United States District Court, Northern District of Illinois, Eastern Division
April 2, 1999
JOSEPH J. REGALADO, ETC., PLAINTIFF,
CITY OF CHICAGO, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, Senior District Judge.
MEMORANDUM OPINION AND ORDER
Joseph Regalado, suing by his guardian and father Baltazar Regalado,*fn1
brought (1) claims of excessive force and of failure to provide medical
care, both advanced under 42 U.S.C. § 1983 ("Section 1983"), against
City of Chicago ("City") police officers (collectively "Officers") Manuel
Acevedo ("Acevedo") and Jose Garcia ("Garcia"), along with (2) state law
claims of assault and battery and failure to provide medical care against
Officers and related derivative claims against City itself. All
defendants now move for summary judgment under Fed.R.Civ.P. ("Rule") 56.
Both sides have complied with this District Court's General Rule ("GR")
12(M) and 12(N),*fn2 and the motion is fully briefed and ripe for
decision. For the reasons set forth in this memorandum opinion and
order, defendants' motion is granted in one respect but is denied in
principal part. Summary Judgment Principles
Under familiar Rule 56 principles defendants have the burden of
establishing both the lack of a genuine issue of material fact and that
they are entitled to a judgment as a matter of law (Celotex v. Catrett,
477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Summary
judgment is appropriate only if the record reveals that no reasonable
jury could conclude that defendants violated Regalado's constitutional
and state law rights. For that purpose this Court must "read the record
in the light most favorable to the non-moving party," although it "is not
required to draw unreasonable inferences from the evidence" (St. Louis
N. Joint Venture v. P & L Enters., Inc., 116 F.3d 262, 265 n. 2 (7th
What follows in the Facts section (and to some extent later) is culled
from the parties' submissions, with any differences between them resolved
in Regalado's favor*fn3 Other relevant facts, which fit somewhat better
into the substantive legal discussion, will be set out later in this
On June 20, 1991 Regalado, for whom there was an outstanding arrest
warrant, encountered Officers Garcia and Acevedo and began to run from
them (R.Mem. 1). Garcia chased Regalado dorm the street and out of the
sight of any witnesses (R. 12(N) ¶ 5). They were thus totally out
of' sight for somewhere between 3 and 10 minutes (id. ¶ 7), but
several witnesses viewed other portions of their altercation.
Passerby Richard Torres saw Regalado running from Garcia. Then he saw
Garcia swing a dark object in a downward motion at Regalado's head and
back. Regalado staggered and fell, and Garcia continued to hit him. Then
Garcia put his knee in Regalado's upper back and neck area, picked up his
head and hit him with an open palm to the face (id. ¶ 15). Another
witness, Regalado's friend Frank Mondragon, saw Garcia push Regalado
against a building and then strike him several times with a flashlight
(id. ¶ 23). Regalado collapsed, but Garcia picked him up and again
hit him on the head with the flashlight. When Regalado fell to the ground
after that blow, he did not get up or move again (id. ¶ 24).
Several of Regalado's friends arrived on the scene after the beating.
Garcia instructed them to get a hose and wet down Regalado to wake him
up. That, and other efforts such as squeezing Regalado's
testicles, were unsuccessful in rousing him from his unconscious state
(id. ¶¶ 25, 34).
Instead of calling an ambulance, or indeed even taking Regalado to the
station house, Officers left him with his friends (id. ¶¶ 37-39).
Regalado's friends carried him to the Mondragon house, and eventually
everyone passed out or went to sleep (id. ¶¶ 41-42). When Ignacio
Mondragon came home from his graveyard shift in the morning, everyone
realized that something was seriously wrong with Regalado. He still could
not be awakened, and spit and blood were coming from his nose and mouth
(id. ¶ 43). His friends then called an ambulance and Regalado was
taken to the hospital (id. ¶ 44).
According to Regalado's expert witness Dr. Robert Ehle, Regalado
suffered a stroke caused by trauma to one or both of Regalado's vertebral
arteries (id. ¶¶ 54-56). Regalado presently has a "locked in"
syndrome: He has no control over his body (i.e., his arms, legs, tongue
or vocal cords), but he is conscious and aware of his surroundings and is
able to move his eyes up or down (id. ¶ 70).
