Expert’s Review of Literature Now Leaves Less Discretion for Exclusion
[Editor’s Note: Portions of this post were previously quoted in “Lead Paint Evidence Clarified in Maryland; Causation, Injury Source Proof Distinguished,” Expert Evidence Report, Bloomberg BNA, Vol. 15, No. 21 (Nov. 9, 2015) (also available here).]
By finding that the circuit court in Roy v. Dackman, Md. Ct. App., Sept. Term 2015 (Oct. 16, 2015), abused its discretion by excluding lead-paint medical causation testimony, Maryland’s highest court seemed to curtail the wide discretion that trial judges typically enjoy when ruling on the admissibility of such testimony. In Roy, the plaintiff designated a board-certified pediatrician with “more than 20 years in practice,” Dr. Eric Sundel, to opine that the plaintiff had been exposed to lead more than a decade earlier at the defendants’ property and that the exposure had caused his alleged brain injuries. The trial court initially denied the defendants’ Rule 5-702 motion to exclude Dr. Sundel’s lead-source and medical causation opinions.
Meanwhile, the Court of Special Appeals held that another trial court had abused its discretion by allowing Dr. Sundel to offer analogous opinions in a different but factually similar lead-paint case, City Homes v. Hazelwood, 210 Md. App. 615, cert denied 432 Md. 468 (2013). Hazelwood held that Dr. Sundel not only was unqualified under subsection 5-702(1) but also lacked a sufficient factual basis for his opinions under 5-702(3). Attempting in Roy to rehabilitate his qualifications and opinions and address Hazelwood’s criticisms, Dr. Sundel then submitted a 14-page affidavit touting his continuous review of all relevant literature, citing specific articles and CDC statements on childhood lead poisoning.
The Roy trial court nonetheless reconsidered and excluded his opinions, and the Court of Special Appeals affirmed. 219 Md. App. 452, 467 (2014). But the Court of Appeals reversed in part, holding that his causation opinion must be admissible. (It upheld the exclusion of his lead-source opinion, thereby reaffirming Maryland appellate courts’ hostility to expert testimony from pediatricians on the source of a plaintiff’s early-childhood exposure to lead (i.e., identifying the specific property).) Although Roy criticized Hazelwood for its “overly demanding” standard for minimum qualifications of a lead-paint medical causation expert under 5-702(1), it specifically based its holding on Dr. Sundel’s affidavit, the “major difference between the factual record[s]” of the two cases. The Court of Appeals’ opinion never tackled the Court of Special Appeals’ premise that there is “no support for the idea that a witness working in a broadly related field may become an expert in a complex and specialized medical matter solely by reviewing related literature over the course of several months.”
Yet, Roy implicitly seems to endorse that mode of expert “qualification” as Dr. Sundel went from being unqualified per se in Hazelwood to qualified per se in Roy simply by submitting an affidavit that detailed months of relevant literature review. (In my view, this type of litigation-driven expert work would be more appropriately analyzed under subsection 5-702(3)’s inquiry into an expert opinion’s factual basis and supporting methodology than subsection 5-702(1)’s inquiry into the underlying qualifications of a board-certified pediatrician with decades of practice experience.) Thus, in Maryland, Dr. Sundel’s Hazelwood causation opinion apparently still must be excluded under Rule 5-702(1) for his lack of qualification while his Roy causation opinion must be admitted as being from a qualified expert. By holding that the Roy trial court was compelled to allow Dr. Sundel’s causation testimony, but distinguishing (instead of overruling) Hazelwood – which compelled the trial court to exclude Dr. Sundel’s causation testimony – the Court of Appeals left less ground for Maryland trial judges to exercise their discretion on medical causation experts in lead-paint cases. Practitioners will have to wait to see how courts apply Roy before knowing whether it represents a substantive development in Maryland lead-paint law or, even more broadly, alters the standards for medical causation expert qualifications under Rule 5-702(1).