Taylor v. Fishkind

51 A.3d 743, 207 Md. App. 121, 2012 WL 3765195, 2012 Md. App. LEXIS 106
CourtCourt of Special Appeals of Maryland
DecidedAugust 31, 2012
DocketNo. 2407
StatusPublished
Cited by25 cases

This text of 51 A.3d 743 (Taylor v. Fishkind) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Taylor v. Fishkind, 51 A.3d 743, 207 Md. App. 121, 2012 WL 3765195, 2012 Md. App. LEXIS 106 (Md. Ct. App. 2012).

Opinion

WRIGHT, J.

This case arises from a complaint filed in the Circuit Court for Baltimore City by Jazminn E. Taylor, appellant, through [124]*124her mother, Nellie Virginia Taylor, in which Jazminn1 sought damages for injuries she sustained as a result of alleged exposure to lead paint while living at 2820 Riggs Avenue and 1025 North Carrollton Avenue. The complaint identified appellees, Ronald Fishkind and Edward Lichter, as the owners of 1025 N. Carrollton Avenue, and the Housing Authority of Baltimore City (“HABC”) as the owner of 2320 Riggs Avenue during the period that Jazminn lived at each residence. The complaint asserted one count of negligence, for failing to remove lead paint from the premises, and one count of unfair trade practices in violation of Md.Code (1975, 2005 Repl.Vol.) § 13-303 of the Commercial Law Article (“CL”), for leasing the premises when they contained lead paint, against each defendant.

On June 14, 2010, appellees filed a motion for summary judgment, in which they argued that the testimony of Jazminn’s medical causation expert, Dr. Henri Merrick, was inadmissible pursuant to Maryland Rule 5-702 because she lacked a sufficient factual basis to testify that Jazminn was exposed to lead-based paint at 1025 N. Carrollton Avenue or that 1025 N. Carrollton Avenue was a lead source. Appellees further asserted that, without Dr. Merrick’s testimony, Jazminn could not prove the elements of her claims, and therefore, appellees were entitled to judgment as a matter of law. On August 5, 2010, finding that there was no factual basis for Jazminn’s causation expert to testify that 1025 N. Carrollton was a substantial factor in contributing to Jazminn’s injuries or that it was a lead source, the circuit court granted appellees’ motion for summary judgment. On December 22, 2010, Jazminn timely filed this appeal.

Questions Presented

Jazminn presents two questions for our review, which we have consolidated and rephrased as follows:2

[125]*125Did the circuit court err in granting summary judgment in favor of appellees after concluding that Dr. Merrick lacked a sufficient factual basis to determine with a reasonable degree of medical certainty whether 1025 N. Carrollton Avenue was a substantial contributing source of Jazminn’s lead exposure?

Facts

Jazminn was born on June 7, 1990. From her birth until February 1993, Jazminn lived with her family at 2320 Riggs Avenue. She then moved with her family to 1025 N. Carroll-ton Avenue where she resided from February 1993 until March 1994. Thereafter, she lived at 828 Clintwood Court from March 1994 until 2005. While at each residence, Jazminn’s blood was tested for the presence of lead. Between April 22, 1991 and November 21, 1996, Jazminn’s blood was tested ten times, the results of which were as follows:

[[Image here]]

[126]*126[[Image here]]

According to the causation report prepared by Jazminn’s expert, “since 1991, the accepted range [for a child’s blood lead level] has been (0 to 9) mcg/dl.” Thus, a blood lead level of lOmcg/dL and above is considered elevated. Therefore, on three occasions, Jazminn was found to have an elevated blood lead level. Two of the tests revealing an elevated blood lead level were conducted while Jazminn lived at 1025 N. Carroll-ton Avenue.

On December 10, 2007, Jazminn filed her initial complaint in the Circuit Court for Baltimore City against Fishkind, Lichter, and the HABC. According to the complaint, both 1025 N. Carrollton Avenue and 2320 Riggs Avenue contained lead-based paint in such a deteriorated condition that it was peeling, chipping, and flaking. The complaint further alleged that Jazminn ingested lead-based paint chips, dust, and powder while living at both properties and that she suffered permanent brain damage as a result.

On July 3, 2008, Jazminn identified Dr. Henri Frances Merrick, M.D. as one of her expert witnesses. As to Dr. Merrick’s expected testimony and the basis for that testimony, Jazminn stated:

Dr. Merrick is a pediatrician who has reviewed records and reports and is expected to render an opinion that the deficits of Jazminn Taylor are related to her exposure to lead paint at the Defendants’ properties, and that she has permanent brain damage, and a loss of Intelligence Quotient points as a result of that lead exposure. Dr. Merrick’s opinions are based upon her review of the medical, environmental and school records related to this case and also upon the numerous medical studies that link cognitive deficiencies and IQ loss to early childhood lead exposure. Further, Dr. Merrick relies upon her medical education, training and experience in reaching her conclusions.

