[No. 25973-1-III. Division Three. May 22, 2008.]
[1] Judgment Summary Judgment Review Role of Appellate Court. An appellate court reviews a summary judgment de novo, performing the same inquiry as the trial court under CR 56(c) and considering the facts submitted and the reasonable inferences therefrom in the light most favorable to the nonmoving party. [2] Appeal Disposition of Cause Affirmance on Other Grounds In General. An appellate court may affirm a judgment on any basis supported by the record. [3] Judgment Summary Judgment Burden on Moving Party Absence of Factual Issue. A party moving for summary judgment has the burden of showing the absence of a genuine issue as to any material fact. [4] Judgment Summary Judgment Issues of Fact Material Fact What Constitutes. For purposes of a summary judgment proceeding, a "material fact" is one upon which the outcome of the litigation depends. [5] Judgment Summary Judgment Burden on Nonmoving Party Averment of Specific Facts Prima Facie Case Elements of Claim. When a defendant moving for summary judgment shows that there is no dispute as to any issue of material fact, the burden shifts to the plaintiff to establish the existence of an element material to its case. [6] Products Liability Causation Necessity Strict Liability. A strict liability product liability claim requires proof of proximate cause. [7] Products Liability Causation Necessity Negligence. A product liability negligence claim requires proof of proximate cause. [8] Torts Causation Proximate Cause What Constitutes In General. A proximate cause of an injury is a cause that, in a direct sequence, unbroken by any new independent cause, produces the injury complained of and without which the injury would not have occurred. [9] Torts Causation Proximate Cause What Constitutes Elements. Proximate cause is composed of two elements: cause in fact and legal causation. Cause in fact refers to the "but for" consequences of an act, or the physical connection between an act and the resulting injury. Legal causation rests on policy considerations as to how far the consequences of a defendant's acts should extend; it involves a determination of whether liability should attach as a matter of law even if the proof establishes cause in fact. Both elements must be satisfied to establish proximate cause. [10] Torts Causation Proximate Cause Question of Law or Fact Undisputed Facts. While the issue of proximate cause ordinarily is a question for the jury, when the facts are undisputed and only one reasonable conclusion is possible and the inferences therefrom are plain and incapable of reasonable doubt or difference of opinion, proximate cause may be a question of law for the court. [11] Torts Causation Proximate Cause Question of Law or Fact Summary Judgment. The issue of proximate cause may be determined by summary judgment if the facts are undisputed and only one reasonable conclusion is possible. [12] Negligence Proximate Cause Substantial Factor Test Applicability In General. The substantial factor test of proximate cause is used only in the narrow class of cases in which the "but for" test of causation is inapplicable. [13] Negligence Proximate Cause Substantial Factor Test Applicability Types of Situations. In general, the substantial factor test of proximate cause may be appropriate in three situations: (1) when either one of two causes would have produced the identical harm, thus making it impossible for the plaintiff to prove the "but for" test; (2) when a similar, but not identical, result would have followed without the defendant's act; and (3) when one defendant has made a clearly proven but quite insignificant contribution to the result. [14] Negligence Proximate Cause Substantial Factor Test Applicability Types of Cases. The substantial factor test of proximate cause may be applied in only four types of cases: (1) discrimination or unfair employment practice cases; (2) securities cases; (3) toxic tort cases, including multisupplier asbestos injury cases; and (4) medical malpractice cases where the malpractice reduces a patient's chance of survival. [15] Food Products Liability Contaminated Food Proximate Cause Substantial Factor Test Applicability. The substantial factor test of proximate cause does not apply to a negligence or strict liability product liability action involving a contaminated food product. [16] Judgment Summary Judgment Burden on Moving Party Alternative Means. A defendant moving for summary judgment has the initial burden of showing either (1) that there is no genuine issue of material fact or, alternatively, (2) that the plaintiff lacks competent evidence to support an essential element of the cause of action. [17] Negligence Proximate Cause Proof Medical Testimony Necessity. Expert medical testimony is necessary to establish causation in a personal injury action if the nature of the injury involves obscure medical factors that are beyond an ordinary layperson's knowledge, necessitating speculation in making a finding. [18] Products Liability Causation Proof Expert Testimony Medical Opinion Summary Judgment Shifting Burdens of Production. In a product liability action for an injury involving obscure medical factors that are beyond an