Rogers v. Home Equity USA, Inc.

GRAEFF, J. This appeal arises out of a complaint filed by Terrence Rogers, appellant, alleging that he suffered damages from exposure to lead while living at 3738 Towanda Avenue, in Baltimore, Maryland (the “Towanda Property”). In this Court, he challenges the order of the Circuit Court for Baltimore City granting summary judgment in favor of the owner of the Property, Home Equity USA, Inc. (“Home Equity”), appellee, on the ground that Mr. Rogers did not have sufficient evidence to demonstrate that the Towanda Property was the source of his lead exposure and elevated lead levels in 1997. ⁶²³ On appeal, Mr. Rogers presents one question for our review, which we have rephrased slightly, as follows: Did the circuit court err in granting Home Equity’s Motion for Summary Judgment on the ground that Mr. Rogers failed to establish that the Towanda Property contained lead-based paint, and therefore, he failed to meet his burden to show that the Property was a substantial factor in causing his injuries? For the reasons set forth below, we shall affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND Mr. Rogers was born on February 28,1994.

From his birth until March 1998, when he moved to New York with his mother, Toni Rogers-Coy, Mr. Rogers lived in numerous locations in Baltimore, often staying at each location for very brief periods of time. 1 For the first “couple months” after Mr. Rogers was born, he lived at 2828 Nevada Street in Baltimore. Later in 1994, after temporarily residing at various other locations, Mr. Rogers moved to 6149 Chinquapin Parkway in Baltimore (“6149 Chinquapin”), where he lived until approximately October 1996. 2 ⁶²⁴ For at least the first year of his residence at 6149 Chinquapin, the windows, doors, and radiators were in poor condition, with “broken pieces of paint.” Following his residence at 6149 Chinquapin, Mr. Rogers moved to the Towanda Property, which was built in 1920. He lived at that residence for approximately six months. With respect to the presence of lead in the Towanda Property, Mr. Rogers admitted evidence that, in 1976, 20 years prior to his residency, the Baltimore City Health Department (“BCHD”) required a lead abatement of the Towanda Property (the “1976 Abatement”) after an inspection and analysis showed that certain areas tested positive for lead in paint-chip sampling, and eight areas of flaking paint were in need of corrective action.

In October 1976, the BCHD issued an abatement card, indicating that abatement work had been completed. Subsequently, additional improvements were made to the property. In 1979, the Baltimore City Department of Housing and Community Development (“DHCD”) issued a building permit for a new gas boiler. In 1983, the DHCD issued a rehab permit, which involved roofing, carpentry, plumbing repairs, and painting.

In February 1994, DHCD issued a permit for $19,000 worth of rehabilitation work, which included re-stuccoing the home and repairing the rear decks. Ms. Rogers-Coy moved to the Towanda Property when “[s]omeone told [her] about it,” and she paid rent to another tenant who was “just trying to help [her] out until [she] got where [she] was trying to go.” Because she was not a party to the lease, she had no evidence of chipping, flaking, or peeling paint at the inception of the lease. She did not know ⁶²⁵ if the tenant owned the property, and she paid him “what [she] could.” In her deposition, Ms. Rogers-Coy described the windows in the Towanda Property as having “really bad” chipping and flaking paint, and she stated that they “were actually more flaky than Chinquapin was.” Ms. Rogers-Coy testified in her deposition that she left the Towanda Property between March and April 1997, after residing there for approximately six months. At that point, she and Mr. Rogers moved to 2534 Loyola Northway.

Mr. Rogers was tested for elevated lead levels on multiple occasions. His medical records show the following results, which the parties do not dispute: Blood Lead Date Level 3 Address 6/29/95 7 |xg/dL 6149 Chinquapin 3/25/96 14 |xg/dL 6149 Chinquapin 1/8/97 21 |xg/dL 3738 Towanda 3/26/97 20-21 fxg/dL 3738 Towanda 4/30/97 17-18 (xg/dL 2534 Loyola Northway 8/22/97 13 ]xg/dL Foster care/2534 Loyola Northway Following his test on January 8, 1997, Mr. Rogers was referred to the Community Health Nurse for evaluation. On March 17, 1997, a caseworker from the Lead Paint Poisoning Prevention Program met with Ms. Rogers-Coy at the Towanda Property. The caseworker noted that the house was “in very [] dilapidated condition.” Mr. Rogers, who was three years old at the time, was observed “mouthing the window sills in the house.” The property had flaking paint “inside and outside,” but Mr. Rogers was “listed as playing indoors and not outdoors.” As a result of Mr. Rogers’ increased blood lead level test on January 8, 1997, he was referred to the Kennedy Krieger Institute Lead Poisoning Prevention Clinic.

