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Lorraine K. White v. City of Chicago et al

February 16, 2011

LORRAINE K. WHITE, PLAINTIFF,
v.
CITY OF CHICAGO ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Sheila Finnegan

MEMORANDUM OPINION AND ORDER

Plaintiff Lorraine K. White charges Defendants City of Chicago and Sergeant Cornelius Brown with excessive force in violation of 42 U.S.C. § 1983, and battery in violation of Illinois state law. On May 7, 2010, the parties consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and the case is now set for trial on February 28, 2011. Currently before the Court is Plaintiff's motion to strike the expert reports of Dr. Elizabeth S. Kessler and Dr. Mark J. Steinberg. For the reasons set forth here, the motion is granted in part and denied in part, and both experts will be permitted to testify in this case.

BACKGROUND

On December 14, 2006, Sergeant Brown arrested Plaintiff for attempting to purchase narcotics, a charge Plaintiff denies. Plaintiff claims that after Sergeant Brown placed her in handcuffs, he instructed her to walk up some stairs, slammed her against a wall and caused her face to hit the concrete stairs. Sergeant Brown contends that Plaintiff accidentally fell down in the course of the arrest. In any event, Plaintiff alleges that she sustained multiple injuries as a result of this incident, including pain and swelling to her mouth and jaw, multiple chipped and/or broken teeth, headaches, seizures, back and neck pain, and extreme emotional distress.

Plaintiff initially indicated that she planned to call four medical treaters at trial: (1) Dr. Neal C. Nealis, a dentist; (2) Dr. Kevin Regan, a chiropractor; (3) Dr. Debra Baines, an emergency room physician; and (4) Dr. Robert K. Erickson, a neurologist. Plaintiff subsequently withdrew Dr. Erickson as a witness, and has decided not to call Dr. Nealis for any causation opinion. (Doc. 142, at 3-4). Defendants deposed Dr. Nealis, Dr. Regan and Dr. Erickson, and have now submitted expert reports to challenge Plaintiff's stated injuries. Specifically, Defendants intend to rely on the opinions of neurologist Elizabeth Kessler, M.D., and dental surgeon Mark Steinberg, D.D.S., M.D., F.A.C.S. Plaintiff seeks to strike both reports for failure to comply with the requirements of Federal Rule of Civil Procedure 26(a)(2)(B). She also argues that the stated opinions are irrelevant, conclusory, speculative, and beyond the expert's qualifications, in contravention of Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). The Court agrees with only some of these arguments, as set forth below.

DISCUSSION

I. Rule 26(a)(2)(B)

Plaintiff first asks the Court to strike Dr. Kessler's and Dr. Steinberg's expert reports because neither complied with Rule 26(a)(2)(B). Expert reports submitted under Rule 26(a)(2) must contain certain information, including:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them; (ii) the facts or data considered by the witness in forming them; (iii) any exhibits that will be used to summarize or support them; (iv) the witness's qualifications, including a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case.

FED. R. CIV. P. 26(a)(2)(B). See also Meyers v. National R.R. Passenger Corp., 648 F. Supp. 2d 1032, 1042 (N.D. Ill. 2009), aff'd, 619 F.3d 729 (7th Cir. 2010). "If a party fails to comply with the disclosure and report requirements of Rule 26(a)(2), a district court has the authority to strike the party's expert as a sanction" under Rule 37(c). Eagle Servs. Corp. v. H2O Industrial Servs., Inc., No. 2:02-CV-36-PRC, 2005 WL 5988646, at *4 (N.D. Ind. Sept. 30, 2005) (citing McCloughan v. City of Springfield, 208 F.R.D. 236, 240 (C.D. Ill. 2002)).

