COSA Dissent Watch: Circumstantial evidence of lead paint in the post-Rowhouses world

By Chris Mincher

The case: Murphy v. Ellison, Sept. Term 2015, No. 0822 (Aug. 23, 2016) (unreported)

The questions: Can a plaintiff in a lead-paint case establish a property as a reasonably probable source of exposure without expert testimony or inspections of the property? Can the age of a house or its components establish that the property probably had lead paint? Can evidence of lead paint on the exterior of a home be evidence of lead paint on the interior?

The facts: According to the testimony of Adrienne Nelson, when her son Skylar Murphy was an infant, he made frequent trips to his uncle’s apartment, which was owned by a company created and itself wholly owned by Louis F. Ellison. At this time, she said, there was flaking and peeling paint throughout the apartment. There was still chipping paint on walls, floors, windows, and doorways when she later moved in with her children.

She testified that, while they lived at the apartment, Skylar and his brothers began exhibiting aggressive behavior. A laboratory report made during this time indicated that Skylar had lead in his blood, and later laboratory reports revealed that his blood-lead levels steadily increased while he lived at the apartment. After his younger sister Adrianna was born, laboratory testing showed that she also had elevated blood-lead levels. Ms. Nelson would later testify that all of her children had elevated blood-lead levels while they lived at the apartment.

Skylar and Adrianna later filed a lawsuit alleging that Ellison violated a city ordinance requiring that he keep their apartment free of flaking, loose, or peeling paint. That, they contended, led to injuries they suffered and were caused by ingesting the paint and paint dust. In discovery, they arranged for the apartment to be assessed by a lead-inspection company. Lead paint was found in poor condition on exterior areas of the windows and doors, including the jambs and threshold, which the trial court would later describe as “both interior and exterior.”

Ellison moved for summary judgment, partially on the grounds that the plaintiffs could not prove that their injuries were caused by lead paint at the apartment. The plaintiffs had no evidence that, when they lived there, there were any problems with the exterior paint or that the paint inside had lead in it. After the motion was filed, the plaintiffs deposed a lead-risk expert who — based on descriptions provided by Ms. Nelson and records indicating that the apartment had been substantially renovated around 2009 — testified that the doors and windows were, while the plaintiffs lived there, probably “original components” that were later removed in the rehabilitation.

He further testified that the same lead-based paint that was found on the exterior of the home was also likely on these original doors and windows. The plaintiffs relied on this evidence in opposition to the motion, but the court held that they had failed to generate “positive” evidence that the interior paint at the apartment contained lead while they lived there, and therefore granted summary judgment in favor of Ellison. The plaintiffs appealed.

The majority (Arthur, joined by Berger): Taking the standard from the freshly minted Court of Appeals opinion in Rowhouses v. Smith, 446 Md. 611 (2016), the majority believed there was enough to plaintiffs’ case for a fact-finder to conclude that the apartment was a reasonably probable source of their lead poisoning. For one, the majority believed the lead-risk expert’s opinion could itself establish that, more likely than not, the property had deteriorated lead-based paint at the time the plaintiffs lived there. Further, the majority reasoned that a fact-finder could — in conjunction with the expert’s supporting testimony — assume that the same lead paint used on the exterior door threshold and jambs would have been used on the directly adjacent interior threshold and jambs. A fact-finder could therefore decide that the deteriorating paint that Ms. Nelson testified was in the interior door areas was lead paint.

In addition, the majority noted, there was plenty of other circumstantial evidence that could establish the apartment as a reasonably probable source of the lead-exposure. Two things in particular — testimony about the chipping paint while the plaintiffs lived there and the reports showing that they had lead in their blood at that time — closely aligned with the evidence that was sufficient for the Rowhouses plaintiff to overcome summary judgment. The majority opined that, if the inspection report, the expert-witness testimony, and all of the above circumstantial evidence wasn’t enough to demonstrate that the apartment could be “a reasonably probable source, it is difficult to imagine how the evidence in Rowhouses could have been sufficient.”

The dissent (Friedman): According to Judge Friedman’s understanding of Dow v. L & R Properties, 144 Md. App. 67 (2002), the plaintiffs’ “best shot” at demonstrating that the apartment was a reasonably probable source of their lead exposure was by proving that they had elevated blood-lead levels, the apartment they lived in was built at a time when most homes had lead-based paint, and the apartment was the “exclusive source” of the plaintiffs’ exposure. He wasn’t convinced they had passed that test. Of the evidence that the majority believed sufficient to overcome summary judgment, Judge Friedman discounted all of it but two items — the lead-risk expert testimony and the inspection report — on the basis that the other evidence did not “seem to drive the analysis.”

He took aim at the lead-risk expert’s testimony that, because the hardware in the house was probably original, the house probably contained original paint, too. That testimony didn’t establish anything useful, Judge Friedman believed, because the expert did not say that the original paint had lead in it. He read Dow (and as later applied by Hamilton v. Dackman, 213 Md. App. 589 (2013)), to mean that it’s not sufficient at summary judgment to merely reason that, because a house is old, it probably had lead paint. To him, an expert’s conclusion that a house had “original paint” is meaningless unless it is also established that the original paint had lead.

Turning to the report, Judge Friedman believed that two cases, Hamilton and Taylor v. Fishkind, 207 Md. App. 121 (2012), already established that evidence of lead in exterior paint is insufficient to show that paint on the interior also was likely to have lead in it. His understanding of row-house construction was that “no builder would ever have used the same paint on the interior and exterior of a home” because “[i]nterior paint would weather too quickly if used outside[ a]nd exterior paint is too expensive for a builder to have used on the interior.” Having decided that Dow, Hamilton, and Taylor precluded reliance on the expert’s testimony and the report, he would have held that there was insufficient evidence that the apartment was a reasonably probable source of the lead exposure and therefore upheld summary judgment in favor of Ellison.

