Green v. N.B.S., Inc.

MURPHY, Judge. In the Circuit Court for Baltimore City, after a jury awarded $2,300,000 in noneconomic damages to Kelly Green, 1 Peti ⁵³¹ tioner, for injuries resulting from her exposure to lead-based paint, the Circuit Court entered the following ORDER: The jury in the above-captioned case on March 26, 2007, having entered verdict in the above-captioned case in favor of the Plaintiff, and said verdict being in excess of those damages allowable pursuant to § 11-801, Courts and Judicial Proceedings Article, Annotated Code of Md., and the court having considered the provisions of said statutory authority and the evidence presented, does hereby reduce the amount of judgment to conform with said limitation. It is this 5th day of April, 2007, ORDERED that judgment be entered in the above-captioned case in favor of Plaintiff, Kelly Green[ ], A Minor by her Mother and Next Friend, Celestine Green[ ], against all defendants in the sum of five hundred and fifteen thousand dollars ($515,000). The Circuit Court also assessed costs against all of the Defendants/Respondents: Stanley Rochkind (the only Respondent who has filed briefs in the Court of Special Appeals and in this Court), N.B.S., Inc., Charles Runkles, and Dear Management, Inc. In Green v. N.B.S., Inc., 180 Md.App. 639 , 952 A.2d 364 (2008), while affirming the judgment of the Circuit Court, the Court of Special Appeals (1) held “that the statutory cap as set forth in Md.Code.

(2006 Repl. Vol.), Cts. & Jud. Proc. Art., sections 11-108 and 11-109 applies to all actions for personal injury and wrongful death, including actions based on statutory or constitutional violations[,]” Id. at 642 , 952 A.2d at 366 ; (2) rejected the argument that “the statutory cap is unconstitutional because it constitutes a ‘special law’ that is barred by Article III, section 33 of the Maryland Constitution[,]” Id. at 661 , 952 A.2d at 377 ; and (3) concluded “that the complaint [Petitioner] filed, and the cause of action to which the cap ⁵³² statute was [properly] applied, arose after October 1, 1995, but before October 1, 1996.” Id. at 662-63 , 952 A.2d at 378 .

Petitioner thereafter filed a petition for writ of certiorari in which she requested that this Court answer the following questions: I. WHETHER THE TRIAL COURT ERRED IN APPLYING MARYLAND’S “CAP” ON NONECONOMIC DAMAGES TO REDUCE THE JURY’S AWARD IN THIS CASE[?] A. WHETHER THE TRIAL COURT ERRED IN RULING THAT MARYLAND’S “CAP” ON NONECO-NOMIC DAMAGES APPLIES TO CLAIMS BROUGHT PURSUANT TO MARYLAND’S CONSUMER PROTECTION ACT[?] B. WHETHER THE TRIAL COURT ERRED IN RULING THAT THE “CAP” IS CONSTITUTIONAL[?] II. WHETHER, ASSUMING ARGUENDO THAT THE “CAP” APPLIES TO THIS CASE, THE TRIAL COURT ERRED IN RULING THAT THE APPROPRIATE “CAP” IS $515,000 RATHER THAN $530,000[?] This Court granted that petition. 406 Md. 192 , 957 A.2d 999 (2008). For the reasons that follow, 2 we shall affirm the judgment of the Court of Special Appeals. Background Prior to trial, Celestine Green dismissed her “individual” claims.

Petitioner’s evidence included the videotaped deposition testimony of Dr. John F. Rosen. The following transpired during Dr. Rosen’s direct examination: ⁵³³ [PETITIONER’S COUNSEL]: Now looking at [Plaintiffs Exhibit] No. 7, [a summary of Petitioner’s lead level tests] and this document, just so you know, Dr. Rosen, will be blown up so the jury can see it as you’re talking about it even though they’re not here with us today, could you please tell us if you found any indication of whether or not to a medical degree of medical probability of whether [Petitioner] was poisoned? WITNESS: She was lead poisoned by definition as of September 26, [1996]. [PETITIONER’S COUNSEL]: How long, let’s go back a second. You told us that her first blood lead level according to Exhibit No. 7 was in November of 1995, a blood level of 9.

