Chappey v. INEOS USA LLC et al
Filing
70
OPINION AND ORDER granting 52 Motion for Summary Judgment on behalf of defendant and against plaintiff and denying as moot 54 Motion to exclude certain opinions of Dr Munoz Price. The Clerk is FURTHER ORDERED to close this case. Signed by Judge Rudy Lozano on 8/17/2011. (rmn)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
NANCY CHAPPEY,
Plaintiff,
vs.
INEOS USA, LLC,
Defendant.
)
)
)
)
)
)
)
)
)
CASE NO. 2:08-cv-271
OPINION AND ORDER
This matter is before the Court on the: (1) Defendant INEOS
USA LLC’s Motion for Summary Judgment, filed on April 8, 2011 (DE
#52); and (2) Defendant INEOS USA LLC’s Motion to Exclude Certain
Opinions of Dr. Munoz-Price, also filed on April 8, 2011 (DE #54).
For the reasons set forth below, the Motion for Summary Judgment
(DE #52) is GRANTED.
The Clerk is ORDERED to DISMISS WITH
PREJUDICE Plaintiff’s claim of negligence against Defendant, INEOS
USA LLC. The Motion to Exclude Certain Opinions of Dr. Munoz Price
(DE #54) is DENIED AS MOOT.
The Clerk is FURTHER ORDERED to CLOSE
this case.
BACKGROUND
Plaintiff filed her complaint on September 2, 2008, setting
forth claims stemming from her contraction of Legionnaires disease
- allegedly from exposure to Legionella bacteria at her workplace
(BP), from the water and/or HVAC system. The case was subsequently
removed to this Court.
Although she originally set forth several
claims against two Defendants, INEOS USA LLC and Ineos Oligomly, on
October 29, 2008, Defendant, INEOS USA LLC, filed a motion to
dismiss.
In an order dated March 23, 2009, this Court granted the
motion, dismissing Plaintiff’s claims arising under the theories of
negligence per se, nuisance per se, private nuisance, public
nuisance, product liability, and labor laws.
(See
DE #16.)
Additionally, the Court dismissed all claims against Defendant,
Ineos Oligomly.
The case remained pending only as to Plaintiff’s
negligence claim against Defendant, INEOS USA LLC.
On April 8, 2011, Defendant, INEOS USA LLC (hereinafter
“INEOS”), filed the instant motion for summary judgment.
INEOS
sets forth 4 main arguments: (1) INEOS did not owe Plaintiff a
legal duty; (2) Plaintiff has no evidence to define the standard of
care of any duty; (3) there is no evidence that INEOS breached a
duty to Plaintiff; and (4) Plaintiff lacks evidence of causation.
Plaintiff filed a response on May 31, 2011 (DE #63), and INEOS
filed a reply on June 21, 2011 (DE #69). Consequently, this motion
is fully briefed and ripe for adjudication.
On the same day that the motion for summary judgment was
filed, INEOS also filed a motion to exclude certain opinions of Dr.
2
Munoz-Price, Plaintiff’s proffered expert witness.
It is Dr.
Munoz-Price’s opinion that Plaintiff, Nancy Chappey, contracted
Legionnaires’ disease as a result of her exposure to a subspecies
of
bacteria
known
as
Legionella
pneumophila
serogroup
5
at
Plaintiff’s workplace located at 2300 Standard Avenue in Whiting,
Indiana (the “Building”).
This motion is also fully briefed, and
ready for adjudication.
DISCUSSION
The standards that generally govern summary judgment motions
in federal court are familiar.
Pursuant to Rule 56(c) of the
Federal Rules of Civil Procedure, summary judgment is proper only
if it is demonstrated that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.
See Nebraska v. Wyoming, 507 U.S. 584, 590
(1993); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
In
other words, the record must reveal that no reasonable jury could
find for the nonmovant. Karazanos v. Navistar Int'l Transp. Corp.,
948 F.2d 332, 335 (7th Cir. 1991); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986).
In deciding a motion for
summary judgment, a court must view all facts in the light most
favorable to the nonmovant. Anderson, 477 U.S. at 255; NUCOR Corp.
