The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
REBECCA KINTZ, )
)
Plaintiff, )
)
v. ) Case No. 4:24-cv-00507-RK
)
HAVEN CREEK LIMITED )
PARTNERSHIP and SENTINEL REAL )
ESTATE CORPORATION, )
)
Defendants. )
ORDER
Before the Court are Defendants Haven Creek Limited Partnership and Sentinel Real Estate
Corporation’s motion for sanctions for spoliation of evidence, (Doc. 134), and Defendants’ motion
for summary judgment, (Doc. 139). The motions are fully briefed. (Docs. 134, 138, 140, 142,
145, 148.) After careful consideration, and for the reasons explained below, the Court ORDERS
that Defendants’ motion for sanctions for spoliation of evidence is GRANTED in part and
DENIED in part, and Defendants’ motion for summary judgment is DENIED.
Background and Procedural Posture
Plaintiff alleges that an apartment she rented from Defendants was (or became) infested
with harmful and toxic mold, leading to personal injury and property damage. She seeks damages
from Defendants for violation of the Missouri Merchandising Practices Act, breach of the implied
warranty of habitability, and negligence. (Doc. 98.) Defendants have moved for summary
judgment on all claims. (Doc. 139.)
I. Non-Compliance with Local Rule 56.1
As an initial matter, the Court notes that Defendants failed to comply with Local Rule
56.1(c) when filing their reply in support of their motion for summary judgment. Local Rule 56.1
sets out the manner in which a motion for summary judgment, opposing suggestions, and reply
suggestions should be filed in this Court, as follows:
(a) Supporting Suggestions. A party moving for summary judgment must begin
its supporting suggestions with a concise statement of uncontroverted material
facts. Each fact must be set forth in a separately numbered paragraph and supported
in accordance with Fed. R. Civ. P. 56(c).
(b) Opposing Suggestions.
1. A party opposing a motion for summary judgment must begin its
opposing suggestions by admitting or controverting each separately
numbered paragraph in the movant’s statement of facts. . . . Unless
specifically controverted by the opposing party, all facts set forth in the
statement of the movant are deemed admitted for the purpose of summary
judgment.
2. If the opposing party relies on any facts not contained in the movant’s
suggestions, the party must add a concise listing of material facts. Each fact
in dispute must be set forth in a separately numbered paragraph and properly
supported in accordance with Fed. R. Civ. P. 56(c).
(c) Reply Suggestions. The party moving for summary judgment may file reply
suggestions. In those suggestions, the party must respond to the non-moving
party’s statement of additional facts in the manner prescribed in Rule 56.1(b)(1).
Unless specifically controverted by the moving party, all facts set forth in the
statement of the opposing party are deemed admitted for the purpose of summary
judgment.
Local Rule 56.1 (emphasis added). “These requirements help to ‘distill to a manageable volume
the matters that must be reviewed by a court undertaking to decide whether a genuine issue of fact
exists for trial.’” Nelson v. S. Poverty L. Ctr., 513 F. Supp. 3d 1101, 1106 (W.D. Mo. 2021)
(quoting Jones v. United Parcel Serv., Inc., 461 F.3d 982, 990 (8th Cir. 2006)) (discussing Local
Rule 56.1 and Fed. R. Civ. P. 56).
Defendants failed to properly respond to Plaintiff’s additional statement of material facts
in the manner prescribed by the Local Rules. Plaintiff’s suggestions in opposition to Defendants’
motion for summary judgment included 36 numbered paragraphs of additional facts. (Doc. 145 at
23-33.) Defendants’ reply suggestions do not contain 36 separately numbered paragraphs
admitting or controverting each of Plaintiff’s additional statements of material fact. (See generally
Doc. 148.) While Defendants attempt to challenge some of Plaintiff’s additional factual assertions
in their reply brief, they improperly blend legal arguments with challenges to Plaintiff’s factual
assertions. See Nelson, 513 F. Supp. 3d at 1106 (adopting defendant’s statement of uncontroverted
material facts as true for purposes of summary judgment where Nelson failed to respond to it by
numbered paragraphs and instead “blend[ed] his arguments with his assertions of facts”).
Accordingly, for purposes of summary judgment, the Court deems admitted Plaintiff’s additional
statement of material facts.1
II. Summary Judgment Background and Facts2
Plaintiff Rebecca Kintz moved into Apartment 1013 at The Haven at Shoal Creek (the
“Apartment”) in July 2022. The Haven is an apartment complex owned and managed by
Defendants.
A. Plaintiff’s Apartment, Work Orders, and Mold Inspections
Plaintiff took steps to keep the Apartment clean, and she reported water intrusions and
mold events. Specifically, Plaintiff submitted three separate work orders relating to water
intrusions in her Apartment, which were dated August 2, 2022, August 1, 2023, and December 4,
2023. The August 1, 2023, work order complaint was that “[t]he woodwork in the corner of the
living room is stained from a leak. There is evidence on the wall on the porch where water has
drained down from the ceiling.” (Doc. 145-10 at 12.) Work was not completed on Plaintiff’s
August 1, 2023 work order until August 17, 2023. Defendants’ response consisted of cleaning out
the “condensation line”3 and having a contracted painter paint the baseboard which suffered water
damage. Defendants did not remove water-damaged materials, did not moisture-test the wall
cavity, and did not apply antifungal treatment. Plaintiff’s third water-related work order dated
December 4, 2023, complained of mold in the washing machine. (Doc. 145-10 at 18.)
Plaintiff engaged Nick’s Inspection Services (“Nick’s”) to conduct mold testing in the
Apartment. Nick’s inspection occurred on November 30, 2023, and Nick’s issued a report
thereafter. Nick’s testing and report concluded that there was aspergillus/penicillium inside the
1 To the extent Plaintiff’s additional statement of material facts controverts Defendants’ statement
of facts, the Court notes these contradictions for clarity in the case moving forward.
2 Except where otherwise noted, these facts are taken from the parties’ statements of uncontroverted
facts. The Court has omitted facts properly controverted, facts asserted that are immaterial to the resolution
of the pending motion, facts asserted that are not properly supported by admissible evidence, legal
conclusions, and argument presented as an assertion of fact.
3 The evidence referenced does not further clarify what “condensation line” refers to.
Apartment at more than twice the outdoor concentration.4 (Doc. 145-6 at 2.)5 Nick’s also detected
a higher than baseline amount of stachybotrys (another mold) inside the Apartment, with none
detected in the outdoor sample.
Around this time, Plaintiff informed Defendants that she intended to move out of the
Apartment due to the presence of mold.6 Defendants also learned that Plaintiff had engaged Nick’s
to conduct mold testing in the Apartment. Defendants investigated Plaintiff’s mold concerns and
retained APEX Environmental Consultants, Inc. (“APEX”) to investigate conditions in Plaintiff’s
Apartment. APEX conducted an inspection of the Apartment on December 13, 2023, and
produced a report of its findings. APEX’s bioaerosol sampling of the Apartment indicated no
significant concentrations of airborne fungal spores in most areas of the Apartment. The guest
bedroom, however, showed elevated spore counts. The APEX report stated that “[t]he visual
inspection indicated no evidence of visible fungal growth” in the Apartment.7
Plaintiff vacated the Apartment in January 2024.
