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Claiborne v. Duff

Superior Court of Rhode Island

June 23, 2015

WENDY CLAIBORNE, Individually and as Parent, Natural Guardian and Next-of-friend to her minor child, Traecina Claiborne, Plaintiffs,
DUNCAN DUFF, Defendant.

Providence County Superior Court

Vincent L. Greene IV, Esq.; Jonathan D. Orent, Esq.; Robert J. For Plaintiff:

McConnell, Esq.; Ashley J. Hornstein, Esq. For Defendant:

Anthony J. Gianfrancesco, Esq.; Albin S. Moser, Esq.



This Court is presented with the Defendant's summary judgment motion and the Plaintiff's various motions in limine. The Defendant, Duncan Duff (Defendant or Mr. Duff) moves for summary judgment pursuant to Rule 56 of the Superior Court Rules of Civil Procedure (Rule 56) claiming that the Plaintiff has failed to establish proximate causation. Plaintiff Traecina Claiborne (Plaintiff or Traecina) objects to the motion. In addition, Plaintiff has filed a series of motions in limine. Jurisdiction is pursuant to G.L. 1956 § 8-2-14.


Facts and Travel

Traecina alleges that back when she was approximately two years old, she was exposed to dangerous levels of lead while residing at the Defendant's property.[1] Traecina, now nineteen years old, and her mother, Wendy Claiborne (Wendy), resided at Defendant's property at 71 Magill Street, Pawtucket, Rhode Island from March through July of 1998. See Pl.'s Resp. to Def.'s Interrogs. No. 18. Traecina's blood was tested for the presence of lead ten times between August of 1997 and February of 2008. The results of such testing are as follows:

Table 1. Summary of Traecina's Blood Lead Levels[2]


Blood Lead Level (BLL) (mcg/dl)[3]





















Following the detection of elevated levels of lead in Traecina's system, "the RI Department of Health inspected the [Defendant's property] on July 22, 1998. [Wendy] was told that there were lead paint hazards on the property at 71 Magill Street, Pawtucket, RI." Id. No. 27. On August 14, 1998, the Rhode Island Department of Health issued a Notice of Violation to Defendant. Pl.'s Compl. ¶ 9.

II Parties' Arguments

Plaintiff alleges that during her tenancy at 71 Magill Street, she was exposed to "dangerous, hazardous and illegal levels of lead-based paint, plaster, and materials inside the dwelling and generally within and about the [Defendant's] dwelling." Id. at ¶ 5. As such, Plaintiff alleges that the direct and proximate cause of her injuries was Defendant's negligence through, inter alia, allowing the Plaintiff to occupy a dwelling that contained potentially hazardous materials on the interior surfaces; allowing the Plaintiff to occupy a dwelling that contained lead levels in excess of the acceptable environmental lead levels; and failing to inform Plaintiff's parents of violations in the dwelling of the health and safety codes. See id. at ¶ 15.[4]In support of Plaintiff's allegations, she proposes to use the testimony of Theodore L. Lidsky, Ph.D. (Dr. Lidsky) and James Besunder, D.O. (Dr. Besunder) for the proposition that exposure to lead caused her cognitive deficiencies.

Defendant has filed a motion for summary judgment arguing that (1) Plaintiff's expert, Dr. Lidsky, is a psychologist, not a physician, and thus cannot give a medical opinion as to causation; and (2) Plaintiff's experts have not established that exposure to lead, at 71 Magill Street, was the proximate cause of Traecina's injuries. With respect to said exposure, Defendant argues that neither Dr. Lidsky nor Dr. Besunder can say, with any probability or degree of certainty, that exposure to lead at 71 Magill Street was the proximate cause of the Plaintiff's injuries. See Def.'s Mot. for Summ. J. 19. In response, Plaintiff contends that (1) Dr. Lidsky's opinion on causation is admissible; and (2) the reports of Dr. Besunder and Dr. Lidsky, taken together, establish that Traecina's exposure to lead, at 71 Magill Street, proximately caused her injuries. See Pl.'s Mem. in Opp'n to Def.'s Mot. for Summ. J. 3, 18.

Following the Defendant's summary judgment motion, Plaintiff filed a series of motions in limine. Specifically, Plaintiff's motions in limine ask the Court to (1) adopt the "indivisible injury" rule; (2) exclude or limit the testimony of the Defendant's expert, Arlene Weiss; (3) exclude any mention of alleged domestic violence or abuse; (4) exclude any mention of Plaintiff's father's criminal record; (5) exclude any mention or evidence regarding the mental or physical condition of the Plaintiff's siblings or parents; and (6) exclude or limit the testimony of Defendant's expert, Paul Chervin, M.D. The Court shall address the summary judgment motion and the motions in limine in turn.


Standard of Review


Summary Judgment

"Summary judgment is proper if no genuine issues of material fact are evident from 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any' and, in addition, the motion justice finds that the moving party is entitled to prevail as a matter of law." Lavoie v. N.E. Knitting, Inc., 918 A.2d 225, 227-28 (R.I. 2007) (citing Super. R. Civ. P. 56(c)). It is well-settled that a genuine issue of material fact is one about which reasonable minds could differ. See, e.g., Brough v. Foley, 572 A.2d 63, 67 (R.I. 1990).

