Jordan Keating Et Al, Respondents V. Joseph Essilfie, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JOSEPH ESSILFIE,
Appellant,
v.
JORDAN KEATING; LEAH COLLEY;
JOSH DOE, another male worker;
RESERVE AT SEATAC PARTNERS,
LLP; INDIGO REAL ESTATE
SERVICE, INC., a Washington
corporation,
Respondents,
PLYMOUTH HOUSING GROUP,
Defendant.
No. 80026-4-I
DIVISION ONE
UNPUBLISHED OPINION
APPELWICK, J. — Essilfie appeals the trial court’s orders granting summary
judgment dismissal and denying reconsideration of his negligence claim. He
alleged below that the respondents, including the owner and manager of the
apartment building where he resides, had been pumping toxic fumes into his
apartment. He further alleged that these fumes caused him various health
problems. On appeal, he argues that there are genuine issues of material fact
regarding his negligence claim that preclude summary judgment. We affirm.

No. 80026-4-I/2
2
FACTS
In November 2018, Joseph Essilfie filed a lawsuit against several
defendants, alleging that they pumped toxic fumes into his apartment.1 He alleged
that the toxic fumes exposed him to heavy metals, causing him various health
problems. The defendants included Reserve at SeaTac Partners LLP, the owner
of the apartment building where he resides, Indigo Real Estate Service Inc., the
company that manages the building, and Leah Colley and Jordan Keating, two
Reserve at SeaTac employees.2 Essilfie sought to recover $200 million in
damages.
In his complaint, Essilfie stated that he had gathered additional evidence in
support of his negligence claim.3 This statement appears to refer to a heavy metals
test he had conducted by The Carlson Company Inc. in August 2018. The test
results purport to show the presence of numerous heavy metals in a sample of
Essilfie’s hair. The results also indicate that “[n]o chemicals or toxins [were]
1 In February 2018, Essilfie filed a lawsuit against the “Landlord of Reserve
at Seatac” making similar allegations. The trial court dismissed that action without
prejudice in September 2018.
2 Essilfie also filed the lawsuit against Plymouth Housing Group and a
defendant he identified as “Josh/One Other Male Worker.” Plymouth Housing
Group’s relation to this case is unclear from the record. “Josh/One Other Male
Worker” appears to refer to another Reserve at Seatac employee.
3 Essilfie did not explicitly refer to negligence in his complaint. But, he
referred to the defendants’ alleged negligence in a responsive pleading below and
in his opening brief on appeal. Thus, we construe his claim for damages based on
illnesses he allegedly contracted from the defendants pumping toxic fumes into his
apartment as a negligence claim.

No. 80026-4-I/3
3
detected.” Further, Essilfie provided test results purporting to show the presence
of heavy metals in a sample of dust. He claimed in a pleading that the dust sample
came from a room in his apartment.
In January 2019, Reserve at Seatac, Indigo Real Estate, Colley, Keating,
and “Josh/One Other Male Worker” filed a motion for summary judgment against
Essilfie.4 They argued that Essilfie lacked sufficient evidence to establish three of
the four elements of negligence: breach of duty, proximate cause, and damages.
First, the respondents contended that Essilfie lacked proof that the
respondents had ever pumped fumes into his apartment. They provided
declarations from Colley and Keating, both of whom stated that they had never
caused toxic fumes to be pumped into Essilfie’s apartment, and that there is no
ductwork in the building that would make that possible. Second, they argued that
Essilfie’s speculation that the alleged fumes caused him physical harm was
inadmissible under ER 702. Last, they asserted that the test results from Carlson
were inadmissible under ER 702 and Frye v. United States, 293 F. 1013 (D.C. Cir.
1923). They relied on a declaration from Dr. Scott Phillips, a physician specializing
in internal medicine and medical toxicology. Phillips opined that the laboratory
tests were not evidence of toxicity or harm. He explained that metal poisoning is
4 For clarity, we refer to Reserve at Seatac, Indigo Real Estate, Colley,
Keating, and “Josh/One Other Male Worker” collectively as “the respondents”
throughout the remainder of the opinion. Plymouth Housing Group did not join in
the motion.