B. Plaintiff’s Health
Plaintiff was generally healthy before moving into The Haven. After moving into her
Apartment, Plaintiff’s health rapidly deteriorated. Plaintiff’s CT imaging from November 19,
2021 (approximately eight months before she moved into the Apartment) showed “completely
normal” lungs with no evidence of lung disease. By September 13, 2022 (two months after
Plaintiff moved into The Haven), early abnormalities consistent with infection appeared in CT
imaging of Plaintiff’s lungs, and by April 23, 2023, disease had “dramatically progressed.”
4 Aspergillus is a common mold which can cause infections such as aspergillosis when an individual
breathes in airborne spores of aspergillus. See Aspergillosis Basics, CDC (Apr. 24, 2024), https://www.cdc.
gov/aspergillosis/about/index.html [https://perma.cc/SR9Y-8ZY6].
5 Specifically, the report indicates that there were 87 count/m3 (that is, per cubic meter) of
Aspergillus/Penicillium in Plaintiff’s Apartment sample compared to 40 count/m3 in the baseline sample
taken outside the Apartment.
6 It is not clear from the record when Plaintiff first informed Defendants she believed there was
mold in the Apartment. Her December 4, 2023, work order stated “[t]here is mold on and in the washer
gasket.” (Doc. 145-10 at 18.) Thus, it appears Defendants were informed of Plaintiff’s belief at least as of
December 4, 2023.
7 Plaintiff contests the adequacy and accuracy of APEX’s inspection and subsequent report because,
inter alia, a HEPA 700 air scrubber was running in the Apartment prior to the inspection. The Court
includes the results of the inspection herein not for the truth of the findings, but for the fact that such findings
were made by APEX.
Ultimately, Plaintiff had more than thirteen rounds of antibiotics, sinus surgery,
pneumonia, multiple bronchoscopies, a diagnosis of invasive pulmonary aspergillosis in October
2023,8 and the development of bronchiectasis and hypogammaglobulinemia requiring monthly
intravenous immunoglobulin infusions. Dr. Kyle Brownback opines that Plaintiff’s invasive
pulmonary aspergillosis occurred due to exposure to aspergillus. He also opines that Plaintiff
developed bronchiectasis as a result of her invasive pulmonary aspergillosis, and that her
bronchiectasis will require ongoing management from specialized physicians and multiple
treatments and medications for an indefinite period.
In addition to Plaintiff’s health issues which began after she moved into the Apartment,
friends of Plaintiff who visited her and stayed briefly at the Apartment developed respiratory and
sinus issues after their visits.
C. The Haven’s Mold-Response Policies
Defendants maintain an Operations and Management Plan which requires employees at
The Haven to respond to all water intrusion and mold events “within 24 hours,” maintain a
mandatory Mold Incident Tracking Log, and conduct follow-up inspections after water events.
Maintenance Technician Zach Hodges testified at his deposition that responding to water
intrusions was an urgent matter because water leads to mold if it is allowed to sit for long enough.
However, as discussed above, Defendants failed to follow their policy to respond to water
intrusions within 24 hours, and took two weeks to respond to Plaintiff’s August 1, 2023 work order
reporting a water intrusion, and responded by painting over the water-damaged area.
Defendants’ General Manager, Kelly Washington, admitted in testimony at her deposition
that she did not maintain the required Mold Incident Tracking Log. Defendants’ Assistant
Manager Jason McMichael—who has been an employee at The Haven since February 2020 and
who was designated as Defendants’ corporate representative on the topic of mold complaints at
The Haven—testified at the Rule 30(b)(6) deposition that he had never seen the Operations and
8 Defendants contest the diagnosis of invasive aspergillosis with expert testimony of Dr. Salzman.
As discussed above, Defendants did not properly controvert the foregoing fact listed in Plaintiff’s additional
statement of facts and it is adopted as true for purposes of summary judgment. The Court nevertheless
addresses the competing expert opinions in its analysis below and notes that this issue remains controverted
for purposes of trial.
Management Plan or any mold incident tracking log, and that he was unaware of any mold
complaints other than Plaintiff’s.
Dr. Georgi Popov, a Qualified Environmental Professional and Certified Safety
Professional retained by Plaintiff, opines that the apartment units at The Haven were not
maintained in a safe, healthy, and professionally managed manner based on his review of
Defendants’ awareness of and compliance with their own Operations and Management Plan. (Doc.
145 at 26, ¶ 10.)
D. Previous Mold Issues at The Haven
The Haven experienced multiple water intrusion and mold issues in the past. General
Manager Washington admitted that condensing and leaking HVAC units are a “common issue” at
The Haven.9 Maintenance Technician Hodges confirmed this problem had affected more than ten
unit during his time at The Haven. Other employees reported finding mold in HVAC closets to
General Manager Washington after routine preventative maintenance visits. Defendants also
received complaints of mold from other tenants at The Haven. This included complaints of mold
in apartment units in Plaintiff’s building. (Doc. 145-17 (complaints of mold in units 1018, 1027,
and 1029).) These complaints included that “[m]old is all over the walls in the HVAC closet,”
(unit 1027), there is “mold behind the toilet . . . from a previous leak from the patio HVAC closet,”
(unit 1018), and that “[m]old has grown all over in the HVAC closet, and on the adjoining walls
inside the apartment,” (unit 1029). (Id.)
Further facts are set forth below as necessary.
Discussion
I. Defendants’ Motion for Sanctions for Spoliation of Evidence (Doc. 134)
The Court begins with Defendants’ motion for sanctions for spoliation of evidence. The
motion centers on materials that Plaintiff discarded before this litigation was filed. Defendants
refer to an at-home mold test Plaintiff conducted and personal belongings that Plaintiff discarded,
including porous furnishings, air-filtration devices, and CPAP-related materials. (Doc. 134 at 1-3.)
The Court notes at the outset that it appears neither that Plaintiff attempts to rely on any of the
9 HVAC units are present in each apartment in a closet. It appears that those closets remain locked
and tenants cannot access them without requesting that someone in Defendants’ employment unlock the
door. (See Doc. 145-10 at 18 (requesting someone come turn off light in HVAC closet); id. at 19 (requesting
to send someone over to open HVAC closet).)
discarded items in opposing summary judgment, nor that Defendant is requesting that the Court
itself draw a negative inference from the alleged spoliation at the summary judgment phase. As
best as the Court can discern, Defendants’ motion for sanctions for spoliation of evidence is simply
a pre-trial motion in limine. Because the issue is fully briefed and ripe for this Court’s
consideration, the Court will address it at this juncture.
Defendants argue that the discarded items should have been preserved because they were
central to testing Plaintiff’s mold exposure, causation, and damages theories. (Id. at 6-7.)
