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IN THE SUPREME COURT OF THE STATE OF KANSAS No. 98,442 STACY LEE KUXHAUSEN, Appellant, v. TILLMAN PARTNERS, L.P., Appellee.

SYLLABUS BY THE COURT

1. An expert witness must have a factual basis for his or her opinions in order to separate them from mere speculation.

2. It is necessary that the facts upon which an expert witness relies for his or her opinions should afford a reasonably accurate basis for his or her conclusions as distinguished from mere guess or conjecture. Expert witnesses should confine their opinions to relevant matters which are certain or probable, not those which are merely possible.

3. Expert opinions must be based upon reasonable probabilities rather than mere speculation or conjecture if they are to be admissible in establishing causation.

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4. Review of a trial court's decision applying K.S.A. 60-456(b) is governed by an abuse of discretion standard. The trial court will be reversed for abuse of discretion on the admissibility of evidence only when no reasonable person would agree with the decision of the trial court.

5. In order for circumstantial evidence to be sufficient to sustain a finding in a civil case, such evidence need not rise to that degree of certainty which will exclude any and every other reasonable conclusion. It suffices that such evidence affords a basis for a reasonable inference by the court or jury of the occurrence of the fact in issue, although some other inference equally reasonable might be drawn therefrom.

6. An injured party's right to recover is limited to when the injury is a direct and proximate result of a defendant's negligence. Proximate cause is cause which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the injury would not have occurred, the injury being the natural and probable consequences of the wrongful act.

7. In an action for negligence, to satisfy the plaintiff's burden of proof on the causation element, the plaintiff must produce evidence that affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result.

Review of the judgment of the Court of Appeals in 40 Kan. App. 2d 930, 197 P.3d 859 (2009). Appeal from Riley District Court; DAVID L. STUTZMAN, judge. Opinion filed October 15, 2010.

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Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

James L. Wisler, of Wisler Law Offices, of Lawrence, argued the cause and was on the briefs for appellant.

Jacqueline M. Sexton, of Foland, Wickens, Eisfelder, Roper & Hofer, P.C., of Kansas City, Missouri, argued the cause, and Joseph J. Roper, of the same firm, was with her on the briefs for appellee.

Derek S. Casey, of Prochaska, Giroux and Howell, of Wichita, was on the brief for amicus curiae Kansas Association for Justice.

The opinion of the court was delivered by

ROSEN, J.: Stacy Lee Kuxhausen seeks review of a decision of the Court of Appeals affirming the district court's summary judgment order dismissing her personal injury action against Tillman Partners, L.P. See Kuxhausen v. Tillman Partners, 40 Kan. App. 2d 930, 197 P.3d 859 (2009). Kuxhausen contends that the district court (1) should have allowed expert testimony that she suffers from multiple-chemical sensitivity, a controversial diagnosis, as a result of Tillman Partners' actions and (2) erred in concluding that she had no admissible expert testimony on causation and dismissing her action against the defendants. Because our decision on the second issue is dispositive of this appeal, we do not reach the first. The Court of Appeals opinion sets forth the facts and its findings as follows:

"When Stacy Kuxhausen reported for work at an accounting firm on a Monday morning in Manhattan, Kansas, she smelled paint and began to feel ill within minutes of entering the building. She said that her eyes burned, that she started to get a sore throat, and that she had to take deep breaths to get enough air. She later learned that epoxy-based

