with attention[,]" and that Respondent "can't focus long enough on something to be able to carry through." According to Dr. Davis, Dr. Hurwitz's academic testing demonstrated that Respondent has poor reading comprehension, and that "[h]e can [only] do math at the level for ... social survival[.]" Dr. Davis testified that, in completing a vocational evaluation of an individual who has no work history, like Respondent, it is customary for a vocational rehabilitation counselor to "look at ... the likely educational attainment of the individual, rather than citing specific jobs that they might do." Examining Respondent's academic records, Dr. Davis explained that Respondent's "academic progress has not been good[,]" and that his grade point average for tenth grade was 0.17. Dr. Davis observed that Respondent's academic records showed that he "had some problems with behavior, not being able to sit still, not focusing." Over objection, Dr. Davis expressed the opinion that, at the time she wrote her report, she "felt that [Respondent] would get his high school diploma, but he would likely have to do the bridge program, which is an alternative doing projects instead [of] doing the Maryland Achievement Test." Dr. Davis explained that, generally, an individual must pass the High School Assessments "in order to get their high school diploma," and, if an individual cannot "make the score, then they can apply to do ... a bridge project in whatever subject they're weak in." According to Dr. Davis, Respondent had taken the High School Assessments, "[b]ut he had not quite made ... passing scores at that point in any of them." Dr. Davis testified that, thus, Respondent may be able to complete a bridge project to graduate.

Dr. Davis testified to a reasonable degree of vocational probability that Respondent would not have the academic and intellectual competency of a high school graduate. Dr. Davis explained that Respondent "will be in unskilled or low-level semi-skilled jobs[,]" and would have the earning capacity of "someone with less than a 12th grade education[.]" Dr. Davis testified that Respondent's issues with executive function, focus, and anger would be problematic for his employability, "even in the most simple jobs[.]" Respondent's counsel asked Dr. Davis whether she had "an opinion to a reasonable degree of vocational probability as to what [Respondent]'s earnings would have been absent his cognitive deficits, [what] his earning capacity would have been absent his cognitive deficits[.]" Petitioners' counsel objected, and the circuit court conducted a bench conference. Petitioners' counsel contended that Dr. Davis was being asked to give a medical opinion even though she is not a medical doctor, and that such an opinion would be "tensely speculative." The circuit court sustained the objection as to the form of the question, but ruled that "the basis for the question [was] properly laid." The circuit court explained: As she relies on Dr. Hurwitz and others as to their testing, she may rely on medical information and their results. She may rely on statistics and data given to her by other sources and governmental agencies.

In so doing, is that her expertise is applying that information to the facts of the individual presented before her. Then in terms, she's allowed to give her opinion as to that data, information, in her field. She has been, in fact, qualified as an[ ] expert, and she's allowed to utilize the information referred to. It is not that she's a medical doctor.

She is, however, expected and as an expert to review information and take into consideration that which would be from medical doctors in terms of her opinion and apply it to her interpretation. So let's not misunderstand is that the fact she's not a doctor does not allow her to take into consideration is that Johnny has [a] heart problem and cannot be a fullback from the Ravens, as her opinion. That is not her being a doctor. That is her interpretation of the data and information and applying it to the person before her.

The circuit court stated that the "credibility and the weight that should be given [to Dr. Davis's opinion] is a matter of cross-examination." Thereafter, the following exchange occurred: [RESPONDENT'S COUNSEL:] Doctor, based on your education, training, experience, and the documents that you reviewed in this case, do you have an opinion to a reasonable degree of vocational probability as to what [Respondent]'s educational attainment would have been, absent his cognitive deficits? [DR. DAVIS:] Yes, I do. [RESPONDENT'S COUNSEL:] And what is that opinion? [DR. DAVIS:] He would at least have completed high school. And I think looking at some of the IQ scores from Dr. Hurwitz, he had a verbal IQ of 89, which is -- that's -- the verbal IQ score is considered to be the best indicator of academic achievement.

