Brown v. Seven Trails Investors, LLC

• Decision Date: 09 December 2014
• Docket Number: No. ED 100593,ED 100593
• Citation: Brown v. Seven Trails Investors, LLC, 456 S.W.3d 864 (Mo. App. 2014)
• Parties: Shannon Brown, Successor Personal Representative for the Estate of Daniel Kruse, and Personal Representative for the Estate of Sharon Kruse, Appellant, v. Seven Trails Investors, LLC, et al., Respondents.
• Court: Missouri Court of Appeals

456 S.W.3d 864

Shannon Brown, Successor Personal Representative for the Estate of Daniel Kruse, and Personal Representative for the Estate of Sharon Kruse, Appellant

v.Seven Trails Investors, LLC, et al., Respondents.

No. ED 100593

Missouri Court of Appeals, Eastern District, DIVISION FOUR .

December 9, 2014

David C. Knieriem, 7711 Bonhomme, Suite 850, Clayton, Missouri 63105, for Appellant.

Timothy C. Sansone, 600 Washington Avenue, 15th Floor, St. Louis, Missouri 63101, for Respondent.

ORDER

Lisa S. Van Amburg, Presiding Judge, Division IV, Missouri Court of Appeals Eastern District

The Opinion issued on June 24, 2014 is hereby withdrawn.

SO ORDERED.

Philip M. Hess, Judge

Introduction

Shannon Brown (Plaintiff), as successor personal representative for the estate of Daniel Kruse and personal representative for the estate of Sharon Kruse, appeals the circuit court's order granting summary judgment for Seven Trails Investors, LLC and Madison Apartment Group, LP (Defendants) on Plaintiff's claims of negligence, nuisance, res ipsa, and gross negligence. In her sole point relied on, Plaintiff claims that the circuit court's summary judgment order is erroneous because Plaintiff presented evidence demonstrating the existence of a material factual dispute. We affirm in part, reverse in part, and remand for further proceedings.

Factual Background

In July 2003, Sharon and Daniel Kruse¹ began residing in an apartment located in Ballwin, Missouri, which Defendants owned and managed. Over the years, the Kruses, who were both smokers with severe chronic obstructive pulmonary disease (COPD), suffered from numerous respiratory problems. In the fall of 2008, Daniel was admitted to the hospital and developed a severe wound in his presacral area.² The following spring of 2009, the Kruses discovered what they believed to be mold in the apartment. The Kruses moved out of the apartment in mid-July 2009. Daniel returned to the apartment once in late July 2009 to retrieve the rest of their belongings. In August 2012, believing that mold had caused their respiratory problems and that a brown recluse spider bite had caused Daniel's wound, the Kruses filed a petition against Defendants alleging negligence, nuisance, res ipsa, and gross negligence.

Defendants moved for summary judgment, relying on the expert opinions of Drs. H. James Wedner and Thomas Arnold. Dr. Wedner opined, to a reasonable degree of medical certainty, that Sharon did not suffer adverse health effects from any mold that may have been present in the apartment and that Sharon's COPD was the most likely cause of her ailments. Similarly, Dr. Wedner determined that Daniel's repeated hospitalizations for pneumonia were not caused by mold and that the most significant cause of Daniel's respiratory ailments was his smoking habit combined with other serious health conditions. Regarding the alleged spider bite, Dr. Arnold determined that Daniel's wound was not caused by a brown recluse spider bite, but a pressure sore. Accordingly, because this evidence showed that mold and a brown recluse spider bite did not cause the Kruses' alleged injuries and the Kruses had failed to present any contrary evidence, Defendants asserted that they were entitled to summary judgment.

In response, the Kruses filed a motion seeking additional time for discovery and to make a response to Defendants' motion. The circuit court granted the request. The Kruses then deposed their treating physician, Dr. Jason Hand, and filed a supplemental response to Defendants' motion. In their supplemental response, the Kruses asserted that Dr. Hand's testimony refuted Dr. Wedner's opinion that the mold did not contribute to or cause their ailments and also established that Daniel's wound was consistent with a spider bite. Ultimately, and without providing its reasons, the circuit court entered an order granting summary judgment for Defendants. This appeal followed.

Standard of Review

Summary judgment is properly granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 74.04(c)(6). If a party meets its burden of establishing a prima facie case for summary judgment, the burden shifts to the nonmoving party to demonstrate a genuine issue of the material fact. ITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 381–82 (Mo. banc 1993). “A ‘genuine’ dispute is a real and substantial one, not one consisting merely of conjecture, theory, and possibilities.”

Mueller v. Bauer, 54 S.W.3d 652, 657 (Mo.App.E.D.2001).

