Krishack, E. v. Milton Hershey School , 2016 Pa. Super. 180 ( 2016 )

J-A14041-16
2016 PA Super 180EDWARD R. KRISHACK, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
MILTON HERSHEY SCHOOL,
Appellee No. 1408 MDA 2015
Appeal from the Order Entered July 23, 2015
in the Court of Common Pleas of Dauphin County
Civil Division at No.: 2013-CV-08243-CV
BEFORE: BOWES, J., OTT, J., and PLATT, J.*
OPINION BY PLATT, J.: FILED AUGUST 15, 2016
Appellant, Edward R. Krishack, appeals from the trial court’s order
granting summary judgment in favor of Appellee, Milton Hershey School
(MHS), in this negligence action. We affirm.
We take the following background from our review of the certified
record. From 1948 through 1953, Appellant resided at MHS, which provides
free education and a home for children “from families of low income, limited
resources, and social need[.]” (Amended Complaint, 10/22/13, at
unnumbered page 1).1 While Appellant was at MHS, the students lived in
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*
Retired Senior Judge assigned to the Superior Court.
1
Appellant originally filed his action against MHS in Washington County on
April 5, 2013. However, the Washington County Court of Common Pleas
(Footnote Continued Next Page)
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farm homes with house parents and, in addition to attending school, they
performed farm chores, including putting up hay and cleaning the chicken
coop. (See id. at unnumbered pages 3-5). The children did their chores in
the mornings before school, and upon returning home after school. (See
Official Handbook for MHS House Parents, at 37).
After leaving MHS in 1953, Appellant lived at an unrelated
Pennsylvania farm for three weeks, where he also performed chores such as
milking, and cleaning up after, cows. (See Appellant’s Deposition, 6/27/13,
at 21-22). Thereafter, Appellant lived with a foster family in Pennsylvania
until his graduation from high school in 1955. (See id. at 23). After
graduating, Appellant lived in Ohio, where he worked in construction
performing general labor such as raking and shoveling dirt. (See id. at 24,
61). Appellant then lived in several locations throughout the United States
before returning to Ohio, where he resided from 1961 through 2005. (See
Appellant’s Answers to Interrogatories, at 3-4). While in Ohio, Appellant
purchased his first horse in 1969; and he owned and worked with horses at
dirt race tracks, until 2005. (See id. at 8; Appellant’s Deposition, at 41, 45,
51-52).
In 1998, Appellant sought treatment from pulmonologist, Dr. Randall
Harris, for emphysema resulting from his “long-standing tobacco abuse.”
_______________________
(Footnote Continued)
transferred the case to Dauphin County on September 19, 2013, due to its
lack of jurisdiction.
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(Deposition of Dr. Randall Harris, 1/07/14, at 16-17). Appellant was sixty-
one years old at the time, and had “an extensive smoking history[,]” which
included smoking one-and-a-half packs a day for approximately forty years,
beginning at the age of eighteen. (Dr. Harris Medical Record for Appellant,
7/13/98, at unnumbered page 1; see also Expert Report of Dr. David
Laman, 9/11/14, at unnumbered page 1; Appellant’s Deposition, at 142-44).
While treating Appellant for emphysema, Dr. Harris diagnosed him with an
old granuloma, or stable calcified deposit, detected on his lung in a 2001 x-
ray. (See Deposition of Dr. Randall Harris, at 37-38). Dr. Harris noted that
there were no symptoms associated with the stable calcified deposits, and
that no treatment was necessary. (See id. at 38; see also id. at 41 (“It’s
stable. It’s calcified. It’s chronic.”)). The calcified deposit resulted from a
history of interstitial fibrosis, for which Dr. Harris did not know the cause.
(See id. at 44).
Twelve years later, in 2013, Appellant filed a complaint against MHS
alleging that he “suffers from old granulomatous [disease] consistent with
old fungal-related histoplasmosis.”2 (Amended Complaint, at unnumbered
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2
Histoplasma capsulatum fungus causes histoplasmosis, which is commonly
found in the major river valleys of the United States, including the Ohio
River, and the eastern portion of the United States, including Pennsylvania.