And absent his cognitive issues, I think it would be likely that he could also go to a vocational tech school or a community college where he would learn some type of ... hands-on work. Dr. Davis testified that Respondent's "lack of focus and [ ] lack of attention ... ha[d] interfered with his schooling[,]" but his school records indicated that, "once he's focused, he can do something." Without objection, the circuit court accepted Dr. Lurito as an expert. 6 Dr. Lurito testified that he has a Ph.D. in economics, and that he conducts "economic loss studies for individuals who are hurt in one way or the other or corporations that may be harmed." Dr. Lurito testified that, in forming an opinion as to the amount of loss of Respondent's future earning capacity, he relied on Dr. Davis's conclusions about Respondent's vocational probabilities with deficits and absent deficits, as well as general statistical data published by the United States Department of Labor, the United States Census Bureau, and the United States Social Security Administration. Based on this information, Dr. Lurito testified that the present value of earnings for an individual with some college education- i.e. , Respondent's earning capacity absent deficits-was $2,787,434. By contrast, Dr. Lurito testified that the present value of earnings for a "below[-]average high school graduate"- i.e. , Respondent's earning capacity with deficits-was $1,714,201.

Calculating the difference between these two figures, Dr. Lurito rendered an opinion to a reasonable degree of economic probability that Respondent's loss of earning capacity was $1,073,042. 7 At the conclusion of Respondent's case-in-chief, Petitioners moved for judgment on the only remaining claim (negligence), contending that Respondent had failed to establish a lead hazard at the Property during the time that he resided there. The circuit court denied the motion, ruling that, viewing the evidence in the light most favorable to Respondent, there was "testimony and documentary evidence that establishes the evidence of flaking, peeling paint in the [P]roperty during the course of the occupancy[,]" as well as "testimony as [to] lead[-based] paint levels existing in and during the time of the occupancy." Petitioners made a partial motion for judgment as to Respondent's economic loss claim, contending that Dr. Lurito's opinion was "premised on" Dr. Davis's letter, and that Dr. Davis's testimony lacked an adequate foundation. Petitioners' counsel reiterated the argument that Dr. Davis offered "a medical analysis that she [was] not competent to make." The circuit court denied the motion, ruling: [T]aking into consideration the facts and circumstances is that the witness need not have had all of that information in her grasp to have opined in light of her experience as a vocational counselor and expert. And, therefore, the arguments being made are one[s] that can reasonably be made and argued to the trier of fact that go[ ] to the credibility, but not disqualification of her as such.

(Paragraph break omitted). Petitioners called experts who testified, among other things, that Respondent is not cognitively impaired; that Respondent "has the capability to go to college [and] get a decent job"; that there was no "evidence that [Respondent had] suffered any neurological, developmental, or cognitive intelligence deficit or injury related to his lead levels at age two or so"; that Respondent is capable of "maintaining gainful employment in a semi-skilled to skilled job" and "will not experience an earning capacity loss or ... a reduced work-life expectancy"; and that "analytical results" did not "indicat[e] or suggest[ ] the presence of a lead hazard" in the Property during the period that Respondent resided there. And, at least one expert questioned the reliability of Respondent's medical expert's opinion regarding the degree to which lead-based paint caused Respondent to suffer an IQ loss. That expert testified that there are other sources of lead exposure for children besides lead-based paint, such as dirt, dust, water, canned food, and secondhand smoke.

After the close of Petitioners' case, Petitioners renewed the motion for judgment as to the negligence claim and the motion for partial judgment as to "the economic loss component of the case." The circuit court again denied the motions. As to the motion for partial judgment, the circuit court observed "that[,] based on the qualifications submitted and testimony[,] there is no basis ... to disqualify [Dr. Davis] and her testimony[,]" and that the jury was to decide the credibility and weight to be given to her testimony. The circuit court instructed the jury, counsel made closing arguments, and the jury deliberated. On September 19, 2014, the jury returned a verdict in Respondent's favor as to negligence, and awarded him $1,270,000 in economic damages and $818,330 in non-economic damages.

On September 29, 2014, Petitioners filed a motion for remittitur of the economic and non-economic damages, and a motion for judgment notwithstanding the verdict and/or motion for new trial. Petitioners again contended that Dr. Lurito's report was untimely because it was disclosed after the discovery deadline. Petitioners argued that the jury's award for economic damages should be reduced to $0 "in light of the disclosure violation concerning Dr. Lurito's opinions and/or the lack of foundation of Dr. Davis['s] and Dr. Lurito's opinions[.]" (Cleaned up). Petitioners asserted that the economic damages award should be reduced to $0 or stricken because, according to Petitioners, the award was not supported by the evidence and the jury had speculated in making the award.

