Lady Justice
KANSAS CITY — A federal judge has denied a bid by Haven Creek Limited Partnership and Sentinel Real Estate Corporation to end a lawsuit brought by a former tenant, finding that disputes over mold, medical causation and the apartment complex’s response to water intrusion must be decided at trial.
In a July 6 order, U.S. District Judge Roseann A. Ketchmark also granted in part and denied in part the defendants’ request for sanctions over property Rebecca Kintz discarded before filing the case.
Kintz and her experts will not be allowed to argue that the discarded items were contaminated with mold or that testing them would have supported her claims.
The court denied the defendants’ request for an adverse-inference instruction and attorney fees.
Kintz alleges that an apartment she rented at The Haven at Shoal Creek became infested with harmful and toxic mold, causing personal injury and property damage.
She has sued the property’s owner and manager under the Missouri Merchandising Practices Act, for breach of the implied warranty of habitability and negligence.
The court denied summary judgment on all of those claims. Ketchmark wrote that competing expert opinions and conflicting mold-inspection results created material factual disputes that a jury, rather than the court, must resolve.
Kintz moved into Apartment 1013 in July 2022 and submitted three work orders involving water intrusion or mold, according to the order.
The Aug. 1, 2023, work order reported staining on living-room woodwork from a leak and water that had drained from the ceiling onto a porch wall.
Work was not completed until Aug. 17, the order states. The defendants cleaned a “condensation line” and had a painter paint a water-damaged baseboard, but did not remove water-damaged materials, moisture-test the wall cavity or apply antifungal treatment, according to the court.
An inspection company retained by Kintz conducted mold testing on Nov. 30, 2023. Its report found Aspergillus/Penicillium inside the apartment at more than twice the outdoor concentration and found Stachybotrys inside, but not in the outdoor sample.
A consultant retained by the defendants later found no significant airborne fungal-spore concentrations in most areas of the apartment, though the guest bedroom had elevated spore counts. That consultant reported no visible fungal growth.
The judge said those differing findings, along with expert testimony, were enough to leave the mold question for trial.
Kintz’s environmental expert concluded that the apartment units were not maintained in a safe, healthy and professionally managed manner, while the defendants’ expert disputed the significance of the inspection results.
Kintz alleges her health deteriorated after she moved into the apartment. Her medical expert opined that she developed invasive pulmonary aspergillosis in 2023 due to exposure to aspergillus and later developed bronchiectasis.
The defendants’ medical expert disputed whether the medical records supported a diagnosis of invasive aspergillosis and argued there was no evidence connecting any such condition to the apartment. The court ruled that it could not weigh those competing opinions at the summary-judgment stage.
The order also cites evidence that The Haven had recurring water-intrusion issues involving HVAC closets, including complaints of mold in other units.
The property’s operations plan required employees to respond to water intrusion and mold events within 24 hours, maintain a mold incident tracking log and conduct follow-up inspections.
The general manager testified that she did not maintain the required log, and a designated corporate representative testified that he had not seen the operations plan or any mold incident tracking log, according to the order.
On sanctions, the court found that Kintz discarded porous furnishings, air-filtration devices and CPAP-related materials during remediation and her move-out in January 2024.
The judge found no showing that she disposed of them to suppress the truth, rejecting an adverse-inference instruction.
But because the defendants could no longer conduct item-specific testing of property Kintz claims was contaminated, the court barred testimony or argument asserting that the discarded items had mold or that testing would have supported her case.
The limitation does not bar evidence based on apartment testing, photographs, remediation records, retained property or other admissible observations.
U.S. District Court for the Western District of Missouri, Western Division case number: 4:24-cv-00507