3
v. Aceros Y Maquilas De Occidente, 28 F.3d 572, 583 (7th Cir.
1994).
The burden is upon the movant to identify those portions of
"the
pleadings,
depositions,
answers
to
interrogatories,
and
admissions on file, together with the affidavits," if any, that the
movant believes "demonstrate the absence of a genuine issue of
material fact."
Celotex, 477 U.S. at 323.
Once the movant has met
this burden, the nonmovant may not rest upon mere allegations but
must set forth specific facts showing that there is a genuine issue
for trial.1
Becker v. Tenenbaum-Hill Assocs., Inc., 914 F.2d 107,
110 (7th Cir. 1990); Schroeder v. Lufthansa German Airlines, 875
F.2d 613, 620 (7th Cir. 1989). "Whether a fact is material depends
on the substantive law underlying a particular claim and 'only
disputes over facts that might affect the outcome of the suit under
governing
judgment.'"
law
will
properly
preclude
the
entry
of
summary
Walter v. Fiorenzo, 840 F.2d 427, 434 (7th Cir. 1988)
(emphasis in original) (citing Anderson, 477 U.S. at 248).
1
Plaintiff cites Northern Indiana Public Service Co. v.
Dabagia, 721 N.E.2d 294, 301 (Ind. Ct. App. 1999), for the
proposition that “[w]hen the defendant is the moving party, the
defendant must show that the undisputed facts negate at lease
[sic.] one element of the plaintiff’s cause of action or that the
defendant has a factually unchallenged affirmative defense that
bars the plaintiff’s claims.” (DE #63, p. 3.) This standard is
applicable to Indiana state court actions, but not this federal
case.
4
"[A] party who bears the burden of proof on a particular issue
may not rest on its pleading, but must affirmatively demonstrate,
by specific factual allegations, that there is a genuine issue of
material fact which requires trial."
Beard v. Whitley Cnty. REMC,
840 F.2d 405, 410 (7th Cir. 1988) (emphasis in original); see also
Hickey v. A.E. Staley Mfg., 995 F.2d 1385, 1391 (7th Cir. 1993).
Therefore, if a party fails to establish the existence of an
essential element on which the party bears the burden of proof at
trial, summary judgment will be appropriate.
In this situation,
there can be "'no genuine issue as to any material fact,' since a
complete failure of proof concerning an essential element of the
nonmoving
party's
immaterial."
case
necessarily
renders
all
other
facts
Celotex, 477 U.S. at 323.
Undisputed Facts
Pursuant to the relevant rules, INEOS submitted a numbered
statement of material facts, contending those material facts are
not genuinely disputed.
(See DE #55.)
However, Plaintiff’s
response is deficient.
Local
Rule
56.1
provides
that
a
party
opposing
summary
judgment must file a response brief and “any materials that the
party contends raise a genuine dispute.”
5
L.R. 56.1(b)(1)(B).
Additionally, the response brief or its appendix must specifically
“include a section labeled ‘Statement of Genuine Disputes’ that
identifies the material facts that the party contends are genuinely
disputed so as to make a trial necessary.”
L.R. 56.1(b)(2).
Finally, this Court’s own Guidelines for Briefing Summary Judgment
Motions provide that the opposing party’s statement of genuine
issues
should
be
in
the
form
of
numbered
paragraphs,
each
corresponding to the paragraph of the moving party’s statement.
(Court Guidelines.) “All material facts set forth in the statement
required of the moving party will be deemed to be admitted unless
controverted by the ‘Statement of Genuine Issues’ of the opposing
party.”
Id.
Instead of following these established rules, Plaintiff merely
sets out one page in her response entitled “Facts” which largely
restates facts already set forth by INEOS (without citing INEOS’
Statement of Material Facts).
Indeed, Plaintiff states that she
“incorporates Defendant’s Statement of Material Facts with respect
to her Response,” and although she goes on to state she “will
designate additional facts . . . which are in dispute, where
appropriate,” she never identifies which facts, if any, are in
dispute.
