Bolson v. Williams

BONNY M. BOLSON, Appellant, v. HAYDEN G. WILLIAMS and DONITA C. WILLIAMS, individually and on behalf ofthe marital community composed thereof; WILLIAMS & SCHLOER, CPA'S, P.S., aWashington professional service corporation, Respondents.

No. 71365-5-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

FILED: May 27, 2014

UNPUBLISHED OPINION

APPELWICK, J. — Bolson sued her former employer, W&S, alleging that W&S's negligent cleanup of the office after a flood resulted in mold growth, which proximately caused her sarcoidosis. On W&S's motion for summary judgment, the trial court dismissed Bolson's claims for lack of medical causation. We affirm in part, reverse in part, and remand.

FACTS

Respondent, Williams & Schloer, CPA's, Inc. (W&S), is a small accounting firm located in Puyallup, Washington, near the Puyallup River. W&S is owned and managed by Respondents Hayden Williams and Donita Williams, who are husband and wife, and their daughter Tina Schloer. W&S employed Appellant Bonny Bolson as a tax accountant and enrolled agent from January 28, 2003 until December 3, 2010

In 1985, Bolson was diagnosed with a "very high allergic response to mold and mites" after she experienced unusually intense headaches and fatigue. Her doctor advised her to avoid additional exposure. Bolson moved to a new home, because herolder rental house was triggering her mold allergy. In February 2005, Bolson was again exposed to mold in her home. She experienced watery eyes, fatigue, and facial swelling as a result. She again had to move to a new home. On January 20, 2008, medical imaging of Bolson's lungs showed nothing abnormal.

On January 7, 2009, a severe storm caused massive flooding near the Puyallup River. Floodwaters rose to the first floor of the W&S office building.

The day after the flood, W&S initiated cleanup and repair of the flooded office building. W&S rented box fans and dehumidifiers, opened up the offices for ventilation, tore out all the carpeting and padding, and either dried or threw away all wet personal property. The subfloor was checked for wetness and damage, and a contractor was brought in to remove and dispose of all insulation. Bleach and other cleaning products were applied during the process.

The flood occurred during a busy tax season, so W&S set up a temporary workspace in the back of the building. However, several employees, including Bolson, worked from home during the cleanup. Bolson came to the office to get files or discuss projects with Schloer for an hour or two every couple of days. Bolson's own records indicate that she was present in the office every few days to return client calls and review files.

During the cleanup, there was a damp smell from the moisture, a smell of bleach and sawdust, and a lot of noise. Employees complained to W&S about the smell and noise of the repair work. W&S acknowledged that it received complaints from Bolson and other employees about coughing, headaches, and irritated eyes during the cleanup.

Concerned about the musty smell, a few W&S employees purchased two petri dish mold tests at the local hardware store. They put one petri dish in the parking lot as a control and one in the main part of the office. The one in the office showed a variety of mold spots and the one in the parking lot had one or two mold spots. W&S did not send the mold tests in for lab analysis. One employee remembered that W&S did not want the mold tests to be analyzed, because remediation was still ongoing.

In mid-January 2009, Bolson began experiencing flu-like symptoms, coughing, and fatigue. By February, she also began experiencing backaches and started seeing a chiropractor. In March 2009, Bolson was screened for a kidney infection, which came back negative. She continued to experience flu-like symptoms and allergies until July 2009, when she returned to the doctor. The doctors performed an x-ray and computed tomography (CT) scan on Bolson, which revealed abnormal scarring in her lungs. After biopsying Bolson's lungs, her doctors diagnosed her with sarcoidosis—an inflammatory disease that can affect any organ in the body, but most commonly affects the lungs.

In September 2009, Bolson's sarcoidosis was determined to be clinically stable. Upon evaluating Bolson and reviewing three studies on sarcoidosis, Dr. Louis Lim believed that "there is insufficient evidence to suggest that her sarcoid was the result of her work exposure on a more probable than not basis. It is possible that the environment may have contributed to the development of her illness . . . although the time frame would be unusually rapid." A colleague of Dr. Lim's agreed with this conclusion.

On December 9, 2010, Bolson filed a workers' compensation claim with the Washington Department of Labor and Industries (L&I), alleging sarcoidosis due to workplace exposure. L&I rejected Bolson's claim, concluding that she had not suffered an industrial injury or occupational disease required for workers' compensation benefits.

