Najera v. General Pest Control

No. 122,494
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
NORMA NAJERA and TERI SHOPE,
Appellants,
v.
GENERAL PEST CONTROL, LLC (CITY OF MOSCOW and EMC INSURANCE),
Appellees.
SYLLABUS BY THE COURT
1.
Under these facts, defendants are not entitled to judgment as a matter of law on the
issue of causation where circumstantial evidence could cause reasonable people to
disagree on whether plaintiffs' exposure to pesticides proximately caused their alleged
medical conditions.
2.
In an action for negligence, the plaintiff's claim is properly submitted to the fact-
finder on the element of causation when the evidence furnishes a reasonable basis for the
conclusion that the defendant's conduct more likely than not caused the plaintiff's injury.
3.
To support a finding of causation, circumstantial evidence need not rise to the
degree of certainty that would exclude any and every other reasonable conclusion. Such
evidence is sufficient if it affords a basis for a reasonable inference of the occurrence of
the fact in issue, although another inference may be equally reasonable.
1
4.
Under the facts of this case, the plaintiffs were not required to show the exact
amount of toxin touched, inhaled, or otherwise consumed to support causation of a
generally accepted medical diagnosis.
Appeal from Stevens District Court; BRADLEY E. AMBROSIER, judge. Opinion filed December
10, 2021. Reversed and remanded with directions.
Razmi M. Tahirkheli, of Tahirkheli & Premer-Chavez Law Office, L.L.C., of Kansas City, for
appellants.
Bradley C. Nielsen, of Franke Schultz & Mullen, P.C., of Kansas City, Missouri, for appellees.
Before MALONE, P.J., WARNER and HURST, JJ.
HURST, J.: Norma Najera and Teri Shope (Plaintiffs) appeal from the district
court's directed verdict for defendants General Pest Control, LLC (GPC), City of
Moscow, and EMC Insurance (collectively Defendants) on Plaintiffs' negligence claims,
and the district court's denial of their punitive damages claims. Plaintiffs each sued GPC
for damages allegedly resulting from GPC's negligent application of pesticides. After
Plaintiffs presented their case, the district court granted Defendants' motion for judgment
as a matter of law finding that Plaintiffs failed to prove causation. When competent
evidence exists, as it does here, causation in a negligence claim is appropriately a
question of fact for the jury. The district court's judgment as a matter of law is reversed
and remanded. As explained herein, this court does not reach Plaintiffs' claims for
punitive damages.
2
FACTUAL AND PROCEDURAL BACKGROUND
Najera and Shope worked for the City of Moscow, Kansas (the City) in a city-
owned building (the Office Building). On August 25, 2015, GPC sprayed the Office
Building for insect pests. GPC had sprayed the Office Building before for similar insect
pests. Najera and Shope each filed claims against GPC alleging they suffered medical
injury associated with acute and/or chronic exposure to the pesticides sprayed in the
Office Building on August 25, 2015.
The City and EMC Insurance Company, the City's workers compensation
insurance carrier, intervened. The district court consolidated Najera and Shope's cases
with each other, and with cases brought by two others—Stephanie Schraeder and Jon
Lund—who also worked in the Office Building. Najera and Shope both sought to amend
their petitions to include a claim for punitive damages, and the district court denied both.
In the pretrial order, the court stated that they could "renew their motion for punitive
damages depending on evidence discovered or presented during or before trial."
After some amount of discovery, GPC moved the district court to reconsider its
consolidation order, arguing that the Plaintiffs' medical claims diverged from the other
plaintiffs in the consolidated case. The district court agreed and ordered that the four
separate cases should be heard in two trials, with Schraeder and Lund in one trial and the
Plaintiffs, Najera and Shope, in the other. Plaintiffs presented their case in November
2019, and Defendants moved for judgment as a matter of law claiming Plaintiffs failed to
submit sufficient evidence demonstrating causation. The district court agreed and entered
judgment for Defendants on all claims, ruling that "Plaintiffs have failed to meet their
burden of proof on the issue of causation." The district court gave little other indication
for the basis of its opinion.
3
The Plaintiffs appealed the district court's denial of their motions to amend their
petitions to include claims for punitive damages and its grant of judgment as a matter of
law in favor of Defendants.
The August Insecticide Spray and Plaintiffs' Potential Exposure
GPC employees Paul Wilson and Trent Leal were already onsite on August 25,
2015, when Najera arrived to work. Sometime shortly after 8 a.m., Najera was in the
Office Building at her desk taking a phone call when Leal began spraying pesticide near
and around her desk. The Office Building is a compact area, measuring only about 750
square feet with two windows that do not open and two doors, one on each end of the
space.
Najera testified that Leal sprayed a large amount around her desk and Najera
believed that was because she heard Wilson tell Leal that she was afraid of spiders.
Najera testified that as soon as Leal began spraying, she started to smell a "horrific" smell
and her eyes started watering. Najera further testified that the spray "had a real pungent
smell" that was "really, really bad." Najera called City Supervisor John Lund and asked
him to come to the Office Building because the smell from the spray was awful and
making her eyes water. Lund was not immediately available.
Sometime between 10 a.m. and 10:30 a.m. on that same day, Shope came to the
Office Building to retrieve paperwork and commented about the foul odor. Najera and
Shope then opened the doors to air out the Office Building and try to alleviate the smell.
After about 15 minutes, Shope left because she did not want to continue to smell the
odor. Najera remained in the office until her lunch break around noon, when she left for a
short period to get a sandwich. She then returned and ate her lunch in the Office Building.
Lund arrived at the Office Building sometime after noon that day, and agreed the smell
4
was horrible. Lund asked Najera to call Wilson about the smell. She called and left a
message about the smell and requested a return call.
