United States District Court, N.D. Illinois, Eastern Division
June 16, 2005.
DANIEL DENTON, RANDI L. KREMIAN and DORIS MARIE GRANAT-MONTEIL Plaintiffs,
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.
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
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
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
(Anderson's Report at 13, emphasis added.)
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.
Under FELA, a railroad employee may recover for injuries
"resulting in whole or in part from the negligence" of the
railroad or its agents. 45 U.S.C. § 51.
[T]he quantum of evidence necessary to establish
liability under the FELA is lower than that required
in an ordinary negligence action. . . . Nevertheless,
because the FELA is not a strict liability statute,
plaintiffs still must prove the traditional common
law elements of negligence, including foreseeability,
duty, breach, and causation.
Fulk v. Illinois C. RR. Co., 22 F.3d 120
, 124 (7th Cir. 1994).
"The test of a jury case under the FELA `is simply whether the
proofs justify with reason the conclusion that employer
negligence played any part, even the slightest, in producing
the injury . . . for which damages are sought.'" Id. (quoting
Rogers v. Missouri Pacific R.R., 352 U.S. 500
, 506 (1957)).
However, it is well settled that the plaintiff in a FELA case must still demonstrate some causal
connection between the defendant's negligence and the plaintiff's
injury. Schmaltz v. Norfolk & W. Rwy. Co., 896 F. Supp. 180,
182 (N.D. Ill. 1995).
Metra argues that it is entitled to summary judgment on
Monteil's claim because she has failed to establish a prima
facie case under FELA because she has no medical expert
testimony concerning causation. In opposition to Metra's motion
for summary judgment, Monteil argues that it would be permissible
for a jury to find causation from the temporal relationship
between the relocation of Metra's Safety and Rules Department and
the onset of her symptoms and complaints, and from Anderson's
opinion that there were conditions on the 15th floor that
could cause the plaintiffs' symptoms.
Monteil did not disclose any treating physician pursuant to
Rule 26(a)(2), not even Dr. Rosenbaum, the physician who examined
her at the time of her first medical leave. See Musser v.
Gentiva Health Servs., 356 F.3d 751, 756 (7th Cir. 2004)
(treating professional who will provide expert testimony under
Fed.R. Evid. 702 must be disclosed pursuant to Rule 26(a)(2)).
The court's striking of Dr. Gray's opinion left no testimony by
any medical professional who had examined Monteil and reviewed
her medical records and is capable of testifying regarding her
medical condition. Thus, there will be no testimony, except
presumably Monteil's, regarding her symptoms, records or
treatment, or the medical causation of Monteil's condition.
Monteil argues that Anderson's report provides a sufficient
basis for an inference of causation because he opined "within a
reasonable degree of scientific and toxicological certainty" that
the conditions at 547 West Jackson "could cause the symptoms and
physical anomalies experienced by nearly all workers" including
Monteil. (Anderson's Report at 13.) However, both parties concede that Anderson cannot provide an opinion regarding
the medical causation of plaintiffs' symptoms. (Def.'s LR Stmt. ¶
29; Pl.'s LR Resp. ¶ 10.)
Monteil relies on Cella v. U.S., 998 F.2d 418, 428-29 (7th
Cir. 1993), to support her contention that a jury may infer
causation from a temporal sequence. (Pl.'s Mem. at 2.) However,
the evidence in Cella was significantly different from that
produced by Monteil. In Cella, there was testimony from a
medical professional regarding medical causation.
998 F.2d at 429. In finding the evidence regarding medical causation
sufficient, the court in Cella noted that the medical expert
testified that, "based on his examination and testing of
[plaintiff], his review of [plaintiff's] full medical history,
his research of medical literature, and his analysis of
documented case studies of polymyositis, it is his opinion within
a reasonable degree of medical certainty that trauma was the
cause of this plaintiff's polymyositis." Id. (emphasis
omitted). The expert's conclusions in that case were supported by
"his physical examination of the plaintiff, extensive
neurological testing of the plaintiff, and careful review of the
plaintiff's medical history," which allowed the expert to exclude
other possible factors as a cause of the plaintiff's condition.
Id. at 421. Therefore, any inferences drawn in that case had a
basis in medical testimony, not simply post hoc, ergo propter
hoc. In this case, Monteil has not disclosed a medical expert,
and thus there will be no testimony about Monteil's medical
examinations, medical history, research based on medical
literature and, most importantly, no opinion within a reasonable
degree of medical certainty regarding causation.
Expert testimony is generally required to establish a causal
connection between an accident and an injury "unless the
connection is a kind that would be obvious to laymen, such as a
broken leg from being struck by an automobile." Schmaltz,
896 F. Supp. at 182 (quoting Moody v. Maine C.R.R. Co.,
823 F.2d 693, 695-96 (1st Cir. 1987)). In Schmaltz, the court found that
"[t]he existence of a causal relationship between herbicide exposure and
respiratory illness is not obvious to lay people." Id. That
same reasoning applies here. The existence of a causal
relationship between exposure to molds, fungi and bacteria and
the medical conditions claimed by Monteil is not obvious to lay
people. Rather, that type of knowledge is obtained through
specialized training and would require expert testimony.
Except for the stricken report of Dr. Gray, Monteil has not
offered any expert testimony to support a relationship between
the conditions in the workplace in 2000 and Monteil's claim of
stomach conditions that continued even after her extended leaves
of absence and her relocation to Arizona in 2002. Without any
such evidence, there is no basis to support a reasonable
inference of causation. Thus, Monteil has failed to produce
admissible evidence to support a necessary element for her claim,
and Metra is entitled to summary judgment.
For the reasons discussed above, Defendant's Motion for Summary
Judgment is granted. Judgment is entered in favor of defendant
Northeast Illinois Regional Commuter Railroad Corporation and
against plaintiff Doris Marie Granat-Monteil.
IT IS SO ORDERED.