On February 29, 2012, by amended complaint, Bolson sued W&S for negligence, premises liability, negligent infliction of emotional distress (NIED), and intentional infliction of emotional distress (outrage). She alleged that W&S's negligence in cleaning up the office resulted in mold growth, which proximately caused her sarcoidosis.

On July 5, 2012, W&S moved for summary judgment. W&S argued that Bolson's claims should be dismissed, because she had not produced any expert testimony on medical causation. W&S also argued that Bolson should be collaterally estopped from pursuing claims dependent on medical causation, because she already litigated and lost the issue in her workers' compensation claim.

In her opposition to W&S's motion for summary judgment, Bolson attached a declaration from Jack Thrasher, Ph.D. Thrasher has extensive experience, training, and education in the fields of toxicology and immunotoxicology. In his declaration, he explained that toxicology is the study of the adverse effects of chemicals on living organisms, including humans. He defined immunotoxicology as the study of adverse effects on the immune system resulting from exposure to physical factors, chemicals, biological materials, and medical devices. Thrasher has specific expertise in toxicology and immunotoxicology as they apply to mold, fungi, and bacteria resulting from water intrusion in indoor environments.

Thrasher reviewed Bolson's case file, including the parties' declarations and Bolson's medical records. He explained that floodwater carries "microbes (including bacteria and mold), silt, and other organic matter into structures and create[s] black water conditions." As such, he believed that "[p]otentially dangerous and pathogenic mold and bacteria were more likely than not present in the water-damaged interior" of the W&S building. He further explained that W&S's use of box fans constantly circulated sawdust containing "mold, bacteria, pathogen by-products, and other particulates."

Thrasher stated that, because of Bolson's preexisting mold allergy, she should not have been allowed in the office during remediation. He concluded:

28. It is my professional opinion that Ms. Bolson's Sarcoidosis was, on a more probable than not basis, caused by her exposure to mold, its by-products, and other environmental contaminants that were present in the W&S office immediately after the January 2009 flood.

29. Further, even if Ms. Bolson had pre-existing conditions or illnesses, it is my opinion, on a more probable than not basis, that her exposure to the contaminated work environment exacerbated the injuries she suffered and continues to suffer.

Bolson argued that Thrasher's opinion was sufficient expert testimony on the issue of medical causation.

Bolson also moved to strike and exclude any evidence of her L&I claim, and moved to seal any related evidence already submitted by W&S. W&S opposed Bolson's motion to strike the L&I records.

In reply to Bolson's opposition to summary judgment, W&S asserted that Thrasher's opinion was insufficient to meet the standards for expert testimony linking a specific toxic exposure to a specific medical condition. W&S pointed out that Thrasherdid not examine Bolson, did not inspect the W&S building, and did not make any finding about specific mold that might lead to sarcoidosis. W&S argued that Bolson failed to establish a factual and scientific link between her exposure to an airborne toxin at the W&S office and her sarcoidosis.

At a hearing on W&S's motion for summary judgment, the trial court orally granted Bolson's motion to exclude the L&I records and stated that it would not rely on those records. The trial court reasoned that L&I records are discoverable for review by the parties, but not admissible for any dispositive motion.

The trial court also orally granted summary judgment for lack of medical causation. The trial court explained:

It's not sufficient to have someone who is not a medical doctor telling the jury to draw conclusions on this sort of thing. There has to be a connection done by medical testimony as far as I read the law.

I understand a reviewing court may disagree with me on that, but my reading of the reviewing courts repeatedly is that that is the requirement.

Now, there are exceptions, and I appreciate that. Doctor takes off the wrong leg, you don't need a doctor telling him he took off the wrong leg; that's kind of a famous case. But this case here does require someone to draw the connection, the proximate cause between the two on a more likely than not basis. And it's not present in this case that I could find. And Dr. Thrasher doesn't have the skill. He's not the expert to do that, irrespective of his conclusions. Therefore, summary judgment will be granted.

On August 3, 2012, the trial court entered a written order granting W&S's motion for summary judgment. The court noted that it did not consider the L&I files. The trial court also denied Bolson's subsequent motion for...