J-S75031-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IRENE DOUGLAS, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ROSA BERNUDEZ AND OLGA :
BERNUDEZ : No. 1556 EDA 2018
Appeal from the Order Entered April 23, 2018
in the Court of Common Pleas of Wayne County
Civil Division at No(s): 2017-00014
BEFORE: PANELLA, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 23, 2019
In this negligence action, Irene Douglas (“Douglas”) appeals from the
Order granting summary judgment against her, and in favor of Rosa Bernudez
(“Rosa”) and Olga Bernudez (“Olga”) (collectively, the “Defendants”). We
reverse and remand for further proceedings.
Douglas alleged in her Complaint that, between February 2007 and
December 2015, she resided in an apartment (hereinafter “the Property”),
located in Honesdale, Wayne County. The Property was owned by Olga, and
managed by Olga’s daughter, Rosa. Douglas alleged that the Property
contained mold, which had caused her to suffer health issues, and that the
Defendants were negligent in failing to remove the mold.
In March 2015, Douglas requested the Wayne County Housing Authority
(“Housing Authority”) to conduct an inspection of the Property for mold.
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According to Douglas, “[o]n or about September 22, 2015, [she] developed
asthma from allergies due to mold in the [Property].” Complaint, 1/9/17, at
3. Douglas alleged that on September 25, 2015, she was rushed to the
emergency room for treatment for what she alleged was a reaction to mold in
the Property. In support of this claim, Douglas attached to her Complaint a
hand-written, two-sentence note, dated September 25, 2015 (hereinafter, the
“September Note”), from her treating physician, Linda Mendelsohn, M.D. (“Dr.
Mendelsohn”). In the September Note, Dr. Mendelsohn stated that Douglas
“had a slightly elevated troponin level at an Emergency Room visit and an EKG
showing poor R-wave progression. This may be indicative of a small
myocardial infarction.” Complaint, 1/9/17, at Exhibit F.
Douglas pled that on December 9, 2015, she was again hospitalized for
health complications attributable to her exposure to mold in the Property. In
support of this claim, Douglas attached to her Complaint a second note from
Dr. Mendelsohn, dated December 9, 2015 (hereinafter, the “December Note”),
which was hand-written on a prescription pad. The December Note states as
follows: “Irene Douglas was hospitalized for a subendocardial myocardial
infarction caused by severe allergy to mold in her apartment.” Complaint,
1/9/17, at Exhibit H.1
____________________________________________
1 We will hereinafter refer to the September Note and December Note
collectively as “the Notes.”
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In the meantime, the Housing Authority conducted an inspection of the
Property in October 2015. Douglas attached to her Complaint a copy of a
letter that the Housing Authority had sent to the Defendants following this
inspection, requiring them to make certain repairs to the Property. The
Housing Authority conducted another inspection of the Property on November
13, 2015, and notified the Defendants that the Property contained mold that
still had to be removed.
On November 11, 2015, Rose M. Roberts (“Roberts”), a “mold assessor”
certified by the “National Organization of Remediators and Mold Inspectors”
(“NORMI”), conducted a “mold inspection” of the Property. Roberts issued a
written report (hereinafter, the “NORMI Report”), which Douglas appended to
her Complaint, noting the presence of mold in the Property and the need for
mitigation. See Complaint, 1/9/17, at Exhibit G.
On May 16, 2017, the Defendants filed an Answer and New Matter,
denying any negligence on their part. On January 12, 2018, Defendants filed
a Motion for Summary Judgment, asserting, inter alia, that they were entitled
to judgment as a matter of law because Douglas had failed to present
sufficient expert medical evidence that the alleged mold in the Property
proximately caused her health problems.
On March 21, 2018, Douglas filed an Answer and Brief in Opposition to
Defendants’ Motion for Summary Judgment (hereinafter, the “Answer”).