No. 80026-4-I/4
4
diagnosed clinically in conjunction with blood or urine tests, neither of which was
done in this case.
Essilfie opposed the respondents’ motion. He argued that the laboratory
tests from Carlson supported his claim. Further, he provided a medical record from
his November 2018 medical examination. The medical record does not address
whether he suffers from metal poisoning. Essilfie also provided copies of letters
he wrote to Plymouth Housing Group, Colley, and Reserve at Seatac. The letters
detail his concerns regarding the alleged toxic fumes in his apartment. His letters
to Colley specifically ask her to stop pumping fumes into his apartment, and to
assist him in getting others to stop pumping fumes.
The trial court granted the respondents’ motion and dismissed Essilfie’s
negligence claim against them with prejudice. At the hearing on the motion, the
court explained to Essilfie that even if the laboratory tests were true,
[they] don’t link the defendants with those lab results. And taking all
of the evidence in the light most favorable to you, which I’m required
to do at this position, I don’t find that the defendants in this case
actually are creating fumes and then secondly that they’re actually
causing negative effects in your body. So I have to dismiss the case
for the defendants that have filed this action.
Essilfie then filed a motion for reconsideration. He again argued that toxic
fumes in his apartment were causing him health problems. He also attached new
medical records to the motion. In the new records, Dr. Hildegarde Staninger, an
industrial toxicologist and doctor of integrative medicine, analyzed Essilfie’s test

No. 80026-4-I/5
5
results from Carlson and his current symptomatology. Staninger opined that
Essilfie’s symptoms “and the metal parameters found to be extremely high in value
correlate to systemic target organ toxicity.” Essilfie then filed another pleading to
supplement his motion for reconsideration. He provided even more medical
records as an attachment to that pleading. The trial court denied Essilfie’s motion.
Essilfie appeals.5
DISCUSSION
Essilfie makes two arguments. First, he argues that the trial court erred in
granting the respondents’ motion for summary judgment and dismissing his
negligence claim against them with prejudice. Second, he argues that the trial
court erred in denying his motion for reconsideration. He specifically asserts that
genuine issues of material fact regarding his negligence claim preclude summary
judgment.6
5 The respondents argue that we should not consider Essilfie’s appeal
because his negligence claim has not been dismissed as to Plymouth Housing
Group. Under RAP 2.2(d), we will hear an appeal on less than all claims only if
the trial court expressly enters findings illustrating that there is no just reason for
delay, or in the exercise of our discretion under RAP 2.3. The trial court did not
enter such findings in its order granting summary judgment, and Essilfie did not
move for discretionary review. However, in January 2020, the trial court granted
Plymouth Housing Group’s motion to dismiss Essilfie’s claim against it with
prejudice. Thus, we decline to dismiss Essilfie’s appeal on the basis that his claim
against Plymouth Housing Group is still pending.
6 As an initial matter, the respondents argue that we lack a sufficient basis
to consider these arguments because Essilfie did not comply with RAP 9.1 and
9.2(b) by not providing “enough of a record to review the purported issues on
appeal.” An appellant bears the burden of perfecting the record on appeal so that
“the reviewing court has before it all the evidence relevant to deciding the issues

