Seventh Circuit Court of Appeals Commentary : In Their Opinion : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

DICKERSON v. BOARD OF TRUSTEES (September 16, 2011)

The Belleville Area Community College District 522 has employed Robert Dickerson, who suffers from a mild mental impairment, as a part-time janitor since 1999. He unsuccessfully applied for full-time positions in 2005, 2006, and 2007. In October of 2007, he complained, both at a Board meeting and to the District's attorney, that he was the victim of discrimination. Less than two months later, the District conducted its first formal evaluation of Dickerson's work performance and gave him an overall Unsatisfactory rating. Dickerson disagreed with the evaluation and filed a union grievance and an EEOC charge. The District conducted a second review six months later and found his performance still Unsatisfactory. Although the District fired Dickerson in September of 2008, it later reinstated him. A union arbitrator ruled that the termination violated the collective bargaining agreement. Dickerson brought suit alleging that the District's failure to promote him, its negative evaluations, and its termination all violated the Americans with Disabilities Act. Judge Murphy (S.D. Ill.) granted summary judgment to the District. Dickerson appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Bauer and Williams affirmed. The ADA makes it illegal to discriminate against a disabled employee because of his disability. The Court addressed Dickerson's discrimination and retaliation claims together. It first concluded that neither claim could survive summary judgment under the direct method of proof. The Court concluded that the record established that it was Dickerson's work performance that was connected to his termination, not any discriminatory or retaliatory intent on the District’s part. The Court also addressed the claims under the indirect method of proof. Under that method, Dickerson had the burden to show that he was meeting the District's legitimate employment expectations. The Court noted that the record was replete with evidence of Dickerson's unsatisfactory work performance. Dickerson failed to create an issue fact with respect to satisfactory performance. Summary judgment was proper.

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EVERETT v. COOK COUNTY (August 24, 2011)

Cook County, Illinois faced a severe budget crisis in 2006. The County President instructed the Chief of the Bureau of Health to submit budget cut recommendations. One of the Bureau of Health functions was the Cermak Health Services, which provided medical and dental services to Cook County Jail inmates. The budget team identified Cermak’s dental program as a good source of some budget cuts. The Bureau Chief agreed to a recommendation that reduced the number of dentists from five to one. In deciding whom to keep among the five, the County looked for management experience, flexibility, productivity, and skills. The County ultimately chose Dr. Ronald Townsend as the dentist who best met those criteria. One of the five dentists who was not chosen was Dr. Carol Everett, a Caucasian woman who had been with Cermak for almost 25 years. Dr. Everett filed an appeal, which was denied. Everett filed suit under Title VII, alleging ethnicity discrimination, and under § 1983 and the Shakman decree, alleging political discrimination. Judge Kendall (N.D. Ill.) granted summary judgment to the County. Everett appeals.

In their opinion, Seventh Circuit Judges Kanne, Evans (who, due to his death, did not participate in the decision), and Sykes affirmed. The Court first addressed and rejected Everett's spoliation argument that the County destroyed certain documents containing notes concerning the layoffs. First, she did not identify any evidence of bad faith, a requirement before a negative inference is imposed. Second, the record does not support a conclusion that the documents were destroyed to eliminate adverse evidence. On the merits, the Court first addressed her political activity discrimination claim, in which she alleges that the decision to retain Everett was due to his political donations. The Shakman decree and the First Amendment prohibit firing an employee for political reasons. Under both theories, however, the plaintiff must show a causal relationship between the employment decision and the political considerations. Everett relied on procedural irregularities in the process to establish that causal relationship. The Court concluded, however, that her evidence was insufficient to establish such a relationship. Even if such a relationship had been established, however, Everett would still fall short because there is no evidence in the record that the decision-makers were aware of the political activity -- or lack thereof -- of either Everett or Townsend. The Court turned to the ethnicity discrimination claim. It concluded that Everett failed to show pretext. Although she provided some evidence of her possible superiority to Townsend in some areas, it was insufficient to show that the reasons the County gave for selecting Townsend were suspect. At most, they could show that the County made a hurried, poorly researched, and possibly poor decision. That is not enough to show pretext.

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BENUZZI v. BOARD OF EDUCATION (July 21, 2011)

Thirty years ago, the Chicago Public School System hired Jessica Benuzzi, a white woman now in her fifties, as one of its first female custodial assistants. A promotion in 2004 qualified her to be the senior custodian at a large school. She was granted a transfer to a school that was closed and undergoing major renovation -- and was scheduled to be opened as the John J. Pershing West Magnet School in the fall 2005. In March of 2005, however, the Board of Education named Cheryl Watkins as the new Pershing principal. Watkins is an African-American woman in her forties. From their first encounter, the two women did not get along. Over the next several school years, Benuzzi complains that Watkins refused to accommodate her request for a shift change, unfairly reprimanded her on numerous occasions, treated her very roughly, demanded a fitness for duty examination, and suspended her without pay on more than one occasion. Benuzzi filed a gender discrimination charge with the EEOC in October 2006. She updated the charges several times thereafter. She filed suit against Watkins and the Board in June 2009 alleging, among the things, gender discrimination and retaliation under Title VII. A few days after Watkins waived service, she reprimanded Benuzzi again. When Benuzzi wouldn't sign the reprimand, she asked the Board to remove her from the school. The Board refused. Watkins was present at Benuzzi's deposition on February 25, 2010. The very next day, Watkins restricted Benuzzi's presence at Pershing and also issued a Notice of Disciplinary action that referred to nine different instances going back several months. Judge Conlon (N.D. Ill.) granted summary judgment to the defendants. In doing so, she did not consider most of Benuzzi's factual submissions because their length violated a local rule. Benuzzi appeals.

In their opinion, Seventh Circuit Judges Flaum, Wood, and Tinder affirmed in part and vacated and remanded in part. The Court first addressed the district court's ruling on the factual submissions. It emphasized its support for local rules and a district court’s policy to insist upon strict compliance. The rule at issue here is 56.1, which requires that a party opposing summary judgment respond to the movant’s statement of facts in no more than forty "short numbered paragraphs." Benuzzi's filed forty paragraphs but her paragraphs sometimes ran as long as 18 lines. Apparently, the district court considered only four of Benuzzi's paragraphs. The Court expressed some concern about such a strict interpretation of the standard that uses the word "short." Since both sides acquiesced at oral argument to the Court's consideration of the entire record, the court did not need to decide if the 56.1 ruling was an abuse of discretion. On the merits, the Court first addressed her gender discrimination claim. One of the requirements for her to succeed on the claim is to show not only that the reasons for her suspensions were dishonest but that they were, in fact, based on discrimination. Benuzzi presented no evidence that gender bias had any impact on Watkins's decisions. Her gender discrimination claim must fail without that link. The Court turned to her retaliation claim. It quickly concluded that she satisfied the statutorily protected activity element and that her suspension without pay was a materially adverse action. The Court also concluded that the Notice of Disciplinary Action and memorandum restricting her hours could constitute a materially adverse action and left that question for a jury. The Court acknowledged that written warnings are generally not enough to constitute a materially adverse action but noted that the context here (numerous charges, for minor transgressions, going back several months, delivered the day after she was deposed) could lead a jury to conclude otherwise. Finally, the Court considered causation. Again, the Court thought that a jury should decide causation with respect to the Notice of Disciplinary Action. Suspicious timing is frequently not enough to establish causation. But here, where the gap was so short and there were no intervening events, a jury should decide. The Court decided that there was not enough causation evidence to send the retaliation claim to the jury.