Wilson returned Najera's call at about 2 p.m. and Najera put the call on speaker so
that Lund could also listen. Najera testified that she told Wilson "'It smells like poop, like
rotten cabbage.'" Najera testified that after she described the smell, Wilson became
"really quiet" and said he would call her back. Wilson called back again at about 4 p.m.
as Lund and Najera were leaving the office because of nausea and watery eyes. Once
again, Najera put the phone on speaker and, according to Najera, Wilson told her that
they had inadvertently mixed chemicals they used the night before with the chemical
typically used in the Office Building. Najera asked if they would be safe to use the Office
Building and Wilson assured her the chemicals were safe and that he would come to the
Office Building the next morning with citrus deodorizers.
Najera returned to work the next day, arriving at approximately 12 p.m. Wilson
was there along with several others. Wilson told Najera that he believed they confirmed
the inadvertent mixture of two chemicals and Najera asked him to write down the names
of the chemicals. Najera said she asked because, as the city clerk, she had to answer
questions about the smell. She also asked Wilson, whom she considered a friend because
they attended the same church, if the employees were safe to be in the Office Building.
Wilson assured Najera the chemicals were safe and stated that GPC uses them in
hospitals and restaurants. Wilson also gave her a note with his cell phone number and the
names of the chemicals used: "Tandem EPA # 100-1437" and "Orthene PCO Pellets
EPA # 5481-8973."
The Mitigation Efforts at the Office Building
The City repeatedly tried to mitigate or eliminate the odor in the Office Building.
At some point, Wilson returned and applied a citrus deodorizer. On September 23, GPC
5
paid a professional carpet cleaning service to shampoo the carpet in the Office Building.
Najera believed the Office Building smelled even worse after that carpet shampooing.
The next day, on September 24, a professional restoration company used a negative air
fan/air scrubber for 24 hours followed by a hydrogen peroxide treatment to wipe down
walls and all the surfaces, including the baseboards. The restoration company also
applied a biological cleaning agent, with a second attempt at air purification, and steam
cleaned the carpet two more times. They applied a product known as "enviro-mist" to the
air to remove the smell and scrubbed the carpet by hand. The City mayor reported that
after all of the restoration efforts, the odor and irritation-causing agents were still present.
In October 2015, a little over a month after the pesticide application and multiple
failed restoration and odor removal efforts, the City closed the Office Building. The City
employees moved to work at a new location in the senior center. Lund testified that the
City closed the Office Building because of the odor and people were getting sick. Najera,
Shope, and Lund each testified that the smell remained in the Office Building long after it
was vacated. Lund said the smell was still there the last time he visited, which was two or
three years after the Office Building closed. The Office Building remained closed at the
time of trial.
On October 2, 2015, the City mayor sent a memo to the Kansas Department of
Health and Environment (KDHE) regarding the Office Building. The mayor stated that
employees who worked in the Office Building reported negative health effects after the
pesticide application. The mayor explained the mitigation efforts and reported that two
employees had missed at least seven days of work and reported nausea, vomiting,
respiratory problems, headaches, sore throats, burning sensation in their lips, and that
other employees and visitors reported similar conditions. KDHE referred the issue to the
Kansas Department of Agriculture which concluded that it did not identify a
misapplication of pesticide.
6
In July 2016, about 11 months after GPC's pesticide application, the
Environmental Protection Agency (EPA) sent a Superfund Technical Assessment and
Response Team to assess the Office Building. The EPA collected air and wipe samples of
the carpet and walls to determine whether the pesticides applied presented a threat to
human health. They conducted the assessment "in response to illnesses reported by
individuals who worked in the building following application of those pesticides in
2015."
The EPA analyzed air and surface wipe samples inside the Office Building for the
five active ingredients in the pesticides Talstar, Orthene, Tandem, and Maxforce FC
Roach Killer Bait Gel. The EPA's interior analysis included six air samples, six surface
wipe samples, and two carpet samples. The surface wipe sample tests revealed low
concentrations of the active ingredients in Talstar, Tandem, and Orthene. Acephate, the
active ingredient in Orthene PCO Pellets, was detected in five of the six surface wipe
samples, with the highest concentration on the baseboard and adjacent drywall along the
southwest wall in the rear room. Four of the six wipe samples found the active ingredient
for Talstar and all six found both active ingredients for Tandem present. Both carpet
samples contained the active ingredients for Talstar and Tandem but did not detect the
active ingredient for Orthene. The air samples only contained low levels of one of two
active ingredients of Tandem, and no others. The EPA Summary stated that "[n]o health-
based standards have been established by a U.S. government agency for any of these
pesticides in the sampled media." It also stated that "airborne pesticides/contaminants
other than those specified as analytes during this assessment could have caused the
aforementioned health effects reported by workers in the [Office Building]." It also stated
that the EPA would determine whether it required further testing or remediation.
7
Plaintiff Najera's Exposure to the Pesticides
Najera spent around seven to eight hours inside the Office Building on the day
GPC applied the pesticide. After that, Najera continued working at the Office Building
for the remainder of the week—although she ultimately took sick days that Friday and the
following Monday. Najera testified she continued to work in the Office Building "on and
off" until the City moved her location to the senior center, about five weeks later. Even
after the staff began working out of the senior center, Najera testified she still had to
"keep going back" inside the Office Building to retrieve various items from file cabinets
left behind.
Plaintiff Najera's Symptoms and Medical Diagnosis
Najera testified that within 30 minutes to an hour of Leal spraying the pesticides
her feet and the side of her mouth around her cheek started tingling, she felt "really,
really nauseous," and had a bad headache. Najera still did not feel well when she went
home that day. Her headache began to diminish, but her throat felt raw, and her nose felt
uncomfortable. When she woke up the next morning, her eyes were abnormally gummy.
