Davis v. Goodman

SALMON, Judge. In this lead paint poisoning case, appellants present us with a host of questions, only one of which is of interest to most members of the bar. That question is the second that we will address. It involves an interpretation of Maryland Rule 2-415(g).

We must decide whether an objection at deposition to the form of a question or to any other error or irregularity that might be obviated if the objection were made during deposition must be specific or whether the objection is preserved by merely uttering the word “objection.” We hold that the ground for the objection must be stated with specificity. BACKGROUND Corey Davis (“Corey”), born December 31, 1987, claims to have suffered brain injury due to his residency in two houses located in Baltimore City. Starting when he was six months old, Corey lived at 2627 Francis Street with his mother, Angela Norwood. The Francis Street address was owned by Eugene Goodman, Ann Goodman, Marc Attman, and Debra Attman, t/a Attsgood Realty (hereinafter referred to collectively as “the Attsgoods”).

Corey, at fifteen months of age, moved from Francis Street to 4716 Park Heights Avenue where he lived with his mother. The house on Park Heights Avenue was owned by Stanley Rochkind, t/a S&S Partnership ³⁸⁶ (hereinafter ■ “S&S”). On June 7, 1989, about four months after Corey moved to the premises, the Baltimore City Health Department notified S&S that the Park Heights address had thirty-eight areas of lead-based paint. Corey continued to reside at the premises owned by S&S until August 1989, when he was hospitalized and underwent therapy for lead poisoning.

Thereafter, Corey went to live with his paternal grandmother, but his mother remained at the Park Heights address until February 1990. In March 1990, Ms. Norwood, individually and on behalf of Corey, sued S&S and the Attsgoods in the Circuit Court for Baltimore City. The Attsgoods filed a motion for summary judgment, which was granted by Judge Thomas Ward on August 18, 1995. In September 1996, the case, as against S&S, was tried before a jury (Heller, Ellen, J., presiding).

The jury found that S&S was not negligent; it also found that while S&S had violated the Consumer Protection Act, Corey had not been injured by that violation. Counsel for Corey filed a motion for new trial, which was denied. Corey and his mother then noted this timely appeal and raise ten issues, which we have reordered and reworded: 1. Did the motions judge err in granting summary judgment in favor of the Attsgoods? 2.

Did the trial court commit reversible error by overruling appellants’ counsel’s objections to questions of S&S’s expert at his de bene esse deposition, when the objection at trial was to the form of the question but at deposition no ground for the objection was stated? 3. Did the trial court err by allowing evidence to be presented to the jury that raised an inference that the appellant was exposed to lead-based paint at Francis Street? 4. Did the trial court abuse its discretion by allowing S&S’s expert neurologist to testify by videotape as to the source(s) of the appellant’s exposure to lead-based paint? ³⁸⁷ 5. Did the trial court abuse its discretion by preventing appellants from presenting evidence of the full extent of Stanley Rochkind’s experience and knowledge about the hazards associated with lead paint? 6.

Did the trial court err by allowing the introduction of certain business records without the proper foundation? 7. Did the court abuse its discretion by allowing S&S’s fact witness to testify to matters that were not within the witness’s personal knowledge? 8. Did the trial court commit reversible error by refusing to give two of appellants’ proposed jury instructions? 9. Did. the trial court abuse its discretion by failing to grant a new trial when the jury rendered inconsistent verdicts? 10.

Did the trial court’s general conduct throughout the trial substantially deprive the appellant of the right to a fair trial? ISSUE I A. Summary Judgment Ruling — Facts in Light Most Favorable to Appellants In June 1988, Corey moved into the Francis Street address, an old unrehabilitated townhouse with flaking and chipping paint on the interior walls, baseboards, and windowsills, and on the front exterior walls, door, and window frames. Corey’s mother complained to the Attsgoods about the paint problems when she first rented the premises. Promises were made by the Attsgoods to remedy the chipping and flaking paint problem, but these promises were never fulfilled.

On March 2, 1989, which coincidentally was the same date that Corey moved from the Francis Street premises, Corey’s blood was tested. The test showed the lead level in his blood to be 31 mcg/dc. An acceptable lead blood level in 1989 was considered to be 25 mcg/dc or less. David H. James, M.D., a professor of pediatrics at the University of Tennessee with experience in treating children ³⁸⁸ exposed to lead paint, was named as an expert by appellants.

