Brown v. Daniel Realty Co.

Dissenting Opinion by

BELL, C.J.

Catherlina Queen (“Ms.Queen”), aunt and next friend of Lanay Brown, filed suit individually and on behalf of Lanay Brown, the petitioner, against the respondents, Daniel Realty Company, Daniel Perlberg and Wendy Perlberg, alleging negligence and violations of the Maryland Consumer Protection Act, Maryland Code (2005 Repl.Vol., 2008 Supp.) § 13-301 et seq. of the Commercial Law Article. The counts pertaining to Ms. Queen individually were derivative of Lanay Brown’s claims. Specifically, she alleged that, because of the respon*607dents’ wrongful and negligent acts and omissions, resulting in Lanay Brown’s illnesses and infirmities, she:

“1) suffered loss and damage and will be deprived of and will lose the infant’s services during minority.
“2) has been and will be required to incur expenses for hospital care and treatment and for the services of physicians and surgeons required to treat and administer to [Lanay Brown’s] injuries, illnesses and infirmities.
“3) was required to witness her child being administered painful drug therapy as before described and to witness painful blood tests which caused the Plaintiff severe emotional distress and mental anguish.
“4) was required to take her child for additional frequent medical visits for the follow-up of lead poisoning which were over and above the normal pediatric visits which would have been required absent the negligence of the Defendant. “5) has otherwise sustained and will sustain loss and damage.”

During the plaintiffs’ case-in-chief, Ms. Queen, the Plaintiffs’ fact -witness,1 who was at that time a “party,” testified to the condition of the subject premises, 3630 Reisterstown Road, both at the inception of, and during, the tenancy. While she acknowledged that the condition was “okay” when they first moved in, she testified that, after they had lived there for a while, “five or six months later,

“It was like when you come in the front door, it was like a hole was in the wall, and the paint was chipping when you go up the stairs. Then when you go in the bathroom, the floor -was chipping and the windows was chipping. And in the kitchen and the dining room it was leaking.”

Directed by counsel, she elucidated:

“[Counsel]: Okay. Now, I want to go through the things you mentioned one at a time and ask you to tell the jury about them. Okay. First, you told us about the front door. Can *608you describe to the members of the jury what, if anything, you noticed about the front door area of the home around five to six months after you moved into the house?
“[Ms. Queen]: It was like when you enter the door, it looked like a hole was in the wall with like white stuff coming out of it like sheetrock looking stuff or whatever was coming out of it. I can’t say because I don’t know.
“[Counsel]: Okay. And then you also mentioned the steps, or the stairs, to use your exact words. Can you tell the members of the jury what, if anything, you noticed about the condition of the paint starting five to six months after you moved in, on the stairs?
“[Ms. Queen]: Like the paint was chipping, like often like it was paint over paint starting to chip.
“[Counsel]: Okay. And you also mentioned the windows. Can you tell the members of the jury which windows you noticed chipping and peeling paint at 3630 Reisterstown Road beginning five to six months after you moved in?
“[Ms. Queen]: It was like the bedrooms and the living room and the dining room.
“[Counsel]: Okay. And you also mentioned something about the bathroom floor. The bathroom floor, was it tiled, was it carpeted, was it painted? Describe the floor to the members of the jury?
“[Ms. Queen]: It was sort of like tile looking or like something and then somebody painted over top of it burgundy.
“[Counsel]: Okay. And can you tell the members of the jury what, if anything, you noticed about the painted tile floor in the bathroom beginning five to six months or so after you moved in?
“[Ms. Queen]: After a while it started chipping and coming up, you know, like paint chipping.
“[Counsel]: Okay. Now, I want to go downstairs now into the—you mentioned the kitchen and the dining room and you mentioned a leak.
“[Ms. Queen]: Uh-huh.
*609“[Counsel]: Can you describe to the members of the jury what you meant by that?
“[Ms. Queen]: I meant by when it rained, it used to come through the window like a waterfalls.
“[Counsel]: How do you mean by that?
“[Ms. Queen]: Because when it rained, it would come through where the wood or the board is. The water would come down really hard and it would come on the floor like and the window.
“[Counsel]: All right. Now, can you tell us, please, what if anything you noticed happened to the painted areas around the area in the kitchen and the dining room where the water was coming in?
“[Ms. Queen]: It was starting to chip more.”