(DE #63, p. 2.)
The only evidence cited by Plaintiff is
evidence already designated by INEOS.
In her Designation of
Evidence in Support of her Response (DE #64), Plaintiff only refers
to 8 documents already designated and attached by INEOS.
6
Because
Plaintiff has not properly disputed any of the facts identified by
INEOS in its statement of material facts (indeed, she has endorsed
them), and has not set forth any additional facts or evidence, the
Court has no choice but to take the facts in INEOS’ statement as
admitted.
L.R. 56.1.
Consequently,
undisputed
facts
the
of
following
this
case.
recitation
On
April
constitutes
1,
2005,
the
INEOS’
predecessor, O&D USA LLC, leased a two-story commercial office
building located at 2300 Standard Avenue in Whiting, Indiana,
BP Products North America (“BP”).
to
(Ex. A, Sokol Dec., ¶ 3.)
Additionally, O&D and BP executed a Shared Services Framework
Interface Agreement (“SSFIA”) and Utilities Framework Interface
Agreement (“UFIA”) that were incorporated into the Lease and
described the terms and conditions governing BP’s occupancy of the
Building.
(Ex. A, ¶¶ 4-5; Exs. A.1, A.2, A.3.)
Pursuant to the
SSFIA and UFIA, executed as part of the Lease, INEOS conferred to
BP full control and possession of the Building, including full
control
over
the
water
and
heating,
ventilation,
conditioning (“HVAC”) systems for the Building.
and
air
(Ex. A, ¶¶ 7-8;
A.2 at Schedule 5, pp. 28-29.)
Plaintiff, Nancy Chappey, was an employee of BP, and she
worked on the second floor of the Building.
(Compl. ¶¶ 1,3.)
In
September 2006, Plaintiff’s daughter had a baby, and Plaintiff
7
visited her in the hospital over the course of 2 days.
Chappey Dep., pp. 148-49.)
(Ex. B,
On September 16, 2006, Plaintiff
visited the Hammond Clinic, complaining of nausea and diarrhea that
she had been experiencing for about 2 weeks. (Ex. D, Fedoruk Dec.,
¶ 4(a).)
Her gastrointestinal condition worsened, and she had
abdominal cramping and fatigue.
(Ex. D, ¶ 4(b).)
Antibiotics gave her no relief.
On November 2, 2006, Plaintiff underwent an
outpatient colonoscopy.
(Ex. D, ¶ 4(c).)
On November 18, 2006, Plaintiff began to experience symptoms
of pneumonia that progressively worsened, ultimately leading to her
hospitalization on November 21, 2006.
Luisa
Silvia
Munoz-Price
was
(Ex. B, pp. 72-74.)
Plaintiff’s
treating
Dr.
infectious
disease physician.
(Ex. E, Munoz-Price Dep., pp. 67-68; Ex. E.1,
curriculum vitae.)
On November 25, 2006, Dr. Munoz-Price ordered
a Legionella urinary antigen test, and Plaintiff tested positive
for Legionella pneumophila serogroup 1 bacteria.
and 4(f); Ex. F.)
(Ex. D ¶¶ 4(d)
Dr. Munoz-Price diagnosed Plaintiff with
Legionnaires’ disease.
(Ex. F, p. 2.)
The test used to analyze Plaintiff’s urine sample was the
BinaxNOW Legionella Urinary Antigen Test.
(Ex. J, Clark Dec., ¶
4.) As part of her expert report, Dr. Munoz-Price cited an article
by
Chikako
Okada,
et
al.,
entitled
“Cross-Reactivity
and
Sensitivity of Two Legionella Urinary Antigen Kits, Biotest EIA and
8
Binax NOW, to Extracted Antigens from Various Serogroups of L.
Pneumophila and Other Legionella Species” (the “Okada Article”),
dated October 28, 2001.
(Ex. F.1.)
The Okada Article concludes
that the BinaxNOW urinary antigen test does not exhibit crossreactivity
between
Legionella
pneumophila
Legionella pneumophila serogroup 5.
serogroup
(F.1, pp. 52-53.)
