561 F.3d 698 (7th Cir. 2009), 08-1483, Lewis v. CITGO Petroleum Corp.

Docket Nº:08-1483.
Citation:561 F.3d 698
Party Name:Michael LEWIS and Tammy Livingston, Plaintiffs-Appellants, v. CITGO PETROLEUM CORPORATION,[1] Defendant-Appellee.
Case Date:April 06, 2009
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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561 F.3d 698 (7th Cir. 2009)

Michael LEWIS and Tammy Livingston, Plaintiffs-Appellants,



No. 08-1483.

United States Court of Appeals, Seventh Circuit.

April 6, 2009

Argued Dec. 5, 2008.

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[Copyrighted Material Omitted]

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Marios N. Karayannis, Attorney (argued), Brady & Jensen, Elgin, IL, for Plaintiffs-Appellants.

Scott C. Solberg, Attorney, Greg J. Weintraub, Attorney (argued), Eimer, Stahl, Klevorn & Solberg, Chicago, IL, for Defendant-Appellee.

Before RIPPLE, KANNE, and TINDER, Circuit Judges.

KANNE, Circuit Judge.

Plaintiffs-appellants Michael Lewis and Tammy Livingston claim to have been injured when they were exposed to hydrogen sulfide gas while working at a refinery operated by the defendant, CITGO Petroleum Corp. They sued CITGO under theories of negligence, which required them to prove that the exposure caused compensable injuries. On the defendant's motion for summary judgment, the district court found expert testimony offered by the plaintiffs on the element of causation to be inadmissible. Absent admissible proof of causation, the district court then granted summary judgment in favor of CITGO. For the reasons that follow, we affirm.


On March 11, 2001, Lewis and Livingston allegedly were exposed to hydrogen sulfide gas while fixing a flange at a refinery in Lemont, Illinois. Lewis and Livingston were employed by Philip Services Corporation, which had contracted with CITGO, the refinery's operator, to perform maintenance work at the facility.

On-site emergency personnel and a first-response medical team examined Lewis and Livingston before an ambulance took them to a local hospital. There, the emergency room staff conducted a full medical evaluation, including blood tests and chest x-rays. The hospital released both patients without an overnight stay.

Both Lewis and Livingston returned to work the next day. They received follow-up care from Dr. Bess Metrou, a physician for MedWorks, a healthcare provider for the refinery. Metrou met with Lewis and Livingston on three occasions in the ten days immediately following the accident. For the next two-and-a-half years, neither Lewis nor Livingston, both of whom are long-time smokers, sought further treatment

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for any medical problems purportedly related to the gas exposure.

In March 2003, the plaintiffs filed their initial suit against CITGO in Illinois state court. To prepare for trial, plaintiffs' counsel retained two physicians, Dr. Jordan Fink and Dr. Norman Kohn, to evaluate their clients' medical conditions. CITGO countered the diagnoses of doctors Fink and Kohn with a panel of its own experts, including Dr. Terrence Moisan, Dr. David Cugell, and Dr. Jerry Sweet. Although Lewis and Livingston voluntarily dismissed that suit in April 2006, the medical opinions of Fink and Kohn formed the basis of their subsequent 2006 action against CITGO, which is the subject of this appeal.

On August 7, 2003, Dr. Fink, a doctor of internal medicine who specializes in allergies, examined both Lewis and Livingston at the request of their attorney. Fink found Lewis to be in generally good health, but he diagnosed him with " occupational asthma related to exposure to chemicals at work during [the March 11] maintenance accident." Following his examination of Livingston, Fink stated that Livingston's chemical exposure in March 2001 had caused " a bronchitic problem" and possible sinus disease. Fink suggested that both Lewis and Livingston consult with a " neuropsychiatry specialist" to determine whether their purported exposure to hydrogen sulfide had caused deleterious effects to their nervous systems.

Pursuant to Dr. Fink's advice, several months later, on November 3, 2003, plaintiffs' counsel sent Lewis and Livingston to see Dr. Kohn, a psychiatrist and board-certified neurologist. In Lewis, Kohn found no evidence of " permanent organic brain injury." He noted that Lewis had recurrent headaches, with the " most likely causes [being] direct and indirect sequelae of the workplace incident of March 2001." In Kohn's report on Livingston, he found that she had suffered persistent headaches since the accident but that she, like Lewis, suffered from no permanent organic brain injury. The doctor diagnosed Livingston with potential emotional distress, stating: " While she minimizes her experience now, she very likely suffered posttraumatic stress disorder [ (PTSD) ] in the earlier phases." He found this problem exacerbated by " an underlying mood disorder, most likely Bipolar Type II."

