Fed Ct. Fights Wacky WC Claim, Unions Fight Non-Union Operators

Tuesday, April 14, 2009 | 0

By Eugene F. Keefe

Synopsis: Federal appeals court knocks out wacky work claim for non-disabling exposure to noxious gas.
 
Editors comment: The Seventh Circuit Appellate Court certainly can write lengthy, detailed, thorough, comprehensive, exhaustive and exhausting opinions.

In Lewis v. Citgo Petroleum, (No. 80-1483, decided April 6, 2009), two plaintiffs were working at the Citgo Petroleum plant in  Lemont,  Ill. They were allegedly exposed to hydrogen sulfide gas. They lost no time from work. They received no medical care until several years later.
 
It is hard to imagine, but their personal injury claim has now ended seven years later. The claim started in state court then moved to federal court. The experts testimony became the focus of the dispute where the doctors felt one plaintiff suffered from occupational asthma and the other doctor felt a plaintiff suffered from headaches.
 
In an extraordinary review of the Daubert test on consideration of expert testimony, the Seventh Circuit ruled the experts could not causally connect the conditions to the claimed exposure and upheld dismissal on summary judgment.
 
The court also ruled, under  Illinois law, a refinery worker's mild anxiety, caused by alleged exposure to hydrogen sulfide in a work incident at a refinery, was not so severe as to allow recovery from the refinery on a negligent infliction of emotional distress theory. The worker's mild anxiety, for which she had not sought treatment, caused her to recheck her work, but only minimally interfered with her everyday life.
 
It is our hope the Illinois judiciary and the Workers Compensation Commission will take a similar view of the evidentiary standards necessary to find causal connection in disputed claims. Our favorite cite from this ruling is:
 
As we have said: [Q]ualifications alone do not suffice. A supremely qualified expert cannot waltz into the courtroom and render opinions unless those opinions are based upon some recognized scientific method and are reliable and relevant under the test set forth by the Supreme Court in Daubert. Clark v. Takata Corp.,192 F.3d 750, 759 n.5 (7th Cir. 1999); see also Rosen, 78 F.3d at 318 ([A] district judge asked to admit scientific evidence must determine whether the evidence is genuinely scientific, as distinct from being unscientific speculation offered by a genuine scientist.). Instead, to be admissible, a medical experts ultimate opinion must be grounded in the scientific process and may not be merely a subjective belief or unsupported conjecture. See Daubert, 509  U.S. at 589-90; Goodwin v. MTD Prods., Inc., 232 F.3d 600, 608-09 (7th
Cir. 2000).
 
The link to the case is http://www.ca7.uscourts.gov/tmp/MM0JPVPO.pdf. 

Synopsis: As we watch construction and other companies try to move to non-union work and survive, please note you cant sue in state court on an anti-trust theory to be left alone by the other unions.
 
Editors comment: As hourly rates and benefits continue to soar in construction and other unions, a number of companies are trying to go non-union to survive. Once the effort is made, one may expect the unions to counterattack - the problem for litigators is what to do when that happens.

In Smart v. Local 702 Int'l Bhd. of Electrical Workers, Local 702, (07-4088, issued April 7, 2009) the Seventh Circuit Court of Appeals ruled a state antitrust claim against local union by sole proprietor of nonunion electrical contractor was completely preempted by Federal law.
 
The Federal appellate court found an Illinois Antitrust Act claim by the sole proprietor of a nonunion company who contracted to perform electrical work for the construction of a sports complex, against the local union whose coercive tactics allegedly caused the complex owner to terminate its relationship with that company, was subject to Garmon preemption.
 
The specific ruling held:

1.  Plaintiff's stated antitrust claim was preempted by federal law;
2.  The Federal District Court properly dismissed plaintiff's unwarranted prosecution claim as he had already failed to prevail in the underlying actions; and
3.  The  Federal District Court properly dismissed plaintiff's legal malpractice claim as he did not have an attorney-client relationship with Defendant's counsel.