 

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 buttoci<s.

cause of her ailments. Simiiarly, Dr. Wedner determined that Daniel’s repeated
hospitalizations for pneumonia were not caused by mold and that the most significant
cause of Daniei’s respiratory ailments was his smoking habit coinbined 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. Accordingiy,
because this evidence showed that mold and a brown recluse spider bite did not cause the
Plaintiffs’ alleged injuries and Plaintiffs had failed to present any contrary evidence,
Defendants asserted that they were entitled to surnmaryjudgment.

in response, Plaintiffs filed a motion seeking additionai time for discovery and to
make a response to Defendants’ rnotion. The circuit court granted Plaintiffs’ request
Plaintiffs then deposed their treating physician, Dr. Jason Hand, and filed a supplemental
response to Defendants’ motion. In their supplemental response, Plaintiffs asserted that
Dr. I-iand’s testimony refuted Dr. Wediier’s opinion that the mold did not contribute to or
cause Plaintiffs’ ailments and also established that Daniel’s wound was consistent with a
spider bite. Uitimately, and without providing its reasons, the circuit court entered an
order granting suinrnaryjudgment for Defendants. This appeal foliowed.

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(0)(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 Corrz)ne)‘cr'al Fin. Co)~p. v. Mid-A)n. Marr'ne Supply Corj)., 854 S.W.Zd 371, 381-82

(Mo. banc 1993). "A ‘genuine’ dispute is a real and substantial one, not one consisting
merely of conjecture, theory, and possibilities." Mue!!er 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.
ld. at 656. in doing so, we view all the legaliy 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 Co)n)nercicil F 1'11., 854 S.W.Zd 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 suinmaryjudgment. Central Mo. Elec. Co-op. v. Ba/ke, 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
inaterial factual dispute. Specifically, in four subpoints, Plaintiff asserts that a genuine
issue of fact exists i)ecause: (i) this "battle of the experts" is not a proper forum for
summary judgment; (2) Plaintiffs presented expert testimony to rebut Defendants’
inotion; (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 Plaintiffs met their burden of

demonstrating a genuine issue of material fact as to whether the mold and the brown

recluse spider’s veno1n caused Plaintifl`s’ 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 Plaintiffs’ injuries.'l Wagnei' v. Bonde:c Int’!, Inc, 368 S.W.?)d 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."
Callahc:n v. Cardinal Glennon Hosp., 863 S.W.Zd 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 bet\veen the defendant’s conduct and the
injury, in that the "hai'm is a reasonable and probable consequence of the defendant’s
conduct." St. Louis v. Benjarnr`n Moore & Co., 226 S.W.3d il(), 114 (Mo. banc 2007).

Further, in an action regarding liability for exposure to a toxic substance,
establishing causation often involves evidence of inultiple factual predicates, including:

"(l) an exposure to an identified harmful substance significant enough to activate disease;

3 Plaintiff`s point relied on presents at least three claims of error and fails to concisely state the legal reason for
reversal or explain, in the context of the facts of this case, why these legal reasons support reversal, which violates
Rule 84.04(d). A deficient polin relied on preserves riothing for review. See Jejjfn.s v. Jefj*”u.s', 375 S.\V.3d 862, 863
n.l (Mo. App. W.D. 20 l2). However, because we are able to discern the basic contentions of Plaiiitif£’s arguments
we exercise our discretion to e.r gratia consider Plaintiff"s point.

4 Causatiou is an elenrent of all of Plaintiffs’ claims See Bicker'lo)~r, lnc. v. Am. Sk:res !ns. Co., 898 S.\V.Zd 595, 600
(Mo. App. W.D. ¥995) (“Tlie elernents of a iiegligence action are a legal duty . . . , breach of the duty, proximate
cause and actual damages."); Chris! v. Me!ro. Sr. Loin°s Seirer D:'s!., 287 S.\V.$d 709, 71 l-l2 (Mo. App. E.D_ 2009)
(“lrrjury, damage, and causation are essential eleinents required for recovery on the basis of nuisance."); Green v.
Pz'a:a in Claylon Condo. Ass'.n, 410 S.\V.3d 272, 282 (Mo. App. E.D. 2013) ("[N]egligence under the res ipsa
loquitur doctrine [requires} three elernents: (l) the incident \vould not ordinarily occur in the absence of negligence;
(2) the incident \vas caused by an instrumentality under the defendant‘s control; and (3) the defendant has superior
knowledge about the cause of the incident."); Edn'ards v. Ger's!ein, 363 S.W.3d 155, 165 (Mo. App. W.D. 2012)
(gross negligence requires the same showing as ordinary negligence, but requires a lieiglitened )nental state of
culpability).

