Richwind Joint Venture 4 v. Brunson

BISHOP, Judge. Barbara Richardson (“Richardson”) filed a complaint in the Circuit Court for Baltimore City individually and on behalf of her minor children, Jamika and Jamall Holman (“Jamika” and “Jamall”), against Rita Baitch (“Baitch”), individually and as personal representative of the estate of Harry Baitch (jointly referred to as “the Baitches”), and Appellants, Richwind Joint Venture 4 (“Richwind”) and Scoken Management Corporation (“Scoken”). Richardson sought damages for injuries that resulted from her children’s exposure to lead-based paint. The complaint alleged negligence (counts I and II), nuisance ³³³ (counts III and IV), and violations of the Consumer Protection Act (“the Act”) (counts V and VI).

When Richardson died, her mother, Ernestine Brunson (“Brunson”), Appellee, who was appointed personal representative of Richardson’s estate, was substituted as plaintiff. Before trial, Brunson and Baitch entered into a settlement agreement. Baitch agreed to pay Brunson $85,000 in exchange for the Baitches being released from all claims against them. The court ordered the case against the Baitches dismissed with prejudice.

The court dismissed counts III and IV, and at the close of Brunson’s case, it granted Appellants’ motions for judgment on counts V and VI. The jury awarded damages to Jamall in the amount of $252,000, Jamika in the amount of $247,500, and the court awarded damages to Richardson’s estate in the amount of $18,944. The court denied Appellants’ motions for a new trial or remittitur. Appellants filed a timely notice of appeal; Brunson filed a cross-appeal.

Issues Appellants present the following issues for our review: I. Whether the court erred when it admitted expert testimony of average IQ loss of children affected by lead poisoning when Jamall’s and Jamika’s IQ’s increased after sustaining lead poisoning.

II

Whether the court erred when it permitted a psychologist to testify regarding the children’s brain damage.

III

Whether the court erred when it admitted into evidence an economist’s report on the children’s future lost earning capacity.

IV

Whether the court erred when it permitted impeachment of Scoken with evidence of lead paint violations at locations other than the children’s residence. V. Whether the court erred when it refused to admit Department of Social Services records.

VI

Whether the court erred when it denied a mistrial after Brunson’s counsel stated during opening argument that the mere presence of lead paint is illegal. ³³⁴ VII. Whether the court erred when it denied defense counsel’s motion for judgment.

VIII

Whether the court erred when it refused defense counsel’s requested jury instructions on contributory negligence and intervening and superseding causation.

IX

Whether the court abused its discretion when it denied defense counsel’s motion for a new trial. Cross-Appeal Brunson asks us to decide whether the court erred when it granted Appellants’ motions for judgment as to Brunson’s claim under the Act. Facts ■ Baitch and her husband owned a residential building located at 2119 West Fairmount Avenue in Baltimore City (“the Building”). In November 1983, the Baitches rented the Building to Richardson, as the latter’s residence.

While a resident of the Building, Richardson gave birth to her daughter, Jamika, on March 18,1984, and her son, Jamall, on March 13,1985. Jamika and Jamall resided with their mother in the Building until January 1987. In December 1985, Richwind purchased the Building, and in January 1986, Mark Chodak (“Chodak”), Scoken’s president, assumed management of the Building until January 1987. On January 17,1986, Richardson complained to Chodak that paint was peeling from the walls within the Building.

In response, Chodak sent a repairman whose work order indicated that the “job was completed,” but Chodak did not otherwise know if the condition was remedied. Chodak hired no one— either before or after taking over management of the Building — to inspect the property for lead-based paint. Although Chodak did not recall the exact dates, he testified that he visited the Building during the day sometime between January 1986 and September 1986. Chodak knew the walls within the Building were covered with lead-based paint.

He knew also, based on his prior experience as a housing inspector and ³³⁵ property manager in Baltimore City, that peeling lead-based paint could be hazardous to children. Chodak did not warn Richardson of the dangers of flaking, peeling lead-based paint, or of the presence of lead in the Building. He testified that he did not know children lived in the Building. On August 12, 1986, Jamika — then twenty-nine months of age — and Jamall — then seventeen months of age — both tested positive for lead poisoning.