On March 26, 1997, Ms. Rogers-Coy took Mr. Rogers to Kennedy Krieger, and his blood lead level tested 20, 21 |xg/dL. Ms. Rogers-Coy reported at that time that Mr. Rogers was at the Towanda ⁶²⁶ Property “[a]ll the time,” and there was interior flaking paint on the ceiling, walls, window frame, windowsills, window wells, and woodwork. She reported exterior flaking paint on the front porch and window frames. There were no replacement windows.

During a follow-up appointment on April 30, 1997, while Mr. Rogers was living at 2534 Loyola Northway, his blood lead levels were 17,18 |xg/dL. On May 29,2013, Mr. Rogers filed a complaint in the Circuit Court for Baltimore City against Home Equity and the owners of 6149 Chinquapin, asserting claims of negligence and unfair trade practices relating to his alleged exposure to lead: (1) between 1994 and 1996 at 6149 Chinquapin, and (2) between 1996 and 1997 at the Towanda Property, which was owned by Home Equity. He alleged that, at all times during his tenancies, the properties contained lead-based paint in such a deteriorated condition that it was peeling, chipping, and flaking from the walls, baseboards, windowsills, and other areas of the premises, and that Home Equity and the owners of 6149 Chinquapin knew or had reason to know of the hazardous conditions. He alleged that, as a consequence of his exposure to lead-based paint, Mr. Rogers “suffered permanent brain damage resulting in developmental and behavioral injuries.” 4 On February 12, 2014, Home Equity answered the complaint, and discovery commenced.

Dr. Robert Simon, a Ph.D. with ETI Environmental Laboratory (“ETI”), provided a report including the following conclusions: It was my conclusion, to a reasonable degree of scientific probability, that [the Towanda Property] was a pre-1950 house confirmed with the presence of lead based paint by BCHD testing in 1976. The presence of lead based paint hazards was confirmed by BCHD in 1976 and on 03/17/97. The need for continuing abatement of lead based paint ⁶²⁷ hazards from 2008 to 2013 was listed in the [housing authority] records. It was my conclusion, to a reasonable degree of scientific probability, that the 21 gg/dL elevated blood lead levels of the plaintiff on 01/08/97 and 03/26/97 both occurred while he was living at [the Towanda Property].

The documented presence of lead based paint hazards and his [elevated blood levels] while residing there led me to conclude that [the Towanda Property] was a substantial contributing source of his lead exposure and lead poisoning during his early childhood. On December 8, 2014, Home Equity moved for summary judgment. In its motion, Home Equity asserted that, throughout his life, Mr. Rogers lived in, and was exposed to, lead in multiple residences, and therefore, he was unable to draw a causal relationship between his residence at the Towanda Property and any alleged damages. 5 Further, Home Equity asserted that Mr. Rogers’ expert witnesses, Arc Environmental, Inc. (“Arc”) and Dr. Simon, acknowledged that Mr. Rogers was exposed to lead at other residences and could not eliminate the other properties as the cause of his alleged injuries. Home Equity attached to the motion for summary judgment a November 1, 2013, report prepared by Arc, which showed that Arc tested the interior and exterior of 6149 Chinquapin and found lead-based paint above the Maryland standard.