1
and
That same
article also concludes that the BinaxNOW urinary antigen test does
not
exhibit
cross-reactivity
between
Legionella
pneumophila
serogroup 1 and any serogroup of Legionella bozemanii.
Id.
Dr. Munoz-Price did not perform clinical tests to isolate the
bacteria
found
in
Plaintiff
environmental source.
and
compare
it
to
any
alleged
(Ex. F, p. 4; Ex. D.2, pp. 7, 10.)
Dr.
Munoz-Price testified that one of the bases for her opinion that
Plaintiff’s
Legionnaires’
disease
was
caused
by
exposure
to
bacteria in the Building was the concentration of bacteria found in
the Building.
(Ex. E, pp. 139-41; Ex. F, p. 5.)
Dr. Munoz-Price
did not speak to Plaintiff about her alleged exposure to Legionella
bacteria, either when treating her in the hospital or while
preparing Dr. Munoz-Price’s opinions in this case.
(Ex. E, p. 66;
Ex. B, pp. 85-86.)
When INEOS learned that Plaintiff had been diagnosed with
Legionnaire’s disease, INEOS immediately closed the Building and
tested the water supply.
(Ex. A, ¶ 12.)
9
On November 30, 2006,
INEOS retained Pekron Consulting, Inc. (“Pekron”), to sample the
Building’s water and HVAC systems and a nearby cooling tower. (Ex.
A, ¶ 12; Ex. G, Pekron Dec., ¶ 4.)
Pekron collected water samples
from the Building’s water and HVAC systems, then packaged and
shipped
the
samples
to
PathCon
Laboratories
(“PathCon”)
for
analysis. (Ex. G, ¶ 5; Ex. I, Kirkland Dec., ¶¶ 4-5.)
PathCon’s
analysis
did
not
find
Legionella
pneumophila
serogroup 1 anywhere in the Building or the cooling tower.2
(Ex.
I at ¶ 5, incorporating PathConReport; Exs. I.1 and I.2; Ex. H,
Wade Dec., ¶ 3, incorporating Wade Report, Ex. H.1.)
However,
PathCon’s analysis did reveal Legionella pneumophila serogroup 5
and
Legionella
bozemanii
(a
different
species
of
Legionella
bacteria) in various locations in the Building. (Ex. I.1; Ex. H.1,
p. 1; Ex. D, p. 4; Ex. F, p. 2.)
PathCon’s analysis did not
differentiate between the concentration of Legionella pneumophila
serogroup 5 and Legionella bozemanii found in the water samples.
(Ex. I.1, pp. 4-7.)
Prior to PathCon’s analysis, INEOS had no knowledge of any
Legionella contamination in the Building.
(Ex. A, ¶ 14.)
In late
December 2006, the Indiana State Department of Health (“ISDH”)
2
A temporary air conditioner that was purportedly used in
the Building for an unspecified period of time prior to
Plaintiff’s illness was not available to be sampled. (Ex. G, ¶
6; Ex. E, pp. 101-02.)
10
investigated Plaintiff’s Legionnaires’ disease in coordination with
the CDC and the Lake County Health Department.
Dec., ¶¶ 2-5.)
(Ex. C, Richards
The ISDH accepted Plaintiff’s diagnosis of a
Legionella pneumophila serogroup 1 bacterial infection. (Id. at ¶
11.)
The ISDH did not discover any other instances of confirmed
human cases of Legionella bacteria that were related to Chappey’s
exposure, and concluded that Plaintiff’s illness may have been an
“isolated case” of Legionnaires’ disease.
(Ex. C, ¶¶ 12-13.)
INEOS retained Green Industries, Inc., to perform remediation
of the Building’s water and HVAC systems, including flushing the
Building’s water system with a heavy concentration of chlorine
twice.
(Ex. A, ¶ 15.)
Post-treatment test results were negative
for any species of Legionella bacteria.
(Id. at ¶ 16.)
On January
16, 2007, the Building was again available for occupancy.
