Craven v. Sharma

NOT DESIGNATED FOR PUBLICATION No. 128,664 IN THE COURT OF APPEALS OF THE STATE OF KANSAS GENE W. CRAVEN, Administrator of the Estate of Elda Mae Craven, and GENE W. CRAVEN and BRUCE L. CRAVEN, heirs-at-law of Elda Mae Craven, Appellants, v. BAL K. SHARMA, M.D., CUMBERNAULD VILLAGE, INC., and TERAN R. NACCARATO, M.D., Appellees. MEMORANDUM OPINION Appeal from Cowley District Court; LADONNA L. LANNING, judge. Oral argument held July 21, 2026. Opinion filed November 13, 2026. Affirmed. J. Greg Kite, of Law Offices of J. Greg Kite, of Wichita, for appellants. Stephen H. Netherton, of Hite, Fanning & Honeyman LLP, of Wichita, for appellee Bal K. Sharma, M.D. Abbigale A. Gentle, of Watters Wolf Bub Hansmann, LLC, of Kansas City, Missouri, for appellee Cumbernauld Village, Inc. Larry J. Logback and Kemper A. Ramey, of Simpson, Logback, Lynch, Norris, P.A., of Overland Park for appellee Teran R. Naccarato, M.D. Before CLINE, P.J., PICKERING, J., and KEVIN M. SMITH, District Judge, assigned. CLINE, J.: This medical malpractice case arises from the death of Elda Mae Craven. Elda resided at Cumbernauld Village, Inc., an assisted living and nursing facility, 1 for almost two years before she died. While she was there, Dr. Bal Sharma provided psychiatric care for her Alzheimer's and dementia. Dr. Teran Naccarato was Elda's primary care physician who approved Dr. Sharma's psychiatric medication recommendations. Plaintiffs, who are Elda's sons, claimed Dr. Sharma and Dr. Naccarato overmedicated Elda while she was at Cumbernauld, causing her death. The district court dismissed the case after it granted Defendants' motion to exclude Plaintiffs' experts' causation opinions and for summary judgment. Plaintiffs appeal this and other decisions by the district court. Upon review, we find no error and affirm the district court's decision to exclude Plaintiffs' experts' causation opinions and its entry of summary judgment against Plaintiffs because they had no expert medical testimony to support their medical malpractice claim. Given this result, we need not address the other decisions challenged on appeal. FACTUAL AND PROCEDURAL BACKGROUND Elda was diagnosed with Alzheimer's in 2012 at age 93. After she became unable to live independently, her sons brought her to Cumbernauld in March 2013. When she was admitted to Cumbernauld, she was diagnosed with worsening dementia, hypertension, and depression/anxiety and was given a poor prognosis. In July 2013, after her family reported that her dementia had become more severe, Elda was moved to the nursing facility at Cumbernauld. She continued to deteriorate, experienced disorientation, and also suffered several falls. In December 2014, one of Elda's sons became concerned about the type and dosage of medication Elda had been prescribed, after he heard a program on National Public Radio. He then researched some of her medications online, which heightened his concern. He arranged for Elda to be transferred to the Behavioral Health Unit at Sumner 2 Regional Medical Center on December 11, 2014. When she was admitted to the new facility, he asked for her prescription for Zyprexa to be discontinued. On December 21, 2014, the Behavioral Health Unit notified Elda's family that she was not eating, drinking, or taking medication. She was also very disoriented. Her family requested a hospice consultation on December 22, 2014, due to her failure to thrive. Hospice's terminal diagnosis for Elda was end-stage Alzheimer's with anorexia. The hospice evaluation reported that she was nonresponsive. Elda was admitted to Sumner County Care Center on December 23, 2014, where her hospice care began. She continued to refuse medication and most food and was minimally responsive to physical and verbal stimulus. The next day, she was given morphine for generalized pain. She passed away on December 27, 2014. On Elda's death certificate, her cause of death was listed as respiratory arrest due to (or as a consequence of) inanition due to (or as a consequence of) dementia. Inanition is defined as exhaustion caused by a lack of nourishment, or a state of malnutrition. Almost two years after Elda passed away, Plaintiffs sued Cumbernauld, along with Dr. Sharma and Dr. Naccarato. Plaintiffs claimed Defendants provided medically negligent care to Elda based on the type and dosage of medication they prescribed while she was at Cumbernauld. Plaintiffs produced opinions from two retained experts—C. Ray Lake, M.D., Ph.D., and James T. Birch Jr., M.D., M.S.P.H.—who each concluded Dr. Sharma and Dr. Naccarato were negligent in overprescribing atypical antipsychotic medication (Zyprexa and Seroquel) to Elda, which they believed caused her death. Defendants also produced opinions from two retained experts—Jeffery A. Kerr, D.O., and Arthur Snow Jr., M.D.