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Dereak v. Don Mattox Trucking

October 30, 2007

MARK DEREAK AND MELINDA DEREAK, PLAINTIFFS,
v.
DON MATTOX TRUCKING, LLC, DEFENDANT.



The opinion of the court was delivered by: David G. Bernthal U.S. Magistrate Judge

ORDER

In March 2006, Plaintiffs Mark and Melinda Dereak filed a complaint in the Circuit Court for Macon County, Illinois, against Defendant Don Mattox Trucking, LLC. In May 2006, Plaintiffs amended their complaint. (First Amended Complaint at Law, #1, pp. 9-14.) In June 2006, Defendant removed the case to federal court based on diversity pursuant to 28 U.S.C. § 1332. (Notice of Removal, #1.) In September 2006, Defendant filed a Third-Party Complaint against Wal-Mart Associates, Inc. (#10). The parties have consented to the exercise of jurisdiction by a United States Magistrate Judge.

In August 2007, Defendant filed a Motion To Preclude Plaintiffs' [(sic)] from Offering Medical Expert or Opinion Testimony (#37). After considering the parties' pleadings and memoranda, this Court DENIES Defendant's Motion To Preclude Plaintiffs' [(sic)] from Offering Medical Expert or Opinion Testimony (#37).

I. Background

A. Factual Background

The following background is based on the complaint. Plaintiff Mark Dereak worked for Wal-Mart. On March 26, 2005, Mark Dereak was unloading a semi-tractor trailer truck operated by Defendant. The truck pulled away from the loading dock while Mark Dereak was inside the trailer in the process of unloading. When the truck pulled out, it caused Mark Dereak to fall from the trailer to the concrete and he was injured as a result.

Plaintiffs' amended complaint alleges three counts, as follows: (1) in Count I, Plaintiff Mark Dereak alleges that Defendant acted negligently during the unloading of the truck; (2) in Count II, Defendant Melinda Dereak alleges loss of consortium; and (3) in Count III, Mark Dereak alleges that Defendant acted recklessly during the unloading of the truck.

B. Procedural Background

In May 2006, when this case was in state court, Defendant tendered interrogatories to Plaintiffs. Defendant's interrogatories included question 26, "Pursuant to Illinois Supreme Court Rule 213(f), provide the name and address of each witness who will testify at trial and state the subject of each witness' testimony" (#37-2, p. 13), and question 27, "Pursuant to Illinois Supreme Court Rule 213(g), provide the name and address of each opinion witness who will offer any testimony . . ." (#37-2, p. 18). Question 27 also asked for the subject matter of each witness's testimony, the conclusions and/or opinions of the opinion witnesses and the basis for those conclusions, the qualifications of each opinion witness, and the identity of any written reports of opinion witnesses.

According to Defendant's memorandum, Plaintiffs filed Mark Dereak's Answers to Defendant's Interrogatories and Requests for Production (#37-2) in the Macon County Circuit Court on June 16, 2006. Plaintiffs responded to Defendant's request for disclosure of witnesses pursuant to Illinois Supreme Court Rule 213(f), which provides as follows:

(f) Identity and Testimony of Witnesses. Upon written interrogatory, a party must furnish the identities and addresses of witnesses who will testify at trial and must provide the following information:

(1) Lay Witnesses. A "lay witness" is a person giving only fact or lay opinion testimony. For each lay witness, the party must identify the subjects on which the witness will testify. An answer is sufficient if it gives reasonable notice of the testimony, taking into account the limitations on the party's knowledge of the facts known by and opinions held by the witness.

(2) Independent Expert Witnesses. An "independent expert witness" is a person giving expert testimony who is not the party, the party's current employee, or the party's retained expert. For each independent expert witness, the party must identify the subjects on which the witness will testify and the opinions the party expects to elicit. An answer is sufficient if it gives reasonable notice of the testimony, taking into account the limitations on the party's knowledge of the facts known by and opinions held by the witness.

(3) Controlled Expert Witnesses. A "controlled expert witness" is a person giving expert testimony who is the party, the party's current employee, or the party's retained expert. For each controlled expert witness, the party must identify:

(i) the subject matter on which the witness will testify; (ii) the conclusions and opinions of the witness and the bases therefor; (iii) the qualifications of the witness; and (iv) any ...


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