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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.

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About this Author

Graham C. Zorn, Environmental Law Attorney, Beveridge Diamond Law Firm

Graham C. Zorn is an Associate in the Washington, D.C. office of Beveridge & Diamond, P.C., with a general litigation, regulatory, and environmental practice.  Graham has represented individual businesses, trade associations, and municipalities in compliance, enforcement, and counseling matters involving the Clean Air Act, the Clean Water Act, CERCLA and other state and federal statutes.  He has worked extensively on a series of complex products liability and toxic tort cases related to alleged groundwater contamination involving a gasoline additive.  Graham has also counseled domestic...

Eric Klein, environmental attorney, Beveridge & Diamond, P.C.

Eric L. Klein is an environmental civil litigator and regulatory counselor in the Washington, D.C. office of Beveridge & Diamond, P.C.  He has handled cases in state and federal courts throughout the United States, litigating a variety of complex civil and commercial matters before juries, trial and appellate courts, arbitrators and administrative tribunals.  Mr. Klein frequently litigates both statutory and common law claims, and specializes in challenging and defending technical experts in the litigation of complex environmental torts.

Daniel M. Krainin, Environmental Attorney, Beveridge Diamond Law Firm

Daniel M. Krainin is a Principal in the New York office of Beveridge & Diamond, P.C.  He was named to the 2011 and 2012 Super Lawyers list for the New York Metropolitan area, holds an AV Preeminent Peer Review Rating from Martindale-Hubbell, and serves as a Vice Chair of the ABA Environment Section's Environmental Litigation and Toxic Torts Committee.

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