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Denton v. Northeast Illinois Regional Commuter Railroad Corp.

August 17, 2006

DANIEL DENTON, RANDI L. KREMIAN AND DORIS MARIE GRANAT-MONTEIL PLAINTIFFS,
v.
NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION D/B/A METRA DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Geraldine Soat Brown

MEMORANDUM OPINION AND ORDER

This case is before the court on the motion of Defendant Northeast Illinois Regional Commuter Railroad Corporation d/b/a Metra ("Metra") to strike expert reports and bar testimony of Dr. Robert Tiballi. [Dkt 82.] For the reasons set forth below, Metra's motion is granted.

BACKGROUND

Plaintiffs Daniel Denton ("Denton") and Randi Kremian ("Kremian") (collectively, "Plaintiffs") brought this action under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. ("FELA"), alleging that in 2000 the floor of the building where they worked for Metra 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.]*fn1 The present motion relates to one of Plaintiffs' proposed expert witnesses, Dr. Robert Tiballi.

Factual Background

Denton has been employed by Metra since November 1994, and has worked in Metra's Safety and Rules Department ("Safety Department") since 1999. (Daniel Denton Dep. at 7-8, 12-13, 15.) [Dkt 93.] Kremian began working in 1980 for the Illinois Central Gulf Railroad, and continued to work for Metra after Metra took over Illinois Central in 1986. (Randi Kremian Dep. at 23-24.) [Dkt 93.] She worked in Metra's Safety Department from 2000 to June 2001. (Id. at 22-24.) In May 2000, the Safety Department, including Denton and Kremian, moved from another building to the 15th floor of 547 West Jackson, Chicago. (Denton Dep. at 13.)

The events leading to the filing of this case were set out in a previous opinion granting summary judgment to Metra on the claim of a third plaintiff. Denton v. N.E. Ill. Regl. Commuter R.R. Corp., No. 02 C 2220, 2005 WL 1459203 at *1-2 (N.D. Ill. June 16, 2005) (Brown, M.J.). In December 2000, there was a water leak in one of the women's bathrooms on the 15th floor where the Safety Department was located. (Pls.' Exs. Resp. Mot. Bar, Ex. 11, Deposition of Dennis Mogan at 22-23.) [Dkt 88.] The bathroom was out of service for five to six weeks. (Id.) In January 2001, Ronald Bachus, an industrial hygiene engineer at Metra, investigated complaints by several Metra employees of various symptoms. See Denton, 2005 WL 1459203 at *1. In interviews with several people in the Safety Department, he learned that some employees were experiencing a variety of symptoms, including facial swelling, tingling of lips, headaches, allergic type symptoms and digestive symptoms. See id.

In February or March 2001, the Safety Department was temporarily moved from the 15th floor to the 5th floor. (Denton Dep. at 13; Mogan Dep. at 66-67.) After a six week period on the 5th floor, the Safety Department was moved back to the 15th floor for approximately two months. (Denton Dep. at 13.) In May 2001, the Safety Department was relocated to the 16th floor. (Id. at 14.) In the fall of 2001, the Safety Department relocated to the 14th floor. (Id.; Mogan Dep. at 68.) Around January or February 2001, Denton first reported his symptoms, which included facial swelling, cold sores, tingling lips, sinus pain and drainage, "plugg[ed] up" ears, fatigue, and itching on his face and eyes. (Denton Dep. at 29, 33; Metra's Mot., Ex. A, Denton Railroad Employee Injury And/Or Illness Record at 2; Metra's Mot., Ex. C, Tiballi Report re: Denton.) Kremian claims that around February 2001, she developed a sinus infection, sinus pressure, infections in both of her eyes, headaches, tiredness, eye irritation, and broken blood vessels in her eyes. (Kremian Dep. at 64-65.)

Dr. Tiballi's Reports

Plaintiffs filed this action against Metra on March 27, 2002. (Compl.) After several extensions, Plaintiffs were ordered to serve Rule 26(a)(2) disclosures by June 4, 2004. (Order, April 28, 2004.) [Dkt 26.] On June 4, 2004, plaintiffs identified Dr. Kim Anderson, a building expert, and Dr. Robert N. Tiballi, D.O., as their Rule 26(a)(2) expert witnesses. (Metra's Mot. ¶ 19.) Dr. Tiballi prepared a report setting out his opinions about Denton's and Kremian's conditions. (Metra's Mot. ¶¶ 16, 18; Ex. C, Tiballi Report re: Denton; Ex. E, Tiballi Report re: Kremian.)

Dr. Tiballi's report about Denton is one page (Tiballi Report re: Denton), although his office notes of his March 31, 2004 examination of Denton are also in the record (Metra's Mot., Ex. D). At his examination, Denton provided Dr. Tiballi with his medical history, some documents describing air quality culture results, and some prior medical records. (Tiballi Report re: Denton.) In the report, Dr. Tiballi states that he reviewed Denton's medical records and deposition testimony, and "the above mentioned documents."*fn2 (Id.) Dr. Tiballi describes, presumably from Denton's medical records, the symptoms that Denton first reported around January 24, 2001, and other doctors' evaluations and treatments of those symptoms. Dr. Tiballi states that Denton's physical examination was "consistent with chronic allergy to airborne allergens." (Id.) Dr. Tiballi opines that:

Mr. Denton's symptoms appear temporally related to the relocation of his workplace to the 15th floor of 547 West Jackson Boulevard . . . which occurred on or about May, 2000. His symptom complex is consistent with severe allergic reaction to airborne antigens. These reactions began to occur after being physically present in the above mentioned workspace, resolved when away from the workspace and recurred after reintroduction to the workspace. Causation of symptoms being induced by presence in workplace is high, greater than 51% likely. (Id.)

Dr. Tiballi's report regarding Kremian is two pages. (Tiballi Report re: Kremian.) No notes of his examination of Kremian are in the record. In the report, Dr. Tiballi states that he reviewed Kremian's medical records and deposition testimony, and the "above mentioned documents."*fn3 (Id. at 1.) The first page of the report provides information regarding Kremian's history of doctors' evaluations and treatment. (Id.) Dr. Tiballi reports that he examined Kremian on May 26, 2004, but does not describe how he conducted the examination. (Id. at 2.) At that time, Dr. Tiballi obtained Kremian's medical history and recorded her statement that the symptoms of rhinitis improved dramatically after she was moved from the 15th floor. (Id.) Dr. Tiballi diagnosed Kremian with a history of severe allergic rhinitis and conjunctivitis secondary to environmental-type allergies, but no signs of continuing rhinitis, conjunctivitis or sinusitis. (Id.) Dr. Tiballi opines that:

Her symptoms returned and worsened after her relocation of workplace to the 15th floor of 547 West Jackson Boulevard . . . which occurred on or about May, 2000. Her symptom continued unabated by her history [sic] until she was transferred out of the building environment in question, at which time they improved and are now resolved. Her symptoms complex is consistent with severe allergic reaction to airborne antigens and resultant complications. She later developed migraines and nausea which were temporally related to presence in the building environment, now resolved since removal from the building environment. These reactions began to occur after being physically present in the above mentioned workspace and resolved when away from the ...


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