Regalado's Claims Against Acevedo
Regalado brought a Section 1983 excessive force claim (Count I)*fn4
and a state assault and battery claim (Count II) against Acevedo, both
based on his asserted failure to prevent Garcia from using excessive
force. Acevedo moves for summary judgment on both claims.
Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972) is the seminal decision
establishing a plaintiffs ability to bring a Section 1983 claim based on
an officer's failure to intervene in another officer's use of excessive
force. Such claims are now often referred to as "Byrd claims." Yang v.
Hardin, 37 F.3d 282, 285 (7th Cir. 1994) (emphasis in original) has
further explained the requirements of Byrd claims:
An officer who is present and fails to
intervene to prevent other law enforcement
officers from infringing the constitutional
rights of citizens is liable under
§ 1983 if that officer had reason to
know: (1) that excessive force was being
used, (2) that a citizen has been unjustifiably
arrested, or (3) that any constitutional
violation has been committed by a
law enforcement official; and the officer
had a realistic opportunity to intervene
to prevent the harm from occurring.
To succeed on the current motion, then, Regalado must at least create
reasonable inferences*fn5 that Acevedo (1) had reason to know Garcia was
using excessive force and (2) had a realistic opportunity to intervene to
prevent the consequent harm from occurring.
D.Mem. 3 a. 1 accepts as true, for purposes of this motion, Regalado's
claim that Garcia did employ excessive force against him. But because it
is undisputed that at least for some period of time Acevedo was not
present during the altercation between Garcia and Regalado, what is at
issue is whether Acevedo arrived in time to see and to prevent Garcia's
use of that excessive force.
According to Jessie Mondragon ("Mondragon," not to be confused with
Frank or Ignacio Mondragon referred to in the earlier factual summary),
when Garcia began to chase Regalado, Acevedo told Mondragon to get into
the back of the police car (R. 12(N) ¶ 26). They drove to where
Regalado and Garcia had stopped, and Mondragon could see from the back
that Regalado was handcuffed and in a standing position (id. ¶ 27).
Mondragon then asked Acevedo to let him out of the car so that he could
see what was happening between Regalado and Garcia, but Acevedo refused
and got out of the vehicle himself (id. ¶ 28). Mondragon then asked
his two friends, who were outside of the car, to let him out. By the time
his friends opened the door and Mondragon next saw Regalado, he was face
down on the ground and Garcia had his knee on the back of Regalado's neck
(Mondragon Dep. 48-49). Garcia kept his knee on Regalado's neck for about
5 minutes (id. 87).*fn6
As already stated, other witnesses testified that at some point Garcia
struck Regalado with a flashlight several times, causing him to fall to
the ground, unable to move or stand up again (R. 12(N) ¶¶ 15,
23-24). When combined with Mondragon's testimony that Regalado was
standing when he and Acevedo arrived on the scene, a jury could also
reasonably infer that Acevedo witnessed and had an opportunity to prevent
the blows that forced Regalado to the ground.
Yang, 37 F.3d at 285 has made clear that a realistic opportunity to
intervene need not involve any extended time frame:
At a minimum Officer Hardin could have
called for a backup, called for help, or at
least cautioned Officer Brown to stop.
In fact, Officer Hardin should have arrested
See also the like statement in Thorner v. City of Harvey, 1998 WL
355526, at *11 (N.D.Ill. June 24, 1998):
[T]his court finds that a reasonable jury
could find that a nonparticipatory officer
who had more than a "split-second" to
react to excessive force but "less than a
minute" could have acted to prevent the
harm, at least by telling the malfeasant
officer to stop.
And as Lanigan v. Village of E. Hazel Crest, 110 F.3d 467, 478 (7th Cir.
1997) has reconfirmed:
Whether an officer had sufficient time to
intervene or was capable of preventing
the harm caused by the other officer is
generally an issue for the trier of fact
unless, considering all the evidence, a
reasonable jury could not possibly conclude
Hence genuine issues of material fact exist as to whether Acevedo did
in fact know of Garcia's use of excessive force and had an opportunity to
intervene. Acevedo's motion as to Regalado's Section 1983 claim is
Regalado's state law claim can be dealt with quickly, for his response
did not even address Acevedo's arguments as to that claim. D.Mem. 6 n. 2
contends that Acevedo is entitled to summary judgment on Regalado's state
law claim of assault and battery because there is no Byrd equivalent
under Illinois law. Moreover, Acevedo argues, even if such a claim were
recognized he would be immune from liability pursuant to the Illinois
Local Governmental and Governmental Employees Tort Immunity Act (the
"Act," 745 ILCS 10/1-101 to 10/10-101).*fn7 In that respect Acevedo
points to Act § 2-204, which provides that "a public employee, as such
and acting within the scope of his employment, is not liable for an
injury caused by the act or omission of another person" (see Williams v.