Doctors determined that the level of lead discovered in Jamall’s blood put him at high risk of injury, and consequently, he was hospitalized. Both children were later diagnosed with brain damage as a result of their exposure to the lead poisoning. On September 22, 1986, health inspectors notified Chodak of forty-two lead violations on the interior and exterior surfaces of the Building. Additional facts will be included in the discussion, infra, where necessary.

Discussion I. Appellants first contend that the court erred when it admitted expert testimony regarding average IQ loss among children exposed to lead poisoning. Appellants claim Brunson’s counsel did not establish a reliable basis for the expert’s opinion regarding Jamall’s and Jamika’s brain damage since other factors contributed to their injury — Richardson’s alcoholism and diabetes; her continued alcohol consumption during her pregnancy with Jamall; her premature delivery of Jamika, whose birth weight was about four pounds; and the children’s allegedly poor “home environment.” They further argue that the expert’s conclusion that the children “lost something” and that Jamall is “not as smart as [he] would have been without the lead” is inadmissible because it lacks “certainty” and “specificity.” We disagree. Under Maryland law, the standard for the admissibility of expert evidence is whether the finder of fact can receive appreciable help from an expert on the subject matter. No longer need the ³³⁶ subject matter be so far “beyond the ken of laymen” that the finder of fact could not have any understanding of the particular issue without expert help. 6 Lynn McLain, Maryland Practice § 702.1 (1987) (citations omitted). “The admissibility of expert testimony is largely within the discretion of the trial court.” Ali v. State, 67 Md.App. 339, 346 , 507 A.2d 648 (1986), aff'd, 314 Md. 295 , 550 A.2d 925 (1988). “Seldom will the decision in this regard constitute grounds for reversal.” Simmons v. State, 313 Md. 33, 43 , 542 A.2d 1258 (1988). “[T]he proposed expert testimony must be competent, that is, the expert’s conclusions must be based upon a legally sufficient factual foundation.

Ideally, the expert will testify from firsthand knowledge, such as that gained from a personal examination of an individual____” Id. at 41-42 , 542 A.2d 1258 . In the case sub judice, Dr. Julian Chisolm, a pediatrician at Kennedy-Kreiger Institute, was qualified, without objection from Appellants, to testify as an expert to the existence, causes, and consequences of lead exposure in children, and the treatment of children so affected. Dr. Chisolm explained for the jury the general effect lead poisoning has on a child’s learning process. I think, if we are dealing with what might be called low level or moderate level lead exposure in which we don’t see any symptoms, the child doesn’t vomit, he doesn’t have belly pains or any serious thing, he at least appears to be well, the main affect [sic] of that is learning disability, and that’s been demonstrated, I think, in a number of studies around the world.

You are really not able to demonstrate this until they reach school age. All of the damage is being done when they’re much younger. Dr. Chisolm explained that the main way in which the amount of lead in a child’s body is measured is in the blood. He then provided testimony regarding the loss of IQ as a result of a child’s ingestion of lead. [A]s the average blood lead concentration increases above the baseline of ten, for every ten microgram increment, in ³³⁷ the various studies that have been published, you get a loss, an average loss, in large groups of children of about four points on the IQ So you would expect that all other things — and in these studies, other things are taken into account, how good the mothering is, how old the mother is, is it the first baby, so forth and so on.

The main thing is the nurturing the child gets. It appears you lose, on average, about four points on the IQ, and that’s been pretty consistent, I would say, around the world. With regard to the research upon which he based his testimony, Dr. Chisolm explained: The studies are designed to exclude obvious things. They would exclude gross prematurity, two pound babies, for example, and they would exclude other obvious things.

I think if a child — if some children get hit on the head, as you say, that child might be excluded or the data would be analyzed with and without him. Dr. Chisolm testified that the 1991 United States Center for Disease Control guidelines set the maximum acceptable level of lead in the blood at ten micrograms per deciliter. He explained that the level of lead in Jamall’s blood reached fifty-nine micrograms per deciliter in September 1986. He then proceeded to testify as to the specific effect of lead poisoning on Jamall’s IQ.