Defendants further contend that the timing and circumstances of Plaintiff’s disposal of the items
show bad faith and prejudiced their ability to test Plaintiff’s claims. (Id. at 1-3, 6-7.)
Plaintiff responds that the items were discarded during remediation and move-out after she
received advice from Nick’s, a mold remediation company, that contaminated materials that could
not be cleaned should be removed and discarded. (Doc. 138 at 5-6, 10-12.) Plaintiff also argues,
inter alia, that Defendants cannot show prejudice because they had access to the Apartment while
her belongings remained there, retained their own inspector, and did not request that any
belongings be preserved or tested before they were discarded. (Id. at 6-7, 10-12.)
Defendants ask the Court to (1) impose an adverse-inference instruction that the discarded
items would have been unfavorable to Plaintiff’s claims, (2) preclude Plaintiff and her experts
from offering testimony or argument that any of the discarded items were contaminated with mold
or that testing those items would have supported her claims, and (3) award attorney fees and costs
incurred in connection with this motion. (Doc. 134 at 2.)
A. Adverse-Inference Instruction
Federal courts have “inherent power” to impose sanctions for spoliation of evidence.
Stevenson v. Union Pac. R.R. Co., 354 F.3d 739, 745 (8th Cir. 2004). “The obligation to preserve
evidence begins when a party knows or should have known that the evidence is relevant to future
or current litigation.” Zamora v. Stellar Mgmt. Grp., No. 3:16-cv-05028-RK, 2017 WL 1362688,
at *2 (W.D. Mo. Apr. 11, 2017); see also White v. Jefferson City Mo. Police Dep’t, No. 2:21-cv-
04189-NKL, 2022 WL 2135829, at *2 (W.D. Mo. May 13, 2022).
For an adverse-inference instruction to be warranted, the Court must “make two findings:
(1) there must be a finding of intentional destruction indicating a desire to suppress the truth, and
(2) there must be a finding of prejudice to the opposing party.” Lincoln Composites, Inc. v.
Firetrace USA, LLC, 825 F.3d 453, 463 (8th Cir. 2016) (internal quotation marks omitted). “The
ultimate focus for imposing sanctions for spoliation of evidence is the intentional destruction of
evidence indicating a desire to suppress the truth, not the prospect of litigation.” Greyhound Lines,
Inc. v. Wade, 485 F.3d 1032, 1035 (8th Cir. 2007). “Intent is rarely proved by direct evidence,
and a district court has substantial leeway to determine intent through consideration of
circumstantial evidence, witness credibility, motives of the witnesses,” and other relevant
circumstances. Id. (quoting Morris v. Union Pac. R.R., 373 F.3d 896, 902 (8th Cir. 2004)).
Assuming arguendo that Plaintiff had a duty to preserve the discarded materials and the
disposal caused prejudice, Defendants have not shown that Plaintiff discarded the materials with
a desire to suppress the truth. Although Plaintiff deliberately discarded the materials, deliberate
discarding or destruction of evidence does not by itself establish the intent required for an adverse-
inference instruction. See Burris v. Gulf Underwriters Ins., 787 F.3d 875, 879-80 (8th Cir. 2015)
(affirming denial of an adverse-inference instruction where evidence showed that records were
intentionally destroyed, but did not establish that the records were destroyed to suppress the truth).
The record indicates that Plaintiff discarded her belongings during remediation and move-
out after Nick’s advised her concerning the removal or disposal of materials that could not be
cleaned. (Doc. 138 at 5-6, 10-12; Doc. 138-1 at 6-10; Doc. 138-6 at 9-11.) The disposal does not
appear to have been selective; it included a broad range of personal property, some of which
Plaintiff photographed before disposal. (Doc. 138 at 6-7, 10-12; Doc. 138-1 at 6-10.) Plaintiff
disclosed the disposal of personal items in her Complaint and later testified about it. (Doc. 1 at 9,
¶ 20; Doc. 98 at ¶ 20; Doc. 138-1 at 6-10.) Nor does the record indicate that Plaintiff discarded
the at-home test materials because the test was unfavorable or to prevent Defendants from learning
that testing had occurred. Plaintiff disclosed that she performed the at-home test but discarded it,
and then Plaintiff thereafter obtained Nick’s mold inspection and report, which she has provided
to Defendants in this lawsuit. (Doc. 138 at 5, 10-12; Doc. 138-1 at 15-18.)
Taken together, these circumstances do not show that Plaintiff discarded the materials with
a desire to suppress the truth. See Simon v. Select Comfort Retail Corp., No. 4:14-CV-1136 JAR,
2016 WL 160643, at *2 (E.D. Mo. Jan. 14, 2016) (finding no indication of desire to suppress the
truth where Simon discarded allegedly mold-contaminated components of his bed, despite having
contemplated filing a lawsuit prior to discarding the components and notwithstanding the
defendant’s lost opportunity to inspect the components). It appears that Plaintiff discarded the
items at the advice of a mold-remediation professional for the purpose of removing allegedly
contaminated items from her living environment, rather than upon any intent to suppress the truth.
Thus, Defendants have not established the intent to suppress the truth required for an adverse-
inference instruction, and their request for an adverse-inference instruction is DENIED. See
Lincoln Composites, 825 F.3d at 463 (requiring intent to suppress the truth for an adverse-inference
instruction).
B. Exclusion of Evidence
The absence of intent to suppress the truth does not foreclose all the relief Defendants seek,
however. See Dillon v. Nissan Motor Co., 986 F.2d 263, 267 (8th Cir. 1993); see also Stevenson,
354 F.3d at 747 n.2. An exclusion-type relief may be considered where the responsible party knew
or should have known the evidence was relevant to potential litigation. Dillon, 986 F.2d at 267;
see also Stevenson, 354 F.3d at 747 n.2 (“In Dillon . . . we affirmed the imposition of sanctions
(mainly the exclusion of evidence) for the destruction of evidence where there was no bad faith
finding regarding the spoliation of evidence but only a finding that the spoliators . . . knew or
should have known that the evidence would be relevant to imminent litigation.” (internal quotation
marks omitted)).
“[T]o establish that exclusion of evidence is appropriate due to spoliation of evidence, there
must be findings that (1) the destroying party knew or should have known that the evidence was
relevant to imminent litigation . . . and (2) the other party was prejudiced by the destruction of
evidence.” Dynasteel Corp. v. Black & Veatch Corp., No. 08-cv-0602-ODS, 2010 WL 11508641,
at *2 (W.D. Mo. Mar. 18, 2010). Because Plaintiff alleges that toxic mold was present in her
Apartment and that it required cleaning, remediation, and disposal of personal property, the
discarded belongings are clearly relevant to Plaintiff’s claimed mold contamination, causation, and
damages. By the time Plaintiff moved out of the Apartment and discarded various belongings in
January 2024, Plaintiff had obtained an at-home mold test result, retained Nick’s Inspection
Service, received Nick’s mold inspection report, informed Defendants of her mold allegations, and
contacted Defendants through counsel. (Doc. 134 at 3; Doc. 138 at 5-7, 10-12; Doc. 138-1 at 6-
10, 15-18; Doc. 138-6 at 9-11.) By then, Defendants had also retained APEX to inspect the
Apartment. (Doc. 138 at 5-6, 13-14; Doc. 138-7 at 4; Doc. 138-8 at 1-2.) In short, by the time of
disposal, the alleged mold condition had been tested, documented, raised with Defendants,
addressed through counsel, and treated by both sides as warranting third-party inspection. Under
those circumstances, the Court finds that Plaintiff knew or should have known that discarded
personal belongings she now claims were contaminated could be relevant to imminent litigation
regarding the existence and extent of contamination, causation, or damages.