Douglas asserted therein, in relevant part, that she had presented sufficient
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expert evidence (i.e., in the form of the Notes and the NORMI Report) to
establish causation and liability. Additionally, Douglas appended to the
Answer a transcript from a deposition of Rosa (hereinafter “Exhibit A”). See
Answer, 3/21/18, at ¶ 42 (citing Exhibit A and asserting that the Defendants
are “responsible for the hazardous mold, which was admitted by [Defendants]
when Rosa [] tried to clean/remove the same in October[] 2015, resulting in
a fire ….”).
By an Opinion and Order entered on April 23, 2018, the trial court
granted the Defendants’ Motion for Summary Judgment. Relevant to the
instant appeal, the trial court concluded that the September Note was
“inadmissible as expert medical evidence that mold in [the Property]
proximately caused [Douglas’s] alleged injuries[,]” stating as follows:
The [September] [N]ote … states[,] “Irene Douglas had a slightly
elevated troponin level at an Emergency Room visit and an EKG
showing poor R–wave progression. This may be indicative of a
small myocardial infarction.” Pl.’s Ex. “B” (emphasis added). As
the term “may” was used[,] as opposed to language which would
conclusively describe both the cause of and [description of
Douglas’s] injury, this expert opinion fails to demonstrate a
reasonable degree of medical certainty.
Trial Court Opinion and Order, 4/23/18, at 7 (citing, inter alia, Montgomery
v. South Philadelphia Medical Group, Inc., 656 A.2d 1385, 1390 (Pa.
Super. 1995) (stating that, to be admissible, the opinion of an expert witness
must be rendered within a reasonable degree of medical certainty)).
Regarding the December Note, the trial court stated as follows:
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[The December] [N]ote … states[,] “Irene Douglas was
hospitalized for a subendocardial myocardial infarction caused by
severe allergy to mold in her apartment,” signed J. Mendelsohn.
Pl.’s Ex. “I.” While this language appears conclusive, [Douglas]
produced no additional evidence to show that the expert’s
reasoning was based on a verifiable factual predicate. An opinion
that the plaintiff’s injuries stemmed from the cause alleged is
inadmissible if it lacks an adequate basis in fact warranted by the
record. Collins [v. Hand], 246 A.2d [398,] 404 [(Pa. 1968)]. As
this expert opinion contains no adequate basis in fact warranted
by the record, [Douglas] failed to meet her burden. Therefore, as
[Douglas] produced no admissible expert opinion to prove that
exposure to mold as a result of Defendants’ actions either
proximately or directly caused her health issues, [Douglas’s] claim
fails as a matter of law.
Trial Court Opinion and Order, 4/23/18, at 7-8.
Douglas timely filed a Notice of Appeal, followed by a court-ordered
Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal. The
trial court then issued a Rule 1925(a) Opinion, relying upon the rationale
advanced in the April 23, 2018 Opinion and Order.
Douglas now presents the following issues for our review:
1. Did the trial court abuse [its] discretion in finding [that
Douglas’s] medical report lacked an adequate basis in fact
warranted by the record when the record shows mold in [the
Property,] … where the mold was confirmed by photographs
and inspection reports of the [] Housing Authority; plus an
inspection report from NO[]R[MI]; and also confirmed by both
[Douglas’s] Depositions and … Rosa[’s] [] deposition
testimony?
2. Did the trial court fail to follow the rule that all facts of record
and reasonable inference[s] therefrom must be read in a light
most favorable to the [p]laintiff, and that the Defendants[’]
Motion for Summary Judgment can be granted only when the
right to such judgment is clear and free from doubt?
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3. Did the trial court err in granting Defendants[’] [] Summary
Judgment Motion by determining [that Douglas’s] medical
expert report was inadmissible?
Brief for Appellant at 1 (issues renumbered, some capitalization omitted).
Our standard of review of an order granting a motion for summary
judgment is well settled:
We view the record in the light most favorable to the non-moving
party, and all doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party. Only
where there is no genuine issue as to any material fact and it is
clear that the moving party is entitled to a judgment as a matter
of law will summary judgment be entered. Our scope of review of
a trial court’s order granting or denying summary judgment is
plenary, and our standard of review is clear: The trial court’s
order will be reversed only where it is established that the court
committed an error of law or abused its discretion.
