MAINE SUPREME JUDICIAL COURT                                              Reporter of Decisions
Decision: 2014 ME 64
Docket:   Som-12-400
Argued    November 20, 2013
Decided:  May 6, 2014
                                                                                                  *
Panel:        SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.


                                   PAULA BRATTON et al.

                                                  v.

                                   HALSEY MCDONOUGH

GORMAN, J.

         [¶1] Paula Bratton and Daniel Hills Sr., individually and on behalf of their

three minor children (collectively, the Brattons), appeal from a judgment of the

Superior Court (Somerset County, Cuddy, J.) granting Halsey McDonough’s

motion for judgment as a matter of law as to some of their claims and in favor of

McDonough based on a jury verdict on the remaining claims. The Brattons argue

that the trial court erred in excluding expert testimony on proximate causation;

refusing to instruct the jury in accordance with Lovely v. Allstate Insurance Co.,

658 A.2d 1091, 1092-93 (Me. 1995); and granting judgment as a matter of law on

the claims asserted on behalf of the two older children and on the counts for

intentional infliction of emotional distress (IIED) and punitive damages asserted on


   *
      Levy, J., sat at oral argument and participated in the initial conference but resigned before this
opinion was adopted.
2

behalf of all three children.       Because the trial court’s errors created a

fundamentally unfair trial, we vacate the jury’s verdict and remand the case for a

new trial.

                               I. BACKGROUND

      [¶2] The plaintiffs alleged the following facts and presented evidence in

support of their allegations at trial. In September of 2004, Paula Bratton, Daniel

Hills, and their two children, then ages three and one, moved into a house that they

rented from Halsey McDonough. Shortly after the move, medical tests revealed

that the children had elevated blood lead levels. The test results prompted Paula

Bratton to conduct a home lead test that revealed the presence of lead in the paint

at the property. When she contacted McDonough with the results of the home lead

test, he dismissed her concerns and denied that the property contained any lead.

Instead, he attributed the presence of lead in the dwelling to diesel trucks that

traveled on Route 201. With this assurance, the Brattons continued to live at the

property.

      [¶3] Bratton and Hills had a third child in 2006. In 2008, medical tests

indicated that the youngest child also had an elevated blood lead level.        The

Department of Health and Human Services became involved in the matter in 2008

pursuant to the Lead Poisoning Control Act, 22 M.R.S. §§ 1314-1329 (2013). The

Department arranged for the home to be tested for the presence of lead, and the test
                                                                                                         3

results revealed numerous lead hazards throughout the property. Late in 2008, the

Department notified McDonough that he was required to relocate the Brattons

pursuant to 22 M.R.S. § 1322.

        [¶4]    The relocation process did not go smoothly, largely, the Brattons

allege, because McDonough refused to pay for the process. Although an initial

letter from the Department informed McDonough that the Brattons had to be

relocated by December 3, 2008, the process was not completed until March of

2009. In the interim, the Brattons lived at the property but cordoned off some of

the rooms in order to limit the spread of lead paint dust.

        [¶5] In November of 2009, the Brattons filed a twelve-count complaint

alleging that the lead paint at the property had injured the children and seeking

recovery from McDonough on a number of theories, including negligence and

IIED, and seeking punitive damages.1 After an extended period of discovery, a

jury was selected on July 16, 2012. On the same date, the court issued rulings on

outstanding motions in limine. In one ruling, the court precluded the Brattons from

presenting portions of testimony from two of the Brattons’ experts.



