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DENTON v. NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD

June 16, 2005.

DANIEL DENTON, RANDI L. KREMIAN and DORIS MARIE GRANAT-MONTEIL Plaintiffs,
v.
NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION Defendant.



The opinion of the court was delivered by: GERALDINE SOAT BROWN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

On February 28, 2005, the court struck the expert report submitted by Dr. Michael Gray on behalf of plaintiff Doris Marie Granat-Monteil ("Monteil") and barred Dr. Gray from testifying as a witness in this case. (Order, February 28, 2005.) [Dkt 49, 50.] The circumstances surrounding that decision are detailed in the February 28, 2005 opinion. Defendant Northeast Illinois Regional Commuter Railroad Corporation d/b/a Metra ("Metra") now moves for summary judgment on Monteil's claims, arguing that without medical expert testimony Monteil cannot prove causation, a necessary element of her claim. For the reasons stated herein, the motion is granted.

FACTUAL BACKGROUND*fn1

  Plaintiffs Daniel Denton, Randi Kremian, and Doris Marie Granat-Monteil brought this action under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. ("FELA"), alleging that in 2000 the 15th floor of the building where they worked became contaminated with molds, fungi and bacteria and they became ill as a result of being exposed to unsafe work conditions. (Compl. ¶¶ 8, 10, 11.) [Dkt 1.] In around February 2003, the parties consented to the jurisdiction of a Magistrate Judge and the case was reassigned to this court pursuant to 28 U.S.C. § 636(c). [Dkt 8, 9, 10.]

  Monteil began her employment with Metra as a secretary in August 1991, and she subsequently applied for and accepted the position of Engineer Certification Administrator in Metra's Safety and Rules Department. (Def.'s LR Stmt. ¶¶ 7-8; Pl.'s LR Resp. ¶ 3; Def.'s LR Ex. C, Deposition of Doris Marie Granat-Monteil at 20, 22.) Sometime around June 2000, Metra moved some of its administrative offices, including the Safety and Rules Department, to 547 West Jackson, Chicago, Illinois. (Def.'s LR Stmt. ¶ 9; Pl.'s LR Resp. ¶ 4; Monteil Dep. at 23-24, 34.) The Safety and Rules Department was located on the 15th floor of 547 West Jackson. (Def.'s LR Stmt. ¶ 11; Pl.'s LR Resp. ¶ 5; Monteil Dep. at 23-24.) Monteil testified that within a few weeks of the move, she began feeling ill and experiencing symptoms. (Pl.'s LR Stmt. ¶ 11; Monteil Dep. at 34.) From August through October 2000, Monteil went on a medical leave of absence due to abdominal pain and depression. (Def.'s LR Stmt. ¶ 12; Pl.'s LR Resp. ¶ 5; Monteil Dep. at 53, 56, 58.) Around this time, she saw Dr. Rosenbaum for various symptoms including severe stomach pain, diarrhea, vomiting, dizziness and difficulty with bowel movements. (Def.'s LR Stmt. ¶ 13; Pl.'s LR Resp. ¶ 5; Monteil Dep. at 58-59.) Monteil continued to have stomach pains after she returned from her leave of absence. (Def.'s LR Stmt. ¶ 14; Pl.'s LR Resp. ¶ 5; Monteil Dep. at 63.)

  By January 2001, several Metra employees were complaining of various symptoms. (Pl.'s LR Stmt. ¶ 11; Def.'s LR Ex. E, Ronald Bachus Dep. at 22-23.) Monteil testified that some of those complaints were the same as symptoms she was experiencing. (Pl.'s LR Stmt. ¶ 11; Monteil Dep. at 46, 73, 108.) Ronald Bachus, an industrial hygiene engineer at Metra, was told that a couple of people were experiencing swelling or itchiness around their faces. (Bachus Dep. at 15, 23.) He talked to several other people in the Safety Department to see if anybody had been experiencing those symptoms and learned that employees were experiencing a variety of symptoms, including facial swelling, tingling of lips, headaches, allergic type symptoms and digestive symptoms. (Bachus Dep. at 24-33; Def.'s LR Stmt. ¶ 15; Pl.'s LR Resp. ¶ 6.) In February 2001, the Safety and Rules Department was temporarily relocated to the fifth floor of 547 West Jackson. (Def.'s LR Stmt. ¶ 15; Pl.'s LR Resp. ¶ 6; Bachus Dep. at 40-41.)*fn2

  In March 2001, Monteil took a second leave of absence due to her abdominal symptoms. (Def.'s LR Stmt. ¶ 16; Pl.'s LR Resp. ¶ 6; Monteil Dep. at 101; Def.'s LR Ex. F, Medical Report Supporting Leave of Absence; Def.'s LR Ex. G, Application for Short Term Disability Benefits.) Monteil was scheduled to return to work in May 2001, but extended her leave of absence through June 19, 2001. (Def.'s LR Stmt. ¶¶ 16-18; Pl.'s LR Resp. ¶ 6; Monteil Dep. at 112-14.) Monteil remained on the medical leave of absence until her resignation date of July 18, 2001. (Def.'s LR Stmt. ¶ 18; Pl.'s LR Resp. ¶ 6; Monteil Dep. at 113-114.)