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WACKETT v. CITY OF BEAVER DAM (June 13, 2011)

Daniel Wackett worked for the Department of Public Works in Beaver Dam, Wisconsin from 1972 until his retirement in 2009. In 2003, he was responsible for evaluating three bids for a front-end loader needed by the City. At a Board of Public Works meeting, he and his supervisor, the Director of Public Works, both recommended the John Deere front-end loader. The Board voted to recommend to the City Council the more expensive Caterpillar front-end loader. Wackett spoke out against the decision. He even claimed that the Board was improperly influenced. He persuaded a local businessman to write a letter criticizing the recommendation. The local newspaper printed the letter. After numerous citizen complaints, the Board changed its recommendation and the City purchased the John Deere front-end loader. After that incident, the Board refused to promote Wackett. Twice, they appointed someone else Director. From 2004 to 2009, Smith actually served as Acting Director but the Board refused to appoint him to the position. Wackett brought suit pursuant to § 1983. He alleged that the City and Board retaliated against him on account of his speech. Judge Griesbach (E.D. Wis.) granted summary judgment to the defendants. Wackett appeals

In their opinion, Chief Judge Easterbrook and Judges Manion and Williams affirmed. There are three prongs to a First Amendment retaliation claim: a) constitutionally protected speech, b) but-for causation, and c) a deprivation. With respect to the first prong, the Supreme Court in Garcetti held that a public employee's statements in his official capacity are not protected speech. Here, most of Wackett's speech was made in his official capacity and is not protected. To the extent he engaged in protected speech in conversations with the businessman and other citizens, he presented no evidence that the defendants were aware of that speech. With respect to that speech, therefore, he cannot establish causation.

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CDX LIQUIDATING TRUST v. VENROCK ASSOCIATES (March 29, 2011)

Cadant was founded in 1998 to develop systems for home Internet access. It was based in Illinois but it was incorporated in Maryland. Two venture capital firms, Venrock and J.P. Morgan, invested in the company and received preferred stock in exchange. Eric Copeland, a Venrock principle, also became a Cadant board member. In early 2000, the Cadant board rejected a tentative $300 million purchase offer. Several months later, the company started experiencing financial difficulties. After considering several options, the board approved an $11 million bridge loan from Venrock and J.P. Morgan. Copeland negotiated the loan on behalf of Cadant. On January 1, 2001, the company reincorporated in Delaware. In May, the company entered into a second bridge loan from Venrock and J.P. Morgan, this time for $9 million. Again, Copeland negotiated for Cadant. The agreement provided that the lenders would be entitled to twice the outstanding principal if Cadant was liquidated. Cadant defaulted and sold its assets for stock valued at $55 million. The sale amount was just enough to pay off creditors and preferred shareholders. It was approved by the board and also a simple majority of shareholders. The common stock shareholders brought suit charging several directors with breaches of their duty of loyalty and also alleging that Venrock and J.P. Morgan aided and abetted the directors. In an earlier appeal to the Seventh Circuit, the Court held that the case was improperly brought and should be brought as a derivative suit. Judge Norgle (N.D. Ill.) bifurcated the trial and granted defendants' motion for judgment as a matter of law at the end of the plaintiffs' liability case. Plaintiffs appeal.

In their opinion, Judges Posner, Flaum, and Sykes reversed and remanded. The Court first addressed choice of law. Illinois choice of law principles direct the Court to the law of the state of incorporation in a breach of fiduciary duty case. Maryland law therefore applied to the first alleged breach (the purchase offer rejection). That allegation was properly dismissed because Maryland imposes no duty on directors to accept, or even respond, to a purchase proposal. The other allegations, relating principally to the bridge loans, straddled the Delaware reincorporation. The negotiations for the first loan began before the reincorporation but the loan was finalized shortly after. Since it could not apply the laws of both states, the Court looked to which state’s law the parties would have expected to govern and which state had the higher regulatory interest. The answer to both questions was Delaware. So the court turned to the merits, applying Delaware law. The district judge had given too grounds for granting judgment: insufficient evidence of proximate cause, and insufficient evidence of a breach of fiduciary duty. The Court disagreed with the district court's approach to causation. Under Delaware law, once a plaintiff rebuts the business judgment defense with evidence of a breach of fiduciary duty, the burden shifts to the directors to prove the transaction's "entire fairness" to the shareholders. If the transaction at issue is the sale of the company, for example, the directors can prove that they obtained the highest reasonable value and therefore "caused" no loss. Here, the defendant directors had to rebut the breach evidence by proving that their misconduct had no effect on the outcome of the deal. In addition to the fact that the district court applied the burden of causation improperly, the Court also concluded that there was enough causation evidence to send the case to a jury. A similar company brought $300 million in the marketplace shortly after Cadant brought $55 million. There is evidence that the oppressive terms of the bridge loans negotiated by Copeland contributed to Cadant's inability to bring fair value. The Court also rejected the defendant directors' argument that there could be no breach of loyalty when their conflict of interest was fully disclosed. But the directors are not accused of disloyalty because they had a conflict of interest -- they are accused of actually being disloyal. Actual disloyalty is not excused by disclosing a conflict of interest. Finally, the Court concluded that the evidence of aiding and abetting on the part of Venrock and J.P. Morgan was sufficient to get the plaintiffs to a jury.

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LOUDERMILK v. BEST PALLET CO. (February 18, 2011)

Kevin Loudermilk, an African-American male, worked as a laborer at the Best Pallet Co. He came to believe that the company treated its Hispanic employees more favorably. He claims that he complained without success. He even talked about filing an EEOC charge. One day, he took some pictures of his work area. A supervisor, Dan Lyons, directed him to stop. Loudermilk again voiced his concerns about the discriminatory work environment. Lyons told him to put it in writing. When Loudermilk handed Lyons his written complaint the next day, Lyons immediately fired him. Loudermilk brought suit under Title VII, alleging that Best Pallet fired him for opposing its discriminatory practices. Judge Reinhard (N.D. Ill.) granted summary judgment to Best Pallet. He concluded that Loudermilk's only evidence, the timing of his discharge vis-à-vis the written complaint, was insufficient to establish causation. Loudermilk appeals.

In their opinion, Chief Judge Easterbrook and Judges Wood and Evans reversed and remanded. The Court rejected the district court's conclusion for several reasons. First, the court did not look at the evidence in the light most favorable to Loudermilk. Second, the several different reasons the company put forth for its actions (it told the EEOC that Loudermilk was let go as part of a reduction in force, it first told the court that Loudermilk resigned, and it later told the court that he was fired for taking pictures) could support an inference of pretext. Third, the Court rejected the notion that timing, by itself, can never support an inference of causation. It depends on the context. Here, the termination came immediately after a protected act. The Court concluded that the context could support a causation inference.

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DELAPAZ v. RICHARDSON (February 14, 2011)

Pablo Delapaz and Michael Sarkauskas are both employees of the City of Chicago's Department of Streets and Sanitation (DSS). They are also both supporters of the Hispanic Democratic Organization. In 2001 in 2002, DSS Commissioner Al Sánchez appointed both men to temporary acting foremen positions in the Department. Michael Picardi replaced Sanchez as Commissioner several years later. Delapaz and Sarkauskas still occupied their temporary positions. Shortly after Picardi became Commissioner, he ordered the elimination of all acting foreman positions and the return of those employees to their prior positions. When Deputy Commissioner Richardson advised Delapaz that he would have to return to his prior position, he also remarked: "Your guy is gone." Both Delapaz and Sarkauskas assumed their prior positions in the summer of 2005, as did all the other acting foremen. Later that year, the Richardson appointed another man as an acting Foreman for snow removal purposes. That man was a contributor and volunteer for Chicago Alderman Richard Mell. Delapaz and Sarkauskas filed suit against Deputy Commissioner Richardson under § 1983, alleging that he violated their First Amendment rights of free association by demoting them because of their HDO affiliation. Judge Marovich (N.D. Ill.) granted summary judgment to Richardson. Delapaz and Sarkauskas appeal.