(See Affidavit of David Laman, M.D., 2/09/15, at 3; Expert Report of David
F. Goldsmith, PhD, 9/01/14, at 4). The fungus grows well in soils that are
high in nitrogen, and bird fecal matter can be a source for its growth. (See
Expert Report of David F. Goldsmith, PhD, at 4). According to Dr. Harris,
(Footnote Continued Next Page)
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page 5). Specifically, Appellant maintains that his exposure to “hay dust
and farm related excreta” as a result of his performance of farm-related
chores as an MHS student from 1948 until 1953, resulted in his old
granulomatous disease. (Id. at unnumbered page 6; see id. at 5).
Appellant filed an amended complaint on April 5, 2013. MHS filed an answer
and new matter on November 4, 2013, and a motion for summary judgment
on May 9, 2014. MHS argued that Appellant’s complaint was barred by the
statute of limitations. The court denied the motion on August 7, 2014.
Thereafter, the parties conducted extensive discovery that included
interrogatories, depositions, and expert reports. On January 15, 2015, MHS
filed a motion for summary judgment in which it maintained that “Appellant
failed to provide any evidence that the fungus that causes histoplasmosis
was ever present at [MHS], much less when he was a student.” (MHS Brief,
at 5) (citing MHS Motion for Summary Judgment, 1/15/15). The court heard
argument on the motion on April 7, 2015, and granted it on July 23, 2015,
on the basis advanced by MHS, that Appellant failed to present any evidence
that the Histoplasma capsulatum fungus ever existed at MHS. (See Trial
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(Footnote Continued)
histoplasmosis is the leading cause of granulomatous disease in Ohio
residents. (See Deposition of Dr. Harris, at 24).
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Court Opinion, 7/28/15, at unnumbered pages 1, 4). Appellant timely
appealed.3
Appellant presents two questions for the Court’s review:
I. Did the trial court err in granting [MHS’s] summary
judgment motion by disregarding the expert reports and
affidavit, a part of the record evidence, which conclude the
extreme exposures while at [MHS] resulted in Appellant
experiencing symptoms which were a response to H. capsulatum
fungus exposure thereby raising a genuine issue of material fact
as to whether Appellant’s exposures at [MHS] caused his
pulmonary injury/illness?
II. Did the trial court err when it determined that the opinions
expressed in Appellant’s experts’ reports were not competent
and were based on speculation and conjecture?
(Appellant’s Brief, at 4) (unnecessary capitalization omitted).4
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3
Appellant filed a timely statement of errors complained on appeal on
September 1, 2015, pursuant to the trial court’s order. See Pa.R.A.P.
1925(b). The court filed an opinion on September 3, 2015, in which it relied
on the reasons stated in its July 28, 2015 opinion. See Pa.R.A.P. 1925(a).
4
Although Appellant alleges that he raises two questions for our review, we
will address them together because they both challenge the trial court’s
decision to grant MHS’s motion for summary judgment. In fact, in violation
of Rule 2119(a), Appellant himself combines the two issues under the first
heading in the argument section of his brief, “there is sufficient evidence in
the record to raise a genuine issue of material fact as to whether
[Appellant’s] heavy and frequent exposures at [MHS] caused his injuries.”
(Appellant’s Brief, at 15) (most capitalization omitted); see also Pa.R.A.P.
2119(a). Under the second heading in the argument section, Appellant
factually distinguishes the cases relied upon by the trial court. (See
Appellant’s Brief, at 28-35). Even assuming arguendo that some of the
cases relied upon by the trial court were factually distinguishable, as we
discuss in the body of this decision, the trial court properly found that
summary judgment was appropriate for Appellant’s failure to establish a
genuine issue of material fact regarding proximate causation.
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Our standard of review is well-settled:
Our standard of review of an order granting summary
judgment requires us to determine whether the trial court
abused its discretion or committed an error of law[,] and our
scope of review is plenary. We view the record in the light most
favorable to the nonmoving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved
against the moving party. Only where there is no genuine issue
as to any material fact and it is clear that the moving party is
entitled to a judgment as a matter of law will summary
judgment be entered.
* * *
. . . [F]ailure of a nonmoving party to adduce sufficient evidence
on an issue essential to his case and on which he bears the
burden of proof establishes the entitlement of the moving party
to judgment as a matter of law.