Dr. James was deposed by counsel for the Attsgoods and questioned extensively as to the basis for his opinion that the Francis Street home contained lead-based paint during Corey’s residency. Dr. James testified at deposition that: the house was “very old”; most very old houses in Baltimore City were painted with lead-based paint; the condition of the house was described by Corey’s mother as “poor,” with chipping and flaking paint; and therefore, it certainly “sound[ed] like that house would be a good source for lead.” He admitted that there was no direct evidence that the house had, in fact, been painted with lead-based paint, and he acknowledged that “he was making an assumption that there was leadbased paint at 2627 Francis Street.” The Attsgoods moved for summary judgment and argued: [T]here is no direct evidence that there was lead paint on the property. Instead the expert [Dr. James] bases his opinion that lead-base paint existed because the house was [] old and the paint was peeling, as described by the mother. Thus, the conclusion that the exposure came from 2627 Francis Street is drawn from hearsay.[ 1 ] In fact, Dr. James admits to having done no research on the history of lead paint in the Baltimore Metropolitan area.

In order for the [p]laintiff to demonstrate there exists facts sufficient to support an inference that the poisoning was the result of the 2627 Francis [Street] property[,] there must be reliable data to show the existence of lead paint. (Footnotes omitted.) No other ground for summary judgment was advanced. Unbeknownst to Dr. James, the exterior of 2627 Francis Street had been tested for lead-based paint on May 5, 1995— five days before Dr. James’s deposition. Troy Baker was the inspector who tested the exterior of the premises.

The interi- ³⁸⁹ or was not tested. Mr. Baker’s test revealed that lead-based paint existed on the exterior front wall of the house and on the exterior basement windows, left and right front windows, and on the front door. Appellants, in opposition to the Attsgoods’ summary judgment motion, filed an affidavit by Troy Baker relating that he had found lead-based paint on the exterior of the house and that, in his opinion, lead-based paint was present on the exterior of the house when Corey resided there. Appellants also filed affidavits from Ms. Norwood, Corey’s mother, and Dr. James.

Ms. Norwood’s affidavit read, in pertinent part, as follows: When we first moved into 2627 Francis [Street] the front exterior of the home also had flaking and chipping paint on the door, walls and window frames. Corey Davis and I would sit out on the front step everyday when it was too hot to be inside. I did not know that the chipping paint that was right next to us on the front step contained lead-based paint. Dr. James’s affidavit included the following: 7.

Based on my training, knowledge and experience, the medical records of Corey Davis, the May 9, 1995 report of Troy Baker noting presence o[f] lead-based paint on the exterior surfaces of 2627 Francis Street, and the Affidavit of Angela Norwood, I am of the opinion, within a reasonable degree of medical probability that Corey Davis was exposed to lead-based paint while residing at 2627 Francis Street. 8. I am of an opinion within a reasonable degree of medical probability that Corey Davis was exposed to lead-based paint while sitting in front of 2627 Francis Street on an everyday basis. 9. I am of an opinion within a reasonable degree of medical probability that Corey Davis’ exposure to lead-based paint at 2627 Francis Street was a substantial factor [sic] to the injuries that he sustained to his central nervous system as a result of having elevated blood lead levels. ³⁹⁰ The Attsgoods, on August 15, 1995, responded to plaintiffiappellant’s opposition. In the response, the Attsgoods changed the entire thrust of their motion.

As previously noted, the Attsgoods initially maintained that appellants had failed to present competent evidence that the residence leased to appellants contained lead-based paint. But faced with the fact that testing had shown lead-based paint on the exterior of the house and, as a consequence, Dr. James was no longer basing his opinion upon mere circumstantial evidence, the Attsgoods pointed out a new (purported) deficiency. The Attsgoods filed no affidavit or other sworn material to support their new contention. Instead, they based the revised motion on the following ipse dixit: Since Dr. James now claims that the poisoning occurred from the minor’s exposure to the exterior paint of the building, there must be some evidence that in fact the child ingested or came into contact with the paint.

Merely sitting outside on the steps is hardly sufficient to establish poisoning caused by lead-based paint, unless, of course, there is medical evidence to suggest otherwise. The [a]ffidavit of Angela Norwood does not indicate that in fact there was ever any exposure.... From that premise, the Attsgoods proceeded to argue: It is a familiar rule of evidence that a witness, in order to qualify as an expert, should have such special knowledge of the subject on which he is to testify that he can give the jury assistance in solving a problem for which their equipment of average knowledge is inadequate. It is sufficient the expert has in some way gained such experience in the matter as would entitle his evidence to credit.

