IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON BONNY M. BOLSON, Appellant,

v. HAYDEN G. WILLIAMS and DONITA C. WILLIAMS,individually and on behalfof the marital community composed thereof; WILLIAMS &SCHLOER, CPA'S, P.S., a Washington professional service corporation, Respondents. No. 71365-5- DIVISION ONE UNPUBLISHED OPINION

FILED: May 27, 2014 C3 n

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._ o O-r, 1X3 -r) -~1 33» com;... 3T 2~2>l~ VO C~lOO O o— CO 2C< Appelwick, J. — Bolson sued her former employer, W&S, alleging that W&S's 

### negligent cleanup ofthe office after a flood resulted in mold growth, which proximately caused her sarcoidosis. On W&S's motion for summary judgment, the trial court dismissed Bolson's claims for lack of medical causation. We affirm in part, reverse in part, and remand. FACTS 

### Respondent, Williams & Schloer, CPA's, Inc. (W&S), is a small accounting firm located in Puyallup, Washington, nearthe PuyallupRiver. W&S is owned and managed 

### byRespondents HaydenWilliams and DonitaWilliams, who are husband andwife, and their daughter Tina Schloer. W&S employed Appellant Bonny Bolson as a tax accountantand enrolled agentfromJanuary 28, 2003 until December 3, 2010 In 1985, Bolson was diagnosed with a "very high allergic response to mold and mites" after she experienced unusually intense headaches and fatigue. Her doctor advised her to avoid additional exposure. Bolson moved to a new home, because herNo. 71365-5-1/2
olderrental house was triggering her mold allergy. InFebruary 2005, Bolson was again exposed to mold in her home. She experienced watery eyes, fatigue, and facial 

### swelling as a result. She again had to move to a new home. On January 20, 2008, medical imaging ofBolson's lungs showed nothing abnormal. On January 7, 2009, a severe storm caused massive flooding nearthe Puyallup River. Floodwaters rose to the first floor ofthe W&S office building. 

### The day after the flood, W&S initiatedcleanup and repair of the flooded office building. W&S rented box fans and dehumidifiers, opened up the offices forventilation, tore out all the carpeting and padding, and either dried or threw away all wet personal 

### property. The subfloor was checked for wetness and damage, and a contractor was 

### brought in to remove and dispose ofall insulation. Bleach and othercleaning products

were applied during the process. The flood occurred during a busy tax season, so W&S set up a temporary 

### workspace in the back of the building. However, several employees, including Bolson, worked from home during the cleanup. Bolsoncame to the office to get files ordiscuss 

### projects with Schloerfor an hour ortwo every couple of days. Bolson's own records indicate that she was present in the office every few days to return client calls and
review files. 

### During the cleanup, there was a damp smellfrom the moisture, a smell of bleach and sawdust, and a lot ofnoise. Employees complained to W&S about the smell and 

### noise of the repair work. W&S acknowledged that itreceived complaints from Bolson 

### and otheremployees about coughing, headaches, and irritated eyes during the cleanup.No. 71365-5-1/3


### Concerned about the musty smell, a few W&S employees purchased two petri dish mold tests at the local hardware store. They put one petri dish inthe parking lotas a control and one inthe main part ofthe office. The one inthe office showed a variety 

### of mold spots and the one in the parking lot had one or two mold spots. W&S did not send the mold tests in for lab analysis. One employee remembered thatW&S did not wantthe moldtests to be analyzed, because remediation was stillongoing. 

### In mid-January 2009, Bolson began experiencing flu-like symptoms, coughing, 

### and fatigue. ByFebruary, she also began experiencingbackaches and started seeing a chiropractor. In March 2009, Bolson was screened for a kidneyinfection, which came 

### back negative. She continued to experience flu-like symptoms and allergies until July 2009, when she returned to the doctor. The doctors performed an x-ray and computed 

### tomography (CT) scan onBolson, which revealed abnormal scarring in herlungs. After biopsying Bolson's lungs, her doctors diagnosed herwith sarcoidosis—an inflammatory diseasethat can affect any organ in the body, but most commonly affects the lungs. 

