Beverly Ann Gladney v. London Square Apartment Homes LLC

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
June 13, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2021AP1454 Cir. Ct. No. 2019CV8293

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT I

BEVERLY ANN GLADNEY,

PLAINTIFF-APPELLANT,

V.

LONDON SQUARE APARTMENT HOMES LLC AND
GORMAN & COMPANY, INC.,

DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Milwaukee County:
DAVID C. SWANSON, Judge. Affirmed.

Before Brash, C.J., Dugan and White, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).
No. 2021AP1454

¶1 PER CURIAM. Beverly Ann Gladney, pro se, appeals from an
order of the circuit court that granted summary judgment to the defendants-
respondents and dismissed her claim. The circuit court determined that Gladney
needed an expert witness to support her personal injury claim, and because she had
not named one, there was insufficient proof to survive summary judgment. We
affirm the order.

¶2 Gladney “became a new tenant” at Lindsay Commons Apartments in
March 2016.1 She “had not quite moved in, when after a short period of spending
time at the apartment, [she] become [sic] increasingly ill.” In June 2016, Gladney
alleges, “there was black toxic mold discovered” in her apartment, which caused
her to suffer “severe swelling in body/extremities, cognitive issues, respiratory
distress, neurological problems, etc.” Gladney also claimed the mold caused
property damage, requiring her “to dispose of a lot of [her] material possessions
(clothing, etc.) and food items[.]” She acknowledged that “[o]nce management
became aware of the mold issue … they cleaned up the mold,” but said that
management subsequently “denied that [mold] was ever present.” On August 31,
2016, Gladney received a “termination of lease agreement/notice to vacate.”2

¶3 On October 28, 2019, Gladney filed the initial complaint in this case,
seeking $10,000 for property damage, $200,000 in punitive damages, $200,000 in
compensatory damages, $750,000 for emotional distress and mental anguish, and

1
Neither the pleadings nor the briefs specify the relationship between Lindsay Commons
Apartment and the named defendants, London Square Apartment Homes LLC and Gorman &
Company, Inc., but it appears the companies are management and ownership, respectively.
2
There is no allegation that this was a retaliatory eviction; Gladney was apparently in
violation of a term of the lease that required her to live in the apartment and use it as her
exclusive residence, although Gladney claimed the apartment was uninhabitable due to the mold.

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$3 million for pain and suffering. In an amended complaint filed in November
2020, Gladney requested damages of “$300 million, for pain and suffering
(physical, mental, emotional [and] psychological), property damage, punitive
damages, compensatory damages, mental anguish and emotional distress.”

¶4 A scheduling order entered on September 24, 2020, set deadlines by
which parties were required to disclose their witnesses, including experts.
Gladney’s deadline was January 8, 2021, and she identified only lay witnesses.
Her witness list specifically stated, “Currently, I do not have an expert witness
who will give an expert opinion at trial.”

¶5 On April 9, 2021, defendants moved for summary judgment. The
motion asserted that this is a “toxic tort” case, for which expert testimony on
causation is required, and because Gladney had not named any experts, her claim
should be dismissed. The motion also asserted that any claim for damages that
were incurred prior to October 28, 2016, were barred by the three-year statute of
limitations. The parties briefed the motion, and the circuit court held a hearing on
June 24, 2021. After hearing the parties’ arguments, the circuit court granted the
motion “for the reasons stated on the record”3 and dismissed Gladney’s claims.
Gladney appeals.

¶6 “We review summary judgment motions de novo, applying the same
methodology as the circuit court.” Brown v. Schwartz, 2012 WI App 66, ¶5, 342
Wis. 2d 236, 815 N.W.2d 719. Summary judgment is appropriate “if the
pleadings, depositions, answers to interrogatories, and admissions on file, together

3
The transcript of the motion hearing is not in the record; Gladney’s statement on
transcript indicates her determination that a transcript “is not necessary” for this appeal.