The respondents’ cross-examination of Ms. Queen sought to establish discrepancies between her trial testimony and that given on deposition and, thereby, undermine her credibility. One of the avenues they pursued to do so was to focus on who, besides her and Lanay Brown, resided at the subject premises during the relevant and applicable period.2 At the conclusion *610of the plaintiffs’ case-in-chief, the respondents made a motion for judgment as to each of Ms. Queen’s individual claims. Without opposition, the tidal court granted that motion.

Nevertheless, even though Ms. Queen was no longer a party to the action, the respondents sought, during their case-in-chief, to read Ms. Queen’s pre-trial deposition testimony to the jury as substantive evidence, and, over the petitioner’s objection, the trial court permitted them to do so.3 The majority *611holds, correctly, that, because Ms. Queen was not a “party” when they read portions of her deposition into evidence during their case-in-chief, it was error for the trial court to have admitted it as substantive evidence. 409 Md. 565, 596, 976 A.2d 300, 318-19. Interpreting Rule 2-419(a)(2), it explains that the respondents were not, on that account, permitted to use Ms. Queen’s deposition testimony freely for “any purpose.” Id. at 596, 976 A.2d at 318-19. With this holding and rationale, I agree. Rather than reversing and remanding for a new trial, however, the majority proceeds to declare the error harmless. With this conclusion, I cannot agree. In my opinion, the trial court’s erroneous evidentiary ruling was anything but harmless. Indeed, because the effect of the ruling was to revisit and re-categorize testimony presented earlier at trial and unduly emphasize it, its impact on Lanay Brown’s case was devastating. Undoubtedly, it impacted the jury’s verdict, thus prejudicing Lanay Brown.

To be sure, Ms. Queen was an important witness for the petitioner. It is likewise true that Ms. Queen’s deposition testimony differed from her trial testimony and, as a result potentially, could have undermined her credibility and, as a result, the petitioner’s case. Moreover, the discrepancy was before the jury. The respondents presented, during their cross-examination of her testimony in chief, as impeachment evidence—not substantive evidence—, Ms. Queen’s deposition testimony as a counterpoint to Ms. Queen’s testimony at trial. Whether that evidence did, or would, or how significantly, if at all, undermine Ms. Queen’s credibility and, consequently, the petitioner’s case, was a jury question. But the jury did not get to answer that question. When the case was presented to the jury for decision, notwithstanding that the only plaintiff remaining was Lanay Brown, as to whom the only evidence properly considered by the jury to decide her case was that amassed during her case-in-chief, impeachment evidence of Ms. Queen’s deposition testimony again had been offered and *612permitted to be read into the record as substantive evidence. Never mind that Ms. Queen was no longer a party, evidence, admissible only if she were—her deposition testimony as substantive evidence—and which earlier has been admitted to impeach Ms. Queen, was nevertheless admitted, thus giving it undue emphasis and making it available to combine with its earlier incarnation, as impeachment evidence, to undercut Ms. Queen’s credibility and, in turn and predictably, to prejudice Lanay Brown’s case.

The first question on the special verdict sheet required the jury to determine whether the paint at the subject premises was “flaking, chipping, or peeling ... while Lanay Brown resided there[.]” How it was resolved was an issue critical and of paramount importance to both sides. Its resolution also was largely, if not entirely, dependent on credibility of the witnesses and of the evidence.

At trial, the jury heard conflicting evidence about the condition of the paint at the Subject Property when the petitioner resided there with Ms. Queen. As indicated, Ms. Queen testified on behalf of the petitioner. Her testimony is set forth hereinbefore. That testimony was countered by the respondents, who offered largely documentary evidence tending to contradict Ms. Queen. Daniel Perlberg, a respondent, and also the landlord and partial owner of Daniel Realty, offered documentary evidence that Daniel Realty paid to have the inside of the subject premises wallpapered before Ms. Queen and Lanay moved in, suggesting that any assertions of chipping, peeling or flaking paint by the petitioner were not to be believed. The respondents also offered a Lead Inspection Report that was conducted by the Baltimore City Health Department when the petitioner and Ms. Queen resided at the property. Significantly, they proffered, the inspector who completed the Report did not circle that there was “Loose paint/plaster” in the Subject Property. According to the respondents, this further supported their contention that there was no chipping, peeling or flaking paint at the Subject Property when the petitioner and Ms. Queen lived there. The respondents also presented evidence that Ms. Queen’s parents, *613the lessees of the premises, inspected the property upon signing the lease and found no chipping, peeling or flaking paint.