I would think that he probably, if we judge these blood leads over these first three years or so of life, one would say that he probably had lost eight to ten [IQ] points, but I would knock that down on two accounts. One, his mother is diabetic, and two, there is evidence in the record that she was alcoholic, so we have to take that into account, and I think I knocked that down to maybe six to eight [IQ] points. Appellants’ counsel did not object to the testimony. Dr. Chisolm testified that Jamika had thirty-six micrograms per deciliter of lead in her blood.

He explained that Jamika ³³⁸ • might have lost, all other things being equal, perhaps seven to eight [IQ] points, but we have to knock that down, again, because of her mother’s probable deficiencies. And so I think I estimated four to no more than six [IQ] points. Again, Appellants did not object to counsel’s inquiry. We find that Appellants did not preserve this issue for our review since at no time did they object to the testimony.

See Rule 2-517(a), 8-131(a). Because we believe that this is an issue that will arise in the future, we exercise our discretion and address it at this time, even though it was not preserved. The court did not abuse its discretion when it allowed Dr. Chisolm to testify as to average IQ loss among children suffering from lead poisoning. Any reference to studies of average IQ loss — while not dispositive of the children’s injuries — offered “appreciable help” to the jury to determine the extent of the injuries Jamall and Jamika sustained, and was not mere conjecture or speculation.

McLain, supra, § 702.1; see, e.g., Lumber Terminals, Inc. v. Nowakowski, 36 Md.App. 82, 92 , 373 A.2d 282 (1977) (“[E]vidence of the present value of future lost earnings is not improper per se, and when offered, may be a valid consideration by the jury.”); cf. Byrum v. Maryott, 26 Md.App. 130, 134 , 337 A.2d 142 , cert. denied, 275 Md. 753 (1975) (“ ‘[c]ertainly evidence tending to show only a possibility of permanency is not sufficient to take that issue to the jury.’ ” Based on his expertise, as well as his evaluation of each child, Dr. Chisolm testified that Jamall and Jamika ingested lead into their blood in quantities sufficient to cause brain damage. He also gave the opinion that the children ingested lead-based paint while residing in the Building. Further, Dr. Chisolm fully considered the effect of other factors, such as the mother’s alcoholism and the children’s home environment, on the children’s IQ loss. See Simmons, 313 Md. at 43 , 542 A.2d 1258 ; see also McLain, supra, § 703.1 (“The basis for an expert’s opinion must suffice to support a reasonably accurate conclusion.”).

Accordingly, had there been a timely objection, we would still have held that the court did not abuse its discretion. ³³⁹ II. The court refused to qualify Dr. Barry Hurwitz, a psychologist, as an expert on the issue of medical causation. Appellants claim that the court erred when it did permit Dr. Hurwitz to testify to damage to certain parts of the brain caused by the lead poisoning. Appellants assert that Dr. Hurwitz’s testimony was not relevant since Dr. Chisolm — the only expert qualified to testify as to causation — determined that the children did not suffer any brain damage.

As a result, they maintain the testimony confused and misled the jury. We disagree. There is a “long-standing principle that the admission or exclusion of evidence is a function of the trial court which, on appeal, is traditionally viewed with great latitude.” Ellsworth v. Sherne Lingerie, Inc., 60 Md.App. 104, 118 , 481 A.2d 250 (1984) , rev’d on other grounds, 303 Md. 581 , 495 A.2d 348 (1985) . “An appellate court will only reverse upon finding that the trial judge’s determination was ‘both manifestly wrong and substantially injurious.’ ” Lomax v. Comptroller of the Treasury, 88 Md.App. 50, 54 , 591 A.2d 1311 (1991) (quoting Paige v. Manuzak, 57 Md.App. 621, 633 , 471 A.2d 758 , cert. denied, 300 Md. 154 , 476 A.2d 722 (1984)). During cross-examination, Appellants’ counsel directed Dr. Chisolm to consider Kennedy-Kreiger Institute records and other data that showed that in 1990 Jamika had an IQ of 87, and in 1991, an IQ of 113, and that Jamall’s IQ increased from 94 in 1990 to 107 in 1991.