(2) a demonstrable reiationsliip between the substance and bioiogic 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." Lei-vis v. FAG Bearings Cor'p., 5
S.W.3d 579, 585 (Mo. App. S.D. i999).5 However, in considering whether Plaintiff has
met her burden of establishing a genuine issue of inaterial fact as to causation, we are
mindful of the Suprerne Court’s cautionary explanation of the causation analysis
Maiiiiy, in undertaking such an anaiysis, courts "should not lose sight of the ultimate
issue:"
Ali 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 l) "proximate
cause," 2) "but for causation," or 3) "substantiai factor" when instructing
the jury. We inerely instruct the jury that the defendant ’s conduct )mrst
"direct[y cause” or "directlj» contribute to caz.rse" plaintiffs z`njzrr_y.
(Elnphasis added).
Szzndermeyer v. SSM Regioncrl Healtlr Se)'vs., 271 S.W.3d 552, 555 (Mo. banc 2008)
(citing Callahan, 863 S.W.Zd at 863).
]. Sudden Onset Doctrineé

We first address Piaintiff’s third subpoint that the "sudden onset doctrine” applies

to this case, meaning that expert testimony is not necessary to estabiish that the mold

5 In the argument portion of her brief`, Plaintiff suggests that the trial court applied the incorrect standard of
causation, asserting that she :nerely had to show that the mold contributed to Plaintiffs’ disease and suggesting that
the “iliaiiifold" level of proof necessary in toxic tort cases, such as Leivr's, is inapplicable. 'I`liis aliegatioii of legal
error is not encompassed by Plaintiff’s point relied on and it is not preserved for our review. See Rule 84.04{e).
We, tllerefore, do not consider it.

° P|aiiitiff cites no authority to support her first subpoint that suinmary judgment is not permitted if the evidence
adduced invoives a "battle of the experts.” Accordingiy, we deem this subpoint abandoned. See G)'anr v. Sears, 379
S.W.3d 905,9£7(1»10. App. W,D.QO}Z).

caused Plaintiffs’ injures. Reiying on State v. Nor'ivood, 8 S.W.$d 242 (Mo. App. W.D.
l999), Plaintiff asserts that the link between moid and respiratory problems is common
knowledge and that the jury could infer that the mold caused the injuries because
Plaintiffs were sick vvhile residing in the apartment and "became better when they left."?
Defendants respond that the sudden onset doctrine does not appiy.

As noted, proof of causation in cases involving exposure to a toxic substance
typically requires a certain degree of scientific expertise. See Lewi's, 5 S.W.Sd at 585.
'fhis 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 niatter, coincides with the
requisite proof of causation in medical injury cases, where the cause of sophisticated
injuries is not ivithin a layperson’s common understanding and, therefore, the plaintiff
must establish the causal relationship through expert medical testimony. See Brickey v.
Concer'ried Ccn‘e of the Mi`divesr, Inc., 988 S.W.Zd 592, 596-97 (Mo. App. E.D. 1999).

The sudden onset doctrine, liowever, provides a limited exception to the necessity
of medical expert testimony to establish causation "when the facts fall within the realm of
lay understanding." Wi`llz`cinis v. Jcrcobs, 972 S.W.Zd 334, 340 (Mo. App. W.D. 1998)
(citation and quotations oniitted). Under the rule, causation may be estabiished through

the testimony of a lay vvitness "uihere the obvious symptoms of the injury follow the

7 Plaiiitiff limits this argument to the mold and, tlierefore, we do not consider whether the sudden onset rule would
also apply to the spider bite.

trauma irnmediately, or \vitli only short delay, and the injury is the type that is normally
sustained in the kind of ti‘aiirna involved." Tiicker v. Wi'bbennieyer, 901 S.W.Ed 350, 351
(Mo. App. E.D. 1995).