City of Harvey, 1994 WL 186793, at *3 (N.D.Ill. May 11, 1994); Eiland r.
Hardesty, 564 F. Supp. 930, 934 (N.D.Ill. 1982)).
That argument really begs the question, for a Byrd-type claim does not
rest on any notion of vicarious liability (either respondeat superior or
otherwise), which is the focus of Act § 2-204 immunity. Instead
the delict is that of the nonintervening officer himself or herself, with
liability flowing from the familiar concept that there may be more than
one proximate cause of an injury, with the tortfeasors being jointly and
severally liable. What spares Acevedo is the different principle that
federal courts should be loath to launch into wholly uncharted state law
seas (see, e.g., Gust K. Newberg Const. Co. r. E.H. Cramp & Co.,
818 F.2d 1363, 1368 (7th Cir. 1987) and cases cited there).*fn8 And
absent any assistance from Regalado, this Court will not do so here.
It is true that Varvaris v. Delia, 1996 WL 521287, at *4 (N.D.Ill.
Sept.11, 1996) has, without any substantive discussion, denied a motion
to dismiss on claimed immunity grounds a state law claim against police
officers who had failed to intervene in the beating of a suspect, where
the complaint alleged that the failure was willful and wanton. But this
Court need not decide whether to join its District Court colleague in
recognizing such a claim that the Illinois state courts have not yet
found viable (it is a truism that Illinois law is what the Illinois
courts say it is, not what federal courts may decide it to be). After
all, neither Regalado's Complaint nor his Rule 56 response alleges that
Acevedo's failure to intervene, unlike his later failure to provide
medical care, was willful or wanton. And Act § 2-202 creates an
exception to the immunity otherwise conferred by Act § 2-204, so that
Vctrvaris would not serve to support the claim against Acevedo even if
this Court were inclined to be equally venturesome.
For more than one reason, then, Acevedo's motion for summary judgment
as to Count II is granted. That claim is dismissed with prejudice.
Section 1983 Denial-of-Medical-Care Claim
Officers argue that they are entitled to summary judgment on Regalado's
Section 1983 denial-of-medical-care claim (Count IV) because (1) Regalado
bad no substantive due process right to such care, (2) even if he had
such a right, Officers' actions were not sufficiently culpable and (3)
Officers are entitled to qualified immunity. Because Officers' argument
falls on all three points, their summary judgment motion as to that claim
must be and is denied.
Ordinarily such claims of failure to provide medical care are not
recognized because governmental entities and their personnel "generally
[have] no affirmative constitutional duty to provide medical services to
. . . citizens" (Brownell v. Figel, 950 F.2d 1285, 1289 a. 4 (7th Cir.
1991)). But two exceptions exist to that general rule: (1) where
plaintiff was in government custody at the time he or she was deprived of
medical attention and (2) where the state itself created the danger
(Estate of Stevens v. City of Green Bay, 105 F.3d 1169, 1174 (7th Cir.
1997), citing DeShaney v. Winnebago County Dep't of Soc. Servs.,
489 U.S. 189, 199-202, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989)). Because
Regalado's situation so clearly falls within the state-created-danger
exception, this opinion need not address whether he also qualifies for
the in-custody exception.*fn9
This Circuit's caselaw recognized the state-created-danger concept even
pre-DeShaney. White v. Rochford, 592 F.2d 381 (7th Cir. 1979) upheld as
viable a Section 1983 claim against police officers who abandoned
children on the Chicago Skyway after arresting their custodian and
depriving them of adult protection. Archie v. City of Racine,
847 F.2d 1211, 1223 (7th Cir. 1988) (en banc) also found that a
governmental official could be held responsible for creating a danger in
a noncustodial setting:
When the state puts a person in danger,
the Due Process Clause requires the
state to protect him to the extent of
ameliorating the incremental risk.