In their opinion, Circuit Judges Flaum and Evans and District Judge McCuskey affirmed. The Court agreed that a public employee’s firing or demotion because of his or her political affiliation is a First Amendment violation. But to state a claim against a particular defendant, a plaintiff must establish that the defendant participated or caused the deprivation. In their summary judgment response pursuant to local rule, plaintiffs admitted that Picardi ordered the demotions, not Richardson. Courts are entitled to rely on these admissions. In light of the admission, the plaintiffs cannot establish Richardson's liability. The Court did cite another reason why they could not prevail: they waived the Richardson liability argument by not addressing it in their response brief in the district court. And the Court cited yet a third reason why they could not prevail: the merits. The only evidence the plaintiffs presented that Richardson even knew of their HDO affiliation is the "your guy" remark he made to Delapaz, an apparent reference to Sanchez. But they presented no evidence that Sanchez was even affiliated with HDO or, if he was, that Richardson knew about it. And they presented no evidence at all that Richardson knew of Sarkauskas’ HDO affiliation -- only that the timing of his demotion (two weeks after Delapaz) was suspicious. Without a triable issue of fact on whether he knew of their party affiliation, Richardson is entitled to summary judgment.

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ROE v. ELYEA (January 28, 2011)

Hepatitis C is a disease that affects the liver. It is caused by the HCV virus and is transmitted through blood to blood contact. Many hepatitis C sufferers are asymptomatic while others develop cirrhosis or liver cancer. These conditions sometimes develop two or three decades after the initial infection. The virus is relatively common in the United States prison population. Edward Roe, Anthony Stasiak, Timothy Stephen, and Jonathan Walker are current or former Illinois prison inmates who suffer from the disease (Roe actually died in 2007). The plaintiffs brought suit against Dr. Willard Elyea, the former medical director of the Illinois Department of Corrections. They allege that the Department’s diagnosis and treatment protocols violated the Constitution. Their principal contention is that Elyea instituted a policy applicable to all inmates suffering from hepatitis C that deprived them of treatment unless they had a certain amount of time remaining on their sentences. The plaintiffs' damage claims were tried to a jury, which awarded to each plaintiff $20,000 in compensatory damages and $2 million in punitive damages. Judge Baker (C.D. Ill.) rejected Elyea’s qualified immunity claim but vacated the judgments in favor of Messrs. Stephen, Stasiak, and Walker on the ground that insufficient evidence supported the verdicts. He upheld the verdict and compensatory damages in favor of Roe but ordered a conditional remittitur, giving Roe the choice of $20,000 in punitive damages or a new punitive damages trial. When Roe made no choice, the court entered an order reducing the punitive damages to $20,000. Stephen, Stasiak, and Walker appeal the court's entry of judgment against them, Roe's estate appeals the remittitur, and Elyea appeals the qualified immunity ruling and the denial of judgment as a matter of law with respect to Roe, and also challenges the Court's jurisdiction to hear the appeal.

In their opinion, Seventh Circuit Judges Ripple and Rovner and District Judge St. Eve affirmed. The Court first addressed two jurisdictional issues. It rejected Elyea's argument that plaintiffs’ notice of appeal was ineffective because it was filed after the entry of the conditional remittitur order but before entry of the final judgment. The Court held that Federal Rule of Appellate Procedure 4(a)(2) applied to the remittitur order and the premature notice became effective when the final judgment was entered. The Court agreed with Elyea, however, that the remittitur order was not reviewable (a point Roe ultimately conceded). A party cannot appeal a judgment to which it has consented. The Court turned to qualified immunity and the merits. With respect to qualified immunity, the Court concluded that the district court properly denied qualified immunity. It was "clearly established" that an inmate had a right to adequate medical care that addressed his particularized need. The evidence in the record allowed a factfinder to conclude that Elyea's policy precluded certain treatment without regard to the inmate's particularized need. On the merits, the Court noted that the plaintiff's burden on an Eighth Amendment deliberate indifference claim is high. He must establish both an objectively serious medical need and that a prison official disregarded a known risk. Applying that test to each of the plaintiffs, the court concluded: a) Roe established the serious medical need and a denial of treatment without regard to his particular medical needs, and the record contained sufficient support for the jury's conclusion on causation, b) Walker failed to demonstrate Elyea's responsibility for his lack of treatment, c) Stasiak demonstrated a serious medical need but failed to demonstrate that the policy, as opposed to the time remaining on his sentence, resulted in any injury, and d) Stephen demonstrated a serious medical need but also failed to demonstrate that the policy, as opposed to the time remaining on his sentence, resulted in any injury.

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MYERS v. ILLINOIS CENTRAL RAILROAD CO. (December 15, 2010)

Timothy Myers joined the Illinois Central Railroad (now part of CN Southern) right after his high school graduation. He worked for the Railroad for over 30 years in a number of jobs. All of his jobs were physically demanding and dangerous. Over his career. Myers injured an ankle, both knees, an elbow, and his back. He had surgeries on his back (twice) and on his left elbow and his right knee. He brought suit against the Railroad under the Federal Employers' Liability Act (FELA). He alleged that his physical problems were caused by the Railroad's failure to provide a safe workplace. Myers listed four experts -- three treating physicians and an ergonomist. Chief Judge McCuskey (C.D. Ill.) struck all four experts and granted summary judgment to the Railroad. Myers appeals.

In their opinion, Seventh Circuit Judges Manion, Sykes, and Hamilton affirmed. FELA is not a strict liability scheme -- negligence and causation are both required. Sometimes, expert testimony is unnecessary because a layperson can understand the causal link between particular conduct and an injury. Here, however, Myers does not allege a specific injury. He alleges gradual deterioration. The Court stated that the general rule in such cases is that expert testimony on causation is required. That general rule applies here. Although Myers proffered four experts, none of them can satisfy this requirement. The ergonomist can testify about the dangerous conditions in a rail yard but cannot link those conditions to any specific injury. The treating physicians were prepared to offer an opinion that the working conditions were the cause of Myers' injuries. However, the Court concluded that those opinions were general medical opinions that were not the product of any particular acceptable methodology. Indeed, the treating physicians simply made causation assumptions. The district court did not err in striking the experts, nor in granting summary judgment. 

