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Ault v. Speicher

March 25, 2009


The opinion of the court was delivered by: Herndon, Chief Judge



Pending before the Court is a Motion for Summary Judgment (Doc. 48), filed by defendant Leslie A. Speicher ("Speicher" or "Defendant"), a Motion for Summary Judgment (Doc. 56), filed by plaintiff Dana Ault ("Ault" or "Plaintiff"), as well as Defendant's Motion to Strike Plaintiff's Exhibits 8 and 12 and References to the Opinion of Professor Kennedy From Plaintiff's Motion for Summary Judgment (Doc. 62), and Defendant's Motion to Strike Plaintiff's Exhibit 1 and References to the Opinion of Professor Kennedy From Plaintiff's Response to Defendant's Motion for Summary Judgment (Doc. 65). All four Motions have been fully briefed by the Parties and are now ripe for ruling.

Both of Defendant's Motions to Strike (Docs. 62 & 65) deal with Plaintiff's expert witness, Professor Daniel B. Kennedy. In both Motions, Defendant argues Professor Kennedy's opinion is not admissible evidence for several reasons and therefore, any direct references to his opinion, including any of Plaintiff's exhibits which reference or relate to his opinion, should be stricken from the record and not considered by the Court in deciding the pending summary judgment motions.

Plaintiff has filed suit against Defendant in her individual capacity. Plaintiff is a mother of four children. Defendant is a caseworker for the Illinois Department of Children and Family Services ("DCFS"). Plaintiff's Amended Complaint (Doc. 20) states a cause of action against Defendant pursuant to 42 U.S.C. § 1983, alleging a violation of her substantive due process rights to her "freedom of choice and privacy concerning the care, companionship, upbringing, and nurture of her four minor children," all in violation of the First, Ninth and Fourteenth Amendments of the United States Constitution (Doc. 20 - Amended Comp.).

For the reasons discussed herein, the Court finds good cause to strike Plaintiff's references to the opinion of Professor Kennedy from Plaintiff's summary judgment pleadings, as well as any related exhibits referencing the Professor's opinion (i.e., Exhibits 1, 8 and 12). Further, the Court grants Defendant's Motion for Summary Judgment and therefore must deny Plaintiff's Motion for Summary Judgment.


Plaintiff is the mother of four children, S.Y., K.Y., C.M. and T.M., who are all minors. Defendant is employed by Illinois DCFS as a Child Welfare Specialist, serving as a caseworker assigned to coordinate and provide services for families in need. S.Y. and K.Y. are Plaintiff's children born during her first marriage and C.M. and T.M. are her children born during her second marriage. At the time of the incident, Plaintiff had since divorced her second husband and was in a relationship with Eric Ogle ("Ogle").*fn1

On September 1, 2004, the DCFS hotline received an anonymousreport of suspected physical child abuse of Plaintiff's four-year old child, T.M. At the time, Plaintiff and her four children were living with Ogle. DCFS commenced an investigation regarding the suspected abuse. Due to DCFS's involvement, Plaintiff chose to have all four children reside with her mother and step-father, Teresa and Tommy Samsil ("the Samsils"), rather than risk having her children placed into foster care. On September 2, 2004, DCFS created a "safety plan," to which Plaintiff agreed. Among other conditions, the safety plan included the arrangement for Plaintiff's children to continue residing with the Samsils. The safety plan expired on September 16, 2004 (after the investigation was completed).

The investigator assigned to Plaintiff's case was Charlotte Gano. During the investigation, the report of suspected child abuse was declared "unfounded" as to Plaintiff, however, Ogle was "indicated" by DCFS for physical child abuse of T.M. The case opened by DCFS regarding Plaintiff's family was an "intact family case," meaning that the family unit remained "intact" and that DCFS did not have any legal relationship with Plaintiff's children (such as having temporary custody or becoming the legal guardian, etc.). After the DCFS investigation was completed, because Ogle was indicated for physically abusing T.M. and because Plaintiff continued to maintain a relationship with Ogle, Defendant was assigned a caseworker for Plaintiff's family in September 2004. Plaintiff agreed to her family's participation in services offered by DCFS. Plaintiff's children continued to reside with their grandparents, the Samsils.

Defendant met with both Plaintiff and Ogle to develop the first service plan. This first service plan was initiated on October 21, 2004, and was to be reviewed on March 31, 2005 (Doc. 49-3, Def.'s Ex. 5 - 1st service plan). Plaintiff and Ogle voluntarily signed the first service plan. The first service plan included the following provisions: (1) Plaintiff's children would continue to reside with the Samsils at least through the 2004-2005 school year to assure their stability and prevent another school transfer; (2) Plaintiff's children would continue to reside with the Samsils at least until such time that all counselors involved agreed that it would not be detrimental to the children's safety for the family to reunite; (3) that Plaintiff and Ogle attend counseling and parenting classes; (4) that Ogle attend substance abuse counseling; (5) that Ogle's contact with Plaintiff's children be supervised; and (6) that Plaintiff's two oldest children, S.Y. and K.Y. attend counseling (Id).

The first service plan included information regarding the service appeal process. In other words, if Plaintiff did not agree with any of the provisions of the service plan, she had the right to appeal it by writing down her disagreement(s) and sending it to Defendant's supervisor. The basic idea behind the service plan was for Defendant to determine whether Plaintiff, Ogle and the children had all substantially complied with the plan's provisions in order to show that services were no longer necessary and DCFS could discontinue its involvement with Plaintiff's family.