When Najera stayed home from Friday until Tuesday, some of her symptoms abated. Yet
she developed a new feeling of unexplained heat on the bottom of her feet, as well as a
tightness in her chest. She returned to work, but the odor was still present and each time
she returned she felt "sicker and sicker."
Najera went to the doctor for the first time a week or two after the onset of
symptoms and continued seeing the doctor at various times during her illness. A little
over a month after GPC employees sprayed the Office Building Najera was still feeling
sick and was losing sleep because of a severe cough. Around this time, the City moved
the operations in the Office Building to the Moscow senior center. After Najera began
working out of the senior center her breathing got better. She continued to experience a
8
tingling, heat sensation in her feet and hands and was occasionally unable to bear weight
on her right foot. The burning and tingling sensation in Najera's hands and feet began to
get progressively worse and remained at the time of trial. She was also still experiencing
issues with balance and difficulty concentrating. Najera quit working for the City in
September 2018 because her health was declining. She also had to stop boarding and
training horses because of her health problems.
Dr. Eva Henry, a medical doctor that specializes in neurology, testified that she
began treating Najera about a year after the initial pesticide exposure. Dr. Henry testified
she interviewed and conducted a physical exam on Najera, reviewed Najera's medical
records, and ordered medical testing on Najera's blood and urine, which showed she had
elevated levels of Benzene, Styrene, and Bisphenol A in her blood and urine. Dr. Henry
testified she did not know whether Benzene or Styrene were associated with neuropathic
illnesses caused by environmental toxic exposure. These tests did not measure whether or
what amount of Orthene was in Najera's body at that time.
Dr. Henry's medical report states that "there [is] no question that Ms. Najera had
an acute overexposure of toxin Tandem and Orthene." Dr. Henry testified that Najera had
some preexisting conditions, including hypothyroidism, that made Najera more
susceptible to environmental toxin exposure. Dr. Henry diagnosed Najera with
polyneuropathy from toxic environment exposure, thyroiditis, vitamin D deficiency,
chronic fatigue, and fibromyalgia. Dr. Henry testified that symptoms of polyneuropathy
from toxic environment exposure can include burning, numbness, and pain in the toes
and fingers that can spread to other parts of those extremities, as well as balance issues.
During Dr. Henry's treatment of Najera, her polyneuropathy symptoms worsened. Dr.
Henry prescribed Najera a medication to reduce her "neuropathic pain"—essentially, the
burning sensation and nerve pain Najera was experiencing.
9
Dr. Henry testified that Najera had been diagnosed with chronic fatigue,
fibromyalgia, thyroid issues, and a vitamin D deficiency prior to Dr. Henry's additional
diagnosis of polyneuropathy. Dr. Henry testified that her report correctly stated her belief
that all of these conditions were "due to [Najera's] underlying health issues and toxic
exposure," but could not provide an apportionment as to what percentage of Najera's
medical conditions were due to Orthene or Tandem exposure. Dr. Henry's medical report
did state that Najera "sustained a rather heavy dose of acute organophosphate
neurotoxicity starting on August 25, 2015" and this period of exposure "precipitated
[Najera's] now documented severe peripheral polyneuropathy." In a later report, Dr.
Henry wrote that she suspected Najera's "chronic and acute pesticide exposure" caused
her polyneuropathy.
Plaintiff Shope's Exposure to the Pesticides
Shope testified that she worked for the City from January 2015 to September
2017. Shope only spent about 15 minutes in the Office Building the day of the pesticide
application but worked 2 full days later that week. She testified that when she walked into
the Office Building the day of the pesticide application, there was an overwhelming and
terrible smell. Shope normally worked in the Office Building Mondays, Wednesdays, and
Fridays. After the City closed the Office Building and moved the staff to the senior center
in early October, Shope testified she returned to the Office Building about every other
day to get mail and payments. Shope did this for "quite a few months" after the Office
Building closed and said that the smell remained over that span of time.
Plaintiff Shope's Symptoms and Medical Diagnosis
Shope worked the day after GPC employees sprayed the pesticide and said she
developed a slight headache and was uncomfortable from "feeling, smelling, and tasting"
the chemicals all day. She said she "could feel it extremely on [her] lips and [her] skin."
10
After moving to the senior center, Shope still experienced minor headaches and began to
have cold sores that were "out of control." Shope suffered from a burning sensation on
her left fingers and right toes, nerve damage, constant cold sores in and on her mouth,
damage to her right eye, vision change, and a general feeling of being unwell. Shope
testified that she was still experiencing increased cold sores and issues with her eye at the
time of trial.
Dr. Henry testified that she also diagnosed Shope after conducting a physical
examination of Shope and ordered medical testing on Shope's blood and urine. These
tests did not measure whether, or what amount, of Orthene was in Shope's body, but they
did find Shope had elevated levels of Styrene in her blood. Dr. Henry testified that she
did not know whether Styrene was associated with neuropathic illnesses caused by
environmental toxin exposure. Dr. Henry had Shope undergo a nerve biopsy, which
found Shope had "significant reduced nerve fiber density on her right foot and calf,
indicating signs of neuropathy."
