In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3323
C RAIG S. M EYERS,
Plaintiff-Appellant,
v.
N ATIONAL R AILROAD P ASSENGER
C ORPORATION (Amtrak),
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 08-cv-540—Samuel Der-Yeghiayan, Judge.
A RGUED A PRIL 22, 2010—D ECIDED A UGUST 30, 2010
Before K ANNE, W ILLIAMS, and H AMILTON, Circuit Judges.
K ANNE, Circuit Judge. Craig Meyers, a pipe fitter and
sheet metal worker, brought an occupational injury
lawsuit against his employer, Amtrak, under the Federal
Employers’ Liability Act (“FELA”). The district court
granted summary judgment in favor of Amtrak, citing
several distinct grounds for its ruling. Meyers v. Nat’l
R.R. Passenger Corp., 648 F. Supp. 2d 1032 (N.D. Ill. 2009).
2 No. 09-3323
We address only the district court’s grant of summary
judgment on the ground that Meyers failed to provide
any evidence to establish the required causation element
of his FELA action. We find that because Meyers failed
to comply with Rule 26(a)(2) of the Federal Rules of
Civil Procedure (FRCP), the reports and testimony of
his proffered causation experts were properly barred by
the district court. Consequently, Meyers failed to raise
genuine issues of material fact with respect to the causa-
tion element of his FELA claim. His claim must therefore
fail.
I. B ACKGROUND
Although our disposition of this appeal turns on proce-
dural issues rather than background facts, we believe
a summary of the circumstances that gave rise to the
lawsuit is needed in order to provide context to our
ruling today.
As a pipe fitter, Meyers was responsible for a variety
of repair work on railroad cars, which at times required
heavy lifting, carrying, reaching, pulling, twisting,
and other repetitive motions. His work included the
repair of vacuum pumps, toilet assemblies, drain valves,
backflow preventers, and door motors. The equipment
Meyers used for such projects included ratchets, wrenches,
sockets, pliers, band saws, and sledge hammers. Some
of Meyers’s work necessitated that he perform repairs
in confined areas such as equipment rooms, a pit area
under the railroad cars, and railroad car bathrooms.
Meyers claimed that these assignments were particularly
No. 09-3323 3
difficult for him, apparently in part because of his
size—from the 1990s until he underwent gastric bypass
surgery in 2005, Meyers weighed 350 pounds on average.
In early 2004, Meyers met with his primary care physi-
cian, Dr. Greg Daly, at which time he reported that he
was experiencing numbness and tingling in his fingers. A
magnetic resonance imaging test (“MRI”) revealed that
Meyers had spondylosis in the cervical spine, spinal
stenosis, mild disc protrusion, and degenerative joint
disease in the left shoulder. In addition, Dr. Daly referred
Meyers to Dr. Gail Rosseau, a neurosurgeon, for treat-
ment of suspected carpal tunnel syndrome.
Dr. Rosseau diagnosed Meyers with cervical spondylosis
and possible carpal tunnel syndrome. Following an
electromyogram (“EMG”), Dr. Rosseau determined
that Meyers’s suspected carpal tunnel syndrome might
be due to alcohol abuse. In June 2004, Dr. Rosseau per-
formed left carpal tunnel release surgery on Meyers.
That same year, Meyers answered a flyer from an
attorney urging railroad workers to respond if they
have experienced joint or neck pain. Meyers was subse-
quently referred by that attorney to Dr. Howard
Freedburg. Dr. Freedburg diagnosed Meyers with
carpal tunnel syndrome, bilateral shoulder rotator cuff
tendinitis, low back pain, and degenerative joint disease
in the knees.
In August 2006, Meyers met with Dr. Pietro Tonino,
an orthopedic surgeon. Dr. Tonino performed right
shoulder surgery on Meyers in September 2007. In Decem-
ber 2008, Dr. Rosseau performed back surgery on Meyers.
4 No. 09-3323
Meyers sued Amtrak on March 30, 2007, in the Court
of Common Pleas of Philadelphia County, Pennsylvania,
under the FELA, 45 U.S.C. § 51 et seq. Although the
state court dismissed the suit for improper venue,
Meyers was provided with six months to file a new
action. Meyers refiled in the United States District Court
for the Northern District of Illinois on January 25, 2008.
Meyers claimed that he had been exposed to excessive
and harmful cumulative trauma since he began working
at Amtrak in 1978. He complained that Amtrak’s job
requirements forced him to work in awkward positions
and tight spaces, which in combination with inadequate
equipment and repetitive motions, caused him to suffer
injuries to his neck, shoulders, arms, and hands. Meyers
alleged that his injuries were the result of Amtrak’s
failure to use ordinary care and caution toward him.