Application of the rule depends on the facts of each case, but most often the rule is
applied in cases where a person suffers a broken bone or an open wound iniinediately
after an accident or within a short period of time after the accident. See i'd. In some
instances, the rule has even been applied where the person suffers from a pre-existing
condition. See, e.g., Bei'ten v. Pi'ei'ce, 818 S.W.Zd 685, 687 (Mo. App. W.D. l99l)
(applying sudden onset rule despite pre-existing condition of a related, but different
natui‘e, which did not require scientific expertise). But see Haridsliy v. Hasty, 444 S.W.2d
48, 53 (Mo. App. l969) (declining to apply sudden onset rule where pre-existing
condition was very similar to the one for which the plaintiff claimed damages and matter
was highly complex). Comparatively, the rule will not apply where the onset of the
symptoms, compiaints, or disability are sufficiently delayed from the event that allegedly
caused the injury. See Tiicker, 901 S.W.Zd at 351; Be)'teri, 818 S.W.Zd at 687.
Additionally, the sudden onset doctrine will not apply "where there is specific medical
evidence suggesting that the cause of the injury was contrary to that suggested by the lay
person’s [sic] testimony.” Norii)ood, 8 S.W.3d at 248.

Here, Plaiiitiffs’ pre-existing conditions, including severe COPD and respiratory
ailments, are very siniilar tom-if not the same asmthose for which Piaintiffs claim
damages. Because the claimed injuries and pre-existing conditions are not readily

separable based on common knowledge, this is exactly the type of highly complex case

where expert medical testimony is necessary to establish causation. See Handshy, 444
S.W.2d at 53. Moreover, the medical opinion of l)efendants’ expert directly contradicts
Sharori’s testimony that the mold was the cause of Plaintiffs’ injuries. Sharon testified
that she did not have respiratory problems until living in the apartment, that she
continued to have breathing problems as a result of her exposure to the rnold, and that her
condition improved after moving out of the apartment, She also testified that Daniel
contracted pneumonia "seven times in a year in a half" as result of the mold and that he
never contracted pneumonia before living in the apartment. Contrarily, Dr. Wedner
attested that Plaintiffs’ pre-existing respiratory ailments, including COPD and years of
smoking, were the cause of Plaintiffs’ health conditions, not mold. He further indicated
that had mold been the cause of Plaintiffs’ ailments, that Plaintiffs would have
experienced a significant and sustained improvement after moving out of the apartment,
but that neither Plaintiff experienced such an iinprovenient.

Under these circumstances, where a plaintiffs pre-existing conditions are
substantially the same as the injuries alleged and expert testimony directly contradicts the
lay opinion, a jury’s common knowledge and experience is insufficient to aid it in
reaching a reliable conclusion as to causation. As such, Norirood, on which Plaintiff
reiies, is inapposite-the present claimed injuries are clearly unlike the head injury and
sudden onset of memory problems that the victim suffered in Norivood, and which
justified application of the rule. See Norii)ood, 8 S.W.3d at 248. Sharon’s testimony that
the mold caused her and Daniel’s injuries because her condition improved when she left

the apartment and because Daniel contracted pneumonia multiple times while he resided

in the apartment but not before, was not sufficient proof on the matter of causation. We
reject Piaintiff”s argument that the sudden onset rule obviates the need for expert
testimony Subpoint denied.

2. Experr Tesfz')nony of Causatz`on

Having concluded that expert testimony is necessary to establish causation in this
case, we turn to Piaiiitiff’ s second subpoint that Plaintiffs demonstrated a genuine issue of
material fact as to causation sufficient to avoid summary judgment Because Piaintiffs
asserted that two different toxins-rnold and brotvn recluse spider venom-caused their
injuries, Plaintiffs’ burden required them to demonstrate a causal connection between
each of those toxins and the alleged harm each of them suffered Accordingiy, we
consider the mold and spider bite separately

Molci

Plaintiff asserts that Dr. Jason Hand’s testimony is sufficient to demonstrate a
material question of fact because Dr. Hand testified that the mold contributed to
Plaintiffs’ medicai conditions and liospitaiizations. Defendants respond that Plaintiffs
presented "no evidence" of causation, that Dr. Hand’s opinion is based on assumptions
and that Plaiiitift`s, thus, faiied to establish a genuine issue of material fact.