— who concluded Elda's decline and eventual death were the natural and expected result of her end-stage dementia. They reported that the medications administered to Elda by 3 Defendants improved her quality of life and are prescribed to geriatric dementia patients to mitigate dementia-related behaviors. Kerr also believed the changes in Elda's caregivers and location contributed to her decline. At one point, Defendants moved for summary judgment based on Plaintiffs' lack of admissible medical expert causation evidence. In this motion, Defendants submitted that Plaintiffs' experts' causation opinions were inadmissible because they did not meet the requirements of scientific reliability under K.S.A. 60-456(b) and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589-94, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). And since expert medical opinion testimony is required to prove the standard of care and causation in a medical negligence case, Plaintiffs could not establish a viable claim for damages. See Perkins v. Susan B. Allen Memorial Hospital, 36 Kan. App. 2d 885, 888, 146 P.3d 1102 (2006) ("Generally, expert testimony is required to establish the appropriate standard of care and causation because such matters are outside the knowledge of the average person without specialized training."). Defendants argued that Plaintiffs' experts' causation opinions were unreliable because they did not review any of Elda's medical records after she left Cumbernauld, they did not rely on any scientific literature to support their opinions, and they did not do an analysis to exclude other causes for her death. The district court granted Defendants' motion. It found Plaintiffs' experts' causation opinions were not sufficiently reliable to be admissible. And without expert opinion testimony on causation, the court found Defendants were entitled to judgment as a matter of law and it dismissed Plaintiffs' claims. 4  REVIEW OF PLAINTIFFS' APPELLATE CHALLENGES As mentioned, Plaintiffs sued each defendant for medical malpractice. "Medical malpractice is negligence of a healthcare professional in the diagnosis, care, and treatment of a patient. A medical malpractice claim is an action for professional negligence, requiring proof of '(1) the existence of a duty; (2) breach of that duty; (3) injury; and (4) a causal connection between the duty breached and the injury suffered.' Generally, expert testimony is required to establish the appropriate standard of care and causation because such matters are outside the knowledge of the average person without specialized training. [Citations omitted.]" Perkins, 36 Kan. App. 2d at 888. The question here is whether Plaintiffs produced sufficient evidence to withstand summary judgment on two elements of their claims: (1) that Defendants breached their duty owed to Elda and (2) that this breach caused her death. Since they rely on their experts' opinions to satisfy both elements, we must first address whether those opinions were admissible. Summary Judgment Standard Because appellate courts are in the same position as district courts when deciding a summary judgment motion, we apply the same standards on appeal that district courts apply to such motions. This means that, like the district court, we review the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, to see if they show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Smart v. BNSF Railway Co., 52 Kan. App. 2d 486, 489, 369 P.3d 966 (2016). Here, Plaintiffs relied on their expert opinion testimony to create a material factual dispute on the cause of Elda's death in response to Defendants' motion. Without that 5 opinion testimony, Plaintiffs lack sufficient evidence to survive summary judgment. We therefore turn first to the district court's exclusion of that opinion testimony. Application of 2026 Amendments to K.S.A. 60-456(b) The admission of opinions from Plaintiffs' experts is controlled by K.S.A. 60- 456(b). At the time the district court granted Defendants' motion, it provided: "If scientific, technical or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue, a witness who is qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise if: (1) The testimony is based on sufficient facts or data; (2) the testimony is the product of reliable principles and methods; and (3) the witness has reliably applied the principles and methods to the facts of the case." K.S.A. 60-456(b) (Self 2025). Effective July 1, 2026, while this case was pending on appeal, the Legislature amended these standards, adding new criteria or requirements for the admission of expert opinion testimony. Normally, this would require us to determine whether these amendments should be applied retrospectively. But we agree with the parties that such analysis is unnecessary here. As Plaintiffs point out, the amendments increased the burden for admitting expert opinion testimony. And as explained below, even under the less demanding standard in the version of K.S.A. 60-456 in effect when the district court ruled, we find no error in the court's exclusion of the expert opinion testimony. We therefore review the court's decision under the version of K.S.A. 60-456(b) in effect at the time of that decision. 6 Standards Governing the Admission of Expert Opinion Testimony K.S.A. 60-456(b) places the district court in a gatekeeping role that requires it to evaluate whether the expert is qualified to provide the proffered opinion testimony and whether the expert's proffered opinion testimony is both reliable and relevant. Smart, 52 Kan. App. 2d at 494. We review de novo whether the court performed that gatekeeping role and applied the proper standard in determining the admissibility of expert opinion testimony. Once that step is satisfied, we review for abuse of discretion the court's decision to admit or exclude the opinion testimony. "A judicial action constitutes an abuse of discretion if the action is arbitrary, fanciful, or unreasonable; is based on an error of law; or is based on an error of fact." 52 Kan. App. 2d at 493-94. The district court found Plaintiffs' experts were qualified to provide their proffered opinion testimony. And the parties do not dispute that the court applied the proper standard to evaluate Plaintiffs' experts' causation opinion testimony. We thus focus on whether the court abused its discretion in excluding that opinion testimony as unreliable and irrelevant. As we explained in Smart, Kansas courts rely on federal caselaw for expert opinion testimony admissibility standards because Kansas appellate courts have not interpreted K.S.A. 60-456, and its language is substantially identical to Federal Rule of Evidence 702 (the federal rule for admission of expert opinion testimony). 