Meyers claimed that despite his repeated complaints,
Amtrak failed to meet standards for adequate work
safety ergonomic programs and the company neglected
to provide a reasonably safe place for him to work. In
support of his claims, Meyers offered expert testimony
in the form of reports prepared by Michael Shinnick, an
ergonomist, and medical doctors Rosseau and Tonino.
At the close of discovery, Amtrak moved to strike the
reports, affidavits, and opinions of Shinnick, Dr. Tonino,
and Dr. Rosseau under Rule 702 of the Federal Rules
of Evidence. Amtrak concurrently filed for summary
judgment. Amtrak asserted three separate arguments
in support of its motion for summary judgment. Amtrak
first argued that Meyers was barred by the statute of
No. 09-3323 5
limitations from bringing his action against Amtrak.
Second, Amtrak argued that Meyers could not establish
that Amtrak was negligent in providing a safe place
to work. Finally, Amtrak argued that there was no ad-
missible evidence to support Meyers’s claim that Amtrak’s
negligence caused his injuries.
First, the district court found that Meyers was barred
by the statute of limitations with regard to his neck/
spine injuries, but the court also determined that a
genuine issue of material fact remained with respect
to his hand injuries and his right shoulder injuries.
Next, the district court considered Amtrak’s motions
to strike because Meyers had relied on the expert testi-
mony of Shinnick, Dr. Rosseau, and Dr. Tonino in
opposing Amtrak’s summary judgment arguments two
and three. In an attempt to prove that Amtrak breached
a duty of care to provide a safe place to work, Meyers
relied on the opinion of Shinnick. Similarly, to prove
causation between Amtrak’s actions, or lack thereof, and
Meyers’s injuries, Meyers relied on the opinions of
Dr. Rosseau and Dr. Tonino. In addressing whether these
opinions should be admissible, the court relied upon
and applied the correct legal standard under Rule 702
of the Federal Rules of Evidence and Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The court
also noted that in addition to the need for Meyers to
meet the aforementioned standard for admissibility of
expert testimony, Meyers was required to comply with
the disclosure requirements for expert reports set
forth in Rule 26(a)(2) of the FRCP.
6 No. 09-3323
The court first addressed the motion to bar Shinnick, the
ergonomics expert offered by Meyers. The court found
that Shinnick’s opinions were not sufficiently reliable
and would not assist the trier of fact because such opin-
ions failed to provide the necessary link between the
conclusions reached and a recognized underlying
scientific method. The court therefore granted Amtrak’s
motion to strike the report and affidavit of Shinnick,
and barred Shinnick as an expert witness.
The court then addressed the motions to bar Dr. Rosseau
and Dr. Tonino, both of whom had been offered as
medical experts for the purpose of establishing causa-
tion between Meyers’s job duties and the injuries to his
hand, neck, and spine. Dr. Rosseau submitted a report
and affidavit opining that Meyers’s injuries were in
whole or in part work-related. Dr. Rosseau’s report was
in the form of a letter of approximately one page in
length and addressed to Meyers’s attorney. Although
the report cited differential diagnosis as an evaluation
method adopted by our circuit,1 the report appeared to
lack any evidence that Dr. Rosseau actually employed
this method or that she provided any other support for
her conclusions.
1
“Differential diagnosis is the determination of which of two
or more diseases with similar symptoms is the one from
which the patient is suffering, by a systematic comparison and
contrasting of the clinical findings.” Happel v. Walmart Stores,
Inc., 602 F.3d 820, 825 n.7 (7th Cir. 2010) (internal quotation
marks omitted).
No. 09-3323 7
With respect to Dr. Tonino, the court observed that his
letter to Meyers’s attorney contained even less detail
than Dr. Rosseau’s letter. The court also noted that
Dr. Tonino’s report suffered from the same defect as
Dr. Rosseau’s—it failed to provide any support for his
conclusions. In fact, Dr. Tonino made no mention of any
underlying methodology. Accordingly, the court found
that because no information was provided that would
enable the court to conclude that Dr. Rosseau’s and
Dr. Tonino’s opinions were reliable, the court struck
their opinions.
Amtrak also argued, and the court alternatively found,
that the opinions of Dr. Rosseau and Dr. Tonino should
be stricken because Meyers failed to meet the standards
for disclosure under Rule 26(a)(2). The court noted
that Rule 26(a)(2) requires expert reports to include “the
basis and reasons” for an expert’s conclusions, and that
neither doctor provided such support. As a result, the
court found an additional, separate basis for striking
the reports, affidavits, and opinions of Dr. Rosseau and
Dr. Tonino.
