How much in damages for your “mild” lead poisoning injury?

Print Print

Last month the Court of Special Appeals of Maryland affirmed a judgment entered after a jury awarded over one million dollars to a college-bound plaintiff who allegedly suffers from mild attention deficits due to lead paint exposure in early childhood. Sugarman v. Liles, No. 1460,SEPT.TERM,2016, 2017 WL 4990672, at *1 (Md. Ct. Spec. App. Nov. 1, 2017).

Factual Background

Plaintiff Chauncey Liles, now 19 years old, filed a complaint against Ivy Realty, Inc. and Stanley Sugarman, alleging injury and damages caused by lead paint exposure at a residence managed and operated by Ivy Realty when he was a toddler. At trial, the parties stipulated that due to Ivy Realty’s negligence, Mr. Liles was exposed to deteriorating paint at the residence, and his exposure to lead paint substantially contributed to two documented elevated blood lead levels: 11 mcg/dL at age two and a half, and 10 mcg/DL at age three. Id. at *1.

Based on the evidence adduced at trial, in elementary school, Mr. Liles performed consistently at or above grade level until 4th and 5th grade, when he had increased absences following the death of several close family members within a one-year time period. Id. at *2. As a result of this experience, he suffered from grief and anxiety, for which he received counseling. He also attended summer school and received academic support. Id. In middle school, Mr. Liles received grades in the 70s, 80s, and 90s. In May 2016, he graduated from Baltimore City College High School, a college preparatory school that requires admittees to pass an entrance examination. He testified that he had a mid-C average in high school and blamed his self-described poor grades on his inability to focus, stating he gets distracted a lot, does not like sitting still, and cannot grasp things as quickly as others. Id. Upon graduation from high school, Mr. Liles had a weighted GPA of 3.3 and an unweighted GPA of 2.1, ranking him 194 out of 301 students. He tested at or above grade level on Maryland School Assessment testing and passed his High School Assessment tests. Id. His scores on the PSAT were in the 20th, 24th, and 54th percentiles during his 9th, 10th, and 11th grade years, respectively. He was accepted to West Virginia University and Bowie State University, and decided to attend Bowie State, which was less expensive and closer to home. Id.

The Expert Testimony

Four expert witnesses testified for the Plaintiff at trial: Dr. Robert Kraft, a licensed psychologist and an expert in neuropsychology; Dr. Jacalyn Blackwell-White, an expert in pediatrics and childhood lead poisoning; Mark Lieberman, an expert in vocational rehabilitation; and Michael Conte, Ph.D., an expert in economics.

Dr. Kraft performed a neuropsychological examination of Mr. Liles. He concluded that Mr. Liles had a full scale IQ of 94, which falls into the average range. However, he testified that an average range IQ score does not mean there is no evidence of brain impairment, and Mr. Liles’ two index scores that are most sensitive to attention and concentration—auditory encoding of information in the working memory and information processing speed—were significantly lower than his performance in perceptual reasoning. On these two factors, Mr. Liles scored in the 18th percentile. Dr. Kraft opined that the discrepancy between these index scores and the IQ test was wide enough to suggest “that there is some process that is responsible for the discrepancy.” Id. at *3.  Nonetheless, Dr. Kraft agreed that Mr. Liles’ deficits were mild and not always apparent in terms of how he would function at school. Id. at *4.

Dr. Blackwell-White, an expert with extensive experience with children with elevated blood lead levels, testified regarding numerous studies establishing a causal relationship between lead exposure and cognitive defects, including studies that link lead exposure in childhood to loss of IQ points. Id. Dr. Blackwell-White opined that Mr. Liles suffered lead poisoning as a child based on his two elevated lead levels at ages two and one-half and three. Id. at *5. She relied on Dr. Kraft’s neuropsychological evaluation to opine that Mr. Liles suffered brain damage as a result of his early lead exposure and that the cognitive deficits in attention identified by Dr. Kraft were permanent and caused by the lead exposure. Dr. Blackwell-White also relied on a leading study by Dr. Bruce Lanphear to conclude that Mr. Liles had lost four IQ points as a result of his elevated blood lead levels. However, she agreed that a significant amount of cognitive ability is inherited and that the impact of lead is difficult to isolate from socio-environmental variables. Id.

To establish damages, Plaintiff presented the testimony of Mark Lieberman, who assessed Mr. Liles’ vocational prospects using a standard methodology called the RAPEL method. Id. at *6. Mr. Lieberman testified that he looked to Dr. Kraft’s evaluation for three main things: IQ, academic functioning, and any issues that might affect the person’s maximum ability to use their intelligence. Based on IQ score alone, Mr. Lieberman opined that Mr. Liles could probably get an Associate degree. However, based on Dr. Kraft’s detailed assessment, and specifically Mr. Liles’ “problems with attention,” he opined that Mr. Liles would go to college, but problems would occur there that would prevent him from earning an Associate’s degree. Id. Because college relies on a student’s ability to listen and absorb information in a lecture setting, understand what you read in textbooks, and quickly process and put together information, Mr. Lieberman predicted that Mr. Liles would pass some classes but eventually hit a “brick wall.” Therefore, he opined that, given his deficits, Mr. Liles would have the earnings potential of an individual with a high school diploma and “some college,” whereas without his deficits, he would have the earnings of an individual with an Associate’s degree. Id. at *7. Based on this assessment, expert economist Michael Conte testified that Mr. Liles’ loss of earnings was the difference between the average wages for individuals with the educational attainment of an Associate’s degree and those of individuals with the educational attainment of high school plus some college: $1,698,808. Id.