  Monteil's stomach pains continued from the time she left Metra in 2001 through and including her relocation to Arizona in August 2002. (Def.'s LR Stmt. ¶¶ 3, 19; Pl.'s LR Resp. ¶¶ 1, 7; Monteil Dep. at 119.) On May 24, 2004, Monteil saw Dr. Robert Tiballi, and his office notes from that visit includes an impression of "episodic dyspepsia."*fn3 (Def.'s LR Stmt. ¶ 20; Pl.'s LR Resp. ¶ 8; Def.'s LR Ex. H, Office Note from May 24, 2004.)

  Plaintiffs filed this action against Metra on March 27, 2002. (Def.'s LR Stmt. ¶ 22; Pl.'s LR Resp. ¶ 9.) After several extensions, plaintiffs were ordered to serve Rule 26(a)(2) disclosures by June 4, 2004. (Order, April 28, 2004 [dkt 26]; Def.'s LR Stmt. ¶ 23; Pl.'s LR Resp. ¶ 9.) On June 4, 2004, plaintiffs identified Kim Anderson, a building expert, and Dr. Robert Tiballi, D.O. as their Rule 26(a)(2) expert witnesses. (Def.'s LR Stmt. ¶ 24; Pl.'s LR Resp. ¶ 9; Def.'s LR Ex. J, Pls' Rule 26 Expert Disclosures.) Monteil did not disclose any expert on medical issues by June 4, 2004, instead attempting to disclose Drs. Michael Gray and B. Robert Crago in a supplemental disclosure after the June 4 deadline. (Def.'s LR Stmt. ¶¶ 25, 26; Pl.'s LR Resp. ¶ 10.) On February 28, 2005, this court barred Drs. Gray and Crago from testifying in this matter. (Mem. Op. & Order, February 28, 2005 at 8-9.) [Dkt 50.] Thus, the only experts disclosed on behalf of all three plaintiffs were Dr. Tiballi and Kim Anderson. (Def.'s LR Stmt. ¶ 27; Pl.'s LR Resp. ¶ 10; Pls' Rule 26 Expert Disclosures.) However, Dr. Tiballi did not submit an expert report on behalf of Monteil. (Def.'s LR Stmt. ¶ 27; Pl.'s LR Resp. ¶ 10.) Notably, Monteil did not identify her treating physician, Dr. Rosenbaum, in her Rule 26(a)(2) disclosure.

  Kim Anderson has an M.S. and a Ph.D. in Environmental Health. (Def.'s LR Stmt. ¶ 28; Pl.'s LR Resp. ¶ 10; Def.'s LR Ex. M, Curriculum Vitae of Kim Anderson.) According to his expert report, Anderson did not examine Monteil or her medical records. (Def.'s LR Ex. N, Anderson's Report at 2.) Both parties agree that Anderson's expert report does not and cannot provide an opinion regarding medical causation of plaintiffs' symptoms because his opinion is provided "within a reasonable degree of scientific and toxicological certainty." (Def.'s LR Stmt. ¶ 29; Pl.'s LR Resp. ¶ 10; Anderson's Report at 13.) With respect to causation, Anderson stated:
Based on the results of this evaluation of the materials reviewed, it is my opinion, within a reasonable degree of scientific and toxicological certainty, that conditions existed in the 15th Floor of the METRA office building . . . that could cause the symptoms and physical anomalies experienced by nearly all workers including Mr. Daniel Denton, Ms. Randi Kremian and Ms. Doris Marie Granat-Monteil, who were transferred to the 15th Floor.
(Anderson's Report at 13, emphasis added.)

  LEGAL STANDARD

  The court may properly grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, the court must construe all facts and draw all reasonable and justifiable inferences in favor of the non-moving party. Id. at 255. The moving party bears the initial burden to demonstrate the absence of a genuine issue of material fact and that judgment as a matter of law should be granted in the moving party's favor. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met the initial burden, the non-moving party must designate specific facts showing that there is a genuine issue for trial. Id. at 324. The non-moving party must support its contentions with admissible evidence and may not rest upon the mere allegations in the pleadings or conclusory statements in affidavits. Id. See also Winskunas v. Birnbaum, 23 F.3d 1264, 1267 (7th Cir. 1994) (non-moving party is required to present evidence of "evidentiary quality" (i.e., admissible documents or attested testimony, such as that found in depositions or in affidavits) demonstrating the existence of a genuine issue of material fact). "[N]either `the mere existence of some alleged factual dispute between the parties,' . . . nor the existence of `some metaphysical doubt as to the material facts,' . . . is sufficient to defeat a motion for summary judgment." Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 395 (7th Cir. 1997) (quoting Anderson, 477 U.S. at 247 and Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). Thus, "[t]he mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252.

  DISCUSSION

  Under FELA, a railroad employee may recover for injuries "resulting in whole or in part from the negligence" of ...


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