The court then addressed Amtrak’s motion for sum-
mary judgment. The court reasoned that because Meyers
relied heavily on his proffered experts to establish
evidence of Amtrak’s duty, alleged breach of that duty,
and causation, Meyers was unable to raise a genuine
issue of material fact once such testimony was stricken.
Consequently, on August 18, 2009, the court awarded
summary judgment in its entirety to Amtrak.
Meyers now appeals the decision of the district court.
8 No. 09-3323
II. A NALYSIS
Meyers presents three arguments on appeal. First, he
argues that the district court erred in finding no
genuine issues of material fact existed as to whether
his neck/spine injuries were barred by the statute of
limitations. Second, he argues that the district court
erred in finding that the report, affidavit, and opinions
of Shinnick were inadmissible and in barring his testi-
mony. Third, he argues that the district court erred in
finding that the reports, affidavits, and reports of Dr.
Rosseau and Dr. Tonino were inadmissible and in
barring their testimony.
We review de novo a district court’s grant of summary
judgment. Nat’l Inspection & Repairs, Inc. v. George S. May
Int’l Co., 600 F.3d 878, 882 (7th Cir. 2010). However, where
the plaintiff attacks the underlying evidentiary rulings,
such as the exclusion of expert testimony, we review
under an abuse of discretion standard. See Happel v.
Walmart Stores, Inc., 602 F.3d 820, 824-25 (7th Cir. 2010);
Gayton v. McCoy, 593 F.3d 610, 616 (7th Cir. 2010); Musser
v. Gentiva Health Servs., 356 F.3d 751, 755 (7th Cir. 2004).
This continues to be true even when, as in this case, the
admissibility question is “outcome determinative.” Gen.
Elec. Co. v. Joiner, 522 U.S. 136, 142-43 (1997).
Although the district court provided several distinct
grounds for its grant of summary judgment in Amtrak’s
favor, we may affirm on any basis supported by the
record. Srail v. Village of Lisle, Ill., 588 F.3d 940, 943 (7th
Cir. 2009); E.E.O.C. v. Lee’s Log Cabin, Inc., 546 F.3d 438,
442 (7th Cir. 2008). Amtrak argues on appeal that because
No. 09-3323 9
the district court found that Meyers failed to comply
with Rule 26(a)(2)’s requirements, we may affirm on
that basis alone. We agree.
In order to prevail in a FELA action, a plaintiff must
show that the railroad was negligent and that such negli-
gence contributed in whole or in part to the alleged
injury. 45 U.S.C. § 51. Therefore, if Meyers is unable to
raise a genuine issue of material fact as to the required
causation element, his claim must fail. See id.2
In an effort to establish causation, Meyers submitted
the reports of Dr. Rosseau and Dr. Tonino. The district
court held that both reports failed to meet the standards
for disclosure mandated in Rule 26(a)(2). The district
court noted that the reports were merely “conclusory,”
and they did not provide sufficient information as to
2
Relying on Fulk v. Ill. Cent. R.R. Co., 22 F.3d 120, 124 (7th Cir.
1994) and Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 702
(7th Cir. 2009), the district court recognized that while “the
language in FELA is broad, plaintiffs are still required to prove
each of the common law elements of negligence.” Meyers, 648
F. Supp. 2d at 1037. Although accurate at the time of the
district court’s decision, we have subsequently determined
that common-law proximate causation is not required to
establish liability under the FELA. McBride v. CSX Transp., Inc.,
598 F.3d 388, 406 (7th Cir. 2010). While noteworthy, we need
not delve further into the recent clarification of the causation
standard under the FELA. Because Meyers did not comply
with Rule 26(a)(2), he had no evidence whatsoever to establish
causation, under any standard. And, as we will discuss
later, this is dispositive of his claim.
10 No. 09-3323
how and why such conclusions were reached. The dis-
trict court also determined that despite Dr. Rosseau’s and
Dr. Tonino’s status as Meyers’s treating physicians, they
were retained in this instance for the specific purpose
of providing expert testimony at trial. Accordingly, the
court concluded that they were not excepted from the
requirements in Rule 26(a)(2).
When a party intends to introduce an expert witness,
the party must comply with the disclosure requirements
in Rule 26(a)(2) if the expert witness “is one retained or
specially employed to provide expert testimony in the
case or one whose duties as the party’s employee reg-
ularly involve giving expert testimony.” Fed. R. Civ. P.
26(a)(2)(B). The disclosure must also include “a written
report—prepared and signed by the witness.” Id. In
pertinent part, Rule 26(a)(2)(B) provides: “The [written]
report must contain: (i) a complete statement of all opin-
ions the witness will express and the basis and reasons
for them; (ii) the data or other information considered
by the witness in forming them; (iii) any exhibits that
will be used to summarize or support them . . . .” Id.
