Pittman v. Atlantic Realty Co.

THIEME, Judge. The contradiction that contributed to the birth of the dilemma in this case is like Janus, one of whose faces is represented by a deposition, and the other by an affidavit. Terran Pittman, by his Next Friend and Mother, Shari L. Hall, the appellants, brought this action, alleging injury due to environmental exposure to lead, in the Circuit Court for Baltimore City. Atlantic Realty (“Atlantic Realty”) and Northern Brokerage (“Northern Brokerage”), appellees, respectively, own and manage the property involved.

The appellees filed a Joint Motion for Summary Judgment. The appellants responded, and attached to their Response affidavits that directly contradicted previous deposition testimony. The appellees responded with a Motion to Strike the Affidavits. The appellants have appealed the trial court’s granting of the appellees’ Motion to Strike the Affidavits and the granting of the Joint Motion for Summary Judgment.

The issues presented, which have been reworded for clarity, are 1. Whether the hearing court should have considered appellants’ affidavits that contradicted their own discovery responses and were submitted in response to appellees’ Motion for Summary Judgment. 2. Whether the hearing court erred in granting appellees’ Motion for Summary Judgment. Facts At the time of his birth on December 18, 1990, Terran Pittman and his mother, Shari Hall, resided with Gladys Hall, the minor’s maternal grandmother, at 1805 Harlem Avenue in Baltimore.

The property at 1805 Harlem Avenue was not ²⁵⁸ owned by the appellees. During the time that the appellants resided at 1805 Harlem Avenue, there was peeling paint, and the landlord failed to respond to complaints concerning the conditions. Shari Hall testified during her deposition that the 1805 Harlem Avenue property “was falling apart.” In addition, she observed Terran put paint chips in his mouth. On October 31, 1991, while Terran was living at the Harlem Avenue address, he first tested positive for lead.

In late 1992, when Terran was approximately two years old, the appellants moved from the Harlem Avenue address because of a dispute with Gladys Hall. They moved in with Ms. Rita Porter, who lived at 1908 Lauretta Avenue (“the subject premises”), located just around the corner from Gladys Hall’s residence on Harlem Avenue. After residing for some time at the subject premises, the appellants moved back to 1805 Harlem Avenue around the end of 1992 or beginning of 1993. They continued to reside there until approximately February 1996.

On August 12, 1993, a lead paint violation notice was issued to Atlantic Realty for the subject premises. After this action was filed by Shari Hall as Next Friend and Mother of Terran Hall, the minor appellant, discovery commenced pursuant to a Modified Pre-trial Conference Order. The appellants alleged that Terran was exposed to lead-based paint while living at the 1805 Harlem Avenue premises and the subject premises during a time span of 1990 to 1996. In Shari Hall’s answers to the interrogatories of Housing Authority of Baltimore City (“HABC”), 1 she stated that the appellees contributed to Terran’s injuries.

INTERROGATORY NO. 24: If you contend that a person not a party to this action acted in such a manner as to cause or contribute to this occurrence, identify that person and give a concise statement of the facts upon which you rely. ²⁵⁹ ANSWER: That other than 1805 Harlem Avenue, the minor Plaintiff was cared for at 1908 Lauretta Avenue, by Rita Porter, during the hours of 8:00 a.m. through 4:00 p.m., Monday through Friday. Said property was owned by Atlantic Realty Company, 710 N. Howard Street, Baltimore Maryland 21201. Attached hereto find documents relating to said dwelling. Nowhere in her answers to interrogatories did Shari Hall indicate what dates pertained to her answer to Interrogatory No. 24.

On February 27, 1997, the appellees deposed Shari Hall. In her deposition testimony, Shari Hall testified that she moved into the subject premises in the fall of 1992, and stayed for about two months. She recalled that it had been in the fall of 1992 because it was near Terran’s birthday: Q. And you stayed in this house for a couple - A. For about two months. Yes, my mother put me out.

Q. And can you remember exactly when that was that she put you out? A. The time, the date? Q. Yeah, like the time of year? A. Ah, man.

Q. What the weather was like, so you can pinpoint the time of year. A. It was like in the fall, probably. Q. Ok. Do you remember what year it was?