For their part, Defendants’ experts challenged the notion that epidemiological evidence establishes a causative relationship, especially for an individual with relatively low blood lead levels in the 10 mcg/dL range. Id. at *8. They concluded that Mr. Liles did not suffer from any cognitive damage and that his lead exposure did not cause him any issues at all. The “ups and downs” in his academic performance, they opined, contradicted the view that he was impacted by cognitive deficits, since “poor performance due to cognitive deficits is consistent, not transient.” Id. at *9. Defendants’ vocational expert determined that Mr. Liles, as an individual with average IQ and average Academic Achievement Scores who expressed a career interest in medicine and nursing, can complete an Associate’s degree and work as a nurse throughout his normal life. Therefore, his likely educational and vocational capacity was the same as it was prior to his lead exposure. Id.

The Court’s Decision

Defendants moved for judgment at the end of Plaintiff’s case and again at the close of evidence, arguing that the evidence Mr. Liles presented “fell short of speculation” with regard to damages and injury. Id. at *10. Specifically, Defendants argued that Dr. Blackwell-White was the sole causation expert and that her testimony did not establish Mr. Liles was injured because of lead, as such a conclusion cannot be drawn from epidemiological studies, which were relied on exclusively by Dr. Blackwell-White. More generally, the medical experts failed to “tie to the bow” by opining that any cognitive deficits were evidence of brain injury. Therefore, with respect to damages, Defendants argued that both Dr. Conte and Mr. Lieberman’s opinions failed to connect any alleged loss to lead exposure, but rather, reflected loss due to everything in Mr. Liles’ life that may have impacted his cognitive development. Id. Defendants’ motions were denied by the trial court, and the jury awarded Mr. Liles $1,277,610 (following a reduction in accordance with Maryland’ statutory cap on non-economic damages). Defendants appealed, and the Court of Special Appeals of Maryland affirmed the judgment.

With respect to causation, the court rejected Defendants’ arguments that there was an “analytical gap” because the EPA-ISA study relied upon by Dr. Blackwell-White does not describe a causal relationship between lead exposure and the specific cognitive deficits identified by Dr. Kraft: processing speed and auditory encoding:

“We hold that, based on the epidemiological studies showing a causal relationship between childhood lead exposure and problems with attention, and Mr. Liles’ medical and neuropsychological records, there was a sufficient factual basis for Dr. Blackwell-White’s opinion that the cognitive deficits identified by Dr. Kraft, impairments that fall within the umbrella term “attention,” were caused by Mr. Liles’ lead exposure.” Id. at *13.

Defendants similarly challenged Dr. Blackwell-White’s reliance on epidemiological literature to opine that the Plaintiff sustained a loss of four IQ points even though Mr. Liles had never been diagnosed with that condition. In holding that there was in fact a sufficient factual basis for this opinion, the court cited other Maryland appellate courts upholding the use of the Lanphear Study as the basis for calculating IQ loss for plaintiffs in lead paint cases. Id.

Finally, the court held that Mr. Lieberman’s and Dr. Conte’s testimony constituted sufficient evidence to present the issue of damages to the jury. According to the court, Mr. Lieberman employed the primary methodology used in the field of vocational rehabilitation counseling. Therefore, Defendants’ argument that Dr. Lieberman should have used a different methodology and considered Mr. Liles’ parents’ educational and vocational attainment was found to go to the weight of the evidence, an issue properly assessed by the jury. Id. at *15.

Analysis

This decision serves as an interesting case study in cognitive-based personal injury damages. Everything is relative, or so the expression goes. In the world of tort damages, relative to the position the plaintiff would have been in had the tort never occurred. This sounds like a simple enough standard, but might feel tougher to reconcile when the plaintiff is a Mr. Liles, a young man described repeatedly at trial as “average” and, to the casual observer, functioning without any discernible disadvantages. The outcome of his case came down to a determination that he would be able to partially, but not fully, complete a college academic program and therefore fall short of earning an Associate’s degree. But is there really a reliable way to predict an individual’s long-term educational and vocational outcomes? The Defendants in this case argued that Plaintiff’s experts failed to adequately consider the most accurate proxy—the Plaintiff’s family members—but the court did not find that failing dispositive. In the end, it seems Plaintiff managed to piece together a combination of experts to present just enough evidence to make out a case that his lead exposure had an impact on his cognitive functioning, and thus, his future. Only time will tell whether Mr. Liles will live up—or rather, down—to his potential as described by his expert witnesses.