ordinary layperson's knowledge, where the defendant moves for summary judgment and shows that the plaintiff lacks admissible expert testimony to prove proximate cause, the burden shifts to the plaintiff to present competent expert medical testimony establishing that the alleged injury was proximately caused by the defendant's actions. If the plaintiff fails to come forward with the requisite expert medical testimony demonstrating causation to a reasonable degree of medical certainty, summary judgment for the defendant is appropriate. [19] Products Liability Causation Proof Expert Testimony Medical Opinion Sufficiency Test. Medical testimony as to a causal relationship between an act and an injury involving obscure medical factors that are beyond an ordinary layperson's knowledge must demonstrate that the act "probably" or "more likely than not" caused the injury. Testimony that the act "might have," "could have," or "possibly did" cause the injury is insufficient. [20] Products Liability Causation Proof Expert Testimony Medical Opinion Sufficiency Basis. Medical testimony offered to prove the proximate cause of an injury involving obscure medical factors that are beyond an ordinary layperson's knowledge must be based on the facts of the case and not on speculation or conjecture. [21] Judgment Summary Judgment Burden on Nonmoving Party Averment of Specific Facts Elements of Claim Missing Element. In a summary judgment proceeding, where proof of an essential element of the plaintiff's claim is lacking, the defendant is entitled to summary judgment. Nature of Action: A husband and wife who became ill after being exposed to salmonella at a hotel restaurant banquet sought damages from the hotel and others for strict product liability and negligence. The wife claimed that her exposure to salmonella caused her to develop Reiter's syndrome, an arthritic condition. Superior Court: The Superior Court for Asotin County, No. 05-2-00079-7, William D. Acey, J., on February 12, 2007, entered summary judgment in favor of the defendants. Court of Appeals: Holding that the plaintiffs failed to present sufficient medical evidence to establish a casual link between the wife's salmonella exposure and her arthritic condition, the court affirms the judgment. Scott M. Chapman-, for appellants. Daniel E. Stowe- (of Law Office of Bohrnsen & Stowe, PS), for respondents. Ά1 KULIK, A.C.J. In March 2003, John and Lisa Fabrique attended a banquet at a hotel restaurant and then became ill from salmonella exposure. Ms. Fabrique alleged that she developed Reiter's syndrome, or reactive arthritis, from the salmonella exposure. Ms. Fabrique's primary treating physician, rheumatologist Dr. Gary Craig, diagnosed Ms. Fabrique with psoriatic arthritis but could not opine that the salmonella exposure resulted in that condition. The court granted Choice Hotels's motion for summary judgment, concluding that Ms. Fabrique lacked sufficient evidence to establish the causation element of her negligence and strict liability claim. On appeal, Ms. Fabrique contends the trial court erred by finding that there was no evidence of a causal relationship between Ms. Fabrique's salmonella exposure and her arthritic condition. Ά2 We agree with the trial court that Ms. Fabrique failed to present medical evidence establishing a causal link between the contaminated food and her injuries. Accordingly, we affirm. FACTS Ά3 On March 6, 2003, John and Lisa Fabrique attended a company party hosted at Bogey's Restaurant, located at the Quality Inn in Clarkston, Washington. After eating the food served at the banquet, the Fabriques became ill. The Asotin County Health Department determined that the egg wash used in the fried ice cream served that evening was improperly prepared and that several of the banquet attendees, including the Fabriques, contracted salmonella as a result. Choice Hotels International, Inc.a franchisor of the Quality Inn and Clarkson Development Group Limited Partnershipowned and operated the hotel and restaurant. Ά4 In April 2003, Ms. Fabrique visited her family physician, complaining of left foot pain and swelling. Ms. Fabrique was ultimately referred to Dr. Gary Craig, a rheumatologist, in December. Dr. Craig has been Ms. Fabrique's primary treating physician with respect to her arthritic complaints. Dr. Craig diagnosed Ms. Fabrique with psoriatic arthritis, a type of spondyloarthropathy. Spondyloarthropathies are a family of long-term inflammatory diseases of the joints, which include Reiter's syndrome and psoriatic arthritis. Spondyloarthropathies are characterized by pain, swelling, and inflammation of the joints, psoriasis, inflammation of the eye and mouth, skin rashes or sores, bowel inflammation, and urinary tract inflammation. Ά5 On March 7, 2005, the Fabriques brought this action to recover damages related to their salmonella exposure under theories of strict liability, pursuant to the Washington product liability act (WPLA), Ά6 In its answer, Choice Hotels admitted that the Asotin County Health Department traced the salmonella outbreak to food served by its restaurant and further admitted that some of the banquet attendees tested positive for the salmonella bacteria. Choice Hotels acknowledged