Petitioners also contended that the jury's award for non-economic damages should be reduced to $530,000 pursuant to Maryland's cap on non-economic damages. In the motion for judgment notwithstanding the verdict and/or motion for new trial, Petitioners contended that, "the evidence, even in a light most favorable to [Respondent], [did] not establish that [Petitioner]s were negligent[.]" Specifically, Petitioners argued that Respondent "did not meet his burden of demonstrating the existence of any lead-based paint hazards at the [P]roperty[,]" and that he did not "demonstrate that he sustained any injuries [that were] proximately caused by any [ ] breach of duty." Additionally, Petitioners asserted that Respondent had failed to establish economic damages. On November 3, 2014, the circuit court held a hearing on the motions. At the conclusion of the hearing, the circuit court denied the motion for judgment notwithstanding the verdict and/or motion for new trial.

The circuit court granted in part the motion for remittitur, reduced the award of economic damages to $1,000,000, and reduced the award of non-economic damages to $530,000 pursuant to Maryland's cap on non-economic damages. In doing so, the circuit court implicitly denied Petitioners' request to reduce the award of economic damages to $0. The circuit court observed that it had "attempted to allay whatever, not just misgivings, but to offset any imbalance of that to say the [circuit c]ourt was willing to order [Dr. Lurito's] deposition to be had before he testified." The circuit court also noted that it had inquired of Petitioners' counsel "whether or not [he] planned now to have an economist." The circuit court stated that, "under the circumstances, however, the cross-examination was extensive and is, as such, sufficient ... to raise the issues that you would have argued, notwithstanding the delay in the name or whether or not you chose to have an economist." On November 5, 2014, the circuit court issued an order granting the motion for remittitur, ordering that the award of non-economic damages be reduced from $818,300 to $530,000, and that the award of economic damages be reduced from $1,270,000 to $1,000,000. On the same date, the circuit court issued a separate order denying the motion for judgment notwithstanding the verdict and/or motion for new trial.

Opinion of the Court of Special Appeals Petitioners appealed. On August 31, 2018, in an unreported opinion, the Court of Special Appeals affirmed the circuit court's judgment. See Elliot Dackman, et al. v. Daquantay Robinson, a Minor, by his Mother and Next Friend, Tiesha Robinson , No. 2035, Sept. Term, 2014, 2018 WL 4190963 , ² (Md. Ct. Spec. App. Aug. 31, 2018).

As to the admissibility of Dr. Davis's and Dr. Lurito's testimony, relying on Sugarman , 460 Md. 396 , 190 A.3d 344 , and Lewin Realty , 138 Md. App. 244 , 771 A.2d 446 , the Court of Special Appeals held as follows: Taking Sugarman and Lewin Realty together, we conclude that Dr. Davis's opinion regarding [Respondent]'s probable educational achievement and vocational capability absent lead impairments was based on a sufficient factual basis. Accordingly, Dr. Davis's testimony was admissible under [Maryland] Rule 5-703(3), and the circuit court did not abuse its discretion by admitting Dr. Davis's testimony into evidence. Finally, [Petitioner]s' sole challenge to Dr. Lurito's testimony was that it was based on Dr. Davis's conclusions, which, according to [Petitioner]s, lacked a sufficient factual basis. Because we conclude that Dr. Davis's testimony was admissible, it follows that Dr. Lurito's testimony was admissible as well.

Dackman , 2018 WL 4190963 , at ¹⁹. In so holding, the Court of Special Appeals explained: Dr. Davis interviewed [Respondent] and his mother, reviewed Dr. Hurwitz's neuropsychological report, and reviewed [Respondent]'s medical and educational records. Dr. Davis also relied on her experience of having worked as a vocational rehabilitation counselor for over 30 years during which she has assessed and helped over 100 young adults. After reviewing this data, Dr. Davis concluded that [Respondent] would not have the academic and intellectual competency of someone with a high school diploma because of his problems with executive function and focus that were identified by Dr. Hurwitz.

Having reviewed [Respondent]'s academic records, Dr. Davis further stated that, in her expert opinion, [Respondent] would have been able to earn a high school diploma and attend "a vocational tech school or a community college where he would learn some type of ... hands-on work[,]" without his disabilities. Through this testimony, Dr. Davis adequately explained that [Respondent] had sustained a loss of earning capacity as a result of his injuries. Specifically, with his injuries, he would have the earning capacity of someone with a high school diploma, and without his injuries, he would have the earning capacity of someone with a high school diploma and some college education. Therefore, Dr. Davis's detailed and individualized analysis provided a sufficient factual basis for her to opine about [Respondent]'s vocational potential with deficits and without deficits.