Wilson v. State, 181 Md. 1 , 26 A.2d 770 (1942)]. Consequently, Dr. James must establish by medical evidence a connection between being outside of a building with lead paint and actual exposure. Three- days after the filing of the Attsgoods’ memorandum raising this new issue, a hearing was held on the summary judgment motion. In granting summary judgment, the mo ³⁹¹ tions judge pointed out what he perceived to be two deficiencies in plaintiffs’ case.

Neither of these alleged deficiencies was relied upon by the Attsgoods when they originally filed their motion for summary judgment. First, the court observed that the plaintiffs had presented no proof that the Attsgoods knew of lead-based paint in the interior of the Francis Street address. Second, although plaintiffs had proved that the exterior of the house contained deteriorated lead-based paint, they had failed to prove that Corey had been injured by exposure to that paint — the argument first raised by the Attsgoods only three days earlier. The court stated: So the question is whethér the house on the outside, where there is evidence of chipping and flaking paint and evidence of lead paint, is the evidence sufficient to carry this case on to the next step which is a jury trial to determine whether or not this child received his or her ingestion at Francis Street.

In order to do that, there are several ways, of course, that can be done. In this particular case, the plaintiffs [sic] lawyers tried to do it these two ways. One, by producing testimony of the medical authority, of which has been referred to in argument. The other is showing this child, through the affidavit of Angela Norwood, the exact words are “Corey Davis and I would sit out on the front steps every day when it was too hot to be inside.

I did not know that the chipping paint that was right next to us on the front steps contained lead-base paint.” Mr. Buckley [counsel for the Attsgoods] argues that this is not sufficient to bridge the gap. Mr. Mensh [counsel for appellants] argues that the experts he has produced can testify that exposure to lead paint was sufficient to at least contribute to the condition that the child was found with. I’ve held consistently, and I’m going to hold again in this case, that the doctor’s testimony, simply saying that because the house has lead paint in it, is sufficient to cause exposure. It’s not true.

I’ve listened to the testimony to at least one of these two experts and he’s never said that. There has to be a condition present sufficient to, not only expose the ³⁹² child, but there must be activity on the part of the child to actually cause this. Now, on the inside, [lead poisoning] can come from the air. It can come from a lot of different facts.

But on the outside it’s more difficult to show. And to simply show that a person was sitting on the outside steps next to peeling and flaking paint without any other activity, including the ability of the child to have, for example, played in the ground next to the wall where the flaking and chipping paint was and, therefore, perhaps ingested it, as a young child will often put everything in their mouth and so forth. In this particular case, there is no evidence of that. I do not believe that the gap has been jumped with respect to exterior lead paint and therefore the motion is granted____ (Emphasis added.) B. Standard of Review Any party may file at any time a motion for summary judgment on all or part of an action on the ground that there is no genuine dispute as to any material fact and that the party is entitled to judgment as a matter of law---- The response to a motion ... shall identify with particularity the material facts that are disputed____ The court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.

Md. Rule 2-501(a), (b), and (e) (1993). Thus, a moving party must set forth sufficient grounds for summary judgment. Although the movant is not required to support his motion with an affidavit unless he files it “before the day on which the adverse party’s initial pleading or motion is filed,” see Md. Rule 2-501(a), he must support his various contentions by placing before the court facts that would be admissible in evidence or otherwise detailing the absence of evidence in the record to support a cause of action. See ³⁹³ Washington Homes, Inc. v. Interstate Land Dev.

Co., Inc., 281 Md. 712, 716 [ 382 A.2d 555 ] (1978). Bond v. NIBCO, Inc., 96 Md.App. 127, 134 , 623 A.2d 731 (1993) (emphasis added). [A] party seeking summary judgment always bears the initial responsibility of informing the [circuit] court of the basis for its motion, and identifying those portions of “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any,” which it believes demonstrate the absence of a genuine issue of material fact. Id. at 136 , 623 A.2d 731 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 , 106 S.Ct. 2548, 2552-53 , 91 L.Ed.2d 265 (1986)). C. The Initial Motion for Summary Judgment The Attsgoods appropriately noted a deficiency in the plaintiffs’ case when they first filed their summary judgment motion.