that the WPLA applied, as there was no dispute that the fried ice cream dessert at issue in this case is considered a "product" under the WPLA. Ά7 On October 13, 2006, Choice Hotels moved for summary judgment on the ground that there was no genuine issue of material fact related to "(1) the viability of Mr. Fabrique's claims, and (2) proximate cause of certain complaints being alleged by Mrs. Fabrique." Clerk's Papers (CP) at 13. Choice Hotels presented evidence that Mr. Fabrique's prior settlement with the defendant's insurance carrier in June 2003 barred his claims in the present litigation. Choice Hotels further argued that there was no medical evidence to support proximate causation or the fact that Ms. Fabrique's particular diagnosis was in any way related to the salmonella exposure. The Fabriques did not file a response. Ά8 The trial court granted Choice Hotels's motion, finding that there was "no evidence of a causal relationship between the plaintiff Lisa Fabrique's Salmonella exposure and her arthritis diagnosis and/or her arthritic complaints." CP at 66. The trial court also made two rulings at the summary judgment hearing: (1) Ms. Fabrique did not satisfy her burden to come forward with admissible evidence creating a genuine issue of material fact as to causation because Choice Hotels's CR 35 examination report could not be used for that purpose and (2) Mr. Fabrique's claims should be dismissed due to the prior settlement and release. Ά9 On March 13, 2007, the Fabriques appealed the order granting summary judgment. Mr. Fabrique's claim has not been pursued on appeal. The sole issue is whether there was a genuine issue of material fact as to causation or, more specifically, whether Ms. Fabrique's arthritic condition was proximately caused by her exposure to salmonella. ANALYSIS Ά11 Summary judgment is proper if the record before the court shows that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Ruff v. County of King, 125 Wn.2d 697, 703, 887 P.2d 886 (1995). An appellate court may affirm on any basis supported by the record and the moving party bears the burden of showing the absence of a material issue of fact. Redding v. Va. Mason Med. Ctr., 75 Wn. App. 424, 426, 878 P.2d 483 (1994). A material fact is one upon which the outcome of the litigation depends. Barrie v. Hosts of Am., Inc., 94 Wn.2d 640, 642, 618 P.2d 96 (1980). Once the moving party has established that there is no dispute as to any issue of material fact, the burden shifts to the nonmoving party to establish the existence of an element material to its case. Kahn, 90 Wn. App. at 117. Ά12 Summary judgment was granted in favor of Choice Hotels because there was "no evidence of a causal relationship between the plaintiff Lisa Fabrique's Salmonella exposure and her arthritis diagnosis and/or her arthritic complaints." CP at 66. On appeal, Ms. Fabrique contends that Dr. Craig's deposition testimony, in which he opines that her arthritic complaints were either the result of a preexisting condition or salmonella exposure, should not have been used by the trial court as a basis for granting summary judgment. She further argues that Dr. Craig's deposition, as well as her own, created a genuine issue of material fact, making summary judgment inappropriate. Ms. Fabrique's arguments are without merit. Proximate cause is an essential element of both theories. Negligence requires duty, breach and resultant injury; and the breach of duty must be shown to be a proximate cause of the injury. To make out a prima facie case in strict liability, a plaintiff must establish (1) that there was a defect in the product which existed when it left the manufacturer's hands; (2) that the defect was not known to the user; (3) that the defect rendered the product unreasonably dangerous; and (4) that the defect was the proximate cause of the injury. (Footnote omitted.) Ά17 In the present case, Ms. Fabrique urges this court to apply the substantial factor test of proximate cause, under which a defendant's conduct is a proximate cause of another's injury if that conduct is a substantial factor in bringing about the harm. WPI 15.02 cmt. at 187-89. [W]e are not disposed to substitute the "materially contributed" or "substantial factor" test either as a definition of or a substitute for "proximate cause" (as defined in our cases) in determining what is actionable negligence. Id. Subsequently, in Daugert v. Pappas, the court indicated that the substantial factor test of proximate cause may be appropriate in three situations: First, the test is used where either one of two causes would have produced the identical harm, thus making it impossible for plaintiff to prove the "but for" test. In such cases, it is quite clear that each cause has played so important a part in producing the result that responsibility should be imposed on it. Second, the test is used where a similar, but not identical, result would have followed without the defendant's act. Third, the test is used where one defendant has made a clearly proven but quite insignificant contribution to the result. Daugert v. Pappas, 104 Wn.2d 254, 262, 704 P.2d 600 (1985). The court in Daugert further stated that "[s]uch a change in the test for cause in fact is