   1
      At the time of trial, the parties and the court agreed that only the claims for negligence, IIED, and
punitive damages remained. Although all of these remaining counts were brought by Paula Bratton and
Daniel Hills individually and on behalf of the children, the parties do not raise on appeal the disposition
of any claims concerning the parents. We therefore address the remaining counts only as they apply to
the children.
4

      [¶6] After the close of the Brattons’ case, McDonough moved for judgment

as a matter of law on the children’s negligence claims.        The court granted

McDonough’s motion with regard to the two older children, concluding that the

evidence was insufficient to causally connect their conditions with the presence of

lead in the home. The court also granted judgment as a matter of law on the IIED

count as to all three children based on its determinations that McDonough’s

conduct was not extreme and that there was no evidence indicating that any of the

children suffered emotional distress. When it granted judgment to McDonough on

the IIED count, the court also granted judgment to McDonough on the Brattons’

punitive damages count.

      [¶7] Based on its conclusion that there was a stronger connection between

the youngest child’s condition and his exposure to lead than the connection

between the older children’s condition and the lead, however, the court did allow

the youngest child’s negligence claims to proceed. After deliberation, the jury

unanimously answered the question posed to it—“Was the defendant, Halsey

McDonough, negligent which negligence proximately or legally caused injury to

[the youngest child]?”—in the negative.
                                                                                  5

                                II. DISCUSSION

      [¶8]    The Brattons’ arguments on appeal can be separated into two

categories: those arguments relevant to the negligence counts and those relevant to

the IIED and punitive damages counts.

A.    Negligence

      [¶9] The Brattons argue that the court (1) abused its discretion by excluding

expert testimony regarding proximate causation; (2) erred by ruling as a matter of

law that they had failed to prove causation as to the negligence claims concerning

the two oldest children; and (3) erred by failing to instruct the jury on proximate

causation and damages pursuant to Lovely, 658 A.2d at 1092-93. We address each

challenge in turn.

      1.     Expert Testimony

      [¶10] In their case in chief, the Brattons intended to present testimony from

two expert witnesses—Richard Parent, Ph.D., a toxicologist, and Ronald Savage,

Ed.D., a brain injury treatment specialist—to explain how the children’s exposure

to lead while residing at McDonough’s property caused harm to the children. The

court limited the scope of both experts’ testimony, however—precluding

Dr. Parent from testifying that the children “have suffered a poisoning by lead” and

precluding Dr. Savage from testifying about “the causation of any of the deficits of

the . . . children as being caused by lead exposure”—as not sufficiently reliable
6

because both lacked a medical degree. “We review a court’s foundational finding

that expert testimony is sufficiently reliable for clear error.” Searles v. Fleetwood

Homes of Penn., Inc., 2005 ME 94, ¶ 24, 878 A.2d 509.

      [¶11] In excluding Dr. Parent’s testimony, the court stated, “I am not at all

comfortable . . . in terms of reliability that [Dr. Parent] goes beyond the area of his

discipline and provides a causation as to this case and these children and this lead

exposure.” In so ruling, the court misapprehended the role of a toxicologist. Much

of the jurisprudence in this area comes from the federal courts, where toxic tort

litigation often takes place. In that arena, when the only argument against the

admission of a toxicologist’s opinion is the lack of a medical degree, the majority

of federal courts admit the testimony as reliable evidence of causation. See, e.g.,

Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 758 (8th Cir. 2006) (“We have

previously held that a toxicologist may testify that exposure to a chemical caused a

person’s symptoms and injuries.”); In re Paoli R.R. Yard PCB Litig., 916 F.2d 829,

855-56 (3d Cir. 1990) (holding that the trial court erred in excluding a

toxicologist’s testimony “simply because the expert did not have the degree or

training which the district court apparently thought would be most appropriate”);

see also 2 Toxic Torts Practice Guide § 16:3 (West, Westlaw through Nov. 2013).

Excluding Dr. Parent’s expert testimony because of the nature of his advanced

degree was clear error.
                                                                                    7

      [¶12]   Dr. Savage is a brain injury specialist with a degree in special

education. At the hearing held in response to McDonough’s challenge to his

expected testimony, Dr. Savage acknowledged that he was not a medical doctor

but explained that he had worked under the direction of a board-certified

neurologist and psychiatrist, operated a center for neurological rehabilitation, run a

day treatment program for people with brain injuries, and lectured on rehabilitation

of individuals with brain injuries and on brain behavior relationships. He testified

that he had taken courses on brain injury, read extensively on the subject, was the

only member on the editorial board of the Journal of Neurology who did not have a

medical degree, and was certified by the American Academy for the Certification

of Brain Injury Specialists.