Before excluding discarded evidence or testimony regarding it, the Court must also find
that the destruction prejudiced the opposing party. Dillon, 986 F.2d at 267. Prejudice exists where
the lost evidence was “relevant and unavailable through other sources.” Peterson v. Washington
County, No. 18-cv-2640 (DWF/ECW), 2021 WL 2686119, at *3 (D. Minn. June 30, 2021) (citing
Koons v. Aventis Pharm., Inc., 367 F.3d 768, 780 (8th Cir. 2004)). Plaintiff argues that Defendants
are not prejudiced because they hired a company to inspect the Apartment on their behalf.
Defendants had notice of Plaintiff’s mold allegations, possessed Nick’s report by December 6-7,
2023, retained APEX, and had APEX inspect the Apartment while Plaintiff’s belongings remained
there. (Doc. 138 at 5-6, 13-14; Doc. 138-7 at 4; Doc. 138-8 at 1-2.) See Int’l Ins. Co. of Hannover
Ltd. v. IEA Renewable Energy, Inc., No. 17-06143-CV-SJ-GAF, 2020 WL 8673135, at *3-5 (W.D.
Mo. Sept. 30, 2020) (finding no prejudice where the movants had meaningful onsite access,
substantial substitute evidence, and an opportunity for further inspection).
However, Defendants’ pre-disposal access and testing was meaningful only with respect
to the Apartment environment, but not with respect to item-specific testing of the discarded
belongings that Plaintiff now claims were contaminated with mold. (Doc. 138-7 at 4-11.) The
Court does not equate access to the Apartment with a meaningful opportunity to perform item-
specific testing of Plaintiff’s personal belongings. And now no such testing is possible because
Plaintiff has discarded those items. Thus, Defendants do not have the opportunity to inspect the
discarded belongings and mount a defense as to Plaintiff’s assertions that those belongings were
infested with mold. See Bass v. Gen. Motors Corp., 929 F. Supp. 1287, 1289-90 (W.D. Mo. 1996)
(finding prejudice where photographs, video, and retained component evidence did not substitute
for inspection of destroyed evidence relevant to the defense theory).
Accordingly, though Defendants were able to conduct testing of the Apartment itself and
Plaintiff took photographs of some of the discarded items, this evidence is not a substitute for
actual inspection of the discarded items and does not eliminate the prejudice caused to Defendants.
Id. Limited preclusion of the discarded evidence and testimony regarding the same is therefore
appropriate. See Koons, 367 F.3d at 780; Dillon, 986 F.2d at 267 (“Sanctions are appropriately
levied against a party responsible for causing prejudice when the party knew or should have known
that the destroyed documents were relevant to pending or potential litigation.”) (quoting Capellupo
v. FMC Corp., 126 F.R.D. 545 (D. Minn. 1989)).
The Court thus GRANTS Defendants’ request for preclusion of certain evidence. Because
the prejudice is limited to Defendants’ inability to test the discarded items themselves, exclusion
is likewise limited to testimony or argument that depends on or suggests what those unavailable
items would have shown. See Bass, 929 F. Supp. at 1290 (barring testimony about a car and
seatbelt inspection where Bass failed to preserve the vehicle and defendant did not have an
opportunity to inspect it).10 More specifically, at trial, Plaintiff and her experts are precluded from
offering testimony or argument that any of the discarded items were contaminated with mold or
that testing those items would have supported her claims, and plaintiff counsel is precluded from
making arguments or inferences of the same.11 This ruling does not bar testimony or expert
opinion based on independent evidence properly produced in discovery, including other apartment
testing, photographs, remediation records, retained personal property, or otherwise admissible
observations. Accordingly, Defendant’s motion for sanctions for spoliation of evidence is
GRANTED in part and DENIED in part.
C. Attorney Fees
A bad-faith finding is specifically required in order to assess attorney fees under the Court’s
inherent power to sanction. See Stevenson, 354 F.3d at 751. Because the record does not establish
bad faith, Defendants’ request for attorney fees related to the motion for sanctions for spoliation
is DENIED.
10 The Court notes that in Bass the court also permitted an adverse-inference instruction, despite no
finding of bad faith. However, consistent with the Court’s analysis above, Defendants have not shown an
intent to suppress the truth which is necessary for an adverse-inference instruction under more recent Eighth
Circuit caselaw. See Lincoln Composites, Inc., 825 F.3d at 463 (requiring showing intent to suppress the
truth for adverse-inference instruction for spoliation).
11 The Court’s in-limine ruling is preliminary and is subject to revision based on future
developments in the case and evidence presented at trial. In addition, the Court notes that although the
instant motion implicates the Court’s inherent power to sanction for spoliation of evidence, the Court also
notes that exclusionary remedies are available for non-production of evidence during discovery under the
Federal Rules of Civil Procedure. For example, Rule 26(a) requires disclosure of “all tangible things that
the disclosing party has in its possession . . . and may use to support its claims or defenses,” while Rule
37(c) precludes parties from using information not disclosed pursuant to Rule 26(a) in support of a motion,
at a hearing, or at trial.
II. Defendants’ Motion for Summary Judgment (Doc. 139)
Defendants move for summary judgment arguing that Plaintiff cannot establish medical
causation as to any of her claims, and that Plaintiff has failed to show evidence supporting
particular elements of each claim. Plaintiff responds that issues of material fact remain as to
medical causation—specifically arising from the expert opinion of Plaintiff’s retained expert, Dr.
Kyle Brownback—and that evidence in the record supports each of her claims. The Court
generally finds that issues of material fact remain as to all of Plaintiff’s claims. Notably, there are
competing expert medical opinions regarding Plaintiff’s diagnosis of invasive aspergillosis, what
caused it, and what the effects of that diagnosis are, as well as competing mold inspection reports
from Plaintiff’s Apartment.
A. Legal Standard
Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, a movant is entitled to
summary judgment if the movant shows that “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” In this context, a fact is material if it
“might affect the outcome of the suit under the governing law,” and a dispute is genuine if “a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). In applying this standard, the Court must view the evidence in the light
most favorable to the nonmoving party, giving that party the benefit of all inferences that may be
reasonably drawn from the evidence. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587-88 (1986); Recio v. Creighton Univ., 521 F.3d 934, 938 (8th Cir. 2008). Thus, the relevant
inquiry is whether “there are any genuine factual issues that properly can be resolved only by a
finder of fact because they may reasonably be resolved in favor of either party.” Anderson, 477
U.S. at 250.