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CLIFFORD v. CROP PRODUCTION SERVICES (November 29, 2010)

John Clifford, III, had a contract with Monsanto to farm seed corn. One of the strains he planted in 2007 was a sensitive to two herbicides. When he noticed weeds in his corn and sought advice from Monsanto, however, he was told that there were no herbicide restrictions. Clifford went to Crop Production Services (“CPS”) for the proper treatment. CPS recommended a blend of the very two herbicides to which this particular strain was sensitive. CPS mixed a custom blend on several occasions and dispensed it into a tank that it had loaned Clifford for the season. Clifford applied the herbicide himself. Within a week, Clifford noticed corn damage. He eventually destroyed all the corn in one field and some of the corn in another. Pat Geneser, a Monsanto employee, inspected the fields and suspected that the damage was caused by glyphosphate, an ingredient in a different Monsanto herbicide. Laboratory tests confirmed trace amounts of glyphosphate in the corn. Clifford brought suit against CPS for negligence. CPS defended on four grounds: a) that the glyphosphate did not cause the harm, b) that if the glyphosphate did cause the harm, it did not come from CPS, c) that if CPS was the source of the glyphosphate and it did cause the harm, CPS did not breach a duty of care, and d) the claim was barred by the economic loss doctrine. Clifford did not disclose Geneser (or anyone else) as an expert witness within the time limitations, CPS moved for summary judgment on all four of its defenses, specifically relying on the absence of expert testimony for the first three. Magistrate Judge Bernthal (C.D. Ill.) concluded that Geneser's testimony was expert testimony and that it was inadmissible because of Clifford's failure to disclose. He granted summary judgment to CPS on the grounds that Clifford could not establish causation or breach of duty. Clifford appeals.

In their opinion, Seventh Circuit Judges Posner and Wood and District Judge Adelman affirmed. The Court first concluded that Clifford waived his arguments that Geneser was a lay witness and that, even if he was an expert, his failure to disclose him was harmless. Clifford never even responded to CPS's waiver argument in its briefs. Alternatively, the Court concluded that it would affirm the summary judgment ruling even if it considered Geneser’s testimony. To defeat summary judgment, Clifford had to present sufficient testimony in three areas: that glyphosphate caused the harm, that CPS was the source of the glyphosphate, and that the harm would have been prevented had CPS exercised reasonable care. Even if admitted, Geneser's testimony would not permit a reasonable trier of fact to infer that CPS was the source of the glyphosphate or that it breached a duty of care. In fact, Clifford offered no evidence on a standard of care or its breach. To the extent that Clifford was invoking the doctrine of res ipsa loquitor, the Court stated that it was not a proper case for that doctrine. 

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MALEN v. MTD PRODUCTS (November 19, 2010)

Donald Malen bought a reconditioned riding lawnmower in 2001 from Home Depot. The mower was manufactured in 1998 by MTD Products. It was designed with two particular safety features that turned off the engine if the operator rose from his seat or shifted into reverse, respectively, without completely disengaging the mower blade. It also came with warning labels instructing the operator to disengage the blade before leaving his seat. Malen operated the mower for several years without a problem. In late 2004, the mower got hung up on a curb while Malen was mulching leaves. He tried "rocking" between forward and reverse but without success. He lifted his foot from the pedal that engages the blade and stepped off the mower. He did not turn off the engine. He slipped as he stepped to the ground and the blade struck and severely injured his foot as it went under the mower. He brought suit against Home Depot and MTD Products under strict products liability and negligence theories. The negligence theories were that: a) the mower was negligently manufactured because the safety devices were not operable and b) the mower was negligently designed because it did not have a fail-safe system that would have stopped the blade even without the safety device. Discovery established that: a) Malen thought he disengaged the blade when he lifted his foot off the pedal, b) the safety devices were present but not connected, c) when connected, the devices worked and stopped the blade within 2.6 seconds of the operator rising from his seat, and d) a fail-safe version of the safety feature was available at the time Malen purchased the reconditioned mower. Judge Norgle (N.D. Ill) granted summary judgment to the defendants, concluding that Malen understood and ignored the warning labels and was, therefore, the sole cause of his accident. Malen appeals.

In their opinion, Seventh Circuit Chief Judge Easterbrook and Judges Evans and Williams reversed and remanded. Under both the strict liability and negligence theories of liability, causation is a necessary element. The Court concluded that a reasonable jury could find that the mower was defective and the proximate cause of Malen's injury. The Court first addressed the issues of unreasonably dangerous and negligent design, even though the district court found no need to. It concluded that a jury could find, on the record before it, that the mower was originally put into the stream of commerce without the safety switch. Such a finding would lead to the conclusion that the mower was unreasonably dangerous and that its manufacturer was negligent. Although Malen did not purchase the mower new, the Court concluded that a reconditioned product sold with a full warranty should be treated like a new one. The Court found no controlling Illinois decision on that point, but found support for its conclusion in other jurisdictions and from the Restatement. The Court found sufficient evidence to go to a jury on the negligent design theory as well. The evidence established that MTD incorporated the improved, fail-safe design in its products before Malen purchased his mower. Finally, the Court addressed proximate cause and identified several reasons why summary judgment based on proximate cause was improper. First, the Court concluded that Malen’s failure to heed the warnings was not relevant if the mower was defective for lack of a safety system. Second, if it was relevant, it would be a factor only in determining whether Malen’s conduct was foreseeable. The evidence in the record is that the safety device was developed because that kind of conduct was actually not only foreseeable but routine. Third, the Court concluded that Illinois would extend crashworthiness doctrine to mowers. That doctrine requires a manufacturer to reasonably design a product to minimize the effects of an accident. Malen's conduct here was foreseeable under the crashworthiness doctrine and does not establish proximate cause. Finally, under Illinois law, Malen is barred from recovery only if his negligence contributed more than 50% to the proximate cause of the injury. For all those reasons, the Court found summary judgment erroneous.

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CYRUS v. TOWN OF MUKWONAGO (November 10, 2010)

Twenty-nine-year-old Nicholas Cyrus lived with his parents in Mukwonago, Wisconsin. Cyrus suffered from bipolar disorder and had occasional delusional episodes. He was known by the local police in his small community for his unusual behavior but was not considered dangerous. On the evening of July 8, 2006, Cyrus left his parents' home wearing only his bathrobe following a dispute with his mother . He remained missing until early the next morning when a town resident reported to the police that an unknown man wearing only a bathrobe was trespassing on his property. Lt. Czarnecki responded to the call. Czarnecki suspected that the "unknown man" was Cyrus. He knew Cyrus and knew that he had been reported missing the night before. There are slight factual disputes regarding what happened next but, generally, Czarnecki unsuccessfully tried to get Cyrus' attention and cooperation. After Cyrus refused a request to talk and moved toward the house, Czarnecki used his Taser on him. Cyrus fell to the ground. He tried to get up but wobbled and fell. Czarnecki used his Taser again and Cyrus rolled down the driveway. By this time, a second officer had arrived at the scene. The two officers tried to handcuff Cyrus but he was lying on his hands. When the officers could not pry his hands loose, Czarnecki used his Taser several more times. The officers finally got him handcuffed but, when they rolled him over, they discovered he was not breathing. Cyrus died later that day. His parents brought a § 1983 Fourth Amendment excessive force claim against the officers and the municipality. The plaintiffs offered two experts -- one to testify regarding reasonable force and one (the Medical Examiner, who reformed the autopsy) on the cause of death. The Medical Examiner testified at her deposition that many factors contributed to Cyrus' death, including the stress of the struggle, his fear, his mental condition, his physical position, the pain, and the shock. She testified that she could not state that any particular factor was more significant than another. Judge Randa (E.D. Wis.) excluded the testimony of both experts relating to the cause of death, principally because the Medical Examiner could not isolate a primary cause of Cyrus' death. The court then granted summary judgment to the defendants, finding that there were no material disputes of fact and that the Taser use was not excessive force as a matter of law. Plaintiffs appeal.

