Michael Lewis v. Citgo Petroleum Corp ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1483
M ICHAEL L EWIS and T AMMY L IVINGSTON,
Plaintiffs-Appellants,
v.
CITGO P ETROLEUM C ORPORATION,1
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CV 4314—Elaine E. Bucklo, Judge.
A RGUED D ECEMBER 5, 2008—D ECIDED A PRIL 6, 2009
1
Pursuant to briefs submitted by the parties on a separate
jurisdictional question identified by the court, we grant the
uncontested motion of plaintiffs-appellants to strike as parties
PDV America, Inc. and CITGO Lemont Refinery, both of which
were listed as defendants in the court below. PDV America, Inc.
was never served in the lower court, and CITGO Lemont
Refinery is not a legal entity and therefore incapable of being
sued. This leaves CITGO Petroleum Corp. as the sole re-
maining defendant-appellee.
2 No. 08-1483
Before R IPPLE, K ANNE, and T INDER, Circuit Judges.
K ANNE, 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 expo-
sure 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.
I. B ACKGROUND
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 emer-
gency 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
No. 08-1483 3
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 for any medical problems pur-
portedly 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 volun-
tarily dismissed that suit in April 2006, the medical opin-
ions of Fink and Kohn formed the basis of their subse-
quent 2006 action against CITGO, which is the subject
of this appeal.
On August 7, 2003, Dr. Fink, a doctor of internal medi-
cine 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 diag-
nosed him with “occupational asthma related to ex-
posure to chemicals at work during [the March 11] mainte-
nance 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 special-
ist” to determine whether their purported exposure to
4 No. 08-1483
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.
No. 08-1483 5
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 propo-
nents 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 con-
sider 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 con-
cluded that summary judgment was appropriate, and
it is this order that Lewis and Livingston now appeal.
II. A NALYSIS
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 review-
ing the record as a whole and drawing all reasonable
inferences in favor of the nonmoving party, a court deter-
mines that there remains no genuine issue as to any
material fact, then the moving party is entitled to judg-
ment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (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
6 No. 08-1483
its case. See Celotex Corp., 477 U.S. at 322-23. If there is no
triable issue of fact on even one essential element of the
nonmoving party’s case, summary judgment is appro-
priate. Id. at 323.
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 (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 sim-
ilarly 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
2
Only because we are required to construe the evidence in the
light most favorable to the nonmoving party, see Alexander, 263
F.3d at 680, do we grudgingly recognize a claim for negligent
infliction of emotional distress from the face of Livingston’s
complaint. Nowhere in hundreds of pages of pleadings, filings,
and briefings does Livingston state, in so many words, that
she seeks recovery under this separate tort. Yet, based on the
allegations and facts sprinkled throughout the record, we are
able to piece together what appears to be a cognizable claim
under such a theory. We note, however, that this construction
pushes our obligation in construing the record to its absolute
limit; part of that duty is not to build an anthill out of grains
of sand scattered across a voluminous record.
No. 08-1483 7
duty, and that he suffered an injury that was proximately
caused by the defendant’s breach. Cunis v. Brennan,
308 N.E.2d 617, 618 (Ill. 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 (1994). As stated above, if CITGO can show that
Lewis and Livingston have not produced evidence suffi-
cient 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.
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, 574 N.E.2d 602, 605-06
(Ill. 1991) (recognizing the different tests applicable to
bystanders and direct victims); see also 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, be-
cause of the defendant’s negligence, [had] reasonable
fear for [their] own safety’ which caused them emo-
tional 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., 457 N.E.2d 1, 5 (Ill. 1983)).
By contrast, a direct victim of alleged negligent in-
fliction of emotional distress must satisfy the “impact”
8 No. 08-1483
rule. See Corgan, 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 accompa-
nied by a contemporaneous physical injury to or impact
on the plaintiff.” Rickey, 457 N.E.2d at 2; see also Corgan,
574 N.E.2d at 605. Direct victims no longer need to
suffer physical manifestations resulting from the
emotional distress as a prerequisite to recovery;
emotional injuries alone will suffice. See Corgan, 574
N.E.2d at 609.