      [¶13] Dr. Savage testified that his opinion was based on the children’s

medical history, which indicated the presence of lead in their blood, and on their

psychological and neurophysiological testing. He described how lead is absorbed

into the body and how it damages the brain, and the effects of that damage on brain

development. Finally, he described how the children’s injuries would affect their

lives in the future, what types of continuing treatment they would need, and how

much the treatment would cost. Dr. Savage stated that, in formulating his opinion,

he had considered factors other than the presence of lead—including the children’s

home environment and the father’s alcoholism—but had not specifically
8

considered the parents’ IQs.        He testified that the contributing factors he

considered did not account for all of the children’s medical and psychological

symptoms.

      [¶14] The trial court determined that Dr. Savage’s qualifications did not

provide a level of reliability that would assist the fact-finder. Specifically, it found

that “the core of his experience is his academic proficiency . . . in the field of

determining the needs and deficits of children that [have] educational difficulties

[and] in recommending treatments and developing plans or proposals for helping

those children.” The court went on to explain that Dr. Savage’s “self-imposed

focus and refocus on the area of brain injury are not, as far as this [c]ourt is

concerned, sufficient to provide opinions which would assist the fact finder on [the

issue of causation].” Based on this reasoning, the court precluded the Brattons

from presenting any testimony by Dr. Savage on causation, but allowed his

testimony concerning damages.

      [¶15] The trial court erred by not allowing Dr. Savage to testify about

causation.   The record shows that Dr. Savage relied on established scientific

principles with which he is clearly familiar. Further, pursuant to the test we set out

in Searles, 2005 ME 94, ¶ 23, 878 A.2d 509, most of the indicia of scientific

reliability are satisfied.   As with Dr. Parent, any challenge to Dr. Savage’s
                                                                                   9

qualifications is an issue of weight rather than admissibility. See State v. Pineo,

2002 ME 93, ¶ 6, 798 A.2d 1093.

      [¶16] The court’s order excluding the experts’ testimony was based on its

flawed application of our decision in Tolliver v. Department of Transportation,

2008 ME 83, 948 A.2d 1223, and on its erroneous understanding that an individual

must have a medical degree in order to present expert testimony about lead

exposure and toxicity. In Tolliver, we held that the trial court erred in admitting

the testimony of an expert as to the cause of a pedestrian-vehicle accident not

because the expert did not possess a particular degree, but because he had limited

knowledge about the accident scene and the condition of the persons involved and

therefore “lacked the foundation necessary to offer an opinion as to the cause of

this particular accident.” Id. ¶¶ 34-35; see also id. ¶ 53 (Silver, J., dissenting in

part and concurring in part) (stating that the issue of the expert’s testimony

“ultimately turns on weight rather than admissibility”). Here, in contrast, the trial

court should have recognized McDonough’s arguments about the proffered

testimony from Drs. Parent and Savage as challenges to the weight of the opinions

rather than to their admissibility.
10

      2.     Judgment as a Matter of Law

      [¶17] In entering a judgment as a matter of law for McDonough on his

M.R. Civ. P. 50(a) motion concerning the causes of action brought on behalf of the

two older children, the court stated:

      The proximate causation evidence which came from Dr. Salvato made
      it abundantly clear to the [c]ourt by his descriptive phraseology as to
      the involvement of lead that it was a contributing factor, but he made
      it clear in his testimony . . . that he really could not say how much or
      how little each of these factors played with respect to [the two older
      children].