Counsel questioned whether it would be impossible to assign brain damage to children whose IQ subsequently improved. [Counsel]: Isn’t it true, based on that, that it would not be possible to assign any brain damage to these two children? [Dr. Chisolm]: I think you could still say — one of the things that corroborates that is they were both reading at or above grade level on the wide range achievement test, so it’s quite consistent with that. I’d still have to say that they would have been a little smarter. ³⁴⁰ Dr. Chisolm testified, during cross-examination, that, although each child’s IQ increased, they still “would have been a little smarter” without being exposed to lead: Moreover, putting this testimony in its proper context, at the time Jamall’s and Jamika’s IQ’s were tested, they were living in South Carolina with their grandmother, and Dr. Chisolm posited that the new environment “stimulated” the children. At no time did Dr. Chisolm concede that the children did not suffer brain damage. Indeed, during his. direct examination, Dr. Chisolm testified extensively that, but for their being exposed to lead poisoning, the children’s IQ’s would be higher.

The court ruled that Dr. Hurwitz was qualified to testify' as an expert “strictly” within the area of psychology, and [could] render an opinion regarding neuropsychological testing and their results.” Dr. Hurwitz testified that, based on his expertise, both children suffered brain damage. On two occasions, Appellants’ counsel directly solicited from Dr. Hurwitz additional references to blood lead levels. Appellants’ counsel explicitly asked: Now, the studies that Doctor Needleman, for instance, has done, and which you have relied upon in the past have indicated that half of the children with elevated lead levels may have a problem, isn’t that true? (Emphasis added).

We hold that the court correctly admitted the testimony into evidence. Contrary to Appellants’ bald assertion, Dr. Chisolm’s testimony, in its entirety, was that exposure to lead more likely than not caused the children to suffer brain damage. See Byrum, 26 Md.App. at 134 , 337 A.2d 142 ; McLain, supra, § 702.1. Dr. Hurwitz opined that Jamall and Jamika were brain damaged.

Any references to lead poisoning by Dr. Hurwitz, assuming arguendo that his remarks were improper, were of de minimis effect. Moreover, Appellants solicited similar testimony and thereby waived any objection. See Rule 8-131(a). ³⁴¹ Ill Appellants suggest that the court committed reversible error when it admitted into evidence an economist’s report that projected the children’s future incomes. They maintain that, since Jamall and Jamika did not suffer permanent injury or “specific IQ loss,” the report was “irrelevant, unreliable, and misleading.” They also argue that, assuming arguendo the children did suffer permanent injury, any projection of future earning capacity constitutes “conjecture” and “speculation.” We conclude that Appellants waived their objection to the admission of this testimony.

See Rule 8-131(a). Appellants stipulated without objection to the report’s admissibility they now contest. Thus, we need not address the merits of this issue.

IV

Appellants suggest the court committed reversible error when it permitted Brunson’s counsel to impeach Chodak •with notices of four lead-based paint violations at locations other than the Building. They argue Chodak’s testimony— that he was unaware of the dangers of lead-based paint, and specifically, the harm it causes children — -was not inconsistent with his deposition testimony. Since Chodak was an adverse witness, and therefore, “[Brunson’s] theories as to the basis for [Chodak’s] alleged knowledge were amply in evidence,” Appellants further contend the impeachment was cumulative and unduly prejudicial. We disagree.

Under Maryland law, a witness may be impeached by cross-examination to show that the witness previously made a statement ... in a way inconsistent with his ... testimony relevant to the case. The statement ... must contradict the trial testimony either expressly or by omission. The contradiction or inconsistency must be significant. The inference then may be made that the witness could not have been correct both times and may be wrong at trial either because of faulty memory or deliberate prevarication. ³⁴² McLain, supra, § 613.1 (footnotes omitted); see also Bane v. State, 73 Md.App. 135, 154 , 533 A.2d 309 (1987) (“a witness may be impeached by cross-examination to show that the witness previously made a statement contrary to the one made on the witness stand”); cf. Eagle-Picher Indus., Inc. v. Balbos, 84 Md.App. 10, 88-89 , 578 A.2d 228 (1990), modified, 326 Md. 179 , 604 A.2d 445 (1992) (a witness’s prior inconsistent statements are not admissible for impeachment purposes when the only testimony at trial is in the form of a deposition and counsel does not call the deponent to the stand and confront him with the prior statements).

