Seventh Circuit Finds "Mild Anxiety" Insufficient To Allow Recovery For Negligent Infliction Of Emotional Distress Under Illinois Law
by Paul Bozych
In Lewis v. CITGO Petroleum Corp., 561 F.3d 698 (2009), the United States Court of Appeals for the Seventh Circuit examined Illinois law and concluded that mild anxiety caused by an employee's exposure to hydrogen sulfide gas was not so severe as to allow recovery for negligent infliction of emotional distress.
Plaintiffs Michael Lewis and Tammy Livingston claim to have been injured when they were exposed to hydrogen sulfide gas on March 11, 2001 while working at a refinery operated by defendant CITGO. On-site emergency personnel and a first-response medical team examined Lewis and Livingston before an ambulance took them to a local hospital. The emergency room staff conducted a full medical evaluation, including blood tests and chest x-rays. The hospital then released both patients without an overnight stay. Lewis and Livingston both returned to work the next day. They received follow-up care for 10 days immediately following the accident. For the next two and one-half years, neither Lewis nor Livingston, both of whom are long-time smokers, sought further treatment for any medical problems purportedly caused by the gas exposure.
In August 2003, after initially filing suit against CITGO and at the request of their attorney, both Lewis and Livingston saw Dr. Fink, a doctor of internal medicine who specializes in allergies. Fink found Lewis to be in generally good health, but diagnosed him with occupational asthma related to exposure to chemicals at work during the March 11, 2001 incident. Fink stated that Livingston's chemical exposure in March 2001 had caused a bronchitis problem and possible sinus disease. Pursuant to Dr. Fink's advice, plaintiffs' counsel later sent both plaintiffs to see Dr. Kohn, a psychiatrist and board-certified neurologist. Kohn found no evidence of "permanent organic brain injury" in Lewis but noted recurrent headaches "most likely" caused by the March 2001 incident. Kohn found that Livingston likewise sustained no permanent organic brain injury but that she also suffered persistent headaches since the accident. Dr. Kohn diagnosed Livingston with potential emotional distress, stating that while Livingston now minimized her experience, she "very likely suffered post-traumatic stress disorder [(PTSD)] in the earlier phases." He found this problem exacerbated by an underlying mood disorder, most likely Bipolar Type II.
In June 2006, plaintiffs dismissed their first suit and filed a second action against CITGO alleging common law negligence as to both Lewis and Livingston and negligent infliction of emotional distress as to Livingston arising from their hydrogen sulfide gas exposure. The district court granted summary judgment for CITGO, finding that plaintiffs had failed to meet their burden of demonstrating the reliability and usefulness of their proferred expert testimony from Drs. Fink and Kohn and thus failed to raise a triable issue of fact on causation.
The Seventh Circuit affirmed, holding that the district court did not abuse its discretion in declining to consider the testimony of Drs. Fink and Kohn in making its summary judgment determination, and that plaintiffs had failed to meet their burden of presenting sufficient evidence to establish causation. In addition to the fatal lack of causation evidence, the Court also found that Livingston had failed to meet the minimum "emotional injury" threshold necessary to sustain her claim for negligent infliction of emotional distress.
With respect to Livingston's claim, the Court first found that her allegations of emotional distress fell under Illinois's "direct victim" rubric, rather than the "bystander" rubric, because there were no allegations that plaintiff feared for her own safety. The Court noted that while the Illinois Supreme Court has not addressed directly the magnitude of emotional injuries required for a claimant to recover for negligent infliction of emotional distress, Illinois appellate opinions make clear that emotional injuries must surpass a threshold severity to be cognizable.
Here, Dr. Sweet, a clinical psychologist retained by CITGO to testify concerning Livingston's psychological condition, opined that the hydrogen sulfide gas incident did cause Livingston some anxiety which was "relatively mild" and did not interrupt her daily activities. She continued to work but showed some extra cautiousness - she might "go back and double-check somebody else's having made her work area safe." Dr. Sweet concluded that Livingston's level of anxiety was not diagnosable and did not warrant care or clinical help.
The Seventh Circuit found this evidence patently insufficient to meet the severity threshold:
When, as here, a claim for negligent infliction of emotional distress so clearly falls below the threshold requirement of a severe emotional injury, we will not hesitate to dismiss it at the summary judgment stage. We conclude that Livingston's injury - mild anxiety that causes her to recheck her work, but that only minimally interferes with her everyday life and for which she has not sought treatment - does not rise to the level of severity required under Illinois law for an emotional injury to be compensable in a claim for negligent infliction of emotional distress.
Mild anxiety which does not significantly interfere with daily activities and does not require any treatment does not meet the severity threshold necessary to sustain a claim for negligent infliction of emotional distress under Illinois law.
For more information contact Paul Bozych at firstname.lastname@example.org.