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June 7, 2002


The opinion of the court was delivered by: Elaine E. Buchklo, United Stated District Judge:


Deborah Threlkeld was arrested and taken to the hospital against her will on June 13, 1998. She sues Chicago Police Officers Silk Williams and Ramona Wilson for excessive force and unlawful detention under 42 U.S.C. § 1983,*fn1 and brings various state law claims against White Castle Systems, Inc., Andre Tillman, Dr. Alphonso Bello, and Jackson Park Hospital. The parties collectively filed fifty motions in limine, which I consider here.

I. Defendants Jackson Park Hospital and Dr. Bello*fn2

Defendant Jackson Park Hospital's ("Jackson Park") motions in limine numbers 1, 2, 3, 4, 5, 6, 7, 8, 9, and 11 are granted as unopposed. I consider the remaining motions.

(10) Jackson Park moves to bar Ms. Threlkeld from offering any opinion testimony at trial because she did not file any expert witness disclosures. Ms. Threlkeld responds that Rule 26 only requires disclosure of "retained experts," and argues that she can offer opinion testimony from Drs. Kerman, Luzarevic and Bello without disclosing them. But the limitation to "retained" experts runs only to the requirement of a written report under Rule 26(a)(2)(B). Rule 26(a)(2)(A) requires disclosure of "any person" who will offer testimony as an expert under Evidence Rules 702, 703 or 705. These disclosures must be made at least 90 days before trial, see Rule 26(a)(2)(C), or the testimony may be excluded, see Rule 37(c)(1).

However, lay witnesses may offer opinion testimony without regard to 26(a)(2) if the testimony is

(a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Eed. R. Evid. 701. Because the parties do not identify the substance of the doctors' opinions, I cannot now determine whether they fall within the scope of Rule 701 or 702, so the motion is denied without prejudice.

(12) Jackson Park also moves to bar any opinion testimony that was not provided in depositions in this case. Again, the parties fail to distinguish between expert and lay opinions, or provide the substance of the disputed opinions. The motion is granted as to any Rule 702 expert opinions that ought to have been disclosed, but denied as to any Rule 701 lay opinions.

(13) Jackson Park argues that the Illinois Mental Health Code is inapplicable to this case, and moves that any reference to it or instructions mentioning it be barred. I held on Jackson Park's motion to dismiss that Ms. Threlkeld stated a claim for negligence based on alleged violations of the Illinois Mental Health and Developmental Disabilities Code, 405 ILCS 5/1-100, et seq. ("the Code"). Jackson Park raises several arguments, some old and some new, about why the Code should not apply here. I reject them all.

First, Jackson Park argues that the Code is inapplicable because Ms. Threlkeld was only treated in the emergency room, and its emergency room is not a "mental health facility" under § 1-114. One Illinois court, construing sections of Chapter 3, Article VI of the Code, which covers involuntary admission to a mental health facility, has held that under § 1-114, only the sections or units of a hospital devoted to treatment of mentally ill patients, and not the rest of the hospital or the emergency room, "are mental health facilities for the purposes of the involuntary admission provisions of the Code." In the Matter of Moore, 704 N.E.2d 442, 446 (Ill.App. Ct. 1998). But Ms. Threlkeld's negligence claim arises out of alleged violations of Chapter 2, Article I, which establishes the rights of a "recipient of services." See § 2-100. A "recipient of services" is defined as "a person who has received or is receiving treatment or habilitation." § 1-123. Neither "treatment" nor "habilitation" is limited to services provided by a mental health facility. See §§ 1-111, 1-128 (definitions say "may include, but is not limited to" certain services provided by a developmental disabilities or mental health facility); cf. § 1-112 (defining hospitalization exclusively as treatment by a mental health facility). Because her claims arise under §§ 2-102 and 2-107(a), and not under the involuntary admission provisions of Chapter 3, Article VI, Moore does not apply.

Next, Jackson Park argues that the Code should not set the standard of care. Under Illinois law, "the violation of a statute or ordinance designed for the protection of human life or property is [p]rima facie evidence of negligence." Davis v. Marathon Oil Co., 356 N.E.2d 93, 97 (Ill. 1976). I resolved this question as a matter of law on Jackson Park's motion to dismiss, see Threlkeld v. White Castle Sys., Inc., 127 F. Supp.2d 996, 989 (N.D. Ill. 2001), but Jackson Park reargues the point, claiming that the Code is not designed to protect human life or property, but only the due process liberty interests of patients of mental health or developmental disabilities. The cases cited by Jackson Park do not address the question of whether the Code is a "public safety" statute that sets the standard of care for a negligence claim, and these cases anyhow relate only to involuntary admission under Chapter 3, which is not at issue here. The Illinois courts have not considered whether the Code is the type of public safety statute that sets a standard of care, but I predict that they would. Looking at the statute as a whole, it is a comprehensive mental health statute, which provides for humane treatment of the mentally ill and developmentally disabled. But the Code also provides public protection for the non-mentally ill. These purposes are two sides of the same coin. On one hand, it has the purpose of protecting the public from potential harm by people who are mentally ill by allowing certain involuntary treatments. However, it also ensure that people who are not a danger to the public are protected from unwanted and potentially harmful medical or psychiatric treatment. Ms. Threlkeld belongs to the latter class of beneficiaries. As a separate consideration, it would be unfair to allow Jackson Park to have treated Ms. Threlkeld as mentally ill under the Code, but now claim that she is not entitled to the protections of the Code because she says she is not mentally ill.

services reasonably calculated to result in a significant improvement of the condition of a recipient of services confined in an inpatient mental health facility so that he or she may be released or services reasonably calculated to prevent further decline in the clinical condition of a recipient of ...

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