Baltimore Childhood Lead Poisoning Claim Dismissed for Lack of Causation Evidence

7/1/2013

All too often, Courts are hesitant to dismiss claims involving personal injury to a child, even when there is questionable evidence to show that a defendant was a cause of the alleged injury. Over the years, this has been no more prevalent then in lead poisoning claims involving children. However, on May 30, 2013, the Court of Special Appeals of Maryland in its West v. Rochkind decision (click here for link to decision), took positive steps to limit a plaintiff's ability to defeat summary judgment in a lead poisoning case when it refused to expand the scope of the so-called "process of elimination" test established eleven years ago in Dow v. L&R Properties 144 Md.App. 67 (2002).

In Dow, a lead poisoning claim involving a child, the plaintiff presented evidence that she resided at defendant L&R's residence from the age of two months until after her diagnosis of lead poisoning. There was evidence showing that Dow spent virtually all of her time at defendant's property. However, since L&R's residence was never tested for lead, L&R argued that there was no direct evidence of Dow's exposure to lead at its property and therefore no evidence that lead at its property caused Dow's injury. In denying L&R's Motion for Summary Judgment, the Court of Special Appeals of Maryland held that there was indispensable circumstantial evidence showing that the property owned by L&R "must have" contained lead, despite no direct evidence supporting that conclusion. The Court noted that "there was only one possible cause for the undisputed effect. By process of elimination, there was no other possible source of exposure."

In West, the residential history of the plaintiff showed that the child lived in approximately four different dwellings during the first six years of his life, with visitation at various other residences for significant periods of time. Plaintiff brought a claim for lead poisoning against Rochkind, the owner of one of the residences at which plaintiff lived. Although no lead testing was ever conducted on Rochkind's property, plaintiff claimed that, under Dow, it was sufficient to defeat summary judgment by showing that Rochkind's property was merely one possible cause of plaintiff's lead paint poisoning. Adopting such an argument would open the door for a liberal interpretation of the "process of elimination" test established in Dow. However, the trial court rejected plaintiff's argument and the Court of Special Appeals of Maryland affirmed. While carefully acknowledging that a property owner in lead poisoning cases can share liability with other property owners where exposure to lead occurred, the appellate court held that the plaintiff could only defeat summary judgment using circumstantial evidence under Dow if he showed "by process of elimination that [Rochkind's property] was the only possible cause for the critical effect of lead poisoning. We may only infer the existence of lead paint at [Rochkind's property]...if lead paint at [that property] is shown to have been the only possible explanation for [plaintiff's] condition."

There will undoubtedly be future attempts to broaden the scope of the Dow v. L&R Properties ruling, but the West v. Rochkind decision represents a positive example of a court properly acting as a gatekeeper to keep specious claims from advancing beyond summary judgment. Governo Law Firm LLC represents defendants in toxic tort and environmental claims, including lead, asbestos, and dry cleaners in MA, CT, RI and throughout New England. If you have any questions or would like assistance, please contact John Gardella jgardella@governo.com or David Governo dgoverno@governo.com.


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