paresthesia are permanent, and that surgery is not necessary) required him
to rely on medical expertise outside of the lay person s realm of
knowledge, and thus it is expert testimony as defined by Rule 702, so
disclosure is required under Rule 26(a)(2)(A). The recent amendments to
the rules do not appear to have affected the exemption from written
reports under Rule 26(a)(2)(B), so no report was required, but the
plaintiffs did not even minimally disclose Dr. Kramer as an expert on the
issues of prognosis or future treatment as required by Rule 26(a)(2)(A).
Under Rule 37(c)(1), failure to comply with Rule 26(a) means that
Dr. Kramer may be barred from testifying about those matters at trial.
"The sanction of exclusion under Rule 37(c)(1) is `automatic and
mandatory unless the party to be sanctioned can show that its violation
of Rule 26(a) was either justified or harmless.'" Mid-America
Tablewares, Inc. v. Mogi Trading Co., Ltd., 100 F.3d 1353, 1363 (7th
Cir. 1996). The plaintiffs do not attempt to justify the failure, but it
may be harmless depending on what the testimony is. The purpose of Rule
26(a)(2)(A) disclosures is afford opposing parties "a reasonable
opportunity to prepare for effective cross examination and perhaps arrange
for expert testimony from other witnesses' Rule 26(a)(2), 1993 advisory
committee note. Dr. Kramer was disclosed to the defendants as a treating
physician, and the defendants took Dr. Kramer's deposition On November 6,
2000, nearly three and half months before the close of discovery and more
than a year before trial. If Dr. Kramer offered his opinions about Mr.
Brandon's prognosis and need for future treatment at that deposition,
then the failure to file a formal disclosure is harmless; the defendants
had plenty of time after that to retain an opposing expert or seek
further discovery. However, neither party filed a complete copy of Dr.
Kramer's deposition, so I cannot determine whether the opinions were
actually offered at his deposition. If the plaintiffs wish to offer Dr.
Kramer's testimony on this point, they must, within one week of the
issuance of this order, file a copy of the relevant portions of the
deposition. I therefore deny the motion.
3. Unpaid medical bills
The defendants challenge the admission of Mr. Brandon's unpaid medical
bills because, they say, no liens have been filed on them, and they are
speculative and irrelevant. This conclusory argument is not enough to
challenge the reasonableness of the bills, which is the touchstone of
admissibility under Illinois law. See Barreto v. City of Waukegan,
133 Ill. App.3d 119, 88 Ill.Dec. 266, 478 N.E.2d 581, 589 (1985) ("[I]n
order to recover for medical and surgical expenses, it is necessary that
two things be proved: first, that the claimant has paid or become liable
to pay a specific amount, and second, that the charges made were
reasonable charges for services of that nature."). Payment of a bill is
prima facie evidence of the reasonableness of the expense. Id. The
defendants do not even allege, much less come forward with any evidence
to suggest that Mr. Brandon's liability for his medical bills has been
discharged. I will not exclude the bills on that basis.
4. Mr. Parker's injuries and medical treatment
The defendants move to bar any evidence of Mr. Parker's injuries or
medical treatment because I held on summary judgment that "Mr. Parker
claims no physical injury as a result of the officers' actions in
detaining him." 157 F. Supp.2d at 929. However, the question there was
whether there was any evidence of excessive force in the process of
and restraining Mr. Parker. Mr. Parker claims that he suffered a ringing
in his ears from gunshots, and he went to the hospital the day after the
shooting for treatment. Strictly speaking, Mr. Parker's detention is a
but-for cause of the ringing in his ears, but it is not an injury that he
sustained in the process of being pushed to the ground and handcuffed,
which was the question on summary judgment. I did not hold that Mr.
Parker was barred from recovering for his other injuries. The motion is
5. Mr. Brandon's lost income and future medical treatment
The plaintiffs do not respond to the defendants' request to bar
recovery for lost income, so that part of the motion is granted as
unopposed. The defendants argue that Mr. Brandon should not be allowed to
recover for future medical treatment because there is no evidence that he
has been treated since the days after the shooting and there is no
evidence that he will seek future treatment. However, the defendants have
not succeeded in demonstrating that Mr. Brandon's visit to Dr. Kramer in
January 1999 was not "treatment," and Dr. Kramer's evaluation, produced
in discovery, indicates that Mr. Brandon will likely require pain
medication in the future. This is sufficient evidence of the need for
future treatment to overcome the defendants' current objection. The
motion is denied.
The plaintiffs' motions numbers 8, 9, 10, and 16 are GRANTED as
unopposed; their motions numbers 1, 4, 5, 13, and 15 are GRANTED; their
motions numbers 2, 3, 11, 17, and 18 are DENIED; and their motions
numbers 6, 7, and 14 are GRANTED IN PART and DENIED IN PART. The
defendants' motions numbers 1, 2, 6, 7, 9, 11, and 12 are GRANTED as
unopposed; their motions numbers 3, 4, 5, 8, and 10 are DENIED.