In their opinion, Circuit Judges Bauer and Sykes and District Judge Simon reversed and remanded. The Court recognized that most of the material facts were undisputed (principally because the victim was dead). However, it rejected the district court's conclusion for two reasons. First, the Court identified several material facts that were in dispute. Czarnecki testified that he used his Taser only five or six times but the Taser's internal register recorded 12 trigger pulls. The parties also disagreed about whether Cyrus walked or ran toward the house. Second, excessive force claims require an analysis of all the circumstances surrounding the use of force. Facts that may not technically be in dispute may be susceptible of different interpretations, making summary judgment appropriate. For example, there were potentially different inferences that a jury could draw from the fact that Cyrus rolled down the driveway. Was it an attempt to escape or merely an involuntary reaction to the shock? Other factors the jury could consider also tended to support the unreasonableness of the force: Cyrus had not committed a serious offense, he did not violently resist the officers, he was not armed, and he suffered from a mental illness. Since a jury could reasonably conclude that Czarnecki's multiple Taser uses constituted unreasonable force, summary judgment was inappropriate. The Court also rejected defendants' alternative position that plaintiffs could not prove causation without the excluded expert testimony. The Court conceded that proof of causation will be more difficult without the Medical Examiner's testimony. However, it found that the record was not totally devoid of evidence upon which a jury could conclude that the force caused Cyrus's death. Expert testimony is not necessary if the facts relied on are such that lay persons can understand them and draw appropriate conclusions from them. Here, Cyrus stopped breathing shortly after receiving the shocks, there is no evidence of a prior injury or condition, the toxicology report showed the absence of drugs, and there is no evidence of an intervening cause. On this record, the Court concluded that a jury could find causation.

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REYNOLDS v. CB SPORTS BAR (October 22, 2010)

Loretta Reynolds (according to her complaint) had car trouble while leaving Jerzey’s Sports Bar in O’Fallon, Illinois. The bartender told her no cabs were available and suggested she get a ride from another patron. Two other patrons agreed to give her a ride but first bought her several drinks (and possibly drugged her). Reynolds realized while in their car that they were not driving her to her hotel but were intent on sexually assaulting her. She managed to escape but, in the process, was hit by a car and severely injured. She brought suit against the two other patrons and CB Sports, the establishment’s owner. She alleged alternatively that the bartender “knew or should have known” that the patrons were getting her drunk in order to sexually assault her or that the bar and bartender intentionally aided the patrons in doing so. Judge Gilbert (S.D. Ill.) dismissed the complaint against CB Sports, finding no duty under the circumstances. Reynolds appealed. While her appeal was pending, the court entered a default judgment against one of the individual defendants and held a hearing on damages. At the hearing, Reynolds presented additional facts with respect to the night in question – including that two different bartenders refused her request for a phone book, told her that no taxis were available, and vouched for the character of the two other patrons.

In their opinion, Judges Posner, Ripple (dissenting), and Kanne reversed and remanded. The Court first considered the significance of the testimony at the damages hearing. Prior to Iqbal and Twombly, a plaintiff was free to offer an unsubstantiated version of the events on appeal in support of its position as long as it was consistent with the complaint. The Court concluded that Iqbal and Twombly raised the bar with respect to the content of the complaint but did not limit a plaintiff’s ability to argue facts outside the complaint to show that a complaint should not have been dismissed. Next, to the extent the complaint alleged an intentional tort, the Court noted that CB Sports could not be liable. It turned to the negligence claim and, specifically, the existence of a duty. Under Illinois law, the general rule is that a business owner is liable for foreseeable criminal attacks while an invitee is on the premises. Generally, liability does not attach for an attack off the premises. The Court noted, however, that Illinois courts have recognized some exceptions to the off-premises rule. Illinois courts have extended liability to off-premises attacks In Shortall, Osborne, and Haupt – but in each case the attack took place just off the premises. Here, the attack was over a mile away. Nevertheless, it was the foreseeability of the attack that the courts considered in Shortall, Osborne, and Haupt. And here, taking the facts alleged as true, the attack was foreseeable. Foreseeability is not enough, however. The Court also considered the likelihood of the injury, the burden on the establishment owner, and the consequences of that burden. Here, the likelihood is high given the intentional scheme at play. The burden and consequences of imposing that duty are not high. The Court emphasized that this was not a burden to investigate – only a burden to protect when it was aware of an intent to injure. The Court was satisfied that Reynold’s allegations sufficiently pled a duty. Finally, the Court declined to find an absence of proximate cause as a matter of law and emphasized that it was not accepting Reynold’s “voluntary undertaking” theory of liability.

Judge Ripple dissented. Although he recognized the Illinois courts’ expansion of off-premises business invitee liability, he disagreed with the Court’s further extension of the principle. On the one hand, Reynold’s complaint alleges an intentional act. Judge Ripple would not extend negligence principles to the situation where the employee is a participant in the execution of the planned attack. As for the alternate allegation that the bartender “should have known,” Judge Ripple believed the burden imposed by the panel opinion on the establishment is too great. He saw no facts alleged in the complaint upon which to base a “should have known” conclusion. Either way, Judge Ripple thought the panel opinion extended Illinois law beyond where the Illinois Supreme Court would go.

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COGSWELL v. CITIFINANCIAL MORTGAGE CO. (October 5, 2010)

In January 2001, the Patrick Group (PG) purchased a mortgage (and the underlying note) from CitiFinancial Mortgage Co. However, CitiFinancial could not locate the original note or mortgage. It gave PG a copy of the mortgage but could not locate even a copy of the note. PG ran into complications when it substituted for CitiFinancial in the pending foreclosure proceeding. A title search disclosed a gap in the recorded ownership of the mortgage. Because PG could not produce even a copy of the note, the court directed a verdict against PG. The appellate court affirmed. PG then brought suit for breach of contract against CitiFinancial. Judge Norgle (N.D. Ill.) granted summary judgment to CitiFinancial, concluding that the agreement did not require transfer of the note and that, even if it did, CitiFinancial’s failure to transfer was not the cause of PG's damages. PG appeals.

In their opinion, Judges Flaum, Ripple, and Sykes reversed and remanded. The Court first addressed whether the contract required the physical transfer of the note. The Court took issue with the district court's treatment of this as a question of law, as if it were a question regarding the existence of a contract. Here, there is no doubt that a contract exists. The only question concerns its terms -- and that is a question of fact. Relying on PG's offer letter, the contract itself, and an uncontested affidavit, the Court concluded that the contract was ambiguous. Although the district court's reading of the contract was plausible, it is not the only reasonable reading. The district court improperly resolved this factual dispute on summary judgment. It must go to a trier of fact. The Court turned to causation. Again, the Court disagreed with the district court and its holding that the failure to transfer was not the cause of damages because PG could have enforced its rights on alternative paths. The Court stated that Illinois applies a special rule to breach of contract cases when the alleged harm is a result of an adverse judicial outcome. In those cases, causation is a question of law and depends on an analysis of what a reasonable court would have done had the defendant not breached the contract. Here, the Court concluded that a reasonable Illinois court would have allowed PG to proceed with the foreclosure if it had a copy of the note. Thus, CitiFinancial's breach caused PG's damages. The Court also rejected CitiFinancial’s alternative paths argument, although it first re-categorized the arguments as "failed to mitigate," rather than failed to prove causation. It held that, under Illinois foreclosure law, a reasonable court would have ruled against PG on both the lost-note affidavit and the personal judgment theories.