Is that correct? WITNESS: Yes. [PETITIONER’S COUNSEL]: Can you tell the members of the jury to a reasonable degree of medical probability as to whether that blood lead level amount has any medical significance to you as a pediatrician (inaudible)? WITNESS: It does. [PETITIONER’S COUNSEL]: And what significance is that? WITNESS: The significance of that is the blood lead value of 9 when she was roughly 10 months old followed about five weeks later with a blood lead of 8 micrograms per deciliter, both indicated that she was within 10 to 20 percent of reaching the level of 10 micrograms per deciliter and that indicates that she was (inaudible) exposed to lead during that time frame prior to the lead level (inaudible) deciliter. [PETITIONER’S COUNSEL]: Does the fact, to a reasonable degree of medical probability, that [Petitioner] did not reach the definition of lead poisoning, that is 10 micrograms per deciliter, mean that those two levels did not affect her or did not cause her any injury?

WITNESS: They did impact her in terms of (inaudible) that blood lead range, in terms of loss of IQ points, yes. ⁵³⁴ Prior to jury deliberations, the Circuit Court entered judgment against all Respondents on the issue of whether they were negligent in their ownership and/or management of the property where Petitioner was exposed to lead-based paint, as well as on the issue of whether they had violated the Consumer Protection Act. Counsel to the parties agreed that the jury should be presented with a VERDICT SHEET that contained two questions: 1. Do you find that Kelly Green suffered any injury as previously defined for you in my instructions? If your answer is YES, ... 2.

What amount of damages, if any, do you award Plaintiff Kelly Green for: Non-economic damages sustained in the past and reasonably probable to be sustained in the future for injuries found to her mental health and well-being: The jury received the following instructions: Ladies and gentlemen, the Court has found that the Defendants, NBS, Incorporated; Dear Management, Inc.; Charles Runkles, individually; and Stanley Rochkind, individually, were negligent as it pertained to their duties owed at 1547 Montpelier Street in Baltimore City, Maryland, and that this conduct was in violation of the Consumer Protection Act. You are instructed that proximate cause exists only where the Plaintiff produces evidence that indicates that it is more probable than not that there is a direct connection between the act complained of and the act finally resulting in injury. For the Plaintiff to recover damages, the Defendant’s negligence must be a cause of the Plaintiffs injury. Each person whose negligent act is a cause of an injury is responsible.

You are instructed that proximate cause exists only w[h]ere the Plaintiff produces evidence that indicates that it is more probable than not that there is a direct connection ⁵³⁵ between the act complained of and the act finally resulting in the injury. The burden is on the Plaintiff to prove by a preponderance of the evidence each item of damage claimed to be caused by the Defendants. In considering the items of damage, you must keep in mind that your award must fairly and adequately compensate the Plaintiff, but an award should not be based upon guesswork or speculation. In this action for damages you shall consider the following—the personal injuries sustained by the Plaintiff and their extent and duration—and by the Plaintiff, we mean Kelly Green[ ]—the effect the injuries have on the overall mental health and well being of the Plaintiff, which with reasonable probability may be expected to be experienced in the future.

In awarding damages in this case you must itemize your verdict or award to show the amount intended for the non-economic damages, if any, sustained in the past and reasonably probable to be sustained in the future by the Plaintiff, for injuries found to her mental health and well being. The record shows that the following transpired when the jury returned its verdict. THE CLERK: ... Kelly Green[ ], a minor by her mother and next friend, Celestine Green[ ], Plaintiff versus NBS, Inc., et al, Defendants,....