The moving party bears the initial burden of establishing that no such issues exist. Heflin v. Koszela, 774 A.2d 25, 29 (R.I. 2001). If the moving party is able to sustain its burden, then the "litigant opposing a motion for summary judgment has the burden of proving by competent evidence the existence of a disputed issue of material fact and cannot rest upon mere allegations or denials in the pleadings, mere conclusions or mere legal opinions." Am. Express Bank, FSB v. Johnson, 945 A.2d 297, 299 (R.I. 2008) (citations omitted). Although the opposing party must demonstrate evidence beyond mere allegations, it need not disclose all of its evidence. See, e.g., Ludwig v. Kowal, 419 A.2d 297, 301 (R.I. 1980); Nichols v. R.R. Beaufort & Assocs., Inc., 727 A.2d 174, 177 (R.I. 1999); see also Bourg v. Bristol Boat Co., 705 A.2d 969, 971 (R.I. 1998) (citations omitted).

The trial judge reviews the evidence without passing upon its weight and credibility, and will deny a motion for summary judgment if the party opposing the motion has demonstrated the existence of a triable issue of fact. See Mitchell v. Mitchell, 756 A.2d 179, 181 (R.I. 2000); Palmisciano v. Burrillville Racing Ass'n, 603 A.2d 317, 320 (R.I. 1992). However, the Court will enter summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case." Lavoie, 918 A.2d at 227-28.


Motions in Limine

A motion in limine is "'widely recognized as a salutary device to avoid the impact of unfairly prejudicial evidence upon the jury and to save a significant amount of time at the trial.'" BHG, Inc. v. F.A.F., Inc., 784 A.2d 884, 886 (R.I. 2001) (quoting Gendron v. Pawtucket Mut. Ins. Co., 409 A.2d 656, 659 (Me. 1979)). "As [the motion in limine] has developed, it has become a tool for narrowing the issues at trial and enhancing the parties' preparation for trial. Despite this development, it seems clear that a motion in limine is not intended to be a dispositive motion." Ferguson v. Marshall Contractors, Inc., 745 A.2d 147, 150 (R.I. 2000) (citing Gendron, 409 A.2d at 660). "Rather, it has been used in this state primarily to 'prevent the proponent of potentially prejudicial matter from displaying it to the jury . . . in any manner until the trial court has ruled upon its admissibility in the context of the trial itself.'" Ferguson, 745 A.2d at 150 (quoting Lagenour v. State, 268 Ind. 441, 376 N.E.2d 475, 481 (1978)).

Furthermore, "[i]t is well settled that '[d]ecisions about the admissibility of evidence on relevancy grounds are left to the sound discretion of the trial justice.'" State v. Cook, 782 A.2d 653, 654 (R.I. 2001) (quoting State v. Botelho, 753 A.2d 343, 350 (R.I. 2000)). Accordingly, "[a]bsent a showing of abuse of discretion [our Supreme Court] will not overturn [a] trial justice's ruling on the admissibility of evidence." State v. Oliveira, 774 A.2d 893, 917 (R.I. 2001).




Summary Judgment

"In this lead paint exposure personal injury action [the] plaintiff[] ha[s] the burden of proving: 1) the plaintiff['s] exposure to lead; 2) general causation, which is proof that the toxin in question (lead) can in fact cause the illness . . .; and 3) specific causation-meaning the likelihood that plaintiff['s] illness was caused by lead, including eliminating other potential causes of the disease." Adams v. Rizzo, 831 N.Y.S.2d 351 (Sup. Ct. 2006). Moreover, "[t]o prove causation in a toxic tort case, a plaintiff must show both that the alleged toxin is capable of causing injuries like that suffered by the plaintiff in human beings subjected to the same level of exposure as the plaintiff, and that the toxin was the cause of the plaintiff's injury." Bonner v. ISP Technologies, Inc., 259 F.3d 924, 928 (8th Cir. 2001); see Miranda v. Dacruz, 2009 WL 3515196, at *3 (R.I. Super. Oct. 26, 2009) (Gibney, P.J.) (quoting 3 Faigman, Kaye, Saks & Sanders, Modem Scientific Evidence § 23:2, at 5 (2005-2006 ed.) ("In a toxic tort case, it is necessary for the plaintiff to prove by a preponderance of the evidence both general and specific cause for the medical condition suffered by the plaintiff. 'General causation asks whether exposure to a substance causes harm to anyone. Specific causation asks whether exposure to a substance caused a particular plaintiff's injury.'"). Here, the genesis of the present summary judgment motion stems from the proposed testimony of the Plaintiff's expert witnesses regarding proximate causation.


Admissibility of Dr. Lidsky's Testimony

The first issue before this Court is whether Dr. Lidsky-a licensed psychologist, with a specialty in neuropsychology[5] is qualified under Rule 702 to testify as to the general causation of lead poisoning. Dr. Lidsky's professional focus includes the effects of drugs and metals on the brain and behavior; for more than two decades, he has concentrated his work on the effects of lead on the developing nervous system. See Pl.'s Obj. to Def.'s Mot. for Summ. J., Ex. A (Dr. Lidsky's Curriculum Vitae). Furthermore, he teaches and has done research on the relationship between cognitive deficits and lead toxicity. Id.


Dr. Lidsky's Report and ...

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