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Jakeem Roy v. Sandra B. Dackman, et al.

August 4, 2020

The Court of Appeals was presented with the issue of whether a pediatrician, who had never treated a child victim of lead paint, but claimed to be familiar with all relevant medical literature, should be permitted to offer an opinion as to medical causation and the source of lead paint exposure.

The petitioner had identified two experts in her lead paint action, filed in the Circuit Court for Baltimore City, namely Eric Sundel, M.D., a pediatrician, and Robert Simon, Ph.D, an industrial hygienist and environmental risk assessor. Dr. Sundel opined that the source of the Plaintiff’s lead paint was the residence where he resided for a period of two years. To support his opinion he relied on the following: 1) the property was built in 1920; 2) the plaintiff experienced elevated blood levels while living at the property; 3) ARC environmental testing confirmed the presence of lead-based paint on the exterior of the property; 4) The Plaintiff’s mother testified there was chipping, flaking and peeling paint inside the house. While Dr. Sundel never examined the plaintiff he testified that he was well-read in literature related to the effects of lead poisoning in children.

The Court of Appeals noted that under Maryland Rule 5-702, there are three factors to analyze as to whether expert testimony will be admitted: 1) whether the witness is qualified as an expert by knowledge, skill, experience, training or education; 2) the appropriateness of the expert testimony on the particular subject and; 3) whether a sufficient factual basis exists to support the expert testimony. Under Maryland Rule 5-702(2) a medical expert is not required to have observed the plaintiff as a patient. The inquiries about an expert’s personal experience go to the weight and not the admissibility of his testimony. The Court of Appeals concluded that Dr. Sundel was competent to testify as to medical causation, under 5-702. However, without personal knowledge of the Plaintiff, and becauseof his reliance on circumstantial evidence as to how and why the Plaintiff was exposed to lead paint, he was not competent to testify as to the source of the exposure. The Court held that while lead paint cases may generally succeed on circumstantial evidence, it is not enough for an expert to use such evidence to form the basis of his opinion as to the source of a child’s lead exposure when other potential sources have not been eliminated.

In conclusion, the Court of Appeals reiterated that medical causation and the source of lead exposure are distinct questions.