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Krischel v. Hennessy

February 6, 2008


The opinion of the court was delivered by: Geraldine Soat Brown United States Magistrate Judge

Judge John F. Grady Magistrate

Judge Geraldine Soat Brown


Before the court is Defendants' Motion to Strike (or Compel) Expert Reports ("Def.'s Mot."). [Dkt 73.] For the reasons set out below, the motion is granted. No later than February 20, 2008, plaintiff Linda Krischel shall serve complete reports from Dr. Malek and Dr. DePhillips containing all the elements required by Rule 26(a)(2)(B). If Krischel fails to serve complete reports by that day, any testimony by Dr. Malek or Dr. DePhillips shall not include an opinion as to whether Defendants' actions in January 2005 that are the subject of the lawsuit were the cause of Krischel's medical condition for which those doctors treated her in 2007.


In this action brought under 42 U.S.C. § 1983 and state law, plaintiff Linda Krischel alleges that on January 25, 2005, she was arrested without probable cause by Chicago police officers ("Defendants") who used excessive force in arresting her. (Compl.) [Dkt 1.] Specifically, Krischel alleges that Defendants' use of force included "grabbing her and forcefully swinging her around and throwing her to the ground and smashing her face and head into the floor and tightly grabbing her arms." (Id. ¶ 14.) As a result, Krischel alleges, she suffered and continues to suffer physical and emotional pain, some or all of which may be permanent. (Id. ¶ 15.)

The case was referred to this court for discovery supervision. [Dkt 39.] At the initial hearing before this court on September 21, 2007, the court reminded all counsel of the Seventh Circuit's opinion in Musser v Gentiva Health Servs., 356 F.3d 751 (7th Cir. 2004), and advised counsel to review this court's Standing Order for Expert Disclosure and Discovery. See (last accessed January 30, 2008). The parties were also advised that discovery deadlines would be set at the next hearing.

On September 27, 2007, a discovery schedule was set. [Dkt 44.] Fact discovery, except the depositions of treating professionals, was ordered to be completed by October 31, 2007, Krischel was ordered to serve any Rule 26(a)(2) disclosures and reports by November 7, 2007, and the depositions of Krischel's experts were to be completed by December 5, 2007. (Id.) Also, Defendants' motion to compel discovery [dkt 37] was granted, and Krischel was ordered to produce all documents responsive to Defendants' second set of document requests by October 11, 2007. (Id.) Among the documents Krischel was required to produce were all medical records, reports, and other data pertaining to Krischel's physical and medical condition prior and subsequent to the alleged occurrence, including the injuries sustained. (Defs.' Mot. Compel, Ex. A, Request for Produc. 3.) [Dkt 37.]

On November 7, 2007, Krischel filed a motion for extension of time for her expert reports under Rule 26(a)(2)(B). [Dkt 57.] In that motion, Krischel stated that she had "filed timely disclosures for each of her treating physicians pursuant to Rule 26(a)(2)(B) and attached written reports from the two most recent treating physicians, Michael [sic] Malek MD and George E. DePhillips MD . . . ." (Id. ¶ 2 (emphasis added).) Defendants opposed the extension, stating that Krischel had served a Rule 26 disclosure but had not served any expert reports. (Defs.' Resp. at 2.) [Dkt 64.]

Defendants were correct that Krischel had not served any expert reports. In her expert disclosure, Krischel listed six doctors who might give expert testimony. (Defs.' Resp., Ex. B, "Expert Disclosure".) Krischel disclosed Drs. Eugene Muzykansky, Laura Sanders, Mark Kuzucu, and Madhaviah Singa as treating physicians. ( Id. at 1-2.) Additionally, Drs. Malek and DePhillips were disclosed as treating physicians who would also testify as to opinions on "causation, prognosis, and future condition, as provided in a written report pursuant to Rule 26(a)(2)(b)." (Id. at 3.) Over Defendants' objection, Krischel's motion was granted, and the time for her to serve Rule 26(a)(2) reports was extended until November 30, 2007. [Dkt 67.]

On December 18, 2007, Defendants filed the present motion, stating that no expert reports had yet been served. (Defs.' Mot. at ¶ 4.) At the initial hearing on the motion, Krischel's attorney said that she thought that Dr. Malek's report had been mailed to Defendants' attorney by the doctor's office, and that she (Krischel's counsel) would get it to Defendants' counsel that day, December 21, 2007. The motion was continued to allow Defendants time to review the report. Defendants subsequently filed a supplemental memorandum ("Defs.' Suppl. Mem." [dkt 78]), attaching a copy of Dr. Malek's report ("Malek Report") and complaining of the lateness and inadequacy of that Report. Apparently, Krischel has never tendered any report by Dr. DePhillips. Defendants now request that the court strike the Malek Report and bar Krischel from presenting any expert testimony. (Defs.' Suppl. Mem. at 7.) Krischel filed a response to the motion ("Pl.'s Resp." [dkt 80]), and Defendants filed a reply in support of their motion ("Defs.' Reply" [dkt 82].)


A. Dr. Malek's Treatment of Krischel, his Proposed Testimony, and his Report

Dr. Malek's initial consultation with Krischel was on July 27, 2007. (Malek Report at 1.) That was two-and-a-half years after Krischel's arrest and Defendants' alleged actions. Dr. Malek and Dr. DePhillips performed anterior cervical discectomy and ...

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