B. Medical Causation
Underlying each of Plaintiff’s claims and the damages she seeks is the theory that her
exposure to toxic mold in her Apartment caused personal injury including a diagnoses of invasive
aspergillosis and the after-effects of that disease. Defendants argue that Plaintiff cannot establish
medical causation because “(1) Plaintiff does not have invasive aspergillosis; (2) even if she did,
there is no evidence linking it to mold in the Apartment; and (3) any mold-related symptoms were
limited to temporary allergic reactions that resolved upon leaving the Apartment.” (Doc. 140 at 6.)
In toxic tort cases, Missouri law requires the plaintiff “to establish both general and specific
causation in order to make a submissible case.” McCostlin v. Monsanto, 718 S.W.3d 435, 442
(Mo. Ct. App. 2025). “General causation refers to whether an injury can be caused by a certain
process,” while “[s]pecific causation refers to whether the particular plaintiff’s injury was caused
by that process.” Id. (quoting Huett v. Branson, 675 S.W.3d 514, 521 (Mo. Ct. App. 2023)).
“Proof of causation related to mold claims requires scientific expertise.” Simon, 2016 WL 160643,
at *9 (citing Brown for Est. of Kruse v. Seven Trails Investors, LLC, 456 S.W.3d 864, 870 (Mo.
Ct. App. 2014)).
Here, Defendants do not contest that exposure to mold, particularly aspergillus, can cause
invasive pulmonary aspergillosis. Instead, Defendants argue that Plaintiff cannot establish that
mold caused her particular injuries. In doing so, Defendants wholly ignore the evidence and
testimony of Plaintiff’s retained experts, representing to the Court that the evidence and testimony
of their expert—Dr. Salzman—is uncontroverted. It is only in their reply brief, after Plaintiff
controverts Dr. Salzman’s testimony with evidence of her own experts, that Defendants address
the issue of competing expert testimony by arguing that Dr. Brownback’s expert testimony should
be disregarded for failing to satisfy the Daubert standard. The Court is not persuaded by
Defendant’s attempt to bootstrap a Daubert argument which Plaintiff has not had the benefit of
responding to in a reply brief, especially after Defendants completely ignored the existence of
Plaintiff’s expert in their opening brief seeking summary judgment.
The Court concludes that sufficient issues of material fact remain as to medical causation.
Defendants’ first argument—that Plaintiff does not have invasive pulmonary aspergillosis—
clearly remains controverted.12 Defendants’ expert, Dr. Salzman, opines that there is not adequate
support in Plaintiff’s medical records for a diagnosis of invasive aspergillosis. (Doc. 140 at 77,
81.) Dr. Salzman also noted that Plaintiff’s galactomannan test results were below 1, which is not
diagnostic of invasive aspergillosis in a patient like Plaintiff who does not have classic high-risk
conditions like bone marrow transplant or cancer. Dr. Salzman notes that there were also never
12 Defendants admit that “[i]n October 2023, Plaintiff was diagnosed with aspergillosis after
aspergillus was found in her lungs.” (Doc. 140 at 2, ¶ 6.) While neither party fleshed out the particulars of
aspergillosis, the Court notes that it generally presents in two ways—invasive pulmonary aspergillosis and
chronic pulmonary aspergillosis. Based on Defendant’s own statement of uncontroverted facts, it appears
that the contest is then whether Plaintiff’s aspergillosis is “invasive” or “chronic.”
any positive cultures from a biopsy for aspergillus from either Plaintiff’s sinuses or lungs. (Id. at
82.)
Plaintiff’s expert, Dr. Brownback, on the other hand, opines that “to a reasonable degree
of medical certainty . . . Rebecca Kintz developed invasive pulmonary aspergillosis in 2023.”
(Doc. 145-4 at 8.) Dr. Brownback opines that Plaintiff was at a heightened risk for developing
invasive aspergillosis due to being immunosuppressed related to her hypogammaglobulinemia and
that she was diagnosed with invasive aspergillosis because she was exposed to aspergillus. (Id. at
6.) Dr. Brownback further explained that under ideal circumstances a lung biopsy would be done
to confirm aspergillus tissue in the lungs, but this was not possible for Plaintiff due to her elevated
bleeding risk from the use of an anticoagulation to reduce stroke risk associated with her history
of atrial fibrillation.13 Instead, in Plaintiff’s case, a galactomannan antigen was tested from
alveolar lavage fluid. He relies on the positive galactomannan assay from the alveolar lavage fluid
as confirmation of Plaintiff’s invasive aspergillosis diagnosis. (Id. at 6-7.)14 He also relies on
improved CT scans of Plaintiff’s lungs after treatment with Cresemba, an antifungal drug.15 (Id.
at 7.) The Court finds a triable issue of fact as to Plaintiff’s diagnosis of invasive aspergillosis.
Next, Defendants argue that even if Plaintiff has invasive aspergillosis, there is no evidence
linking it to mold in the Apartment. Defendants argue that aspergillus is ubiquitous in the
environment and Plaintiff could have come into contact with it anywhere.16 Moreover, they appear
to argue that there is no evidence of mold in the Apartment, relying on the APEX report. However,
as discussed above, Plaintiff retained Nick’s to conduct its own inspection of her Apartment, and
Nick’s concluded that the levels of aspergillus in the Apartment were twice the amount as in a
13 It is not clear from the record whether a sinus biopsy was conducted, and if not, whether this was
due to similar reasons for why a lung biopsy was not conducted.
14 In his report, Dr. Brownback further explains that the galactomannan assay detects major
constituents of the Aspergillus cell and is more sensitive to detect invasive aspergillosis than fungal
cultures. (Doc. 145-4 at 6.)
15 “Cresemba . . . is an azole antifungal indicated for the treatment of invasive aspergillosis and
invasive mucorymycosis.” Navigate Antifungal Treatment with CRESEMBA, https://www.cresemba.com/
[https://perma.cc/NF26-MSTT].