An October 15, 2014, report issued by Arc with respect to the Towanda Property, however, indicated that Arc tested only the exterior of the Towanda Property, and Home Equity asserted that mere testing of the exterior of a home is not sufficient to establish that the home was a substantial contributing source of alleged lead exposure. ⁶²⁸ With respect to Dr. Simon, Mr. Rogers’ causation expert, Home Equity stated that, although Dr. Simon asserted in his report, which was attached to the motion for summary judgment, that the Towanda Property was a substantial contributing source of Mr. Rogers’ lead exposure, he conceded in his subsequent deposition that multiple properties likely contributed to Mr. Rogers’ lead exposure, and based on an elevated blood lead level of 14 p,g/dL on March 25, 1996, “there existed a substantial contributing factor to [Mr. Rogers’] lead exposure before he ever lived at the Towanda Property.” Dr. Simon admitted that he was not qualified to testify as to the specific causation of any injury to Mr. Rogers because he was not a medical doctor. He stated that he did not collect or analyze any samples in forming his opinion that the Towanda Property was a contributing cause of Mr. Rogers’ alleged injuries. Home Equity asserted that Dr. Simon’s conclusion that the Towanda Property was a substantial contributing cause of Mr. Rogers’ alleged lead exposure was based solely on the age of the property, 6 the deposition testimony of Ms. Rogers-Coy, documentation of the 1976 Abatement, which he opined was a “limited abatement,” and the lack of information that any flaking paint at the Towanda Property in the 1990s was not lead-based. 7 Home Equity asserted that Dr. Simon’s assertions “flatly contradict” Mr. Rogers’ burden of proving all facts essential to the cause of action, and Mr. Rogers had “put forth no affirmative evidence to show that lead paint at the Towanda Property — and not at some other property — caused his alleged injuries.” ⁶²⁹ On December 29, 2014, Mr. Rogers filed a response to Home Equity’s motion for summary judgment, asserting that he presented both direct and circumstantial evidence of the existence of lead-based paint at [the Towanda Property] as well as expert toxicological and medical testimony opining that there was more likely than not lead-based paint exposure at [the Towanda Property] and that [he] was injured as [a] result of that exposure. Mr. Rogers stated that he was not required to present direct evidence, “by way of interior testing,” to prove that his blood lead levels were caused by exposure to lead at the Towanda Property because there was evidence of deteriorated paint located in areas that were easily accessible to him at the property during his tenancy, and he experienced his “highest elevated blood lead levels while living” at the property.

He stated that he “had access to areas with chipping and flaking paint and was seen mouthing windowsills that tested positive for lead-based paint in 1976,” and he was not required to “rule out all possible sources of lead” exposure because there “can be multiple causes of injury.” In addition to Dr. Simon’s report indicating that the Towanda Property was a substantial source of Mr. Rogers’ lead exposure, Mr. Rogers attached an October 24, 2014, report from his medical expert, Dr. Jeanette R. McDaniel, in which she concluded that, based on the age of the property, the condition of the property during Mr. Rogers’ residency as described by Ms. Rogers-Coy, the home visit conducted by the BCHD in 1997, Mr. Rogers’ blood lead levels, his age and risk factors, the 1976 positive lead-testing of the property, the 2014 Arc testing, and the absence of gut rehabilitation, Mr. Rogers was exposed to lead at the Towanda Property. Mr. Rogers argued that, because he lived at the Towanda Property for six months, had access to areas of deteriorated paint at the property, and had his “highest sustaining elevated blood lead levels while he lived at the property,” the evidence was sufficient for a trier of fact to conclude that the Towanda ⁶³⁰ Property was a substantial contributing source of his lead exposure. In opining that Mr. Rogers’ exposure to lead at the Towanda Property was a “substantial contributing factor to his elevated lead levels,” Dr. McDaniel stated that “Chinquapin may have also contributed to his exposure but to a lesser degree.” 8 She concluded that Mr. Rogers “sustained injuries to his central nervous system from his lead exposure.” Although he was functioning in society and school, “his test scores and his ADHD as well as his executive function and working memory skills may have been affected by his lead exposure.” Dr. McDaniel stated that it typically takes 30-45 days after lead ingestion for blood lead levels to increase, and it takes the same amount of time for blood lead levels to decrease. She agreed that, if Mr. Rogers began living in the Towanda Property on January 1, 1997, a blood draw on January 8,1997 could not be a result of exposure at Towanda, but rather, it “would probably be more a reflection on where he left.” 9 She also agreed that, because the previous blood lead level he had was 14 gg/dL in March 1996, it was possible that Mr. Rogers’ 21 gg/dL blood lead level in January 1997 reflected a decrease in blood lead levels from what it was before he moved into the Towanda Property.

She further testified that an increase in blood lead level from 14 |xg/dL to 21 [xg/dL did not change the impact of Mr. Rogers’ injuries, but rather, the numbers were “just a reflection of his exposure of the lead load — lead load level — lead load at that residence, so he’s still suffering the same damages.” On January 23, 2015, the court held a hearing. Home Equity argued that it was entitled to summary judgment on two bases: (1) there was no evidence of medical causation; ⁶³¹ and (2) Mr. Rogers could not eliminate other sources of exposure to lead-based paint. With respect to causation, Home Equity argued that Mr. Rogers had not established that the increase in his blood lead levels were substantial enough to contribute to his injuries, noting that Dr. McDaniel testified that the increase in blood lead level from 14 pg/dL to 21 (xg/dL did not change the impact of Mr. Rogers’ injuries. With respect to Mr. Rogers’ inability to eliminate other sources of lead paint exposure, counsel argued that there was direct evidence of lead-based paint at 6149 Chinquapin, but there was no direct evidence of any lead-based paint in the interior of the Towanda Property.

