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Paine v. Johnson

February 25, 2010

KATHLEEN PAINE, AS GUARDIAN OF THE ESTATE OF CHRISTINA ROSE EILMAN, A DISABLED PERSON, PLAINTIFF,
v.
OFFICER JEFFREY JOHNSON, OFFICER, RICHARD CASON, OFFICER ROSENDO MORENO, LIEUTENANT CARSON EARNEST, SERGEANT DAVID BERGLIND, DETENTION AIDE SHARON STOKES, OFFICER TERESA WILLIAMS, DETENTION AIDE CYNTHIA HUDSON, DETENTION AIDE CATONIA QUINN, OFFICER DEBORAH MABERY, OFFICER PAMELA SMITH, OFFICER BENITA MILLER, OFFICER PAULINE HEARD, AND CITY OF CHICAGO, A MUNICIPAL CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Kathleen Paine ("Paine"), as Guardian of the Estate of Christina Rose Eilman ("Eilman"), filed this suit against the City of Chicago and various members of the Chicago Police Department (collectively, "Defendants"), alleging violations of Eilman's constitutional rights and violations of federal and Illinois law. As more fully set forth in this Court's Memorandum Opinion and Order dated February 25, 2010, Paine brings this suit on behalf of Eilman, her daughter, for injuries that Eilman incurred after the Chicago Police Department released her from custody. Paine has now moved to exclude all or parts of the proposed testimony of eight expert witnesses. Defendants have moved to exclude all or parts of the proposed testimony of seven expert witnesses. The Court held a hearing to examine the scope and admissibility of the testimony. For the reasons set forth herein, Defendants' Omnibus Motion to Exclude Certain Expert Testimony is granted in part and denied in part as to the testimony of Dr. Randall Epperson.

STANDARD OF REVIEW

The admissibility of expert testimony is governed by Federal Rule of Evidence 702 ("Rule 702") and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) and its progeny. See Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007). Rule 702 states: "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." The Seventh Circuit has developed a three-step admissibility analysis for expert testimony under Rule 702 and Daubert. See Ervin, 492 F.3d at 904. First, "the witness must be qualified 'as an expert by knowledge, skill, experience, training, or education.'" Id. (quoting Fed.R.Evid. 702). Second, "the expert's reasoning or methodology underlying the testimony must be scientifically reliable." Id. (citing Daubert, 509 U.S. at 592-93). Courts are, however, granted "broad latitude when [they] decide[] how to determine reliability." Kumho Tire Co. v. Carmichael, 526 U.S 137, 142 (1999). Finally, the expert's testimony must be relevant, or "assist the trier of fact to understand the evidence or to determine a fact in issue." Ervin, 492 F.3d at 904.

DISCUSSION

I. Defendants' Motion to Bar the Expert Testimony of Dr. Randall Epperson

Dr. Randall Epperson ("Epperson") is a neuropsychologist who reviewed Eilman's medical records and conducted a lengthy in-person evaluation of her in June 2008. He opines that Eilman's continuing neuropsychological problems "stem from her severe brain injury" sustained in Chicago, and that it is unlikely that Eilman will be able to "accommodate herself to treatment" for her bipolar disorder or that she will be "competitively employable in the future." (R. 574, Ex. A, Expert Report for Dr. Randall Epperson, at 34-35.) (hereinafter "Epperson Rep.") In a supplemental report, Epperson reviewed additional medical records and clarified his opinion that Eilman will be unable to "competitively work, finish her academic degree, or live independently in the foreseeable future."

(R. 574, Ex. B, Supplemental Report of Dr. Randall Epperson, at 8-9.) (hereinafter "Epperson Supp. Rep.").

Defendants challenge Epperson's opinion that Eilman will be unable to competitively work or live independently as unfounded in particular facts or data and not within his professional expertise, and challenge his assumption that Eilman would have completed her bachelor's degree but for the accident in Chicago as speculative.

A. Qualifications

Defendants do not contest Epperson's qualifications to testify as an expert in the field of neuropsychology. His Curriculum Vitae shows that he has a Ph.D. in clinical psychology and nearly three decades of academic and clinical specialization in the field of neuropsychology. (See R. 602, Ex. C, Curriculum Vitae of Dr. Randall Epperson.) (hereinafter "Epperson C.V.") The Court therefore finds him qualified by education and experience to testify as an expert in the field of neuropsychology. See Reilly v. Blue Cross & Blue Shield United of Wisc., 846 F.2d 416, 421 (7th Cir. 1988) (reviewing experts' curricula vitae in order to support an unchallenged finding that the experts were qualified in their fields).

Defendants do argue, however, that Epperson lacks experience or training in the fields of vocational and rehabilitation therapy, and is thus unqualified to opine as to whether Eilman will eventually be able to live independently or hold a job. Epperson testified at deposition that the core of his practice involves working with other specialists to evaluate patients who have experience brain injury or trauma, and to work with rehabilitation teams to design programs in order to restore patients' functionality. (See R. 602, Ex. B., Deposition Testimony of Dr. Randall Epperson, at 7-8.) (hereinafter "Epperson Dep.") During the Court's hearing on this motion, Epperson testified that he has been licensed as a qualified medical evaluator for the State of California since 1992, in which capacity he evaluates individuals' capacity to return to their previous jobs or to train into other available jobs. (See Mot. Hr'g Trans., Randall Epperson, at 22, Feb. 2, 2010) (hereinafter "Hr'g Trans.") He explained that he has specialized training in determining whether an individual is able to return to work and to determine that types of work that a person can do. (See Hr'g Trans. at 22-23.) Moreover, he frequently evaluates the capacity of an individual who has suffered a traumatic brain injury to return to work, and has done so for sixteen years. (See Hr'g Trans. at 22-23.) Therefore, the Court finds that Epperson is qualified by virtue of his experience in this area to offer opinions as to the consequences of traumatic brain injury for a person's ability to work or live independently.

B. Methodology

Defendants also argue that Epperson's opinions as to Eilman's prospective inability to work and live independently are without sufficient support and not reached through any accepted scientific method. This opinion, disclosed in Epperson's initial report but elaborated upon in his supplemental report, appears to be founded on Epperson's own evaluation of Eilman as well as upon his review of her medical records. For example, Epperson's supplemental report notes the testimony of one of Eilman's treating physicians that Eilman would be permanently impaired from engaging in advanced schools or seeking employment. (See Epperson Supp. Rep. at 7.) In his own evaluation of Eilman, Epperson noted that her current IQ is in the low average range (See Epperson Rep. at 20), that her reading comprehension was below the high school graduate level (See Epperson Rep. at 24), and that ...


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