Rodriguez v. Kravco Simon Co., 111 A.3d 1191, 1193 (Pa. Super. 2015)
(citation omitted).
In this case, Appellant maintains that the trial court improperly
entered summary judgment because it “erred in determining that Dr.
Laman’s opinion is based on mere speculation and conjecture[]” where he
employed “simple deductive reasoning to opine that [Appellant] contracted
histoplasmosis while at [MHS.]” (Appellant’s Brief, at 15, 18). We disagree.
This Court has long-observed that:
To prove their negligence claim, [p]laintiffs[] [are]
required to establish: a legally recognized duty or obligation
owed them by [defendant]; a breach of that duty; a causal
connection between the breach of duty and the resulting injury;
and actual loss or damage suffered by plaintiffs. Even with proof
of both breach of duty as prescribed under statute and the
occurrence of injury, therefore, [plaintiffs are] still obligated to
show the two were linked by causation.
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To prove causation, a demonstration that the breach of
duty was both the proximate cause and actual cause of injury
[is] required. It is not sufficient . . . that a negligent act may be
viewed, in retrospect, to have been one of the happenings in the
series of events leading up to an injury. Even if the requirement
of actual causation has been satisfied, there remains the issue of
proximate or legal cause. . . .
Proximate causation is defined as a wrongful act which was
a substantial factor in bringing about the plaintiff’s harm. A
determination of proximate or legal causation therefore
essentially regards whether the alleged negligence was so
remote that as a matter of law, the defendant cannot be held
legally responsible for the subsequent harm.
Eckroth v. Penn. Elec., Inc., 12 A.3d 422, 427-28 (Pa. Super. 2010),
appeal denied, 21 A.3d 678 (Pa. 2011) (citations and quotation marks
omitted). Further:
A plaintiff cannot survive summary judgment when mere
speculation would be required for the jury to find in plaintiff’s
favor. A jury is not permitted to find that it was a defendant’s
[negligence] that caused the plaintiff’s injury based solely upon
speculation and conjecture; there must be evidence upon which
logically its conclusion must be based. In fact, the trial court has
a duty to prevent questions from going to the jury which would
require it to reach a verdict based on conjecture, surmise, guess
or speculation. Additionally, a party is not entitled to an
inference of fact that amounts merely to a guess or conjecture.
Krauss v. Trane U.S. Inc., 104 A.3d 556, 568 (Pa. Super. 2014) (citations
and quotation marks omitted).
In the case before us, the trial court observed:
[Appellant] asserts that, at MHS, he was required to work
in a commercial farming environment where he was exposed to
extreme amounts of dangerous agriculture-related dust and
particulates without respiratory protection. . . .
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* * *
. . . [Appellant] presents reports of experts, namely David
Laman, M.D., who is a board certified pulmonologist and David
F. Goldsmith MSPH, PhD, who is an occupational and
environmental epidemiologist. These reports adequately opine
to a reasonable degree of certainty that histoplasmosis is caused
by exposure to H. capsulatum soil fungus. Furthermore, both of
these experts opine to a reasonable degree of certainty that the
H. capsulatum soil fungus can be found with and among bird
feces, especially in chicken coops.
Expert testimony is incompetent if it lacks an adequate
basis in fact. [See] Gillingham v. Consol Energy, Inc.,[] 51
A.3d 841, 849 ([Pa. Super.] 2012)[, appeal denied, 75 A.3d
1282 (Pa. 2013)]. An opinion based on mere possibilities,
conjecture or surmise is, therefore, not competent. [See i]d.
The expert’s assumptions must be based upon facts that the jury
would be warranted in finding from the evidence. [See i]d.
According to [Appellant’s] experts’ reports, Histoplasmosis
is only caused by exposure to H. capsulatum fungus. The
missing link is that [Appellant] has not shown that the H.
capsulatum fungus was present at MHS when [he] was at the
school or even that this particular fungus was ever present at
the school. Neither Dr. Laman nor Dr. Goldsmith have provided
any factual basis for their assertions that H. capsulatium fungus
was present at MHS while [Appellant] was attending and
performing farm chores or at any other time. Rather, both
experts make a speculative assumption that the fungus must
have been present at MHS while [Appellant] resided there
because [he] developed histoplasmosis. Dr. Laman opines that
chicken coops have been identified as a source of the H.
capsulatum fungus, but does not opine that this fungus is
present in all chicken coops, or even that it is present in the
majority of chicken coops. Neither expert performed any tests
of the soil at MHS. Additionally, [Appellant] has not identified
any other person or persons with whom [he] attended MHS who
has developed histoplasmosis. If this case were to go to a jury,
the jury would have no factual evidence upon which to find that
[Appellant’s] histoplasmosis was caused by his work at [] MHS.
