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Maryland Court of Appeals OKs Circumstantial Causation Evidence in Lead Paint Cases

In a case that may make it easier to prove causation in Maryland lead paint cases, the Maryland Court of Appeals held that neither direct evidence of the source of lead nor expert testimony was necessary when a trier of fact had sufficient circumstantial evidence to conclude that the subject property was the “reasonable probable” source of lead exposure.  See Rowhouses, Inc. v. Smith, 133 A.3d 1054 (Md. 2016)

Plaintiff brought suit against the owners of two rental properties she had lived in as a small child in the early 1990s, alleging that lead paint exposure at those properties caused permanent neurological deficits.  The trial court granted a defense motion for summary judgment, citing a lack of direct evidence of lead paint at the subject property, which had since been demolished, and inability of Plaintiff’s expert to rule out other potential sources of lead exposure.  This, the trial court ruled, left Plaintiff unable to prove causation.

On appeal, Maryland’s intermediate court reversed the trial court, and the Maryland Court of Appeals affirmed.  After a detailed survey of its recent lead paint cases,  the Maryland high court noted that its precedents established that causation may be established with circumstantial evidence “so long as the circumstantial evidence demonstrates that the subject property is a reasonable probable source of lead exposure.”  Id. at 1080.  In the summary judgment context, “a reasonable probability requires a showing that is less than ‘more likely than not,’ but more than a mere ‘possibility.’”  Id. at 1080-81.  Here, that meant a jury could reasonably conclude that the subject property was a source of Plaintiff’s lead exposure.  However, the court continued, “the case law has not discussed what exactly is required to rule out other reasonably probable sources.”  Id. at 1083 (emphasis added).  The court held that, just as circumstantial evidence can be used to establish that a property was a "reasonable probable" source of lead exposure, circumstantial evidence could be used to establish that there were no other "reasonable probable" sources of Plaintiff’s lead exposure.

© 2020 Beveridge & Diamond PC National Law Review, Volume VI, Number 146

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About this Author

Graham C. Zorn Environmental, Toxic Tort, Products Liability Litigation Attorney Beveridge & Diamond Washington, DC
Principal

Graham Zorn focuses his practice on environmental, toxic tort, and products liability litigation.

His representative experience includes extensive work on a series of complex products liability and toxic tort cases related to alleged groundwater, and litigation over lead in drinking water. He has represented individual businesses, trade associations, and municipalities in litigation, as well as in compliance, enforcement, and counseling matters involving the Clean Air Act, the Clean Water Act, CERCLA and other state and federal environmental statutes. He also counsels domestic and...

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Eric L. Klein Environmental Litigation Attorney Beveridge & Diamond Boston, MA
Principal

Eric makes complex subjects simpler.

He is an environmental litigator in the Boston office of Beveridge & Diamond, with a national practice representing major companies and municipalities in a wide variety of matters including environmental and mass torts, class actions, and federal citizen suits under environmental statutes including the Clean Water Act, the Safe Drinking Water Act, and the Clean Air Act. He has handled cases in state and federal courts throughout the United States, litigating complex civil and commercial matters before juries, trial and appellate courts, arbitrators and administrative tribunals. He specializes in challenging and defending technical experts in complex environmental litigation.

Eric’s litigation practice encompasses a broad range of environmental matters, including the prosecution and defense of groundwater and site contamination cases, PCB cost allocations, environmental white-collar defense and internal investigations, and data compensation under FIFRA, the federal pesticide statute. In particular, Eric has defended some of the most significant environmental citizen suits filed in recent times, including the successful resolution of a $4 trillion Clean Water Act citizen suit filed against a major U.S. transportation company.

As a second-year law student, Eric argued before U.S. Supreme Court Justice Samuel Alito, who recognized Eric with "Best Oralist" and "Best Brief" awards. Following law school, Eric clerked for the Honorable Robert I. Richter at the Superior Court of the District of Columbia. He also serves as co-chair of B&D’s Pro Bono Committee and maintains an active pro bono practice, specializing in defending tenants in eviction actions. 

Eric’s core professional belief spans his careers in education and law: success lies in making complex subjects simpler.

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Daniel M. Krainin Environmental Litigation Attorney Beveridge & Diamond New York, NY
Principal

Dan deploys more than two decades of environmental litigation experience to resolve clients’ legal and business challenges.

Primarily focused on environmental and toxic tort litigation, Dan helps clients successfully resolve groundwater contamination, hazardous waste site remediation, natural resource damages, permit defense and product-related matters. He enjoys using his skills as a litigator to help clients solve environmental problems.

Among his many wins, Dan successfully led a team that defeated an emergency challenge to a permit that Dan’s client needed to continue its...

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