Dr. Henry diagnosed Shope with peripheral neuropathy and testified "that
condition within the reasonable medical probability in my opinion was related to her
exposure" to the pesticides sprayed in the Office Building. However, Dr. Henry could not
conclude that Shope's exposure in the office "was the primary factor for her symptoms
and polyneuropathy." (Emphasis added.) In her medical report, Dr. Henry wrote that
"[t]he direct etiology" of Shope's peripheral neuropathy "is unclear now because there are
many possible causes of acquired polyneuropathy," and "[o]ne possibility is acute [or]
chronic toxic environmental exposure." Dr. Henry also testified that upon reviewing
Shope's medical records, another doctor had previously diagnosed Shope with nerve
problems. Shope's medical history reveals that in June 2015, before the pesticide
exposure, she had a nerve conduction study done that suggested she had either
"peripheral neuropathy or lumbosacral radiculopathy."
11
Testimony of Dr. Paul Goldstein
Dr. Paul Goldstein, a professor of toxicology at the University of Texas El Paso,
testified on the effects of Tandem and Orthene. Dr. Goldstein is a member of the society
of toxicology and has published an extensive body of articles and given numerous
presentations about toxicology. Dr. Goldstein was clear that he was not a medical doctor
and could not diagnose patients, but he did testify regarding the possible effects of
overexposure to Orthene and Tandem.
Dr. Goldstein testified that Orthene is a pesticide that contains the chemical
acephate, which is from a group of phosphate insecticides. He said that the group of
phosphate insecticides are "very extremely dangerous to become—to come into contact
with" and is classified as a possible human carcinogen. Dr. Goldstein testified that
Orthene has a strong odor and can get into a person's blood by breathing it, touching it,
and ingesting it. Dr. Goldstein testified that if a person can smell Orthene they are
breathing it in and getting it into their blood. Dr. Goldstein testified that Orthene in a
person's blood targets the liver and nervous system that could cause confusion, tingling,
and numbness. He said that once the chemical gets in a person's body, it remains until it
is "metabolized out" through urination or some other excretion, but the damage done by
the chemical "doesn't go away necessarily." The label for Orthene PCO Pellets begins
with precautionary statements. It states that the product is harmful if swallowed and
cautions that a person should avoid contact with eyes, skin, and clothing, and that a
person should avoid breathing dust, sprays, or vapors. Contaminated clothing should be
laundered before reuse. The label provides first aid instructions for Orthene exposure.
The label authorizes use of Orthene in industrial, institutional, or commercial buildings,
including offices.
Dr. Goldstein testified that Tandem is an insecticide made up of three chemicals,
including lamdbacyhalothrin and propylene glycol, which all have varying levels of
12
toxicity. He testified that Tandem can also affect the central nervous system. The Tandem
product label contains cautionary statements and first aid instructions similar to those on
the Orthene label. It also states that Tandem should not be applied to "institutions
(including libraries, sports facilities, etc.) when occupants are present in the immediate
treatment area." Further, "[u]se in all indoor permitted sites . . . must be restricted to areas
that eliminate exposure to food-handling surfaces and areas that are not easily accessible
to occupants." Treated surfaces should dry before humans or pets contact the surfaces.
Dr. Goldstein had never heard of someone mixing Orthene and Tandem together.
Dr. Goldstein explained that acute exposure is chemical exposure that occurs just one
time, and chronic exposure is chemical exposure that occurs over the span of a few days
or weeks. He testified that in cases of chronic exposure, a person can be exposed to
"much less of the chemical and still have even a greater or worse response." Dr.
Goldstein testified that the Plaintiffs experienced both acute and chronic exposure. But
Dr. Goldstein did not know the amount of Tandem or Orthene sprayed in the Office
Building or the rate of exposure experienced by the Plaintiffs. He believed that Plaintiffs'
exposure to pesticides sprayed by GPC medically caused their symptoms. But he noted
that he was not qualified to diagnose either and based his opinion on Dr. Henry's records.
The Material Safety Data Sheet Warnings
The Material Safety Data Sheet (MSDS) for Orthene PCO Pellets lists the
potential health effects if ingested, inhaled, or contacted with skin or eyes as
cholinesterase depression which is evidenced by headache, nausea, vomiting, diarrhea,
abdominal cramps, excessive sweating, salivation and tearing, constricted pupils, blurred
vision, tightness in chest, weakness, muscle twitching, and confusion. The MSDS also
states:
• extreme cases of acute exposure can result in respiratory depression and death;
13
• chronic overexposure can result in the same or similar symptoms as acute
overexposures; and
• certain underlying, preexisting conditions such as advanced liver disease,
malnutrition, dermatomyositis, or existing toxicity from exposure to other
carcinogens can increase someone's vulnerability to cholinesterase depression and
associated symptoms.
The MSDS for Tandem identifies the risk of skin contact as temporary itching,
tingling, burning, or numbness that can occur from splash, aerosol, vapor, or transfer
contact with particular risk to the face. In addition, the propylene glycol ingredient can
cause central nervous system depression such as dizziness and confusion as well as
headache, nausea, and eye irritation. Prolonged contact can cause allergic reactions, and
chronic dietary exposure can cause kidney and liver injury.
DISCUSSION
Plaintiffs present just two issues on appeal: First, that the district court
erroneously granted Defendants' judgment as a matter of law on the issue of causation;
and second, that the district court should have permitted their claim for punitive damages.
I. NEGLIGENCE
This court reviews the district court's grant of a motion for judgment as a matter of
law de novo "asking whether evidence existed from which a reasonable jury 'could
properly find a verdict for the nonmoving party. [Citation omitted.]'" Siruta v. Siruta, 301
Kan. 757, 766, 348 P.3d 549 (2015). The district court may only grant judgment as a
matter of law in favor of a party after "a party has been fully heard on an issue during a
jury trial and the court finds that a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue." K.S.A. 2020 Supp. 60-250(a)(1).