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with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” WIS.
STAT. § 802.08(2) (2021-22).4

¶7 “[W]e look at the parties’ submissions in a light most favorable to
the party against whom summary judgment is sought, and all reasonable
inferences are to be assessed against the party seeking summary judgment.” See
Novell v. Migliaccio, 2010 WI App 67, ¶9, 325 Wis. 2d 230, 783 N.W.2d 897.
When the plaintiff’s complaint states a claim for relief, a court examines the
moving party’s submissions to determine whether that party made a prima facie
case for summary judgment. See Gross v. Woodman’s Food Mkt., Inc., 2002 WI
App 295, ¶30, 259 Wis. 2d 181, 655 N.W.2d 718. If so, the court examines the
opposing party’s submissions to determine whether material facts are in dispute
requiring a trial. See id. The ultimate burden of demonstrating that there is
sufficient evidence to go to trial at all is on the party with the burden of proof on
the issue that is the subject of the motion. See Schreiner v. Wieser Concrete
Prods., Inc., 2006 WI App 138, ¶13, 294 Wis. 2d 832, 720 N.W.2d 525.

¶8 In this case, Gladney alleged that she suffered a variety of physical
symptoms due to exposure to toxic black mold in her apartment. In seeking
summary judgment, the defendants-respondents did not suggest that Gladney
failed to state claims for relief. Rather, they asserted that Gladney’s failure to
name an expert meant there was insufficient proof on the causation elements of

4
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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her claims. In support, defendants-respondents submitted a copy of Gladney’s
witness list which, as noted, specifically states that Gladney has no expert witness.

¶9 A party must present expert testimony when the issues are “so
complex or technical that a jury without the assistance of expert testimony would
be speculating.” See Cramer v. Theda Clark Mem’l Hosp., 45 Wis. 2d 147, 152,
172 N.W.2d 427 (1969); see also Pinter v. Vill. of Stetsonville, 2019 WI 74, ¶63,
387 Wis. 2d 475, 929 N.W.2d 547 (citation omitted) (expert testimony is required
to prove causation where “the matter is not within the realm of ordinary
experience and lay comprehension”); State v. Whitaker, 167 Wis. 2d 247, 255,
481 N.W.2d 649 (Ct. App. 1992) (expert testimony required “if the issue to be
decided by the jury is beyond the general knowledge and experience of the
average juror.”). Defendants-respondents contend that causation in a mold case
has two prongs: general causation, which is whether a substance is capable of
causing a particular injury, and specific causation, whether the substance caused
plaintiff’s injuries. They further contend that causation in a mold case is not
within common knowledge, so expert testimony is required.

¶10 There is no published Wisconsin case dealing with expert
requirements specifically in black mold cases. However, Wisconsin law does
indicate that a party may not maintain a lawsuit alleging injury caused by toxic
exposure without a qualified physician to support the claim. See Jandrt ex rel.
Brueggeman v. Jerome Foods, Inc., 227 Wis. 2d 531, 562-74, 597 N.W.2d 744
(1999); see also Kolesar v. United Agri Prods., Inc., 412 F. Supp. 2d 686, 696
(W.D. Mich. 2006) (discussing Wisconsin law, including Jandrt); see also
Ramsden v. AgriBank, FCB, 63 F. Supp. 2d 958, 961 (W.D. Wis. 1999)
(explaining that “Wisconsin law requires expert testimony to establish causation
when toxic exposures are involved”), vacated on other grounds, 214 F.3d 865 (7th

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Cir. 2000). “When expert testimony is required and is lacking, the evidence is
insufficient to support a claim.” Kinnick v. Schierl, Inc., 197 Wis. 2d 855, 862,
541 N.W.2d 803 (Ct. App. 1995).

¶11 In her brief, Gladney states that “[d]ue to circumstances that were
totally beyond [her] control,” i.e., the COVID-19 pandemic, she was “unable to
obtain an expert (who would testify in this case).” However, this explanation is
insufficient to absolve Gladney of the need for an expert. Gladney alleged that the
mold was discovered in her apartment in June 2016, nearly four years before the
March 2020 declaration of any public health emergency.5 One of Gladney’s
exhibits within her brief—an air quality evaluation—was dated September 2016.
Gladney filed her suit in October 2019, five months before the start of the
pandemic. Further, Gladney had commenced a different black mold case in June
2018. See Gladney v. LaQuinta Inns & Suites, No. 2020AP900, unpublished op.
and order (WI App Jan. 11, 2022). Four days before Gladney filed this case, the
defendant hotel moved for summary judgment based on Gladney’s failure to
secure an expert; the case was dismissed in February 2020. Gladney had more
than ample notice and opportunity prior to the COVID-19 pandemic to seek an
expert witness to support her claims.

