Maryland Court Finds Plaintiff’s Expert Failed to Establish Exclusivity of Lead-Based Paint Exposure

In a recent opinion, the Court of Special Appeals of Maryland reviewed a lower court’s decision granting summary judgment against the plaintiff in a lead paint exposure case. In Carter v. Hous. Auth. of Baltimore City (Md. Ct. Spec. App. Sept. 8, 2016), the plaintiff brought a personal injury lawsuit against the Housing Authority of Baltimore City (HABC) after she was found to have elevated blood-lead levels. The plaintiff alleged that her injuries related to lead-based paint exposure were sustained while she resided in an HABC-owned property from 1987 to 1992.

Although a jury found in favor of the plaintiff, that verdict was remanded after the appeals court found that the plaintiff’s expert lacked a sufficient factual basis for his opinion that the defendant’s property was the source of the lead exposure. Rather than retaining a new expert witness, the plaintiff filed a supplemental affidavit from the same expert in an attempt to rectify weaknesses in his prior affidavit. The defendant moved for summary judgment, which the trial court granted after finding that the supplemental affidavit didn’t cure the defect. The plaintiff then brought the current appeal.

To establish causation in a Maryland lead-based paint case, the plaintiff must put forth direct or circumstantial evidence that the property contained lead-based paint and that the lead-based paint at the property was a substantial contributor to the victim’s exposure to lead. Due to complications in gathering evidence after the passage of time, circumstantial cases brought under the Dow theory require proof of three elements. First, the plaintiff must have lived in a house constructed before 1950. Second, the plaintiff must have tested positive for blood lead while at that house. Third, the house must have been the only possible source of the lead. The third element, exclusivity, requires the plaintiff to produce sufficient circumstantial evidence to rule out other reasonably possible sources of lead exposure.

In Carter, the plaintiff relied on the Dow theory. In the first appeal, the court found that the plaintiff’s expert, a pediatrician, was not qualified solely by virtue of his medical training to render an expert opinion as to the source of the plaintiff’s lead exposure and the exclusivity of that source. The court further explained that the plaintiff could not prove source-causation without evidence of exclusivity, that is, ruling out other potential sources. In the current appeal, the court did not find that the pediatrician’s supplemental affidavit provided any additional evidence to establish exclusivity, although it expounded upon his opinion and medical credentials. The court went on to state that without information that ruled out other reasonably probable sources of exposure, the plaintiff could not establish a prima facie case. As a result, the summary judgment was affirmed.

Some premises liability claims are challenging to prove in court, but an experienced trial attorney can identify important facts and effective strategies to help present your case persuasively. At the Maryland firm of Foran & Foran, P.A., our accident lawyers have the resources and dedication to represent injured victims in complex litigation, such as medical malpractice actions, personal injury lawsuits, motorcycle and truck accident cases, and more. To consult with one of our qualified attorneys, schedule an appointment by calling (301) 441-2022 or contact us through our website.

More Blog Posts:

Maryland Court Evaluates Circumstantial Evidence in Lead Paint Case, Maryland Personal Injury Blog, published June 12, 2016

Maryland Court Allows Plaintiff to Proceed in Lead Paint Lawsuit Against Property Owner, Maryland Personal Injury Blog, published August 20, 2016

Contact Information