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 15"
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 15" Floor.

(Anderson’s Report at 13, emphasis added.)

LEGAL STANDARD

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
areasonable 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. /d. 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. Jd. at 324. The non-moving party must support its contentions with admissible evidence and


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. (PI.’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 Cel/a 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.” /d. (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. Jd. 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.

RR. Co., 823 F.2d 693, 695-96 (Ist Cir. 1987)). In Schmalz, the court found that “[t]he existence


from that visit includes an impression of “episodic dyspepsia.”* (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. 4 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; P1.’s LR Resp. 99; 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. ff 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

3 Dyspepsia is indigestion and impairment of the normal process of digestion. It may be
due to general nervousness, irritability of the stomach, gallbladder disease, excessive acidity of
the stomach, chronic inflammation of the appendix, etc. J. E. Schmidt, Attorney's Dictionary of
Medicine, Vol. 2, D-243 (Matthew Bender, November 2004).

4


may not rest upon the mere allegations in the pleadings or conclusory statements in affidavits. /d.
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
amotion 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.

DISCUSSION
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 nota strict
liability statute, plaintiffs still must prove the traditional common law elements of
negligence, including foreseeability, duty, breach, and causation.
Fulk y, 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.’” fd.

(quoting Rogers v. Missouri Pacific R.R. , 352 U.S. 500, 506 (1957)). However, it is well settled that


of a causal relationship between herbicide exposure and respiratory illness is not obvious to lay
people.” /d. 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.

CONCLUSION
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.

Geraldine Soat Brown
United States Magistrate Judge

June 16, 2005


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
DANIEL DENTON, RANDI L. KREMIAN )
and DORIS MARIE GRANAT-MONTEIL )
Plaintiffs, ) Cause No. 02 C 2220
)
v. ) Magistrate Judge
) Geraldine Soat Brown
NORTHEAST ILLINOIS REGIONAL )
COMMUTER RAILROAD CORPORATION)
Defendant. y

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.

FACTUAL BACKGROUND'

Plaintiffs Daniel Denton, Randi Kremian, and Doris Marie Granat-Monteil brought this

' ‘The following facts are taken from the parties’ respective statements of fact filed
pursuant to Local Rule 56.1, which are cited herein as: “Def.’s LR Stmt. { __” [dkt 57], “Pl.’s
LR Resp. | _” [dkt 62] and “Pl.’s LR Stmt.” [dkt 62], and from the exhibits submitted with
Defendant’s statement, which are cited herein as “Def.’s LR Ex. __” [dkt 55]. Statements not
responded to or not controverted by specific references to the record are deemed admitted. L.R.
56.1(b)(3).


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 15" 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 (7 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


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.
$9 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. ff] 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 ofits administrative offices, including the Safety and Rules Department, to 547 West Jackson,
Chicago, Ilinois. (Def.’s LR Stmt. 4 9; P!.’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. (PI.’s LR Stmt. q 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. (PI.’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. 4 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.)

In March 2001, Monteil took a second leave of absence due to her abdominal symptoms.
(Def.’s LR Stmt. J 16; Pl.’s LR Resp. 4 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. ff] 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. ff 3, 19; Pl.’s LR Resp. {f]

1, 7; Monteil Dep. at 119.) On May 24, 2004, Monteil saw Dr. Robert Tiballi, and his office notes

2 Although Metra’s LR Statement states that this relocation occurred in February 2000
(Def.’s LR Stmt. 4 15), that appears to be a typographical error. See Bachus Dep. at 40-41.

3