16 Defendants also argue that Dr. Brownback admits that aspergillus exposure through common
house plants is possible. (Doc. 148 at 5.) However, in Plaintiff’s additional statement of uncontroverted
facts, which the Court accepts as true for purposes of summary judgment, Plaintiff states that she had no
houseplants in the Apartment. (Doc 145 at 25, ¶ 5.)
baseline outside sample. Moreover, Plaintiff raises issues as to the accuracy and reliability of the
APEX report, including that a HEPA air scrubber (meant to remove mold spores from the air) was
running in the Apartment just prior to APEX’s inspection. The foregoing evidence raises an
inference that it was the heightened level of aspergillus in her Apartment, rather than the lower
level of aspergillus in the baseline sample, which caused her invasive aspergillus. At summary
judgment, “[t]he non-moving party receives the benefit of all reasonable inference supported by
the evidence.” Sturgeon v. Faughn, 36 F.4th 804, 808 (8th Cir. 2022); see also Brown, 456 S.W.3d
at 873 (drawing reasonable inferences in favor of non-movant and concluding sufficient evidence
of causation to avoid summary judgment where expert opined exposure to mold worsened
respiratory problems where medical conditions improved upon vacating an apartment).17
Finally, Defendants argue that any mold-related symptoms were limited to mild allergic
reactions which abated when Plaintiff left the Apartment. Again, Defendants rely heavily on their
own expert testimony while disregarding Plaintiff’s expert. Dr. Salzman opined that it is “likely”
Plaintiff “had allergic reactions manifested by runny nose, watery eyes, and cough due to exposure
to mold at her residence” and that such symptoms would resolve when she was no longer exposed
to mold. (Doc. 140 at 78.)18 Plaintiff’s expert testimony directly contradicts this proposition. Dr.
Brownback opines that Plaintiff developed bronchiectasis as a result of her invasive aspergillosis,
and that this condition will more likely than not require ongoing management from specialized
physicians with multiple treatments and medications for an infinite period. Dr. Ameet Deshmukh
also opines that Plaintiff requires, inter alia, lifelong monthly immunoglobulin infusion therapy,
ongoing antibiotics, and specialist care due to her invasive aspergillosis and its after-effects.
Thus, Defendants’ and Plaintiff’s experts provide competing testimony regarding medical
causation and the long-term effects of Plaintiff’s alleged mold exposure. “In determining whether
summary judgment is proper, the court should not weigh the evidence, make credibility
determinations, or attempt to discern the truth of any factual issue.” First Baptist Church v. Zurich
Am. Ins., 129 F.4th 488, 493 (8th Cir. 2025) (internal quotation marks omitted). Thus, the Court
17 In Brown, the court also stated that the identity of the toxic substance (i.e., the particular type of
mold) and the connection between exposure to that substance and the harmed suffered can be shown by
circumstantial evidence. Id.
18 Notably, at this point in Defendants’ expert report, their own expert attributes Plaintiff’s
symptoms to “mold at her Residence.”
finds that Plaintiff has established a sufficient issue of material fact as to medical causation, and
Defendants’ motion for summary judgment on this point is DENIED.
C. Missouri Merchandising Practices Act (“MMPA”)
Plaintiff’s MMPA theory contends that Defendants held out The Haven as a safe and
professionally managed apartment complex, when in actuality it suffered from mold infestation.
Defendants argue that Plaintiff’s MMPA claim fails as a matter of law because (1) Plaintiff cannot
establish any deceptive or unfair practice; (2) Plaintiff cannot establish ascertainable loss caused
by any deceptive or unfair practice; and (3) Plaintiff cannot prove a reasonable consumer would
have been misled.
The MMPA makes unlawful “[t]he act, use or employment by any person of any deception,
fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment,
suppression, or omission of any material fact in connection with the sale or advertisement of any
merchandise . . . .” Mo. Rev. Stat. § 407.020.1. “The term ‘merchandise’ includes ‘intangibles,
real estate or services.” Cheatem v. Landmark Realty of Mo., LLC, No. 20-cv-00958-BP, 2022
WL 5144772, at *3 (W.D. Mo. July 1, 2022) (quoting Mo. Rev. Stat. § 407.020.1). Plaintiff must
prove four initial elements to prevail on a claim under the MMPA: that she “(1) purchased
merchandise . . . from defendants; (2) for personal, family or household purposes; and (3) suffered
an ascertainable loss of money or property; (4) as a result of an act declared unlawful” under the
MMPA. Murphy v. Stonewall Kitchen, LLC, 503 S.W.3d 308, 311 (Mo. Ct. App. 2016) (citing
Hess v. Chase Manhattan Bank, USA, N.A., 220 S.W.3d 758, 773 (Mo. banc 2007)). Moreover,
following the 2020 amendments to the MMPA, Plaintiff must also establish:
(a) That the person acted as a reasonable consumer would in light of all
circumstances; (b) That the method, act, or practice declared unlawful by section
407.020 would cause a reasonable person to enter into the transaction that resulted
in damages; and (c) Individual damages with sufficiently definitive and objective
evidence to allow the loss to be calculated with a reasonable degree of certainty.
Mo. Rev. Stat. § 407.025.2; see Diesel v. Mariani Packing Co., Inc., No. 4:22-cv-01368-AGF,
2024 WL 4263944, at *4 (E.D. Mo. Sept. 23, 2024) (discussing 2020 amendments to MMPA, and
collecting cases which have required proving the three elements from the amendments and the
original four elements from the pre-amendment MMPA).
1. Deceptive or Unfair Practice under the MMPA
Plaintiff alleges that Defendants made false representations about the living conditions at
The Haven, specifically that they were professionally maintained and safe. Defendants argue that
the undisputed evidence shows no basis for such claims, i.e., that there is no evidence of mold in
the Apartment. Defendants rely on (1) the APEX report (which found no increased levels of mold
in the air in most parts of the Apartment and no visible fungal growth in the Apartment) and (2) Mr.
John P. Jurgiel’s testimony endorsing APEX’s conclusions and methodology and opining there is
no basis to conclude that Defendants’ portrayal of the property as professionally managed and safe
was false.
Mr. Jurgiel is a certified industrial hygienist retained by Defendants as an expert witness.
He provides testimony as to the significance of finding double the amount of
aspergillus/penicillium inside the Apartment compared to outdoors, explaining that while the
counts were numerically higher inside, that the levels were too low to be significant. However, as
discussed above, Plaintiff’s independently retained inspection company concluded that there was
two times the amount of aspergillus/penicillium inside the Apartment (compared to an outdoor
sample) and that there was stachybotrys which was not present outside at all. Plaintiff’s expert
Dr. Popov disagrees with Mr. Jurgiel and opines that the presence of aspergillus in the Apartment
at twice the outdoor concentration, as well as the presence of stachybotrys, is evidence of a mold
source inside the Apartment. (Doc. 145-2 at 3.) Moreover, Plaintiff took photographs that
allegedly show mold in the Apartment. (See Doc. 145-18.).
Therefore, the Court finds that issues of material fact remain as to the existence of mold in
the Apartment and thus whether Defendants misrepresented the conditions of the Apartment.19
2. Ascertainable Loss Caused by Unlawful Practice
Plaintiff’s theory of loss is that because the Apartment was infested with mold, she paid
rent for an apartment that was not habitable, and the conditions caused significant damage to her
health and property. Defendants argue that because Plaintiff has not proven that her claimed
injuries were caused by mold exposure in the Apartment, she cannot establish the “ascertainable
loss” element of her MMPA claim.