No. 80026-4-I/6
6
We review summary judgment orders de novo, considering the evidence
and all reasonable inferences from the evidence in the light most favorable to the
nonmoving party. Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015).
Summary judgment is appropriate only when no genuine issue exists as to any
material fact and the moving party is entitled to judgment as a matter of law. Id. If
a plaintiff “‘fails to make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden
of proof at trial,’” summary judgment is proper. Young v. Key Pharms., Inc., 112
Wn.2d 216, 225, 770 P.2d 182 (1989) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)), overruled on other grounds
by 130 Wn.2d 160, 922 P.3d 69 (1996).
To prevail on a negligence claim, a plaintiff must prove (1) the existence of
a duty owed to the plaintiff, (2) a breach of that duty, (3) a resulting injury, and (4)
the breach as the proximate cause of the injury. N.L. v. Bethel Sch. Dist., 186
Wn.2d 422, 429, 378 P.3d 162 (2016). The parties dispute whether Essilfie can
establish breach of a duty, proximate cause, or a resulting injury.
before it.” Rhinevault v. Rhinevault, 91 Wn. App. 688, 692, 959 P.2d 687 (1998).
We may decline to reach the merits of an issue if this burden is not met. Id. Essilfie
did not meet his burden by providing us with only his response to the respondents’
motion for summary judgment and his motion for reconsideration. However, the
respondents supplemented the record by providing us with the other pleadings
necessary to resolve Essilfie’s arguments. “Washington law shows a strong
preference for deciding cases on the merits.” Luckett v. Boeing, 98 Wn. App. 307,
313, 989. P.2d 1114 (1999). We therefore reach the merits of Essilfie’s appeal.

No. 80026-4-I/7
7
I. Summary Judgment Dismissal
Essilfie contends that the trial court overlooked the seriousness of the
diseases caused by heavy metals in dismissing his negligence claim on summary
judgment. He cites the various health problems he suffers from, as well as the
laboratory tests he had done showing the presence of heavy metals. The
respondents counter that Essilfie’s laboratory tests do not constitute qualified
expert testimony.
Even if we were to assume the accuracy of the laboratory tests, Essilfie has
not provided any evidence connecting the respondents to his exposure to heavy
metals. The respondents provided declarations below from both Colley and
Keating. In their declarations, Colley and Keating stated that they had never
caused toxic fumes to be pumped into Essilfie’s apartment, and that there is no
ductwork in the building that would make that possible. Essilfie did not provide any
evidence to contradict those statements. Thus, there is no genuine dispute of
material fact regarding the breach of duty and causation elements of his
negligence claim. Essilfie does not make a showing sufficient to establish the
existence of either element.
The trial court did not err in dismissing Essilfie’s negligence claim against
the respondents on summary judgment.

No. 80026-4-I/8
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II. Denial of Reconsideration
Essilfie argues next that the trial court erred in denying his motion for
reconsideration. He states that the court’s decision was wrong “for the very fact I
have stated.” We construe this statement as repeating his earlier argument that
the court overlooked the seriousness of the diseases caused by heavy metals.
We review an order denying a motion for reconsideration for an abuse of
discretion. See Rivers v. Wash. State Conf. of Mason Contractors, 145 Wn.2d
674, 684-85, 41 P.3d 1175 (2002). On reconsideration, Essilfie provided additional
medical records, including a letter from an industrial toxicologist analyzing his test
results from Carlson and his current symptomatology. Staninger, the industrial
toxicologist, opined that Essilfie’s symptoms “and the metal parameters found to
be extremely high in value correlate to systemic target organ toxicity.”
Again, even if we were to assume the accuracy of Staninger’s letter, Essilfie
has not provided any evidence connecting the respondents to the above described
organ toxicity. Specifically, he did not provide any evidence to contradict Colley’s
and Keating’s statements that they had never caused toxic fumes to be pumped
into his apartment, and that there is no ductwork in the building that would make
that possible. Accordingly, Essilfie’s motion for reconsideration did not change his
failure to make a showing sufficient to establish the existence of the breach of duty
and causation elements of negligence.

No. 80026-4-I/9
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The trial court did not abuse its discretion in denying Essilfie’s motion for
reconsideration.7
We affirm.
WE CONCUR:
7 Essilfie also argues for the first time on appeal that his right to equal
protection while living in his apartment has been violated. He does not explain
how the respondents have violated this right, or how this violation relates to his
negligence claim. To raise this claim for the first time on appeal, Essilfie must
show manifest error affecting a constitutional right. RAP 2.5(a)(3). He fails to do
so here. He also did not support his argument with any citation to legal authority
or reference to the record, as required under RAP 10.3(a)(6). We hold pro se
litigants to the same standard as attorneys. Kelsey v. Kelsey, 179 Wn. App. 360,
368, 317 P.3d 1096 (2014). As a result, we decline to reach Essilfie’s equal
protection argument.