To “connect the dots between a defendant’s property and plaintiffs exposure to lead” in a lead exposure case involving circumstantial evidence, a plaintiff must “rule out other reasonably probable sources” of lead exposure, which Mr. Rogers had not done, given the testimony that the Chinquapin property was a source of his lead exposure. Counsel for Mr. Rogers argued that the evidence showed that Mr. Rogers lived at the Towanda Property from October 1996 through April 1997, a period of approximately six months, and Dr. McDaniel opined that Mr. Rogers’ blood lead levels of 21 [xg/dL were attributable, to a substantial degree, to his residence at the property. Mr. Rogers asserted that there was “direct evidence of lead in the interior of the property” based on the 1976 lead testing and the lack of subsequent records showing “gut rehabilitation or significant rehab of the house.” Thus, he argued, the “same components that were tested positive with lead in 1976 were still there” during Mr. Rogers’ tenancy at the property. Moreover, in March 1997, the house was in a dilapidated condition, Mr. Rogers was seen chewing on the windowsills, and his blood lead levels were elevated.

Counsel stated that Mr. Rogers did not dispute that other properties contributed to his elevated blood lead levels, but he asserted that the evidence indicated that the Towanda Property was a “direct, actual, substantial contributing factor of those blood lead levels.” And recent ⁶³² testing of the Towanda Property showed “multiple areas of lead on the exterior of the property.” At the conclusion of the hearing, the court granted Home Equity’s motion for summary judgment. Initially, it noted that it rejected Home Equity’s argument that Mr. Rogers could not prove medical causation “because of Dr. McDaniel’s testimony that the level of 21, as opposed to 14, did not cause any additional injury to Mr. Rogers.” The court explained: I’m aware from other cases with testimony concerning cumulative levels and increased levels, and in addition, I think that the testimony at deposition of Dr. McDaniel is not conclusive. There is the reference ... suggesting that she would attribute additional injury to the higher level. And while there’s certainly grist for cross-examination in her later statement as well, I don’t find that that creates an undisputed state of facts that warrant summary judgment on that argument.

The court than addressed Home Equity’s second argument, that there was “insufficient evidence of the presence of lead paint as a source of exposure for Mr. Rogers in the Towanda Road property.” With regard to that contention, the court concluded “that the Plaintiffs in this case do not have sufficient evidence to proceed on those issues of source and source causation.” The court explained: The Plaintiffs in this case explicitly disavow any reliance on [Dow v. L & R Properties, 144 Md.App. 67 , 796 A.2d 139 (2002)] in a purely circumstantial theory[,] emphasizing the evidence that they have that a lead-paint hazard was present in this property in the mid 1970s. That certainly is evidence that the Plaintiffs can use, and I agree with Plaintiffs that that moves the ball beyond any presumption from the age of the house to actual evidence that lead paint existed in the house at one point. But I think the causal dots that are not connected for the Plaintiffs case are then the supporting evidence from which a jury could conclude that the same lead paint, which was present in the house in ⁶³³ 1976 or the mid 1970s, remained in the house in 1996 and 1997 when Mr. Rogers was allegedly exposed. [10] And I think the Plaintiff would have to rely on some other circumstantial theory to support those issues concerning the actual exposure in — alleged exposure in the 1990s. Because they’ve disavowed any reliance on Dow, and because their experts have not purported to exclude other sources or circumstantially demonstrate that the Towanda Road property was the source of both lead exposure and the elevated levels measured in 1997, I will grant summary judgment for this Defendant on that issue.

Following the hearing, the court issued an order granting Home Equity’s motion. On February 2, 2015, Mr. Rogers filed a motion for reconsideration. In his Motion for Reconsideration, Mr. Rogers argued, inter alia, that an inspection certificate filed by the owner of the Towanda Property in 2007 indicated that the property was not free of lead paint, showing that the lead paint found in 1976 had not been removed. He attached an inspection certificate issued by the Maryland Department of the Environment, which included the following five categories: (1) Lead Free; (2) Full Risk Reduction; (3) Modified Risk Reduction; (4) Lead Safe Qualified Offer; and (5) Lead Safe Not Qualified Offer.

