NEW BALTIMORE LEAD POISONING CASE TRENDS: DEFENSE VIEW

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In 2012 , 2013 and 2014  Maryland's two highest courts --- The Maryland Court of Appeals and the Court of Special Appeals --- placed a priority on the legal review of lead-based paint poisoning cases. Ten of those cases which more directly and immediately affect litigation of Maryland's civil lead-based paint poisoning lawsuits include the following:

1. Toliver v. Waicker, 210 Md. App. 52, 62 A.3d 200 (2013), cert. denied, 432 Md. 213, 68 A.3d 287 (2013). Decision: Management company president, in that position alone, is not liable personally as "operator" under the housing code.
2. Taylor v. Fiskind, 207 Md. App. 121, 51 A.3d 743 (2012), cert. denied, 431 Md. 221, 64 A. 3d 497 (2013). Decision :" Substantial Factor" causation expert lacks sufficient factual basis to opine within a reasonable degree of medical certainty that the residential unit was a substantial contributing source of the plaintiff's lead exposure.
3.Hamilton v. Dackman, 213 Md. App. 589, 75 A.3d 327, petition for cert. filed, Petition Docket No. 450, Sept. Term, 2013 : Decision: In order to make a prima facie case of lead paint poisoning, a plaintiff must show that the subject property was probably 9i.e., more likely than not) a source of exposure.
4. Dixon v. Ford Motor Co., 433 Md. 137, 70 A.3d 328 (2013). Decision :  A  Frye/Reed analysis of the admissibility of an expert's opinion based upon its general acceptance in the relevant scientific community is only necessary if that opinion involves a novel scientific method.
5. West v. Rochkind, 212 Md. App. 164, 66 A.3d 1145 (2013), cert. denied, 435 Md. 270, 77 A.3d 1086 (2013). Decision : A plaintiff may prove the presence of lead paint at a property by way of circumstantial evidence without XRF spectrometry or laboratory paint chip or dust testing.
6. Montgomery Mutual. Ins. Co. v. Chesson, 434 Md. 346, 75 A.3d 932 (2013). Decision: An expert's "novel" opinion as to causation due to toxic exposure must be generally accepted in the relevant scientific community before it can be deemed admissible.
7. City Homes, Inc. v. Hazelwood, 210 Md. App. 615, 63 A.3d 713 (2013), cert. denied, 432 Md. 468, 69 A.3d 476 (2013).  Decision: Expert's lack of qualifications and his insufficient factual basis
to offer an opinion, as well as his lack of knowledge of the source of the lead ingestion, ruled out his testimony at trial.
8. Ross v. Housing Authority of Baltimore City, 430 Md. 648, 63 A.3d 1 (2013).  Decision: Though the doctor was properly excluded as an "expert" at trial as to the "source" of the plaintiff's lead exposure, the exclusion of that testimony did not preclude the plaintiff from establishing the causal link by circumstantial evidence at trial.
9. Butler v. S & S Partnership, 435 Md. 635, 80 A.3d 298 (2013), Decision: A trial court may not, sua sponte, exclude an expert's opinions based on discovery violations found under Maryland Rule 2-432(b) without a party first moving for an order to compel discovery or filing a motion for discovery sanctions.
10. Hamilton v. Kirson;and Alston v. 2700 Virginia Avenue Assocs. 2014 Court of Appeals Cases.

     These two cases will be argued and considered on the issue of the admissibility of expert causation testimony and the legal sufficiency of a plaintiff's use of circumstantial evidence to prove causation.