The Maryland Court of Appeals issued an important opinion that is helpful for plaintiffs’ lawyers, albeit attorneys who are not on top of their game when it comes to getting their case ready for trial. I just got back from vacation last week and found it interesting enough to put down the 1,000 things that I have to do and read it.
Butler v. S&S Partnership is another lead paint case involving the usual cast of characters. One of the properties at issue was on Linden Avenue which rings a loud bell for anyone who had handled lead paint cases in Baltimore. The lure of Linden Avenue must be appealing: plaintiff’s claim against S&S General Partnership was premised on a claim that the child’s lead exposure during a one-month period caused him great injury.
At the close of discovery, S&S General Partnership and another defendant moved for summary judgment, arguing that there was no evidence the Linden Avenue property contained lead paint at the time the infant plaintiff lived there nor could plaintiffs’ link an elevated blood lead level to that one month window. In response, plaintiffs produced an affidavit by Dr. Howard M. Klein, M.D.
I know Dr. Klein well from my defense days. I knocked him out in one case only to have the Court of Appeals bring him back (which I talk about a little here). He’s a nice enough guy. But he has made too much of a career as a lead paint expert, mostly for the same law firm. Juries wouldn’t like that if they did not already hate the defendants so much by the time he testified. These lead paint cases are not always put together like I think they should be. But the facts trump all. The facts in most of these cases are just very favorable to plaintiffs. So there is lots of margin for error.
Anyway, back to the story. In Dr. Klein’s affidavit opposing the summary judgment motion, he opined for the first time that the child had been “exposed to lead based paint during each and every instance that he resided at 2238 Linden Avenue, Apt. #3” and that Appellant’s exposure during that month was a substantial cause of his injuries.
Judge Pamela J. White ruled that Dr. Klein’s affidavit was not produced in compliance with scheduling order or the discovery rules. Accordingly, the court knocked out the affidavit and granted the motion for summary judgment because plaintiffs had no expert testimony that could get the case to the jury. Judge White also said something else: There is “no conceivable basis upon which” to conclude that exposure to lead paint during that month was a substantial contributing factor to boy’s injuries.
(The court also found the lead paint scheduling order was ambiguous as to rules relating to the inspection and testing of a property for lead paint. It is important to the opinion but less so for those not doing lead work. If I get too deep into lead paint specific issues, I’m going to lose most of the readers. As it is now, I only have 8 left. So let’s get back to the striking of the expert.)
Whether Dr. Klein Could Offer the “New” Opinion
Plaintiff offered Dr. Klein as an expert in “pediatric lead poisoning” that would testify to the injuries suffered from the lead exposure. Plaintiff’s very boilerplate designation also said Dr. Klein would testify to the most likely source of lead paint that caused the injury and that the properties in the Complaint were a cause.
Judge White said Dr. Klein’s Affidavit was too late because the affidavit was untimely. Why? Because the interrogatory answer was just generic and specific belated opinions from experts, “have absolutely and decisively changed the legal landscape of this case.”
Violation of the scheduling order was not exactly the basis of Defendants’ motion. But the Court of Special Appeals affirmed, concluding that Judge White could exclude the report on its own because the court has the right to enforce its own orders and may raise compliance issues sua sponte.
The Maryland high court disagreed. The court noted that, “discovery is a process between the parties, a process under which disputes may be waived or raised by the parties without court intervention.” Moreover, the law is pretty established in Maryland and in many other jurisdictions that a party does not have to respond to issues not raised by the moving parties and “put another way, a trial judge cannot, sua sponte, and without prior warning, appropriately grant summary judgment based on the plaintiff’s failure to prove an element of his or her case if the defendant has not previously contended that the plaintiff’s proof was deficient as to that element.”
What This Means
Two take homes for me:
- The case goes back to the trial court. But this is a weak case against S&S Partnership based on the one month of residency at the premises without a lead test remotely backing it up. I can’t imagine this case getting to a jury much less having a successful outcome.
- The court adopts some pretty strong language from the Maryland Court of Special Appeals that the imposition of a sanction that precludes a material witness from testifying that guts the case should be reserved for egregious violations of the court’s scheduling order. Here is the kicker – such a violation should be supported by evidence of “willful or contemptuous or otherwise opprobrious behavior.” That is really strong.
I just spend the last hour reading this case and writing up this post. If you have gotten this far in the post, you should read the opinion. The link is at the top of the page.