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paints had been applied in the basement of the building on the preceding Friday and Saturday. Kuxhausen came back to the building twice more over the next few days but stayed for only a few hours each time. She estimated that she spent a total of 8 hours in the building after it had been painted. "Kuxhausen claims that she now has an ongoing sensitivity to a variety of chemicals she encounters in her daily life. She has sued the building owners, claiming that all of this is due to her exposure to paint fumes on either that Monday morning in 2004 or on the two later visits. She sought damages of about $2.5 million. "In support of her claim, Kuxhausen presented a medical doctor's testimony that she suffers from what that doctor and some others call multiple-chemical sensitivity. But most medical authorities say that multiple-chemical sensitivity is not a recognized diagnosis, and the district court ruled that the expert testimony Kuxhausen sought to present wasn't sufficiently reliable to be admitted in a Kansas court. And without expert testimony, Kuxhausen has no claim because it's certainly not self-evident to a layperson that a relatively brief exposure to paint fumes may lead to permanent sensitivity to a variety of chemicals. "The district court's ruling that expert testimony was needed for Kuxhausen to proceed with her claim was not appealed. So Kuxhausen's claim rests upon the admissibility of her expert's testimony. Specifically, we must determine whether evidence about multiple-chemical sensitivity is admissible under Kansas law and whether, aside from that specific diagnosis, the district court properly excluded the doctor's testimony that Kuxhausen's ongoing problems were caused by her exposure to epoxy-paint fumes. Because Kansas law does not allow for expert opinions drawn from scientific principles that have not earned general acceptance, the district court properly excluded expert testimony that Kuxhausen suffers from multiple-chemical sensitivity, a diagnosis that is not generally accepted. In addition, because Kansas law authorizes a district judge to exclude expert testimony that is based on unsupported assumptions or theoretical speculation, the district court properly excluded expert testimony that Kuxhausen's ongoing problems with exposure to chemicals were caused by her brief exposure to epoxy-paint fumes." Kuxhausen, 40 Kan. App. 2d at 931-32.

Kuxhausen proposed to present the testimony of three doctors in support of her claim. Chief among these was the testimony of Dr. Henry Kanarek. Dr. Kanarek went to
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medical school in Mexico City, then returned to the United States for a 3-year pediatric residency at Kansas University Medical Center, after which he completed a 2-year allergy fellowship at Children's Mercy Hospital and Kansas University Medical Center in adult and pediatric allergy, asthma, and immunology. He has been in practice for 13 years, during which time he has diagnosed more than 100 patients with multiple-chemical sensitivity.

Dr. Kanarek saw Kuxhausen on October 10, 2006. He conducted a physical examination of her, including an evaluation of her eyes, nose, pharynx, neck, heart, lungs, and skin. The physical examination took approximately 15 minutes. Overall, Dr. Kanarek spent approximately an hour with Kuxhausen. He also reviewed some additional reports and results of tests that had been performed on her by other doctors. His physical examination and all of the information he received from previous tests indicated no abnormalities. He reviewed a material safety data sheet (MSDS) for the paint used in the office building, but he had no information or data regarding what paint, chemical, or contaminant was actually in the air when Kuxhausen was in the office following the painting. He also had no information regarding whether the health concerns noted on the MSDS related to aerosolized paint or offgassing from the paint, no information indicating a level of exposure required to generate eye or skin irritation, and no information about the level of any particular chemical in the paint that would remain in the air for a particular duration. Based on the information he reviewed, his experience, and his observations of her, Dr. Kanarek diagnosed Kuxhausen with multiple-chemical sensitivity and concluded that her illness was due to her exposure to the epoxy paint.

Kuxhausen also proposed to present the testimony of two other doctors: Dr. Maurice Van Strickland, an allergist and immunologist, and Dr. Daniel Doornbos, a clinical pulmonologist. Dr. Strickland saw Kuxhausen three times. He spent about an

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hour with her on the first visit and 15 minutes on each of the other visits. His x-ray of her sinuses and a pulmonary function test were normal. She also tested negative for a potential sensitivity to mold. Dr. Strickland ultimately concluded that Kuxhausen had multiple-chemical sensitivity, but he could not state with any certainty that her condition was due to her exposure to the epoxy paint. Dr. Doornbos testified that, as a pulmonologist, not a toxicologist, he did not have the necessary experience to make a conclusion about exposure to epoxy paint and any adverse health effects. Thus, without the causation testimony of Dr. Kanarek, Kuxhausen's case would fail.

The admissibility of expert testimony in Kansas courts is subject to K.S.A. 60456(b):

"If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as 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."

"An expert must have a factual basis for his or her opinions in order to separate them from mere speculation." State v. Papen, 274 Kan. 149, 159, 50 P.3d 37 (2002).

"It is necessary that the facts upon which an expert relies for his or her opinion should afford a reasonably accurate basis for his or her conclusions as distinguished from mere guess or conjecture. Expert witnesses should confine their opinions to relevant matters which are certain or probable, not those which are merely possible." State v. Struzik, 269 Kan. 95, Syl.

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