Id. at ¹⁷. The Court of Special Appeals rejected Petitioners' contention "that Dr. Davis's opinion lacked a sufficient factual basis because she did not rely on general statistical data in determining [Respondent]'s vocational potential absent his deficits." Id. at ¹⁸. The Court of Special Appeals concluded that, although "[t]he quantification of the loss between the earning capacity absent deficits and with deficits[ ] must be based on general statistical data[,]" "the determination that an individual would have obtained a higher degree of education absent deficits does not need to be based on general statistical data." Id. (emphasis omitted).

The Court of Special Appeals explained that "[t]hat is exactly what happened here." Id. The Court of Special Appeals held that the circuit court did not abuse its discretion in denying the motion in limine to exclude Dr. Lurito's report and testimony as untimely. See id. at ²⁰. The Court of Special Appeals explained: [T]he [circuit] court denied [Petitioners]' motion in limine , because once they received Dr. Lurito's report, either on July 29, 2014, or August 4, 2014, they took no action, despite taking depositions throughout the month of August of other experts designated by [Respondent].

Specifically, the [circuit] court stated that "[t]he fact that there was a report received, and no action from your office, based on the report, the request for postponement should have been filed then." The [circuit] court explained that "no action was taken to resolve the discovery problem[,]" and no action was taken to suggest that they were doing "everything [they] could to go forward on this issue." With [Petitioner]s having waited until close to trial to raise the issue, the [circuit] court denied [Petitioner]s' motions to exclude and for a postponement. The [circuit] court did, however, fashion a remedy for the late disclosure by allowing [Petitioner]s to designate their own expert economist and giving them the opportunity to depose Dr. Lurito on the first day of trial. Taking all of these considerations together, we cannot say the [circuit] court's action was a clear abuse of discretion. Id.

(some alterations in original). The Court of Special Appeals observed that Petitioners contended that they were prejudiced due to the late disclosure of Dr. Lurito's report for the first time in their reply brief. See id. at ²¹. Noting that "an appellate court ordinarily will not consider an issue raised for the first time in a reply brief[,]" the Court of Special Appeals determined that, even if it considered Petitioners' prejudice argument, it "would still conclude that the circuit court did not abuse its discretion." Id.

(cleaned up). The Court of Special Appeals observed that, based on the record, Petitioners had "not demonstrate[d] that they were prejudiced by the late disclosure and subsequent admission of Dr. Lurito's testimony at trial." Id. Petition for a Writ of Certiorari On November 1, 2018, Petitioners petitioned for a writ of certiorari , raising the following two issues: I. Did [the Court of Special Appeals], in upholding the admission of testimony of [Dr.] Davis, [ ] fail to follow the appropriate standards elucidated in Lewin Realty III, Inc. [ ] and Sugarman [ ]?

II

Does it violate fundamental due process and fairness, and is it a miscarriage of justice, for a [t]rial [court] to sua sponte amend the [s]cheduling [o]rder solely to the benefit of one party, and extend Respondent's expert designation deadline by over a year, while simultaneously denying Petitioners' request to amend their own expert deadline, extend the discovery deadline[,] and postpone the trial to alleviate the prejudice? On December 13, 2018, this Court granted the petition. See Dackman v. Robinson , 462 Md. 82 , 198 A.3d 218 (2018). DISCUSSION I. The Parties' Contentions Petitioners contend that the circuit court abused its discretion in permitting Dr. Davis to testify, and that, in affirming the circuit court's ruling, the Court of Special Appeals "failed to follow the guidance" of Sugarman , 460 Md. 396 , 190 A.3d 344 , and Lewin Realty , 138 Md. App. 244 , 771 A.2d 446 .

Petitioners argue that Dr. Davis lacked an adequate factual basis for her opinion as to Respondent's vocational and educational attainment absent impairment because she failed to use studies or statistical data, or identify any source supporting her opinion. Petitioners point out that Dr. Davis failed to perform any vocational testing, and instead relied solely upon Dr. Hurwitz's neuropsychological report to determine Respondent's vocational and educational potential. Petitioners maintain that "the Court of Special Appeals improperly restricted the holding[s] in" Sugarman and Lewin Realty by concluding that the quantification of economic values alone requires the use of statistical data. Petitioners contend that Dr. Davis's opinion lacked an adequate factual basis because she failed to utilize a reliable methodology for analyzing data.