Here Garcia struck Regalado repeatedly and then left him, unconscious,
in the care of his drunk friends. Regalado's helplessness was obvious and
profound: He remained unresponsive even when a hose was turned on in his
pants and his testicles were squeezed (R. 12(N) ¶ 34). Though Garcia
put Regalado into serious physical jeopardy, Officers failed to seek
medical treatment for a man who clearly could not seek it himself.
D.Mem. 10 urges (citing Stevens, 105 F.3d at 1177) that Officers had no
duty to Regalado because they did not "cut off all avenues of aid" when
they left him in the care of his friends. Even if that were so, it would
not be fatal — as Monfils v. Taylor, 165 F.3d 511, 517 (7th Cir.
1998) has said:
In a claim such as this one based on a
state-created danger, there is no absolute
requirement that all avenues of self-help
But the argument is empty to begin with: As a. 9 indicates, by rendering
Regalado unconscious Garcia did effectively cut off all avenues of aid
that Regalado could seek for himself.
Next Officers argue that even if Regalado has a Fourteenth Amendment
claim, they are entitled to summary judgment because Regalado cannot show
that they "acted with sufficient culpability." They correctly identify
the components of a Section 1983 claim of failure to provide medical
care, as summarized by this Court in an in-custody case, Smallwood v.
Renfro, 708 F. Supp. 182, 187 (N.D.Ill. 1989):
1. a serious medical injury and
2. defendants' knowledge of the harm
and conscious refusal to prevent it.
Yet Officers fail to recognize (or to admit) that genuine issues of
material fact exist as to each of those elements.
Reasonable jurors could readily find that Regalado's unconscious
state, even after repeated and vigorous attempts to awaken him, indicated
a serious medical injury. Furthermore, given that Garcia's actions
arguably caused that debilitated state, Officers' knowledge of the harm
can readily be inferred. Officers' abandonment of Regalado even after his
friends asked them to call an ambulance (R. 12(N) ¶ 37) could also
constitute deliberate indifference to his needs in the eyes of a jury.
Finally, Officers contend that they are entitled to qualified immunity
because they did not violate any clearly established right possessed by
Regalado. Qualified immunity shields government officials performing
discretionary functions from liability for civil damages. To overcome the
defense of qualified immunity, Regalado must show that the officials
violated "clearly established statutory or constitutional rights of which
a reasonable person would have known" (Harlow r. Fitzgerald, 457 U.S. 800,
818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).
Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d
523 (1987) (citation omitted) refined I the concept of "clearly
The contours of the right must be sufficiently
clear that a reasonable official
would understand that what he is doing
violates that right. This is not to say
that an official action is protected by
qualified immunity unless the very action
in question has previously been held
unlawful, but it is to say that in the light
of pre-existing law the unlawfulness
must be apparent.
As Azeez v. Fairman, 795 F.2d 1296
, 1301 (7th Cir. 1986) has put it,
"[t]he right must be sufficiently particularized to put potential
defendants on notice that their conduct probably is unlawful."
Here state-created-danger claims were recognized by our Court of
Appeals for more than a decade before the 1991 incident between defendants
and Regalado, (see White and Archie). That being so, there is no question
that Officers' actions violated a clearly established right (see also
Monfils, 165 F.3d at 518, relying on Byrd and Archie to deny qualified
immunity in a state-created-danger case based on a 1992 incident).
This aspect of Officers' Rule 56 motion therefore fails on several
fronts. Thus Regalado's Section 1983 claim of failure to provide him with
medical services survives.
State Law Claims of Failure To Provide Medical Care
Officers also seek summary judgment on Regalado's state law claim of
failure to provide medical care (Count III), a motion in which City
(sought to be held liable on respondeat superior grounds in Count V) also
joins. They call upon the immunity provisions of Act §§ 2-202, 4-102
Act § 2-202: A public employee is not
liable for his act or omission in the execution
or enforcement of any law unless
such act or omission constitutes willful
and wanton conduct.*fn10
Act ¶ 4-102: Neither a local public entity
nor a public employee is liable for
failure to establish a police department
or otherwise provide police protection
service or, if police protection service is
provided, for failure to provide adequate
police protection or service, failure to
prevent the commission of crimes, failure
to detect or solve crimes, and failure
to identify or apprehend criminals. This
immunity is not waived by a contract for
private security service, but cannot be
transferred to any non-public entity or
Act § 4-105: Neither a local public entity nor a public employee is
liable for injury proximately caused by the failure of the employee to
furnish or obtain medical care for a prisoner in his custody; but this
Section shall not apply where the employee, acting within the scope of
his employment, knows from his observation of conditions that the
prisoner is in need of immediate medical care and, through willful and
wanton conduct, fails to take reasonable action to summon medical care.