We review a circuit court's decision on a motion for summary judgment de novo. Id. at 656. In doing so, we view all the legally admissible evidence in a light most favorable to the non-moving party, giving the non-movant the benefit of all reasonable inferences from the record. ITT Commercial Fin., 854 S.W.2d at 376. Where the circuit court does not set forth its reasoning in its order granting summary judgment, we presume that the trial court based its decision on grounds specified in the movant's motion for summary judgment. Central Mo. Elec. Co – op. v. Balke, 119 S.W.3d 627, 635 (Mo.App.W.D.2003).

Discussion

In her sole point, Plaintiff asserts that the circuit court's summary judgment order is erroneous because Plaintiff presented evidence demonstrating the existence of a material factual dispute. Specifically, in four subpoints, Plaintiff asserts that a genuine issue of fact exists because: (1) this “battle of the experts” is not a proper forum for summary judgment; (2) Plaintiff presented expert testimony to rebut Defendants' motion; (3) this matter is subject to the “sudden onset doctrine;” and (4) the nuisance claim does not require medical testimony. As explained in the argument portion of Plaintiff s brief, these arguments center on whether Plaintiff met the burden of demonstrating a genuine issue of material fact as to whether the mold and the brown recluse spider's venom caused the Kruses' injuries.³ For ease of resolution, we consider Plaintiff's subpoints out of turn.

As in any tort case, Plaintiff is required to establish that Defendants' conduct was an actual cause of the Kruses' injuries.⁴ Wagner v. Bondex Int'l, Inc, 368 S.W.3d 340, 348 (Mo.App.W.D.2012). Commonly referred to as “but for” cause or “cause in fact,” this requirement stems from the common sense dictate that “there be some causal relationship between the defendant's conduct and the injury or event for which damages are sought.” Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 862 (Mo. banc 1993). Once actual causation is established, it is necessary to establish proximate cause, or legal cause, which requires some sort of direct connection between the defendant's conduct and the injury, in that the “harm is a reasonable and probable consequence of the defendant's conduct.” St. Louis v. Benjamin Moore & Co., 226 S.W.3d 110, 114 (Mo. banc 2007).

Further, in an action regarding liability for exposure to a toxic substance, establishing causation often involves evidence of multiple factual predicates, including: “(1) an exposure to an identified harmful substance significant enough to activate disease; (2) a demonstrable relationship between the substance and biologic disease; (3) diagnosis of such disease in the plaintiff; (4) expert opinion that the disease found in plaintiff is consistent with exposure to the harmful substance; (5) defendant was responsible for the etiologic agent of the disease diagnosed in plaintiff.” Lewis v. FAG Bearings Corp., 5 S.W.3d 579, 585 (Mo.App.S.D.1999).⁵ However, in considering whether Plaintiff has met her burden of establishing a genuine issue of material fact as to causation, we are mindful of the Supreme Court's cautionary explanation of the causation analysis. Mainly, in undertaking such an analysis, courts “should not lose sight of the ultimate issue:”

All of this discussion concerning the semantics of causation is less important in Missouri than in most jurisdictions because under [the Missouri Approved Instructions] we do not use the terms 1) “proximate cause,” 2) “but for causation,” or 3) “substantial factor” when instructing the jury. We merely instruct the jury that the defendant's conduct must “directly cause” or “directly contribute to cause” plaintiff's injury. (Emphasis added).

Sundermeyer v. SSM Regional Health Servs., 271 S.W.3d 552, 555 (Mo. banc 2008) (citing Callahan, 863 S.W.2d at 863 ).

1. Sudden Onset Doctrine⁶

We first address Plaintiff's third subpoint that the “sudden onset doctrine” applies to this case, meaning that expert testimony is not necessary to establish that the mold caused the Kruses' injures. Relying on State v. Norwood, 8 S.W.3d 242 (Mo.App.W.D.1999), Plaintiff asserts that the link between mold and respiratory problems is common knowledge and that the jury could infer that the mold caused the injuries because the Kruses were sick while residing in the apartment and “became better when they left.”⁷ Defendants respond that the sudden onset doctrine does not apply.

As noted, proof of causation in cases involving exposure to a toxic substance typically requires a certain degree of scientific expertise. See Lewis, 5 S.W.3d at 585. This is because “[t]he diagnosis of disease induced by environmental factors is essentially ‘a scientific undertaking’ requiring proof which ‘the scientific community deems sufficient for that causal link.’ ” Id. (citation omitted). As Defendants note, the requirement for expert testimony in cases like the instant matter, coincides with the requisite proof of causation in medical injury cases, where the cause of sophisticated injuries is not within a layperson's common understanding and, therefore, the plaintiff must establish the causal relationship through expert medical testimony. See Brickey v. Concerned Care of the Midwest, Inc., 988 S.W.2d 592, 596–97 (Mo.App.E.D.1999).

The sudden onset doctrine, however, provides a limited exception to the necessity of medical...