Toxic Torts: Excluding Expert Testimony in Kansas – A Multiple Chemical Sensitivity Case

Kuxhausen v. Tillman Partners, LP, 219 Kan. 314, 241 P.3d 75 (Kan. Oct. 15, 2010)

The Kansas Supreme Court recently revisited the admissibility of expert testimony in a toxic tort case.  The high court affirmed the exclusion of an expert’s opinion that the plaintiff was suffering from multiple chemical sensitivities (MCS), which allegedly resulted from exposure to paint fumes.  It held the expert’s testimony was properly excluded by the lower court because it was speculative and lacked a sufficient evidentiary basis.

The plaintiff, Stacey Kuxhausen, was an employee of an accounting firm that had an office in a building owned by our client.  Over a long holiday weekend, an employee of our client (who was responsible for the building’s maintenance) applied epoxy-based paints in the basement.  When the plaintiff eventually returned to the office building a few days later, she claimed she smelled paint and immediately began to feel sick.  The plaintiff subsequently sued the building owner, alleging that she was suffering from MCS caused by the exposure to the paint fumes.  MCS is a controversial permanent or long term multi-system affliction (i.e. affects the eyes, throat, lungs, skin, etc.) that results in an ongoing sensitivity to a variety of household chemicals that are routinely encountered in every day life.  Here, the plaintiff claimed her MCS drastically impacted the quality of her life and her ability to earn a living.  She sought to recover $2.5 million in damages from our client, the building owner.

After the close of discovery, we filed a motion for summary judgment on behalf of the building owner.   In this toxic tort case, we successfully argued that the plaintiff required expert testimony to establish causation, meaning she would need to offer an expert’s opinion to prove the exposure to the paint caused the plaintiff’s alleged illness.  Thus, the focus of our motion for summary judgment was to attack the lack of foundation and lack of factual support of the plaintiff’s proposed experts’ opinions.

Plaintiff identified five experts (three physicians, an environmental engineer/industrial hygienist, and an economist); however, only one of the plaintiff’s experts, an allergist and immunologist, was prepared to testify that plaintiff’s illness was caused by her exposure to paint fumes in the office building.  The proposed expert had been in practice for 13 years, during which time he had diagnosed more than 100 patients with the controversial MCS diagnosis.  At his deposition, he acknowledged that the diagnosis can be subject to abuse and, further, that the mechanism by which exposure to chemicals causes MCS is medically unknown.

This proposed medical expert had conducted one 15-minute examination of the plaintiff, which showed no abnormalities, reviewed her medical history, and reviewed other relevant medical records.  Additionally, he reviewed the Material Safety Data Sheet for the epoxy-based paint at issue.  Through his deposition, we were able to establish that this physician did not have any data or information regarding what paint, chemical, or contaminant was actually in the air when the plaintiff was in the office the days following the painting.  For example, he had no information about the level of any particular chemical in the paint that would remain in the air for a particular duration.  Again, recognizing the patent absence of factual support for the physician’s ultimate causation opinion that our client’s alleged lingering paint fumes from the basement caused the plaintiff to suffer a long term severe illness, we proceeded with our motion for summary judgment, requesting the district court grant judgment in favor of our client and dismiss the plaintiff’s case.

In Kansas, the admissibility of expert testimony is subject to K.S.A. 60-456(b), which requires that expert opinions be limited to those opinions the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.  Here, the district court granted our motion, concluding that the proposed expert’s opinion was insufficiently based in fact to supply the necessary causation evidence.  Specifically, it found the proposed expert’s causation opinion would not be admissible at trial under K.S.A. 60-456(b) and, therefore, the plaintiff could not establish an essential element of her case.  The plaintiff appealed.

The review of this evidentiary decision by the district court was subject to an abuse of discretion standard by both the Kansas Court of Appeals and, ultimately, the Kansas Supreme Court, who accepted the plaintiff’s petition for review.  The Kansas high court affirmed the lower court’s exclusion of the proposed expert’s testimony, holding the proposed expert causation opinion was based on nothing more than “post hoc ergo propter hoc logic: the symptoms follow the exposure; therefore, they must be due to it.”  The Kansas Supreme Court rejected this reasoning and found that the proposed expert’s opinion was based on nothing more than mere speculation.

Ultimately, on behalf of our client, we were able to convince the Kansas Supreme Court that the plaintiff’s evidence afforded no reasonable basis for the proposed expert’s conclusion that the plaintiff’s symptoms more likely than not resulted from the building owner’s conduct.  The Kansas Supreme Court held the physician’s causation opinion was totally lacking in factual basis and affirmed the dismissal of the plaintiff’s action.

This October 2010 decision of the Kansas Supreme Court has already been included in a number of scholarly treatises and reported in both national and international tort and products liability newsletters as one of the noteworthy decisions issued in 2010 in the areas of product liability and toxic torts.  This opinion should reinforce and strengthen the argument for the inadmissibility of expert opinions based on speculation, supposition, and conjecture.  Additionally, it serves as a reminder of the necessity to always keep in mind the basic and essential elements of the claim.  Here, it was causation.  The attack on this essential element at the summary judgment level meant judgment for our client and shielded the client from an unnecessary trial, along with the savings of time and costly expenses associated with the same.

By: Jackie Sexton

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About the Author

Jacqueline Sexton

Jackie Sexton primarily focuses her law practice in the areas of employment litigation and counseling on behalf of employers. For the past 15 years,... More about Jacqueline Sexton

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