Nothing in this Section requires the periodic inspection of prisoners.
Act §§ 2-202 and 4-105 can be put aside quickly because both contain
a "willful and wanton conduct" exception to immunity. As this Court found
in Hvorcik v. Sheahan, 847 F. Supp. 1414, 1425 (N.D.Ill. 1994), any
substantive difference between the content of "deliberate indifference"
in the Section 1983 context `and the Illinois reading of `willful and
wanton' is so subtle as to defy meaningful application." So because this
opinion has already denied summary judgment on the Section 1983 claim of
failure to provide medical care, which employs the deliberate
indifference standard, it is equally unavailable on the state law claim
through Act §§ 2-202 and 4-105.
Act § 4-102 presents a more complicated analysis, because it does
not contain "willful and wanton" language. As definitively taught by In
re Chicago Flood Litig., 176 Ill.2d 179, 196, 223 Ill.Dec. 532,
680 N.E.2d 265, 273 (1997) (citations omitted) in addressing another Act
section that omitted the "willful and wanton" language:
The plain language of section 2-201 is
unambiguous. That provision does not
contain an immunity exception for willful
and wanton misconduct. Where the legislature
has chosen to limit an immunity
to cover only negligence, it has unambiguously
done so. Since the legislature
omitted such a limitation from the plain
language of section 2-201, then the legislature
must have intended to immunize
liability for both negligence and willful
and wanton misconduct. Cases holding
to the contrary are overruled on this
In short, Doe v. Calumet, 161 Ill.2d 374, 204 1ll.Dec. 274, 641 N.E.2d 498
(1994) and other cases cited by Regalado that read a willful and wanton
conduct exception into Act § 4-102 are no longer good law.*fn11
Even if that were not so — even if Act § 4-102 were read to
provide absolute immunity for all "police protection services" —
defendants would still have to surmount the hurdle of bringing the
failure to provide medical care, in the circumstances of this case, under
that rubric. And at a minimum defendants' ability to do so must be viewed
as highly problematic.
Illinois cases interpreting "police protection services" have found
that activities such as traffic control, roadway safety and crime
prevention fall within that category (see Dockery v. Village of
Steeleville, 200 Ill. App.3d 926, 146 lIIDec. 486, 558 N.E.2d 449 (5th
Dist. 1990); Goebig v. City of Chicago, 188 Ill. App.3d 614, 136
Ill.Dec. 339, 544 N.E.2d 1114 (1st Dist. 1989); In re Estate of
Vasconcelles, 170 Ill. App.3d 404, 120 Ill.Dec. 690, 524 N.E.2d 720 (4th
Dist. 1988); Kavanaugh v. Midwest Club, Inc., 164 Ill. App.3d 213, 115
Ill.Dec. 245, 517 N.E.2d 656 (2d Dist. 1987); Lemenager v. Fitzgerald,
1 Ill. App.3d 803, 274 N.E.2d 913 (3d Dist. 1971)). But it has never been
determined that Act § 4-102 goes beyond what are traditionally viewed
as police functions to encompass conduct such as a police officer's
failure to provide medical care. Both a single Illinois case and the
language of Act § 4-105 are instructive on that point.