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MEYERS v. NATIONAL RAILROAD PASSENGER CORP. (AMTRAK)(August 30, 2010)

Greg Meyers was an Amtrak pipe fitter for years. It was a difficult job -- requiring lifting, twisting, reaching, etc., frequently in confined spaces. Meyers' size (approximately 350 pounds) made the job even more difficult. He started experiencing problems in 2004. He was referred to Dr. Rosseau, a neurosurgeon, who diagnosed him with cervical spondylosis and carpal tunnel syndrome. Rosseau performed carpal tunnel surgery in 2004 and back surgery in 2008. Dr. Tonino, an orthopedic surgeon, operated on his right shoulder in 2007. Meyers brought suit against Amtrak under the Federal Employers' Liability Act ("FELA"). He alleged that his injuries were caused by Amtrak's failure to use ordinary care. He relied on the Rosseau and Tonino expert reports and a report by his expert ergonomist. Judge Der-Yeghiayan (N.D. Ill.) granted partial summary judgment to Amtrak on statute of limitations grounds but then struck the reports of both doctors and the ergonomist. Without those reports and testimony, Meyers was unable to establish the elements of the offense. The court granted full summary judgment. Meyers appeals.

In their opinion, Judges Kanne, Williams, Hamilton affirmed. The Court addressed only the doctor expert issue. It stated that a party offering an expert witness who was retained to provide expert testimony in a case must comply with the requirements of Rule 26(a)(2). Those requirements include disclosing the bases of the expert's opinions and the reasons for them, which Meyers did not. The Court noted that it had never ruled on whether a treating physician is required to comply with those disclosure requirements if the subject of the opinion was not determined at the time of treatment. It concluded that a treating physician should be held to the same disclosure requirement if the physician is offered for testimony regarding the cause of injury and that testimony is based on a conclusion that was not made at the time of treatment. The testimony of Meyers' two doctors fits that definition and was properly excluded. Without those reports, there is no evidence of causation and summary judgment was appropriate.

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 SIEGEL v. SHELL OIL CO. (July 30, 2010)

Michael Siegel is a retail gasoline consumer. He brought a class action against several major oil companies. The complaint alleged that the oil companies violated the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA") and were unjustly enriched as a result of their concerted effort to reduce the supply of gasoline, thereby increasing its price. Judge St. Eve (N.D. Ill.) denied class certification and entered summary judgment for the defendants. Siegel appeals.

In their opinion, Circuit Judges Bauer and Sykes and District Judge Griesbach affirmed. The Court noted that an Illinois claim for unfair conduct under the ICFA requires both a substantial injury that could not reasonably have been avoided and that the injury be the proximate result of defendants' conduct. Addressing first the class certification issue, the Court concluded that the district court did not abuse its discretion in finding that common issues of fact did not predominate over individual issues. For example, each class member's gasoline purchasing habits would have to be determined in order to establish causation. On the merits, the Court concluded that Siegel's own testimony precluded a finding of proximate causation. He testified that he could and did purchase gasoline from other oil companies, that he continued to purchase gasoline from the defendant oil companies, and that many factors were relevant to his buying decisions. Finally, an unjust enrichment claim is not a stand-alone claim. Here, Siegel’s claim rests on his allegation of unfair conduct. Having rejected the ICFA claim, the Court rejected the unjust enrichment claim as well.

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 POER v. ASTRUE (May 27, 2010)

Darrell Poer has been an attorney in the Social Security Administration's (SSA) Office in Indianapolis for years. In 2003, he testified on behalf of two female African-American employees in a suit against Allen Kearns, the Hearing Office Director. In 2005, a more senior attorney position opened in the Indianapolis office. Poer applied for the position. Under the applicable procedures used by the office, a) the HR Department processed applications and made a list of the best qualified candidates, b) they forwarded the list of candidates to Administrative Law Judge (ALJ) de la Torre for his recommendation, and c) ALJ de la Torre forwarded her recommendation to ALJ Lillios, who is the decision-maker. In addition, the practice of the office was to cancel a vacancy if fewer than three qualified candidates existed. At the time of the 2005 vacancy, severe budget cuts prohibited moving employees from one region to another and severely limited relocation expenses. The list of candidates for the 2005 promotion included Poer and two other candidates, one from inside the region and one from outside the region. ALJ de la Torre received the candidate list from Kearns and understood from Kearns that Poer was the only candidate from within the region – and therefore the only viable candidate. The vacancy expired without a selection. Kearns advised the region office: "no FTEs available." Kearns represented himself to Poer as the selecting official and told Poer that he was not selected because he was the only candidate on the list. Poer filed suit, alleging that the SSA failed to promote him in retaliation for his testimony against Kearns. Judge Barker (S.D. Ind.) granted summary judgment to the SSA, concluding that no decision-maker was even aware of Poer's testimony and that there was no evidence of Kearns significantly influencing the promotion decision. Poer appeals.

In their opinion, Judges Ripple, Manion, and Williams affirmed. At least for purposes of the summary judgment motion, the SSA conceded that Poer engaged in protected activity and suffered an adverse job action -- two of the three requirements under the direct method of proof in a Title VII claim of retaliation. The third requirement, a causal connection between the two, was the only issue for the court. Since it was undisputed that the decision-makers were unaware of Poer's protected activity, Poer had to succeed in imputing the alleged retaliatory motive of Kearns to the decision-makers to establish a causal connection. The Court noted that it has imputed such motives when the non-decision-maker has concealed information or fed false information to the decision-maker. Here, the evidence supports an inference that Kearns provided false information to ALJ de la Torre. However, the evidence also establishes that the false information had no impact on ALJ de la Torre's decision not to fill the vacancy. Whether the other two candidates came from outside the region, as mistakenly believed by de la Torre, or came from outside Indianapolis, as is the truth, ALJ de la Torre's decision would have been the same. Because of the relocation expense restrictions, Poer was the only viable candidate and could not have been promoted under agency policy. His retaliation claim fails.

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LEONARD v. EASTERN ILLINOIS UNIVERSITY (May 26, 2010)

For almost 20 years, Robert Leonard worked in a janitorial position at Eastern Illinois University. Leonard was of Native American descent and was very outspoken and active on those issues. In particular, Leonard was very critical of the use by the University of Illinois (since discontinued) of a Native American mascot called “Chief Illiniwek.” In March 2005, Leonard applied for a promotion. He interviewed before a panel of six supervisors, two of whom wore shirts picturing Chief Illiniwek. Although the University of Illinois basketball team was scheduled to play a collegiate championship game that very night, Leonard was offended by the shirts and believed them to be a statement regarding Leonard's criticism of the mascot. Neither Leonard nor any other applicant was promoted as a result of the March 2005 interviews. In April, Leonard complained to the school's Office of Civil Rights. As a result of his complaint, the supervisors were requested not to wear clothing depicting the Chief Illiniwek when dealing with Leonard. In October of 2005, Leonard and seven others applied for another promotion. They all interviewed before the same six supervisors without incident. The University promoted the three applicants who scored the highest -- Leonard was seventh of the eight. Leonard brought suit against the University under Title VII. He alleged that the University failed to promote him in retaliation for his earlier complaint. Judge McCuskey (C.D. Ill.) granted summary judgment to the University. Leonard appeals.

In their opinion, Judges Bauer, Evans, and Tinder affirmed. Leonard had proceeded in the trial court under the direct method of proof, which requires him to prove, among other things, a causal connection between a protected activity and an adverse job action. The Court found no such evidence. There was no evidence that the supervisors reacted negatively to his complaint or that the results of the scoring showed any bias. All six supervisors scored Leonard in the bottom half of the candidates. A causal link cannot be inferred from "suspicious timing" because of the six-month gap between the complaint and the interviews. The Court also rejected Leonard's attempt to use 10-year-old statements of allegedly anti-Native American bias to support an inference of retaliation.