(Id. at
¶ 17.)
Regarding Legionnaires’ disease - it occurs as a result of
inhaling aerosolized Legionella bacteria or micro aspiration of
contaminated water.
(Ex. D.2, p. 3.)
There are more than 50
different species of Legionella bacteria, and about 20 have been
reported to cause human infections.
cause
of
Legionnaires’
disease
is
(Id. at 3.)
the
The most common
Legionella
pneumophila
species. Id. There are 16 different serogroups (or subspecies) of
Legionella pneumophila. Id. Legionella pneumophila serogroup 1 is
11
the most frequent cause of Legionnaires’ disease in humans.
D.2, p. 3; Ex. F, p. 4.)
(Ex.
Studies have shown that Legionella
pneumophila serogroup 1 is responsible for 70% to 90% of all cases
of Legionnaires’ disease.
(Ex. D.2, p. 3.)
In contrast, studies
have shown that infections due to Legionella pneumophila serogroup
5 are very rare.
(Ex. D.2, p. 8.)
Between 1980 and 1989, there
were only six reported cases of Legionnaires’ disease due to
Legionella pneumophila serogroup 5.
Id.
Legionella bacteria are
common in natural and man-made aquatic environments, with studies
showing that water systems in 32% of residential buildings, 70% of
hospitals, and 40%-60% of commercial buildings have some level of
contagion.
(Ex. H.1, p. 2.)
Due to its prevalence in the environment, the CDC does not
recommend routine sampling for Legionella bacteria in water and/or
HVAC systems.
regulatory
(Ex. H.1, p. 3.)
requirements
to
There are no governmental
routinely
test
commercial
office
buildings’ water and/or HVAC systems for the presence of Legionella
bacteria, and there are no regulatory standards for the safe number
of Legionella pneumophila bacteria found in water systems.
Id.
Once a diagnosis of Legionnaires’ disease is made, the CDC
recommends surveillance to determine if other persons with similar
exposure opportunities become symptomatic. (Ex. H.1, p. 3.) Here,
after Plaintiff was diagnosed with Legionnaires’ disease, INEOS
immediately closed the Building and retained Pekron and PathCon to
12
sample
and
test
the
Building’s
water
and
HVAC
systems
for
Legionella bacteria.
Finally, as pointed out by INEOS, the only statement in
Plaintiff’s “Facts” section that was not taken directly from INEOS’
Statement is “[a]s a further condition of the executed lease,
Defendant assumed the obligation to keep the premises in good
repair and in a tenantable condition.”
asserts
that
this
single
sentence,
(DE #63, p. 2.)
taken
out
of
INEOS
context,
misrepresents the Lease because it ignores the SSFIA and UFIA,
incorporated explicitly into the Lease and setting forth the
services INEOS and BP were each contractually obligated to perform.
(Ex. A, ¶¶ 3-8; A.1, 1.2, 1.3.)
As recited earlier in this
section, the SSFIA and UFIA conferred to BP full control and
possession of the Building and, specifically, full control over the
water and HVAC systems for the Building.
(Ex. A, ¶¶ 7-8; A.2 at
Schedule 5, pp. 28-29.)
The Negligence Claim Fails as a Matter of Law Because Plaintiff
Cannot Prove that INEOS Owed Plaintiff a Legal Duty
A federal court sitting in diversity, like this one, applies
the substantive law of the state in which the Court sits.
See
Allstate Ins. Co. v. Menards, Inc., 285 F.3d 630, 633 (7th Cir.
13
2002) (citing Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938)).
Neither party disputes that Indiana law applies here.
Under a negligence theory, a plaintiff must establish three
elements:
(1) a duty on the part of the defendant to conform
his conduct to a standard of care arising from his
relationship with the plaintiff, (2) a failure of
the defendant to conform his conduct to the
requisite standard of care required by the
relationship, and (3) an injury to the plaintiff
proximately caused by the breach.
Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind. 1991) (citing Miller v.
Griesel, 308 N.E.2d 701, 706 (Ind. 1974)).
