The Maryland Court of Special Appeals recently ruled on a lead paint case, Barr v. Rochkind (Md. Ct. Spec. App. Sept. 29, 2015), in an action brought by a plaintiff alleging that she was exposed to lead-based paint while living in a rental property owned and managed by the defendants. The defendants filed a motion for summary judgment, contending that there was insufficient evidence to demonstrate that the rental property contained lead-based paint that caused the plaintiff’s injury. The motion was granted by the trial court, and the plaintiff appealed.
The plaintiff was born in 1995 and had lived in several different houses in Baltimore, including a rental property owned by the defendants from 2001 to 2003. From 1996 to 2002, the plaintiff was tested every year for lead, and the results showed elevated blood lead levels. When she was 17 years old, the plaintiff was diagnosed with brain-related neuropsychological impairment as a result of childhood exposure to lead. In bringing her negligence claim against the defendants, the plaintiff relied on circumstantial evidence, including an affidavit from a medical expert that opined that the plaintiff’s intellectual impairments were caused in part by her exposure to lead paint at the defendants’ property. There was no evidence presented of any testing performed on the paint.
In a lead paint case, the plaintiff must establish the four elements of negligence: duty, breach, causation, and damages. To satisfy the causation element, a lead paint plaintiff must present facts that would establish that the property contained lead-based paint and that the lead-based paint was a substantial contributor to the plaintiff’s exposure to lead. A plaintiff need not put forth direct evidence that the property contained lead (such as with direct testing of the paint) but may prove with circumstantial evidence that the property contained lead-based paint in a number of ways.
The question on appeal in Barr was whether a plaintiff in a lead paint case who relies on circumstantial evidence has a burden of production to produce evidence ruling out a reasonable probability that her elevated blood levels were caused by other potential sources of lead exposure. The court answered the question affirmatively, holding that the plaintiff must rule out the existence of other reasonably probable sources of lead exposure in order to establish that it is probable that the subject property contained lead-based paint. It is important to note that this ruling is limited to cases in which the plaintiff relies on circumstantial evidence to establish negligence in a lead paint case.
As the court’s rational applies to the plaintiff in Barr, the court found that the circumstantial evidence presented by the plaintiff was insufficient for a fact-finder to conclude that she was not exposed to other known sources of lead that could reasonably account for her increased blood lead level. Since she had lived in several other properties during her childhood, and she was relying on circumstantial evidence to show that there was lead paint in the defendants’ property, the plaintiff must have put forth some evidence to exclude the possibility of lead paint in the other properties in which she lived. The court found that she failed to do so and affirmed the lower court’s ruling.
The Maryland attorneys at Foran & Foran, P.A. assist victims in pursing compensation for their injuries, from car accidents to medical malpractice, workers’ compensation, and others. To discuss your claim with our experienced attorneys, contact us at (301) 441-2022 or online.
More Blog Posts:
Plaintiff Wins Appeal in Maryland Lead Paint Case, Summary Judgment Reversed, Maryland Personal Injury Blog, published October 4, 2015
Maryland Court of Special Appeals Addresses Discovery Issue in Lead Paint Suit, Maryland Personal Injury Blog, published July 31, 2015