The testimony to which the court referred was one answer that John A. Salvato,

M.D., a pediatrician who had treated all three children, provided during the course

of his trial deposition. In other portions of his testimony, however, Dr. Salvato

stated that the two older children’s developmental and behavioral problems were

explainable in part by their exposure to lead. By focusing on the portion of

Dr. Salvato’s testimony that did not support the Brattons’ claims, the court

demonstrated that it was reviewing the evidence in a light most favorable to

McDonough rather than to the Brattons. In so doing, the court erred. See Lewis v.

Knowlton, 1997 ME 12, ¶ 6, 688 A.2d 912 (stating that a court may not grant a

motion for judgment as a matter of law if “any reasonable view of the evidence

could sustain a verdict for the opposing party pursuant to the substantive law that is

an essential element of the claim”); Fournier v. Rochambeau Club, 611 A.2d 578,
                                                                                    11

579 (Me. 1992) (stating that a plaintiff is required to prove that a defendant’s

negligence was a proximate cause, but not necessarily the sole proximate cause, of

a plaintiff’s injury).

       3.      Jury Instructions

       [¶18] The Brattons proposed an instruction that followed our language in

Lovely. See 658 A.2d at 1092-93. They argued that Lovely requires a trial court to

instruct the jury that the burden of apportioning damages to independent or

subsequent causes falls on the defendant and does not require that a plaintiff

disprove the defendant’s assertions of alternative causes for the plaintiff’s injuries.

Further, the Brattons specifically sought an instruction based on Lovely “that

makes it clear that it is [McDonough’s] burden to differentiate causation on prior

conditions.”     The trial court, however, declined to give a Lovely instruction,

reasoning that

       [i]t is not an issue of mitigation or the burden to mitigate or burden to
       apportion, I think it is more in the context of an independent event as
       opposed to a mitigating event . . . . I intend [the instruction] to be
       focused toward independent events and that’s where I am going to
       leave it.

Instead, the court instructed the jury that

       where there have been independent events affecting the Plaintiff’s
       condition before or after the incident which gave rise to this trial, you
       must separate out damages attributable to the prior or subsequent
       events, and award the Plaintiff only those damages you find to have
       been proximately caused by the Defendant’s fault.
12


After it began deliberations, the jury asked the court to clarify the definition of

proximate cause, to which the court responded, “proximate means something that

played a substantial part,” and referred the jury to the written instructions.

      [¶19] Lovely stands for two related negligence principles. The first places

the burden of apportioning damages on a defendant who seeks to limit liability on

the basis of a preexisting or a subsequent injury. See, e.g., Mahar v. StoneWood

Transp., 2003 ME 63, ¶ 41, 823 A.2d 540 (Alexander, J., concurring in part and

dissenting in part) (discussing Lovely, 658 A.2d at 1092-94). The second requires

that when a defendant asserts that an independent factor, rather than the

defendant’s acts, caused the plaintiff’s harm, it is the defendant’s burden to prove

that independent causation by a preponderance of the evidence. See, e.g., Merrill

v. Sugarloaf Mountain Corp., 2000 ME 16, ¶ 12, 745 A.2d 378 (citing Lovely,

658 A.2d at 1093-94) (Lipez, J., concurring); see also Alexander, Maine Jury

Instruction Manual § 7-83 cmt. at 7-114 (2014 ed.) (“A defendant, asserting that

there is an independent intervening event that excuses liability, has the burden of

proving the event and its causation of plaintiff’s damages.”). In short, the principle

that the party affirmatively asserting a theory bears the burden of proving that

theory has been applied both to the element of causation and to the element of

damages.
                                                                                     13

      [¶20]    The trial court must give instructions that are applicable to the

evidence in the case. Isaacson v. Husson Coll., 332 A.2d 757, 762 (Me. 1975). A

party is entitled to a requested instruction if it “(1) states the law correctly; (2) is

generated by the evidence in the case; (3) is not misleading or confusing; and (4) is

not otherwise sufficiently covered in the court’s instructions.” Frustaci v. City of