The inspector checked the category “Full Risk Reduction.” A Full Risk Reduction certificate indicates that there is a reduced risk of lead exposure in a rental unit, and this standard is met by “passing the test for lead-contaminated dust, provided that that any chipping peeling, or flaking paint has been removed or repainted on interior and exterior of the rental dwelling unit.” Maryland Depart ⁶³⁴ ment of the Environment, Lead Poisoning Prevention Program: Lead Paint Certificates for Rental Housing (Rev. Jan. 2015). https://perma.cc/AAQ5-UHHP. In its opposition, Home Equity argued that this exhibit was “previously admissible as evidence,” but Mr. Rogers chose not to admit it, and reconsideration of summary judgment was not merited. On March 31, 2015, the circuit court issued an order declining to reconsider its decision. STANDARD OF REVIEW Maryland Rule 2 — 501(f) governs motions for summary judgment and provides that a trial 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.” Accord Reiter v. Pneumo Abex, LLC, 417 Md. 57, 67 , 8 A.3d 725 (2010).

A determination “[w]hether a circuit court’s grant of summary judgment is proper in a particular case is a question of law, subject to a non-deferential review on appeal.” Tyler v. City of College Park, 415 Md. 475, 498 , 3 A.3d 421 (2010). Thus, the standard of review of a trial court’s grant of a motion for summary judgment on the law is de novo. D'Aoust v. Diamond, 424 Md. 549, 574 , 36 A.3d 941 (2012). When we consider a circuit court’s order granting summary judgment, we “review the record in the light most favorable to the non-moving party and construe any reasonable inferences that may be drawn from the facts against the moving party.” Rhoads v. Sommer, 401 Md. 131, 148 , 931 A.2d 508 (2007).

Accord Reiter, 417 Md. at 67 , 8 A.3d 725 (“ ‘[W]e independently review the record to determine whether the parties properly generated a dispute of material fact and, if not, whether the moving party is entitled to judgment as a matter of law.’ ”) (quoting Livesay v. Baltimore County, 384 Md. 1, 10 , 862 A.2d 33 (2004)). We review “the same information from the record and decide[ ] the same issues of law as the trial court.” Heat & Power Corp. v. Air Prods. & Chem., Inc., 320 Md. 584 , 591- ⁶³⁵ 92, 578 A.2d 1202 (1990). If the facts in the record “ ‘are susceptible to inferences supporting the position of the party opposing summary judgment, then a grant of summary judgment is improper.’ ” Georgia-Pacific Corp. v. Benjamin, 394 Md. 59, 72 , 904 A.2d 511 (2006) (quoting Sadler v. Dimensions Healthcare Corp., 378 Md. 509, 533 , 836 A.2d 655 (2003)). “ ‘[T]he purpose of the summary judgment procedure is not to try the case or to decide the factual disputes, but to decide whether there is an issue of fact, which is sufficiently material to be tried.’ ” Id. (quoting Sadler, 378 Md. at 534 , 836 A.2d 655 ).

For summary judgment purposes, “ ‘[a] material fact is a fact the resolution of which will somehow affect the outcome of the case.’ ” Pence v. Norwest Bank Minn., N.A., 363 Md. 267, 279 , 768 A.2d 639 (2001) (citation omitted). “ ‘[T]he mere existence of a scintilla of evidence in support of the plaintiffs’ claim is insufficient to preclude the grant of summary judgment; there must be evidence upon which the jury could reasonably find for the plaintiff.’ ” Crickenberger v. Hyundai Motor America, 404 Md. 37, 45 , 944 A.2d 1136 (2008) (quoting Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 738-39 , 625 A.2d 1005 (1993)). “[W]hile a court must resolve all inferences in favor of the party opposing summary judgment, those inferences must be reasonable ones.’ ” Id. (quoting Beatty, 330 Md. at 739 , 625 A.2d 1005 ). Generally, we limit our review to the grounds relied upon by the trial court. Benway v. Maryland Port Admin., 191 Md.App. 22, 46 , 989 A.2d 1239 (2010).

Accord PaineWebber Inc. v. East, 363 Md. 408, 422 , 768 A.2d 1029 (2001) (“In appeals from grants of summary judgment, Maryland appellate courts, as a general rule, will consider only the grounds upon which the lower court relied in granting summary judgment.”). We may, however, affirm the grant of summary judgment on a ground not relied upon by the circuit court if “the alternative ground is one upon which the circuit court would have no discretion to deny summary judgment.” Warsham v. James Muscatello, Inc., 189 Md.App. 620, 635 , 985 A.2d 156 (2009) (quoting Dixon v. Dep’t of Pub. Safety & Corr. ⁶³⁶ Servs., 175 Md.App. 384 , 418 n. 19, 927 A.2d 445 (2007)), cert. denied, 414 Md. 332 , 995 A.2d 298 (2010). DISCUSSION Mr. Rogers contends that the circuit court erred in granting Home Equity’s motion for summary judgment on the ground