14
Before granting a party judgment as a matter of law, the district court must resolve all
facts and inferences in favor of the party opposing the motion. See, e.g., Deal v. Bowman,
286 Kan. 853, 858, 188 P.3d 941 (2008). If evidence is presented that permits reasonable
jurors to reach different conclusions, the court must deny the motion. Dawson v. BNSF
Railway Co., 309 Kan. 446, 454, 437 P.3d 929 (2019). On appeal, this court will also
review the evidence in the light more favorable to the party against whom the motion is
sought, in this case the Plaintiffs. See Deal, 286 Kan. at 858.
Plaintiffs' negligence claim requires evidence that GPC owed them a duty, GPC
breached the duty, the Plaintiffs suffered an injury, and GPC's breach proximately caused
the Plaintiffs' injuries. See, e.g., D.W. v. Bliss, 279 Kan. 726, 734, 112 P.3d 232 (2005).
Here, the district court determined the Plaintiffs failed to prove the final step—that GPC's
breach caused their injuries. Typically, causation is a question of fact for the jury. See,
e.g., Baker v. City of Garden City, 240 Kan. 554, 557, 731 P.2d 278 (1987). However,
when the facts of causation "are susceptible to only one inference, the question is one of
law and may be disposed of summarily by the court." 240 Kan. at 557.
The only issue on appeal is whether Plaintiffs established causation. This court
will not analyze and will accept as true that Plaintiffs have sufficiently shown that GPC
owed them a duty, that GPC breached that duty, and that Plaintiffs have suffered an
injury.
A. Causation in a Negligence Claim
On appeal, this court must determine whether a reasonable juror could find that
Plaintiffs' exposure to pesticides sprayed by GPC proximately caused their injuries. "The
proximate cause of an injury is the cause that in a natural and continuous sequence,
unbroken by any superseding cause, both produced the injury and was necessary for the
injury. The injury must be the natural and probable consequence of the wrongful act.
15
[Citation omitted.]" Hale v. Brown, 287 Kan. 320, 322, 197 P.3d 483 (2008). In Kansas,
proximate cause has two components, causation in fact and legal causation. Burnette v.
Eubanks, 308 Kan. 838, 846, 425 P.3d 343 (2018).
First, to establish causation in fact sufficient to submit a claim to a jury, "'a
plaintiff must prove a cause-and-effect relationship between a defendant's conduct and
the plaintiff's loss by presenting sufficient evidence from which a jury can conclude that
more likely than not, but for defendant's conduct, the plaintiff's injuries would not have
occurred.'" (Emphasis added.) Burnette, 308 Kan. at 846. Second, to establish legal
causation, the plaintiff must show "'it was foreseeable that the defendant's conduct might
create a risk of harm to the victim and that the result of that conduct and contributing
causes was foreseeable.'" 308 Kan. at 846. Under Kansas law, the proximate cause
requirement is identical to the concept of legal causation as described in the Restatement
of Torts. See 308 Kan. at 848 (citing Restatement [Second] of Torts § 431 [1965]).
A person's conduct is a legal cause of harm if "'(a) [the actor's] conduct is a
substantial factor in bringing about the harm, and (b) there is no rule of law relieving the
actor from liability because of the manner in which [the actor's] negligence has resulted
in the harm.'" Burnette, 308 Kan. at 848 (quoting Restatement [Second] of Torts § 431
[1965]). Here, neither party argues that a rule of law exists relieving GPC of liability.
Therefore, if GPC's actions in spraying pesticides in the Office Building is a "substantial
factor" in Plaintiffs' harm, judgment as a matter of law for Defendants was inappropriate.
Even when two or more causes could cause the harm, a defendant's negligence can still
be found the legal cause of the harm. In cases where "'two forces are actively operating,
one because of the actor's negligence, the other not because of any misconduct on [the
actor's] part, and each of itself is sufficient to bring about harm to another, the actor's
negligence may be found to be a substantial factor in bringing it about.'" 308 Kan. at 848
(quoting Restatement [Second] of Torts § 432[2] [1965]).
16
In Burnette, the heirs and estate of the deceased, Vernon "Joel" Burnette, brought
a medical malpractice action against medical providers alleging that their negligence
caused Burnette's suicide. The plaintiffs claimed Burnette contracted bacterial meningitis
from negligent lumbar epidural steroid injections in 2009 which caused Burnette to
develop a severe pain disorder. The plaintiffs alleged that the pain disorder contributed to
Burnette's death by suicide in 2013. The plaintiffs' experts testified that the medical
negligence contributed to Burnette's suicide. One expert explained that Burnette's pain
disorder "caused Joel to have bipolar symptoms that contributed to his worsening
depression." (Emphasis added.) 308 Kan. at 853. The other expert, who saw the deceased
just once, testified that chronic pain "'can contribute to depression and suicide'" and that
depression "'is probably the most common symptom after pain.'" 308 Kan. at 853. The
expert testified that "'Joel's physical pain contributed to his decision to end his life'" and
the expert believed the pain "'contributed to cause'" his death by suicide. 308 Kan. at 853.
After a trial, the jury returned a verdict for the plaintiffs and the defendants appealed,
challenging whether the plaintiffs established causation between the defendant's earlier
medical treatment in 2009 and Burnette's later suicide in 2013.
The experts in Burnette did not rule out every other cause, nor did they apportion
the percentage of causes, yet the Kansas Supreme Court found that their testimony was
sufficient to submit the causation issue to the jury. 308 Kan. at 856-57. Experts need not
use magic language or establish the tortious conduct was the single cause of the harm—
they merely need to provide an opinion based in fact about whether the identified
negligence contributed to the alleged injury. Expert testimony is sufficient if it establishes
the defendant's negligence contributed to the plaintiff's harm because "their actions had at
least a part in causing [the harm]—either as the sole cause or as one cause that combined
with others to produce the result." 308 Kan. at 856.