52 Kan. App. 2d at 494. According to those standards, after determining an expert is qualified, the district court "'"must satisfy itself that the proposed expert testimony is both reliable and relevant, in that it will assist the trier of fact, before permitting a jury to assess such testimony."' Helpfulness to the trier of fact is determined by evaluating whether the testimony is relevant and whether the '"methodology properly can be applied to the facts in issue."' Specifically, the court must determine whether the testimony 'is based on sufficient facts 7  or data,' and is 'the product of reliable principles and methods,' and whether 'the witness has reliably applied the principles and methods to the facts of the case.' "The purpose of the reliability determination is not to decide whether the expert's conclusions are correct but whether the analysis used to reach them is reliable. Reliability of an expert's testimony may be demonstrated in various ways. The law 'grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.' [Citations omitted.]" 52 Kan. App. 2d at 494-95. While courts have some flexibility in determining reliability of proposed scientific opinion testimony, in Daubert, 509 U.S. at 589-94, the United States Supreme Court set out factors that should be considered. They include: (1) whether the theory used can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) general acceptance in the scientific community. 509 U.S. at 593-94. But these factors are not a "'definitive checklist or test'"; the court's gatekeeping inquiry into reliability "must be '"tied to the facts"' of a particular 'case.'" Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1999). The district court did not abuse its discretion when excluding Plaintiffs' experts' causation opinions. When explaining in its order why it found that Plaintiffs' experts' causation opinions were inadmissible, the district court reasoned: "In applying the Daubert standard to Plaintiffs' retained physician experts, Dr. Lake and Dr. Birch, their causation opinions are not sufficiently reliable to be admissible in this case. Dr. Lake and Dr. Birch [did] not explain the effect that dementia had on [Elda]'s death, [did] not adequately explain how any medical literature supports their opinions, or otherwise explain how their opinions and reasoning ruled out alternative explanations for [Elda]'s death apart from Plaintiffs' allegations. There was no presentation of peer review, publication, rate of error, existence of standards, or other 8  controls, and nothing to establish the basis that their conclusions were generally accepted by the legal community. Dr. Lake and Dr. Birch appeared to rely on their experience to support their opinions, but neither adequately explained how their experience sufficiently supported their reasoning or conclusions." And at the hearing where the court announced its decision, the court also found it significant that neither expert looked at nor considered any of the reports or medical records on Elda after she left Cumbernauld. In summing up the basis for their theories, the court said, "[I]t appears to this Court that both [experts] present their theories, 'Because I said so,' without proper and complete Daube[r]t requirements." On appeal, Plaintiffs claim that their experts' opinions were admissible because their experts "reviewed and relied upon a variety of scientific literature." They also assert that the district court "ignored and disregarded the overwhelming reliability of [their experts'] opinions" and that the court must not have understood those opinions. But there are several problems with Plaintiffs' arguments. First, Plaintiffs incorrectly state that their experts relied on scientific literature to formulate their causation opinions. As Defendants demonstrated in their statements of uncontroverted facts, Plaintiffs' experts admitted they did not rely on any scientific literature to form their opinions. Plaintiffs did not controvert the accuracy of this cited testimony. Instead, they simply point out several documents that their experts testified they reviewed, such as package inserts for Zyprexa and Seroquel and the "Whitaker article." They also mention Dr. Lake included in his curriculum vitae (CV) that he made a presentation titled, "Atypical Psychotropics" but did not point out any connection Dr. Lake made between that presentation and his opinions in this case. Not only do Plaintiffs fail to address the district court's finding that their experts did not explain how these materials supported their opinions or were sufficiently reliable 9 to do so, but they also seem to miss the larger point. The issue is not what documents Plaintiffs' experts reviewed