A. My son was two. Q. He was two. You know he was definitely two? A. Or getting ready to turn two.

It was somewhere in that area. Q. Okay. And then you stayed for a couple of months? A.

(nodding head affirmatively) Later in the deposition, Shari Hall again confirmed that she and Terran lived at the subject property for only two months. She substantiated the fact that it had been a two-month stay by noting that she had paid rent for only two months: ²⁶⁰ Q. Miss Hall, I’m confused about the time period when you- A. When I moved? Q. Wdien you moved in with Miss Porter. First of all, can we just figure out how long did you live with Miss Porter?

A. About two months. Q. About two months? A. Yes. Q. Now, you said that you paid rent to Miss Porter?

A. Right. Q. Do you remember how long you paid her rent? A. That’s why I said about two months, because I know how many times I gave her some money for rent money. Q. Wfiiich was twice?

A. Which was twice. Q. So although you’re not sure when you moved in, you know it was for — it was not for more than two months, because you only paid two months’ rent? A. Right. Q. So two months is the maximum that you lived with her?

A. Right, yes. During her deposition testimony, Shari Hall clarified how much time Terran spent at the subject premises during the time he was not living there. Shari Hall testified that she would take him to the subject premises “probably like twice out of a week or something like that, out of a month, who knows.” Generally, the visits to the subject premises would last between one to three hours. In an attempt to discover the relevant dates for Shari Hall’s answer to HABC’s Interrogatory Number 24, the appellees asked her when Ms. Porter babysat Terran at the subject premises.

In response, Shari Hall testified that Ms. Porter occasionally babysat Terran at the subject premises, but she did not do so on a regular basis. In fact, she testified, Ms. Porter babysat Terran at the subject premises only “here and there.” ²⁶¹ In summary, Shari Hall’s testimony reveals that Terran resided at the subject premises for only two months, and that he visited there occasionally. On the other hand, between 1990 and 1996, Terran had resided for a period of several years at the 1805 Harlem Avenue address. On February 25, 1998, the appellants’ expert medical witness, Howard M. Klein, M.D., was deposed.

In deposition testimony, Dr. Klein stated that, in light of the period of residence, it was “unlikely” that exposure to lead at the subject premises was a major contributor to Terran’s alleged injuries. He further acknowledged that there were, in fact, five major contributors to Terran’s cognitive problems. These contributors included (1) lead, (2) smoking, (3) drugs, (4) psychological trauma, and (5) head trauma. After the discovery phase of the underlying lawsuit was concluded under the Modified Pre-trial Conference Order, the appellees filed a Joint Motion for Summary Judgment based upon the appellants’ failure to establish that any of Terran’s medical conditions were substantially caused by exposure to lead-based paint at 1908 Lauretta Avenue.

The appellees argued in their Motion for Summary Judgment that the appellants had an obligation to produce some medical expert testimony that exposure to lead at the subject premises resulted in cognizable harm from lead poisoning or related ailments. The appellees noted that, because the appellants’ expert, Dr. Klein, testified in deposition that the condition of the subject premises was not a substantial cause of Terran’s injuries, the appellants had failed to prove causation, and, therefore, the appellees were entitled to judgment as a matter of law. The appellants responded to the appellees’ Motion for Summary Judgment and supported their opposition by attaching affidavits from Shari Hall, Gladys Hall, and Dr. Klein. All three affidavits directly contradicted the earlier testimony given in depositions and interrogatory answers.

