West v. Rochkind

MOYLAN, J. This case is about lead paint poisoning, but the appeal calls for us to analyze the use of the process of elimination to prove a necessary constituent element of lead paint poisoning. In order to infer backward from a subsequent effect to a particular antecedent cause by using the process of elimination, it is necessary for the proponent actually to eliminate all but one of the eligible causes. The process of elimination, as its name implies, demands some efficacious eliminating. A graphic illustration of the process of elimination in action is Dow v. L & R Properties, Inc., 144 Md.App. 67 , 796 A.2d 139 (2002), the case that is the fulcrum of this appeal.

We hasten to point out that our analysis in this case does not go to the ultimate proof of causation, but only to the use of the cause-and-effect relationship to infer a critical fact that enters into the ultimate question of causation. ¹⁶⁶ The Case Before Us In this lead paint case, the Circuit Court for Baltimore City granted summary judgment in favor of the appellees, NBS, Inc., and Stanley Rochkind, who owned and operated a residential property, 1814 Lorman Street, from May 4, 1990, through June of 2001. The appellant, Dominique West (“Dominique”), alleged that he sustained injury from having ingested lead paint while living with his grandparents at 1814 Lorman Street from his birth in 1989 through February 10, 1992. The case was necessarily based on circumstantial evidence because no lead paint tests were ever conducted on 1814 Lorman Street and the property has since been razed. Answers to interrogatories and deposition testimony by Dominique’s mother, Yarrell Duppins, revealed that Dominique either resided or spent substantial amounts of time at a variety of different residences during the first six years of his life—including 1814 Lorman Street, 428 Cummings Court, 1311 Ballard Way, and 2696 Aisquith Street.

Judge Lawrence P. Fletcher-Hill ultimately ruled that Dominique had not made out a prima facie case of negligence against the appellees. He reasoned that, given Dominique’s uncertain residential history and the lack of any direct evidence that 1814 Lorman Street ever contained lead paint, Dominique could not point to 1814 Lorman Street as the source of his lead poisoning. We agree with Judge Fletcher-Hill and, for the following reasons, shall affirm the judgment of the circuit court. A Chaotic Residential History Dominique was born prematurely, at 29 weeks, on June 28, 1989.

He weighed two-and-a-half pounds at birth. The evidence as to precisely where Dominique lived for the first six years of his life was ambiguous in the extreme. Dominique exhibited elevated blood lead levels in capillector screening tests performed on August 21, 1990, December 19, 1990, and March 11, 1991. Of present pertinence is that those test results all listed Dominique’s address as 1814 Lorman Street.

Dominique also exhibited elevated blood lead levels in capillec ¹⁶⁷ tor screening tests performed on January 21, 1992 and August 5, 1992, and in a confirmatory venipuncture test performed on April 22, 1992. Those test results all listed Dominique’s address as 428 Cummings Court. In answers to interrogatories signed by Dominique, he provided the following peripatetic residential history: Birth-1992: 1814 Lorman Street 1992-1994: 1311 Ballard Way Birth-1995: 428 Cummings Court 1994- 1995: ? ? ? Lakebrook Circle 1995- Present: 2696 Aisquith [Street] In a deposition taken on March 3, 2011, Dominique’s mother, Yarrell Duppins, testified that she resided at 1627 Appleton Street at the time Dominique was born.

When asked whether “anybody else live[d] there besides you, Willie West, Helen Brown, and after he was born, Dominique?” she replied “No.” Later in the deposition, however, she testified that her son, Dominique, went to stay with his grandparents (her mother and father) at 1814 Lorman Street “immediately after birth from the hospital.” For the first 11 months of Dominique’s life, however, the appellees were not yet the owners of 1814 Lorman Street. Yarrell Duppins also testified that her parents, Ethel and Calvin Duppins, were awarded legal custody of Dominique when he was four years old, i.e., in 1993 or 1994. That assumption of legal custody, however, only occurred after the Duppinses had moved away from 1814 Lorman Street. Ethel Duppins leased 1814 Lorman Street from some time before Dominique was born until she moved out on February 10, 1992.

In an earlier deposition, taken on November 11, 2009, moreover, Yarrell Duppins had testified that, “most of the time,” when she was living at various other addresses, including 1627 Appleton Street, 428 Cummings Court, 2430 Druid Hill Avenue, and 1311 Ballard Way, she would provide her parents’ address (1814 Lorman Street) instead of her own when seeking medical treatment. ¹⁶⁸ Dominique was evaluated at the Kennedy Krieger Institute for behavioral problems in August of 1998, when he was nine years old. By that point, Dominique’s legal guardian was his grandmother, Ethel Duppins. The Kennedy Krieger report states: “Dominique has been living with the Duppins [his grandparents] since the age of five. Prior to that period, he had lived with his mother.” That report effectively excluded 1814 Lorman Street as a place of residence, for by the time that Dominique was five his grandparents had moved away from Lorman Street.

Over the span of 20 years, of course, memories inevitably had dimmed. Above and beyond the memory problem, however, the living arrangements for the infant Dominique appear to have been haphazardly pillar to post. Summary Judgment Rochkind and NBS filed a motion for summary judgment on December 9, 2011; Dominique responded on December 29, 2011. In opposing summary judgment, Dominique freely acknowledged that no test for lead paint had ever been done at 1814 Lorman Street and that no direct evidence, therefore, existed to identify that address as a source of Dominique’s lead paint exposure.