¶12 Gladney also asserts in her reply brief that she herself qualifies as an
expert witness because she has “firsthand experience in dealing with black toxic
mold,” through which she says she has “gained a tremendous amount of
knowledge and became educated about black toxic mold, by reading, and

5
See Wisconsin Legislature v. Palm, 2020 WI 42, ¶5, 391 Wis. 2d 497, 942 N.W.2d
900 (“[O]n March 12, 2020, Governor Evers issued Executive Order 72 ‘Declaring a Health
Emergency in Response to the COVID-19 Coronavirus.’”)

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research.” See, e.g., WIS. STAT. § 907.02(1) (permitting opinion testimony from
“a witness qualified as an expert by knowledge, skill, experience, training, or
education”). Relying on Karl v. Employers Ins. of Wausau, 78 Wis. 2d 284, 254
N.W.2d 255 (1977), she asserts that “qualification of an expert has historically
been a matter not of licensure, but of experience.”

¶13 Gladney’s claims of expertise are entirely conclusory. Moreover,
there are actually three prerequisites to the admission of expert testimony:

the witness must be qualified (“a witness qualified as an
expert by knowledge, skill, experience, training, or
education”); the witness’s testimony must be relevant (“[i]f
scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to
determine a fact in issue”); and, per the 2011 amendment
adopting the Daubert [v. Merrell Dow Pharms., Inc., 509
U.S. 579 (1993)] standard, the witness’s testimony must be
reliable (“if the testimony is based upon sufficient facts or
data, the testimony is the product of reliable principles and
methods, and the witness has applied the principles and
methods reliably to the facts of the case”).

State v. Hogan, 2021 WI App 24, ¶¶1819, 397 Wis. 2d 171, 959 N.W.2d 658.
Gladney does not analyze her “expert” testimony or qualifications under this
framework, nor does she show that she did so in the circuit court.6 Even assuming
without deciding that Gladney could qualify as an “expert,” she did not disclose
herself as such as required by the scheduling order. We also typically do not
consider arguments raised for the first time on appeal, see State Farm Mut.
Auto. Ins. Co. v. Hunt, 2014 WI App 115, ¶32, 358 Wis. 2d 379, 856 N.W.2d

6
Because there is no transcript of the motion hearing, we must assume either that this
argument was not made to the circuit court or, if it was made, that the circuit court properly
rejected it. See Austin v. Ford Motor Co., 86 Wis. 2d 628, 641, 273 N.W.2d 233 (1979); see also
State v. Hogan, 2021 WI App 24, ¶26, 397 Wis. 2d 171, 959 N.W.2d 658 (appellate review of
the trial court’s decisions regarding the admission of expert testimony remains deferential).

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633, nor those raised for the first time in a reply brief, see A.O. Smith Corp. v.
Allstate Ins. Cos., 222 Wis. 2d 475, 492, 588 N.W.2d 285 (Ct. App. 1998).

¶14 Gladney also suggests in her reply brief that oral argument in this
matter is “imperative, therefore leaving the decision to the court to decide and
determine whether or not causation has been established in this case.” However,
the time to establish sufficient evidence of causation to survive summary judgment
and go to trial has passed. The circuit court properly granted summary judgment
in defendants-respondents’ favor and dismissed Gladney’s case.7

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT. RULE
809.23(1)(b)5.

7
Because we concluded that the circuit court properly dismissed all of Gladney’s claims,
we decline to address whether and which claims might be barred by the statute of limitations. See
Maryland Arms Ltd. P’ship v. Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300, 786 N.W.2d 15
(“Typically, an appellate court should decide cases on the narrowest possible grounds.”).

8