Opinion
No. 2167, September Term, 2006.
Filed: March 4, 2008.
HEADNOTE
SUIT AGAINST BALTIMORE HOUSING AUTHORITY — RESIDENTS COMPLAIN ABOUT EXPOSURE TO MOLD — THE CONDITION OF 2200 HOMEWOOD AVENUE — LEGAL SUFFICIENCY OF THE EVIDENCE — A REDUNDANT JURY INSTRUCTION — AN EVIDENTIARY POTPOURRI — REMITTITUR
Sharer, Moylan, Charles E., Jr., (retired, specially assigned), Murphy, Joseph F., Jr., (specially assigned), JJ.
Joseph F. Murphy, Jr., now serving on the Court of Appeals, participated in the hearing and conference of this case while an active member of this Court; he participated in the adoption of this opinion as a specially assigned member of this Court.
On January 21, 2005, the appellees, Mary Roy, Johnnie Pratt, and Louise Bills, filed suit against the appellant, the Housing Authority for Baltimore City ("HABC"), for breach of contract and for negligence resulting in injuries to them from exposure to mold, fungi, and other toxic substances. The core of the complaint was that the appellant had failed properly to maintain the premises that the appellees rented from HABC. The premises in question was 2200 Homewood Avenue, a former Baltimore City public school, which had been renovated and turned into public housing many years earlier.
After a two-week trial beginning on September 12, 2006, a Baltimore City jury, presided over by Judge John N. Prevas, found in favor of all three appellees. It returned a verdict in favor of Mary Roy for $102,210; a verdict in favor of Johnnie Pratt for $177,000; and a verdict in favor of Louise Bills for $103,534. On this appeal, HABC contends
1. that the evidence of causation was not legally sufficient to support the verdicts;
2. that Judge Prevas erroneously refused to instruct the jury about the inadmissibility of certain test results;
3. that Judge Prevas erroneously admitted inadmissible opinion testimony; and
4. that Judge Prevas abused his discretion when he failed to grant a remittitur in favor of HABC.
The Condition of 2200 Homewood Avenue
The building in question is a three-story structure with 36 apartments and a basement containing a community meeting room, laundry facilities, and a storage area for the tenants. HABC requires that in order for a person to be a tenant in the building, that person must not only qualify under the established financial standards but must also be either a senior citizen or one who is physically and/or mentally disabled.
Between 1998 and 2001 all three of the appellees had been placed in their respective apartments. Mary Roy, who was 66 years of age at the time of the trial, was living on the second floor in apartment 213. She had been diagnosed with arthritis in her knees. Johnnie Pratt, 55 years of age at the time of trial, was living on the third floor in apartment 305. He had been diagnosed with mental depression and was a recovering alcoholic and drug addict. Louise Bills, 66 years of age at the time of the trial, lived on the third floor in apartment 308. She had been diagnosed with degenerative spinal disease.
The building itself was as ailing as were its tenants, and that is the nub of the case. It had been suffering from years of neglect at the hands of HABC. Part of the routine monitoring procedure established by HABC was to have the roof inspected annually by its own employee, Thomas Harrant. Harrant inspected the roof in November of 1998 and reported that the roof and built-in gutter were "showing signs of weathering." In October of 2000, Harrant noted that the building "will need a new roof soon" and that the gutter system was in "poor repair." In November of 2001, Harrant reported that the roof needed replacement. He made the same observations and made the same recommendation in October of 2002, in November of 2003, and in November of 2004. In his Inspection Report to HABC in November of 2004, Harrant pointed out that the roof had missing shingles, cracked shingles, and curled shingles and valleys. He emphasized that the roof needed replacement "A.S.A.P."