Towner v. Board of Educ., 275 Ill. App.3d 1024, 212 Ill.Dec. 333,
657 N.E.2d 28 (1st Dist. 1995) involved a student's suit against school
officials for failing to prevent an injury that resulted from a fight on
school grounds. While finding that the charged conduct fell within Act
§ 4-102's immunity provision because it involved the school's failure
to supervise, to provide protection and to prevent crime, Towner, id. at
1028-29, 212 Ill.Dec, 333, 657 N.E.2d at 32 clearly implied that it might
have been a different case had plaintiff shown (rather than merely
asserting) that he was injured by a willful and wanton failure to provide
medical care. Instead of rejecting that contention outright in statutory
immunity terms, the court said (id.):
Under the circumstances, the basic facts
appearing in the record plainly establish
without reasonable doubt that the Act is
applicable to this case with regard to all
defendants. It applies to defendant,
Board of Education of the City of Chicago,
as a local public entity, and defendants,
Brister, Harris, and Crayton, as
public employees. See 745 ILCS 10/3-108
(West 1992). In an apparent attempt
to circumvent the imposition of
the Act, plaintiff contends that he was
injured because the defendants wilfully
and wantonly failed to obtain medical or
other emergency assistance for him after
he was hit with the golf club. This
contention, however, is not supported by
the record as a matter of law.
What then followed was a detailed examination of the evidence regarding
the medical care issue, rejecting plaintiff's position only on a lack of
proof basis. Indeed, the
court's analysis of the claim, in much the same terms that the federal
courts apply to like Section 1983 claims, buttresses the notion that the
"police protection" label simply does not fit.
Some further support for the proposition that the Illinois General
Assembly viewed the provision of medical care as being different from
general police protection services is found by comparing Act §§ 4-105
and 4-102. If medical care were simply included within police
protection, there would appear to have been no need to enact a specialized
immunity provision conferring immunity for the failure to provide medical
care for persons in custody — for Act § 4-102 would have
sufficed for that purpose all by itself. And importantly, Act § 4-105
does not immunize willful and wanton failures to provide such medical
In summary, this Court's view is that Regalado's claim does not fall
within the ambit of Act § 4-102,*fn12 but would instead be a
candidate for Act § 2-202 or § 4-105 immunity, except that each
of those sections includes a willful and wanton conduct exception.*fn13
Therefore, defendants are not entitled to immunity under the Tort
Immunity Act and their motion for summary judgment on Regalado's state
claim for failure to provide medical care is denied.
Dr. Ehle's Testimony and the Causation Issue
All defendants argue that Regalado's expert Dr. Ehle should be barred
from testifying as to causation because his testimony cannot survive
Daubert analysis (Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113
S.Ct. 2786, 125 L.Ed.2d 469 (1993), as very recently refined by Kumho
Tire Co. v. Carmichael, ___ U.S. ___, 119 S.Ct. 1167, ___ L.Ed.2d ___
(1999)). That in turn is said to compel summary judgment rejecting
Regalado's claims, because without Dr. Ehle's testimony Regalado cannot
prove proximate causation between Officers' actions and his injuries.
Dr. Ehle is a board certified neurologist at Northwestern University
where he is Professor of Neurology, Vice Chairman of the Neurology
Department and director of the Neurology Residence Program. Dr. Ehle
treats patients with brain injuries regularly, has published articles in
the fields of neurology and neurophysiology and has additional training
and qualifications in clinical neurophysiology (R. 12(N) ¶ 52-53).
Understandably, D.R.Mem. 33 acknowledges that "[d]efendants do not
quarrel with Dr. Ehle's qualifications, the formal procedures by which he
arrived at his medical conclusions, or even the substance of these
conclusions themselves." What they "do in fact challenge is Dr. Ehle's
ability to testify as [to] what trauma caused Plaintiffs vertebral artery
to dissect" (id. at 33-34).
Before this opinion examines the issue in Daubert terms, it is useful
to rehearse what Dr. Ehle has said in his deposition, and will presumably
say at trial if given the chance to testify, about the cause of
Regalado's brain injuries. Based on Regalado's neurologic examination,
the evolution of his CAT scans and the findings of the arteriogram test,
Dr. Ehle concluded that Regalado suffered a brainstem stroke (R. 12(N)
¶ 54-55). After ruling out other
potential causes for such a stroke (for example, congenital heart disease)
based on Regalado's medical history, Dr. Ehle testified that to a
reasonable degree of medical certainty he had narrowed the field down to
only one possible cause — vertebral artery dissection caused by
trauma (Dr. Ebb Dep. 109-13). That dissection occurred, according to Dr.
Ehle (id. at 60), after a trauma "that basically caused motion of the
head in relationship to the trunk that put sufficient stress or tension
on one or both vertebral arteries."