Petitioners argue that, absent a reliable methodology, Dr. Davis's opinion amounted to speculation. Petitioners assert that, as such, the circuit court abused its discretion in admitting Dr. Davis's opinion and permitting Dr. Lurito to offer his opinion, which was based on Dr. Davis's opinion. Petitioners request that we either remand this case to the circuit court for a new trial, with instruction to preclude Respondent from offering expert testimony as to what his vocational and educational attainment would be absent impairment, or, in the alternative, remand this case to the circuit court with instructions to vacate its judgment, strike the economic damages award, and enter a new judgment for the amount of non-economic damages awarded by the jury subject to the cap on non-economic damages, i.e. , $530,000. Respondent counters that the Court of Special Appeals properly upheld the circuit court's admission of Dr. Davis's testimony, including the opinion as to Respondent's vocational and educational attainment absent impairment.

Respondent asserts that the Court of Special Appeals correctly concluded that Dr. Davis's opinion was supported by an adequate factual basis. Specifically, Respondent maintains that Dr. Davis performed a "detailed and individualized analysis [that] provided a sufficient factual basis for her to opine about [Respondent]'s vocational potential with deficits and without deficits." Respondent contends that the Court of Special Appeals properly rejected Petitioners' argument that an expert must use general statistical data in determining an individual's vocational potential absent impairment. Respondent argues that the determination that an individual would have obtained a higher degree of education absent deficits need not be based on general statistical data, and that neither Lewin Realty nor Sugarman creates such a requirement. In sum, Respondent asserts that the Court of Special Appeals correctly held that Dr. Davis's opinion as to his probable educational achievement and vocational capability absent impairment was based on a sufficient factual basis, and, accordingly, the circuit court did not abuse its discretion in admitting Dr. Davis's testimony.

Respondent maintains that, because Dr. Davis's testimony was admissible, Dr. Lurito's testimony was as well. Respondent contends that the quantification of the loss between the earning capacity absent deficits and with deficits must be based on general statistical data, and Dr. Lurito used such data in this case to quantify the amount of economic loss. Standard of Review "It is often said that decisions to admit or exclude expert testimony fall squarely within the discretion of the trial court." Levitas v. Christian , 454 Md. 233 , 243, 164 A.3d 228 , 234 (2017) (citation omitted). "[A]n abuse of discretion is discretion manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons." Id. at 243 , 164 A.3d at 234 (cleaned up).

Untenable "grounds include when a trial [court] exercises discretion in an arbitrary or capricious manner or when [it] acts beyond the letter or reason of the law." Id. at 244 , 164 A.3d at 234 (cleaned up). And, in Roy v. Dackman , 445 Md. 23 , 38-39, 124 A.3d 169 , 178 (2015), we stated that "the admissibility of expert testimony is a matter largely within the discretion of the trial court, and its action in admitting or excluding such testimony will seldom constitute a ground for reversal." (Cleaned up). Expert Testimony "Expert testimony is meant to assist the jury in resolving an issue outside the average person's realm of knowledge." Levitas , 454 Md. at 245 , 164 A.3d at 235 (citation omitted). To that end, Maryland Rule 5-702 provides that "[e]xpert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue." In making that determination, the trial court must assess three factors: "(1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony." Md. R. 5-702.

As to the third factor, we have explained that "[e]xpert testimony must [ ] have an adequate factual basis so that it is more than mere speculation or conjecture." Id. at 246 , 164 A.3d at 235 (cleaned up). "If an expert's conclusions are not supported by an adequate factual basis, his [or her] opinion has no probative force." Id. at 246 , 164 A.3d at 236 (citation omitted). Indeed, "[t]he probative value of an expert's testimony is directly related to the soundness of the reasons given for his [or her] conclusions." Id. at 246 , 164 A.3d at 236 (cleaned up). As such, we have explained that an adequate factual basis requires two things-"(1) an adequate supply of data; and (2) a reliable methodology for analyzing the data." Id. at 246 , 164 A.3d at 236 (citations omitted).

Moreover, when "the facts or data that an expert relies on are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, they need not be independently admissible at trial." Id. at 246 , 164 A.3d at 236 (citation omitted). Importantly, in assessing the three factors set forth in Maryland Rule 5-702, "the trial court is only concerned with whether the expert's testimony is admissible." Levitas , 454 Md. at 246 , 164 A.3d at 236 . As such, "[o]bjections attacking an expert's training, expertise[,] or basis of knowledge go to the weight of the evidence and not its admissibility." Id. at 246 , 164 A.3d at 236 (cleaned up). "An expert's qualifications and methods may be teased out during cross-examination, and the jury can then assess how much weight to give his [or her] testimony." Id. at 246 , 164 A.3d at 236 (citation omitted).

And, significantly, "[e]ven if a witness is qualified as an expert, the fact[-]finder need not accept the expert's opinion[,]" i.e. , the fact-finder is free to reject the expert's opinion and accord it