Mark Wilmes, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1920

Mark Wilmes,
Appellant,

vs.

Owatonna Hospitality, LLC,
Respondent.

Filed August 7, 2017
Affirmed
Hooten, Judge

Steele County District Court
File No. 74-CV-14-130

Kenneth R. White, Law Office of Kenneth R. White, P.C., Mankato, Minnesota (for
appellant)

Juan M. Avila, Jeffrey M. Markowitz, Arthur, Chapman, Kettering, Smetak & Pikala, P.A.,
Minneapolis, Minnesota (for respondent)

Considered and decided by Bjorkman, Presiding Judge; Hooten, Judge; and
Toussaint, Judge.

U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Appellant challenges the district court’s dismissal of his claims on summary
judgment, arguing that the district court abused its discretion by excluding expert opinions

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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that respondent’s negligence caused appellant’s injury and erred by concluding that
appellant needed to offer expert testimony regarding causation in order to withstand
summary judgment. We affirm.
FACTS
On July 6, 2012, appellant Mark Wilmes waded in a pool at a hotel operated by
respondent Owatonna Hospitality , LLC, for approximately 20 to 30 minutes while
supervising his grandchildren. Wilmes also went into the water park area and went down
the water slide once. Wilmes described the pool as looking “pretty used” and “dirty,”
noting that towel s were lying around th e pool. Wilmes noticed a smell of chlorine and
observed that his grandchildren’s eyes were red . Wilmes does not recall having any
injuries while he was in the pool.
Almost two weeks after his visit to the hotel pool, Wilmes was hospitalized for
cellulitis after experiencing symptoms of fever, pain, and swe lling and redness of his leg.
According to his medical records, Wilmes told his doctor that he had noticed an abrasion
to his calf a few days prior to his hospitalization. During his hospital stay, Wilmes’ blood
cultures tested positive for aeromonas hydrophila. Wilmes stated that he was in no other
bodies of water after being in the hotel pool until his hospitalization.
Aeromonas hydrophila is a waterborne bacterium that can cause a number of
illnesses in humans, including gastrointestinal and skin infections. The skin infections that
can be caused b y aeromonas hydrophila include cellulitis, abscesses, fu runcles, and
folliculitis. The pool was never tested for the presence of aeromonas hydrophila.
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Wilmes brought suit again st Owatonna Hospitality, claiming that it was negligent
in the maintenance and operation of its pool and water park facilities, causing him to
contract aeromonas hydrophila. Owatonna Hospitality moved for summary judgment,
arguing that Wilmes failed to present admissible evidence of causation between its
maintenance and operation of the pool and Wilmes’ contraction of aeromonas hydrophila.
The district court a greed. Specifically, the district court determined that the conc lusions
of both of Wilmes’ experts that Wilmes contracted aeromonas hydrophila from the pool
lacked foundation, were “clearly conjecture,” and therefore were inadmissible. The district
court concluded that because the experts’ opinions regarding causation were inadmissible,
there were no facts in the record establishing causation between the conditions of the pool
and Wilmes’ infection and granted summary judgment in favo r of Owatonna Hospitality.
This appeal followed.
D E C I S I O N
Summary judgment is appropriate when the record “show[s] that there is no genuine
issue as to any material fact and that either party is entitled to a judgment as a matter of
law.” Minn. R. Civ. P. 56.03. “A defendant is entitled to summary judgment as a matter
of law when the record reflects a complete lack of proof on an essential element of the
plaintiff’s claim.” Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). In order to
raise a genuine issue of material fact, “the nonmoving party must present more than
evidence which merely creates a metaphysical doubt as to a factual issue and which is not
sufficiently probative with respect to an essential element of the nonmoving party’s case
4
to permit reasonable persons to draw different conclusions.” Valspar Refinish, In c. v.
Gaylord’s, Inc., 764 N.W.2d 359, 364 (Minn. 2009) (quotation omitted).
Appellate courts “review a district court’s grant of summary judgment de novo to
determine whether any genuine issue of material fact exists and whether the district court
erred in applying the law.” Larson v. Nw. Mut. Life Ins. Co., 855 N.W.2d 293, 299 (Minn.
2014). In conducting this review, we view the evidence in the light most favorable to the
party against whom summary judgment was granted. Id.
I.
Wilmes argues that the district court abused its discretion by excluding the opinions
of his two expert witnesses, Trevor Sherwood and Dr. Harry Hull, that the conditions of
the pool caused Wilmes’ aeromonas hydrophila infection.
“An opinion of a[n] . . . expert witness based upon an adequate factual foundation
is not a conjecture, but a legitimate inference, and as such has evidentiary value in
determining disputed questions of fact.” Albert Lea Ice & Fuel Co. v. U.S. Fire Ins. Co. ,
239 Minn. 198, 204–05, 58 N.W.2d 614, 618 (1953). But, if an expert’s opinion is based
on assumptions not established by the evidence, the opinion lacks foundation and is
inadmissible. Huseby v. Carlson, 306 Minn. 559, 560–61, 238 N.W.2d 589, 590 (1975).
“A district court’s evidentiary ruling on the admissibility of an expert opinion rests
within the sound discretion of the [district] court and will not be reversed unless it is based
on an erroneous view of the law or it is an abuse of discretion.” Gross v. Victoria Station
Farms, Inc., 578 N.W.2d 757, 760 (Minn. 1998). “The district court has considerable
discretion in determining the sufficiency of foundation laid for expert opinion.” Id. at 760–
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61 (quotation omitted). Even if we would have reached a different decision than the district
court regarding the sufficiency of the foundation, we will not reverse absent a clear abuse
of discretion. Id. at 761.
Sherwood, Wilmes’ pool expert, reviewed Wilmes’ medical records, the pool logs,
Minnesota Department of Health rep orts regarding the pool, and information about
aeromonas hydrophila, among other materials. Sherwood noted that at 9:00 a.m. on July
6, the pH and the level of free chlorine in the main pool and the plunge area 1 were within
the acceptable ranges.
Sherwood noted, however, that the pool’s level of combined chlorine was over the
acceptable range at 9:00 a.m . The pool log indicates that the main pool had a combined
chlorine level of .8 ppm and the plunge pool had a combin ed chlorine level of 1.0 ppm.
Minn. R. 4717.1750, subp. 3 (2015), requires action if a pool’s combined chlorine level
exceeds .5 ppm. Sherwood stated that industry standard limits combined chl orine to a
maximum of .2 ppm.
Sherwood explained that combined chlorine is a chemical species t hat forms when
chlorine chemically bonds to nitrogen-containing compounds, such as perspiration, algae,
or urine. Sherwood stated that combined chlorine is “a less effective form of chlorine.”
Sherwood also stated that combined chlorine has a strong chlorine -like smell. Sherwood
noted that there is a common conception that a strong chlorine odor indicates too much