Dominique argued, however, that, even in the absence of direct evidence, circumstantial evidence can suffice to establish the site of the exposure. His primary reliance for that proposition was on Dow v. L & R Properties. In Dow, to be sure, the identification of the situs of the lead paint exposure had been based exclusively on circumstantial evidence. Judge Fletcher-Hill held a hearing on February 10, 2012, and orally granted summary judgment in favor of NBS and Rochkind.

He explained: Because in this case there is no direct evidence of whether the property at 181k Lorman contained lead based paint or not, the only basis on which the plaintiff could proceed would be a Dow-like circumstantial theory. Dow certainly doesn’t articulate the only circumstances in which there might be circumstantial proof of lead exposure. But the ¹⁶⁹ critical fact in Dow was that the plaintiff could establish that the property at issue was the exclusive possible place where the plaintiff was exposed to lead and therefore, that, combined with the age of the property and the high blood lead levels of that plaintiff amounted to a sufficient circumstantial case for exposure at that property and therefore the existence of lead based paint at that property. Here, however, the plaintiffs own statements in interrogatory answers establish two different places of residence or substantial visitation during the period from birth to 1992 where he specifies living at 181b Lorman Street and spending a lot of his time at b%8 Cummings Court So the conclusion available to a plaintiff in Dow is not available to this plaintiff by his own statements because he has created the possibility of two different locations as the possible source of his exposure during that period.

If I had concluded ... that in fact the confusion in this case was over sequential residences, then that would be a very different matter. Because in that case, the plaintiff would have shown that during a particular period, if he did live at Lorman Street, that was the only place that he might have been exposed. But ... based on his interrogatory answer, that is not the case. And therefore, Dow is not available to him.

On that basis, I find that as a matter of the undisputed facts, though there are many factual discrepancies here, but based on the best view of the facts for the plaintiff on his own interrogatory answers, he has failed to make a prima facie case for a negligence case based on 181b Lorman Street. And I will therefore grant summary judgment. (Emphasis supplied). Judge Fletcher-Hill confirmed his ruling in a written order entered on February 13, 2012.

Dominique is appealing from that grant of summary judgment. Circumstantial Evidence and Its Limitations In Dominique’s view, he produced more than enough evidence, based on his reading of Dow , to get to a jury on the question whether the paint at 1814 Lorman Street contained ¹⁷⁰ lead. He contends that Judge Fletcher-Hill erred as a matter of law by requiring that he show that 1814 Lorman Street was the “exclusive possible place of exposure” in order to make out a prima facie circumstantial case of negligence. He maintains that he was only required to show that 1814 Lorman Street was a cause, not the only cause, of his lead paint poisoning.

In a general sense that may be true, but he cannot even show that it was a cause, in the absence of any lead paint testing, without showing that it was the only possible explanation for Dominique’s lead poisoning. In this unusual “Catch 22” scenario, Dominique must show, in the absence of any direct or other efficacious circumstantial evidence of lead paint, that 1814 Lorman Street was the only cause for the medical effect even to prove that 1814 Lorman Street was a cause of lead poisoning. The appellees agree that a plaintiff may prove a negligence case using only circumstantial evidence if that evidence creates “a reasonable likelihood or probability” of negligence, rather than a mere possibility of negligence. The appellees contend that our holding in Dow rested on the critical undisputed fact that the plaintiff had lived nowhere else but at the subject property and could not have been exposed to lead elsewhere.

The appellees agree that multiple actors may be liable for multiple acts of negligence that separately contribute to a plaintiffs injury, but maintain that a plaintiff must still put forth sufficient evidence to make out a prima facie case of exposure at each alleged source. The appellees reject Dominique’s assertion that it was up to them to show another source of lead exposure. They point to deposition testimony by Dominique’s own expert witness, Michael Weitzman, M.D., opining that 1814 Lorman Street, 428 Cummings Court, 1311 Ballard Way, and 2696 Aisquith Street were all sources of Dominique’s lead exposure between his birth and the age of seven. There is no dispute that a negligence case may be proven using only circumstantial evidence, so long as it creates “a reasonable likelihood or probability rather than a possibili ¹⁷¹ ty” supporting a “rational inference of causation,” and is not “wholly speculative.” See Lyon v. Campbell, 120 Md.App. 412, 437 , 707 A.2d 850 (1998) (citing Myers v. Bright, 327 Md. 395, 399 , 609 A.2d 1182 (1992); Peterson v. Underwood, 258 Md. 9, 17-18 , 264 A.2d 851 (1970); Otis Elevator Co. v. LePore, 229 Md. 52, 57 , 181 A.2d 659 (1962)).

We are not proposing the process of elimination as a necessary standard of proof on the ultimate issue of tortious liability. We are dealing, rather, with an instance where the use of the process of elimination was required to establish a constituent fact which is a necessary part of that circumstantial evidence. We are not juxtaposing 1) exclusivity demanded by the process of elimination with 2) probability established by circumstantial evidence as opposing