### In September 2009, Bolson's sarcoidosis was determined to be clinically stable. 

### Upon evaluating Bolson and reviewing three studies on sarcoidosis, Dr. Louis Lim believed that "there is insufficientevidence to suggestthat her sarcoid was the result of 

### her work exposure on a more probable than not basis. It is possible that the environment may have contributed to the development of her illness
. . .although the time frame would be unusually rapid." A colleague of Dr. Lim's agreed with this
conclusion.No. 71365-5-1/4
On December 9, 2010, Bolson filed a workers' compensation claim with the 

### Washington Department of Labor and Industries (L&l), alleging sarcoidosis due to workplace exposure. L&l rejected Bolson's claim, concluding that she had not suffered an industrialinjury oroccupational disease required forworkers' compensation benefits. On February 29, 2012, byamended complaint, Bolson sued W&S fornegligence, premises liability, negligent infliction of emotional distress (NIED), and intentional infliction ofemotional distress (outrage). She alleged thatW&S's negligence incleaning 

### up the officeresulted in mold growth, which proximatelycaused her sarcoidosis. 

### On July 5, 2012,W&S moved for summary judgment. W&S argued that Bolson's claims should be dismissed, because she had not produced any expert testimony on 

### medical causation. W&S also argued that Bolson should be collaterally estopped from 

### pursuing claims dependent onmedical causation, because she alreadylitigated and lost the issue inherworkers' compensation claim. 

### In her opposition to W&S's motion for summary judgment, Bolson attached a declaration from Jack Thrasher, Ph.D. Thrasher has extensive experience, training, 

### and education in the fields of toxicology and immunotoxicology. In his declaration, he 

### explained that toxicology is the study of the adverse effects of chemicals on living organisms, including humans. He defined immunotoxicology as the study of adverse effects on the immune system resulting from exposure to physical factors, chemicals, biological materials, and medical devices. Thrasherhas specific expertise intoxicology and immunotoxicology as they apply to mold, fungi, and bacteria resulting from water intrusion in indoor environments.No. 71365-5-1/5
Thrasher reviewed Bolson's case file, including the parties' declarations and Bolson's medical records. He explained that floodwater carries "microbes (including 

### bacteria and mold), silt, and other organic matter into structures and create[s] black water conditions." As such, he believed that "[potentially dangerous and pathogenic mold and bacteria were more likely than not present inthe water-damaged interior" of 

### the W&S building. He further explained that W&S's use of box fans constantly circulated sawdust containing "mold, bacteria, pathogen by-products, and other particulates." Thrasher stated that, because of Bolson's preexisting mold allergy, she should not have been allowed inthe office during remediation. He concluded: 

### 28. It is my professional opinion that Ms. Bolson's Sarcoidosis 

### was, on a more probable than not basis, caused by herexposure to mold, its by-products, and other environmental contaminants that were present intheW&S officeimmediately afterthe January 2009 flood. 29. Further, even if Ms. Bolson had pre-existing conditions or 

### illnesses, it is my opinion, on a more probable than not basis, that her 

### exposure to the contaminated work environment exacerbated the injuries she suffered and continues to suffer. 

### Bolson argued that Thrasher's opinion was sufficient experttestimony on the issue of
medical causation. Bolson also moved to strike and exclude any evidence of her L&l claim, and 

### moved to seal any related evidence already submitted by W&S. W&S opposed Bolson's motion to strike the L&l records. 

### In reply to Bolson's opposition to summary judgment, W&S asserted that Thrasher's opinion was insufficientto meet the standards for expert testimonylinking a 

### specifictoxic exposure to a specific medical condition. W&S pointed out that ThrasherNo. 71365-5-1/6
did not examine Bolson, did not inspectthe W&S building, and did not make any finding about specific mold that might lead to sarcoidosis. W&S argued that Bolson failed to establish a factual and scientific link between her exposure to an airborne toxin at the W&S office and her sarcoidosis. At a hearing on W&S's motion for summary judgment, the trial court orally granted Bolson's motion to exclude the L&l records and stated that it would not rely on those records. The trial court reasoned that L&l records are discoverable for review by the parties, but not admissiblefor any dispositive motion. The trial court also orally granted summary judgment for lack of medical causation. The trial courtexplained: It's not sufficient to have someone who is not a medical doctor telling thejury to draw conclusions on this sort of thing. There has to be a connection done bymedical testimony as far as Iread the law. I understand a reviewing court may disagree with me on that, but 

### my reading of the reviewing courts repeatedly is that that is the requirement. Now, there are exceptions, and Iappreciate that. Doctor takes off 