Having concluded above that Plaintiff has established a sufficient issue of material fact as
to the presence of mold in the Apartment, the Court concludes that she has similarly established a
19 Defendants also argue that Plaintiff signed a Mold Information and Prevention Addendum and
that this defeats her MMPA claim. However, Plaintiff controverts this fact, showing that the Addendum is
a two-page document with its own signature requirement, and that neither Plaintiff nor anyone on behalf of
Defendants signed it. Even if Plaintiff had signed this Addendum, its warning on how to prevent mold in
is not the same as warning a tenant that there actually is mold on the premises.
sufficient issue of material fact as to the ascertainable loss element of her MMPA claim. In other
words, she has presented evidence which a reasonable jury could conclude that Defendants’
conduct caused her loss/injuries. “To prove ascertainable loss, [p]laintiff must show that
[defendant] represented the [product] in a way that made it appear to have more value than it
actually did.” Stanford v. Samsung Elecs. Am., Inc., No. 4:24-cv-00114-BCW, 2025 WL 3724546,
at *3 (W.D. Mo. Aug. 20, 2024). Here, Plaintiff has presented evidence which indicates that there
were higher mold levels in the Apartment than in the surrounding outdoor environment. This leads
to a reasonable inference that the value of a mold infested apartment is less than the value of a
mold-free apartment such that Plaintiff has established sufficient evidence on the ascertainable
loss issue to survive summary judgment.20
3. A Reasonable Consumer Would Be Misled
Defendants argue that Plaintiff has identified no particular false statement or
misrepresentation, apart from that the property was represented as professionally managed, which
was misleading. Defendants further argue that the evidence does not indicate a significant mold
problem, so a reasonable consumer would not be misled by Defendants’ conduct. Given the
Court’s findings above regarding issues of material fact as to the existence of mold in Plaintiff’s
Apartment, Defendants’ arguments as to this element are unavailing. The Court concludes that a
reasonable juror could conclude that a reasonable consumer would be misled by Defendants’
holding out The Haven as professionally managed, if in fact Plaintiff establishes the existence of
mold in her Apartment. In other words, a reasonable consumer may be misled into renting a mold-
infested apartment where the landlord holds it out as professionally managed, and presumptively
mold-free. Defendants’ motion for summary judgment on Plaintiff’s MMPA claim is DENIED.
D. Breach of the Implied Warranty of Habitability
Defendants argue that Plaintiff’s breach of implied warranty of habitability claims fails
because (1) the premises were not unsafe or unsanitary; (2) Defendants properly responded upon
notice; and (3) any unsafe or unsanitary conditions were de minimis.
20 Moreover, Plaintiff’s alleged personal injury losses appear to be cognizable losses under the
MMPA. The MMPA precludes actions “for personal injury or death in which a claim can be made under
chapter 538,” § 407.025(3), which is the chapter regarding tort actions based on improper health care. This
exception does not appear to apply here.
Under Missouri law, “a landlord impliedly warrants the habitability of leased residential
properties.” Detling v. Edelbrock, 671 S.W.2d 265, 270 (Mo. 1984). To establish a breach of the
implied warranty of habitability, Plaintiff must prove: “(1) entry into a lease for residential
property; (2) the subsequent development of dangerous or unsanitary conditions on the premises
materially affecting the life, health and safety of the tenant; (3) reasonable notice of the defects to
the landlord; and (4) subsequent failure to restore the premises to habitability.” Hollifield v. Las
Cumbres, LLC, 655 S.W.3d 238, 242 (Mo. Ct. App. 2022) (quoting Moser v. Cline, 214 S.W.3d
390, 395 (Mo. Ct. App. 2007)).
First Defendants argue that the premises were not unsafe or unsanitary, relying on the
APEX report finding no visible indication of mold and no significant concentration of airborne
mold spores and Mr. Jurgiel’s testimony regarding that report. However, as discussed above,
Plaintiff has presented evidence which controverts Defendants’ statements of fact on this matter.
The Court also rejects Defendants’ argument that any unsanitary conditions were de minimis. See
Herr v. Min Zhao, 697 S.W.3d 589, 593 (Mo. Ct. App. 2024) (concluding that “mold in the
refrigerator,” among other things, was a condition that “materially affect[ed] the life, health, and
safety of Tenants” and supported a claim for breach of implied warranty of habitability). And, in
this case, Plaintiff’s allegations are that the alleged mold infestation caused invasive aspergillosis
and additional health issues. The Court concludes there is at least a triable issue of fact as to
whether the conditions in the Apartment were de minimis.
Defendants also argue that they remediated the mold issue upon receiving notice. As set
out above, Defendants retained APEX to investigate the Apartment which conducted an inspection
on December 13, 2023, and issued a report on December 20, 2023, recommending remediation
and to “restrict access to the apartment home” to anyone who is immunocompromised or elderly.21
(Doc. 140 at 97.) In their statement of uncontroverted material facts, Defendants state that they
followed APEX’s recommendations for remediation. In doing so, Defendants cite only the APEX
report. (Doc. 140 at 97-99.) As Plaintiff points out, this report is not evidence of Defendants’
post-report remediation—it only indicated that remediation was recommended. Thus, there is no
evidence in the record now before the Court that Defendants conducted any remediation to restore
21 Plaintiff was born in August 1948, (Doc. 140 at 75), and was in her early seventies while living
at The Haven.
the Apartment to habitability.22 See Kolb v. DeVille I Props., LLC, 326 S.W.3d 896, 902 (Mo. Ct.
App. 2010) (concluding that the “evidence in the case was sufficient to establish that deVille failed
to restore the premises to a habitable condition” where deVille “did not see any bedbugs” and only
“sprayed the apartment once with chemicals designed to kill bedbugs” but admitted that multiple
sprayings would be necessary to kill any bedbugs). In Kolb, the evidence showed that the property
owner had taken some steps to address the habitability complaint, but not enough to fully
remediate, and this was sufficient to show failure to return the premises to habitability. Here, there
is no such evidence that Defendants remediated the mold. Defendants’ motion for summary
judgment on Plaintiff’s claim for breach of the warranty of habitability is DENIED.
E. Negligence
Defendants argue that Plaintiff’s negligence claim fails because (1) Plaintiff cannot prove
breach of duty and (2) Plaintiff cannot prove causation or damages. The Court rejects Defendants’
argument regarding causation and damages for the reasons previously explained herein.
Plaintiff must establish the following elements to prevail on a negligence claim under
Missouri law: “(1) the defendant had a duty to the plaintiff; (2) the defendant failed to perform
that duty; and (3) the defendant’s breach was the proximate cause of the plaintiff’s injury.” Webb
v. Medicalodges, Inc., 728 F. Supp. 3d 1019, 1024 (W.D. Mo. 2024) (quoting Martin v. City of
Washington, 848 S.W.2d 487, 493 (Mo. banc 1993)). Additionally, “[i]n order to establish
negligence on the part of a landlord, the plaintiff is required to show that the defendant had either
actual or constructive knowledge of the hazardous condition.” Braun v. George C. Doering, Inc.,
907 S.W.2d 371, 373 (Mo. Ct. App. 1995).23
22 Plaintiff also argues that Defendants failed to promptly respond to and address repeated water
intrusion issues in the Apartment, referencing Plaintiff’s three work orders reporting water events. The
Court notes that there is a distinction between water intrusion and toxic mold contamination. Defendants
were not informed of Plaintiff’s belief of mold in her Apartment until around December 4, 2023. The
relevant consideration is what Defendants did to remediate this mold complaint, not Plaintiff’s prior
complaints about water intrusion.