Whether Indiana law
recognizes a legal duty obligating INEOS “to conform its conduct to
a certain standard for the benefit of the plaintiff is a question
of law.”
Id.
Plaintiff’s singular argument that INEOS owed her a legal duty
arises from language in the Lease:
Landlord, at its sole cost and expense, shall keep
the Premises in good repair and tenantable
condition and shall promptly and adequately repair
any and all damage to the Premises excepting,
however, any damage caused by Tenant or any of its
employees,
contractors,
agents,
invitees
or
licensees, including replacing or repairing all
damaged or broken glass, fixtures and appurtenances
which Tenant shall repair, at its sole cost and
expense . . . .
Ex. A.1, p. 4 (emphasis added). Plaintiff argues that INEOS failed
to keep the Building in tenantable condition when it allowed the
14
presence of Legionella bacteria in the Building.
(DE #63, p. 4.)
The phrase “tenantable condition” is not defined in the Lease.
Yet, the Lease expressly provides that it is “subject in all
respects to the terms and conditions of the Framework Agreement.
In the event of any ambiguity or inconsistency between this Lease
and the Framework Agreement, the terms of the Framework Agreement
shall supersede, govern and prevail.” (Ex. A.1, p. 18.)
Schedule
5 of the SSFIA specifically confers to BP, as the Supplier,
responsibility
for
“[m]anagement
and
maintenance
of
Site
infrastructure including buildings, roads, drainage, car parks,
fencing,
landscaping,
pest
control,
plumbing,
conditioning, and joinery and general repairs.”
Schedule 5, pp. 28-29 (emphasis added).)
heating/air
(Ex. A.2 at
Plaintiff contends that
the Building was contaminated with bacteria detected in the hot
water system.
(Compl. ¶¶ 5, 7, 34(I).)
The SSFIA is the only
document that specifically refers to the water and HVAC systems.
As the Court in Premier Title Co. v. Donahue, 765 N.E.2d 513, 518
(Ill.
App.
Ct.
2002),
stated,
Plaintiff’s
“interpretation
disregards the rule that, in the event of a conflict, specific
provisions are entitled to more weight in ascertaining the parties’
intent than general provisions.” In other words, “[w]e must accept
an interpretation of the contract that harmonizes all the various
parts so that no provision is deemed conflicting with, repugnant
to, or neutralizing of any other provision.
15
When a contract
contains general and specific provisions relating to the same
subject, the specific provision controls.”
Turner v. Board of
Aviation Com’rs, 743 N.E.2d 1153, 1167 (Ind. Ct. App. 2001)
(citation omitted). “In construing a contract, we presume that all
provisions
were
included
for
a
purpose,
and
if
possible
we
reconcile seemingly conflicting provisions to give effect to all
provisions. . . [w]hen a contract contains general and specific
provisions relating to the same subject, the specific provision
controls.” Salcedo v. Toepp, 696 N.E.2d 426, 435-36 (Ind. Ct. App.
1998).
Because INEOS relies upon a specific provision that
addresses responsibility for the water and HVAC systems (versus
Plaintiff’s reliance upon the general Lease clause that INEOS
should keep the Building in a “tenantable condition”), INEOS’
interpretation prevails.
As cited by INEOS, this case is similar to Rogers v. Grunden,
589 N.E.2d 248, 254 (Ind. Ct. App. 1992).
In Rogers, the Grundens
leased property to Ramsey Popcorn Company, and entered into an oral
agreement with Ramsey allowing Ramsey’s employees to use an auger
(owned by the Grundens), on the property.
Id. at 252.
A Ramsey
employee was electrocuted while working, and using the auger.
Id.
The employee’s estate sued the Grundens, inter alia, under a
negligence theory claiming the Grundens owed Rogers a legal duty
because they owned the land and the auger.
Id. at 251.
The Court
of Appeals affirmed the finding of summary judgment, finding
16
generally,
“a
landlord
who
gives
a
tenant
full
control
and
possession of the leased property will not be liable for personal
injuries sustained by the tenant or other persons lawfully upon the
leased property.”