“In the interest of the orderly administration of justice, and to avoid useless expense to the state and to litigants in its courts, it has long been the settled policy of this [CJourt not to reverse for harmless error.” Johnson & Higgins, Inc. v. Simpson, 163 Md. 574, 588, 163 A. 832, 837 (1933). The justification for this policy is the need to conserve scarce resources, which is accomplished when the litigants are not forced to relitigate a case where the error had no impact on the outcome of the trial. Id. In civil cases, the complaining party has the burden of establishing that the trial court committed an error and that the error was prejudicial. Flores v. Bell, 398 Md. 27, 33, 919 A.2d 716, 719 (2007); Harris v. Harris, P.A., 310 Md. 310, 319, 529 A.2d 356, 360 (1987) (citing Beahm v. Shortall, 279 Md. 321, 330, 368 A.2d 1005, 1011 (1977)). There is prejudice, our cases have concluded, when the error influenced the outcome of the case. Benik v. Hatcher, 358 Md. 507, 537, 750 A.2d 10, 26 (2000); Beahm v. Shortall, 279 Md. 321, 330-31, 368 A.2d 1005, 1018 (1977); State Roads Comm’n v. Kuenne, 240 Md. 232, 235, 213 A.2d 567, 568 (1965). In order to determine whether an error was prejudicial, an appellate court must proceed on a case-by-case basis. Beahm, 279 Md. at 332, 368 A.2d at 1012. “Before we can reverse the ruling excepted to, we must be able to see that the party really has ground for exception, and may have been injured by what was done.” Lawson v. Price, 45 Md. 123, 133(1876). In making a harmless error determination, we must determine whether the alleged error probably, as opposed to possibly, prejudiced the complaining party. Crane v. Dunn, 382 Md. 83, 91, 854 A.2d 1180, 1185 (2004); Blondes v. Hayes, 29 Md.App. 663, 671, 350 A.2d 163, 167 (1976) (noting that appellate courts are “restricted to seeking probabilities of prejudice as opposed to proofs thereof’).

As we have seen, the majority has held that, permitting the respondents to read Ms. Queen’s pre-trial deposition testimony to the jury as substantive evidence during their case-in-*614chief was error. See 409 Md. at 596, 976 A.2d at 318-19. Thus, the petitioner has cleared the first hurdle, established the error. In concluding that the error was harmless, the majority relies on the fact that the portions of Ms. Queen’s pre-trial deposition that were read to the jury by the respondents had already been brought to the jury’s attention when Ms. Queen was cross-examined during the plaintiffs’ case-in-chief. See 409 Md. at 597, 976 A.2d at 319. It reasons: “In other words, the damaging features of Ms. Queen’s deposition testimony already were before the jury, regardless of Respondents’ potentially duplicative use of the deposition during their defense case.” Id.

The majority is wrong for two reasons. First, the fact of the matter is that, due to a technical malfunction with the audio recording device during the trial, during the respondents’ case-in-chief, coupled with the inability of the parties to recall, it is impossible to know precisely what portions of Ms. Queen’s pre-trial deposition testimony were read to the jury during the respondents’ case-in-chief. See 409 Md. at 576, 976 A.2d at 306. In fact, having no independent recollection, and being unable to agree, all the parties could do was stipulate as to which portions of Ms. Queen’s deposition might have been read to the jury, based on marks made by the respondents’ counsel in their trial notes.4 In my opinion, given the state of this record, the petitioner has cleared the second hurdle.

To prevail, I submit, at minimum, there must be an identity between what the respondents presented to impeach Ms. *615Queen’s testimony during the petitioner’s case-in-chief and what they read into the record as substantive evidence during their case-in-chief. To the extent that the substantive evidence differs from the impeachment evidence, because it is admissible only as to Ms. Queen and inadmissible against the petitioner, it prejudices the petitioner. There are glaring gaps in the record respecting this question. The identity of the evidence cannot be established by conjecture, surmise or speculation. To hold otherwise is to apply a different, hitherto unrequired, standard and place an impossible burden on the petitioner.

