In the Missouri Court of Appeals
Eastern Distcict
DIVISION FOUR
DANIEL KRUSE, )
)
Piaintiff, ) No. BDl00593
)
and )
) Appeai from the Cirouit Court of
SHARON KRUSE, ) St. Louis County
)
Plaintiff/Appellant, )
) Honorable Steven H. Goidman
vs. )
)
SEVEN TRAILS INVESTORS, LLC, )
) Fiied: June 24, 2014
and )
)
MADISON APARTMENT GROUP, LP,)
)
Defendants/Respondents. )
Introduction
Sharon Krnse (Piaintiff) appeals the circuit court’s order granting summary
judgment for Seven Traiis Investors, LLC and Madison Apartment Group, LP
(Defendants) on Plaintiff"s claims of negiigence, nuisance, res ipsa, and gross izegligeizce.
In her sole point reiied 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
F actual Backgrolrnd
In July 2003, Sharon and Daniel Kruse' began residing in an apartment located in
Balivviit, Missouri, which Defendants owned and managed. Over the years, Plaintiffs,
who were both smokers with severe chronic obstructive pulmonary disease (COPD),
suffered from numerous respiratory probiems. in the fall of 2008, Daniel was admitted to
the hospital and developed a severe wound in his presacral area.z The following spring
of 2009, Plaintiffs discovered vvhat they believed to be mold in the apartment. Plaintiffs
moved out of the apartment in mid-Juiy 2009. Daniel returned to the apartment once in
iate Juiy 2009 to retrieve the rest of Plaintiffs’ belongings In August 2012, believing
that mold had caused their respiratory problems and that a brown recluse spider bite had
caused Daniel’s wound, Plaintiffs filed a petition against Defendants alleging negiigence,
nuisance, res ipsa, and gross negligence
Defendants moved for summary judgment, relying on the expert opinions of Drs.
H. James Wednel' and Thoinas 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 Sliaron’s COPD was the most likely
' Both Siiaron and Daniel Kruse originally filed this action. Daniel Kruse is now deceased and Piaintift` is the
personal representative of his clairn. We refer to "Plaintiffs” when discussing both Siiaron and Daniel Kruse and to
"Plailitif`t“ onEy when discussing Sharon Kruse’s arguments on appeal. We further use Piaintit"i`s’ first riames when
referring to Plaintiffs individua|iy. No disrespect is intended
2 'i`he presacral area is an area within the buttocil< >i=
Given that [Daniel’s] hospitalization stopped for lung disease for a
three~month span for - well, longer than that. So - so his last
hospitalization for a pulmonary issue was in August [2009], his next
hospitalization for a pulmonary issue was in January. So given that all of
that stopped when he moved out of the apartment, I - there is some degree
of medical certainty, a reasonable amount, that mold contributed to his
COPD, to his exacerbations.i'o]
Contrary to Defendants’ assertions, the testimony of l\/ir. Behrmann and Dr. Hand,
and the reasonable inferences drawn therefrom, establishes the requisite evidence of
causation necessary to avoid summary judgment Mr. Behrrnann’s testhnony sufficiently
demonstrates that Plaintiffs were exposed to high levels of 1noid, which was capable of
producing mycotoxins. Dr. Hand opined to a reasonable degree of medical certainty that
Plaintiffs’ exposure to this high level of mold contributed to and worsened Plaintiffs’
respiratory problems Based on his observations in the course of Piaintiffs’ treatment and
‘° W ith respect to the January 2010 admission, Dr. Hand testified that the mold did not cause this admission but that
he was "!00 pereent" certain that the summer admissions ten Daniei in a weaker state and contributed to the January'
admission
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review of Plaintiffs’ medical records, Dr. Hand concluded that these effects were
consistent with Plaintiffs’ exposure to harmful mold given that both Plaintiffs’ medical
conditions improved after vacating the apartment,
This evidence plainly refutes Defendants’ assertion that Plaintiff presented "no
evidence" of "any particular airborne agent capable of [producing] disease" in Plaintiffs
and “no evidence” of "sensitivity to any particular airborne agent." Certainly, Plaintiffs
did not adduce any direct evidence as to the identity of the harmfui mold or that Plaintiffs
\vere sensitive to such a mold, i.e., evidence of the exact species of stachybotrys present
or that Plaintiffs had tested positive for an allergy to stachybotrys after an allergy test.
However, such direct evidence is not required to establish causation The "identity of the
toxic substances to \vhicli the harm is attributed may be shovvn by circumstantial
evidence," Leivz`s, 5 S.W.Sd at 585, as may the connection between Plaintiffs’ exposure to
that substance and the harm suffered, Coggins v. Laclede Gas Co., 37 S.W.?>d 335, 339
(Mo. App. E.D. 2000). Here, when the evidence is viewed in a light most favorable to
Plaintiffs, it is clear that they provided sufficient evidence, if just barely, from which to
reasonably deduce that the mold in their apartment exacerbated their respiratory ailments.
Defendants also contend, citing Tho)nas v. FAG Bearings Corp., 846 }?`. Supp.
i382 (1994), that Plaintiffs’ causation evidence is insufficient because Dr. Hand’s
causation testirnony is based on three assumptions: (l) that high levels of mold existed in
Plaintiffs’ apartment; (2) that Plaintiffs are sensitive to an unidentified airborne agent;
and (3) that that agent induced allergic reactions in Plaintiffs. lt is true that to have
probative value, an expert opinion must not consist of conjecture or speculation, but be
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founded upon facts and data. Gaddy v. Skel!y Oi! Co., 259 S.W.Zd 844, 849 (Mo. 1953).