S. Portland, 2005 ME 101, ¶ 15, 879 A.2d 1001 (quotation marks omitted). The

Brattons’ proposed instructions satisfied all four criteria.       First, the Brattons

suggested that the court instruct the jury that “if the Plaintiff has an injury that

preexist[s] the Defendant’s wrongdoing . . . it is the defendant’s burden to

apportion damages” and that “it is the Defendant’s burden to differentiate

causation [arising from] prior conditions.” These are accurate restatements of

Lovely. 658 A.2d at 1092-93. Second, McDonough presented evidence showing

that the injuries to the children were caused by factors independent of lead

poisoning, including genetics, the father’s alcoholism, and the mother’s depression.

Because giving a Lovely instruction would not have been misleading or confusing,

and because the principle it explains was not otherwise addressed in the court’s

instructions, the third and fourth criteria are also satisfied.

      [¶21] Instead of giving the requested Lovely instruction, however, the court

gave an instruction that advised the jury to “separate out damages attributable to

the prior or subsequent events, and award the Plaintiff only those damages you find
14

to have been proximately caused by the Defendant’s fault,” making no reference to

McDonough’s burden to prove that damages were caused by the independent

factors. The Brattons were entitled to the proposed instruction, and the trial court

erred when it failed to give it. Cf. Gould v. Bangor & Aroostook R.R. Co.,

292 A.2d 837, 843 (Me. 1972) (ordering new trials because the jury instructions

“were so inadequate and misleading as to leave the jury without the guidance

essential to its task”).

B.     Intentional Infliction of Emotional Distress and Punitive Damages

       [¶22] To recover on a claim of IIED, a plaintiff must show (1) either that

the defendant intentionally or recklessly inflicted severe emotional distress or that

his or her conduct was substantially certain to inflict severe emotional distress,

(2) that the defendant’s conduct was “so extreme and outrageous as to exceed all

possible bounds of decency and must be regarded as atrocious” and “utterly

intolerable in a civilized community,” (3) that the defendant’s conduct caused the

plaintiff’s emotional distress, and (4) that the emotional distress was “so severe

that no reasonable person could be expected to endure it.” Lyman v. Huber,

2010 ME 139, ¶ 16, 10 A.3d 707 (quotation marks omitted). On appeal from a

judgment as a matter of law, we view the evidence in the light most favorable to

the party opposing the motion, and will not affirm the grant of such a motion if

“any reasonable view of the evidence could sustain a verdict for the opposing party
                                                                                   15

pursuant to the substantive law that is an essential element of the claim.” Lewis,

1997 ME 12, ¶ 6, 688 A.2d 912.

      [¶23] Here, the court granted the motion for judgment as a matter of law on

the IIED claims because it determined that the evidence did not show that

McDonough’s conduct was extreme or that the children suffered severe emotional

distress. Viewed in the light most favorable to the plaintiff, the evidence shows

that McDonough allowed a family with young children to live in a house that

exposed the children to toxic levels of lead for several years. It further shows that,

even after the house had been declared a lead hazard by the State and although

McDonough had a legal duty to relocate the Brattons, he failed to do so for four

months. We cannot say as a matter of law that no reasonable juror could find

McDonough’s actions extreme and outrageous. See Colford v. Chubb Life Ins. of

Am., 687 A.2d 609, 616 (Me. 1996) (“Where reasonable people may differ, it is for

the jury . . . to determine whether, in a particular case, the conduct has been

sufficiently extreme and outrageous to result in liability.” (alteration omitted)

(quotation marks omitted)).

