Appeals Court Says Lead Paint Suit Can Advance, Even Though Building is Long Gone

Alison Knezevich - The Baltimore Sun, March 29, 2016

Maryland's highest court has ruled that a woman suing a Baltimore landlord for lead paint poisoning had enough evidence for the case to advance, even though the building no longer exists and was never tested.

Advocates say the decision by the Maryland Court of Appeals to allow circumstantial evidence in the lead paint suit could help more plaintiffs with similar claims get their cases to a jury.

In a unanimous ruling last week, the appeals court said the Baltimore Circuit Court erred in siding with a property owner who was sued in 2011. The plaintiff, now 24, had "sufficient admissible circumstantial evidence" that she got lead poisoning from a home in the city's Oliver neighborhood, even though the building was demolished by the time she filed a lawsuit, the top court found.

In the case, Myishia Smith alleged she suffered from lead paint poisoning while living at 1622 E. Oliver St., owned and managed by Rowhouses Inc., during the early 1990s. Smith, who had elevated lead levels as a baby, also lived in two other homes during the first years of her life.

In 2014, a Baltimore judge dismissed the lawsuit, finding that there was insufficient evidence for the case to go forward.

But the Court of Appeals said Smith had presented enough circumstantial evidence to bring the case to a jury. The court cited evidence that Smith first showed elevated lead in her blood when she lived on Oliver Street, that the property had peeling and chipping paint, and that her mother noticed dust on the floor, among other evidence.

"Although there was no direct evidence of lead-based paint at the Oliver Street Property, Smith produced evidence that, between approximately 1991 and spring 1993, she spent substantially all of her time in one house, the Oliver Street Property, a property that had chipping and peeling paint and where she experienced elevated blood-lead levels," Judge Shirley M. Watts wrote in the court's opinion.

"This evidence is sufficient to establish a reasonable probability that the Oliver Street property contained lead-based paint and was the source of Smith's lead exposure," Watts wrote.

Scott E. Nevin, an attorney who represented Smith, said it is not unusual for someone to allege lead paint exposure from a property that has since been razed.

"Many of the houses have ... either been renovated completely or have been demolished," Nevin said.

The appeals court ruling means the case must go back to the Circuit Court to be heard.

"It will be up to the jury to determine liability at trial and, if the jury finds Rowhouses liable, any damages," Watts wrote.

An attorney representing Rowhouses Inc. did not return a request for comment.

Thomas Tompsett, a lobbyist for the Maryland Multi-Housing Association, said in a December interview about lead-poisoning issues that most landlords are investing heavily to treat lead-based paint in their properties. He suggested that some tenant children could be picking up lead in other places — from urban soil, from relatives' or caregivers' homes, or from imported toys and candies contaminated with lead.

Health officials say that while some children do pick up harmful levels of lead elsewhere, lead-based paint in homes remains the primary source of exposure in Baltimore and elsewhere in Maryland.

Nevin said he hopes the court's action will help more cases get to jurors to "let them decide whether a particular house was a cause of the exposure to lead."

Saul Kerpelman, a Baltimore attorney who has filed numerous lead-paint lawsuits against landlords, said a number of previous decisions by the Court of Special Appeals, the state's second-highest court, "suggested that a poisoned child could not use the normal laws of circumstantial evidence in lead-paint cases."

"This new decision goes far toward providing justice to children in proving their cases," Kerpelman said in an email.

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