1 The plunge area is the pool of water at the bottom of the waterslide.
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chlorine; instead, he explained, an excessive chlorine odor indicates that “there is not
enough chlorine to take care of the bather load.”
According to She rwood, aeromonas hydrophila “is present in all types of water
worldwide as well as food and soil.” Aeromonas hydrophila can be contracted through
swimming pool use, but it is “sensitive to chlo rine” and therefore its presence is rare in
chlorinated pools. However, Sherwood noted that outbreaks of the aeromonas hydrophila
may be caused by lack of disinfection.
Sherwood stated that the hotel pool had a “long -term history of neglect and
ignorance toward the operation of the water park,” noting numerous code infractions an d
water chemistry violations. Sherwood stated that the water chemistry issues would
“contribute to bather discomfort and irritation and increase the likelihood of contra cting a
recreational water illness.” Sherwood noted that the combined chlorine issue, documented
ventilation issues, and issues with the chemical feeder would contribute to the possibility
of a bather developing a recreational water illness. Given the is sues with the pool,
Sherwood opined that Owatonna Hospitality’s failure to properly maintain the pool caused
Wilmes to contract a recreational water illness.
Dr. Hull, Wilmes’ epidemiology expert, reviewed Wilmes’ medical records,
Sherwood’s report, Wilmes’ deposition, and articles about aeromonas hydrophila, as well
as other materials, in preparing his report. Dr. Hull noted that Wilmes had several serious
pre-existing medical issues before July 2012, including multiple episodes of cel lulitis in
his legs. Dr. Hull stated that aeromonas hydrophila is a bacterium that rarely causes illness
in humans, but that it may cause gastrointestinal, skin, and soft tissue issues. Dr. Hull also
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noted that individuals who have a compromised immune system or chronic illness “appear
to have a greater risk of contracting [a]ero monas hydrophila infections.” Dr. Hull stated
that most aeromonas hydrophila infections occur after exposure to fresh water, but such
infections have also been associated with exposure to poorly maintained swimming pools
or pools where water was allowed to stand.
Dr. Hull opined that Wilmes’ infection was “more likely than not” caused by the
hotel pool . Dr. Hull reasoned as follows: the pool has a documented history of being
improperly maintained; improper maintenance of pools is associated with transmission of
bacterial infections such as aeromonas hydrophila; Wilmes reported no exposure to other
bodies of water in the we eks leading up to his infection; and, while Wilmes did have an
abrasion on his leg , an abrasion without fresh water or swimming pool exposure would
most likely result in a different infection.
As the district court observed, Wilmes’ experts rely significantly on the pool’s
documented past violations in concluding that Wilmes contracted the aeromonas
hydrophila infection from the pool . Indeed, Sherwood notes patterns of equipment and
water chemistry issues with the pool , spanning from 2008 to 2015. However, what is
relevant to determining whether Wilmes contracted the infection from the pool are the pool
conditions on July 6, 2012.
Therefore, i n determining whether Wilmes presented sufficient evidence to
withstand summary judgment, the issue is whether the district court abused its discretion
by determining that Wilmes’ exp erts did not have sufficient foundation to opine that
Wilmes contracted aeromonas hydrophila as a result of the pool conditions on July 6, 2012.
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We conclude that the district court did not abuse its discretion in excluding the expert
opinions.
First, we note that the experts’ opinions failed to specifically address the likelihood
of an aeromonas hydrophila outbreak under the specific conditions present in the pool on
July 6, 2012. As the district court observed, the pool logs indicate that the level of free
chlorine was within the acceptable range at 9 a.m. that day. While the level of combined
chlorine exceeded the acceptable range, Sherwood indicated that “[c]ombined chlorine is
a less e ffective form of chlorine.” Sherwood’s opinion does not indicate that too much
combined chlorine increases the likelihood of an aeromonas hydrophila outbreak when the
free chlorine level is within the acceptable range. Sherwood does state that the pool logs