      [¶24] In addition, the Brattons testified that the children were scared and

confused when their home was posted as “not safe for children.” They testified

that after sections of the house had been cordoned off to prevent lead dust from

spreading, the children could not play with their toys, run around the house, go into
16

one of the bedrooms, or touch any of their things that were in that bedroom. They

would scream “the poison is going to kill us” if a child attempted to enter the

closed-off area. Again, because we cannot say that no reasonable juror could find

that McDonough’s conduct was extreme and outrageous and that this conduct

caused the children severe emotional distress, the court’s judgment as a matter of

law on the IIED count must be vacated. See Restatement (Second) of Torts § 46

cmt. j (1965) (“It is for the court to determine whether on the evidence severe

emotional distress can be found; it is for the jury to determine whether, on the

evidence, it has in fact existed.”); see also German v. Fed. Home Loan Mortg.

Corp., 885 F.Supp. 537, 571-72 (S.D.N.Y. 1995), clarified on other grounds,

896 F. Supp. 1385 (S.D.N.Y. 1995) (concluding that the plaintiffs pleaded their

IIED cause of action sufficiently where landlords knowingly exposed tenants to

lead paint, “a highly toxic substance to children,” thereby putting them at risk for

physical and mental injuries (quotation marks omitted)).

      [¶25] With the IIED count restored, we must also consider whether the

court erred when it granted judgment as a matter of law on the punitive damages

count. “[P]unitive damages are available based upon tortious conduct only if the

defendant acted with malice.”       Tuttle v. Raymond, 494 A.2d 1353, 1361

(Me. 1985). Malice can be express or it can be demonstrated by conduct that “is so

outrageous that malice toward a person injured as a result of that conduct can be
                                                                                 17

implied.” Id. Implied malice, however, cannot be established by the defendant’s

“mere reckless disregard of the circumstances.” Id.

      [¶26] The evidence, taken in the light most favorable to the Brattons, shows

that McDonough affirmatively represented to them that there was no lead in the

house when he knew that lead was indeed present. The nature of this intentional

misrepresentation could be sufficient for a fact-finder to find implied malice.

Although McDonough presented evidence to rebut this assertion, this factual

dispute should be settled by the jury. Cf. Gagne v. Stevens, 1997 ME 88, ¶ 8,

696 A.2d 411.

C.    Conclusion

      [¶27] In sum, the court improperly excluded the Brattons’ qualified expert

witnesses, which constituted clear error, see Searles, 2005 ME 94, ¶ 24,

878 A.2d 509; it erroneously entered judgment as a matter of law for McDonough

on the negligence claims of the two older children, as well as the IIED and punitive

damages claims of all three children, by failing to view the evidence in the light

most favorable to the Brattons, see Lewis, 1997 ME 12, ¶ 6, 688 A.2d 912; and it

improperly shifted the burden of proof onto the Brattons to disprove McDonough’s

independent causation theories and refused to give the jury a proper and requested

instruction, see Merrill, 2000 ME 16, ¶ 14, 745 A.2d 378.          That the errors

concerning the experts were made on the eve of trial compounded their effect, and
18

those errors, when considered with the other erroneous rulings, materially and

substantially prejudiced the Brattons.           Cf. Wheeler v. White, 1998 ME 137,

¶¶ 11-12, 714 A.2d 125 (Lipez, J., dissenting) (noting that the trial court’s

erroneous jury instruction on the issue of causation was compounded by its

misstatement of the plaintiff’s burden of proof). For all of these reasons, the

Brattons are entitled to a new trial on the claims they brought on behalf of their

children in Counts I, II, III, XI, and XIII.

        The entry is:

                           Judgment vacated. Remanded for a new trial.



On the briefs:

        Melissa A. Hewey, Esq., and Michael L. Buescher, Esq.,
        Drummond Woodsum, Portland, for appellants Paula Bratton
        et al.

        Martica S. Douglas, Esq., Douglas, Denham, Buccina & Ernst,
        Portland, for appellee Halsey McDonough


At oral argument:

        Melissa A. Hewey, Esq., for appellant Paula Bratton, et al.

        Martica S. Douglas, Esq., for appellee Halsey McDonough


Somerset County Superior Court docket number CV-2009-59
FOR CLERK REFERENCE ONLY