Of course Dr. Ehle had not been with Regalado in the days leading up to
the stroke, so he could not testify to what trauma in particular caused
the vertebral artery dissection (D.12(M) ¶ 49). But Dr. Ehle did
testify to a reasonable degree of medical certainty that a strike or
strikes to the head (such as the blows administered by Garcia) could have
caused the injury, particularly given the fact that the blows were
quickly followed by Regalado's losing consciousness (Dr. Ehle Dep.
166-67). Dr. Ehle also testified to a reasonable degree of medical
certainty that if Regalado had been treated earlier, it would have
lessened the degree of his neurologic outcome (id. at 126).*fn14
Other possible sources of trauma were not completely ruled out by Dr.
Ehle.*fn15 Nor did he give a pinpoint time for the trauma that he
concluded had caused Regalado's stroke, although he did narrow down the
time frame to no more than one week before the onset of stroke symptoms
(D.12(M) ¶ 50). But the jury can consider Regalado's activities in
the days leading up to his stroke and determine whether any such other
possible incidents actually occurred, thus enabling it to reach a reasoned
decision as to whether Regalado has sustained his burden of proving that
Garcia's actions proximately caused his injuries.
Fed.R.Evid. ("Evid.Rule") 702 governs the admissibility of expert
testimony in federal courts:
If scientific, technical, or other specialized
knowledge will assist the trier of
fact to understand the evidence or to
determine a fact in issue, a witness qualified
as an expert by knowledge, skill,
experience, training, or education, may
testify thereto in the form of an opinion
Daubert, 509 U.S. at 589, 113 S.Ct. 2786 interprets Evid. Rule 702 in the
context of scientific evidence (a reading left intact by Kumho Tire) as
requiring the trial judge to "ensure that any and all scientific
testimony or evidence admitted is not only relevant, but reliable." That
category of proffered expert testimony "must be derived by the scientific
method," and it must also "fit" the case, in the sense that it will
assist the trier of fact in understanding the issues (id. at 590-91).
Wintz v. Northrop Co., 110 F.3d 508, 512 (7th Cir. 1997) (citations and
quotation marks omitted) has fleshed out the Daubert-dictated inquiry
into the admissibility of proffered expert testimony:
First, the district court must consider
whether the testimony has been subjected
to the scientific method; it must rule
out subjective belief or unsupported
speculation. Second, the district court
must determine whether the evidence or
testimony assists the trier of fact in
understanding the evidence or in determining
a fact in issue.
It takes only a brief run-through to see that those standards are readily
To begin with, defendants offer nothing to suggest that Dr. Ehle's
testimony has not been subjected to the scientific method. Certainly his
inability to specify exactly what trauma caused Regalado's
stroke does not render the rest of Dr. Ehle's testimony either
"subjective belief or unsupported speculation." And it is equally certain
that his testimony could assist the trier of fact in determining what
caused Regalado's stroke, even if it does not provide every link in the
chain. In that respect it will surely help the jurors to learn, if they
credit Dr. Ehle's testimony, that Regalado's stroke resulted from trauma
that could consist of his having been struck on the head by a police
officer. Thus it would not at all "confuse and mislead the jurors," as
D.Mem. 26 suggests, to allow that expert testimony.*fn16
In sum, reasonable jurors could determine from Dr. Ehle's testimony
that Regalado's stroke resulted from a trauma like the one inflicted by
Garcia. Reasonable jurors could also determine from the testimony of
other witnesses that Regalado had experienced no other such trauma,
leading to the reasonable inference that his injuries were more likely
than not to have been caused by Garcia's actions. Because a genuine issue
of material fact thus exists as to whether Garcia's conduct was a
proximate cause of Regalado's injuries, defendants' summary judgment
motion on causation is denied.
Defendants' entire summary judgment motion, with the exception of the
portion regarding Regalado's assault and battery claim against Acevedo, is
denied. Regalado's Section 1983 claims of excessive force and failure to
provide medical care, along with his state law claim for failure to
provide medical care, will proceed to trial. Dr. Ehle's testimony as to
causation will also be admitted at trial.
There is only one exception to the failure of defendants' motion.
Because there is no genuine issue of material fact as to Regalado's
assault and battery claim against Acevedo, Acevedo is entitled to a
judgment as a matter of law as to that claim. It is dismissed with