At that point it appeared that the plaintiffs could not prove that Corey was injured while he resided at the Francis Street residence because there was no competent evidence that the premises contained any lead-based paint. Obviously, the mere fact that most old houses in Baltimore have lead-based paint does not mean that a particular old Baltimore house has a similar deficiency. But by filing the affidavits of Ms. Norwood and Troy Baker, appellants showed that there was at least a genuine issue of material fact as to whether the exterior of the house contained deteriorated lead-based paint at the time Corey lived there. Thus, the Attsgoods were unquestionably not entitled to summary judgment on the basis set forth in their initial memorandum.

D. Notice The Attsgoods say in their brief that: The trial court properly granted appellees’ motion for summary judgment as to appellants’ negligence claim [because] there was insufficient evidence that appellees had notice of ³⁹⁴ lead paint at 2627 Francis Street during the period of appellants’ residence----[ 2 ] They proceed to argue: A landlord is not liable in tort for the lead paint poisoning of a tenant unless “the landlord either knows or has reason to know of the condition and has a reasonable opportunity to correct it.” Richwind Joint Venture 4 v. Brunson, 335 Md. 661, 673 [ 645 A.2d 1147 ] (1994); Brown v. Wheeler, 109 Md.App. 710 [ 675 A.2d 1032 ] (1996). As shown previously, the trial judge did grant summary judgment, based, in part, on the fact that the Attsgoods did not have notice of the existence of lead paint on the interior of the premises. This fact, however, was never a ground for summary judgment advanced by the Attsgoods in their summary judgment motion. A non-moving party is not required to respond to issues not raised by the moving parties.

Hartford Accident and Indem. Co. v. Scarlett Harbor Assocs. Ltd. Partnership, 109 Md.App. 217, 262 , 674 A.2d 106 (1996), aff'd, 346 Md. 122 , 695 A.2d 153 (1997). Put another way, a trial judge cannot, sua sponte, and without prior warning, appropriately grant summary judgment based on the plaintiffs failure to prove an element of his or her case if the defendant has not previously contended that the plaintiffs proof was deficient as to that element.

Bond, 96 Md.App. at 136 , 623 A.2d 731 . The trial judge, therefore, should not have granted summary judgment based on plaintiffs failure to prove notice. E. The Second Ground Advanced by the Trial Court for Grant of Summary Judgment Although the motions judge granted summary judgment, in part, on the ground that deteriorated lead-based paint on the exterior of the house did not cause Corey harm, the Attsgoods do not even argue in their brief that the ³⁹⁵ motions judge was correct in this regard. This fact is of importance because, with an exception not here relevant, we will not affirm the grant of summary judgment on a ground not relied upon by the trial judge. 3 Blades v. Woods, 338 Md. 475, 478 , 659 A.2d 872 (1995); Scarlett Harbor, 109 Md.App. at 241 , 674 A.2d 106 .

In the motion judge’s opinion, a child’s lead blood levels cannot become elevated simply because the child is in the immediate vicinity of exterior chipping or flaking exterior lead-based paint. Lead-paint poisoning, in the trial judge’s view, can come from the air (i.e., air-bourne particles) if the child is exposed to interior lead-based paint; but when a house has deteriorated lead-based paint on the exterior, a child cannot become injuriously exposed to that lead-based paint merely by being in the immediate vicinity of it. Judge Ward believed that there must be more direct exposure. Dr. James had a contrary view.

As previously shown, Dr. James, an experienced pediatrician, filed an affidavit in which he stated that in his opinion, to a reasonable degree of medical probability, Corey’s exposure to deteriorated lead-based paint on the exterior of the premises leased from the Attsgoods was a “substantial factor” in leading to the “injuries [Corey] sustained to his central nervous system----” The motions judge plainly did not believe that Dr. James was credible. He characterized what Dr. James said as “not true” and thus rejected the opinions set forth in Dr. James’s affidavit. If Judge Ward were the factfinder, his finding would be accorded great deference. But no principle is more firmly ingrained in summary judgment jurisprudence than that a motions judge should not decide issues of credibility.