In the summer of 2003, Johnnie Pratt noticed that his ceiling had developed a patch of black mold. He notified building maintenance. The maintenance supervisor observed the mold and instructed Pratt to spray the spot with Chlorox and then just to "wipe it off." Getting no further satisfaction out of building maintenance, Pratt complained to the Baltimore City Health Department on July 2, 2003, about the mold on his ceiling as well as the mold in the common hallways. Louise Bills also contacted the Health Department, on July 8, 2003, to complain about the mold on the ceilings, on the chairs, and in the community meeting room in the basement. On July 24, 2003, Pratt wrote to HABC's Housing Manager, requesting that she respond to his complaint about HABC's failure to repair his ceiling. Pratt, out of his own pocket, hired Advanced Mold Remediation (AMR) to conduct a test of the black mold on his ceiling. AMR conducted the test on July 30, 2003, and reported that a high level of Stachybotrys mold was found.
On July 29, 2003, Inspector Clayton Tolson of the Health Department inspected the building and issued a Violation Notice to HABC, ordering it 1) to eliminate the mold in Pratt's apartment, 2) to eliminate the mold in the basement community room, and 3) to eliminate the standing water in the electric room. On August 19, 2003, Inspector Jerry Welch, also of the Health Department, attempted to perform a follow-up inspection of Pratt's apartment but was denied access to it by a HABC employee. Inspector Welch spoke to HABC's assistant manager, who acknowledged awareness of the problem but indicated that the problem areas "had not been repaired as of yet." On August 20, Inspector Welch issued another Violation Notice, directing that HABC:
remove any and all mold within 2200 Homewood Avenue, Apartment 305. Also water damaged ceiling must be replaced and all leaks must be repaired. Also HVAC system must be cleaned, removing all mold.
On August 29, 2003, Inspector Tolson conducted a follow-up inspection of the basement community room. He noted that the mold had been removed from that room, but he also noted that the mold in the basement men's room was "observed to be returning."
When HABC learned that the plaintiff/appellees were obtaining legal representation, it hired the Connor Environmental Services to conduct a site survey. Although Connor is qualified to test for mold, it was not asked to do so. The survey was done on August 21, 2003, and the report to HABC was made on September 2, 2003. The report included the following observations:
The Consultant found the Project Site to have numerous deficiencies associated with many of the building systems as related to moisture infiltration. Most notably, the high level of relative humidity found in the basement, the standing water found in the crawl space, the relatively large number of unaddressed water leaks and the substandard condition of the HVAC system.
The Consultant noted numerous water leaks and instances of water damage throughout the building. . . . [T]he Consultant observed over 14 separate roof leaks on a single occasion while touring the attic. In addition on the same occasion, the Consultant observed numerous other water leaks through the soffits resulting in water cascading down the facades of the building.
It is apparent that these many separate roofing deficiencies are all not recently occurring. It is more likely that the condition of the roofing system is the result of many years of not only deferred repairs, but also deferred inspection and poor response to resident complaints.
. . . [T]he HVAC system is in deplorable condition. Twenty-five percent of the dwelling unit HVAC systems were found non-operational during the assessment. The common area HVAC system was also found to be non-operational. The vast majority of the PTAC [Package Terminal Air Conditioning] units were found with some type of defect, largely due to shoddy work or neglect.
The plumbing system, in general, was not in as poor condition as the other elements of the mechanical system. However there were numerous instances of deficient maintenance practices. Most of these items would be categorized in the normally wearing parts category such as leaking faucets and drains.
(Emphasis supplied). The report listed 73 separate deficiencies and recommendations for repairs.
The Connor inspection team returned to do a follow-up on the building on November 29 and 30, 2003. They discovered that some of the required work had been done or was in progress. The inspection team was, however, denied access to certain areas, including some of the apartments and the building's attic. They also noted that there were still many areas of mold or "suspected fungal growth" that had been observed during their initial inspection. Included in a group of attached documents was a proposal for remedial work by Mid-Atlantic Waterproofing of Maryland, Inc. The proposal noted the observation by Mid-Atlantic's senior inspector that "mold and mildew have gotten a foothold and are making for an unhealthy and unsafe atmosphere and can ruin the utilities and the stored materials in the basement." That senior inspector was called by the appellees as a witness and testified as to his observations.