### the wrong leg, you don't need a doctor telling him he took offthe wrong leg; that's kind of a famous case. But this case here does require someone to drawthe connection, the proximate cause between the two on a more likely than not basis. And it's not present in this case that Icould find. And Dr. Thrasher doesn't have the skill. He's not the expert to do that, irrespective of his conclusions. Therefore, summaryjudgmentwill be granted. On August 3, 2012, the trial court entered a written ordergranting W&S's motion 

### for summaryjudgment. The court noted that it did not considerthe L&l files. The trial court also denied Bolson's subsequent motion for reconsideration. Bolson appeals.No. 71365-5-1/7

DISCUSSION Bolson argues on appeal thatthe trial court erred in requiring experttestimony to establish that workplace exposure to mold proximately caused her sarcoidosis. She 

### also argues that, even if expert testimony was required, the trial court erred in concluding that her expert toxicologist was not qualified as a medical expert under Washington law. She further asserts that the trial court erred in dismissing both her NIED and outrage claims. 

### We review an order granting summaryjudgment de novo. Hadlev v. Maxwell. 144 Wn.2d 306, 310-11, 27 P.3d 600 (2001). Summaryjudgment is proper only when 

### there are no genuine issues of material fact and the moving party is entitled to judgment
as a matter oflaw. CR 56(c); Peterson v. Groves, 111 Wn. App. 306, 310, 44 P.3d 894 

### (2002). Wereviewall facts, and reasonableinferences drawnfrom thefacts, inthelight most favorable to the nonmoving party. CTVC ofHaw.. Co. v. Shinawatra, 82 Wn.App. 699, 708, 919 P.2d 1243, 932 P.2d 664 (1996). On a motion for summaryjudgment, 

### courts do not weigh evidence orassess witness credibility. Barker v. AdvancedSilicon Materials, LLC, 131 Wn. App. 616, 624, 128 P.3d 633 (2006). 

### In a negligenceclaim, the plaintiffmust establish that (1) the defendant owes the 

### plaintiffadutytoconformto a certain standard ofconduct; (2) a breach of thatduty; (3)
a resulting injury; and (4)proximate causebetween the breach and the injury. Cameron
v. Murray, 151 Wn. App. 646, 651, 214 P.3d 150 (2009). To recover for NIED, the 

### plaintiff must prove the four elements of negligence, as well as objective symptomatology. Kloepfelv. Bokor. 149Wn.2d 192, 199, 66 P.3d 630(2003).No. 71365-5-1/8
A proximate cause of an injury is defined as a cause that, in a direct sequence, unbroken by a new, independent cause, produces the injurycomplained ofand without which the injury would not have occurred. Fabrique v. Choice Hotels Int'l. Inc., 144 Wn. App. 675, 683, 183 P.3d 1118 (2008). Issues of negligence and proximate cause are generally not susceptible to summary judgment. Ruff v. County of King, 125 Wn.2d 697, 703, 887 P.2d 886 (1995). Only when reasonable minds can reach but one conclusion may questions of fact be determined as a matterof law. ]d. at 703-04. I. The Need for Expert Testimony 

### Bolson argues thatthe trial court erred when itdetermined that experttestimony
was required to establish that workplace exposure to mold proximately caused her sarcoidosis. Bolson contends that a jury could infercausation, without the need of an 

### expert, based on the close temporal proximity between the W&S's conduct and her injuries. 

### When the results of allegedly negligent conduct are within the experience and 

### observation of an ordinary lay person, the trier of fact can draw a conclusion about causation withoutexperttestimony. Riqqins v. Bechtel Power Corp., 44 Wn. App. 244, 254, 722 P.2d 819 (1986). For example, no expert testimony is required where a 

### physician amputates the wrong limb or pokes a patient in the eye while stitching a wound on the face. Beroerv. Sonneland, 144Wn.2d91, 111, 26 P.3d 257 (2001). 