As a result of these parallel analyses, classifying a
claimant as either a bystander or a direct victim be-
comes important in determining whether potential recov-
ery exists. Kapoulas, 11 F.3d at 1382. Under Illinois law,
a claimant may be both a bystander and a direct victim.
See, e.g., id. at 1384; Seitz v. Vogler, 682 N.E.2d 766, 774 (Ill.
App. Ct. 1997). It is unclear from Livingston’s com-
plaint whether she is making a claim as a bystander,
direct victim, or both. A close reading of the record,
however, reveals insufficient facts or allegations to
support a bystander claim under the aforementioned
test.3 Thus, we consider her allegations to be those of
a direct victim.
3
In her complaint, Livingston states that she “suffered emo-
tional trauma emanating from her being in the zone of danger
and witnessing Lewis losing consciousness.” While this certainly
sounds like an attempt to satisfy the zone-of-danger test
promulgated in Rickey, 457 N.E.2d at 5, it is missing necessary
elements of a valid claim, including evidence of fear for
Livingston’s own safety. See id.No. 08-1483 9
Illinois courts treat claims by direct victims of
negligent infliction of emotional distress under the same
approach used for standard negligence claims. See
Corgan, 574 N.E.2d at 306; Hiscott v. Peters, 754 N.E.2d
839, 849-50 (Ill. App. Ct. 2001). In other words, a party
advancing a negligent infliction of emotional distress
claim must demonstrate a defendant’s duty, as well as a
breach that proximately caused the claimant an injury. See
Parks v. Kownacki, 737 N.E.2d 287, 296-97 (Ill. 2000). The
difference under a claim for negligent infliction of emo-
tional distress, of course, is that the alleged injury may
be solely emotional, rather than physical. See Corgan,
574 N.E.2d at 609; see also Gottshall, 512 U.S. at 544(“The injury we deal with here is mental or emotional
harm . . . that is caused by the negligence of another and
that is not directly brought about by a physical
injury . . . .”). As with the plaintiffs’ negligence claims, if
CITGO can show that Livingston has not produced evi-
dence sufficient to create a triable issue of fact on any
one of the required elements—duty, breach, injury, or
causation—summary judgment is appropriate on her
claim for negligent infliction of emotional distress. See
Celotex Corp., 477 U.S. at 322-23.
The district court granted CITGO’s motion for sum-
mary judgment based solely on the plaintiffs’ inability
to demonstrate a triable issue of fact on the necessary
element of causation. We limit our initial discussion to
causation before turning, in the context of negligent
infliction of emotional distress, to a related question: the
necessity of a compensable “effect,” i.e., whether the
purported emotional injuries were sufficiently egregious
to survive summary judgment.
10 No. 08-1483
A. Causation Evidence from the Plaintiffs’ Expert Witnesses
The plaintiffs sought to establish causation for all of
their claims through the use of expert testimony offered
by Dr. Fink and Dr. Kohn. To defeat a summary judgment
motion, however, a party may rely only on admissible
evidence. See Schindler, 474 F.3d at 1010; Stinnett v. Iron
Works Gym/Executive Health Spa, Inc., 301 F.3d 610, 613
(7th Cir. 2002); Smith v. City of Chi., 242 F.3d 737, 741 (7th
Cir. 2001). This rule applies with equal vigor to expert
testimony. See Porter v. Whitehall Labs., Inc., 9 F.3d 607, 612
(7th Cir. 1993) (noting that expert testimony must be
admissible to be considered in a motion for summary
judgment); see also Rosen v. Ciba-Geigy Corp., 78 F.3d 316,
320 (7th Cir. 1996) (affirming summary judgment when
the district court declined to consider expert testimony
that it found inadmissible). Thus, the first question that
we must answer is whether the district court properly
excluded the evidence presented by Fink and Kohn.