Thus, the jury would be asked to make a decision based upon
mere conjecture and speculation that the fungus must have
existed there because [Appellant] developed histoplasmosis
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approximately sixty years after he was no longer performing
farm chores at MHS. This type of conjecture is insufficient to
allow a jury to decide [Appellant’s] claims.
(Trial Ct. Op., at unnumbered pages 2-4). We agree with the trial court that
Appellant failed to prove proximate causation. See Eckroth, supra at 427-
28.
Additionally, we are not legally persuaded by Appellant’s argument
that Dr. Laman’s use of “simple deductive reasoning,” and logic, established
that he “developed histoplasmosis while at [MHS].” (Appellant’s Brief, at
15; see id. at 16-28). Specifically, Appellant claims that “Dr. Laman relied
upon his professional experience which includes a [forty-plus] year career in
the field of respiratory/pulmonary medicine and familiarity with, and working
knowledge of, a wide array of relevant literature in the field.” (Id. at 18)
(record citation omitted). This argument is not compelling.
The evidence in this case is that Appellant was a student at MHS for
approximately five years, from 1948 to 1953, during which time he
performed farm chores before and after school that included baling hay and
cleaning out a chicken coop. (See Amended Complaint, at 1, 4-5); (Official
Handbook for MHS House Parents, at 37). Over the approximately sixty
years’ since that time, Appellant has performed similar tasks at other farms,
worked construction as a general laborer, which required the raking and
shoveling of soil, and owned horses that he trained at a dirt track. (See
Appellant’s Deposition, at 21-22, 41, 45, 51-52, 61); (Appellant’s Answers to
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Interrogatories, at 3-4, 8). For the majority of those sixty years, Appellant
lived throughout Ohio and Pennsylvania, both of which are known to have
soil containing H. capsulatum fungus. (See Affidavit of David Laman, M.D.,
at 3; Expert Report of David F. Goldsmith, PhD, at 4). H. capsulatum, which
can be found in the soil of a chicken coop, causes histoplasmosis, but there
was no evidence that the fungus is in all chicken coops or that it was present
at MHS at any time. (See Affidavit of David Laman, M.D., at 3; Expert
Report of David F. Goldsmith, PhD, at 4; Deposition of Dr. Harris, at 24).
In 2001, while undergoing therapy for emphysema caused by
approximately forty years of heavy smoking, Appellant was diagnosed with
unrelated old granulomatous disease, or calcified deposits on his lungs.
(See Dr. Harris Medical Record for Appellant, at unnumbered page 1;
Deposition of Dr. Harris, at 37-38; Expert Report of Dr. Laman, at
unnumbered page 1). Dr. Harris, Appellant’s treating pulmonologist, could
not say that histoplasmosis resulted in the old granulomatous disease. (See
Deposition of Dr. Harris, at 42-44).
Based on these facts, Dr. Laman’s opinion that, because Appellant had
histoplasmosis at some unidentified point in his life, the soil at MHS over
sixty years ago must have contained H. capsulatum, and that this caused his
old granulomatous disease, requires more than “simple deductive
reasoning,” but instead required impermissible “speculation and conjecture.”
Krauss, supra at 568; (Appellant’s Brief, at 15). Even assuming arguendo,
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that Appellant established genuine issues of material fact about whether
MHS breached a duty to him by failing to provide him with respiratory
protection, and that such beach resulted in damages,5 Appellant utterly
failed to prove proximate causation. See Eckroth, supra at 427-28.
Therefore, we conclude that the trial court properly granted the motion for
summary judgment of MHS. See Rodriguez, supra at 1193.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2016
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5
Because the trial court granted the motion for summary judgment on the
basis of Appellant’s inability to establish proximate causation, we do not
address the other factors necessary for a negligence claim. See Eckroth,
supra at 427-28.
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