On June 22, 2006, two months after dismissing their first suit, nearly three years after doctors Fink and Kohn first examined them, and more than five years after the incident at the Lemont refinery, Lewis and Livingston filed a second action against CITGO in the Circuit Court of Cook County, Illinois. In their complaint, Lewis and Livingston sought both compensatory and punitive damages arising from their exposure to hydrogen sulfide gas, which they claimed was due to CITGO's negligence. Relying on diversity of citizenship, CITGO promptly removed the case to federal court.

In an order dated January 30, 2008, the district court granted CITGO's motion for summary judgment. The court noted that it could consider only admissible evidence when ruling on a summary judgment motion. The court then found that the plaintiffs, as the proponents of experts Dr. Fink and Dr. Kohn, had failed to satisfy their burden to demonstrate the reliability and usefulness of the evidence, a prerequisite for admitting expert testimony. The court therefore declined to consider their opinions in making its decision. Without that evidence, the court determined that the plaintiffs had not presented admissible evidence that would create a triable issue of fact on causation, a necessary element of any successful negligence claim. The district court concluded that summary judgment

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was appropriate, and it is this order that Lewis and Livingston now appeal.


We review de novo a district court's decision to grant a party's motion for summary judgment. Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 (7th Cir.1994). If, after reviewing the record as a whole and drawing all reasonable inferences in favor of the nonmoving party, a court determines that there remains no genuine issue as to any material fact, then the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Alexander v. Wis. Dep't of Health & Family Servs., 263 F.3d 673, 680 (7th Cir.2001). Thus, to survive summary judgment, the nonmoving party must present evidence sufficient to establish a triable issue of fact on all essential elements of its case. See Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548. If there is no triable issue of fact on even one essential element of the nonmoving party's case, summary judgment is appropriate. Id. at 323, 106 S.Ct. 2548.

As a federal court sitting in diversity, we apply the substantive law of Illinois. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Schindler v. Seiler, 474 F.3d 1008, 1010 (7th Cir.2007). We construe the plaintiffs' remarkably inarticulate complaint as seeking relief based on two state law theories. The first, which both Lewis and Livingston assert, is simple common law negligence. The second, which pertains to only Livingston, is the separate tort of negligent infliction of emotional distress.2 As we discuss below, Illinois law treats the two claims similarly in certain situations.

To 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. Cunis v. Brennan, 56 Ill.2d 372, 308 N.E.2d 617, 618 (1974). In the personal injury context, standard negligence claims involve physical injuries and those mental harms, commonly called pain and suffering, that " stem[ ] directly from a physical injury or condition." Consol. Rail Corp. v. Gottshall, 512 U.S. 532, 544, 114 S.Ct. 2396, 129 L.Ed.2d 427 (1994). As stated above, if CITGO can show that Lewis and Livingston have not produced evidence sufficient to create a triable issue of fact on any one of these elements, summary judgment is appropriate. See Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. 2548.

Illinois law on negligent infliction of emotional distress is somewhat more complicated. In evaluating these claims, Illinois courts separate " bystanders" from " direct victims." See Corgan v. Muehling, 143 Ill.2d 296, 158 Ill.Dec. 489, 574 N.E.2d 602, 605-06 (1991) (recognizing the different tests applicable to bystanders and direct victims); see also

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Kapoulas v. Williams Ins. Agency, Inc., 11 F.3d 1380, 1382 (7th Cir.1993). Bystanders must satisfy the " zone-of-physical danger" test, which limits potential recovery to those individuals " ‘ in a zone of physical danger and who, because of the defendant's negligence, [had] reasonable fear for [their] own safety’ which caused them emotional distress, and who could demonstrate physical injury or illness resulting from the emotional distress." Kapoulas, 11 F.3d at 1382 (alterations in original) (quoting Rickey v. Chi. Transit Auth., 98 Ill.2d 546, 75 Ill.Dec. 211, 457 N.E.2d 1, 5 (1983)).

By contrast, a direct victim of alleged negligent infliction of emotional distress must satisfy the " impact" rule. See Corgan, 158 Ill.Dec. 489, 574 N.E.2d at 604-06. Under the impact rule, a direct victim may not recover for emotional distress suffered as a result of the defendant's alleged negligence unless the emotional distress " was accompanied by a contemporaneous physical injury to or impact on...

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