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PELLA CORP. v. SALTZMAN (May 20, 2010)

Pella Corp. is in the business of manufacturing and selling home windows. It has sold in excess of 6 million "ProLine" casement windows. When a wood rotting problem arose, Pella set up a customer service program to compensate affected purchasers. A group of those purchasers brought a class action. The suit alleges that Pella committed consumer fraud when it failed to disclose the alleged design defect and the problems it was causing. Judge Zagel (N.D. Ill.) certified seven classes: a) a nationwide Rule 23(b)(2) class of persons who own structures containing the casement windows that have not been replaced, and b) six statewide Rule 23(b)(3) classes of persons whose windows have already been replaced because of the defect. The court refused to certify causation, damages, and statute of limitations issues. Pella petitioned for leave to appeal.

In their opinion, Judges Posner, Williams, and Tinder granted the petition and affirmed. The Court agreed that consumer fraud actions frequently present problems when treated as class actions. That does not, however, equal a general rule that they can never be so treated. Here, the principal issue is whether there is a single design defect in the window that leads to wood rot. The Court concluded that the district court was well within its discretion in deciding that the issue is best resolved in a class context. The problems inherent in treating consumer fraud cases in a class context are not present in this case. The issues are not complex, the central questions are all the same, and the class members must prove causation and damages on an individual basis.

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JOHNSON v. WAL-MART STORES (December 1, 2009)

Candace Johnson visited her local Wal-Mart store in January 2008. Although she did not possess a Firearm Owners Identification Card, a salesclerk nevertheless sold her some bullets. Tragically, Candace Johnson then shot and killed herself. Her husband and the administrator of her estate, Mark Johnson, sued Wal-Mart for negligence and wrongful death. The district court dismissed the claims on the ground that suicide is an independent intervening event, negating proximate cause. Johnson appeals.

In their opinion, Judges Cudahy, Flaum and Evans affirmed. The Court recited the traditional elements of a negligence claim: a duty, a breach, and proximate cause. Historically, Illinois courts have found that suicide is unforeseeable and its presence breaks the chain of causation that is necessary for probable cause. The Court agreed that the sale of the bullets violated federal law and amounted to prima facie evidence of negligence, since the federal law is a public safety statute. The Court concluded, however, that Illinois courts continue to find that suicide breaks the chain of causation.

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JAMES RIVER INSURANCE CO. v. KEMPER CASUALTY INSURANCE CO. (October 28, 2009)

James River and Kemper both issued malpractice insurance policies to a law firm. The Kemper policy covered claims made between September of 2000 and September of 2007, for acts committed between 1937 and 2002. The James River policy covered claims made between November 2004 and November 2005, for acts committed after November 2002. The malpractice suit giving rise to the dispute between the insurance companies alleged that two lawyers represented a wife in a divorce case. In December of 1999, they entered into a property settlement wherein their client was to receive a significant amount of her husband's stock options. Their attempt to document the settlement failed to accomplish the transfer of the options. A lawsuit against the husband was still pending when, in July 2001, the husband's employer declared bankruptcy, rendering the options worthless. The suit against the husband was finally dismissed in 2003. Thus, the acts complained of in the malpractice action occurred during both policies' claim periods. The James River policy contained a provision that excluded from coverage any claim that arose from the same set of circumstances as a claim under a "prior policy." James River brought a declaratory judgment action against Kemper seeking a declaration that it had no duty to defend or indemnify. The court granted summary judgment to Kemper. James River appeals.

In their opinion, Judges Posner, Manion and Tinder reversed. First, the Court concluded that the wrongful acts that occurred during the James River policy period arose from and were a continuation of the wrongful acts and decisions committed during the prior period. This was just the situation the James River exclusion addressed. Next, The Court considered the district court's ruling that the Kemper policy was not a “prior policy.” The district court had relied on the fact that the firm had purchased a five-year reporting extension on the Kemper policy. Although the policy period ended in 2002, the reporting extension allowed for a claim to be made through 2007. The Court noted, however, that the reporting extension did not extend the policy period. The Court concluded, therefore, that the Kemper policy was a "prior policy" and the James River exclusion applied. The Court remanded for the entry of the declaratory judgment requested by James River.

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CUNNINGHAM v. MASTERWEAR CORP. (June 23, 2009
 

The Cunninghams owned a building in Martinsville, Indiana in which they operated a photographic studio from 1986 until 2004. The building next door contained a dry cleaning establishment. Soon after the Cunninghams made the building their residence, they both began to experience headaches and other physical maladies. They moved out as soon as the EPA advised them that high levels of perchloroethylene (PCE), a chemical used in dry cleaning, in their home posed a potential health risk. The Cunninghams brought an action for common law nuisance, seeking damages for both their physical injuries and their loss of property value. The court disqualified their only medical expert and barred them from testifying regarding appraisals of their property. The court then granted summary judgment to the defendant. The Cunninghams appeal.

In their opinion, Judges Posner, Manion and Kanne affirmed. Although the expert had concluded that all of the Cunningham’s symptoms were caused by exposure to PCE, the Court noted that he was not a toxicologist, and he presented no scientific theory that linked the Cunningham’s exposure level to their symptoms. The Court concluded, therefore, he presented no evidence upon which a trier of fact could rely to conclude that the exposure was the cause of the ailments. With respect to the valuation of the property, the Court stated that a property owner can testify about the value of his property if he is an expert on property values or if he has personal knowledge. Cunningham simply wanted to repeat others’ assessments of the property’s value. The Court concluded that the testimony was properly disallowed as hearsay. The Court added that, even if the testimony was allowed, there was no evidence regarding the cause of any loss in value. Since the Cunningham’s were entitled only to the loss of value that could be fairly attributed to the PCE, as opposed to market forces or otherwise, they could not have prevailed even with the testimony.

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LEWIS v. CITGO PETROLEUM CORP. (April 6, 2009)

Michael Lewis and Tammy Livingston, employees of Philip Services Corporation, were performing maintenance work at a CITGO refinery when they were allegedly exposed to a hazardous gas. Emergency personnel responded, they went to the hospital, they received a full medical examination, they were released, and they returned to work the next day. Several years later, Lewis and Livingston asserted common-law negligence claims against CITGO. Livingston also asserted a negligent infliction of emotional distress claim. Their claims were supported by two physicians -- -- Dr. Jordan Fink, a doctor of internal medicine, and Dr. Norman Kohn, a psychiatrist and neurologist. The court granted summary judgment to CITGO, holding that the plaintiffs had failed to satisfy their burden of demonstrating the reliability of the expert testimony. Lewis and Livingston appeal.

In their opinion, Judges Ripple, Kanne and Tinder affirmed. The Court first addressed the question of whether Livingston was a "bystander" or a "direct victim" for purposes of the emotional distress claim under Illinois law. Concluding that she was a "direct victim," the Court noted that the plaintiffs' burden on both the common-law negligence and negligent infliction claims were to demonstrate a duty on the part of defendant and a breach that proximately caused the injury. The Court turned to causation and the lower court’s exclusion of the expert testimony. The Court approved the lower court’s application of Rule 702 and Daubert. It is the burden of the proponent, said the Court, to establish both the qualifications and the methodology of its experts. CITGO challenged Dr. Fink on both qualifications and methodology -- it challenged Dr. Kohn only on methodology. Although the Court recited some of the problems relating to the experts, it ultimately relied on the fact that plaintiffs failed to advance any substantive arguments in support of their experts’ qualifications. The Court concluded that the lower court was well within its discretion to exclude the evidence. Without this testimony, neither Lewis nor Livingston could provide evidence of causation with respect to the common law negligence claims. With respect to Livingston's claim for negligent infliction of emotional distress, however, one of CITGO's own experts did testify that Livingston experienced "relatively mild" anxiety as a result of the exposure. The Court agreed with the lower court’s conclusion that the injury did not reach the threshold of severity to be compensable and was properly dismissed.