[127]*127On July 28, 2008, after discovering that the HABC did not own the property at 2320 Riggs Avenue while she lived there, Jazminn amended her complaint to add Allan S. Bird and Bentalou Associates, LTD., whom she identified as the owners of 2320 Riggs Avenue during the relevant period. Shortly thereafter, on August 7, 2008, Jazminn agreed to dismiss the HABC. On November 26, 2008, Jazminn amended her complaint a second time to add MYAL Partnership Management Services, Inc., Real Properties Services Corporation, and the estate of Allan S. Bird4 as defendants. The Second Amended Complaint identified MYAL Partnership Management Services, Inc. and Real Properties Services Corporation as the parties who were responsible for the maintenance and management of 2320 Riggs Avenue while Jazminn lived there.

During discovery, Jazminn retained Arc Environmental, Inc. (“Arc”) to inspect 1025 N. Carrollton Avenue for lead-based paint. Arc inspected the property on June 3, 2009, and it issued a report with its findings the following day. According to the report, the inspection involved the use of an LPA-1 X-ray fluorescence (“XRF”) spectrum analyzer to test a number of exterior5 surfaces of the house for the presence of lead as well as a visual inspection of the condition of the paint on the tested surfaces. The report further stated that, pursuant to Maryland standards, a surface is classified as “negative” if the XRF spectrum analyzer provides a reading of 0.7 mg/cm2 or less, and it is classified as “positive,” indicating that it contains lead-based paint, if the XRF spectrum analyzer provides a reading of 0.8mg/cm2 or more. The results of the inspection were as follows:

[128]*128[[Image here]]

[129]*129Thus, the only surface that tested positive for the presence of lead-based paint was an exterior window apron on the front of the house, and the paint on the window apron was intact. All other tested surfaces were negative for the presence of lead-based paint.

On July 10, 2009, Nellie, Jazminn’s mother, was deposed. During her deposition, the following ensued:

[Defense Counsel]: When Jazminn was younger, did you ever notice her putting paint chips or dust into her mouth? [Nellie]: I used to see the stuff on her hands. But at the time, I didn’t know what it was, when I lived on Carrollton Avenue.
[Defense Counsel]: And what did you do when you saw it on her hands?
[Nellie]: I would wipe it off and ask her where did she get it from or try to find out where she get it from.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Walton v. Premier Socer Club
Court of Special Appeals of Maryland, 2024
Oglesby v. Baltimore School Associates
484 Md. 296 (Court of Appeals of Maryland, 2023)
Santiago v. State
181 A.3d 796 (Court of Appeals of Maryland, 2018)
Levitas v. Christian
164 A.3d 228 (Court of Appeals of Maryland, 2017)
Eastern Shore Title Co. v. Ochse
Court of Appeals of Maryland, 2017
Rogers v. Home Equity USA, Inc.
160 A.3d 1207 (Court of Appeals of Maryland, 2017)
Rochkind v. Stevenson
145 A.3d 570 (Court of Special Appeals of Maryland, 2016)
Rogers v. Home Equity USA, Inc.
142 A.3d 616 (Court of Special Appeals of Maryland, 2016)
Harris v. Housing Auth. of Balt. City
135 A.3d 866 (Court of Special Appeals of Maryland, 2016)
Rowhouses, Inc. v. Smith
133 A.3d 1054 (Court of Appeals of Maryland, 2016)
Roy v. Dackman
124 A.3d 169 (Court of Appeals of Maryland, 2015)
Barr v. Rochkind
124 A.3d 1128 (Court of Special Appeals of Maryland, 2015)
Roy v. Dackman
101 A.3d 448 (Court of Special Appeals of Maryland, 2014)
Hamilton v. Kirson Alston v. 2700 Virginia
96 A.3d 714 (Court of Appeals of Maryland, 2014)
Hamilton v. Dackman
75 A.3d 327 (Court of Special Appeals of Maryland, 2013)
West v. Rochkind
66 A.3d 1145 (Court of Special Appeals of Maryland, 2013)
City Homes, Inc. v. Hazelwood
63 A.3d 713 (Court of Special Appeals of Maryland, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
51 A.3d 743, 207 Md. App. 121, 2012 WL 3765195, 2012 Md. App. LEXIS 106, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taylor-v-fishkind-mdctspecapp-2012.