### However, evidence establishing proximate cause must rise above speculation, 

### conjecture, or mere possibility. Attwood v. Albertson's Food Ctrs., Inc., 92 Wn. App. 326, 331, 966 P.2d 351 (1998). Experttestimony istherefore required wherethe nature

8No. 71365-5-1/9
of "the injury involves obscure medical factors which are beyond an ordinary lay person's knowledge, necessitating speculation in making a finding." Riqqins, 44 Wn. App. at 254. The expert must be able to testify that the alleged negligence "'more likely than not'" caused the harmful condition leading to injury. Attwood, 92 Wn. App. at 331 (quoting Merriman v. Toothaker, 9 Wn. App. 810, 814, 515 P.2d 509 (1973)). For instance, expert testimony was required when truck drivers alleged that multiple airborne chemicals in company trucks caused them to experience skin rashes, respiratory symptoms, nose bleeds, headaches, and other symptoms. Bruns v. PACCAR, Inc., 77 Wn. App. 201, 203, 214-15, 890 P.2d 469 (1995). Similarly, when a firefighter had multiple heart problems unrelated to his employment, expert testimony


### was necessary to establish whether his heart disease was caused by occupational exposures. City ofBellevue v. Raum, 171 Wn. App. 124, 153-54, 286 P.3d 695 (2012), review denied, 176 Wn.2d 1024, 301 P.3d 1047 (2013). Experttestimony was likewise needed when a hotel patron contracted salmonella in the hotel restaurant and 

### subsequently developed a reactive arthritis. Fabrique, 144 Wn. App. at 687-88. In all three of these cases, temporal proximity between the harmful condition and the plaintiffs' injuries was insufficientto establish causation. The same is true here. Sarcoidosis is an inflammatory disease that can appear inalmostany body organ, but most commonly affects the lungs. An ordinary layperson may not be familiar with sarcoidosis; indeed, an ordinary lay person may never have heard of sarcoidosis. There is no connection obvious to a lay person between mold 

### exposure and sarcoidosis. Thus, an expert must establish that link. Otherwise, the juryNo. 71365-5-1/10
would be left to speculate as to the possible causes of sarcoidosis. This is impermissible under Washington law. We hold that expert testimony is required to establish that Bolson's sarcoidosis was more likely than not caused by her workplace exposure to mold.

II. Dr. Thrasher's ExpertTestimony Bolson argues that the trial court erred ingranting summaryjudgmentfor lack of causation, because the court failed to properly recognize Dr. Thrasher's qualifications
as an expert. Bolson contends that the trialcourterroneously concluded that a medical 

### doctor must testify to causation. Instead, Bolson argues, Thrasher's decades of 

### experience as a toxicologist and immunotoxicologistqualifyhim to testify that workplace moldexposure proximately caused her sarcoidosis. Bolson asserts that any remaining 

### challengesgo to theweightandcredibilityofhistestimonyratherthanits admissibility.1 Expert testimony must demonstrate that the defendant's conduct "'probably'" or "'more likely than not'" caused the injury, rather than "'might have,'" '"could have,'" or "'possiblydid.'" Fabrique, 144 Wn. App. at 687 (quoting Uqolini v. State Marine Lines, 71 Wn.2d 404, 407, 429 P.2d 213 (1967)). Importantly, experttestimony mustbe based


### 1 Bolson also argues that W&S failed to preserve any challenge to the 

### admissibility ofThrasher's opinion, because W&S did not move to strike Thrasher's declaration or challenge his expert qualifications under ER 702. However, materials submitted in connection with a motion for summary judgment cannot actually be 

### stricken—the trial court only refuses to considerthe evidence. Parks v. Fink, 173 Wn. 

### App. 366, 374 n.7, 293 P.3d 1275, review denied, 177 Wn.2d 1025, 309 P.3d 504 

### (2013). As such, a party can object to the admissibility of the evidence in a reply brief rather than by a separate motion to strike. ]d, Thus, objecting to an affidavit filed in support of a motionfor summary judgmentpreservesthe issue on appeal. Bonnevillev. Pierce County, 148 Wn. App. 500, 508-09, 202 P.3d 309 (2008). W&S objected to 

### Thrasher's opinion in its summary judgment reply brief, and so we may properly considerthe issue on appeal.

10No. 71365-5-1/11

on the facts of the case and not on speculation or conjecture, jd. Finally, such testimony must be based upon a "reasonable degree of medical certainty." id. at 687- 88. Washington courts have explicitly refused to create a per se rule that medical doctors must testify to causation. See, e.g., Harris v. Robert C. Groth, M.D., Inc., 99 Wn.2d 438, 449-50, 663 P.2d 113 (1983). Per se limitations on the testimony of otherwise qualified nonphysicians are not inaccord withthe general trend inevidenceto 

### move away from requiring formal titles and degrees. Goodman v. Boeing Co., 75 Wn. App. 60, 81, 877 P.2d 703 (1994). Training in a related field or academic background 