Plaintiff notes that when Defendants submitted the expert reports in this case, they did not disclose the compensation being paid to either doctor. In Plaintiff's view, "the prejudice [from this omission] would be incurable" because "it is simply too late and too close to the looming trial date to begin preparing for the taking of expert-witness depositions." (Doc. 142, at 20). Defendants concede that they failed to provide the required compensation statements, but insist that this "was merely an inadvertent oversight." (Doc. 148, at 3). Defendants represent that they have now supplied the missing data, and claim that Plaintiff was not prejudiced from the late disclosure since she did not need the compensation statements to effectively depose the expert witnesses regarding their medical opinions. Plaintiff disagrees, claiming in her reply brief that the real "thrust" of the argument is that "[a]n attorney should not be forced to pay an expert an undisclosed amount of money to take an expert's deposition just so he or she can learn the basis of the expert's opinions." (Doc. 154, at 3).

On the facts presented, the Court declines to strike either expert report for failure to timely produce compensation statements. The delay in receiving this information did not prevent Plaintiff from deposing the experts concerning their opinions. If Plaintiff desired to know in advance how much each expert would charge for time spent in the deposition, she easily could have asked Defendants to inquire about this. Plaintiff's assertion that she opted not to pursue depositions due to these unknown costs rings hollow.

Plaintiff argues that Dr. Steinberg's report should nonetheless be stricken because the proffered list of cases where he testified as an expert is unreliable. The initial report dated December 23, 2010 disclosed two such cases, but was not signed. On December 28, 2010, defense counsel signed a supplemental list disclosing two additional cases. Finally, on January 27, 2011, Dr. Steinberg signed a list with a total of five cases. Plaintiff contends that she "cannot seriously rely on the accuracy" of this list, which justifies striking the entire report. The Court disagrees.

It is undisputed that Dr. Steinberg asked defense counsel to help him identify cases in which he has offered expert testimony. There was nothing improper about this request, as the 1993 Advisory Committee Notes explain that "Rule 26(a)(2)(B) does not preclude counsel from providing assistance to experts in preparing the reports." Defense counsel was arguably remiss, both in compiling the case list and in failing to obtain Dr. Steinberg's signature until January 27, 2011. See Salgado by Salgado v. General Motors Corp., 150 F.3d 735, 741 n.6 (7th Cir. 1998) (expert report "must be signed by the expert."). Regardless, Dr. Steinberg has now "affirm[ed] and sign[ed] the final list of cases disclosed," and there is no evidence that Defendants' actions resulted in any prejudice to Plaintiff. (Doc. 148, at 4; Doc. 148-1). See Jenkins v. Bartlett, 487 F.3d 482, 488 (7th Cir. 2007) (district court properly allowed expert testimony where reports consisted of a letter from counsel, unsigned by the witnesses, summarizing the expected testimony and the basis for that testimony, and the experts subsequently affirmed the contents of the letter by affidavit). Plaintiff's motion to strike Dr. Steinberg's report based on his expert testimony case list is denied.

In a final effort to strike Dr. Steinberg's report on procedural grounds, Plaintiff objects that the report cites to a 2004 X-ray from Northwestern Hospital which Plaintiff never received. Defendants insist that the X-ray has been readily available to Plaintiff's counsel through U.S. Legal Support, Inc. since May 4, 2009. (Doc. 148, at 5; Doc. 148-1, at 10). In addition, on January 6, 2011, Defendants provided Plaintiff with a courtesy copy of the X-ray. Plaintiff's counsel does not have the software to view it, but defense counsel have offered to make the X-ray available for viewing or copying at their offices. (Doc. 148, at 5). The Court finds that Defendants did not violate Rule 26(a)(2)(B) by failing to attach a copy of the 2004 X-ray to Dr. Steinberg's report. McFadden ex rel. McFadden v. Board of Educ. for Illinois Sch. Dist. U-46, No. 05 C 760, 2009 WL 4544670, at *2 (N.D. Ill. Dec. 1, 2009) (quoting 1993 Advisory Committee Notes) (Rule 26(a)(2)(B) imposes a "duty to disclose information regarding expert testimony.") (emphasis added). Plaintiff has had access to the X-ray for nearly two years, and her motion to strike Dr. Steinberg's expert report based on that record is denied.