Id. at 254.
In that case, because the estate
“failed to demonstrate specific facts showing the Grundens owed a
duty to Rogers under any cognizable legal theory,” summary judgment
was proper.
Id.
Similarly, in this case INEOS leased the Building
to BP and gave BP discretion and control over the Building by
entering into the SSFIA which obligated BP to manage certain
aspects of the building, including the water and HVAC systems.
(Ex. A.1, A.2, Ex. A at ¶¶ 7-8.)
Plaintiff has failed to point to
any facts showing that INEOS owed her a legal duty.3
Consequently,
the claim for negligence fails.
Plaintiff contends, without citing any legal support, that she
was a third party beneficiary of the Lease; therefore, INEOS owed
3
Plaintiff contends that because INEOS immediately closed
the Building and retained an expert to evaluate the Building’s
water and HVAC systems, this necessarily proves that INEOS was
really in possession and control of the Building. (DE #63, p.
5.) This argument is not supported by any case law or other
authority. Moreover, to the extent Plaintiff is arguing that
INEOS’ subsequent remedial measures is evidence of its
negligence, it is well establish that such subsequent remedial
measures are not admissible as evidence of negligent or culpable
conduct. See Fed. R. Evid. 407. Only evidence which would be
admissible at trial may be considered in summary judgment
proceedings. See First Nat’l Bank Co. v. Insurance Co. of North
America, 606 F.2d 760, 766 (7th Cir. 1979). As such, the Court
does not consider INEOS’ subsequent testing and remediation of
the Building evidence of negligence.
17
her a duty to keep the premises in “tenantable condition.”
#63, p. 4.)
(DE
Aside from the aforementioned problem that the Lease
does not define “tenantable” (nor has Plaintiff proposed any
definition), a person’s status as a direct or indirect third-party
beneficiary of a contract dictates whether that person may pursue
rights under the contract.
Catellus
Dev.
Corp.,
319
American United Logistics, Inc. v.
F.3d
921,
930-31
(7th
Cir.
2003).
However, here, Plaintiff does not seek to pursue rights under the
Lease.
Rather, she brings only a claim of negligence.
Thus, her
third party beneficiary argument is inapplicable.
Plaintiff also argues that “Defendant concedes in their [sic.]
Brief that plaintiff was a business invitee and as such, defendant
owed plaintiff a duty to exercise reasonable care in discovering
any harmful condition.”
p. 10.))
(DE #63, p. 5 (citing INEOS Br., DE #53,
This is an improper of reading of INEOS’ argument - INEOS
made no such concession.
Rather, INEOS used the business invitee
analysis to support an argument that, even if INEOS owed Plaintiff
a legal duty, Plaintiff had not met her burden of establishing that
INEOS breached a duty.
(DE #53, p. 10.)
The Court need not even
reach this issue of whether Plaintiff can prove that INEOS breached
a duty, because, as established earlier, Plaintiff has failed to
prove that any duty existed between INEOS and Plaintiff.
this Court reach the issue of causation.
Nor does
See, e.g., Goldsberry v.
Grubbs, 672 N.E.2d 475, 477 n.1 (Ind. Ct. App. 1996) (noting
18
because plaintiff failed to prove defendant owed plaintiff a duty
of care, the Court need not reach the issues of breach and
proximate cause).
Finally,
because
summary
judgment
in
favor
of
INEOS
is
warranted, INEOS’ Motion to Exclude Certain Opinions of Dr. MunozPrice is DENIED AS MOOT.
CONCLUSION
For the reasons set forth above, the Motion for Summary
Judgment (DE #52) is GRANTED. The Clerk is ORDERED to DISMISS WITH
PREJUDICE Plaintiff’s claim of negligence against Defendant, INEOS
USA LLC. The Motion to Exclude Certain Opinions of Dr. Munoz Price
(DE #54) is DENIED AS MOOT.
The Clerk is FURTHER ORDERED to CLOSE
this case.
DATED: August 17, 2011
RUDY LOZANO, Judge
United States District Court
19
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