Similarly, the Kansas Supreme Court relied on its holding in Burnette when it
found that a causation jury instruction in a medical malpractice case that included the
17
phrase "or contributed to" was not an error, even though the case did not involve
comparative fault. Castleberry v. DeBrot, 308 Kan. 791, 803-04, 424 P.3d 495 (2018). In
Castleberry, the patient suffered a stroke and alleged the primary care physician missed
treatment opportunities to prevent the stroke. The court explained that "[t]he causation
evidence was that treatment within the standard of care probably would have" prevented
the harm, and that testimony was legally sufficient for a jury to establish causation.
(Emphasis added.) 308 Kan. at 804. The expert did not guarantee the missed treatment
opportunities would prevent the harm, nor give a percentage of likelihood.
B. Kuxhausen is Distinguishable from This Case
Defendants heavily rely on Kuxhausen v. Tillman Partners, 40 Kan. App. 2d 930,
197 P.3d 859 (2008), to support their argument that Plaintiffs failed to sufficiently prove
causation. But Kuxhausen is readily distinguishable. Stacy Lee Kuxhausen went to work
on a Monday morning and testified she smelled paint and began to feel ill. She learned
that an epoxy-based paint was applied in the basement of the building on the preceding
Friday and Saturday. Kuxhausen entered the building twice over the next couple of days
and estimated she spent a total of eight hours in the building after the epoxy-based paint
application. Kuxhausen alleged that she suffered from ongoing multi-chemical sensitivity
because of her eight-hour exposure to the epoxy-based paint smell.
At trial, Kuxhausen sought to present expert testimony from three doctors. Dr.
Henry Kanarek, a medical doctor specializing in allergy, asthma, and immunology
treatment, was the plaintiff's primary expert. Dr. Kanarek's expert qualifications were not
in question. Dr. Kanarek physically examined Kuxhausen on a single occasion which
included a discussion of her symptoms and totaled about an hour. Dr. Kanarek also
reviewed tests and reports ordered by other physicians. The tests reviewed and Dr.
Kanarek's physical examination found no physical abnormalities in Kuxhausen. Dr.
Kanarek also reviewed the MSDS for the epoxy-based paint used in the basement of the
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building, but he was unaware if the paint applied in the basement would cause any
chemicals to be present in the air when Kuxhausen entered a different area of the building
more than 24 hours after its application. Dr. Kanarek diagnosed Kuxhausen with
multiple-chemical sensitivity because of exposure to epoxy-based paint based on the
information he reviewed, his observation, and experience.
Kuxhausen also wanted to present testimony of Dr. Maurice Van Strickland, an
allergist and immunologist, who saw Kuxhausen three times for an hour the first visit and
about 15 minutes the subsequent two visits. Dr. Strickland ordered an x-ray of her
sinuses, a pulmonary function test, and a mold sensitivity test. None of these tests
demonstrated an abnormal result or sensitivity. Dr. Strickland diagnosed Kuxhausen with
multiple-chemical sensitivity but did not identify the cause. He did not claim her
condition resulted from exposure to epoxy-based paint. Kuxhausen also sought to
introduce testimony from Dr. Daniel Doornbos, a pulmonologist, who also could not
identify a cause of her condition. Dr. Kanarek was the only expert available for causation
testimony. The district court excluded Dr. Kanarek's expert testimony regarding multiple-
chemical sensitivity because it was not a generally accepted diagnosis, and also excluded
testimony that Kuxhausen's ongoing medical problems were caused by her exposure to
the epoxy-based paint fumes. Kuxhausen appealed.
The Kuxhausen panel found that Dr. Kanarek's testimony was properly excluded
because the multiple-chemical sensitivity diagnosis was not a generally accepted
diagnosis and explained that "Kansas law does not allow for expert opinions drawn from
scientific principles that have not earned general acceptance." 40 Kan. App. 2d at 932.
The panel also found that Dr. Kanarek's testimony was properly excluded because it was
"based on unsupported assumptions or theoretical speculation." 40 Kan. App. 2d at 932.
The Kansas Supreme Court agreed, finding that Dr. Kanarek did state a causation
opinion, but that the opinion lacked factual support. Kuxhausen v. Tillman Partners, 291
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Kan. 314, 319-20, 241 P.3d 75 (2010). Dr. Kanarek admitted the multiple-chemical
sensitivity diagnoses can be abused and that he was not sure how chemical exposure
causes multiple-chemical sensitivity. Dr. Kanarek also testified that his examination of
Kuxhausen and the medical tests revealed no abnormalities in her physical condition.
Because the epoxy-based paint was applied to the basement more than a day before
Kuxhausen entered the building, Dr. Kanarek could not state which chemicals in the paint
remained in the air or at what level at the time of her entry. For these reasons, Dr.
Kanarek's testimony lacked a factual foundation.
The expert testimony and factual bases in Kuxhausen differ from the expert
testimony here. The Plaintiffs here provided far more factual support than Kuxhausen.
First, Kuxhausen alleged she suffered from a medical condition that was not widely
accepted in the medical community. The Kuxhausen panel stated that "most medical
authorities say multiple-chemical sensitivity is not a recognized diagnosis." 40 Kan. App.
2d at 931. Dr. Kanarek even "acknowledged that the precise mechanism by which
exposure to chemicals causes multiple-chemical sensitivity is unknown." 291 Kan. at
319.
Unlike Kuxhausen, the Plaintiffs here suffer from commonly accepted medical
conditions that are known to result from chronic or acute exposure to the pesticides
sprayed in the Office Building. Dr. Goldstein testified that exposure to Orthene can attack
the central nervous system and liver and the MSDS for Tandem states the same. Dr.
