Two decisions by the Maryland Court of Appeals clarify how lead paint cases against private landlords must proceed, and could hamper plaintiffs suing Baltimore.
"We intend to file a motion to reconsider," says Saul Kerpelman, whose firm handled both the cases and who has sued on behalf of lead victims exclusively for more than 30 years. "There are various flaws in the reasoning of the cases."
In one opinion-which covered two cases combined-the state's highest court ruled that the plaintiffs, who were lead-poisoned in the late 1980s and early 1990s, had missed their chance to sue years ago by failing to notify the city within 180 days that they had been injured and that they intended to sue because of it.
The suits, Brittany Ellis vs. Housing Authority of Baltimore City (HABC) and Tyairra Johnson vs. HABC, were brought in 2010 and 2011, respectively.
Both women-or their mothers, anyway-did tell the city there was a lead problem, one by sending a doctor's test result and the other by threatening to sue if chipping paint was not repaired. The court held that these notifications fell short.
"It is true that Johnson's mother told the HABC housing manager that Johnson put paint in her mouth," the court wrote in a footnote. "However, Johnson's injury was not her putting paint in her mouth; instead, Johnson's injury was her elevated blood-lead level."
And since Johnson did not know she had been brain-damaged from lead poisoning until 2010, she did not comply with the notification requirement under the Local Government Tort Claims Act, the court said.
The court also held that the fact that the plaintiffs were under 10 years old at the time of their injuries gives them no special consideration: "Even considered together with their mothers' actions (or, more accurately, lack thereof) regarding their potential claims, Appellants' minority does not constitute good cause for their failure to comply with the LGTCA notice requirement."
Six decades after lead paint was banned, Baltimore City is still awash in lead-paint lawsuits. Kerpelman's firm has some 300 pending. The city itself is potentially liable for millions in damages to people who became brain-damaged, allegedly because of exposure to lead paint when they were infants. In August, Baltimore Housing announced it would pay $6.8 million to lead-paint plaintiffs, years after the city argued that it could not pay the judgments. Kerpelman interprets the city's announcement that it will pay as part of an unsubtle public relations game played with both the public and the judiciary.
"I really hate to think that this fake publicity campaign that the Housing Authority has been on for the last year has had an effect on the court," says Kerpelman, whose cases have shaped much of the law that governs lead-paint litigation in Maryland.
He says the Local Government Tort Claims Act, enacted in 1987, was obviously meant to shield agencies like Baltimore Housing. But it was interpreted by the state's high court in such a way that allowed suits to continue.
"In prior cases, the court found that the purpose of notice was to alert the defendant that they should conduct an investigation . . . to find out whether they had potential liability," Kerpelman says. But the Housing Authority already had a responsibility to keep its units lead-safe, and so almost any complaint by a tenant involving chipping paint would put them on notice. He says that's the way the Court of Appeals has consistently ruled in the past.
"In this case, the court almost seemed to ignore that stated purpose," he says. "So they're saying, 'We're going to blind ourselves to all that and we'll look to see if she used the magic words.'"
In the other case, the court found that the circuit court judge, Pamela White, did not have the authority to throw out the plaintiff's lead test and bar an expert witness, then effectively dismiss the case, absent any complaint from the defendant about the plaintiff's actions.
In Hector Butler vs. S&S Partnership (et. al), several defendants, including Stanley Rochkind and his wife, argued that the plaintiff violated the rules that govern lead-paint cases by not inviting them to a test on one of the houses they used to own. The judge agreed and sanctioned the plaintiff's lawyer for this violation of the scheduling order by throwing out the lead test.
The appeals court disagreed with that and held that the law requires only that the current owner of the property be invited to the test.
"To have held otherwise would have been to interfere with a lawyer on their work product," says Brian Brown, a lawyer at Kerpelman's firm who handled the case. "I would not expect the defense to tell me how to investigate a case and would not expect to tell them how to defend it."
The high court also said that Judge White overstepped her authority when she ruled that Butler's expert witness, the doctor that tested him for lead poisoning, could not testify. In his brief to the court, Brown painted a picture of a judge who seemed bent on dismissing the case, even though the defendants had made no motion to do so based on what she found wrong.
"Rather than address the merits of the motions that were actually before it, the trial court began to delve into issues concerning deposition scheduling and discovery responses," Brown wrote. "Again, Petitioner's counsel reminded the trial court that the 'issue of disclosure of the experts' opinions and the adequacy of those opinions were not at issue on any of these motions.'"
Judge White declined to discuss the high court ruling and referred City Paper to the Court of Special Appeals Opinion, which had upheld her.
In its ruling, the Court of Appeals spelled out the steps that must be taken in every dispute about the discovery process, in which the litigants exchange the information that may be used as evidence in the case.
"This is an important case for any kind of civil litigant because it defines how to handle discovery disputes," Brown says.
The case now goes back to circuit court.