Additionally, a ³⁹⁶ judge, in deciding a summary judgment motion, is not empowered to take judicial notice of the answers to complicated medical issues such as the issue of causation discussed in Dr. James’s affidavit. For the foregoing reasons, we shall reverse the judgment entered in favor of the Attsgoods. ISSUE II Trial Court’s Rulings on Objections Made by Appellants’ Counsel at Deposition S&S took the videotaped deposition of Dr. Lawrence Charnas, a specialist in neurology, who was of the opinion, to a reasonable degree of medical probability, that Corey experienced “no significant exposure [to lead-based paint] at 4716 Park Heights Avenue.” In his deposition, Dr. Charnas went on to give the reasons for his opinion: The reason I can state that is he had two types of chemicals measured in his blood during treatment for his lead poisoning. One was the measurement of lead itself.

The other is a measurement of something called FEP. As we talked about, lead levels can drop very rapidly on the basis of treatment with certain kinds of medicines. FEP, on the other hand, is a chemical that is contained within red blood cells and is a longer-term measure, on the order of three to four months, of what is happening with lead exposure. His FEP level remained more or less unchanged from the date where it was first noted to be elevated, prior to moving to the Park Heights address, through his initial treatment with DMSA, and then began to drop in the latter part of the fall of — or, rather, the summer of 1989 into the winter of 1989.

The — when one sees an elevated FEP that stays the same and then drops, that indicates that there had been lead exposure ongoing for several months prior to moving to the Park Heights address, and that’s, that’s, within a reasonable degree of medical certainty, is the source of his body burden of lead which caused his rebound. ³⁹⁷ DMSA are the initials for the medication administered to Corey at the Kennedy Center in August 1989. According to Dr. Charnas, DMSA “is particularly good in dropping or getting rid of lead that is in the blood.” Later in his deposition, Dr. Charnas testified, again to a reasonable degree of medical certainty, that “there was no reason to believe [that Corey] ... had any injury whatsoever” due to the fact that he lived at property owned by S&S. Plaintiffs’ counsel objected during Dr. Charnas’s deposition to numerous questions asked by counsel for S&S. On one occasion counsel said, “Objection, leading” but on all other occasions, he merely said, “Objection” or “Objection, move to strike.” Many — perhaps most — of plaintiffs’ objections were to questions that were perfectly proper. At trial, plaintiffs’ counsel brought to the judge’s attention several questions that were “not in proper form” because the questions called for Dr. Charnas to express an opinion even though the questioner did not ask him whether the opinion was held to a “reasonable degree of medical probability.” 4 The trial judge overruled these objections and opined that in order to preserve an objection as to the form of a question the objection at deposition must be specific so that opposing counsel would have an opportunity to correct his mistake(s). Maryland Rule 2-415(g) reads: Objections. — Ml objections made during a deposition shall be recorded with the testimony.

An objection to the manner of taking a deposition, to the form of questions or answers, to the oath or affirmation, to the conduct of the parties, or to any other kind of error or irregularity that might be obviated or removed if objected to at the time of its occurrence is waived unless a timely objection is made during the deposition. An objection to the competency of a ³⁹⁸ witness or to the competency, relevancy, or materiality of testimony is not waived by failure to make it before or during a deposition unless the ground of the objection is one that might have been obviated or removed if presented at that time. Rule 2-415(f) applies to videotaped depositions, but a party seeking to preserve an objection at the videotaped deposition must also comply with Rule 2-416(g), which provides: Objections. — The officer shall keep a log of all objections made during the deposition and shall reference them to the time shown on the clock on camera or to the videotape or audiotape indicator. Evidence objected to shall be taken subject to the objection.

A party intending to offer a videotape or audiotape deposition in evidence shall notify the court and all parties in writing of that intent and of the parts of the deposition to be offered within sufficient time to allow for objections to be made and acted upon before the trial or hearing. Objections to all or part of the deposition shall be made in writing within sufficient time to allow for rulings on them and for editing of the tape before the trial or hearing. The court may permit further designations and objections as justice may require. In excluding objectionable testimony or objections of counsel, the court may order that an edited copy of the videotape or audiotape be made or that the person playing the tape at trial suppress the objectionable portions of the tape.

In no event, however, shall the original videotape or audiotape be affected by any editing process. After referring us to Rules 2-415 and 2-416, appellants argue: Nowhere in these Rules is it mentioned that reasons for the objections, as to form, must be given on the record. More specifically on point is Rule 2-517 that states that grounds for the objections during a trial need not be stated unless specifically directed by the court. Since the appellee chose to videotape the testimony of his medical expert, and not ³⁹⁹ have the benefit of the trial court’s immediate directions, the trial court could not make such a ruling after the fact.

