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DENSON v. NORTHEAST ILLINOIS REGIONAL COMMUTER R.R. CORP.

March 31, 2003

GLORIA DENSON, PLAINTIFF,
v.
NORTHEAST ILLINOIS REGIONAL COMMUTER RAILROAD CORPORATION, D/B/A/ METRA, DEFENDANT.



The opinion of the court was delivered by: William T. Hart, United States District Judge.

MEMORANDUM OPINION AND ORDER

Plaintiff Gloria Denson is a former employee of defendant Northeast Illinois Regional Commuter Railroad Corporation, which does business as Metra. Plaintiff claims that she suffers from an arm and shoulder injury as a result of repetitive stress from her duties at Metra, where she was employed in an office position. Plaintiff's remaining claim is limited to a Federal Employersr Liability Act ("FELA") claim for injuries suffered in August 1999 or thereafter. See Denson v. Northeast Illinois Regional Commuter Railroad Corporation, 2002 WL 15710 *7, 12-13 (N.D.Ill. Jan. 4, 2002) ("Denson II") (ruling on summary judgment), reconsideration denied, 2002 WL 745797 (N.D.Ill. April 26, 2002). The parties previously presented their final pretrial order*fn1 and the case awaits trial. Presently pending are defendant's nine motions in limine.*fn2

Motion in Limine 1

Defendant moves to preclude opinion testimony from three treating physicians of plaintiff on the ground that the opinions were not adequately disclosed in discovery. In response to an interrogatory regarding expert witnesses, plaintiff responded in part:

Plaintiff may call any of the three doctors who provided medical care for her injured shoulder. The substance of their testimony would be consistent with their medical reports issued and which are used as exhibits to plaintiff's deposition. Their opinions as to the nature, extent, duration and cause of the injury, would be as expressed in their respective reports.
Pl. Answer No. 17 to Def. Third Set of Interrogatories. Neither side points to the specific medical records that are referenced. There is, however, no contention that defendant was unable to

understand the references so as to identify the "three doctors"*fn3 and their medical records.

Under the current version of Fed.R.Civ.P. 26(a)(2), a party is required to identify any person who may testify as an expert. Fed.R.Civ.P. 26(a)(2)(A); Graves v. Theil, 2002 WL 31455973 *2 (N.D.Ill. Oct. 31, 2002); Petit v. City of Chicago, 2002 WL 10481 *5 (N.D.Ill. Jan. 3, 2002). As to any witness "who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony," the party must also provide a "written report prepared and signed by the witness." Fed.R.Civ.P. 26(a)(2)(B). There is no indication that any of the three treating physicians from whom plaintiff may elicit expert opinions was retained or specially employed for that purpose. Therefore, the report requirement does not apply for their testimony. See Graves, 2002 WL 31455973 at *2; Hoover v. United States, 2002 WL 1949734 *3-6 (N.D.Ill. Aug. 22, 2002); Petit, 2002 WL 10481 at *5. All that was required was that plaintiff satisfy Rule 26(a)(2)(A) by identifying the doctors as witnesses who will provide expert opinions, which she did.

Motion in limine 1 will be denied.

Motion in Limine 2

Defendant seeks to preclude admission of any lay testimony about plaintiff's condition, including precluding plaintiff from reporting opinions physicians stated to her. This motion lacks specificity. However, plaintiff's response is that she agrees lay opinion testimony cannot go to ultimate facts and only requests that any order be "limited" and "mutual."

The issue is not whether lay opinion testimony is going to ultimate facts. Federal Rule of Evidence 701*fn4 permits lay opinion testimony as long as it is (a) rationally based on the witness's perception, (b) helpful to understanding the witness's testimony or in determining a fact at issue, and (c) not based on scientific, technical, or specialized knowledge. As long as the lay opinion testimony is admissible under Rule 701, it may go to ultimate issues. Fed.R.Evid. 704(a); In re General Instrument Corp. Securities Litigation, 2000 WL 1741937 *3 (N.D.Ill. Nov. 22, 2000). The issue raised by defendant is whether plaintiff may be providing opinion testimony that does not satisfy Rule 701 because it requires expertise.

Defendant's Motion in Limine 2 will be denied without prejudice. The possible testimony is not adequately described and therefore there is not enough information to make a ruling. In addition to the lay opinion rule recited above, the parties should note the following general rules. As long as she does not testify to medical opinions requiring expertise, a witness may testify about her own medical symptoms as she subjectively experienced them. See Mehta v. Council for Jewish Elderly, 1996 WL 272520 *2-3 (N.D. Ill. May 20, 1996). Statements made to a treating physician for purposes of diagnosis or treatment may be admissible. See Fed.R.Evid. 803(4); Gong v. Hirsch, 913 F.2d 1269, 1273-74 (7th Cir. 1990); Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 564 (7th Cir. 1996). However, statements made by the treating physician to the patient generally will not be admissible for the truth of the matter contained therein. See Bombard, 92 F.3d at 564. The treating physician's statements may, however, be admissible for other purposes. If inconsistent with the physician's testimony or other admissible statements of the physician, such statements may be admissible for purposes of impeachment. Cf. Gong, 913 F.2d at 1274. Additionally, there may be issues in this case regarding whether plaintiff properly followed the treatment advice of physicians. Statements that physicians made to plaintiff may be relevant to that issue.

Motion in Limine 3

Defendant moves to exclude evidence that, through insurance, defendant paid plaintiff's medical bills. Plaintiff does not disagree with this motion other than to note that some of her medical expenses were not covered by insurance paid for by defendant. The motion will be granted, but limited to medical ...


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