before reaching their opinions, but what the experts relied upon in reaching those opinions. Plaintiffs do not connect the dots between these materials and their experts' opinions, nor do they acknowledge their experts' own admissions that they did not rely on these materials—or any scientific literature—to support their causation opinions. What scientific literature an expert reviewed may be relevant to that expert's qualifications to testify, but it is not relevant to the reliability of those opinions when, as here, the experts disclaimed relying on that literature in forming their opinions. Another problem Plaintiffs have is these materials are insufficient to render Plaintiffs' experts' causation opinions reliable. As Defendants point out, the Whitaker article that Plaintiffs cite discusses general prescribing issues, not causation in an individual patient. Likewise, Plaintiffs fail to explain how generalized warnings and information in medical package inserts support their causation opinions in this case. Plaintiffs repeat that their experts "looked at" these package inserts, but the bottom line is their experts denied relying on them to support their causation opinions. And Plaintiffs also fail to explain how Dr. Lake's past presentation in his CV is connected to his causation opinions here. Again, that notation in his CV seems to relate to his qualifications to give medical opinions, not as a basis for any of those opinions, especially without explaining its relevance to those opinions. Next, Plaintiffs do not address the district court's findings that none of the Daubert factors indicated that their experts' causation opinions were reliable, nor do they explain how Dr. Lake's and Dr. Birch's experience or any professional studies led to their conclusions about the cause of Elda's death or provided a sufficient basis for those conclusions. To be admissible, Plaintiffs' experts' causation opinions must be "the product of reliable principles and methods" and the experts must have "reliably applied 10 the principles and methods to the facts of the case." K.S.A. 60-456(b)(2), (b)(3). Yet Plaintiffs failed to explain how they satisfied either of these requirements. Plaintiffs also do not adequately address the district court's conclusion that their experts' causation opinions were unreliable because neither expert looked at or considered any of the reports or medical records on Elda in the 16 days after she left Cumbernauld. Plaintiffs do not dispute this fact—they attempt to explain it away by noting neither expert believed he needed to review those records. But such conclusory statements do not satisfy the admissibility requirements under K.S.A. 60-456(b)(1)— which require a showing that their experts' causation opinions were based on sufficient facts or data. As the United States Supreme Court said in General Electric Co. v. Joiner, 522 U.S. 136, 146, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997): "[N]othing in either Daubert or the Federal Rules of Evidence requires a district court to admit opinion evidence that is connected to existing data only by the ipse dixit of the expert. A court may conclude that there is simply too great an analytical gap between the data and the opinion proffered." We find no abuse of discretion in the court's reasoning. The experts' failure to consider what happened to Elda after she left Cumbernauld undercuts the reliability of their opinions, rendering their conclusions about the cause of Elda's death nothing but improper conjecture or speculation. Last, we are unpersuaded by Plaintiffs' generic assertion that the district court did not understand their expert reports. For instance, they say the court did not understand their experts' causation opinions because they claim the court focused on the fact that Elda died of respiratory arrest. Plaintiffs argue the issue is not that Elda passed away from respiratory arrest, but what caused that respiratory arrest. But the record shows the court understood that Plaintiffs' experts believed Elda's respiratory arrest was caused by 11 overmedication—and it found this belief was unreliable and inadequately supported. The record also shows one of the reasons the court found their opinions were unreliable is because Plaintiffs' experts failed to consider the impact of dementia in causing her respiratory arrest. We therefore fail to see what the court misunderstood about Plaintiffs' experts' opinions. All in all, because Plaintiffs failed to show their experts' causation opinions were based on sufficient facts or data, were the product of reliable principles and methods, or that their experts reliably applied scientific principles and methods to the facts of the case, we see no abuse of discretion in the district court's exclusion of these opinions under K.S.A. 60-456(b). Plaintiffs did not establish any genuine issue of material fact in their response to Defendants' motion for summary judgment. Defendants alleged 15 statements of material fact that they claimed were uncontroverted. Plaintiffs admitted the truth of some of these statements. And the district court found they did not properly controvert the rest because, instead of directly addressing the statements, Plaintiffs offered comment or explanation of other points that did not dispute the accuracy of Defendants' statements. The district court adopted all of Defendants' statements of fact as support for its summary