Md. Rule 2-517(a) reads: Objections to Evidence. — An objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the grounds for objection become apparent. Otherwise, the objection is waived. The grounds for the objection need not be stated unless the court, at the request of a party or on its own initiative, so directs. The court shall rule upon the objection promptly.

When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court may admit the evidence subject to the introduction of additional evidence sufficient to support a finding of the fulfillment of the condition. The objection is waived unless, at some time before final argument in a jury trial or before the entry of judgment in a court trial, the objecting party moves to strike the evidence on the ground that the condition was not fulfilled. As can be seen, Rule 2-415(g) and Rule 2-517(a) have a major difference that is here important. Rule 2-517(a) explicitly provides that (with certain exceptions) counsel need not state the ground for an objection.

Rule 2-415(g), on the other hand, says that, to preserve an objection, one must object to the error or irregularity; the rule does not say that one may merely object to the question or answer. Can it be said that a lawyer who merely says the word “objection” immediately after a question or answer has objected “to the manner of taking a deposition” or “to the form of the question or answer” or “to any other error or irregularity that might be obviated or removed if objected to at the time of its occurrence”? We think not — -counsel has merely objected to the question or answer, not to any error or irregularity contained therein. For that reason, the language used in Rule 2 — 415(g) strongly suggests at least that an objection to any error or irregularity that can be immediately corrected must be specific. ⁴⁰⁰ Besides the difference in terminology between Rules 2-517(a) and 2-415(g), there are practical reasons to distinguish what must be said at trial to preserve an objection from what should be said at deposition.

At trial, a judge, at the request of a party, or acting sua sponte, can direct counsel to give the basis for an objection. But at deposition, because no impartial arbiter is present, attorneys cannot be forced to say anything. Accordingly, the opportunity of a questioner to recognize and correct an error at deposition is reduced. Thus, the need for specificity in the two forums is markedly different.

In interpreting the Maryland Rules of Procedure, we apply the same rules of construction as we use when interpreting statutes, Kerpelman v. Smith, Somerville & Case, L.L.C., 115 Md.App. 353, 357 , 693 A.2d 357 , cert. denied, 346 Md. 241 , 695 A.2d 1229 (1997), and the most basic rule of statutory construction is that courts should endeavor to “ascertain and effectuate legislative intent.” Jones v. State, 336 Md. 255, 260 , 647 A.2d 1204 (1994). Here, we are therefore required to “ascertain and effectuate” the intent of the Court of Appeals in adopting Rule 4-215(g). See also Johnson v. State, 274 Md. 29, 41 , 333 A.2d 37 (1975) (quoting Brown v. State, 237 Md. 492, 504 , 207 A.2d 103 (1965) (stating the meaning of a Maryland Rule “does not depend upon the niceties of definition but upon the reasonable intentment of the language used in the light of the purpose to be effectuated”)). In determining intent, we are mindful that the Maryland Rules are to be construed “to secure simplicity in procedures, fairness in administration and elimination of unfair expense and delay.” Rule l-201(a).

A plain reading of Rule 2-415(g) shows that the reason an objection to a defect [in any question or answer that can be immediately cured] must be made, in a timely fashion, during the deposition is so that the questioner will have an opportunity, during the deposition, to clear up the problem. The drafters of the rules did not wish a litigant to be prejudiced by a slip of the tongue or any other error that could be easily cured. If it were sufficient merely to utter the word ⁴⁰¹ “objection” when some flaw exists in a question or answer, that purpose oft-times would not be fulfilled. For instance, a questioner, even if he or she is a well-trained lawyer, may not know what “error or irregularity” needs correcting if a specific objection is not made.

At deposition, attorneys can, and often do, object to questions for invalid reasons or for no reason at all. Moreover, counsel, although they are not required to do so, often object to questions or answers (e.g., answers containing hearsay) where the error or irregularity could not possibly be corrected even if the problem were brought to the attention of those in attendance at the deposition. Given these well known realities, the interpretation of Maryland Rule 2-415(g) advanced by appellants would allow counsel at deposition to interpose scores of non-specific and frivolous objections and then interpose a valid objection to a defect in a question that could be immediately cured. The barrage of frivolous objections might well cause an opponent to overlook the defect in a question or answer that was immediately curable.