To establish causation, Plaintiffs presented the deposition testimony of Mr. Jonalt
Behrmann and Dr. Hand. Mr. Behrmanii testified that he is an industriai hygienist
employed by a company that tests structures for environmental hazards, including 1nold.
Mr. Behrmann indicated that he investigated Plaintiffs’ apartment for mold in June 2009,

Mr. Behrmann said that he observed possible mold activity on the walls of the laundry

EO

room and ceiling in the hallway. After making these observations, Mr. Behrmann took
four samples to test for mold: a "tape lift" from the suspect wall in the laundry room and
an air sample from the laundry room, living room, and balcony outside the apartment.g
The results of the tape lift indicated the presence of high levels of stachybotrys, which is
a type of mold, and the air samples also reflected elevated levels of stachybotrys.
Although these tests did not identify the specific species of stachybotrys, only the genus
level, Mr. Behrmann testified that stachybotrys is "capable" of producing harmful
"mycotoxins” and "rnay play a role in the development of sick building syndrome."

Dr. Hand was Sharon’s treating physician since 2007 and testified that Sharon
suffered from morbid obesity, obesity hypoventilation syndroine,g and severe COPD
from being a former smoker. Dr. Hand testified that throughout 2008 and 2009 Sharon
experienced shortness of breath and prolonged hypoxia, or low oxygen, and had to be
provided with oxygen tanks, According to Dr. Hand, Sharon’s oxygenation
"miraculously" and draniatically irnproved-to the extent that she no longer needed the
oxygen tanks-after she moved out of the apartment in July 2009. Given this "objective
evidence" and assuming the existence of high levels of mold, Dr. Hand testified to a

reasonable degree of medical certainty that the mold contributed to the shortness of

s A tape liit is a technique used to directly examine an area of possible mold gro\vtl\, by pressing a piece of tape onto
the area and submitting it to laboratory aaralysis. An air sample is taken with a device that uses a flo\vineter to force
15 liters of air per ininute through a spore trap for approximately lO :ninutes. Mr. Behr:nann indicated that he
conducted these tests consistent with industry standards and that he sent the samples to a laboratory to obtain the
tests’ results.

9 Dr. Hand explained that this syndrome affects rnorbidly obese people and niakes it difficult to breathe because of
the excess tissue pushing against the diaphragm.

il

breath and exacerbations of COPD that Sharon experienced before moving out of the
apartment, The following testimony was elicited:

[Plaintiffs’ counsel:] Now, let me ask you this. I want you to assume
that there were high levels of mold in her apartment . . . . Within a
reasonable degree of medical certainty, was this mold contributing to cause
the problems that she was having with her breathing and COPD?

[Dr. Hand:] It’s - it’s much more likely with her because we saw
objective evidence of drainatic improvements in her oxygenation after she
moved out.

[Plaintiffs’ counsei:] And therefore, within a reasonable degree of
medical certainty, is it ~ would you believe that that shortness of breath
problem she was experiencing would have been due to these high levels of
mold?

[Dr. Hand:] Much more likely. Probably 70 or 80 percent certainty.
. . . Reasonable certainty.

Dr. Hand further testified "to a reasonable degree of certainty" that the mold contributed
to Sharon’s continued and ongoing respiratory problems because her exposure to high
amounts of mold would make her sensitive to future re-exposure.

Dr. Hand was also Daniel’s treating physician beginning in 2009. Dr. Hand
indicated that Daniei had been a smoker for many years and suffered from heart disease,
vascular disease, and advanced COPD. Dr. Hand explained that exposure to high
concentrations of mold will cause a person who is sensitive to mold to have exacerbation
of their disease and that Daniel was "definitely more susceptible to changes in
environmental exposures." fn his testimony, Dr. Hand recounted Daniel’s multiple
admissions for pneumonia over the summer of 2009 and noted that once Plaintiffs moved

out of the apartment, Daniel had one admission for an "unrelated" cardiac event, but was

12

admitted again for respiratory failure in January 2010. Based on the assumption that high
levels of mold existed in Plaintiffs’ apartment, Dr. Hand testified that the mold
contributed to Daniel’s niultiple hospitalizations for pneumonia in the summer of 2009 by
making the COPD worse and putting a strain on his heart. Dr. Hand expiained:

[Daniel] had multiple admissions for respiratory problems over the
summer . . . and then bam, they move out, he’s reexposed [in late Juiy
2009], he has one more admission. 'fhey move out and then the next
admission is several months later. . . [for a] completely unrelated issue . . .

So what’s compelling is when he was exposed to the environment he

had multiple admissions for respiratory issues. When he was removed from
the environment he had a relatively stable few months . . . .

=i¢ >l< >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

13

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

14

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

15

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

16

"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.

18

