On October 16, 2015, in Jakeem Roy v. Sandra B. Dackman, et al., No. 6, Sept. Term 2015 (Md. Oct. 16, 2015), the Court of Appeals of Maryland held that a pediatrician is not qualified to offer an expert opinion regarding the source of the plaintiff’s lead exposure based solely on circumstantial evidence when other potential lead sources have not been eliminated.

In Roy, the plaintiff filed a negligence suit in the Circuit Court for Baltimore City against the landlord and owners of 2525 Oswego Avenue (the “Property”) alleging personal injuries resulting from lead-based paint poisoning. The plaintiff contended that his exposure occurred only at the Property where he resided from 1996 to 1998.  The plaintiff’s pediatrician expert similarly opined, based on certain circumstantial evidence, that the plaintiff’s exposure to lead dust occurred at the Property.  Specifically, the expert relied on the following evidence to support his opinion that the Property was the source of the plaintiff’s exposure: (1) the Property was built in 1920; (2) the plaintiff experienced elevated blood lead levels while living at the Property; (3) subsequent testing confirmed the presence of lead-based paint on the exterior of the Property; and (4) the plaintiff’s mother testified to the existence of chipping, flaking, and peeling paint within the Property.  Importantly, the plaintiff did not undertake any lead testing on the interior surfaces of the Property.

Before the Circuit Court (the Honorable Charles Peters), the defendants moved to exclude the pediatrician’s testimony as to the source of the plaintiff’s alleged exposure, arguing that the pediatrician lacked both the qualifications and factual basis required by Maryland Rule 5-702 to provide such an opinion.  The Circuit Court granted the defendants’ motion, holding that the pediatrician was not qualified to opine as to the plaintiff’s source of exposure.  The Court of Special Appeals affirmed the Circuit Court’s decision.

The Court of Appeals agreed that the Circuit Court properly excluded the pediatrician’s testimony regarding the source of the plaintiff’s exposure, stating that “[a]s a board-certified pediatrician, [the expert’s] reliance on circumstantial evidence alone is not enough for him to be deemed competent as an expert on the source of lead.”  The Court explained that the expert’s conclusion “was based solely on scant circumstantial evidence, including the age of the home and exterior tests of the paint on the dwelling.”  Critically, the Court noted that, although it has held that a lead poisoning case can succeed based upon suitable circumstantial evidence as to source, “it is not enough for an expert to conclude that a certain property is the source of the child’s exposure to lead when other potential sources have not been eliminated.”  In Roy, the pediatrician did not rule out other potential sources and, therefore, could not rely on circumstantial evidence alone to opine that the Property was the source of the plaintiff’s exposure.   

Roy provides meaningful support for defense motions to preclude plaintiffs’ experts from testifying as to source of exposure in the absence of direct evidence of exposure or evidence eliminating other potential sources.  Where appropriate, defendants and their counsel should not hesitate to seek preclusion of unqualified experts attempting to opine as to source of exposure based solely on circumstantial evidence.