### alone may be sufficient. Id. The Washington Supreme Court explained that "'the line 

### between chemistry, biology, and medicine is too indefinite to admit of a practicable 

### separation of topics and witnesses.'" Harris, 99 Wn.2d at 450 (quoting 2 J. Wigmore, Evidence § 569, at 790 (rev. 1979)). Thus, whether an expert is licensed to practice medicine is "certainly an important factor to be taken into account in making this determination," but is not dispositive. Id, at 450-51. Furthermore, it is worth 

### emphasizing that the medical diagnosis of sarcoidosis is not at issue here, only the

cause ofthe sarcoidosis. In Loudermill v. Dow Chemical Co., the plaintiffoffered expert testimony from a 

### toxicologistwith doctoraldegrees in toxicology and chemistry, but notin medicine. 863 F.2d 566, 568 (8th Cir. 1988). The toxicologist testified, to a high degree of medical 

### probability, that chemicalexposure caused the plaintiff's cirrhosis of the liverand death. \± Onappeal, the defendantargued that (1) the toxicologist did notpossess the proper

11No. 71365-5-1/12 qualifications to offer expert testimony on the effects of the plaintiff's exposure to 

### chemicals, (2)thetoxicologist could not offer opinions as to medical probabilitybecause he was not a medical doctor, and (3) the toxicologist's opinions were based entirely upon speculation and conjecture. Id at 567. 

### The Eighth Circuit concluded that the toxicologist's testimony was properly admitted. Id at 570. He had extensive knowledge of toxicology and the liver, and his 

### testimony to that effectassisted the trier of fact. Id at 568-69. Thetoxicologist's lackof


### a medical degree went to the weight and value of histestimony, which isfor thejuryto evaluate. Id at 570. He examined microscopic specimen slides, pathology and 

### autopsy reports, government records, andpublications concerning liverinjuries caused 

### by halogenated hydrocarbons. Id. This factual basis likewise wentto thecredibility of his opinion, notits admissibility, |d We also recently recognizedthattheweight, ifany, to begiven to anexpert's opinion basedsolelyon amedical records review, ratherthan 

### aphysicalexam, iswithinthejury'sprovince. Raum, 171 Wn. App. at 154n.25. Similarly, the Third Circuit in Gentv v. Resolution Trust Corp. recognized that medical doctors are not the only experts qualified to render an opinion as to the harm 

### causedby exposuretotoxic chemicals. 937 F.2d 899, 917 (3d Cir. 1991). The Genty court held that exclusion of a toxicologist's testimony "without considering his 

### credentials as a doctor oftoxicology, simply because he did not possess a medical degree, isinconsistentwith expert witnessjurisprudence." Id Dr. Thrasher has extensive experience in the fields oftoxicology (45 years) and 

### immunotoxicology (25 years). In 1964, he received his doctorate in human anatomy

12No. 71365-5-1/13
and cell biology from the School of Medicine at University of California, Los Angeles (UCLA). He worked as an assistant professor of human anatomy at both the UCLA School ofMedicine and the University ofColorado School ofMedicine. As a professor, he conducted "research in cell biology, with a focus on the effects of aging, air 

### pollutants, environmental radiation, and organo-mercurial compounds." He has published extensively on the topics of toxicology and immunotoxicology, and has held leadership roles at several medical and research facilities. 

### Dr. Thrasherdefined toxicologyas the "study of the adverse effects ofchemicals


### onlivings systems, whether they be human, animal, plant, ormicrobe." "Adverseeffect"
means anything from a lifethreatening injuryto a minorannoyance. Thrasher explained 

### that toxicology is an interdisciplinary science that integrates the fields of chemistry, 

### biology, pharmacology, molecular biology, physiology, and medicine. Black's Law Dictionary likewisedefines toxicology as the "branch of medicine that concerns poisons, 

### their effects, their recognition, their antidotes, and generally the diagnosis and 

### therapeutics ofpoisoning; the science ofpoisons." Black's Law Dictionary 1629(9th ed. 2009). 

### Similarly, Thrasherdefinedimmunotoxicology as the "study ofadverse effects on the immune system resulting from exposure to physical factors, chemicals, biological materials, medical devices and, in certain instances, physiological factors, collectively 