Such an interpretation would not fulfill the purpose of the rule and would run afoul of the requirement that the Maryland Rules be interpreted to secure fairness in administration. In Collom v. Pierson, 411 N.W.2d 92 (N.D.1987), the North Dakota Supreme Court was called upon to interpret Subdivision d(3) of Rule 32 of the North Dakota Rules of Civil Procedure, which read: Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is made at the taking of the deposition. Id. at 95 . As can be seen, the Rule interpreted in Collom is substan ⁴⁰² tively the same as Maryland Rule 2-415(g). 5 In Collom , the liability issue was whether a hole in plaintiffs colon was caused by the negligence of plaintiffs two treating doctors or whether the opening developed after surgery through no fault of the physicians.

The only expert to testify for the defense was Dr. M. Michael Eisenberg, a general surgeon. He testified, by way of deposition, that the opening in plaintiffs colon was not caused by any negligence on the part of the defendants. During deposition, counsel for plaintiff, Dr. Eisenberg, and one of the defense counsel had the following exchange: Q [By MR. ZUGER — defense counsel] The bottom line is, do you find any evidence of malpractice or negligence, if you will, whatsoever, on the part of either Dr. Lutz or Dr. Pierson in this case?

A [Dr. Eisenberg]: No. MR. SAEFKE [plaintiffs counsel]: We’re going to object on the basis of no foundation. MR. ZUGER: In what specific regard?

He’s been through the entire chart. He’s read all the depositions. Where’s the foundation lacking? MR.

SAEFKE: The question referred to Dr. Lutz and Dr. Pierson. You asked him whether there was any negligence on their part. My objection is there’s no foundation for him to answer that question. MR.

ZUGER: And can you be more specific so I can have an opportunity to cure your objection? MR. SAEFKE: No, I’m not going to try your lawsuit, counsel. You’ve been in this for some time.

You know the qualifications of those gentlemen and their practices and you know the qualification of your witness and his practice. And my objection is that he is not qualified to testify as to whether there was any negligence on the part of the defendants in this lawsuit. ⁴⁰³ MR. ZUGER: And so that I have an opportunity to cure this before I conclude this deposition, where is he lacking in foundational qualifications? MR.

SAEFKE: That’s not my obligation, counsel. Id. at 94 . Counsel for plaintiff sought to exclude at trial all of Dr. Eisenberg’s testimony based on the fact there was no showing in his deposition testimony of his familiarity with the practice of obstetrics and gynecology ... in similar localities nor similar circumstances [and therefore the doctor was not qualified] to testify ... [regarding] the practice of Dr. Lutz in North Dakota. Id. at 95 .

The trial judge overruled the objection and admitted Dr. Eisenberg’s deposition testimony. On appeal, the North Dakota Supreme Court said: Objections to foundation can frequently be obviated by further testimony. Therefore, an objection to foundation at a deposition is futile unless it is sufficiently specific to afford the opposing party opportunity to cure it. See United States v. Michaels, 726 F.2d 1307, 1314 (8th Cir.1984): “Foundation objections require specificity.” Collom’s counsel failed to specify what was lacking.

Therefore, we cannot consider Collom’s deposition objection to foundation for any of Dr. Eisenberg’s testimony.[ 6 ] Id. We interpret Rule 2-415(g) in harmony with the Collom court’s interpretation of N.D.R. Civ. P. Rule 32(d)(3). We hold that, to preserve a deposition objection to any error or irregularity that might be cured if a timely objection had been ⁴⁰⁴ made at deposition, the objecting party must state the ground for the objection before the conclusion of the deposition, so that the opposing party will have a chance to cure or obviate the error or irregularity.

Here, as Judge Heller pointed out, if appellant had specified the ground for his objections at deposition, counsel for S&S could easily have corrected the form of each of the questions to which appellants’ counsel objected. Having failed to be specific, the objections to the form of the questions were waived. ISSUE III Testimony Relating to Whether Corey Davis Was Exposed to Lead-Based Paint When He Lived at 2627 Francis Street On the morning the trial was to commence, appellants’ counsel made a motion in limine seeking to prohibit S&S’s counsel from presenting any evidence that the source of Corey’s exposure to lead paint was at 2627 Francis Street. Counsel argued: Certainly, if the [plaintiffs’ are not entitled to the reasonable inference that Francis Street was a contributing source of lead exposure, ... [S&S] cannot now be entitled to that— any kind of inference to their advantage.