Notes: In Rowhouses, the Court of Appeals essentially held that a plaintiff in a lead-paint case could overcome summary judgment merely by demonstrating that, at the time she had elevated blood-lead levels, she spent substantially all of her time at the subject property, where there was chipping and peeling paint. 446 Md. at 667. That circumstantial evidence was sufficient to establish a reasonable probability that the property both contained lead-based paint and was the source of the plaintiff’s exposure. Notice the absence of any requirement of expert testimony or inspection reports.

The majority notes that the plaintiffs satisfied the low threshold set in Rowhouses, and Judge Friedman agreed “this may be true[.]” He didn’t actually undertake to figure out whether or not it was true, however. Because the expert-witness testimony and inspection report “seem to drive the analysis” in the majority opinion — a discussion that, admittedly, does feel a little extraneous in light of Rowhouses — he concentrates only on those two things in concluding that “plaintiffs have no evidence to satisfy their burden of establishing a prima facie case[.]” But it’s a little odd that he would uphold summary judgment against the plaintiffs without independently deciding whether or not the record in the case satisfies the burden of proof established by Rowhouses.

Given that the issues have been framed by the judges anyway, does Judge Friedman have good points about the lead-risk expert testimony and inspection report? The expert said that, based on Ms. Nelson’s testimony, the apartment probably had “original components” when the plaintiffs lived there, suggesting that the lead paint found on the exterior of the apartment probably had previously been on the inside as well. He therefore deduced that “lead-based paint hazards existed during the tenancy and that lead-based paint and those lead-based paint hazards would have been a source of exposure to the plaintiffs … while they were living in or visiting the property.”

Given that conclusion, the majority assumed that the expert’s testimony, by itself, would be sufficient to establish that the apartment had lead-based paint hazards while the plaintiffs lived there. Judge Friedman, however, didn’t believe that the expert’s reasoning — because the house had old components, it probably had old paint, and that old paint must have had lead in it — was legally valid. As he noted, Dow and Hamilton (both later quoted in Rowhouses) make clear that the age of a house isn’t sufficient proof that it has lead paint. Yet the expert testimony relied on that same flawed link.

But, the majority noted, the panel wasn’t being asked to decide whether the expert had a proper basis for his opinion. Ellison hadn’t moved to strike it or otherwise argue that it was inadmissible, and the court didn’t clearly exclude any of it. So, although Judge Friedman may have a valid observation about the expert’s reasoning, the majority deemed it prudent to, given the procedural posture, take the opinion at face value — that is, that the apartment had lead-based hazards in it that the plaintiffs were exposed to.

Note that Judge Friedman also contended, “if the expert’s testimony is sufficient, it means that Dow is now dead: it is now enough for a plaintiff to say that because of its age, a house probably had lead paint.” But that reasoning may even have been acceptable in Dow. Because the age of a house doesn’t establish it had lead paint, the Dow Court refused to create a presumption that old houses did have lead paint.

However, rejecting that presumption is not the same thing as saying the age of a house isn’t circumstantial evidence that it “probably” has lead paint. The Dow Court specifically noted the weight of such evidence, stating that, along with evidence that a plaintiff wasn’t otherwise exposed to lead, “the undisputed fact that homes built before 1950 often contain lead-based paint … could indeed support an inference that the paint in question contained lead.” Dow, 144 Md. App. at 76. So Dow doesn’t expressly foreclose the argument that the age of a house may establish that it “probably” — but not definitely — had lead paint. (And, of course, it’s still questionable how relevant all of this is post-Rowhouses, given that the case didn’t seem to regard the age of the property as particularly important to surmounting summary judgment anyway.)

Judge Friedman next disputed that, pursuant to Hamilton and Taylor, the inspection report could establish that the apartment was a reasonably probable source of the plaintiffs’ exposure. Hamilton did say that a positive test for lead on “a transom over the rear exterior door” was “insufficient as a matter of law to support an inference that lead was present in the paint of any interior surface”; Taylor’s language is a bit more general and ambiguous, offering only that “the circuit court could reasonably conclude that the presence of lead-based paint on the exterior of the house is not sufficient evidence that the interior of the house … also contained lead-based paint.” (As rationale for these findings, Judge Friedman also ventured that “no builder would ever have used the same paint on the interior and exterior of the home” because of differing qualities and prices of the paints, but he didn’t cite the record or any source for these facts.) The majority, however, was skeptical of a supposed exterior/interior rule, citing Butler v. S & S P’ship, which was decided by the Court of Appeals after Hamilton and characterized exterior lead tests as “crucial … evidence,” 435 Md. 635, 652 (2013), even when testimony in the case established that the plaintiff “never played outside” at the properties, id. at 663. Regardless, the majority held that any such rule wouldn’t apply here, where the circuit court called the door threshold “both interior and exterior.” And, in any case, even if there was such a rule, it seems like a substantially less useful one given the low threshold of circumstantial evidence required by Rowhouses.

Certiorari prospects: So-so. To the extent there are interesting issues here about what, if anything, can be extrapolated from the age of a house or the presence of exterior lead paint, Rowhouses seems to largely brush aside the need to consider them. Further, the judges’ disagreements hinge on procedural (whether the basis for the expert’s opinion was before the court) or factual (whether the door threshold was interior or exterior) grounds. On the other hand, Judge Friedman’s dissent does suggest that at least one member of the Court of Special Appeals wants the high court to, in the post-Rowhouses world of lead paint liability, be more specific in expressly overruling, disclaiming, or affirming recent appellate jurisprudence.