Verdict Sheet, Issue 1, “Do you find that Kelly Green[ ] suffered any injury as previously defined for you in my instructions, yes/no?” JURY FOREPERSON: Yes. THE CLERK: Issue 2. “What amount of damages, if any, do you award Plaintiff, Kelly Green[ ], ... ? JURY FOREPERSON: 2.8 million. After the Circuit Court entered judgment, 3 Petitioner filed a Motion for Reconsideration and/or Motion to Alter or Amend Judgment that included the following assertions: ⁵³⁶ 1.

On or about March 26, 2007, after a lengthy trial, the jury returned a verdict in favor of the minor plaintiff in the amount of Two Million Three Hundred Thousand Dollars ($2,300,000.00). This sum represented compensation for brain damage sustained as a result of lead poisoning. 2. Prior to the return of the verdict, this Honorable Court had directed a verdict against all the defendants on the issue of defendants’ negligence and their violations of the Maryland Consumer Protection Act (CPA). * * * 6. Further, even if the Cap is constitutional, which Plaintiff expressly denies, it does not apply in this case.

The Cap does not apply in this case because the jury’s award was for defendants’ violation of the CPA, a statutory cause of action and, pursuant to Section 3(i) the limitation imposed by the Cap applies only to “victims of tortious conduct.” In other words, a violation of the CPA is not a tort. Since the Cap only applies to awards for tortious conduct, the Cap does not apply in this case, and this Honorable Court should not have reduced the jury’s verdict. 7. The logic set forth above was adopted by the Court of Appeals in United States v. Streidel, 329 Md. 533 , 620 A.2d 905 (1993). In Streidel , the Court of Appeals refused to apply the Cap to the statutory cause of action of wrongful death cases because, among other reasons, such causes of actions are not traditional tort actions for personal injury.

After Streidel , the legislature amended the act to include actions for wrongful death. Interestingly, the legislature did not amend the Cap to include other statutory cause of actions, such as actions for injuries like those in this case, caused by violations of the CPA. In fact, the legislature specifically added section 3(i) which expressly limits application of the CAP to causes of actions for tortious conduct. As the legislature is presumed to know the law, it must be assumed that it intended to limit the instances when the ⁵³⁷ Cap applies to non-tortious conduct only to wrongful death actions.

In Edmonds v. Murphy, 83 Md.App. 133 , 573 A.2d 853 (1990) aff'd, Murphy v. Edmonds, 325 Md. 342 , 601 A.2d 102 (1992), the Court of Special Appeals, speaking of wrongful death actions, said: “[t]he General Assembly would be well within its authority to abolish wrongful death actions if it chose to do so. Certainly, it would be well within its authority to repeal the 1969 statute permitting recovery for noneconomic loss in wrongful death actions. Within its powers to create a cause of action or abolish a statutory cause of action is the power to modify such statutory actions.” In the case at bar, the legislature created the statutory cause of action under the CPA. It could have, if it so chose, limited (modified) damages recoverable pursuant to the Cap.

It chose not to do so. This Honorable Court should not have reduced the jury’s verdict. (Emphasis in original). Subsequent to a hearing on the post-judgment motions, the Circuit Court filed a Memorandum Opinion that included the following findings and conclusions: Motions were filed on behalf of the Plaintiffs for Reconsideration and/or Alteration or Amendment of the Judgment.

Those arguments fall into two distinct categories. I. Assuming that the provisions of Md. Ann.Code § 11-101 et seq., Cts. & Jud. Proc. apply, Plaintiffs assert that the judgment should be reduced to $530,000. The Court, pursuant to § 11—108(d), entered judgment in the amount of $515,000.

The relevant consideration is whether the statutory authority of § 11-108 that raises the “cap” on non-economic damages effective October 1, 1996 is the appropriate measure for these damages. All parties agree that the evidence indicated that the minor Plaintiff had an elevated lead blood level on September 26, .1996. Plaintiffs assert that since the Baltimore City Housing Code has been interpreted to establish a continuous duty upon the landlord of premises to keep subject property in ⁵³⁸ compliance with the Code, any potential causes of action that arises from a landlord’s violation of said Code also continue and, therefore, the “cap” date should be the last date upon which Plaintiffs exposure generated an elevated lead blood level. The Court rejects this analysis---- Here, the verdict sheet submitted to the jury, which was agreed upon by all parties, did not request the jury to decide the date upon which any cause of action arose.