reflect numerous violations involving low free available chlorine, high levels of combined
chlorine, and low or high pH and that “[a]ll of these water chemistry issues, especially the
lack of free available chlorine and presence of combined chlorine, . . . increase the
likelihood of contracting a recreational water illness.” But, his report does not explain how
the likelihood of an aeromonas hydrophila outbreak is increased when the pool has
acceptable levels of free chlorine despite an excessive level of the less effective combined
chlorine.
Wilmes notes that, although Owatonna Hospitality complied with Minnesota
regulations by testing the pool only once a day, see Minn. R. 4717.0750 (2015), industry
standards require more frequent testing during periods of heavy use in order to ensure that
the circulation and filtration systems are handling the bather load. Sherwood indicated in
his report that only by constantly monitoring the pool and taking corrective steps can a pool
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operator make sure that the water is sanitary and the patro ns are protected from germs.
But, this broad statement, indicating the importance of monitoring water chemistry, does
not indicate that a bacterial outbreak is likely if the pool has sufficient free chlorine but
excessive combined chlorine.
This case is similar to Gerster v. Special Adm’r for Estate of Wedin, where plaintiffs
who owned an apartment sued the estate of the neighboring apartment’s owner, who died
in a fire that damaged plaintiffs’ apartment. 294 Minn. 155, 156, 199 N.W.2d 633, 634
(1972). At trial, the plaintiffs claimed that the fire was caused by the decedent’s careless
smoking. Id. The city fire marshal testified at trial. Id. at 157, 199 N.W.2d at 634. He
stated that he had examined the decedent’s apartment and that, through the proc ess of
elimination, he had determined that the probable cause of the fire was careless smoking of
the decedent. Id. at 157–58, 199 N.W.2d at 634 –35. The jury returned a verdict in favor
of the plaintiffs, and the district court subsequently granted the motion of decedent’s estate
for judgment as a matter of law. Id. at 156, 199 N.W.2d at 634. The Minnesota Supreme
Court affirmed, reasoning that there was no evidence that the decedent was smoking in his
apartment or that if he was smoking, he was smoking in a negligent manner. Id. at 160,
199 N.W.2d at 636.
Like in Gerster, there is no evidence in the record that the specific conditions of the
pool on July 6 would lead to Wilmes contracting an aeromonas hydrophila infection.
Instead, Wilmes’ experts relied on the documented evidence of past violations, as well as
Wilmes’ testimony that he had not been in any other water body between July 6 and the
date of his hospitalization in concluding that his infectio n was caused by the pool. The
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district court did not abuse its discretion by concluding that the experts’ opinions were
speculative and therefore inadmissible.
Second, although not discussed by the district court, evidence in the record suggests
that the combined chlorine level reading relied upon by Wilmes’ experts may not
accurately reflect the combined chlorine level at the time that Wilmes entered the pool.
There is no evidence in the record regarding what time in the day Wilmes was in the pool,
other than his testimony that he did a number of things before going to the pool. And, there
is also little indication of how many people visited the pool that day.
Moreover, hotel staff took remedial m easures after the 9:00 a.m. reading revealed
that the combined chlorine level was elevated. In the comments section, the pool logs state
that the pool water in the main pool and the plunge area was “backwashed.” In a
deposition, the certified pool operator on July 6, 2012, explained that if the combined
chlorine level is too high, one way to take corrective action is to backwash the water, which
means sending the water through a sand filt er to clean out contaminants. It is not clear
from the record how long the pool operator backwashed the pool or the e ffect that the
backwashing had on the pool’s combined chlorine level on July 6 , as the pool was not
subsequently tested.2
Given the lack of information regarding the time when Wilmes was in the pool, the
number of bathers, and the effect of the backwashing, any suggestion that the free chlorine
levels fell and the combined chlorine levels rose throughout the day to a level that would

