                           NOT DESIGNATED FOR PUBLICATION

                                             No. 119,989

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                         JOSIAH BUNYARD,
                                             Appellant,

                                                   v.

                      AFFILIATED MEDICAL SERVICES LABORATORY, INC.,
                                        Appellee,

                                                  and

                       STATE OF KANSAS, DEPARTMENT OF CORRECTIONS,
                                        Intervenor.

                                    MEMORANDUM OPINION


        Appeal from Sedgwick District Court, WILLIAM S. WOOLLEY, judge. Opinion filed June 19,
2020. Affirmed.


        Josiah Bunyard, of Wichita, appellant pro se.


        David S. Wooding and Samantha M.H. Woods, of Martin, Pringle, Oliver, Wallace & Bauer,
L.L.P., of Wichita, for appellee.


Before LEBEN, P.J., SCHROEDER, J., and LAHEY, S.J.


        LEBEN, J.: Police armed with a search warrant took several substances thought to
be illegal drugs from Josiah Bunyard's Wichita apartment. After testing at a state lab, the
State charged him with possession of controlled substances.
       An attorney was appointed to represent Bunyard in the criminal case, and that
attorney decided to seek independent testing of the substances. In doing so, the attorney
made some significant decisions.


       First, apparently to get the prosecutor to agree to let him do the tests, the defense
attorney agreed to share the results with the prosecutor. By itself, that may or may not
have been a reasonable decision. Without the prosecutor's agreement, the defense would
have needed a court order to get materials for testing.


       Second, the defense attorney decided to test a sample, called Q5, that had tested
negative for illegal substances at the state lab. In combination, the defense attorney's
decision was risky. If the independent lab found that Q5 contained controlled substances,
Bunyard could then be prosecuted for that. And Bunyard's own attorney had agreed to
turn that information over to the prosecutor.


       Of course, since a case is now in our court, that's what happened. The lab hired by
the defense found that the Q5 sample was methamphetamine. The State added a new
charge—more serious than the ones already on file—for possession of methamphetamine
with the intent to distribute it.


       Eventually, after Bunyard got a new attorney, that attorney moved to exclude the
Q5 test result. The motion argued that the State shouldn't have been entitled to that
information because no reasonable attorney would have provided it. The state lab had
declined to do a confirming test, so the defense-obtained test result was the only evidence
supporting the charge. The district court granted the motion to exclude that evidence, and
the charge related to the Q5 test result was dismissed.


       But Bunyard had been in custody on a charge unrelated to this case (an aggravated
battery), unable to post a sizable bond, while this played out. Bunyard eventually brought

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suit—against the defense-hired testing lab—claiming that it was at fault for having
negligently determined that the Q5 sample was methamphetamine. As a result of the lab's
negligence, he argued, he had been damaged by being held in custody and by having
more difficulty defending against the more-serious drug charge.


       The lab hired by the defense, Affiliated Medical Services Laboratory, filed for
summary judgment. The lab argued that it had no duty to Bunyard and that even if it had
some duty to him and breached it, that breach wasn't the proximate cause of any damages
he suffered.


       When one party files for summary judgment and points to an apparent hole in the
opposing party's case, the opposing party must come forward with some evidence to fill
it. Otherwise, there's no factual dispute—and if the hole lies where there should be
evidence of an essential element of the claim, summary judgment is proper. See
Patterson v. Cowley County, 307 Kan. 616, 621, 413 P.3d 432 (2018).


       The district court found Bunyard's response inadequate and granted summary
judgment. Bunyard has appealed to our court. When summary judgment has been
granted, that happens just based on written submissions to the court, so the appellate
court is in as good a position as the trial court to evaluate the claim. For that reason, we
review the matter independently, with no required deference to the district court. Hill v.
State, 310 Kan. 490, 512-13, 448 P.3d 457 (2019).


       Bunyard's claim is for negligence, and a plaintiff must establish four elements for
a valid negligence claim: (1) the existence of a duty; (2) breach of that duty; (3) an injury;
and (4) a sufficient causal connection between the duty breached and the injury—what
lawyers call "proximate causation." Hale v. Brown, 287 Kan. 320, 322, 197 P.3d 438
(2008). Even if Bunyard could satisfy the first three elements, nothing the lab did served


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as the proximate cause of any damage to Bunyard. So the district court properly granted
summary judgment to Affiliated Medical Services Laboratory.


       Let's start with an explanation of what we mean by proximate causation. It's more
than playing some minor role in a sequence of events that ends in an injury: "The injury
must be the natural and probable consequence of the wrongful act. Individuals are not
responsible for all possible consequences of their negligence, but only those
consequences that are probable according to ordinary and usual experience. [Citations
omitted.]" Hale, 287 Kan. at 322.


       Factoring in ordinary and usual experience makes this an easy case. Our criminal-
justice system depends on an adversarial model in which the truth is revealed by
adversaries in the courtroom. United States v. Cronic, 466 U.S. 648, 655-56, 104 S. Ct.
2039, 80 L. Ed. 2d 657 (1984). So "a criminal defendant is by design in an adversarial
relationship with the government." Georgia v. McCollum, 505 U.S. 42, 67, 112 S. Ct.
2348, 120 L. Ed. 2d 33 (1992) (O'Connor, J., dissenting). And the defendant in an
adversarial proceeding has the right to an attorney who is looking out for the defendant's
interests. See Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984); State v. Moyer, 309 Kan. 268, 278-79, 434 P.3d 829 (2019) .


       These are things so basic to our criminal-justice system that they are part of the
ordinary and usual experience. Taking them into account, Bunyard hasn't demonstrated
that the personnel at Affiliated Medical Services Laboratory had any idea that the test
results they sent back to Bunyard's attorney would be given to Bunyard's adversary, the
prosecutor.


       The lab presented evidence that it knew that the testing was being done for
Bunyard's attorney and that it was being paid for by the Kansas Board for Indigents
Defense Services, which covers such costs for indigent defendants. But they denied

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having any knowledge that Bunyard's attorney planned to share the results with the State.
Given even a general understanding of the adversarial process for criminal cases, lab
personnel would have had no reason to expect that—unless they were explicitly told.


       So that's the hole in Bunyard's case that he must fill to avoid summary judgment.
He tried to do that with his own affidavit: "Defendant knew of [the attorney's] intent to
turn test results over to District Attorney." But Bunyard doesn't provide any evidence that
he had personal knowledge about what the lab's personnel were told; Bunyard does not
suggest that he ever had any direct contact with them. An affidavit that's not based on
personal knowledge isn't the equivalent of admissible evidence. See K.S.A. 60-419. So it
doesn't provide the information Bunyard needs to avoid summary judgment.


       In sum, even if Bunyard had shown everything else he needed to make a
negligence claim against the lab (something we need not determine), his claim fails on
proximate causation. There was no reason for lab personnel to suspect that their work for
Bunyard's defense attorney would be sent to the prosecutor. And that's especially so for
lab results against Bunyard's interest. Anyone dealing with Bunyard's attorney would
assume, based on our adversarial system, that the attorney would act in Bunyard's best
interests. The lab isn't responsible for the attorney's decision to do something against
Bunyard's interests.


       We've left out many details of Bunyard's claim. That's because no matter how you
might assemble them, they don't change the basic story we've already outlined. Bunyard's
claim against the lab depends on the lab having reason to suspect that its work would be
turned over to the State even if it might harm Bunyard. There's simply no evidence to
support that.


       The district court properly granted summary judgment. We therefore affirm the
district court's judgment.

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