Moses v. Bojangles Hauling, LLC

1

Allison L. Moses, Appellant, v. Bojangles Hauling, LLC, and Allen Perry, Appellees.

No. 125,889

Court of Appeals of Kansas

September 1, 2023

NOT DESIGNATED FOR PUBLICATION

Appeal from Johnson District Court; JAMES F. VANO, judge.

Jennifer E. McElderry, of House Packard McElderry LLC, of Liberty, Missouri, and Ryan M. McElderry, pro hac vice, of the same firm, for appellant.

Bryan E. Mouber and Kevin D. Weakley, of Wallace Saunders, of Overland Park, for appellees.

Before ATCHESON, P.J., MALONE and PICKERING, JJ.

MEMORANDUM OPINION

PER CURIAM:

Plaintiff Allison L. Moses appeals the Johnson County District Court's decision granting summary judgment to Defendants Bojangles Hauling, LLC and Allen Perry because she failed to present evidence that would allow a reasonable jury to find a causal link between the parties' motor vehicle collision in April 2019 and her complex migraine syndrome medically diagnosed nearly 18 months later. Despite the unusually ragged procedural progression of this civil action, we find no reversible error in the ruling and affirm the judgment for the defendants.

FACTUAL AND PROCEDURAL HISTORY

We first outline the standards of review governing summary judgment motions in both the district court and on appeal because they shape how the factual record should be considered. See Bouton v. Byers, 50 Kan.App.2d 34 36-37, 321 P.3d 780 (2014). The common core test is well-known and regularly recited. The district court must view the properly presented evidence in the most favorable light for the party opposing the motion, here Moses, and give that party the benefit of every reasonable inference that might be drawn from the evidence. Taking the evidence in that manner, the moving party needs to demonstrate the absence of any genuine dispute over the material facts and, in turn, an entitlement to judgment as a matter of law. Trear v Chamberlain, 308 Kan. 932, 935-36, 425 P.3d 297 (2018); Miller v. Hutchinson Regional Med. Center, 63 Kan.App.2d 57, 59, 525 P.3d 10, rev. denied 317 Kan. (May 5, 2023). As we recently explained, the party requesting summary judgment "[b]asically . . . submits no reasonable construction of the evidence would permit a jury to return a verdict for the opposing party." 63 Kan.App.2d at 59.

An appellate court applies the same standard in reviewing a challenge to the district court's entry of summary judgment. So we examine the facts in the best light for Moses. Because neither we nor the district court weighs the evidence generally or resolves credibility disputes, the decision to grant summary judgment functionally presents a question of law we assess without deference to the district court. See Adams v. Board of Sedgwick County Comm'rs, 289 Kan. 577, 584, 214 P.3d 1173 (2009); Miller, 63 Kan.App.2d at 59.

We now examine the historical facts associated with the collision and Moses' claimed injury in the best light for her although at least some of those circumstances are disputed. We then outline the procedural history of this litigation depicting an atypical journey to judgment.

During an afternoon in April 2019, Moses had stopped her car for a red light at an intersection in south Johnson County when a cement mixer owned by Bojangles Hauling rearended her. Moses was treated and released that same afternoon at the emergency room of an Olathe hospital. Moses has alleged that Perry drove the cement mixer; the identity of the driver has been disputed but is immaterial to this appeal. For purposes of the appeal, Bojangles Hauling is legally responsible for any negligence on the driver's part that caused compensable harm to Moses.

In September 2020, a nurse practitioner referred Moses to a neurology group after she reported briefly experiencing symptoms consistent with a transient stroke. Moses saw Dr. Joseph Wend, M.D., a neurological resident, and Dr. Frederick Sachen, M.D., a neurologist with decades of experience. Dr. Wend diagnosed Moses' immediate symptoms as a migraine and concluded she likely has what is sometimes called complex migraine syndrome. Dr. Sachen concurred in the diagnosis. In a later deposition, Dr. Wend explained that severe migraines often mimic symptoms associated with strokes.

Moses filed this action in April 2021, about 10 days before the statute of limitations would have run, and the defendants duly answered denying liability. During discovery, Moses stated she had not retained any expert witnesses but intended to rely on Dr. Wend and Dr. Sachen, as her treating physicians, to provide medical testimony. In a deposition the lawyers for the defendants took as discovery closed, Dr. Wend declined to draw a causal connection between the 2019 collision and Moses' complex migraine diagnosis. The defendants filed a motion for summary judgment and a short supporting memorandum anchored in Dr. Wend's deposition testimony asserting Moses could not establish the collision as the proximate cause of her migraines.

