Tuesday, November 4, 2014

Court Clarifies Expert Witness Parameters in Lead Paint Cases

The case of Roy v. Dackman, 2014 Md. App. LEXIS 116 (2014) stems from a lead paint action filed by the Roy family based on the alleged lead poisoning of Plaintiff Jakeem Roy (“Roy”) while the family resided at a home located on Oswego Avenue from May of 1997 to November of 1998. According to blood tests on September 17, 1997, Jakeem Roy tested positive for lead poisoning before the age of two. Subsequently, Roy filed a complaint against the owners of the row house where he lived as an infant.  Roy alleged that Elliot Dackman (“Dackman”), the owner of the row home, failed to comply with rules, regulations, and ordinances of the State of Maryland and the City of Baltimore that prohibit flaking, loose or peeling paint, use of paint with lead pigment, and rental of dwellings that contain flaking, loose or peeling paint. At the Circuit Court level, Plaintiffs did not successfully demonstrate that Roy’s lead poisoning was caused by the paint in the row home on Oswego Avenue. The trial court granted summary judgment in favor of the defense, which was affirmed by the Court of Special Appeals.

At the trial court level, the Plaintiff attempted to show that the Oswego Avenue row home was the cause of Roy’s lead poisoning based on the testimony of his pediatrician. The trial court excluded the testimony of Roy’s pediatrician, which resulted in the Plaintiff's inability to demonstrate a causal connection between Roy’s lead poisoning and the row home. The Court of Special Appeals found that it was appropriate to exclude the testimony of the pediatrician because he was not an expert in the field of lead paint poisoning. Without a medical expert, the Plaintiff’s secondarily argued that the cause of the lead paint poisoning could be shown through circumstantial, or indirect, evidence. The Court of Special Appeals disagreed with this argument as well.

The theory of causation in lead paint requires three things. First, the plaintiff must show a link between the defendant’s property and plaintiff’s exposure to lead. In order to do so, the plaintiff must provide facts and direct evidence about the link so that the evidence amounts to a reasonable probability, more than just a possibility. Second, the plaintiff must demonstrate a link between specific exposure to lead and the injuries allegedly suffered by plaintiff. The third element requires that the plaintiff demonstrate a link between the blood lead levels and the injuries allegedly suffered by plaintiff. This final link is where expert testimony is imperative. In the Roy case, the intermediate appellate court affirmed that the pediatrician was not an expert because he did not have any more than a “casual familiarity” with lead poisoning.

The Roy case stands for two separate principles: (1) the importance of expert designations in lead paint cases; and (2) the importance of expert testimony to prove a plaintiff’s damages, and the causal connection, in a negligence action. It is important to research an expert to ensure that he or she has the requisite background in a topic to withstand pre-trial motions. It is also important to research opposing counsel’s bases for causation, including any causation experts, to determine whether the proposed expert meets the threshold for qualification.

At RSRM, Partner Dennis Whelley is our resident expert attorney on the handling of lead paint litigation.  Should questions arise regarding lead paint matters, please feel free to contact him.  

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