2 The pool logs only indicate that the pool was backwashed and do not indicate the
combined chlorine level of the pool after the backwashing.
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support an aeromonas hydrophila outbreak is mere conjecture. The fact that the experts
relied on the 9:00 a.m. combined ch lorine levels in opining that Wilmes’ infection was
caused by the pool, despite the existence of a number of factors that could have raised or
lowered the combined chlorine levels, indicates that their opinions regarding causation
lacked foundation.
Because neither Sherwood nor Hull specifically address the likelihood of an
aeromonas hydrophila outbreak under the conditions present at the pool and because the
accuracy of the combined chlorine level relied on by the experts is uncertain, we cannot
conclude that the district court abused its discretion in determining that the experts’
opinions regarding causation were inadmissible for lack of foundation.
II.
Wilmes argues that, even if we conclude that the district court did not abuse its
discretion in de termining that the experts’ opinions on causation were inadmissible, he
created an issue of fact sufficient t o withstand summary judgment. Specifically, Wilmes
argues that he was not required to present expert testimony on the element of causation.
We disagree.
“[W]hether expert testimony is required to establish a prima facie case is a question
of law that [appellate courts] review de novo.” Guzick v. Kimball, 869 N.W.2d 42, 46–47
(Minn. 2015). Expert testimony based on adequate factual foundation is required to prove
causation if the issue involves matters outside of ordinary lay knowledge. Gross, 578
N.W.2d at 762.
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In arguing that expert testimony was not needed to establish that the conditions of
the pool led to his infection, Wilmes cites M.M.D. v. B.L.G., 467 N.W.2d 645 (Minn. App.
1991), review denied (Minn. May 23, 1991). In M.M.D., the plaintiff argued that the
defendant infected her with herpes during their sexual relationship. 467 N.W.2d at 646.
On appeal, the defendant challenged the dis trict court’s finding of causation because
M.M.D.’s expert was not able to determine whether M.M.D.’s herpes outbreak was due to
a recent infection and not due to a dormant virus. Id. at 647. This court rejected the
defendant’s argument, reasoning that expert testimony was not necessary to establish
causation because “causation of herpes is not beyond the average person’s knowledge.”
Id.
Unlike the transmission of the herpes virus, the conditions of a chlorinated pool that
could lead to an individual contracting an aeromonas hydrophila infection are beyond the
knowledge of a lay juror. As demonstrated by the evidence presented by Wilmes’ experts,
the water chemistry issues that coul d increase the likelihood of a swimmer contracting a
waterborne illness in a chlorinated pool necessitate a consideration of the levels of free
chlorine and combined chlorine in the wa ter, as well as the pH level. Understanding the
relationship between the amounts of combined and free chlorine and the pH level and the
development of aeromonas hydrophila is complicated, especially where, as here, there is
no evidence that aeromonas hydrophila was in the pool at any point or that any other
individual who entered the pool contracted an aeromonas hydrophila infection.
This is not a case where a layperson would be able to conclude from his or her own
knowledge or experience, without the assistance of expert testimony, that Wilmes’
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aeromonas hydrophila infection was caused by the pool conditions, rather than some other
source. Therefore, the district court properly determined that Wilmes needed to present
admissible expert testimony as to causation in order to withstand Owatonna Hospitality’s
summary judgment motion.
Affirmed.