HABC had Connor Environmental Services return to the building on January 26, 2005. Connor observed that there were still several areas of water intrusion problems and "suspected fungal growth" throughout the building. There was standing water in the elevator pit.
The appellees also presented the testimony of Dr. Robert K. Simon, a forensic toxicologist, chemist, and certified environmental assessment consultant with the ETI Environmental Laboratory. He conducted an inspection of the building on January 14, 2005. Dr. Simon found high levels of Stachybotrys and other toxic and allergenic molds throughout the building. He also observed numerous areas suffering water intrusion.
Obviously unable to mount any defense with respect to the condition of the building itself, HABC focused its defense on the appellees' proof of the causal connection between the mold in 2200 Homewood Avenue and the medical conditions suffered by the appellees.
Legal Sufficiency of the Evidence
In a three-pronged attack, HABC contends that Judge Prevas was in error for 1) failing to grant judgment in favor of HABC at the conclusion of the case, 2) failing to grant a judgment N.O.V. in favor of HABC after the entry of judgment, and 3) failing to award a new trial to HABC pursuant to Maryland Rule 2-533. All three subcontentions are based on HABC's allegation that there was insufficient evidence of medical causation to have permitted the case to go to the jury.
We will content ourselves with answering the first of the subcontentions. If Judge Prevas was correct in denying judgment in favor of HABC at the close of the case, he could hardly be deemed to have acted erroneously in remaining consistent with that ruling 1) when it came to the motion for judgment N.O.V. and 2) on the motion for a new trial. If, on the other hand, Judge Prevas were to be held by us to have been in error for not granting judgment in HABC's favor at the close of the case, that would settle the matter and the echo motions would serve no independent purpose.
With respect to the issue of legal sufficiency, we hold that the medical causation was adequately established. HABC chooses to join battle on the testimony of Dr. Deborah J. Daniels Joyner. We accept the challenge. We do so because, quite aside from massive evidence from numerous witnesses — including, prominently, the three appellees themselves — the testimony of Dr. Joyner, standing alone, was enough to take this case to the jury.
Dr. Joyner is a physician specializing in the field of allergies and clinical immunology. She is board-certified by the American Board of Allergy and Immunology. In her active practice, she has regularly treated patients for adverse effects from exposure to mold. She testified as to her continuing professional education, specifically with respect to the topic of mold exposure.
Q. And have you surveyed the Internet on the topic of mold exposure?
A. Yes.
Q. Why would you, why do you do that?
A. I do that because the Internet is a wealth of information. It gives me access to a broader range of information than what's covered in my, in the Journal of Allergy and Clinical Immunology. I actually can retrieve international information sometimes and just look at what else is going on. So the Internet, Google is a great search engine so it really does give a lot of information.
Q. In your profession have you also had the opportunity to review the EPA March 2001 publication on Mold Remediation in Schools and Commercial Buildings?
A. Yes.
Q. What other documents have you reviewed on the topic, specifically on damp indoor environments and the effects of mold exposure on humans?
A. I've reviewed several documents. I've reviewed Damp Indoor Spaces, the Institute of Medicine's report —
Q. Is that this book here?
A. Yes.
Q. Okay.
A. That came out in 2004. I've reviewed correspondence and editorials as recent as September 2006 that were published in the Journal of Allergy and Clinical Immunology, reports from so many different journals that are just too numerous to name, but just mainly from the Journal of Allergy and Clinical Immunology, the IOM report, and just some international journals I can't, maybe British Medical Journal as well.
(Emphasis supplied).
Dr. Joyner explained that, when treating patients with probable mold exposure, an important source of information is environmental test results.
Q. Before seeing the Plaintiffs, Johnnie Pratt, Louise Bills and Mary Roy, had you ever come to the opinion that some of your patients were suffering from the effects of mold exposure?
