Baltimore Lead Paint Verdict Reversed

Another new Maryland lead paint decision

The Maryland Court of Special Appeals reversed a $5.1 million (reduced to $1.25 million by the cap) lead paint verdict in a 91 page opinion written by Judge Shirley M. Watts.

The first 58 pages of this opinion are facts. But there are two real issues: (1) did plaintiff’s expert, a pediatrician, have the necessary qualifications to render the opinions that the lead exposure at defendant’s property caused the brain injuries alleged in this case, and (2) did the trial court properly sanction the defendant and his lawyer for alleged willful discovery violations.baltimoreflag

I don’t care much about the latter issue because I’m just not a big fan of monetary sanctions against counsel. I’m real interested in sanctions like spoliation instructions and other sanctions that actually give a tactical advantage. But the retail value of the paper used demanding monetary sanctions is greater than the actual amount of sanctions against counsel that have been awarded and paid. The issue in this case is interesting – the opinion breaks down in painful detail – but it is ultimately as useful to me as my recollection of the Baltimore Orioles 1979 batting order. (I do, however, recommend reading the details about these sanctions for the entertainment value. I’m amazed that Judge Watts did not even comment in an off-hand way about the trial court’s findings of extreme discovery violations. I would not have the same discipline.)

So on to the real issue: the qualification of the expert. The court found that even though the pediatrician was a licensed doctor and all, he really was not qualified or even prepared to render an opinion in this case. He had limited experience in treating kids with lead paint poisoning, never evaluating or diagnosing children with lead exposure or even following the progress of kids with lead exposure. In fact, he did not even recall treating a child for lead poisoning. His qualifications, distilled down to their essence, appear to be that he is a pediatrician who keeps up with the medical literature.

The expert’s opinion was pretty detailed, opining that the child lost between 3 and 10 IQ points while admitting he had never administered the test or understood much about it. The expert did something else that I’m surprised the jury did not find more problematic: he did not rule out alternative causes. This is usually the one thing that juries really make experts pay for failing to do. This jury did not hold the expert’s feet to the fire here, probably because this is a lead paint case. In the big picture, the jury probably thought that the child suffered a brain injury and the landlord did not really care. In most cases, I think this painful over generalization is spot on. Because that is Baltimore lead paint history in a nutshell.

You can find the opinion in City Homes v. Hazelwood here.

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