As indicated, the parties do not agree as to what was read to the jury. As we have seen, only the portion of Ms. Queen’s deposition relating to the residence of her step father was read into the record during her cross-examination by the respondents. Thus, it is only that portion of the deposition that, when read in the respondents’ case-in-chief, could arguably be the basis for finding harmless error. Assuming that it was read into the record during the respondents’ case-in-chief, the petitioner argues that, during the respondents’ case,5 other *617portions of the deposition may have been read into the record as substantive evidence also. Specifically, she asserts, based on the respondents’ statement during closing argument,6 that it is likely that the respondents read to the jury the portion of Ms. Queen’s deposition testimony where she did not recall that the subject property had been newly wallpapered and those portions in which Ms. Queen admitted that the respondents occasionally sent people to the subject property to make repairs. On this record, it is not even clear that the same portion of Ms. Queen’s deposition used by the respondents in their cross-examination of Ms. Queen during the plaintiffs’ *618case-in-chief was also read to the jury during their case-in-chief. But even were we to accept the respondents’ position that they read the same portion of Ms. Queen’s deposition both in Lanay Brown’s case-in-chief, and in theirs, it must also be accepted, as the respondents suggested in their closing argument, that they read more than that.

As important, there is a difference between impeaching a witness on cross-examination with her pre-trial deposition testimony and reading that same testimony to the jury as substantive evidence. For example, when a witness is impeached on cross-examination with a prior inconsistent statement, that statement cannot be used for the truth of its assertion, assuming that it does not fall within a hearsay exception. See McCormick on Evidence, § 34, at 67 (Edward W. Cleary, 2d ed.1972). Rather, the inconsistent statement can be used by the jury, if it so chooses, to draw a negative inference on that witness’s credibility. McCormick on Evidence, § 33, at 66 (Edward W. Cleary, 2d ed.1972). Substantive evidence on the other hand, which is how Ms. Queen’s deposition was categorized when the trial judge erroneously permitted the respondents to read it to the jury, is not so limited in its effect. Substantive evidence can be used not only as a foundation to diminish the credibility of the witness who made a prior inconsistent statement under oath, but it also can be used by the jury to establish the truth of the matters asserted in that statement. McCormick on Evidence, § 251, at 601 (Edward W. Cleary, 2d ed.1972). Thus, due to the dual nature in which it can be used, substantive evidence takes on • a different quality than simple impeachment evidence. For example, Ms. Queen’s deposition testimony, during the petitioner’s case-in-chief, could have been used by the respondents on cross-examination only to impeach Ms. Queen. The trial judge’s erroneous evidentiary ruling, however, allowed the respondents to amplify and reconfigure the adverse impact of Ms. Queen’s deposition testimony by permitting the respondents to use it as substantive evidence during the respondents’ case-in-chief. The majority’s opinion does not *619even mention or appreciate this important evidentiary distinction or its potential impact on the jury’s use of it.

More important, in a case in which credibility was critical, as a result of the trial court’s error, the jury was presented on multiple, qualitatively different, occasions with evidence of inconsistencies in an important plaintiff witness’s testimony and her pre-trial deposition. Its first exposure came early in the trial, during the plaintiffs case, and it was proper. The second presentation came in the defendants’ case, well into the case. Moreover, the evidence of inconsistency presented on the second occasion, which was not even the same evidence as that presented on the first—it arguably was much more extensive, covering more incidents and instances—was met with a timely and meritorious objection. Overruling the objection permitted the respondents to call attention to the earlier evidence of inconsistency, to highlight it, and introduce other inconsistencies. In addition, offering the deposition testimony later in the trial and as substantive evidence was designed to, and did, emphasize, unduly so, the inconsistencies they contained.

The more a jury is exposed to evidence the greater the danger, which is inherent, that the jury will give more weight to that evidence than it is due. See, e.g., United States v. Walker, 1 F.3d 423, 430 (6th Cir.1993) (making that point in the context of “read back” of a witness’s testimony during jury deliberations) (citing United States v. Padin, 787 F.2d 1071, 1076 (6th Cir.1986)); United States v. Varsalona, 710 F.2d 418, 421 (8th Cir.1983). Reading deposition testimony late in the trial, after the deponent has testified, and after some of the deponent’s deposition has earlier been read into the record to impeach the deponent on the witness stand, certainly could have, and I submit had, that effect in this case. And, as indicated, timing does matter. When evidence, in this case, the deposition, is presented, it may well influence, and likely did in this case, the importance the jury ascribes to it. Not only were the respondents permitted to revisit Ms. Queen’s cross-examination and highlight the discrepancies, of which it then apprised the jury, they were permitted—when to do so *620was inappropriate and violative of the Rules—to present additional discrepancies, not earlier presented, so as to be able to buttress their argument that Ms. Queen was not to be believed.