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CRACCO v. VITRAN EXPRESS, INC. (March 17, 2009)

Kevin Cracco was a truck terminal manager at Vitran Express. In late 2006, he was hospitalized with a serious health condition and went on FMLA leave. Cracco's duties were performed by other employees during his absence. The replacement employees discovered a host of problem’s during Cracco’s absence: damaged freight, safety lapses and general disorganization. Vitran's further investigation also discovered falsified freight records. The company terminated Cracco's employment upon his return from leave. Cracco filed suit, alleging that the company violated his FMLA rights. The district court entered a default order when Vitran failed to respond. The court later vacated the default and granted summary judgment to Vitran. Cracco appeals.

In their opinion, Judges Ripple, Manion and Sykes affirmed. The Court first affirmed the district court's order vacating the default. It found Vitran’s statement in its motion that Cracco was fired for cause sufficient to meet the liberal meritorious defense requirement of Rule 55. The Court also rejected Cracco's argument that the district court improperly deemed admitted a paragraph of Vitran’s Rule 56.1 statement of material facts. The paragraph contained multiple statements relating to the problems discovered at the terminal during Cracco’s leave. The Court conceded that the lower court could have required Vitran to unbundle the allegations. It concluded that the court did not abuse its discretion in requiring Cracco to respond to the paragraph, however. The Court then addressed the summary judgment ruling. With respect to the direct method of proof, Cracco attempted to establish a causal connection between his protected activities and his termination. He relied on the fact that he was terminated immediately upon his return from leave. The Court rejected the argument, concluding that the discovery of the performance problems during his leave negated any inference of causal connection. The Court concluded that Cracco was unable to establish two prongs of the indirect method of proof test: a) that he met his employer’s expectations and b) that he was treated less favorably than a similarly situated employee. Finally, because Cracco presented no evidence that he would have retained his job had he not taken FMLA leave, his interference claim failed as well.

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BOIM v. HOLY LAND FOUNDATION FOR RELIEF AND DEVELOPMENT (December 3, 2008)

David Boim was a Jewish teenager living in Israel. He had dual Israeli/American citizenship. In 1996, he was killed by gunfire near Jerusalem. Boim’s parents brought suit under 18 U.S.C. § 2333(a). They alleged that defendants Muhammad Salah, Holy Land Foundation for Relief and Development (“HLF”), the American Muslim Society (“AMS”) and the Quranic Literacy Institute (“QLI”) all provided financial support to Hamas and that their son had been killed by Hamas gunmen. The district court rejected the argument that financial assistance was not international terrorism under § 2333(a) in denying defendants’ motion to dismiss. On an interlocutory appeal, the Seventh Circuit affirmed. The district court granted summary judgment on liability to plaintiffs with respect to Salah, HLF and AMS. A jury found QLI liable and assessed damages against all defendants of $52 million before trebling. On appeal, a Seventh Circuit panel vacated and remanded to redetermine liability. The plaintiffs petitioned for rehearing en banc, which was granted.

In their opinion, the Court affirmed in part, reversed in part and remanded. The Court first addressed whether the statute even applies to defendants who are alleged only to have provided financial support to those engaged in terrorism. The statute does not specifically mention secondary liability and the Supreme Court in Central Bank of Denver held that a statute that did not mention secondary liability did not create secondary liability. Instead of resolving that issue directly, however, the Court explored an alternative approach. It parsed the language of sections 2331, 2332, 2333 and 2339. Section 2333 creates a cause of action for a person injured “by reason of an act of international terrorism.” Section 2331 includes in the definition of international terrorism “acts dangerous to human life” that violate the U.S. criminal law. The Court concluded that financial assistance to Hamas is an “act dangerous to human life” and violates section 2339. Section 2339 was enacted in 1994 and makes it a crime to provide “material support” knowing that it could be used in carrying out a violation of section 2332. Section 2332 criminalizes the killing of an American citizen outside the U.S. The Court followed this chain to determine that a mere financial contribution to a terrorist organization could violate section 2333. Having determined that the defendants could be liable, the Court proceeded to examine the cause of action and its elements. On the element of intent, the Court held that the defendants must either have known or been deliberately indifferent to whether the organization they funded committed terrorist acts. Given the extreme conduct of the terrorist groups, the Court concluded that it was enough to know the character of the organization. With respect to causation, the Court held that the knowing contributors could not avoid liability on causation because, as a whole, they significantly increased the possibility that Boim would be a target of a Hamas terrorist act.

Applying these principles to the facts of the case, the Court addressed each defendant’s liability. It reversed with respect to HLF. The district court had erroneously applied principles of collateral estoppel from earlier litigation to the liability of HLF. The Court remanded for an analysis of HLF’s liability in light of its opinion. The Court reversed outright the findings as against Salah. Salah had been in custody during the period between the enactment of section 2339(a) and the shooting of Boim and could not have provided material support to Hamas during that time. The Court affirmed the findings as against defendants AMS and QLI. It found sufficient evidence that AMS knew that Hamas was a terrorist organization and that it provided material support to Hamas. QLI had elected not to participate in its trial and therefore could not object to the jury instructions or findings.

Finally, the Court addressed the lower court’s determination that the men who killed Boim were members of Hamas. The principle evidence on that point was the affidavit of an expert witness, Dr. Paz. Paz, an expert on terrorism, based his conclusion on terrorist internet sites, notes from a U.S. foreign service officer, and an Islamic-language document purporting to reflect the conviction of one of the murderers. The Court conceded that much of the evidence on which Paz relied was inadmissible. Noting that experts are not limited to admissible evidence in forming their opinions, the Court concluded that the type of evidence on which Paz relied is relied on by security and terrorism experts generally. The Court also noted that the defendants did not introduce any evidence to the contrary. The Court found no error in the lower court’s consideration of the affidavit.

Judge Rovner wrote separately, concurring in part and dissenting in part. Judge Rovner took principal exception to the majority’s conclusions with respect to causation and the Paz affidavit. She believed that the majority practically eliminated a causation requirement. She would have at least required expert testimony regarding the financial structure of Hamas and the various organizations it controlled. With respect to Paz, she criticized the majority for not only allowing the affidavit based on unproven evidence but for allowing it to support summary judgment. She noted that the defendants are not required to rebut factual propositions on which plaintiff has the burden of proof and has not properly supported. Judge Rovner would remand with respect to all defendants.

Judge Wood also wrote separately, concurring in part and dissenting in part. Judge Wood principally criticized the majority for its treatment of causation with respect to AMS and QLI. She concedes that “but-for” causation is sometimes not necessary, but she noted that the majority also eliminated the requirement for “sufficient” cause and apparently put little limitation on the remoteness of liability. Judge Wood would require at least proof that AMS and QLI contributed a “non-trivial” sum of money to an organization that was sufficiently connected to Hamas that the money indirectly supported Hamas’ terrorist mission. She also would impose a proximate cause limitation on the acts of the defendants, which the majority did not do. Judge Wood also disagreed with the majority’s statements on the scope of liability under the statute, calling it “awfully vague.” Finally, she disagreed with the treatment of the Paz affidavit and would remand to allow plaintiffs to meet the threshold requirements of Rule 702.

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