A. Yes.
Q. When making such a diagnosis, is environmental testing something that you would routinely rely on?
A. Yes.
Q. What if any suggestions have you made to your patients with regard to having their environment tested for mold?
A. If there is a suspicion that mold or any other unsavory environmental condition is causing their symptoms, I do recommend that they have it tested if it's not already done. If occasion allows it, I recommend that they move out while it's being tested to determine if, because if they're having ongoing symptoms and feeling bad, they need to remove themselves if at all possible from the environment so that we can see if there's an improvement. But certainly to avoid any further health consequences from exposure.
(Emphasis supplied).
Dr. Joyner was accepted as an expert witness in the field of asthma and clinical immunology with no objection from HABC. Dr. Joyner went on to explain the adverse effects that mold can have on the human body.
Q. Dr. Joyner, what is mold?
A. Mold is actually a living organism that's found throughout our environment. We see it commonly on so many different things. It reproduces by having, by being found in environments where there's a great degree of water. It needs moisture and a nutrient source in order to live.
Q. Can mold cause adverse health effects?
A. Mold has been associated with adverse health effects, yes.
Q. Can you explain the avenues in which humans are exposed to mold?
A. Yes. We are exposed, humans are exposed to mold through many different ways, ways that are articulated for any type of foreign substance, through inhalation, through ingestion and through skin contact.
Q. What is it about mold that can cause effects in humans?
A. Mold has many different substances that it can make. Some of these substances are enzymes. And enzymes are — are actual chemicals that can eat away at the surface lining or the lining of our bodies. Some of these are known as proteases? Molds can produce proteases. Molds can also produce chemical, substances known as mycotoxins which are toxins that can help them sustain their growth and they can also have adverse health effects on individuals.
. . . .
Q. Well, like irritant versus allergic versus toxic?
A. Well, any mold has a potential to cause an allergic response because an individual can become allergic to it. So there is a possibility that molds can cause, can create an allergic response which is specific immune response. But they can also create an irritant response.
(Emphasis supplied).
Dr. Joyner connected the existence of mold with the presence of damp indoor environments.
Q. Doctor, explain the significance if any of someone living in a damp indoor environment?
. . . .
A. Damp indoor environments have posed adverse health effects for many different reasons. Several studies have shown that individuals who are exposed to wet concrete floors, damp environments, may also be exposed to a type of endotoxin, that's the, that's the theory that's being generated, that causes them to have this type of reaction.
Damp indoor environments of course would foster and promote heavily the production of mold. That's one of the requirements in order to have mold growth, to have a moisture environment. So if an environment is extremely damp you're, you're going to see mold.
(Emphasis supplied).
Dr. Joyner had thoroughly familiarized herself with the reports about conditions at 2200 Homewood Avenue.
Q. Have you also had an opportunity to review environmental records and reports of the conditions at 2200 Homewood Avenue in 2003 and 2005?
A. Yes.
Q. I'd like to go through what documents you reviewed with regards to the conditions at 2200 Homewood Avenue. Did you review a mold test of Johnnie Pratt's apartment 305 that was taken in 2003?
A. Yes.
Q. Okay. And we'll come back to that later. Did you review Homesteaders home inspection reports of Mary Roy and Louise Bills' apartments that were conducted in 2003?
A. Yes.
Q. Let me see if I have Homesteaders, 32. Okay. Did you, were you provided the three Connor Environmental reports of September 2003, December 2003 and January of 2005 inspections?
A. Yes, I was.
Q. Okay. Did you review the ETI Laboratory, Dr. Robert Simon's report and testing and photographs that he took in January of 2005?
A. Yes.
Q. Were you provided photographs that were taken of the conditions that were taken by Johnnie Pratt?
A. Yes, I was.
Q. And were you provided documents from the Baltimore City Health Department with regards to their investigations of starting in July of 2003?
A. August, yeah, well, you said Baltimore City Health Department.
Q. Yes.
A. That's Connor.
Q. I'm sorry?
A. From Connor.
Q. Not from Connor, but the actual Baltimore City Health Department violation notices.
A. I did review, yes, I did review those.
Q. Okay. Now, are these the types of documents that you would rely on when looking at, as a patient's environment when you suspect it to be causing potential adverse health effects?