(emphasis added). The purpose of the report is to pro-
vide adequate notice of the substance of the expert’s
forthcoming testimony and to give the opposing party
time to prepare for a response. Walsh v. Chez, 583 F.3d 990,
993 (7th Cir. 2009); Jenkins v. Bartlett, 487 F.3d 482, 487
(7th Cir. 2007). The consequence of non-compliance with
Rule 26(a)(2)(B) is “exclusion of an expert’s testimony . . .
‘unless the failure was substantially justified or is harm-
less.’ ” Gicla v. United States, 572 F.3d 407, 410 (7th Cir.
2009) (quoting Fed. R. Civ. P. 37(c)(1)).
No. 09-3323 11
Meyers’s sole argument is that because Dr. Rosseau
and Dr. Tonino were his treating physicians and surgeons,
they fell outside the scope of Rule 26(a)(2). Meyers relies
on a Sixth Circuit case, Fielden v. CSX Transportation, Inc.,
482 F.3d 866 (6th Cir. 2007), which is neither binding
on this court nor directly on-point. Fielden generally held
that if the treating doctor forms an opinion about causa-
tion at the time of treatment, rather than at the request
of counsel in anticipation of litigation, expert reports
need not satisfy Rule 26(a)(2). Id. at 869.
Here, the district court noted a previous statement by
this court that “even treating physicians and treating
nurses must be designated as experts if they are to
provide expert testimony.” Musser, 356 F.3d at 758. Musser
recognized that “some district courts have suggested
that if the Rule 26(a)(2)(A) testimony exceeds the scope
of treatment and ventures into more general expert
opinion testimony, a report may be necessary.” 356 F.3d
at 758 n.3. For example, in a more recent case, Krischel v.
Hennessy, 533 F. Supp. 2d 790, 795 (N.D. Ill. 2008), the
district court determined that a treating physician
who testifies as to causation is often “going beyond”
what was observed during treatment and therefore “the
professional shall follow Rule 26(a)(2)(B) and serve
an expert report complying with that Rule.”
But we have not until now had the occasion to deter-
mine whether a treating physician who provides an
expert opinion as to causation is required to file a formal
report under Rule 26(a)(2)(B) when the subject of such
opinion was not determined at the time of treatment. We
12 No. 09-3323
resolve this outstanding issue today by concluding that
a treating physician who is offered to provide expert
testimony as to the cause of the plaintiff’s injury, but
who did not make that determination in the course of
providing treatment, should be deemed to be one
“retained or specially employed to provide expert testi-
mony in the case,” and thus is required to submit an
expert report in accordance with Rule 26(a)(2).3
Dr. Rosseau and Dr. Tonino prepared letters with
opinions as to the causation of Meyers’s injuries at the
request of Meyers’s attorney, specifically for the pur-
pose of litigation. Meyers presents no evidence, and we
find none in the record, suggesting that either doctor
previously considered or determined the cause of
Meyers’s injuries during the course of treatment. As a
result, we conclude that the district court was correct in
finding that Meyers was required to provide a proper
expert report under Rule 26(a)(2).
Because the causation experts Meyers used were re-
quired to submit formal reports under Rule 26(a)(2)(B), the
3
We recognize that some devices might be used to avoid this
requirement, as when a lawyer refers a client to a particular
physician for both treatment and a causation opinion that the
lawyer expects will be useful in litigation. In such cases, the
physician might arguably be “retained or specially employed”
to provide expert testimony, but regardless of how that issue
is decided, in such cases a district court would retain power
under Rule 26(a)(2)(B) to order such physicians to prepare
a report when needed to provide fair disclosure to the
opposing party.
No. 09-3323 13
reports were required to include the “basis and reasons”
for their conclusions. As previously discussed, both doc-
tors’ reports were remarkably sparse, making it impos-
sible to tell what the doctors might have been thinking
about Meyers’s injuries prior to authoring the letters.
The district court therefore did not abuse its discretion
in excluding the experts’ testimony. See Happel, 602 F.3d
at 825-26 (affirming the district court’s exclusion of
a doctor’s testimony because the doctor’s report was
insufficient under Rule 26(a)(2) for failure to provide
any underlying methodology in an effort to demonstrate
causation); see also Romero v. Drummond Co., 552 F.3d
1303, 1323-24 (11th Cir. 2008) (rejecting one-paragraph
reports that did not provide an adequate basis for
rebuttal or cross-examination).
III. C ONCLUSION
In the absence of any evidence establishing the causa-
tion element of Meyers’s FELA claim, the district
court’s grant of summary judgment in favor of Amtrak
is A FFIRMED.
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