Appellants filed a motion in limine to exclude evidence of housing code violations at any locations other than the Building. Before trial, the court heard argument on the motion. The court deferred ruling on the motion. During direct examination, Chodak denied knowing that exposure to lead can cause children to experience learning problems.

The testimony was as follows: Q: Isn’t it a fact, Mr. Chodak, that at least at some time prior to January 1986, you had read in the newspapers that there was a problem with lead based paint? A: Yes. Q: And isn’t it a fact, furthermore, that you knew that that caused injuries to children, lead based paint? A: I think that what it caused to children was something I wasn’t quite sure of.

I’m not really — I am not a pysician [sic], so I don’t really know what, if any, injuries it causes to children. Q: Isn’t it a fact that you know that it can cause learning problems in children and that it can be potentially serious? A: Are you asking me if I know that or if you know that? Q: Did you know that at the beginning of the year 1986?

A: I don’t know if I did know that. Q: Do you recall having a deposition taken in April of 1988? A: Yes, I do. In April of 1988?

Yes. Yes. ³⁴³ Q: And in that deposition I asked you the following question, we were focusing on a period earlier than we are now. “Would you please tell us what your understanding prior to October of 1983 was of the affect [sic] lead based paint ingested by kids could have on kids?” Your answer at that time was, and I quote you — and you were under oath at that time? A: Yes. Q: “My understanding was that it could cause learning problems in children, that the damage could be potentially serious, and that it could be depending on the levels of lead, that it could cause irreparable damage.” Now you said that you had that knowledge prior to 1986 at one point in time.

You [sic] saying something different now, or do you acknowledge— A: I think if you will go to my deposition in this particular case, sir, you will note in that deposition that I — you asked me that question again, and I asked — I informed you at that time — it’s in the deposition, that I thanked you for asking me that question again because I reflected on that answer, and it was an incorrect answer that I had given you back in 1988, and that I rephrased my answer to that question in the current deposition. Q: What is the corrected version of what your knowledge was? A: The corrected version is in the deposition which I gave you in this case, which is that I did not know what injuries could be caused to children. Q: Are you saying that when you were deposed under oath in 1988 and said you knew before in 1986 that lead can cause irreparable, that means you can’t fix it, injury in kids, you were wrong?

A: I was wrong in that answer, yes. ³⁴⁴ Q: But you are right now in saying you didn’t really know for sure what harm it caused? A: That’s correct. At that point in the examination, and based on Chodak’s testimony, counsel again requested the court to deny Appellants’ motion in limine, and to allow into evidence the violation notices. The court denied the motion.

Counsel then proceeded to offer into evidence “Emergency Violation Notiee[s] and Order[s] to Remove Lead Nuisance from a Property Located at” (1) 1950 Perlman Place, dated November 22, 1985; (2) 1410 Holbrook Street, dated July 1984; (3) 937 North Washington Street, dated August 11, 1983; and (4) 2227 East Biddle Street, dated July 10, 1981. Each notice contained the following language: It has been determined ... from blood level results and investigation by the Baltimore City Health Department that a child who frequents the above dwelling has an abnormal blood lead level. An inspection of this dwelling shows it contains lead based paint. Such condition has been deemed by the Commissioner of Health to be hazardous to life and health and public health nuisance.

The court instructed the jury: This evidence has been introduced not for the purpose of establishing that because one piece of property managed by Scoken had lead violations other properties of Scoken had lead violations. It is not being offered for that purpose. It is being offered strictly for the purpose of determining whether Mr. Chodak, the present witness, had knowledge of the possible dangers of lead paint. Counsel then solicited testimony from Chodak that he knew in 1986 that older houses, those built before 1957, contained lead-based paint; that the Building is old; and that peeling lead-based paint was dangerous to children.

We hold that the court did not abuse its discretion when it admitted into evidence the four notices, as well as testimony that Chodak received other such notices. Chodak’s deposition ³⁴⁵ was flatly inconsistent with his trial testimony and, therefore, counsel’s impeachment by way of showing that he received four notices of lead nuisance violations was proper. Moreover, what Chodak knew or should have known with regard to the possible dangers of lead-based paint to children was highly probative of whether Appellants were on notice of the dangerous condition, and negligently failed to warn the tenants of hazards within the Building. The court further cautioned the jury that the evidence of the prior notices was not being offered substantively but, rather, to assist the jury in determining whether Appellants did, in fact, have knowledge of the potential danger of lead-based paint to the children.