A. Yes.
(Emphasis supplied).
Dr. Joyner referred to the test for mold on Pratt's apartment in 2003 and particularly to the presence of stachybotrys.
Q. What if any significance do you attach to the fact that the mold that was found in Mr. Pratt's apartment was stachybotrys?
A. Stachybotrys is a mold that has known to elaborate, to produce mycotoxins. These mycotoxins have been shown to have an irritant effect that can cause adverse health effects in individuals if they're exposed.
THE COURT: Doctor, you're concerned about the presence of stachybotrys; is that correct?
THE WITNESS: Yes, sir, I am.
(Emphasis supplied).
Dr. Joyner also referred to the reports showing the presence of mold, and of stachybotrys, in the apartments of Ms. Bills and Ms. Roy.
Q. Okay. Now, Ms. Bills' apartment were also tested by a different company, Homesteaders, correct?
A. That is correct.
Q. And what types of molds were found in their apartments?
A. Ms. Bills' apartment, stachybotrys and asperiguillus penicillium.
Q. Okay.
A. Those are the molds.
Q. And with regards to — we've heard stachybotrys. With regards to asperiguillus penicillium, what if any significance is there to the fact that that type of mold was found — in the apartment?
A. These are also molds that are known to produce mycotoxins that can, that have been shown, demonstrated to have irritant effects and have adverse health effects.
Q. And I'm sorry, that was Ms. Bills' unit?
A. Ms. Bills' apartment.
Q. And how about Ms. Roy's apartment when that was tested in 2005, what types of mold were found?
A. Excuse me. Are we talking about Homesteaders now? You said 2005.
Q. Yes, Homesteaders, just the Homesteaders —
A. In 2003.
Q. — in 2003, I'm sorry.
A. Okay. Ms. Roy's apartment, stachybotrys and penicillin and aspergillus were also found.
Q. Okay. So, so that was two different apartments but they, similar molds were found, is that correct?
A. That is correct.
(Emphasis supplied).
All three appellees had provided photographs of their respective apartments, photographs showing mold, to Dr. Joyner.
Q. And, and do the photographs assist you with regards to rendering your opinions in this case with regards to whether the conditions in this building may have caused symptoms of the Plaintiffs?
A. Yes.
Q. And is — are photographs something that you would rely on and find helpful in rendering your decisions?
A. I would find it very helpful.
(Emphasis supplied).
Dr. Joyner offered her opinion with respect to the health risk posed by 2200 Homewood Avenue generally.
A. The building was, is in deplorable condition. It's in deplorable condition. It's a breeding ground for mold. It has extremely high moisture counts that were documented by excessively high relative humidity and it all falls in line with the fact that these are, these are components that can cause adverse health effects on occupants.
(Emphasis supplied).
Her expert opinion was similar with respect to the apartments of each of the three appellees individually.
Q. With regards to Johnnie Pratt's apartments of 305 and 202 and the common areas, do you have an opinion within a reasonable degree of medical probability as to whether those conditions posed a health hazard to Johnnie Pratt —
. . . .
A. Yes.
Q. With regards to apartment 308 and the common areas and, and Ms. Louise Bills, do you have an opinion within a reasonable degree of medical probability as to whether those conditions posed a health hazard to Louise Bills in 2003?
A. Yes.
. . . .
Q. With regards to apartment 213 and the common areas in Homewood House and Ms. Mary Roy, do you have an opinion within a reasonable degree of medical probability as to whether those conditions posed a health hazard to Mary Roy in 2003?
A. Yes.
Dr. Joyner also testified that she had met with and personally examined each of the three appellees on multiple occasions. She stated that with each patient she took a "very detailed history." She testified with respect to the complaints given by each of the three. With respect to each of the three appellants, Dr. Joyner offered her professional medical opinion, within a reasonable degree of medical probability, that significant medical problems were the result of exposure to mold at 2200 Homewood Avenue. With respect to Pratt specifically, Dr. Joyner opined:
Q. Dr. Joyner, with regards to Mr. Pratt, do you have an opinion within a reasonable degree of medical probability as to the cause of Mr. Pratt's rhinooccular pruritus?