normally justified only when a plaintiff is unable to show that one event alone was the cause of the injury." Id. Ά22 We next consider whether the trial court properly granted summary judgment on the ground that Ms. Fabrique failed to present evidence of causation. Ά24 After the defendant meets this initial burden by showing that the plaintiff lacks admissible expert testimony to support his or her case, the burden shifts to the plaintiff to present competent medical expert testimony establishing that the alleged injury was proximately caused by the defendant's actions. Seybold, 105 Wn. App. at 676. If the plaintiff fails to come forward with the requisite expert medical testimony, summary judgment is appropriate. Berger v. Sonneland, 144 Wn.2d 91, 111-12, 26 P.3d 257 (2001). Ά25 In the present case, Choice Hotels moved for summary judgment, arguing that Ms. Fabrique's complaint should be dismissed on the ground that she lacked any admissible evidence that her arthritic complaints were proximately caused by Choice Hotels's alleged negligence. Choice Hotels's argument focused on the deposition testimony of Dr. Craig. Choice Hotels argued that the testimony revealed that Dr. Craig could not render an opinion regarding the arthritis causation within a reasonable degree of medical certainty and, as a result, Ms. Fabrique lacked sufficient evidence to support an essential element of her claim. Ά26 Ms. Fabrique responded to the motion by offering as evidence the same deposition testimony from Dr. Craig and Choice Hotels's CR 35 medical examination report. She also submitted Choice Hotels's responses to interrogatories and requests for production and her own deposition testimony. Significantly, Ms. Fabrique failed to submit a response setting forth any argument or authority opposing summary judgment. Further, despite being afforded additional time for discovery, Ms. Fabrique also failed to present a medical expert to address the proximate cause issue raised in Choice Hotels's summary judgment materials. The sole issue before this court is whether Dr. Craig's testimony was sufficient to establish a causal link between Ms. Fabrique's salmonella exposure and her arthritic condition. Ά27 Dr. Craig could not provide a medical opinion regarding the cause of Ms. Fabrique's arthritic condition within a reasonable degree of medical certainty. In his deposition, Dr. Craig testified that Ms. Fabrique had a family history of psoriasis and a genetic predisposition to inflammatory joint disease. Dr. Craig also reported that Ms. Fabrique had a personal history of psoriasis, predating the salmonella exposure, which the doctor noted "was quite compatible with psoriatic arthritis." CP at 114. Ά28 Most significantly, when Dr. Craig was directly asked for his medical opinion as to whether Ms. Fabrique's arthritic condition was related to her exposure to salmonella, Dr. Craig responded: A. Unfortunately, as I think you've already sensed, it's very difficult, if not impossible, to untie [the question of causation]. You're looking at a patient who is almost certainly . . . genetically prone to a type of arthritis and has two individual triggers, either of which could have triggered this . . . . [A]s a physician, if you ask me to say which it was, I cannot tell you which it was. Q. You can't tell me which it was to cause the psoriatic arthritis in this patient? A. I can't tell you whether she had psoriasis and no arthritis and her arthritis was triggered by salmonella . . . . A. or if this was psoriatic arthritis and the salmonella had nothing to do with that. I cannot, based on any scientific information that I have available, tell you that. . . . . A. . . . [A] rheumatologist in this situation will say, "This patient has a spondyloarthropathy; hard to know what started it." She had potentially two triggers and is treated the same irrespective of what the triggers are. CP at 41-42 (emphasis added). Ά29 The above testimony establishes that Ms. Fabrique's medical expert could not provide an opinion as to the proximate cause of her arthritic condition. Medical testimony as to a causal relationship between the negligent act and the subsequent injuries or condition complained of must demonstrate " 'that the injury "probably" or "more likely than not" caused the subsequent condition, rather than that the accident or injury "might have," "could have," or "possibly did" cause the subsequent condition.' " Ugolini v. States Marine Lines, 71 Wn.2d 404, 407, 429 P.2d 213 (1967) (quoting Orcutt v. Spokane County, 58 Wn.2d 846, 853, 364 P.2d 1102 (1961)). Importantly, medical testimony must be based on the facts of the case and not on speculation or conjecture. Seybold, 105 Wn. App. at 677. Finally, such testimony must also be based upon a reasonable degree of medical certainty. McLaughlin v. Cooke, 112 Wn.2d 829, 836, 774 P.2d 1171 (1989). Ά31 Summary judgment in favor of a defendant is appropriate if the plaintiff fails to establish a prima facie case concerning an essential element of his or her claim. Seybold, 105 Wn. App. at 676. In light of Ms. Fabrique's failure to establish proximate causation, summary judgment was properly granted. Ά32 We affirm. BROWN, J., and THOMPSON, J. PRO TEM., concur.