The appellants’ initial challenge is procedural. Lewis and
Livingston claim that the district court was required to
consider questions pertaining to the admissibility of
evidence separately from those related to the summary
judgment motion. Specifically, the appellants argue that
their experts’ testimony remained admissible at the time
of the summary judgment motion because CITGO did not
first move to have it stricken. They assert that the court’s
decision to exclude the evidence, which it made concur-
rently with its order granting summary judgment, was
therefore improper. We disagree.
Although it is rarely a dispositive question, we have
repeatedly affirmed district courts that have made eviden-
No. 08-1483 11
tiary rulings on proposed expert testimony in conjunction
with summary judgment orders. See, e.g., Dhillon v. Crown
Controls Corp., 269 F.3d 865, 868, 871 (7th Cir. 2001); Rosen,
78 F.3d at 318, 320; Porter, 9 F.3d at 612, 616-17. The
factors the district court must consider in determining
the admissibility of expert testimony are well established,
see Fed. R. Evid. 702; Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 592-95 (1993), but the law grants the district
court great discretion regarding the manner in which it
conducts that evaluation, see Kirstein v. Parks Corp., 159
F.3d 1065, 1067 (7th Cir. 1998). In Kirstein, we noted that
“[w]e have not required that the Daubert inquiry take
any specific form and have, in fact, upheld a judge’s sua
sponte consideration of the admissibility of expert testi-
mony.” Id. (citing O’Connor v. Commonwealth Edison Co., 13
F.3d 1090 (7th Cir. 1994)).
Given this precedent, it was entirely proper for the
district court to determine the admissibility of the plain-
tiffs’ expert testimony at the same time that it decided
the defendant’s motion for summary judgment. Further,
given that the district court may consider the admissi-
bility of expert testimony sua sponte, see O’Connor, 13
F.3d at 1094, 1107, it is of no import that CITGO objected
to the expert testimony only in its motion for summary
judgment, as opposed to first filing a separate motion
in limine. Having found the appellants’ procedural argu-
ment unavailing, we now turn to the substance of the
district court’s decision that the testimony of the plain-
tiffs’ experts was inadmissible.
In cases where the district court based its decision to
grant summary judgment on the exclusion of certain
12 No. 08-1483
expert testimony, we review de novo whether the court
employed the correct legal standard in reaching its ad-
missibility decision. Winters v. Fru-Con Inc., 498 F.3d 734,
742 (7th Cir. 2007). Once satisfied that it did, we review
only whether the court abused its discretion in its
“choice of factors to include within that framework as
well as its ultimate conclusions regarding the admissi-
bility of expert testimony.” Id.The admissibility of expert testimony is governed by
Federal Rule of Evidence 702 and the Supreme Court’s
opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993). Naeem v. McKesson Drug Co., 444 F.3d
593, 607 (7th Cir. 2006). Expert testimony is admissible
when the testimony is reliable and would assist the trier
of fact to understand the evidence or determine a fact
at issue in a case. See Fed. R. Evid. 702; Daubert, 509 U.S.
at 589-91. The proponent of the expert bears the burden
of demonstrating that the expert’s testimony would
satisfy the Daubert standard. Fed. R. Evid. 702 advisory
committee’s note (2000 Amends.) (“[T]he admissibility
of all expert testimony is governed by the principles of
Rule 104(a). Under that Rule, the proponent has the
burden of establishing that the pertinent admissibility
requirements are met by a preponderance of the evi-
dence.”); cf. Bourjaily v. United States, 483 U.S. 171, 175-76
(1987) (holding that the proponent of hearsay evidence
must prove to the court, by a preponderance of the evi-
dence, that the Rules of Evidence have been satisfied).