judgment order. After reviewing Defendants' fact statements and Plaintiffs' responses, we agree with the district court. Additionally, Plaintiffs relied on their experts' causation opinions to controvert most of these statements, yet the district court properly found those opinions inadmissible. A party cannot use inadmissible evidence to survive summary judgment. See Schultz v. Schwartz, 28 Kan. App. 2d 84, 89-90, 11 P.3d 530 (2000) (explaining that "[i]t would make no sense to deny summary judgment and proceed to trial on the basis of evidence that could not be presented at trial"); Vore v. U.S. Bank, N.A., No. 90,734, 2004 12 WL 324418, at *3 (Kan. App. 2004) (unpublished opinion) (inadmissible evidence insufficient to create a genuine issue of material fact). Even if we found Plaintiffs properly controverted other factual statements, for which they did not rely on their experts' causation opinions, any factual dispute about these remaining issues are immaterial without expert causation opinions to support an essential element of Plaintiffs' claims. For instance, in fact statement No. 4, Defendants provided a definition of the term inanition, which was listed on Elda's death certificate as a contributor to her death. In response, Plaintiffs listed an alternate definition of this medical term which, as Defendants pointed out to the district court, was not altogether different from the one Defendants provided. Plaintiffs' response did not dispute the accuracy of Defendants' definition of inanition, nor did they establish a genuine issue of material fact about this definition. And even if they did, the dispute about this definition was only one of semantics which was not material. As another example, when Defendants stated that Elda was transferred to another facility and quoted a portion of Elda's medical record listing her medical diagnoses at that time in their fact statement No. 6, Plaintiffs did not directly address these facts or dispute their accuracy. Instead, Plaintiffs asserted that Defendants did not state the reason Elda was transferred, which Plaintiffs claimed was based on personal concerns after one of them performed online research and heard a story on National Public Radio. We fail to see how Plaintiffs demonstrated a genuine issue of material fact on this issue. Not only did they fail to dispute the accuracy of Defendants' stated facts, but the reason Elda's son transferred her is not material to the facts in this statement. Moreover, as the district court noted, Elda's son is not an expert witness, and Plaintiffs provided no foundation for his testimony on any matter probative to the cause of her death. His concern that she was overmedicated is insufficient without expert medical opinion to support it. See Perkins, 36 Kan. App. 2d at 888 (expert opinion testimony generally required to establish appropriate standard of care and causation in medical malpractice cases). 13  Also, in Defendants' fact statement No. 7, they listed the date Elda was admitted to Cumbernauld (March 25, 2013) and the diagnoses she received on admission (including worsening dementia and depression/anxiety). In response, Plaintiffs cited testimony from one of the Plaintiffs stating he did not believe Elda had "fairly advanced dementia" in 2010 (three years earlier) and did not recall that Elda was depressed or that she exhibited tendencies of fear or anxiety before being prescribed Zyprexa. There are two problems with Plaintiffs' response. First, these additional facts do not dispute the accuracy of the facts Defendants listed. One of the Plaintiffs' personal observations of his mother's health years before her admission do not contradict contemporaneous medical records stating her medical diagnosis upon admission. Second, Plaintiffs failed to explain the relevancy of their additional facts, i.e., how they create a genuine issue of material fact. Plaintiffs did not claim in their suit that Elda was misdiagnosed—they claim she was overmedicated. Similarly, Defendants' fact statement No. 8 stated the date Plaintiffs disclosed three retained expert opinions, including Dr. Lake and Dr. Birch. Plaintiffs controverted this statement simply because Defendants did not mention that Plaintiffs disclosed expert opinion testimony from a fourth retained expert. But since Plaintiffs do not rely on this other expert or even mention her again in their brief, we again fail to see the relevance or how they controverted Defendants' fact statement. Defendants' point seemed to be that Plaintiffs were relying on Dr. Lake and Dr. Birch to provide the necessary expert opinions on causation, which Plaintiffs did not dispute. In sum, we agree Plaintiffs did not controvert Defendants' statements of material fact, nor did their responses show any genuine issue of material fact remained which precluded summary judgment. 14 Without expert causation opinion testimony, Plaintiffs' claims fail as a matter of law. After excluding Plaintiffs' experts' causation opinions, the district court dismissed Plaintiffs' claims as a matter of law since they could not satisfy an essential element of those claims. We see no error in that decision. Perkins, 36 Kan. App. 2d at 888 (expert opinion testimony generally required for standard of care and causation). Because we find Plaintiffs' claims were properly dismissed as legally infirm, we need not reach the remainder of their issues on appeal. Affirmed. 15