Charles Jerome Ware, Attorneys & Counselors, LLC, is a premier Maryland-based national landlord lead paint defense law firm. For an initial courtesy consultation, contact us at charlesjeromeware@msn.com, (410) 730-5016 or (410) 720-6129. We can help you.
THE CDC, HEALTH DEPARTMENTS, AND CASES
As I update these blogs in the area of lead-based paint poisoning litigation in Maryland, and particularly in Baltimore, several trends of significant concern to Baltimore landlords, property owners and property managers continue to develop through lawsuits.
The CDC (Centers for Disease Control) and Maryland health departments have consistently lowered "acceptable" blood-lead levels to the point where significantly more children are now legally classified as "lead poisoned." Many of these newly-classified children (victims) will go on to become plaintiffs in Baltimore lead-based paint poisoning lawsuits.
Certainly, to treat childhood lead paint poisoning claims as you would a typical landlord-tenant action would be naïve, irresponsible, and even dangerous. Investigation of these claims should be prompt and thorough, and must consider the complex medical and legal issues --- including, of course, the many multifaceted issues that may affect liability.
Despite the fact that numerous judges, other public officials, as well as commentators have suggested that in certain circumstances lead poisoning cases are "indefensible," we respectfully disagree with that view.
It is my view, and that of my law firm, that lead-based paint poisoning claims can be defended.
RECENT MARYLAND LEAD POISONING DECISIONS
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.
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