In her affidavit, Shari Hall stated that she would “visit the residence [at 1908 Lauretta Avenue] on an everyday basis,” and that even after she and Terran resumed living with Gladys Hall they ²⁶² “still spent every day visiting 1908 Lauretta Avenue for approximately eight hours every day.” Gladys Hall stated in her affidavit that “every day Shari Hall and Terran would leave [her] house at 1805 Harlem Avenue at approximately 2:00 p.m. to visit Rita Porter at 1908 Lauretta Avenue. They would not return until 9:00-10:00 p.m. in the evening.” After reviewing the affidavits given by Shari Hall and Gladys Hall, Dr. Klein stated in his affidavit: I have now reviewed the affidavits’ [sic] of Shari Hall and Gladys Hall ... Based on information in these affidavits, which clarified deposition testimony and Answers to Interrogatories and assuming this information is correct, it is my opinion within a reasonable degree of medical probability that the premises 1908 Lauretta Avenue was a substantial causal factor in his lead poisoning and resulting injury, substantial meaning significant as opposed to insignificant. The appellees responded with a motion to strike these affidavits, arguing that the affidavits constituted an improper attempt to engage in additional discovery, in violation of the factual discovery deadline imposed by the court in its Modified Pre-trial Conference Order.

The trial court agreed, and granted the appellees’ Motion to Strike and the Joint Motion for Summary Judgment. Discussion The issue presented in this case is whether the hearing court erred in failing to consider the subsequently filed affidavits because Md. Rule 2-501(b) contemplates such affidavits in opposition to summary judgment. The Rule states: When a motion for summary judgment is supported by an affidavit or other statement under oath, an opposing party who desires to controvert any fact contained in it may not rest solely upon allegations contained in the pleadings, but shall support the response by an affidavit or other written statement under oath. The appellants argue that the affidavits were not provided as part of discovery, but rather as mandated by Md. Rule 2-501. ²⁶³ Moreover, appellants contend that since the affidavits were not submitted under the discovery rules, they were then not submitted in violation of the discovery deadlines outlined in the Modified Pretrial Conference Order. 2 If “they shall sow wind, and reap a whirlwind,” 3 he who sows confusion harvests even greater confusion.

In granting the appellees’ Motion to Strike and their Motion for Summary Judgment, the trial court questioned the value of discovery if, “subsequent to the completion of the process any party can create, present or develop or modify the testimony arduously developed in discovery by the stroke of a pen in an affidavit.” In his oral opinion, Judge Mitchell stated: The court finds this circumstance egregious. We are concerned that the process of discovery can become subverted and rendered meaningless if by the mere presentation of an affidavit constructed more than a year after the presentation of deposition testimony, a witness can so dramatically alter her evidence. There just simply has to be some meaning to this process.... I The Motion to Strike the Affidavits We will begin our analysis by addressing appellants’ contention that Casey v. Grossman, 123 Md.App. 751 , 720 A.2d 959 (1998), addresses the very issue sub judice, and is controlling in this matter, for it is in Casey that the ideological context of the appellants’ synthesis was bom and developed.

The appellants’ reliance on Casey for the proposition that contradictory affidavits can be attached to a motion in an effort to thwart summary judgment is misguided. A brief review of the particular facts in the earlier related case of ²⁶⁴ Bartholomee v. Casey, 103 Md.App. 34 , 651 A.2d 908 (1994), is in order to clarify why the facts before us now make this case distinguishable from the issue presented in Casey. In Bartholomee , the minor plaintiff, Casey, through her mother, filed suit against multiple defendants for injuries sustained as the result of lead poisoning. One of those defendants was Vivian Grossman, the owner of the property where the minor resided for a period of time.

Four days before trial, at the proverbial eleventh hour, the plaintiffs produced affidavits that were in direct contradiction to their answers to earlier interrogatories. The trial court allowed the testimony to be introduced at trial, over the defendant’s objection to its prejudicial nature. Casey then prevailed at the trial level, and the decision was appealed to this Court. We found that procedurally such an eleventh hour tactic was prejudicial to the defendant, Grossman.

As a result, this Court reversed, and remanded the case as to that defendant, so that Casey could provide further proof of causation. The defendant Grossman then prevailed on summary judgment when the trial court found that Casey had not met her burden of establishing substantial causation for the lead paint injury. The case was again appealed to this Court in the case of Casey v. Grossman. In response to Grossman’s Motion for Summary Judgment, Casey had attached the same trial testimony of her mother which had been at issue in Bartholomee v. Casey, and which we had found prejudicial as to Grossman.

We explained in Casey v. Grossman that by attaching the testimony to the Motion, it was reintroduced as evidence in the latter ease, and created a dispute that would preclude summary judgment. The decision was based on language from this