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Henriksen, et al. v. United States of America

April 29, 2011


Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Robert M. Dow, Jr. than Assigned Judge


This matter is before the Court on Plaintiffs' motion regarding certain evidentiary issues [48]. For the reasons set forth below, the Court grants in part and denies in part Plaintiffs' motion [48] and reserves ruling on the remaining issues.

O[ For further details see text below.] Docketing to mail notices.


Plaintiffs Kurt and Kathy Henriksen have moved this Court to enter an order on certain evidentiary issues raised at the final pretrial conference. The Court addresses each request in turn.

I. Expert Reports

Plaintiffs ask the Court to bar the parties' expert reports from being admitted into evidence. Plaintiffs correctly point out that the Rule 26(a)(2) reports of the testifying expert witnesses (Drs. Fisher, Brown, Cerullo, and Hurley) are hearsay. "The purpose of an expert report is to facilitate an effective cross-examination, minimize the expense of deposing experts, [shorten] the direct examination, and [prevent] ambush at trial." Sommerfield v. City of Chicago, 254 F.R.D. 317, 328 (N.D. Ill. 2008) (citing Malachinski v. C.I.R., 268 F.3d 497, 505 (7th Cir. 2001) and Ortiz-Lopez v. Sociedad Espanola de Auxilio Mutuo Y Beneficiencia de Puerto Rico, 248 F.3d 29, 35 (1st Cir. 2001)). However, expert reports generally may not be received in evidence without violating the hearsay rule or Rule 403. Id. at 327-329 (noting that the expert report itself "would not be admissible at trial * * * for it is hearsay in its most pristine form") (collecting cases). Plaintiffs maintain that the 26(a)(2) reports do not fall under any recognized exception to the hearsay rule and therefore should not be received into evidence. See Fed. R. Evid. 801(c). Further, Plaintiffs contend that since the experts are testifying at trial, receiving both their testimony and respective reports would be unnecessarily cumulative. See Fed. R. Evid. 403.

As noted by the Government in its response brief, at the final pretrial conference, the Court had suggested that the parties include the expert reports in their respective exhibit books, with the understanding that the Court would rule on their admissibility if necessary at the conclusion of the trial. However, after a closer analysis of the pertinent case law, the Court concludes that the better course is to provisionally exclude the expert reports, subject to reconsideration should either party at trial satisfy the burden of showing some basis for admitting the reports. As pointed out by Plaintiffs at the final pretrial conference, and by the court in Sommerfied, an expert typically does not testify to his report verbatim, "and as to those aspects about which there has been no testimony or testimony in a different form, the hearsay rule should operate with full vigor." Sommerfield, 254 F.R.D. at 328. Additionally, to the extent that the expert's testimony at trial merely repeats the expert report, the report would be redundant. See, e.g., Ramirez v. City of Chicago, 2010 WL 4065615, at *1 (N.D. Ill. Oct. 13, 2010). During trial, should one or both of the parties seek the admission of an expert report or portion thereof, the Court will be in a better position to determine whether the selected portion falls within one or more of the exceptions to the hearsay rule.

As a special note regarding the admissibility of the Rule 35 independent medical exam report prepared by Dr. Hurley, the Court accepts Plaintiffs' arguments that the information recorded by Dr. Hurley during his examination of Plaintiff Kurt Henriksen is hearsay in the usual sense of that term (see Mister v. Northeast Illinois Commuter Railroad Corp., 571 F.3d 696, 698 (7th Cir. 2009)) in that it was not conducted for the purposes of medical treatment but rather for the purposes of litigation. Dr. Hurley was retained by the Government to examine Mr. Henriksen. Litigation is not a "regularly conducted business activity" (Fed. R. Evid. 803(6)), and thus, "documents prepared specifically for use in litigation are * * * 'dripping with motivations to misrepresent.'" Sommerfield, 254 F.R.D. at 323 (quoting Hoffman v. Palmer, 129 F.2d 976, 991 (2d Cir.1942)); see also United States v. Blackburn, 992 F.2d 666, 670 (7th Cir. 1993) (noting "well-established rule that documents made in anticipation of litigation are inadmissible under the business records exception"). Nevertheless, the Court cannot conclude -- especially without having seen the IME report or heard a full explication of its possible uses at trial -- that the IME report is inadmissible in every conceivable respect. It will be the Government's burden at trial to demonstrate that any portion of the IME report that it seeks to admit falls within an exception to the hearsay rule, such as Rule 801(d)(2) (admission by a party-opponent). At this time, the Government has not identified any specific portions of the IME that it would seek to admit, and without this information, the Court cannot definitively say whether such evidence would be sufficiently trustworthy to be admitted. See Sommerfield, 254 F.R.D. at 323.

For these reasons, the Court reserves ruling on whether at least some portion of the expert reports (including the IME report) is admissible at trial, but directs the parties not to include the reports in their exhibit books.

II. Expert Witnesses in the Courtroom

Plaintiffs contend that the Government's expert witnesses should be excluded from the courtroom during the trial pursuant to Federal Rule of Evidence 615. The Government agrees to Plaintiffs' request, and therefore the Court grants Plaintiffs' motion as to this request. All experts will be excluded from the courtroom during the testimony of other expert and fact witnesses.

III. Dr. Cerullo's Draft Expert Report

Plaintiffs contend that the draft report of the Government's expert, Dr. Leonard Cerullo, should be produced pursuant to Rule 26(b)(4)(B). On December 1, 2010, amendments to Rule 26(b)(4)(B) went into effect. Under the previous language of Rule 26(b)(4)(B), experts' draft reports were discoverable; after December 1, they no longer are. Plaintiffs' experts were disclosed prior to the amendment, while the Government's were disclosed after December 1. The Order of the Supreme Court dated April 28, 2010, which implements the amended rules and provides for their effective dates, specifically states that the amended rules "shall take effect on December 1, 2010, and shall govern all proceedings thereafter commenced and, insofar as just and practicable, all proceedings then pending." (Emphasis ...

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