II. Rule 702 and Daubert

The Court next turns to Plaintiff's substantive arguments for striking the expert reports. Federal Rule of Evidence 702 allows a qualified expert to testify regarding scientific, technical, or other specialized knowledge if it will "assist the trier of fact to understand the evidence or to determine a fact in issue." Mason v. City of Chicago, 631 F. Supp. 2d 1052, 1059 (N.D. Ill. 2009) (quoting FED. R. EVID. 702). As a threshold matter, the witness must be qualified "as an expert by knowledge, skill, experience, training, or education." Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007). In addition, expert testimony must be "relevant and factually linked to the case in order to meet Rule 702's 'helpfulness' requirement." Id. (citing United States v. Gallardo, 497 F.3d 727, 733 (7th Cir. 2007)). Finally, the testimony must be reliable and not based on subjective belief or speculation. Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010). See also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999) (quoting Daubert, 509 U.S. at 589) (Rule 702 "imposes a special obligation upon a trial judge to 'ensure that any and all scientific testimony or evidence . . . is not only relevant, but reliable.'")

The district court "must act as the gatekeeper" and determine reliability in light of "the proposed expert's full range of experience and training, as well as the methodology used to arrive at a particular conclusion." United States v. Pansier, 576 F.3d 726, 737 (7th Cir. 2009) (citing Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000)). To be reliable, an expert's opinion must be "well-grounded in methods and procedures of science." Winters v. Fru-Con Inc., 498 F.3d 734, 742 (7th Cir. 2007). "[T]he law grants the district court great discretion regarding the manner in which it conducts [a Daubert] evaluation." Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 704 (7th Cir. 2009). In this case, Defendants bear the burden of demonstrating that Dr. Kessler's and Dr. Steinberg's testimony would satisfy the necessary requirements. Id. at 705.

A. Dr. Kessler

Dr. Kessler's expert report offers opinions on several of Plaintiff's medical issues, including: seizures; headaches; neck and back pain; depression; and bruising, contusions, and abrasions. Plaintiff objects that the opinions are irrelevant, conclusory and/or beyond Dr. Kessler's qualifications, and moves to strike the report in its entirety. The Court considers Plaintiff's arguments in turn.

1. Seizures

Plaintiff acknowledges that she has a seizure disorder stemming from a 1988 motor vehicle accident, and that she initially intended to seek damages for seizures she suffered after the December 14, 2006 incident. Plaintiff now insists that any opinions relating to that disorder are irrelevant, however, because she "will not make any claim for aggravation of any pre-existing seizure disorder," and "will not call any neurosurgeon to testify at trial." (Doc. 142, at 8). In response to continuing objections from Defendants, Plaintiff has further certified that she "has no intention of introducing evidence of her experiencing seizures after the incident." (Doc. 154, at 2). Plaintiff notes that "[n]o witness will claim [she] suffered a seizure on the day of the incident, and no doctor diagnosed her with having a seizure on the date of the incident." (Doc. 142, at 8).

In light of Plaintiff's stipulation that she will not mention seizures or seek to recover any related damages, the Court agrees that the following opinions from Dr. Kessler are not relevant:

(1) "None of Dr. Calimag's*fn1 office visits, evaluations or treatment was necessitated by the 12/14/06 incident";

(2) The $500 charge for the March 14, 2007 office visit was "grossly in excess of what would be supported by the information in the medical record";

(3) If Plaintiff's July 31, 2010 EEG showed "occasional focal epileptiform activity . . . over the right frontotemporal area," then "it would relate to Ms. White's brain trauma in 1988, not the 12/14/06 incident"; and

(4) "Ms. White also did not have any exacerbation of her pre-existing seizure ...


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