Because it is clear from the district court’s order that it
applied Rule 702 and Daubert, we are satisfied that the
No. 08-1483 13
court utilized the correct standard in conducting its
analysis. Thus, we review the substance of the court’s
evidentiary decisions only for an abuse of discretion. See
Winters, 498 F.3d at 742. Upon review, we conclude that
the court was well within the bounds of its discretion
in deciding not to consider the testimony of Fink and
Kohn.
A party challenging the admissibility of expert testi-
mony can take issue with both the qualifications and the
methodology of the proposed expert. For a witness to
be considered an “expert,” Rule 702 requires that person
to be qualified as such “by knowledge, skill, experience,
training, or education.” But it is not enough that the
proposed testimony comes from a qualified physician.
As we have said: “[Q]ualifications alone do not suffice.
A supremely qualified expert cannot waltz into the court-
room and render opinions unless those opinions are
based upon some recognized scientific method and are
reliable and relevant under the test set forth by the Su-
preme Court in Daubert.” Clark v. Takata Corp., 192 F.3d 750,
759 n.5 (7th Cir. 1999); see also Rosen, 78 F.3d at 318 (“[A]
district judge asked to admit scientific evidence must
determine whether the evidence is genuinely scientific, as
distinct from being unscientific speculation offered by a
genuine scientist.”). Instead, to be admissible, a medical
expert’s ultimate opinion must be grounded in the scien-
tific process and may not be merely a subjective belief or
unsupported conjecture. See Daubert, 509 U.S. at 589-90;
Goodwin v. MTD Prods., Inc., 232 F.3d 600, 608-09 (7th
Cir. 2000).
14 No. 08-1483
In its motion for summary judgment, CITGO chal-
lenged both Dr. Fink’s qualifications and his methodol-
ogy. CITGO argued that Fink was an allergist and had
no training or experience in toxicology or epidemiology.
CITGO noted that Fink had treated one patient twelve
years earlier who had experienced hydrogen sulfide
exposure, and, in preparing his diagnosis in this case, he
spent only thirty minutes researching a medical data-
base for relevant information about hydrogen sulfide
exposure. CITGO also contested Fink’s conclusions re-
garding both general and specific causation. It pointed to
several notable gaps within Dr. Fink’s cause-and-effect
conclusions, which CITGO argued were based on mere
speculation and therefore inadmissible.
In lodging complaints against Dr. Kohn, CITGO focused
exclusively on Kohn’s methodology. Kohn, who did not
examine Lewis and Livingston until two-and-a-half years
after the incident, conceded that Livingston did not have
PTSD at the time of his evaluation, but stated that she
“likely met criteria for [PTSD] at some point in the months
following the accident.” Kohn reached this conclusion
based only on information gathered from Livingston
herself; he did not examine her prior medical records.
Additionally, Kohn diagnosed Livingston with
an underlying mood disorder, which he opined was
likely Bipolar Type II, yet he failed to support his con-
clusions related to the interplay of this underlying disorder
and Livingston’s past bout with PTSD. As to Lewis, Kohn
found that the incident “triggered” his headaches. There
again, however, he failed to consider and discount other
potential causes, including many purported stressors
that were occurring in Lewis’s work and social lives.
No. 08-1483 15
Faced with CITGO’s challenges, Lewis and Livingston,
who bore the burden of proving the admissibility of their
evidence, see Bourjaily, 483 U.S. at 175-76, failed to advance
any arguments in support of their experts. They did not
suggest that Fink was qualified to render an opinion in
this case or that Fink and Kohn based their conclusions
on anything other than speculation. Instead, they chose
to argue solely on the aforementioned procedural
ground—that it was improper for CITGO to challenge
the admissibility of their experts’ testimony in a sum-
mary judgment motion—an argument with which we
have already dispatched.
Presented with substantive arguments from only one
side, the district court was well within its discretion to
review the record and agree with CITGO’s basic con-
tention that the plaintiffs had failed to meet their burden
to establish the admissibility of their evidence. Our
review of the record reveals no reason to disturb this
conclusion. The district court did not abuse its discre-
tion when it declined to consider the testimony of
Dr. Fink and Dr. Kohn in rendering its summary judg-
ment decision.