Henry testified that both Plaintiffs suffered from neuropathy, which is a condition
resulting from attacks on the nervous system. Dr. Henry testified that the nervous system
controls the brain and spinal cord, which in turn control the nerves, and that the
component ingredients in Orthene can affect nerves. Dr. Henry diagnosed both Plaintiffs
with neuropathy and testified to a reasonable medical certainty that their neuropathy
relates to exposure to the chemicals sprayed by GPC in August 2015. Dr. Henry based
her diagnoses on patient-provided medical histories, research into the causes of the
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patient-reported ailments, and abnormal test results—including toxic core tests, which
include blood and urine tests, and nerve fiber tests. Unlike Kuxhausen, the Plaintiffs here
were diagnosed with a generally, medically accepted condition that is known to
potentially result from exposure to certain toxins contained in the pesticides sprayed in
the Office Building.
Second, Plaintiffs here provided evidence of exposure. The Plaintiffs were present
during, shortly after, and for prolonged periods after the pesticide application, whereas
Kuxhausen was not present for at least 24 hours after the epoxy-based paint application
and was not in the same room, or even on the same floor, as the application. It was
impossible for Kuxhausen's expert to say that Kuxhausen could have come into contact
with the epoxy-based paint itself, any splatter, or the fumes. Contrarily, Najera was in the
same room, right next to the chemicals being sprayed, and Shope arrived right after.
Shope testified she could feel and taste the chemicals in the air. Najera worked in the
application area for hours on the day of the application and both Plaintiffs worked in the
area for several days after its application. Testimony revealed that visitors to the Office
Building commented about the smell. The Office Building smelled so badly that it was
abandoned entirely less than two months after the application. It is also common
knowledge available to a jury that liquid pesticides sprayed in an area can result in
airborne particles and splatter. The MSDS for Orthene Pellets states that applicators
should wear waterproof gloves, socks, closed toe shoes, long-sleeved shirts, and pants
when spraying the material. Plaintiffs also provided testimony regarding the exact
chemicals sprayed and the possible health effects from chronic or acute exposure. Unlike
Kuxhausen, the chemicals at issue and method of exposure—inhalation, touching, and
tasting—were all known by Plaintiffs' expert.
Kuxhausen involved a claim where the plaintiff's alleged harm was not even an
accepted diagnosis within the medical or legal community and there was no evidence
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plaintiff was exposed to a toxin known to cause the controversial diagnosis. Defendants'
reliance on Kuxhausen is misplaced.
i. Plaintiffs Not Required to Remove All Doubt
Plaintiffs must provide competent evidence to demonstrate causation, but they are
not required to prove causation beyond any doubt. Circumstantial evidence is sufficient
to support causation when it "'affords a basis for a reasonable inference by the court or
jury of the occurrence of the fact in issue, although some other inference equally
reasonable might be drawn therefrom. [Citation omitted.]'" Kuxhausen, 291 Kan. at 320.
To put it simply, Plaintiffs need not exclude each and every possible causation of their
injuries so long as competent evidence supports their causation argument. Plaintiffs here
have medical conditions and symptoms consistent with those identified as risks of acute
or chronic exposure to the chemicals applied to the Office Building in August 2015.
In addition to the evidence regarding Plaintiffs' medical conditions, Dr. Goldstein's
testimony regarding potential effects of exposure, the MSDS for the chemicals applied,
and Dr. Henry's diagnosis, there is also evidence that after almost a year and extensive
remediation, remnants of the pesticides at issue remained in the Office Building.
Moreover, the Plaintiffs' symptoms developed close in time to their exposure, which can
be circumstantial evidence for establishing causation. See Burnette, 308 Kan. at 850
(citing Restatement [Second] of Torts § 433 [1965] explaining that temporal proximity
can provide evidence supporting causation). Dr. Henry testified that she could not state
Shope's chemical exposure was the "primary" factor in causing her neuropathy. But such
testimony is not required. The causation evidence "'need not rise to that degree of
certainty which will exclude any and every other reasonable conclusion.'" Kuxhausen,
291 Kan. at 320. The medical expert is also not required to use magic or special wording,
such as reasonable medical certainty when testifying regarding causation. See Nunez v.
Wilson, 211 Kan. 443, 445-46, 507 P.2d 329 (1973).
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The district court also noted some of the distinctions between Kuxhausen and this
case and stated its reliance on Munoz v. Clark, 41 Kan. App. 2d 56, 199 P.3d 1283(2009), which is incorrectly referred to in the transcript as Nunez v. Clark. In Munoz, the
plaintiff had laproscopic surgery to remove her ovaries, but the postsurgery pathology
report revealed that the tissue removed did not include ovary tissue. The surgeon believed
he removed the plaintiff's ovaries and did not reconcile the pathology report with his
belief. The plaintiff claimed the surgeon's negligent failure to reconcile the pathology
report caused her ovaries to remain, which caused her prolonged and increased pelvic
pain. The plaintiff provided testimony from her treating physician that the plaintiff's
"pelvic pain came from her endometriomas and adhesions." 41 Kan. App. 2d at 60. The
physician expert defined endometriomas as "ovaries containing endometrial tissues." 41
Kan. App. 2d at 60. After a jury verdict in favor of the plaintiff, the defendant appealed
alleging plaintiff provided no "expert evidence proving his deviation from the standards
of professional conduct as the cause of [the plaintiff's] subsequent medical complaints."