### referred to as agents." It encompasses the study of "immune pathologies associated 

### with exposure of humans and wildlife species, including allergy, immunedysregulation, 

### autoimmunity, and chronic inflammation." Thrasher has specific expertise in these

13No. 71365-5-1/14
fields as they apply to "mold, fungi, bacteria, mycotoxins, and indoor environment resulting from water intrusion." Thrasher reviewed Bolson's case file, including the parties' declarations and Bolson's medical records. Thrasher opined that the musty odor, various mold spots on the indoor mold test kit, and the employees' physical reactions "indicated mold and bacteria growth" in the W&S office building. Thus, he concluded, "[pjotentially dangerous and pathogenic mold and bacteria were more likelythan not present in the water-damaged interior." Similarly, Dr. Lim believed that it was "possible that the environment may have contributed to the development of [Bolson's] illness," even 

### though he went on to note that the "time frame would be unusually rapid." Viewing 

### these facts in the light most favorable to Bolson, we can infer for summaryjudgment purposes thatmoldwas presentintheW&S office during cleanup. From there, both Dr. Thrasher and Dr. Lim relied on research publications to 

### support their positions. Thrasherread several peerreviewedpapers on sarcoidosis and discovered at least 18 recent publications on the association ofdampness, mold, and sarcoidosis. Incontrast, Lim studied onlythree reports, whichThrasher also reviewed. 

### Thrasher explained that even these three reports state that exposure to bioaerosols in damp indoor spaces is associated withsarcoidosis. Based on Thrasher's decades ofexperience in toxicology, his specific expertise inwater intrusion into indoor spaces, his review ofthe case files and Bolson's medical records, and his research on sarcoidosis, Thrasherconcluded "on a more probablethan notbasis" that Bolson's workplace exposureto mold caused her sarcoidosis. And, even

14No. 71365-5-1/15
ifBolson had preexisting conditions or illnesses, Thrasher believed, again on a more probable than not basis, that the contaminated work environment "exacerbated the injuries she suffered and continues to suffer." These conclusions fell within Thrasher's particular area of expertise as a toxicologist and immunotoxicologist. Based on the definition in Thrasher's declaration and in Black's Law Dictionary, a toxicologist is a medical expert capable ofrecognizing and diagnosing symptoms caused byexposure to mold. Challenges to the factual basis 

### ofThrasher's opinions and his lack of a medical degree go to the weight and credibility 

### of his testimony, not its admissibility. The fact that Dr. Lim reached a different conclusion simplysets up "'aclassic battle of the experts, a battle in which the jury must decide the victor.'" Intalco Aluminum Corp. v. Dep'tofLabor &Indus., 66 Wn. App. 644, 

### 662, 833 P.2d 390 (1992) (quoting Ferebee v. Chevron Chem. Co., 736 F.2d 1529, 1535 (D.C. Cir. 1984)). 

### Accordingly, we reverse the trial court's dismissal of Bolson's negligence and NIED claims for lack ofmedical causation.2

III. Outrage 

### Bolson argues that the trial court erred in dismissing her outrage claim. She contends that she does not need to demonstrate a causal connection between the


### 2Bolson argues that the trial court erred when itgranted summaryjudgment on 

### the remaining elements of negligence, because there are disputed issues ofmaterial fact. W&S argues that dismissal was proper on the alternativebases that Bolsonfailed to establish the relevant standard ofcare or any breach ofthat standard. However, the 

### trial court granted summary judgment solely based onlack of causation. Itis clearfrom the record that the trial court did not consider any of the remaining elements of 

### negligence. Because the trial court did not consider the remaining elements of negligence, neitherdo we.

15No. 71365-5-1/16
defendant's extreme and outrageous conduct and her emotional distress. She argues thatthe courtmay presume emotional distress oncethere is outrageous conduct. To establish the tort of outrage, a plaintiff must show: (1) extreme and outrageous conduct; (2) intentional or reckless infliction of emotional distress; and (3)

severe emotional distress as a result. Reid v. Pierce County, 136 Wn.2d 195, 202, 961 P.2d 333 (1998). While a showing of bodily harm is not necessary, the extreme and outrageous conduct "must result in severe emotional distress to the plaintiff." Grimsby
v. Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975) (emphasis added and omitted). Bolson is incorrect that she need not show any causal connection between the 

### purportedly outrageous conduct and her emotional distress. A causal link is clearly required. Furthermore, Bolson fails to meet the high bar for establishing extreme and 

### outrageous conduct. The conduct must be "'so outrageous in character, and so extreme indegree, as to go beyond allpossible bounds ofdecency, and to be regarded


