The opinion of the court was delivered by: JAMES ZAGEL, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Virginia Hallmer alleges that due to the defendant
corporations' negligence, she was exposed to the industrial
solvent trichloroethylene ("TCE") and developed peripheral
neuropathy and other health ailments as a result of that
exposure. After several years of litigation, Hallmer and other
plaintiffs alleging similar injuries reached a settlement with
two of the three corporations named as defendants in the suit:
The Lockformer Company ("Lockformer"), a division of Met-Coil
Systems Corp. ("Met-Coil"), and Mestek, Inc. ("Mestek"). The only
remaining Defendant, Honeywell International, Inc.,
("Honeywell"), now seeks summary judgment on the ground that
Hallmer has not disclosed and cannot offer competent medical
opinion evidence establishing a causal connection between her
illnesses and her alleged TCE exposure.
Summary judgment is warranted "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
judgment as a matter of law." Fed.R. Civ. P. 56(c). A genuine issue of material fact exists when
there is evidence on the basis of which a reasonable jury could
find in the plaintiff's favor, allowing for all reasonable
inferences drawn in a light most favorable to the plaintiff.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Rule
56(c) requires the entry of summary judgment against a party "who
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." Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
Despite Hallmer's vigorous efforts to ensure that Defendant
Honeywell remained a party to the suit,*fn1 she failed to
file a response to Honeywell's Motion for Summary Judgment or a
Statement of Material Facts pursuant to Local Rule 56.1. The
result of this failure is dire, as all of Defendant's facts are
deemed admitted. L.R. 56.1(b)(3)(B); see also Malec v. Sanford,
191 F.R.D. 581, 584 (N.D. Ill. 2000) ("the penalty for failing to
properly respond to a movant's 56.1(a) statement is usually
summary judgment for the movant . . . because the movant's
factual allegations are deemed admitted"). Hallmer's failure to
respond is all the more troublesome given the state of the
record. Hallmer withdrew her sole medical causation expert, Dr.
Alan Hirsch, after Defendants objected to Dr. Hirsch's
qualifications at the close of discovery.*fn2 Defendant Honeywell argues that absent expert testimony, Hallmer
has no admissible evidence that might demonstrate a causal link
between her injury and Defendant's alleged conduct.
In her Complaint, Hallmer seeks compensation for her injuries,
for her alleged increased risk of other ailments, and her fear of
contracting cancer. A plaintiff in a negligence action bears the
burden of proving duty, breach of duty, proximate causation and
damages. Brown v. Baker, 672 N.E.2d 69, 71 (Ill.App.Ct.
1996). Generally, a plaintiff must establish proximate cause in a
personal injury action through the admissible testimony of an
expert witness. Kane v. Motorola, Inc., 779 N.E.2d 302, 310
(Ill.App.Ct. 2002) ("plaintiffs . . . must come forward with
scientific evidence regarding causation to preclude the entry of
summary judgment"); Wintz v. Northrop Corp., 110 F.3d 508, 515
(7th Cir. 1997) ("[u]nder Illinois law, to serve as the sole
basis for a conclusion that an act was the proximate cause of the
plaintiff's injury, an expert must be able to testify with a
reasonable degree of medical certainty that proximate cause
existed"). Summary judgment for the defendant is appropriate when
a plaintiff cannot prove proximate cause. Kane,
779 N.E.2d at 310-11; Wintz, 110 F.3d at 515-16.
Hallmer claims that her peripheral neuropathy was caused by TCE
exposure, but offers no evidence to that effect. Without Dr.
Hirsch's testimony, Hallmer's sole medical testimony is that of
her treating physicians, Drs. Larsen and Graham. Dr. Larsen, a
neurologist, first examined Hallmer in May, 2001. It is his
opinion that Hallmer's peripheral neuropathy is caused by
connective tissue disease. He does not hold an opinion based on a
reasonable degree of medical certainty concerning the cause of her connective tissue disease.
Consequently, he will not offer the opinion that her disease and
the associated neuropathy are caused by TCE. Dr. Graham is a
rheumatologist who has cared for Hallmer since October, 1999. It
is his opinion that Hallmer suffers from a connective tissue
disease most probably caused by an evolving auto-immune disease.
He has not determined the cause of Hallmer's connective tissue
disease and will therefore not offer an opinion based on a
reasonable degree of medical certainty establishing a causal
connection between Hallmer's connective tissue disease and
alleged TCE exposure. There is no other evidence in the record
before me that raises a genuine issue of material fact with
respect to the proximate cause of Hallmer's condition.
In Porter v. Whitehall Labs., Inc., 9 F.3d 607 (7th Cir.
1993), the plaintiff administratrix filed suit against drug
manufacturers, alleging that the defendants' drugs had caused the
decedent's renal failure and death. The defendants successfully
moved for summary judgment after the district court excluded the
plaintiff's expert witness pursuant to Daubert. Affirming the
district court's decision, the Court of Appeals of the Seventh
Circuit held that the district court correctly concluded that
"expert testimony is necessary to determine the cause of Mr.
Porter's renal failure." Id. at 612 (observing first that under
Indiana law, a plaintiff "must prove every element of a prima
facie case, including causation"). As with the plaintiff in
Porter, Hallmer's failure to offer expert testimony
establishing Defendant's conduct as the proximate cause of her
peripheral neuropathy warrants summary judgment of this claim.
Hallmer also seeks damages for the alleged increased risk of
developing cancer in the future as a result of her exposure to
TCE. Illinois law now recognizes a cause of action for the
increased risk of future harm. See Dillon v. Evanston Hosp.,
199 Ill. 2d 483 (2002). A plaintiff who seeks damages for the increased risk of future injury must
"prove that the defendant's negligence increased the plaintiff's
risk . . .". Id. at 504. See also Liebig-Grigsby v. United
States, No. 00 C 4922, 2003 U.S. Dist. LEXIS 3682 at *49-51
(N.D. Ill. Mar. 11, 2003) (declining to award damages for risk of
future complications when plaintiff "offered no proof of this
risk"). I have already ruled that by failing to respond to
Defendant's motion for summary judgment, Hallmer cannot prove
that Defendant's actions proximately caused her present injury.
Similarly, there are no facts in the record before me that
establish Defendant's actions as the proximate cause of Hallmer's
increased risk of future harm. Moreover, the excerpts of Dr.
Larsen's and Dr. Graham's deposition testimony fail to discuss
either Hallmer's risk of future injury or the reasonable
probability that Defendant's actions increased her risk of
suffering future injury.*fn3 Defendant is entitled to
summary judgment on this claim.
Finally, Hallmer seeks compensation for her fear of future
injury. Under Illinois law, a plaintiff alleging a fear of future
injury as a result of exposure to a toxic substance must
establish actual exposure to the harmful agent. See Majca v.
Beekil, 183 Ill. 2d 407, 420 (1998). In her Complaint, Hallmer
alleges that she consumed contaminated groundwater from the well
on her property. Because of Hallmer's failure to respond to
Defendant's Motion for Summary Judgment and to submit a Rule 56.1
Statement of Material Facts, there are no facts in the record before me to support her allegation of actual exposure to TCE.
Defendant is entitled to summary judgment on this claim.
For these reasons, Defendant Honeywell's Motion for Summary
Judgment as to all ...