Finally, Appellants argue that the court erred when it allowed counsel to question Chodak about the illegality of “intact” paint as opposed to “peeling” paint. In light of our discussion in Section VI., infra, we hold that counsel’s inquiry, although arguably irrelevant, was not “substantially injurious” to Appellants. See Lomax, 88 Md.App. at 54 , 591 A.2d at 1312-13 . Thus, reversal is not warranted.

V Appellants next insist that the court abused its discretion when it refused to admit into evidence Department of Social Services (“DSS”) records. Appellants claim evidence of Richardson’s alleged abusive home environment was relevant to their theory that factors other than exposure to lead contributed to the children’s injuries. They contend, therefore, that disclosure of social services records was “imperative” to an effective cross-examination of Dr. Chisolm. We disagree.

Brunson filed a motion in limine to exclude DSS records concerning Richardson’s suspected abuse of her older son, Benjamin, and unsubstantiated allegations of her neglect of Jamall and Jamika. Before ruling on the motion, the court asked defense counsel if he intended to offer into evidence records pertaining to her suspected abuse of Benjamin. Counsel replied: No, sir, not as to Benjamin Richardson. However, the other information, I think, is relevant because it tends to show the chaotic condition of the household in which these ³⁴⁶ children lived, which, under the evidence that will be presented, will be significant in terms of their development.

(Emphasis added). The court then granted the motion only as to records relating to alleged abusive incidents involving Benjamin. Appellants waived the issue of the admissibility of the record relating to specific references of the alleged abuse of Benjamin. See Rule 8-131(a).

The court subsequently granted the motion with regard to an unsubstantiated allegation of the mother’s neglect of Jamall and Jamika. Appellants concede that the court properly exercised its discretion when it excluded the record “as to the neglect charge.” See Zaal v. State, 326 Md. 54 , 76 n. 10, 602 A.2d 1247 (1992) (the privacy interest of education records of students “certainly is not so strong as the privacy interest protected by the statute” protecting [the disclosure of child abuse records]; State v. Runge, 317 Md. 613, 620-21 , 566 A.2d 88 (1989) (“ ‘[t]he statute was never intended to be a vehicle to permit the willy-nilly disclosure of the very records the Legislature sought to keep confidential.’ ”) Appellants’ contention is, therefore, limited to the court’s exclusion of “other records” that indicate that Richardson was a diabetic and an alcoholic and that the children’s home environment was in a state of turmoil. The record shows two social services files were offered into evidence. Exhibit ten contains the record that addresses the alleged abuse of Benjamin; exhibit eleven contains the record that addresses the alleged incidents of child neglect.

Appellants failed to direct this Court to the specific portions of the records within these two files that support their assertion. See Rule 8-504(a)(4). Since Appellants concede on appeal that the court was correct when it excluded the records as to the “neglect charge,” we will not examine exhibit eleven any further to decide this issue. See Rule 8-504(c).

We conclude that Appellants meant to direct us to parts of exhibit ten to support their assertion that, other than general references to the abuse of Benjamin, Richardson maintained an unstable home environment to the detriment of ³⁴⁷ the children’s development. The report shows that the disposition indicated by the social worker was that the family needed supportive services, but on April 11, 1980, since there were no further allegations of neglect or abuse, the case was closed. The court properly refused to admit the record into evidence. See Zaal, 326 Md. at 76 , 602 A.2d 1247 .

Richardson’s privacy interest was not outweighed by the need to disclose the report, particularly since the situation addressed in the report was dated about five years prior to the time the children ingested lead, and the case was closed soon thereafter. Further, Dr. Chisolm fully considered the effect of Richardson’s dysfunction and alleged chaotic home environment on the children’s development, as discussed in Section I, supra. To this extent, admitting the evidence would have been cumulative. See McLain, supra, § 611.2 (“The trial court, in its discretion, may exercise reasonable control over the examination of witnesses and the presentation of evidence, so as to avoid needless consumption of time.... ”).

VI

Appellants complain that the court erred when it denied defense counsel’s request