Tuesday, September 18, 2018

“Analytical Gaps” Analysis Re-examined by Maryland Court of Appeals

Stanley Sugarman, et al. v. Chauncey Liles, Jr., July 31, 2018 (Court of Appeals of Maryland)

Last summer, the Maryland Court of Appeals issued an opinion in Rochkind v. Stevenson, 454 Md. 277, 164 A.3d 254 (2017), holding that the trial court abused its discretion when it admitted expert testimony linking a plaintiff’s ADHD diagnosis with lead poisoning when the expert relied on studies that did not adequately demonstrate a causal link between lead exposure and a general and specific ADHD diagnosis.[1]  Judge Adkins wrote for the Rochkind Court, concluding that the expert’s testimony suffered an “analytical gap” between the data relied upon by the expert and expert’s proffered testimony, and, therefore, should not have been admitted.  The Maryland Court of Appeals recently issued an opinion in Stanley Sugarman v. Chauncey Liles, Jr. in which the Court reexamined its analysis in Rochkind.

            The underlying facts and procedure in Rochkind and Sugarman are strikingly similar.  Both were lead-paint tort suits filed by minors alleging that lead exposure caused cognitive defects in the form of attention decrements.  In both trials, the respective plaintiffs introduced expert testimony from pediatricians who reviewed, relied upon, and based their respective opinions on findings contained in the Environmental Protection Agency’s publication entitled “Integrated Science Assessment for Lead” (“EPA-ISA”), which, on appeal, was the subject of intense scrutiny.

            The EPA-ISA is an integrated science assessment that collected, reviewed, synthesized, and broadly evaluated high quality epidemiological studies and their various health outcomes.  The EPA-ISA analysis reveals a causal relationship between lead exposure and attention decrements, impulsivity, and hyperactivity in children.  The EPA-ISA does not specifically identify types of attention decrements found, nor does it specifically discuss processing speed or auditory encoding.  The EPA-ISA also does not make a general or specific causal connection between lead exposure and certain neuropsychological disorders such as ADHD.

Following verdicts in favor of the plaintiffs in the Rochkind and Sugarman trials, the respective defendants appealed.  On appeal, the Rochkind and Sugarman defendants argued that the trial court erred in admitting the plaintiffs’ respective pediatric experts’ causation opinions for lack of an adequate factual basis pursuant to Maryland Rule 5-702.  Unlike the outcome in Rochkind, however, the Sugarman opinion affirmed the trial court’s decision to permit the causation testimony of the plaintiff’s pediatric expert.  This decision hinged on critical distinctions in the analyses and opinions offered by the experts in each case.

In Rochkind, the plaintiff’s pediatric expert testified that that the plaintiff’s lead poisoning was a significant contributing factor to all of the plaintiff’s neuropsychological problems, including the plaintiff’s ADHD diagnosis.  The Maryland Court of Appeals noted that the studies in the EPA-ISA do not go so far as to state that lead exposure causes ADHD.  The Court further noted that the EPA-ISA recognized that an ADHD diagnosis is also attributable to factors such as socioeconomic status and parenting.  Without any other scientific evidence or epidemiological studies to support the opinions that lead exposure causes ADHD in general, the Rochkind Court held that the plaintiff’s pediatric expert’s testimony was not based an adequate supply of data as required by Maryland Rule 5-702.

In the Sugarman trial, the plaintiff introduced the findings of a neuropsychological examination showing the plaintiff exhibited deficits in auditory encoding of information and information processing speed.  The plaintiff’s pediatric and neuropsychological experts testified that these deficits are factors of attention, within the realm of general attention deficits, and the literature states that general attention deficits can result from lead exposure.  The plaintiff’s pediatric expert further opined that the cognitive deficits identified by the neuropsychological exam were caused by the plaintiff’s early lead exposure and are permanent.  In contrast with Rochkind, the Sugarman plaintiff offered no expert testimony on whether lead exposure caused or contributed to any specific learning disability or behavioral disorder.

The Maryland Court of Appeals held that the Sugarman plaintiff’s pediatric expert’s opinions were supported by the findings in the EPA-ISA, and were based on an adequate factual basis comporting with Maryland Rule 5-702.  The Court explained that the Sugarman pediatric expert was permitted to reasonably extrapolate from existing data in support of the expert’s opinions, which is, in fact, what the Sugarman pediatric expert did when analyzing the results of the plaintiff’s neuropsychological examination results in concert with the review of the EPA-ISA.  The Court distinguished Sugarman from Rochkind noting that the Sugarman plaintiff’s experts testified to generalized attention deficits that the EPA-ISA identified as being caused by lead exposure, rather than offering opinions that the lead exposure caused or contributed to specific diagnoses or disorders.  Accordingly, the Court found that the pediatric expert’s opinions in Sugarman did not suffer the same “analytical gap” as the opinions of the pediatric expert in Rochkind.

A review of Rochkind and Sugarman serves as an important reminder for practitioners when vetting experts to thoroughly examine the literature upon which experts base their opinions to ensure there are no perceived “analytical gaps” that threaten to invalidate the admissibility of the experts' critical opinions.

-          -Benjamin A. Beasley, Associate Attorney

[1] For more information on the Rochkind decision, please read the article submitted by RSRM Associate Attorney, Benjamin A. Beasley, located here.

Thursday, September 13, 2018

RSRM Congratulates its Attorneys on their Recent Appointments!

Partner Tara A. Taylor was recently appointed as the Co-Chair of the Maryland State Bar Association's Judicial Appointments Committee, which is responsible for reviewing and recommending candidates for the Maryland Judiciary. 

She was also appointed to the Board of Trustees for the Baltimore City Bar Foundation for a second year.