The majority’s harmless error determination is based not only on an incomplete record but also on faulty logic. Indeed, one must ask, “If reading Ms. Queen’s pre-trial deposition testimony was not prejudicial or harmful to the petitioner’s case, then why would the respondents do it?” This is the question that the majority cannot answer. That the respondents sought to, and did, read portions of Ms. Queen’s deposition testimony to the jury, as substantive evidence, during their case-in-chief makes clear that they thought that those portions helped their case, and that such evidence was prejudicial to the petitioner. They viewed the evidence as solidifying the attack on Ms. Queen’s credibility and, in so doing, harming the petitioner’s case.

In this case, the petitioner recognized the prejudice and interposed a timely objection. There was nothing more she could do. A party who prevails on an objection should not bear the brunt of an erroneous trial ruling, urged by the party who did not. There should be some consequence for an erroneous ruling and, correspondingly, some reward to a vigilant litigant, especially where there is no lapse in that vigilance. If there is not, future litigants are given the “green light” to push the evidentiary rules to the furthest extent possible, knowing that an appellate court is not likely to order a new trial. If the evidentiary rules in this State are to mean anything, then appellate courts must create incentives for trial litigants to apply these rules correctly in the first instance.

I dissent. I also join Judge Murphy’s dissent.

. Also testifying, in relevant part, was Dr. Jerome Paulson, an expert in childhood lead poisoning.

. The relevant colloquy was as follows:

"[Counsel]: Now, first of all, you were talking about your step-father, Mr. Brown, living with you.
"[Ms. Queen]: Yes.
"[Counsel 1: Do you recall telling me in deposition—well, not me, but someone from my office who took your deposition—that Mr. Brown didn’t live at 3630 Reisterstown Road?
"[Ms. Queen]: He lived there but he just wasn’t being there. He lived there. That was his residence. He lived there. Yes, he lived there. I don't recall.
"ICounsel]: Okay. Did Mr. Brown live at 3630 Reisterstown Road?
"[Ms. Queen]: Yes.
*610"[Counsel]: Okay. Let me refer you to—and I’ll give you a copy of your deposition—page thirty-three. I'm going to hand it to you, if you don’t mind. There it is. There is page thirty-three.
"[Counsel]: I’ll show it to you. On page thirty-three, you were asked: "You don't know if your father lived with you at 3630 Reisterstown Road.
"[Counsel]: Answer: "I wasn't—no, I am not sure. He lived there but he didn’t come there. So I say no.” Question: "He lived there but he didn’t come there?” Answer: "He paid everything, paid bills. It is their house but they don't stay there.” Question: "We are referring to Robert Brown?”
Answer: "Yes.”
"[Ms. Queen]: Yes.
"[Counsel]: So do you recall testifying that Mr. Brown, in fact, didn't live at 3630 Reisterstown Road?
"[Ms. Queen]: I said—you said I said he lived there but he don’t stay there. Yes.
’’[Counsel]: Okay. Now, when you said in this testimony that they didn’t live there, that they didn't stay there—
"[Ms. Queen]: My mother stayed there.”

Whether, and, if so, to what extent, they successfully highlighted the inconsistency between her pre-trial deposition testimony and trial testimony regarding whether her stepfather lived with her and Lanay at the Subject Property, thus convincing the jury of her lack of credibility, were matters for, and left to be resolved by, the jury.

. The parties stipulate that the basis for the Circuit Court's ruling to admit Ms. Queen's deposition testimony as substantive evidence was Maryland Rule 2-419(a)(2). That Rule, captioned “Deposition-Use.,' provides:

"(a) When may be used.
"(2) The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, managing agent, or a person designated under Rule 2—412(d) to testify on behalf of a public or *611private corporation, partnership, association, or governmental agency which is a party may be used by an adverse party for any purpose."

. The stipulation provided:

“At the close of their case, Appellees requested that they be permitted to read certain portions of the discovery deposition of Catherlina Queen into evidence. Ms. Queen initially was a party to this case, but, upon Appellees’ Motion at the end of Appellants’ case, her claims were dismissed. The parties stipulate that the following testimony from the deposition may have been read into evidence during the trial. The parlies have no independent recollection of what was actually read into evidence, however, the following list is what was marked by Appellees’ counsel in their trial notes for possible reading into evidence at trial....”