41 Kan. App. 2d at 60.
On appeal, the panel agreed that the plaintiff needed expert testimony regarding
causation on whether the physician's failure to reconcile the pathology report and remove
plaintiff's ovaries caused her medical condition. The trial testimony revealed that
although Munoz suffered from several gynecological conditions before and after her
surgery that were unrelated to the failed surgery, she suffered from chronic pelvic pain
postsurgery that was not present presurgery. The treating physician diagnosed this pain
resulting from "ovaries containing endometrial tissues," which a panel of this court found
could allow a jury to conclude that the surgeon's failure to remove the plaintiff's ovaries
caused her medical condition. The expert did not testify that the surgeon's failure to
reconcile the pathology report caused the plaintiff's injury—but the testimony provided
evidence "from which a jury could find a verdict in favor of [the plaintiff]." 41 Kan. App.
2d at 65.
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It is unclear which part of Munoz the district court relied upon for its grant of
Defendants' motion, but Munoz is yet another example of Kansas courts permitting a jury
to determine causation when evidence presented could support a verdict about which
reasonable minds could disagree.
ii. Plaintiffs' Evidence is More Than Post Hoc, Ergo Propter Hoc.
The expert testimony here is not post hoc, ergo propter hoc reasoning. Dr. Henry's
and Dr. Goldstein's testimony was not merely based on pure speculation, nor the mere
premise that because one event occurred before another, the first must have caused the
second. The pesticides used are known, the exposure is known, the potential effects of
exposure are known, the Plaintiffs' medical conditions and diagnoses are known, and the
physical exams and lab work could support the medical diagnoses. This is different than
Kuxhausen, where the plaintiff was not present when the epoxy-based paint was applied,
did not touch, taste, or feel the paint, was never in the same room as the painted surface,
and no one could testify which, if any, chemicals from the paint might remain in the air
more than 24 hours after application. In other words, Kuxhausen's alleged exposure to the
epoxy-based paint fumes or chemicals was purely speculative. Here, there is no
speculation that Plaintiffs were in the same location during, right after, and for prolonged
periods after liquid chemicals were sprayed onto surfaces and into the air of the Office
Building. Their exposure is not speculative; and to require them to list the weight or
volume of exposure would preclude the submission of causation to the jury in almost
every exposure case.
Defendants' counsel argues that the Plaintiffs must prove the exact amount of
exposure. If plaintiffs claiming negligence were required to prove the exact amount of
poison, salmonella, radiation, or other toxin to which they were exposed, defendants
could avoid all liability simply through failure to keep accurate records. In the case of a
plaintiff working with toxins known to cause illness upon inhalation, under Defendants'
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argument that plaintiff would need to prove the exact amount inhaled just to submit a
case to the jury. What about a toddler who drinks from a bottle of poison? Under
Defendants' argument, the plaintiff would have to prove the exact amount consumed
before submitting the case to the jury. Let us assume the toddler did not take a
measurement and the plaintiff forgot the amount in the bottle. In all such cases, a
defendant could avoid a trial and total liability by alleging the amount of toxin ingested,
inhaled, touched, or otherwise introduced was not known and thus causation could not be
submitted to the jury. Such a result defies logic. Defendants are free to provide evidence,
which might be compelling, contradicting Plaintiffs' exposure allegations. But at some
point in the fact-finding, it must be left up to the jury to determine the sufficiency of the
evidence. See Deal, 286 Kan. at 859 ("In the vast majority of cases, the question of
negligence is a factual determination for the jury, not a legal question for the court.").
Kuxhausen stands for the proposition that, among other things, Plaintiffs must
allege they suffered an accepted diagnosis and identify the alleged toxins and method of
exposure—not that they must state the exact quantity of the toxins the Plaintiffs' inhaled,
touched, or ingested or the exact amount Defendant sprayed. Moreover, Plaintiffs'
exposure was shown through circumstantial evidence of the witness testimony about
what they saw, smelled, and tasted, how they felt, the extensive mitigation efforts
conducted to remediate the smell and physical effects, the closure of the Office Building,
and the chemical tests performed almost a year later. Defendants argue for a nearly
impossible standard, inconsistent with Kansas law on causation, that would permit
Defendants to avoid liability through inept recordkeeping.
Submission of this case to the jury does not mean Plaintiffs have proven their
claims but that they have provided enough evidence to present a question of fact for the
jury. Defendants seek affirmation of the district court's decision, citing to numerous flaws
in Plaintiffs' claims—including abundant evidence that Plaintiffs' injuries, if any, resulted
from other causes. Defendants' arguments might very well persuade a reasonable jury,
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but that does not entitle them to judgment as a matter of law. Causation is appropriately
submitted to the jury where credible evidence, which includes circumstantial evidence,
exists about which reasonable minds could disagree.
Accordingly, this court reverses the district court's judgment as a matter of law in
favor of Defendants and remands this case to the district court for further proceedings.
II. MOTION TO ADD CLAIM FOR PUNITIVE DAMAGES
Plaintiffs also allege that the district court erred in denying their pretrial motions
to amend their petitions to add a claim for punitive damages. Prior to trial, the district
court denied both motions to amend finding neither had shown a probability they could
sustain their burden to show GPC acted wantonly. However, the district court left the
door open to revisit this issue. In its pretrial order, the district court stated that Plaintiffs
can "renew their motion for punitive damages depending on evidence discovered or
presented during or before trial." Because this case is remanded for a new trial, this court
cannot know what, if any, evidence presented may support a claim for punitive damages
and cannot reach the issue in this appeal.
CONCLUSION
When there is competent evidence upon which reasonable minds could differ, it is
the jury's responsibility to determine causation. The district court's order granting
Defendants' judgment as a matter of law is reversed. Additionally, Plaintiffs' claim
regarding their motions to amend to include punitive damages is not ripe for
consideration at this time.
Reversed and remanded for a new trial.
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