Associate Rima A. Kikani was appointed as Co-Chair of the Education Committee of the Maryland State Bar Association's Young Lawyers Section Council for the 2018-2019 bar year. 

She was also appointed to the Maryland State Bar Association's Leadership Academy Committee, which oversees an annual program designed to train future leaders in the legal profession.

Associate Ashley M. Bond was selected to serve on the Maryland Defense Counsel's Young Lawyers' Committee and Workers' Compensation Subcommittee.

The Young Lawyers' Committee is responsible for attorney outreach as well as promoting the Defense Research Institute's activities and events. The Workers' Compensation Subcommittee works with attorneys, employers, insurers, the Workers' Compensation Commission, and the Maryland legislature to advance issues of importance within the field.

Monday, August 20, 2018

Maryland Expands the Scope of the Exceptions to the Statute of Repose Defense

SVF Riva Annapolis LLC, et al. v. Moreen Elizabeth Gilroy, et al., No. 66, September Term, 2017, Opinion by Adkins, J.
This past June, the Court of Appeals of Maryland held that the “possession and control” exception to the state’s Statute of Repose for injuries related to improvements to real property, is not limited to asbestos-related injuries.

A statute of repose bars certain claims after a specific amount of time has passed. In Maryland, the Statute disallows actions for defects or dangerous conditions resulting from “improvements to real property” after 20 years have passed since the improvement. CJP § 5-108(a). However, there are four exceptions that eliminate this protection. The first exception provides that the protection will not apply when the “Defendant was in actual possession and control of the property…when the injury occurred.” CJP § 5-108(d)(2)(i). The remaining exceptions relate to claims against providers of asbestos products. CJP § 5-108(d)(ii)-(iv).

The Gilroy case arose when survivors of the decedent filed suit against the owner and property manager of a shopping center and restaurant tenant, located in the shopping center, on the basis of negligence and premises liability. The decedent had set up a ladder on the wall of the restaurant, thinking it would lead to the roof, to do work. Unbeknownst to him, that wall led to an open-air garbage area through which the decedent fell to his death. 

During litigation, the defendants relied on a statute of repose defense, arguing that the building was completed more than 20 years before the accident. The plaintiffs invoked an exception to the statute—namely, the same defendants were still in possession and control of the property at the time of the injury.

The circuit court granted summary judgment in favor of the defendants, holding that the Statute of Repose was a proper defense to the claims, and the “possession and control” exception only applied to asbestos-related claims. The Court of Special Appeals reversed this decision, ruling that the first exception was not limited to asbestos-related claims. The Court of Appeals affirmed this ruling.

The Court determined that the “possession and control” exception, though in close proximity to the asbestos exceptions, is not limited to asbestos-related cases. The Court relied on the plain language of the Statute, explaining that the exception did not mention asbestos at all and the four exceptions were all joined by the disjunctive “or.” The Court also noted that when the asbestos exceptions were added in 1991, there was no discussion related to the “possession and control” exception, which was adopted in 1970. 

This decision expands the scope of the exceptions to the Statute of Repose. Instead of limiting the exceptions to asbestos-related cases, the Court held that the “possession and control” exception also applies to other cases where the defendants still possess and control the property at the time of the injury to the plaintiff(s). This decision will preclude the Statute of Repose defense in future cases where the defendants remain in control and possession of a property despite the 20-year limitation. 

-Mitchell Fine, Law Clerk

Friday, July 20, 2018

Maryland Court of Special Appeals Strikes Claimant’s Vocational Rehabilitation Expert, But Preserves Right to Jury Trial

Justin Stine v. Montgomery County, Maryland, No. 578, September Term 2017. Opinion by Nazarian, J.

Justin Stine (“Stine”), a volunteer emergency medical technician (“EMT”) for Montgomery County, injured his foot at work.  At the time of the injury, Stine was a university student studying nursing and had approximately two years left before he would earn his degree.  He worked part-time for a private ambulance company, Lifestar, during the school year.  He worked full-time in the summer.  Stine’s injury occurred while school was in session.  Stine filed a claim for lost wages and went before the Workers’ Compensation Commission to determine his average weekly wage.

At the Commission, Stine submitted paystubs for the fourteen weeks preceding the accident.  The paystubs averaged $64.65 per week.  Stine also submitted three additional paystubs from his full-time work the previous summer.  During the hearing, Stine testified as to his hourly wage as well as several raises he received since the date of the accident.  The Commission inquired about his summer earnings, but ultimately determined that Stine’s average weekly wage was $64.65.

Stine filed a petition for judicial review in the circuit court and requested a jury trial.  Stine also retained a vocational expert to opine as to what Stine’s salary would be with further experience and education.  On the first day of trial, Montgomery County moved to strike the testimony of Stine’s vocational expert, arguing that the expert’s testimony related to an inapplicable statute, and thus, was not relevant.  Montgomery County also moved to strike the jury demand contending that the average weekly wage was a legal question, and therefore, was not suitable for jury review.  The court granted both of Montgomery County’s motions.  Stine then appealed to the Court of Special Appeals.

The Court of Special Appeals determined the circuit court did not err in striking the vocational rehabilitation expert’s testimony.  The expert’s testimony pertained to a general average weekly wage statute, while there was a more appropriate statute that dealt specifically with EMTs.  The EMT statute provided a different analysis for average weekly wages. 

The Court of Special Appeals then turned to Montgomery County’s motion to strike the jury demand.  Here, the Court of Special Appeals emphasized Stine’s request for essentially, a new trial before a jury.  During that jury trial, he could utilize information other than the pay records from the fourteen weeks prior to the injury when determining average weekly wage. The Court held that Stine’s right to a new trial before a jury was not removed simply because his expert was stricken.  Stine was still entitled to a jury trial on the factual question of his average weekly wage.

-Ashley Bond, Associate Attorney