23 More generally, landlords do not owe a duty to a tenant and are not liable for personal injury
caused by a dangerous condition of the premises. Caples v. Earthgrains Co., 43 S.W.3d 444,449 (Mo. Ct.
App. 2001). However, there are exceptions to this rule, as relevant here, where there is “a hidden dangerous
condition” or “where the landlord has a contractual obligation to make repairs and sufficient control or
access to the property.” Id. Plaintiff signed a residential lease agreement with Defendants which outlines
the owners’ (Defendants’) responsibilities which include making “all reasonable repairs” to the premises.
Defendants argue that Plaintiff has not presented evidence which could establish breach of
duty because Defendants did not have knowledge of the alleged mold in Plaintiff’s Apartment until
December 2023, after which they retained APEX to conduct testing. In Braun, a slip and fall case
concerning ice in a parking lot, the court found that the defendants had constructive knowledge of
the iced-over parking lot because (1) “Defendants admitted that they knew a danger existed when
snow melted during the day and refroze at night,” (2) “Defendants had recognized the danger in
the past and had salted the areas of the parking lot near the building when necessary,” and (3)
despite the foregoing, “on the night at issue, Defendants made no attempt to remedy the potentially
dangerous condition.” Id. at 374. The Court finds Braun informative here.
Maintenance Technician Hodges testified that water intrusion demands urgent response
and that “[w]ith water comes mold if it sits long enough.” (Doc. 145 at 29, ¶ 24.) This indicates
that Defendants knew a danger of mold development existed if water intrusion events were not
responded to quickly and properly. Second, it appears from the record that Defendants had
recognized this danger in the past. Defendants had received recurring water intrusion reports
related to units’ HVAC closets condensing in at least ten units, and Defendants had received prior
mold complaints in other units. Finally, and despite the foregoing, Plaintiff has presented evidence
that Defendants did not follow their written mold-response plans, that Defendants failed to respond
to water intrusion reports timely, that when Defendants did respond to water intrusion they did not
properly remediate the issue, and that Defendants did not test Plaintiff’s Apartment for mold prior
to her moving in. Plaintiff has produced evidence sufficient to create a triable issue of fact as to
Defendants’ constructive knowledge of water intrusion and mold development in the Apartment,
and thus of Defendants’ breach of duty. Defendants’ motion for summary judgment as to
Plaintiff’s negligence claim is DENIED.
F. Punitive Damages Claim
Finally, Defendants argue that Plaintiff’s claim for punitive damages should be dismissed
because (1) they are not liable for the underlying causes of action and (2) the evidence does not
establish that Defendants’ conduct rose to the level of complete indifference to or conscious
(Doc. 140 at 35.) Plaintiff also notes that mold is a hidden condition to the extent it may be present behind
walls or vents.
disregard for the safety of others. Defendants’ first argument is unavailing given the Court’s
findings above.
When exercising diversity jurisdiction, the Court applies state substantive law to any state-
law claims, which includes punitive damages standards. See May v. Nationstar Mortg., LLC, 852
F.3d 806, 813-14 (8th Cir. 2017) (applying Missouri punitive damages standards). “Generally,
under Missouri law an award of punitive damages requires a ‘willful, wanton or malicious culpable
mental state.’” Chariton Vet Supply, Inc. v. Moberly Motor Co., No. 2:08CV47MLM, 2009 U.S.
Dist. LEXIS 31873, at *12 (Mo. Ct. App. Apr. 15, 2009) (quoting May v. AOG Holding Corp.,
810 S.W.2d 655, 660 n.1 (Mo. Ct. App. 1991)). “For purposes of punitive damages, acting
willfully, wantonly, or maliciously is equivalent to acting with a complete indifference to or in
conscious disregard for the rights or safety of others.” Rhoden v. Mo. Delta Med. Ctr., 621 S.W.3d
469, 481 (Mo. 2021) (quoting Bell v. Redjal, 569 S.W.3d 70, 89 (Mo. Ct. App. 2019)). Certain
considerations as to whether evidence on punitive damages presents a sufficient issue for jury
determination include whether “prior similar occurrences known to the defendant have been
infrequent; the injurious event was unlikely to have occurred absent negligence on the part of
someone other than the defendant; and, the defendant did not knowingly violate a statute,
regulation, or clear industry standard.” Lopez v. Three Rivers Elec. Coop., 26 S.W.2d 151, 160
(Mo. 2000).
Here, Plaintiff has presented sufficient evidence to create a triable issue of punitive
damages. Specifically, Plaintiff has presented evidence that Defendants disregarded their written
Operations and Management Plan, which included water intrusion and mold response guidelines.
Plaintiff has presented evidence that Defendants did not maintain the required Mold Incident
Tracking Log. Certain employees of Defendants have testified that they have never seen the
Operations and Management Plan. And Defendants did not follow the requirement to respond to
water and mold events within 24 hours, including as to one of Plaintiff’s own complaints of water
intrusion on August 1, 2023, which took sixteen days for Defendants to respond to. (Doc. 145 at
30, ¶ 25.) When Defendants responded to this water intrusion, they merely cleaned the
condensation line and painted over the water-damaged baseboard. Defendants did not remove
water-damaged materials, moisture-test the wall cavity, or apply antifungal treatment. Further,
Plaintiff has presented evidence which shows that Defendants were aware of a recurring water
intrusion issue with HVAC closets, which has affected at least ten units. Defendants also received
complaints of mold from other residents. (Doc. 145 at 28, ¶ 19 (complaints of mold in units 1018,
1027, and 1029).) All of this was done in the context of Defendants knowing that water intrusion
demands urgent response because “[w]ith water comes mold if it sits long enough.” (Doc. 145 at
29, ¶ 24.)
On this record, a reasonable juror could find Defendants acted with “complete indifference
or conscious disregard for the rights or safety of others.” Defendants’ motion for summary
judgment as to Plaintiff’s claim for punitive damages is DENIED.
Conclusion
Accordingly, after careful consideration and for the reasons explained above, the Court
ORDERS as follows:
(1) Defendants’ motion for sanctions for spoliation of evidence, (Doc. 134), is GRANTED
in part and DENIED in part. Accordingly, Plaintiff and her experts are precluded
from offering testimony or argument that any of the discarded items were contaminated
with mold or that testing those items would have supported her claims, and plaintiff
counsel is precluded from making arguments or inferences of the same; and
(2) Defendants’ motion for summary judgment, (Doc. 139), is DENIED.
IT IS SO ORDERED.
/s/ Roseann A. Ketchmark
ROSEANN A. KETCHMARK, JUDGE
UNITED STATES DISTRICT COURT
DATED: July 6, 2026