. The portions marked by trial counsel are a good deal more expansive than the line of impeachment pursued during the petitioner’s case-in-chief:

“[Respondents’ Counsel (“Counsel'’) J: Can you state your name, for the record, please?
“[ Ms. Queen]: Catherlina Queen.
“[Cotinsel]: And before 3630 Reisterstown Road, where did you live?
“[Ms. Queen]: 911 East Biddle Street. Biddle, off of Wilcot.
“[Counsel]: When did you first move into there?
“[Ms. Queen]: I don't remember. I don't know. I don't remember that.
“[Counsel]: Do you know if you lived at 911 East Biddle Street more than a year or less than a year?
"[Ms. Queen]: I am not sure.
"[Counsel]: Do you ever remember living at 911 East Preston Street?
"LMs. Queen]: Say it again
"[Counsel]: Do you ever remember living at 911 Preston Street?
“[Ms. Queen]: Yes.
"[Counsel]: Is 911 East Preston and 911 East Biddle, are they the same address?
*616"[Ms. Queen]: Whoever told you, it is not Biddle, we were living on Preston Street.
"[Counsel]: How old was April Brown when she had Lanay Brown?
"[Ms. Queen]: She probably was, I will say—I am not sure, but I will say 15.
"[Counsel]: After Lanay was born, did April Brown have any involvement in raising her or anything like that?
“Ms. BRANDT [Plaintiffs' Counsel]: Objection.
"[Ms. Queen]: No, ma'am.
"[Counsel]: Who is Lanay Brown's biological father?
"[Ms. Queen]: Danny Thompson.
"[Counsel]: If you know, when you gained formal legal guardianship of Lanay Brown, did Mr. Thompson have to relinquish any rights or anything like that? I am asking because I don't know how it works.
"[Ms. Queen]: He don't have no rights, either, because he gave them up.
"[Counsel]: Would he have given them up when you obtained legal guardianship of Lanay?
"[Ms. Queen]: Yes.
"[Counsel]: Is the same true with respect to April Brown, when you gained legal guardianship, did she relinquish her parental rights to Lanay Brown?
"[Ms. Queen]: She gave it up, too, yes.
"[Counsel]: Do you know where Danny Thompson is now?
"[Ms. Queen]: No, I don't, no, ma'am.
"[Counsel]: Do you know if he is alive?
"[Ms. Queen]: He is alive, but I don't know where he at.
"[Counsel]: Do you know where April Brown is?
“[Ms. Queen]: She is alive. I don't know where she is at, either.
"[Counsel]: Did your father live with you at 3630 Reisterstown Road?
"[Ms. Queen]: I don’t know those people’s business. No, I don’t know.
"[Counsel]: You don’t know if your father lived with you at 3630 Reisterstown Road?
"[Ms. Queen]: I wasn’t—no, I am not sure. He lived there, but he didn't come there, so, I say no.
"[Counsel]: He lived there, but he didn’t come there?
"[Ms. Queen]: He paid everything, paid bills.
"[Counsel]: We are referring to Robert Brown?
“[Ms. Queen]: Yes.
"[Counsel]: Do you know where Robert Brown was actually staying or sleeping?
"[Ms. Queen]: He had his own apartment somewhere.
"[Counsel]: Do you know the name of the landlord of 3630 Reisterstown Road?
"[Ms. Queen]: Ma'am, I don’t know. I don’t.
*617“[Counsel]: Do you remember ever speaking with the landlord at 3630 Reisterstown Road?
“[Ms. Queen]: I don't know.
“[Counsel|: Do you know who primarily dealt with the landlord at 3630 Reisterstown Road?
“[Ms. Queen]: My mother or, maybe, my older sister. My mother, was sick, paying the bills.
“[Counsel]: Which older sister are you referring to?
“[Ms. Queen]: Annis.
"[Counsel]: Do you know how many times the landlord, or property manager, or anyone on their behalf came out to fix the chipping and peeling paint?
“[Ms. Queen]: I will say, about, three times before, just while we lived there.
“[Counsel!: Now, prior to 3630 Reisterstown Road, you testified that you lived at 911 Preston Street, is that correct?
"[Ms. Queen]: Yes.
“[Counsel]: Who lived with you at 911 East Preston Street?
“[Ms. Queen]: Annis, Lakisha, April, Robin. I don’t know after that.
"[Counsel]: After Lanay was born, what, if any, contact has Lanay had with her biological father?
“Ms. BRANDT [Plaintiffs' Counsel]: Objection
“[Ms. Queen]: He don’t do nothing for her.”

. During closing arguments, counsel for the respondents said the following, in relevant part: “Testimony of Ms. Queen. I put all the evidence here. Ms. Queen testified there was chipping and peeling paint at the property, no doubt about it. But I ask you to think about when I read portions of her deposition she didn’t remember anything about the house. She didn’t remember if father and mother lived there. In fact she said in her deposition they didn't. She didn’t remember the whole new wallpaper when I asked her.”