As such, "[i]f an expert witness is called, the facts in evidence, coupled with those
available to the witness from the witness’s own investigation, must be sufficient to take
the expert testimony out of the realm of guesswork." Mzteller, 54 S.W.3d at 658. if an
expert’s opinion is premised on such guesswork, or is mere conjecture or irnagination,
then it is insufficient to demonstrate a genuine issue of rnateriai fact necessary to avoid
summary judgment. See Cily ofGreen Rr'dge v. Kreisel, 25 SW 3d 559, 561 (Mo. App.
W.D. 2000).
Contrary to Defendants’ characterization of the record, Dr. Hand did not assume
that Plaintiffs would be susceptible to the mold or that mold caused Piaintiffs’ symptoms.
All that Plaintiffs’ attorney asked Dr. Hand to assume was that Plaintiffs had been
exposed to high levels of mold in their apartment. After making this assumption, Dr.
Hand then concluded that Plaintiffs were susceptible to the mold and that the mold
contributed to their ailments. Significantly, this opinion was not based on assumptions,
but on Dr. Hand’s medical training and experience, his review of Plaintiffs’ relevant
medical records, and his medical observations during both Plaintiffs’ treatment. Further,
the "assuinption" that Plaintiffs were exposed to high levels of mold is not simply
conjecture or speculation, as Defendants assert, but is supported by actual facts in the
record-mainly Mr. Behrrnann’s testhnony as to the high levels of mold found in
Plaintiffs’ apartment, This case is thus unlike Tho)nas, where the expert’s opinion was
not based on any factual data in the record, and instead relied on conjecture. See Tho)nas,
846 F. Supp at 1394. Consequently, Dr. Hand’s causation testimony cannot reasonably
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be characterized as lacking factual support for sununary judgment purposes. Subpoint
granted as to the mold.
Spider‘ Bite
Plaintiff also asserts that she demonstrated a genuine issue of fact as to the cause
of Daniei‘s presacral wound because Dr. Hand testified that the wound was the result of
either a brown recluse spider bite or necrosis. Defendants respond that the
uncontroverted evidence shows that a brovvn recluse spider did not cause Daniel’s
wound.
'fhe only evidence of causation that Plaintiff provided regarding the cause of
Daniel’s wound was Dr. Hand’s testimony that he had reviewed Daniel’s medical
records, that both a spider bite and necrosis were included in the differential diagnosis,
and that there was "no degree of certainty which caused it." "Wlien a party relies on
expert testimony to provide evidence of causation when there are two or more possible
causes, that testirnony must be given to a reasonable degree of medical certainty."
ilr'ue[fer, 54 S.W.?>d at 657. Clearly, Dr. Hand was unable to determine the cause of
Daniel’s wound with reasonable probability and simply indicated it was a matter of
speculation whether a spider bite or necrosis caused the wound. Because the gist of Dr.
Hand’s testimony is that a spider bite zm`ghr have caused the wound, his testimony does
not constitute "substantive, probative evidence on which a jury could find ultimate facts
and liability." See id. Plaintiff has failed to demonstrate a genuine issue of fact sufficient
to avoid summary disposition. Rice v. Hodapp, 9l9 S.W.Zd 240, 243 (Mo. banc l996) (a
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"genuine" dispute is a “real and substantial one," not one consisting merely of conjecture,
theory, and possibilities), Subpoint denied as to the spider bite.
3. Nzrisance
in her fourth subpoint, Plaintiff asserts that the trial court erred in granting
summary judgment because a nuisance claim requires no medical expert testimony. In
support, Plaintiff discusses Frank v. Envrl. Sanitarion lllg)~nr, Inc., 687 S.W.Zd 876 (Mo.
banc ]985), and the distinction between nuisance per se and nuisance in fact, but does not
explain the relevance of her assertion that medical expert testimony is not necessary to
support a nuisance claim. In any case, Frank does not stand for the proposition that
medical expert testimony is not required in nuisance cases. Moreover, because causation
is an essential element of recovery for a nuisance claim, Plaintiffs were required to
establish causation, See Christ v. Metro. Sr. Lozzz`s Seiver Disz.‘., 287 S.W.3d 709, '711~12
(Mo. App. B.D. 2009). As we have already concluded, expert medical testimony is
required to show causation under the facts of this case, Subpoint denied.
Conclusion
Having reviewed the record in a light most favorable to Plaintiff, we conclude that
Plaintiffs demonstrated a genuine issue of material fact with respect to whether the mold
caused Plaintiffs’ injuries. However, Plaintiffs failed to demonstrate a genuine issue of
rnaterial fact with respect to whether a brown recluse spider bite caused Daniel’s wound.
Accordingly, the circuit court erred by granting Defendants summary judgment as to
claims related to the mold, but did not err by granting Defendants summary judgment as
17
to claims related to the spider bite. We affirm the trial court’s judgment in part, reverse
in part, and remand for further proceedings consistent with this opinion.
P%rp vi
Lisa Van Amburg, P.J. and
Patricia L. Cohen., J. concur.
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