Localized itching due to irritations of sensory nerve endings of the nose and eyes from organic causes.
A. Yes.
Q. And what do you base your opinion on, first?
A. I base my opinion on my assessment of him when he came into, for the office, office visit. I base it on the condition of his home at the time and the previous time that he was there on the reports that I was able to review.
Q. Okay.
A. His exposure to mold on the levels — let me see, on all the information that I had received regarding the levels of exposure, several factors, and also the fact that his symptoms abated after he moved out.
Q. Okay. And so what is your opinion as to the cause of his rhinooccular pruritus?
A. His rhinooccular pruritus was significantly associated with exposure to mold and to a damp indoor environment.
Q. From Homewood House?
A. From Homewood House.
(Emphasis supplied).
With respect to Ms. Roy specifically, Dr. Joyner opined:
Q. Regarding Ms. Roy, do you have an opinion within a reasonable degree of medical probability as to the cause of Ms. Roy's chronic sniffling, sneezing and her rhinitis?
A. Yes.
Q. And what do you base your opinions on?
A. I base my opinions on her continued exposure, on her, the, her symptomatology, when her symptoms developed, the type of symptoms that she experienced and the fact that, again, based on the conditions at Homewood House, her high exposure to mold spores as well as to a very damp indoor environment.
Q. So what is your opinion as to the cause of her chronic sniffling, sneezing and rhinitis?
A. That it was an adverse health effect as a result of exposure to the things I just mentioned.
Q. Do you have an opinion as to whether just taking her, the over the counter medications are going to make Ms. Roy's symptoms go a way?
A. Yes. I have an opinion. I do not think it would make them go away.
. . . .
Q. What do you believe would help Ms. Roy the most with regards to her symptoms?
A. Immediate removal from that environment.
(Emphasis supplied).
With respect to Ms. Bills specifically, Dr. Joyner opined:
Q. And with regards to Ms. Bills, do you have an opinion within a reasonable degree of medical probability as to the cause of Ms. Bills's exacerbation of asthma, rhinitis, nasal congestion and her wheeze?
A. Yes.
Q. And what is the basis of your opinion?
A. The basis of my opinion is, again, Ms. Bills' exposure to an unhealthy environment at Homewood House, an environment riddled with mold and with unsanitary living conditions, as well as an extreme amount of moisture in the air, the fact that she continued to be exposed, that she, her whole, her condition deteriorated from the time she came into me on September of 2003 to the last time I saw her in August of 2005, based on the fact she required additional medications that she had not been placed on in that other period of time. So yes, and this is a result of her exposure.
Q. What do you believe would help Ms. Bills the most with regards to her symptoms that she's reported?
A. Immediate removal — from the home, from the environment at Homewood House, immediate relocation.
(Emphasis supplied).
Taking the evidence as a whole in the light most favorable to the appellees and drawing all reasonable inferences in favor of the appellees, the testimony of Dr. Joyner clearly was sufficient to permit a finding by the jury that there was a cause-and-effect relationship between the conditions at 2200 Homewood Avenue and the medical problems suffered by the appellees.
HABC's attack on legal sufficiency is, moreover, way off the mark. It claims that Dr. Joyner's conclusions cannot be relied upon because she "cannot identify any scientific authority to support her theory of causation." That, at most, is something that might go to the weight of Dr. Joyner's testimony but not to its legal adequacy. It might be a factor in persuasion, but not in production.
HABC also argues that "Dr. Joyner failed to apply a reliable methodology to diagnose the cause of Plaintiffs' complaints." The absence of a reliable methodology to support an opinion, even assuming such arguendo to be the case, might support an objection to the admissibility of the opinion, but no such objections were made. The present contention, moreover, is not one challenging the initial admissibility of the opinions. At the step of review when we are assessing legal sufficiency, we assume maximum credibility and maximum weight. An appellate attack on legal sufficiency is not an occasion to revisit every evidentiary ruling in this case, let alone to revisit testimony that was never objected to and which never produced a ruling.