In December 2004, criminal charges of domestic battery were filed against Ogle in the Circuit Court of Clark County, Illinois, based on the same allegations of injuries to T.M. which gave rise to the DCFS investigation of Plaintiff's family back in September 2004. In March 2005, the circuit court entered a no-contact order pursuant to these charges, under which Ogle was not to have any contact with Plaintiff's four children. The circuit court dismissed the domestic battery charge against Ogle in May 2005. Thereafter, the State filed a misdemeanor battery charge against Ogle in May 2005, based on the same allegations. In August 2005, the misdemeanor charges against Ogle were dismissed upon the State's motion. Accordingly, the no-contact order entered against him expired upon the dismissal of the charges.

Largely due to the pending criminal charges, the no-contact order entered against Ogle and because Plaintiff continued to maintain her relationship with him, upon the six-month review of the service plan on March 18, 2005, a second service plan was developed containing identical provisions to the first service plan (Doc. 49-5, Def.'s Ex. 8 - second service plan). Both Plaintiff and Ogle signed the second service plan on April 22, 2005 (see Doc. 49-6, Def.'s Ex. 9 - signature page). Upon the six-month review of the second service plan, Defendant created a third service plan on September 21, 2005, which also included the additional provision that Plaintiff attend substance abuse counseling. However, upon advice of counsel, Plaintiff refused to sign the third service plan.

Concurrently, on September 18, 2005, the Clark County State's Attorney filed a Petition for Adjudication of Wardship regarding Plaintiff's children (Doc. 49-4, Def.'s Ex. 6 - Petition). An Amended Petition was then filed on September 22, 2005, alleging that Plaintiff was homeless and unwilling to provide the necessary care and supervision for her four children, that she failed to take appropriate action to protect T.M. after the child was a victim of physical abuse (Doc. 49-4, Def.'s Ex. 7 - Amended Petition). On May 5, 2005, the Court found that the State had failed to prove neglect as to Plaintiff and thus denied the Petition for Adjudication of Wardship. After the wardship proceeding was dismissed, Plaintiff picked up her children, but her eldest, S.Y., chose to remain residing with the Samsils. Plaintiff's three youngest children currently reside with her and Ogle.


A. Defendant's Motions to Strike

Defendant has filed two Motions to Strike (Docs. 62 & 65), both dealing with Plaintiff's expert witness, Professor Daniel B. Kennedy ("Kennedy"). Kennedy is a law professor at the University of Illinois School of Law. He is also a licensed attorney who has litigated a number of juvenile abuse and neglect cases. Plaintiff offers Kennedy's opinion due to his knowledge and experience with the various Illinois laws and regulations governing DCFS workers (Doc. 69). Specifically, Defendant moves to strike any references made by Plaintiff to Kennedy's opinion in her Motion for Summary Judgment (Docs. 56), her Response to Defendant's Motion for Summary Judgment (Doc. 61), as well as Plaintiff's Exhibits 1, 8 and 12, which reference his opinion. Defendant moves pursuant to FEDERAL RULES OF CIVIL PROCEDURE 37 and 56, as well as FEDERAL RULES OF EVIDENCE 702, 801(c) and 802. The Court will deal with each of Defendant's arguments, in turn.

1. The Admissibility of Kennedy's Expert Opinion Under Rule 702 FEDERAL RULE OF CIVIL PROCEDURE 56, which governs summary judgment motions, allows the deciding Court to only consider evidence that would be admissible at trial. Scott v. Edinburg, 346 F.3d 752, 759 (7th Cir. 2003 ) (citation omitted). Defendant argues that Kennedy's expert opinion would not be admissible under FEDERAL RULE OF EVIDENCE 702 and therefore should not be considered by this Court when ruling on the Parties' respective summary judgment motions. Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

FED.R.EVID. 702.

Defendant first argues that Kennedy's opinion does not meet the requirements of Rule 702 because it does not address any of the facts in this case. Rather, Defendant construes the opinion as merely an application of Illinois state law to the facts of the case, to arrive at the conclusion that Defendant violated Plaintiff's constitutional rights (Doc. 63, p. 3). Believing this to be a legal conclusion that only the Court may determine at the summary judgment stage, Defendant believes that Kennedy's opinion amounts to merely a "legal opinion," which thereby "invades the province and authority of the Court..." (Id.). In response, Plaintiff argues that Kennedy's opinion is admissible, believing that under Seventh Circuit law, he should be able to offer his expert opinion, given his family law background, regarding whether Defendant's actions were unauthorized by the various Illinois laws and regulations governing DCFS workers (Doc. 69, pp. 3-4). Rather than stating a legal conclusion, Plaintiff argues that Kennedy's opinion merely identifies the applicable law to make it easier for the Court in analyzing the Parties' arguments, but the Court does not have to consider Kennedy's ultimate opinion.

Generally speaking, opinions offering legal conclusions are not admissible, especially when those opinions provide the outcome of a case. See Good Shepard Manor Foundation, Inc. v. City of Momence, 323 F.3d 557, 564 (7th Cir. 2003) (citing United States v. Sinclair, 74 F.3d 753, 757 n. 1 (7th Cir. 1996)). Plaintiff cites two Seventh Circuit cases which she believes provides authority to find Kennedy's opinion admissible (Doc. 69, p. 3, citing United States v. Davis, 471 F.3d 783 (7th Cir. 2006); United States v. Chube II, 538 F.3d 693 (7th Cir. 2008)). In Davis, the Seventh Circuit upheld the district court's admission of expert testimony from a Medicaid employee regarding reimbursement for mental health services. The Seventh Circuit stated that "[e]xperts are permitted to testify regarding how their government agency applies rules as long as the testimony does not incorrectly state the law or opine on certain ultimate legal issues in the case." Davis, 471 F.3d at 789 (experts may testify as to how they enforce agency regulations and whether certain transactions comply wit agency regulations). In Chube II, the Seventh Circuit again upheld the district court's admission of expert testimony from two doctors regarding (1) that there was no legitimate medical purpose for the ...

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