We therefore ask that any mention of Francis Street not be allowed. In support of this argument, appellants’ counsel told the trial judge that Corey “was never tested for lead while residing at the [Francis Street] property,” although he had undergone an FEP screening test. He then noted that an FEP test can be elevated by factors other than lead. Counsel’s statement that Corey had never been tested for lead when he lived on Francis Street was, at best, misleading.

Corey moved from the Francis Street address on March 2, 1989, and on the same day he moved into the premises owned by S&S. His blood was tested for lead on March 2, 1989. Also, an FEP screening test was administered on that date. The blood test report, later introduced into evidence, shows Corey’s address as 2627 Francis Street on March 2, 1989. ⁴⁰⁵ The trial judge next asked appellants’ counsel whether Judge Ward’s rationale for granting summary judgment was that “the record was void [sic] of any evidence of [lead-based] paint at the [Francis Street] address.” Appellants’ counsel’s reply was, “Yes, it is [sic], Your Honor.” As already shown, this answer was inaccurate. The trial judge granted plaintiffs’ counsel’s in limine motion, saying: I will not permit testimony of any expert that the child was exposed to lead at Francis Street address because, one, this [c]ourt — Judge Ward has previously granted judgment indicating that, even looking at the facts in the light most favorable to [plaintiffs, that there was absolutely no testing of any flaking, chipping paint.

And also, there was no lead levels taken of the child at the time either---- I’m just telling you if you ... do bring out the condition of the home, you have to also bring out that there was no evidence of lead. The [c]ourt has already granted judgment for the [defendants at that address, so I think it should not come out. I think it would be an unfair conjecture. Appellants argue on appeal that the trial court deviated from her in limine ruling during trial and thus committed reversible error.

Appellants also argue, more generally, that the court erred in allowing the introduction of any evidence from which the jury might have inferred that the source of Corey’s lead poisoning was from the house on Francis Street. Appellees counter that the motion in limine should not have been granted in the first place, and in any event, the trial judge committed no reversible error in her evidentiary rulings. A. Motion In Limine The two factual grounds upon which the trial judge granted appellants’ motion in limine were: (1) that Corey was never tested for lead when he lived at Francis Street and (2) that Francis Street was “excluded at summary judgment” as a source of Corey’s poisoning because, at the summary judg ⁴⁰⁶ ment stage, plaintiffs could produce no evidence that the house had been painted with lead-based paint. Impliedly at least, appellants contend that the summary judgment ruling constituted the law of the case and Judge Heller was therefore obliged to follow that “law” in making evidentiary rulings during trial.

Appellants’ premise is fatally flawed. No prior ruling of the court established that Corey had not been tested for lead when he lived at Francis Street or that there was no “lead paint” at the Francis Street premises. Obviously, the law of the case doctrine can have no application concerning an issue that was never decided. NCAA v. Johns Hopkins University, 301 Md. 574, 582 , 483 A.2d 1272 (1984).

We need not, however, decide whether the in limine order should have been granted because appellants fail to point to any instance when the trial judge deviated from her ruling. The in limine ruling was narrow and concerned only testimony of experts. Not once did the trial judge allow any expert to testify that Corey was exposed to lead-based paint at the Francis Street premises. B. Other Trial Testimony Regarding Francis Street 1.

Exhibit 21 — Failure to Redact Plaintiffs’ expert, Dr. James, testified that Corey suffered permanent brain injury due to his exposure to lead-based paint at premises owned by S&S. On direct examination, Dr. James did not attribute any injury to Corey due to his residence at Francis Street. On cross-examination, Dr. James was shown defendant’s Exhibit 21, which was a medical report indicating that on March 2, 1989, Corey had an elevated lead level of 31 mcg/dl; an elevated FEP level; and an address, at the time the test was administered, at 2627 Francis Street. Defendant’s Exhibit 21 was later introduced into evidence over appellants’ objection. Appellants now contend that the trial judge erred in failing to redact the Francis Street address from Exhibit 21 because, according to appellant, the jury could draw the inference that Corey was exposed to lead-based paint at the ⁴⁰⁷ Francis Street address merely because he lived there