In piecing together the appellate record, we gather Moses attempted to electronically file a memorandum in opposition to summary judgment with various exhibits and did serve a copy on defense counsel. The clerk of the district court apparently rejected the filing because of the way the memorandum and exhibits were packaged and sent an email to Moses' lawyers informing them of the deficiency. The lawyers seem to have overlooked the email and were unaware their opposition memorandum had not been filed until the district court informed them during oral argument on the summary judgment motion.

In the meantime, the lawyers for the defendants submitted a reply to the opposition memorandum that had never actually been filed. And Moses' lawyers took the deposition of Dr. Sachen to be used by agreement of the parties in place of his in-person testimony at trial.

During argument on the summary judgment motion, one of Moses' lawyers alluded to Dr. Sachen's testimony and information in the errant opposition memorandum. Toward the end of the hearing, the lawyer asked the district court for permission to file the opposition to the summary judgment motion. The district court labeled the request "untimely" and neither explicitly granted nor denied it in so many words. Moses' lawyers did not pursue the point further, so the memorandum and accompanying exhibits are not part of the record either in the district court or on appeal.

At the end of the hearing, the district court found that the factual recitation the defendants offered in support of their summary judgment motion had not been controverted (since the memorandum in opposition had never been filed) and those facts showed a lack of proximate cause between the collision and Moses' complex migraines. The district court, therefore, granted the motion, ventured the ruling "may cover all of [the] damage claims," and ordered entry of judgment for the defendants. None of the lawyers suggested the summary judgment ruling left unresolved claims. The district court entered a short written ruling granting judgment to the defendants and against Moses about a month later.

Moses then filed a motion to alter or amend the judgment under K.S.A. 2022 Supp. 60-259(f) with a supporting memorandum and exhibits, including excerpts from Dr. Sachen's deposition. She argued that Dr. Sachen's testimony established a causal link between the collision and her migraine headaches and, at the very least, showed a disputed issue of material fact on causation. The defendants essentially responded that Dr. Sachen's testimony was legally insufficient. As part of her reply, Moses filed Dr. Sachen's full deposition. After reviewing the written submissions, the district court entered a two-page memorandum decision denying the motion to alter or amend, finding the testimony to be insufficient as a matter of law primarily because Dr. Sachen was unaware that Moses had been injured in motor vehicle mishap in 2017, about two years before the collision at issue here. The district court also rejected Moses' argument that jurors reasonably could find causation without expert medical testimony. Moses has appealed.

LEGAL ANALYSIS

We have already outlined our standard of review in considering a challenge to the entry of a summary judgment. We turn to the governing substantive legal principles. In a personal injury action based on negligence, a plaintiff must prove: (1) The defendant owed him or her a duty of care; (2) a breach of the duty; (3) a physical injury or some other legally recognized harm; and (4) a causal connection between the breach and the harm. Estate of Randolph v. City of Wichita, 57 Kan.App.2d 686, 698, 459 P.3d 802 (2020). Here, the defendants sought summary judgment based solely on the lack of causation. Typically, causation entails a question of fact for a jury to decide. Kudlacik v. Johnny's Shawnee Inc., 309 Kan. 788, 793, 440 P.3d 576 (2019); Estate of Randolph, 57 Kan.App.2d at 698; Estate of Belden v. Brown County, 46 Kan.App.2d 247, Syl. ¶ 13, 261 P.3d 943 (2011). But if a plaintiff cannot muster evidence suggesting a reasonable basis for a jury to find a legally sufficient causal link between the claimed injury and the claimed breach, a district court may properly grant summary judgment to the defendant for that reason. 46 Kan.App.2d 247, Syl. ¶ 13.

Proximate cause-the legal term for the required connection between the breach of duty and the injury-has two components. First there must be "causation in fact," essentially meaning that but for (or absent) the wrongful conduct the injury would not have happened. Kudlacik, 309 Kan. at 793-94. The second component is "legal causation" requiring that the injury be a reasonably foreseeable consequence of the conduct. 309 Kan. at 794. In any given case, the...