Accordingly, this Court is unwilling to substitute its judgment for that of the jury, which made its finding as to non-economic damages sustained by Plaintiffs upon the evidence produced at trial. Since the evidence is undisputed that the minor Plaintiff sustained an elevated blood level on September 26, 1996, the Court sees no reason to amend the judgment to reflect a cause of action arising at a later date.

II

In the alternative, Plaintiffs assert that the provisions of § 11-108 are inapplicable to this matter. Plaintiffs argue that not all of its asserted causes of action are brought as personal injury actions that arose out of direct tortious conduct, see § 11—108(A)(b)(3)(i), but that asserted causes of action also arise out of Defendants’ violations of the Maryland Consumer Protection Act, Md. Ann.Code, § 13-301, et seq., Comm. Law, and the Baltimore City Code, Art. 13 et seq., Housing and Urban Renewal. Accordingly, Plaintiff asserts that since those claims fall outside of the statutory scheme envisioned by the legislature in enacting § 11-108, any damages awarded for those claims were not intended to be reduced.

Plaintiffs argue that since actions for wrongful death were specifically addressed by the statute, the fact that the legislature did not address other nontortious causes of action supports the position that § 11— 108 is inapplicable in this matter. Again, the Court is unpersuaded by Plaintiffs’ argument____ [A]s discussed supra, all parties agreed on the verdict sheet submitted to the jury, which did not ask the jury to differentiate between potential causes of action and award damages accordingly. It is therefore impossible for the Court, after the fact, to parse out which damages were ⁵³⁹ awarded for which claims and to do so would improperly infringe on the decision of the jury panel. Accordingly, Plaintiffs’ Motion for Reconsideration and/or Motion to Alter or Amend Judgment is hereby denied.

Petitioner noted a timely appeal to the Court of Special Appeals. As stated above, after that Court affirmed the judgment of the Circuit Court, this Court issued a writ of certiorari. Discussion I. A. Petitioner was entitled to bring an action under the Maryland Consumer Protection Act (CPA), which is set forth in Title 13 of the Commercial Law Article (CL). CL §18-408, in pertinent part, provides: (a) Actions authorized.—In addition to any action by the Division or Attorney General authorized by this title and any other action otherwise authorized by law, any person may bring an action to recover for injury or loss sustained by him as the result of a practice prohibited by this title.

Section 11-108 of the Courts and Judicial Proceedings Article (CJ) provides: Personal injury action—Limitation on noneconomic damages (a) Definitions.— (1) In this section the following words have the meanings indicated. (2) (i) “Noneconomic damages” means: 1. In an action for personal injury, pain, suffering, inconvenience, physical impairment, disfigurement, loss of consortium, or other nonpecuniary injury; and 2. In an action for wrongful death, mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, care, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or edu ⁵⁴⁰ cation, or other noneconomic damages authorized under Title 3, Subtitle 9 of this article.

(ii) “Noneconomic damages” does not include punitive damages. (3) “Primary claimant” means a claimant in an action for the death of a person described under § 3-904(d) of this article. (4) “Secondary claimant” means a claimant in an action for the death of a person described under § 3-904(e) of this article. (b) Limitation on amount of damages established.— (1) In any action for damages for personal injury in which the cause of action arises on or after July 1, 1986, an award for noneconomic damages may not exceed $ 350,000.

(2) (i) Except as provided in paragraph (3)(ii) of this subsection, in any action for damages for personal injury or wrongful death in which the cause of action arises on or after October 1, 1994, an award for noneconomic damages may not exceed $ 500,000.