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
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.)
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 ...