### as atrocious, and utterly intolerable in a civilized community.'" id (emphasis omitted) (quoting Restatement(Second) ofTorts § 46 cmt. d (1965)). For instance, in Birklid v. Boeing Co., Boeing began using a new material in its 

### airplanes that was impregnated with a toxic chemical. 127 Wn.2d 853, 856, 904 P.2d 278 (1995). Employees soon began experiencing harmful physical reactions to the chemical and eventually sued Boeing for outrage, id. at 856-57. They alleged that 

### Boeing knowingly exposed them to the toxin; removed labels on the chemical; denied
access to material safety data sheets; harassed employees who requested protective

16No. 71365-5-1/17 equipment or sought medical treatment; altered the workplace during governmental safety tests to disguise harm from the chemical; and experimented with exposing employees to the toxin without their informed consent. \± at 857. The Washington Supreme Court concluded that the employees stated a claim for outrage based on this conduct. Id at 868. W&S's conduct that Bolson alleges to be outrageous includes: failing to warn the employees of unsanitary conditions; forcing the employees to work in a building with toxic particles; ignoring the employees' concerns and symptoms; and throwing awaythe 

### employees' mold kittests. However, Bolson was allowed to work fromhome during the 

### repairs. W&S's conduct does not rise to the level ofextreme and outrageous conduct like inBirklid. Birklid demonstrates the type of atrocious, intolerable conductthat gives rise to a colorable outrage claim. There is no comparable conducthere. 

### W&S did not purposefully expose Bolson to mold with the intent to cause her harm. At most, W&S was negligent in cleaning up the office space. Negligence is 

### insufficient for an outrage claim. We therefore affirm the trial court's dismissal of Bolson's outrage claim.
IV. Collateral Estoppel 

### W&S argues that we can affirm on the alternative basis ofcollateral estoppel, because L&l previously ruled against Bolson on the issue ofmedical causation in her workers' compensation claim. Bolson argues that W&S's collateral estoppel argument 

### is procedurally barred, because W&S failed to cross appeal the trial court's order refusing to considerany L&l records on summaryjudgment.

17No. 71365-5-1/18
RAP 2.4(a) limits the circumstances under which a respondent may seek affirmative relief. State v. Sims. 171 Wn.2d 436, 442, 256 P.3d 285 (2011). Itstates: The appellate court will grant a respondent affirmative relief by modifying the decision which is the subject matter of the review only (1) if the respondent also seeks review of the decision by the timely filing of a notice of appeal or a notice ofdiscretionary review, or (2) ifdemanded by the necessities ofthe case. RAP 2.4(a). A notice of cross appeal is required ifthe respondent "'seeks affirmative reliefas distinguished from the urging ofadditional grounds for affirmance.'" Robinson v. Khan, 89 Wn. App. 418, 420, 948 P.2d 1347 (1998) (quoting Phillips Bldq. Co. v. An, 81 Wn. App. 696, 700 n.3, 915 P.2d 1146 (1996)). 

### Asuccessful litigantneed not cross appeal inorderto urge additional reasons in 

### support of thejudgment, even though rejected by thetrial court, so long as noadditional reliefis granted on appeal. Amalgamated TransitUnion Local 587v. State, 142Wn.2d 183, 202, 11 P.3d 762, 27 P.3d 608 (2000). On the otherhand, affirmative relief usually


### means a change in the final result attrial. Sims, 171 Wn.2d at 442. While RAP 2.4(a) does not limit the scope of argument a respondent may make, it qualifies any relief 

### sought by the respondent beyond affirming the lower court, id When a respondent 

### requests partial reversal of the trial court's decision, the respondent seeks affirmative relief and needs to cross appeal. InreArbitration ofDoyle, 93 Wn. App. 120, 127, 966 P.2d 1279 (1998). 

### W&S's collateral estoppel argument is not simply an additional basis for affirmance—it requires affirmative relief. W&S asserted collateral estoppel as an 

### alternative basis to grant summary judgment below. In response, Bolson moved to

18No. 71365-5-1/19
strike and exclude allthe L&l records thatformed the basis ofW&S's collateral estoppel argument. The trial court granted Bolson's motion to exclude the L&l records and refused to consider any related evidence. Therefore, we would need to reverse the trial court's order excluding the L&l records in order to consider collateral estoppel. This constitutes affirmative relief. Because W&S did not cross appeal, we do not consider W&S's collateral estoppel argument. We affirm in part, reverse in part, and remand.

WE CONCUR: 

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19