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Springfield Division Nathan Allison v. United States of America

April 28, 2011

SPRINGFIELD DIVISION NATHAN ALLISON, PLAINTIFF,
v.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Richard Mills, U.S. District Judge:

E-FILED

3:09-cv-03341-RM -BGC # 34 Page 1 of 14 Thursday, 28 April, 2011 04:48:53 PM Clerk, U.S. District Court, ILCD

OPINION

For the following reasons, the Court will allow in part and deny in part the Defendant's Motion in Limine [d/e 25], and deny the Defendant's Supplement to Defendant's Motion in Limine [d/e 26].

I. BACKGROUND

On October 17, 2007, Plaintiff Nathan Allison was a student at Virden High School, Virden, Illinois. On that day, two U.S. Army recruiters visited his high school physical education class and conducted a demonstration of wrestling or self-defense techniques. The Plaintiff participated in the demonstration, wrestling against one of the Army recruiters. The Plaintiff alleges that he was injured during the wrestling match. It does not appear that the Plaintiff sought medical attention at that time.

On November 30, 2007, the Plaintiff went to the emergency room after being slammed into a wall during a basketball game. Eventually, Dr. Leo Ludwig performed surgery on the Plaintiff's left shoulder.

The Plaintiff filed an administrative claim with the U.S. Army on November 3, 2008. The administrative claim was denied on or about July 2, 2009.

The Plaintiff claims that on November 11, 2009, Plaintiff's Attorney Brent Beeman sent a letter to the Army requesting reconsideration of the denial of the Plaintiff's claim. The Plaintiff claims that enclosed with Attorney Beeman's letter was a letter from Dr. Ludwig dated November 2, 2009, detailing his treatment of the Plaintiff and expressing his views regarding causation. There is no indication in the record that the letter was received by the Army, or that it was responded to in any way.

On December 30, 2009, the Plaintiff initiated this action. On April 12, 2010, the Army recruiters were granted judgment on the pleadings pursuant to the Westfall Act (28 U.S.C. § 2679). The United States is the only remaining defendant.

On June 24, 2010, the Government filed a Motion to Compel [d/e 16], claiming that Plaintiff's counsel was not promptly complying with requests to fully answer interrogatories. The Plaintiff responded on July 9, 2010, by supplementing its answers to the interrogatories. U.S. Magistrate Judge Byron G. Cudmore dismissed the Motion to Compel as moot.

Assistant U.S. Attorney Hillary W. Frooman represents that in July of 2010 she discussed the possibility of subpoenaing all pertinent medical records, but the parties agreed that all medical records were already in the possession of the U.S. Army, and therefore in the possession of the Government. The Government Bates-stamped*fn1 these documents, and provided them to the Plaintiff on August 17, 2010.

AUSA Frooman represents that in late October of 2010, Attorney Brent Beeman informed her that Attorney Randall A. Wolter was taking over responsibility of the case. AUSA Frooman represents that she contacted Attorney Wolter several times throughout November and December of 2010 seeking to arrange depositions and to determine if the Plaintiff would be naming an expert by the January 3, 2011 deadline.

The Plaintiff did not disclose any expert witnesses before the January 3, 2011 deadline expired. Mr. Wolter entered his appearance on January 21, 2011.

According to Judge Cudmore's scheduling order of September 21, 2010, all depositions were to be conducted by March 1, 2011. However, Dr. Ludwig will not be available to give a deposition until May 19, 2011.*fn2

On February 23, 2011, the Government filed its Motion in Limine [d/e 25]. In that Motion, the Government surmised that the Plaintiff would be using Dr. Ludwig to provide expert testimony on causation. The Government argued that Dr. Ludwig was not timely disclosed as an expert in accordance with Federal Rule of Civil Procedure 26(a)(2)(B).

The Government moved to bar the Plaintiff from presenting expert testimony on causation. Alternatively, the Government argued that the Court should order that the Plaintiff's expert provide a report in writing pursuant to Rule 702 of the Federal Rules of Evidence, and extend discovery sufficient for the government to take Dr. Ludwig's deposition on May 19, 2011, and then submit the deposition to the Government's expert before he submits his expert report.

On March 11, 2011, the Government filed a Supplement to its Motion in Limine [d/e 26]. The Government stated that following a deposition held on March 10, 2011, Plaintiff's counsel produced Dr. Ludwig's letter of November 2, 2009. Apparently, Dr. Ludwig's letter was not included in ...


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