B. Causation Evidence from Other Medical Experts
Lewis and Livingston next contend that even if the
district court properly ignored their experts’ testimony,
other material in the record provides the requisite evidence
of causation needed to prevent summary judgment. In
regard to their negligence claims, Lewis and Livingston
point to reports and statements from the MedWorks
16 No. 08-1483
doctor, Dr. Metrou, as well as those from two of CITGO’s
experts, doctors Moisan and Cugell. As for Livingston’s
claim for negligent infliction of emotional distress, she
refers us to evidence from another of CITGO’s experts,
Dr. Sweet.
Turning first to both plaintiffs’ simple negligence
claims, we conclude that Metrou, Moisan, and Cugell
provide no evidence of causation. In some instances,
Lewis and Livingston grossly mischaracterize the
content of the cited testimony. Metrou and Cugell, for
example, both stated explicitly that hydrogen sulfide
was not the cause of various respiratory injuries alleged
in this case. Lewis and Livingston also point to testi-
mony that arguably would help them prove the other
elements of negligence at trial; but of course Lewis and
Livingston must first survive summary judgment. To do
so, they must present evidence of causation, which they
still have not done, making summary judgment appro-
priate on the negligence claims brought by both of them.
Finally, we consider other potential causation evidence
relative to Livingston’s claim for negligent infliction of
emotional distress. Livingston argues that statements
made by Dr. Sweet, an expert retained by CITGO to
testify concerning Livingston’s psychological condition,
provided the necessary evidence of causation. In his
deposition, Dr. Sweet, a clinical psychologist specializing
in neuropsychology, stated that the incident “did cause
[Livingston] some anxiety.” He found that this anxiety
was “relatively mild” and did not interrupt Livingston’s
daily activities. He noted that she had continued to work,
No. 08-1483 17
but “that she may go back and double-check somebody
else’s having made [her work area] safe.” Based on the
timing of the events and Livingston’s statements, Sweet
opined that Livingston’s cautiousness was related to the
hydrogen sulfide exposure. He concluded by saying
the “level of anxiety that she experiences now [probably]
is not diagnosable” and did not warrant care or clinical
help.
In granting summary judgment, the district court
acknowledged Livingston’s “mild anxiety” but concluded
that Dr. Sweet “did not find [that] Livingston suffered
from any psychological disorders as a result of the inci-
dent.” It appears that the court, by granting summary
judgment for lack of causation despite this evidence,
required a more substantial injury than the one
diagnosed by Dr. Sweet for a claim for negligent infliction
of emotional distress to survive. The district court moved
beyond the issue of causation and considered the implicit
question contained therein: whether the caused in-
jury—here, mild anxiety—was compensable. The district
court concluded that it was not, and we agree.
Implicit in causation is the existence of a compensable
injury. A cause without an effect is not actionable under
any form of negligence law. The Illinois Supreme Court
has not addressed directly the magnitude of emotional
injuries required for a claimant to recover on a claim for
negligent infliction of emotional distress. A review of
decisions by the Appellate Court of Illinois, however,
makes clear that emotional injuries must surpass a thresh-
old severity to be cognizable. See Hiscott, 754 N.E.2d at18 No. 08-1483
850 (“[T]o prevent trivial or fraudulent claims, . . . recovery
for negligently inflicted emotional distress should . . . be
provided only for ‘serious’ or ‘severe’ emotional injury.”);
Majca v. Beekil, 682 N.E.2d 253, 255 (Ill. App. Ct. 1997)
(requiring “medically verifiable manifestations of severe
emotional distress” to limit false or magnified claims
and concluding that plaintiff’s reasonable fears were “not
severe enough to justify compensation through the
courts”); Robbins v. Kass, 516 N.E.2d 1023, 1027-28 (Ill.