A Redundant Jury Instruction
HABC argues that because Dr. Roger K. Simon, another expert witness, relied upon, to help him form his opinion, several items from two of the inspection reports that were not admitted into evidence at the trial proper, it was entitled to a reinstruction of the jury that it, the jury, should be careful not to rely on those reports just because the expert may have mentioned them. HABC does not even direct us to any place in this massive, three-volume record where Dr. Simon even referred to reports or portions of reports that had been ruled inadmissible, and we are sorely tempted to dismiss this contention without further comment. We will, however, refrain.
An expert, as part of his or her basis for forming an opinion, may rely on data that is never admitted into evidence or is, indeed, excluded from evidence. When referred to, its only relevance is by way of testing the basis for the expert opinion. It is not substantive evidence. In the course of instructing the jury, Judge Prevas admonished the jury about the difference.
[T]here's a rule in Maryland, Maryland Rule 5-703(b) that covers a peculiar problem that relates to experts. Experts essentially are allowed to offer their opinion. Oftentimes in evaluating their opinion, as you will be doing in this case, you need to know what the building blocks of that opinion are. Oftentimes some of the building blocks are not themselves admissible in evidence, either because of scientific measurement or reliability, those types or things.
(Emphasis supplied).
After the jury had already been instructed, HABC requested that the jury be reinstructed that several reports, by name, had specifically been ruled inadmissible in evidence. Judge Prevas declined to do so, pointing out that his earlier instruction had fairly covered the issue. We agree. In no way did he abuse his discretion.
An Evidentiary Potpourri
We will on this occasion yield to our temptation and dismiss HABC's third contention out of hand. It is a grab bag of complaints about the admission of evidence from six separate witnesses without any reference to where in the record those witnesses were testifying and no indication as to whether their testimony was ever objected to and ruled upon.
A second subcontention charges that Judge Prevas "erred in allowing mention of the AMR sampling results" that had, pretrial, been ruled inadmissible. The subcontention, however, does not suggest which witness or witnesses ever mentioned the AMR sampling results or where in this 1235-page record such mention is to be found. The subcontention is incredible.
The third and final subcontention is difficult to articulate. It begins with the fact that Dr. Joyner listened to the complaints and the medical histories given to her by her three patients who are the appellees. The next step in HABC's syllogism is that Dr. Joyner implicitly believed her patients. The crushing conclusion then is that Dr. Joyner is thereby improperly vouching for the credibility of those three persons before the jury. Mercifully we are not told what, if anything, Judge Prevas was asked to do about such a complaint. Since only the trial judge can ultimately commit reversible error, we are exempted from any further consideration of this most unusual subcontention.
Remittitur
The final contention is that Judge Prevas abused his discretion when he failed to remit the "shocking and excessive non-economic damage awards." HABC relies on three Maryland appellate decisions, none of which helps it. In Greenstein v. Meister, 279 Md. 275, 368 A.2d 451 (1977), the Court of Appeals affirmed the decision of the trial court not to order a remittitur. In both Conklin v. Schillinger, 255 Md. 50, 257 A.2d 187 (1969), and Hebron Fire Department, Inc. v. Whitelock, 166 Md. App. 619, 890 A.2d 899 (2006), the appellate courts affirmed the decisions of the trial courts to grant remittiturs.
All three cases are evidence of the broad discretion entrusted to the trial judges in deciding whether to grant or not to grant a remittitur. In all three cases, the deferential appellate court affirmed the exercise of discretion by the trial court, in one case not to remit and in two other cases to remit. That deferential tradition continues as we affirm Judge Prevas's exercise of discretion in this case.
JUDGMENTS AFFIRMED; COSTS TO BE PAID BY APPELLANT.