Daley v. A.W. Chesterton, Inc., 37 A.3d 1175, 1179 (Pa. 2012) (citation
omitted); see also Summers v. Certainteed Corp., 997 A.2d 1152, 1159
(Pa. 2010) (stating that “the issue as to whether there are no genuine issues
as to any material fact presents a question of law, and therefore, on that
question our standard of review is de novo. This means we need not defer to
the determinations made by the lower tribunals.” (citations omitted)).
We will address Douglas’s issues simultaneously due to their
relatedness. Douglas argues that the trial court erred in entering summary
judgment against her, where she presented sufficient evidence in her
Complaint and Answer to establish a prima facie negligence case against the
Defendants. See Brief for Appellant at 10-14. Specifically, Douglas contends
that
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[t]aken as a whole, and read in its best light, the evidence from
the [NORMI R]eport findings, verified by [Douglas’s] photos [of
the Property] and her [deposition] testimony; the inspection
report of the … Housing Authority, with a Remediation Order to []
Defendants to remove the mold; and … Rosa[’s] [] testimony
confirming her viewing the mold and her remedial actions,
provides more than enough facts to prove a basis for Dr.
Mendelsohn’s medical report [(i.e., the Notes)], and to deny the
Summary Judgment Motion.
Id. at 11. Douglas urges that, where the Complaint contained the Notes, the
trial court erred in finding that the record contains insufficient evidence as to
causation. Id. at 7, 13; see also Scampone v. Highland Park Care Ctr.,
LLC, 57 A.3d 582, 596 (Pa. 2012) (stating that a plaintiff alleging a negligence
claim bears the burden of “demonstrat[ing] the causal connection between
the breach of a duty of care and the harm alleged: that the increased risk
was a substantial factor in bringing about the resultant harm.”); Lattanze
v. Silverstrini, 448 A.2d 605, 608 (Pa. Super. 1982) (stating that, generally,
an injured plaintiff in a negligence action must prove the element of causation
through expert medical testimony). Douglas further argues that the trial court
committed legal error in ruling that the December Note was inadmissible.
Brief for Appellant 7 (citing Trial Court Opinion and Order, 4/23/18, at 8
(wherein the trial court, relying upon Collins, supra, stated that Dr.
Mendelsohn’s “expert opinion[, i.e., in the December Note,] contains no
adequate basis in fact warranted by the record[.]”)).
Where Dr. Mendelsohn conclusively stated in the December Note that
“Douglas was hospitalized for a subendocardial myocardial infarction caused
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by severe allergy to mold in her apartment” Complaint, 1/9/17, at Exhibit H
(emphasis added), we cannot agree with the trial court’s determination that
Douglas failed to present sufficient evidence as to causation.2 Further, viewing
the totality of the evidence in the light most favorable to Douglas, we conclude
that the trial court erred in determining that the December Note lacks an
adequate basis in fact warranted by the record; thus, Collins is inapposite.
Moreover, it cannot be said that the December Note was based upon guess or
speculation. See First v. Zem Zem Temple, 686 A.2d 18, 21 (Pa. Super.
1996) (stating that “[a]lthough it is clear that a jury is not permitted to reach
a verdict based upon guess or speculation, it is equally clear that a jury may
draw inferences from all of the evidence presented. … A substantial part of
the right to trial by jury is taken away when judges withdraw close cases from
the jury.” (citation omitted)). Accordingly, we conclude that the language in
the December Note, along with the other evidence of mold in the Property,
presents a disputed issue of fact for a jury to resolve, and the trial court thus
erred in entering summary judgment against Douglas.
Order reversed; case remanded for further proceedings consistent with
this Memorandum; jurisdiction relinquished.
____________________________________________
2Additionally, unlike the September Note, Dr. Mendelsohn’s opinion in the
December Note as to causation was rendered with a sufficient degree of
medical certainty. Cf. Montgomery, supra.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/23/19
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