The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Defendant National Railroad Passenger Corporation's (Amtrak) motion for summary judgment. This matter is also before the court on Amtrak's motion to strike the report, affidavit, and opinions of Michael Shinnick Ed.D. (Shinnick), Amtrak's motion to strike the report, affidavit, and opinions of Dr. Pietro Tonino (Tonino), and Amtrak's motion to strike the report, affidavit, and opinions of Dr. Gail Rosseau (Rosseau). For the reasons stated below, we grant the motions to strike. We also grant the motion for summary judgment.
Plaintiff Craig Meyers (Meyers) has been employed by Amtrak since 1978 as a pipe fitter and sheet metal worker. Meyers alleges that throughout that time he has been exposed to excessive and harmful cumulative trauma in his work environment. Specifically, Meyers claims that his employment responsibilities have required him to engage in excessive lifting, carrying, reaching, pulling, twisting, and other repetitive motions that have caused him to suffer various occupational injuries to his neck, shoulders, arms, wrists and hands, including carpal tunnel syndrome. According to Meyers, Amtrak failed to use ordinary care and caution and failed to provide Meyers with a reasonably safe place to work. Meyers claims that Amtrak should have provided an adequate ergonomic program to prevent his injuries and that Amtrak was negligent in failing to do so.
Meyers originally filed an action in the Court of Common Pleas of Philadelphia County, Pennsylvania, on March 30, 2007. The Pennsylvania court dismissed the action based on improper venue, but allowed Meyers six months to file a new action. Meyers brought the instant action and includes in the first amended complaint, claims under the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq. (FELA). Amtrak now moves for summary judgment and to strike the expert reports and opinions of Meyers' proposed expert witnesses.
Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In seeking a grant of summary judgment the moving party must identify "those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)(quoting Fed. R. Civ. P. 56(c)). This initial burden may be satisfied by presenting specific evidence on a particular issue or by pointing out "an absence of evidence to support the non-moving party's case." Id. at 325. Once the movant has met this burden, the non-moving party cannot simply rest on the allegations in the pleadings, but, "by affidavits or as otherwise provided for in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). A "genuine issue" in the context of a motion for summary judgment is not simply a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine issue of material fact exists when "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); Insolia v. Philip Morris, Inc., 216 F.3d 596, 599 (7th Cir. 2000). The court must consider the record as a whole, in a light most favorable to the non-moving party, and draw all reasonable inferences that favor the non-moving party. Anderson, 477 U.S. at 255; Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000).
Amtrak argues that it is entitled to summary judgment on all claims brought by Meyers in this action. Meyers' claims are brought under FELA, which holds railroads liable for injuries caused to their employees through negligence. 45 U.S.C. § 51. For claims brought under FELA, "[t]he test . . . '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.'" Fulk v. Illinois Cent. R. Co., 22 F.3d 120, 124 (7th Cir. 1994)(quoting in part Rogers v. Missouri Pac. R. Co., 352 U.S. 500, 506 (1957))(emphasis omitted). Even though the language in FELA is broad, plaintiffs are still required to prove each of the common law elements of negligence. Id; Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 706 (7th Cir. 2009)(stating that "[t]o establish a valid claim for negligence in the state of Illinois, a party must demonstrate that the defendant owed him a duty, that the defendant breached this duty, and that he suffered an injury that was proximately caused by the defendant's breach").
Amtrak asserts three separate arguments in support of its motion for summary judgment. First, Amtrak argues that Meyers' claims are barred by the statute of limitations applicable for claims brought under FELA. Second, Amtrak argues that Meyers has failed to produce sufficient evidence to raise a genuine issue of material fact as to whether Amtrak breached a duty of care with respect to Meyers. Finally, Amtrak argues that Meyers has failed to produce sufficient evidence to raise a genuine issue of material fact as to whether there is causation between Amtrak's actions and Meyers' injuries. Amtrak's motions to strike relate directly to their second and third arguments on summary judgment. In opposition to the motion for summary judgment, Meyers relies on the opinions of Shinnick, a proposed expert witness in the field of ergonomics to support his contention that there was a breach of a duty of care. To establish causation, Meyers relies on Rosseau and Tonino, who are proposed medical experts. Amtrak moves to strike all three expert witnesses along with their reports and opinions and argues that, particularly in the absence of such evidence, Meyers fails to raise a genuine issue of material fact for trial.