App. Ct. 1987) (concluding that “crying, sleeplessness,
increased migraine headaches and upset feelings” were
not sufficiently serious forms of emotional injury to
merit recovery for claims of negligent infliction of emo-
tional distress); cf. Buckley v. Jones Truck Lines, Inc., 778
F. Supp. 449, 452 (N.D. Ill. 1991) (recognizing that Illinois
law requires the plaintiff in a negligent infliction of emo-
tional distress action to demonstrate “severe emotional
distress” but declining to find lack of severity as a
matter of law).
In Allen v. Otis Elevator Co., 563 N.E.2d 826 (Ill. App. Ct.
1990), plaintiffs alleged emotional injuries suffered as
the direct victims of an elevator breakdown in Chicago’s
John Hancock Building. Id. at 828-29. Plaintiffs claimed
that as a result of being trapped in a crowded elevator
somewhere near the Hancock Building’s ninety-fifth floor,
they suffered “continued distress, nervousness and
sweaty palms when on elevators, . . . fears of heights or
crowds, and, although they have taken elevators and
airplanes since the incident, they have taken some
actions to avoid taking elevators or using airplanes as a
means of transportation.” Id. at 833. A jury ruled in favor
No. 08-1483 19
of the plaintiffs at trial, but the state appellate court
concluded that the plaintiffs’ alleged injuries were not
severe enough to merit that conclusion and ordered a
judgment notwithstanding the jury’s verdict. Id. at 834.
As support for imposing a severity threshold, the
Allen court cited the state’s requirement of physical
illness or injury prior to recovery for emotional distress.
Id. at 833 (“[T]he physical illness or injury requirement
indicates a desire to permit compensation only in cases
involving serious emotional disturbance.” (citing Robbins,
516 N.E.2d 1023)). Although the Illinois Supreme Court
has subsequently disavowed the physical injury require-
ment, see Corgan, 574 N.E.2d at 609; see also Buckley, 778
F. Supp. at 452, many post-Corgan opinions continue to
embrace the threshold requirement of a severe emotional
injury, see Buckley, 778 F. Supp. at 452; Hiscott, 754
N.E.2d at 850; Majca, 682 N.E.2d at 255.
Furthermore, we believe other policies underlying a
severity threshold remain valid. It would be anomalous,
for example, to require severe injury for a claim of in-
tentional infliction of emotional distress but not for emo-
tional distress that is caused by mere negligence. See
Allen, 563 N.E.2d at 834; Robbins, 516 N.E.2d at 1027. In
addition, the courts must have some mechanism, in
situations such as this, to avoid wasting judicial
resources on meritless claims.
In Corgan, the Illinois Supreme Court stated that it
“[had] not lost its faith in the ability of jurors to fairly
determine what is, and is not, emotional distress.” 574
N.E.2d at 609. Nor have we. We agree that any claims
20 No. 08-1483
of even arguable merit must be given to the jury to con-
sider. But we also recognize our continued obligation
to avoid wasting the time and resources of our judicial
system. See Celotex Corp., 477 U.S. at 327 (noting that
summary judgment has become the principal tool “by
which factually insufficient claims or defenses could
be isolated and prevented from going to trial with the
attendant unwarranted consumption of public and
private resources”). When, as here, a claim for negligent
infliction of emotional distress so clearly falls below
the threshold requirement of a severe emotional injury,
we will not hesitate to dismiss it at the summary judg-
ment stage. We conclude that Livingston’s injury—
mild anxiety that causes her to recheck her work, but
that only minimally interferes with her everyday life
and for which she has not sought treatment—does not
rise to the level of severity required under Illinois law
for an emotional injury to be compensable in a claim
for negligent infliction of emotional distress.
III. C ONCLUSION
We G RANT the plaintiffs-appellants’ motion to strike
PDV America, Inc. and CITGO Lemont Refinery as
parties to this case. As to all other claims raised by either
Lewis or Livingston, we A FFIRM the district court’s order
granting summary judgment in favor of CITGO.
4-6-09