I. Statute of Limitations
The threshold question for the court is whether Meyers' FELA claims are timely. There is a three year statute of limitations period for claims brought under FELA. 45 U.S.C. § 56. The parties agree that, for the purposes of the statute of limitations, the instant action was commenced on March 30, 2007, the date that Meyers filed his action in Pennsylvania state court. Thus, the parties agree that Meyers' FELA claims would only be timely to the extent that such claims began to accrue on March 30, 2004, or later.
In addressing claims, such as the claims brought in the instant action, where an injury is alleged to have been caused by "continual exposure" to something over a period of time, the Supreme Court has held that a cause of action accrues when the injuries "manifest themselves." Urie v. Thompson, 337 U.S. 163, 170 (1949). This so-called "discovery rule" states that "a cause of action accrues for statute of limitations purposes when a reasonable person knows or in the exercise of reasonable diligence should have known of both the injury and its governing cause." Fries v. Chicago & NW Trans. Co., 809 F.2d 1092, 1095 (7th Cir. 1990). This is an objective standard with respect to both the plaintiff's knowledge of the injury and the plaintiff's knowledge of the cause of the injury. Id. With respect to the plaintiff's knowledge of the injury itself, an actual diagnosis is not required and symptoms of an injury may suffice for notice. Id. at 1095-96. With respect to the plaintiff's knowledge of the cause of an injury "[a]ctual knowledge of causation is not necessary" and it is sufficient if the exposure at issue was one of several "suspected" causes. Id. at 1096. The discovery rule also "imposes on plaintiffs the affirmative duty to investigate the cause of a known injury." Tolston v. National R.R. Passenger Corp., 102 F.3d 863, 865 (7th Cir. 1996).
Although in the instant action Meyers' allegations are couched as one claim under FELA, Meyers is actually alleging three separate types of injuries: hand injuries, neck/spine injuries, and right shoulder injuries. Meyers alleges a separate onset date for each of the three injuries, although Meyers contends that all were work related. Thus, the court will look to see whether Meyers had notice of each of these injuries before March 30, 2004.
It is uncontested that Meyers was experiencing pain and tingling in his hands by January 2004 at the latest. (RSF Par. 32). The undisputed evidence reflects that on January 30, 2004, Meyers visited his primary care doctor and reported experiencing bilateral hand pain. (RSF Par. 32). Eventually, Meyers was referred to Rosseau, a neurosurgeon who performed tests on Meyers and diagnosed him with bilateral carpal tunnel syndrome on March 17, 2004. (RSF Par. 39-40).
Amtrak argues that since it is undisputed that Meyers was experiencing symptoms of his hand injuries and, in fact, received a diagnosis of bilateral carpal tunnel syndrome prior to March 30, 2004, Meyers' cause of action accrued before the cutoff date for the purposes of the statute of limitations. Meyers argues that, even if he did have notice of the existence of his carpal tunnel syndrome, a reasonable person would not have known that such injuries were work related before March 30, 2004. Meyers puts forth evidence in the form of an affidavit indicating that Rosseau told him in February 2004, that his hand problems were "related to alcohol consumption." (Meyers Aff. Par. 4). Meyers also points to notations in the records kept by Rosseau in February 2004, indicating that an initial suspected cause of Meyers' carpal tunnel syndrome was alcohol consumption. (RSF Ex. 5, 4-5). Thus, Meyers contends that he could not have been reasonably expected to suspect that his injuries were work related prior to March 30, 2004, since he had been given a differing explanation by his physician.
Based on the evidence before us, a genuine issue of material fact remains as to when Meyers' cause of action accrued with respect to his hand injuries. Amtrak argues that we can discount Meyers' affidavit and the notations by Rosseau based on Amtrak's contention that such statements are inadmissible and need not be considered on summary judgment. On summary judgment, "the court may consider any evidence that would be admissible at trial" and "[t]he evidence need not be admissible in form . . . but it must be admissible in content." Stinnett v. Iron Works Gym/Executive Health Spa, Inc.,301 F.3d 610, 613 (7thCir. 2002); see also Bombard v. Fort Wayne Newspapers, 92 F.3d 560, 562 (7th Cir. ...