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Andy Montanez v. Fico

June 6, 2012

ANDY MONTANEZ
v.
FICO, ET AL.



Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Sheila Finnegan than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

Plaintiff's Motion in Limine to Bar Argument or Evidence of Expert Opinions from Plaintiff's Treating Personnel [78] is denied.

O[ For further details see text below.] Notices mailed by Judicial staff.

STATEMENT

On March 21, 2009, Plaintiff received medical treatment for injuries he sustained when Defendants Fico and Simon arrested him. Plaintiff deposed one of those treaters, Dr. Robert Schwaner, on November 23, 2011, and was able to question him about his medical records, observations, and course of treatment. On April 5, 2012, nearly two months after the February 10, 2012 expert disclosure date, Defendants sought to reclassify Dr. Schwaner as a non-retained expert under Rule 26(a)(2), rather than a witness under Rule 26(a)(1). See Musser v. Gentiva Health Servs., 356 F.3d 751, 758 (7th Cir. 2004) ("[T]reating physicians . . . must be designated as experts if they are to provide expert opinions."). Plaintiff objects that it is too late to designate Dr. Schwaner as an expert in this case, and that his opinions are inadmissible under Federal Rule of Civil Procedure 702 and Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). The Court rejects both arguments.

Discussion

A. Timeliness

Though Defendants waited until after the expert disclosure date to identify Dr. Schwaner as a Rule 26(a)(2) expert, Plaintiff still had two months to address the new designation before trial. Yet he did nothing except file this motion in limine on May 29, 2012. On these facts, Plaintiff's assertion that he "may have sought his own expert to contradict Dr. Schwaner" rings hollow. (Doc. 78 ¶ 6).

In addition, Defendants confirmed at the Final Pretrial Conference on June 5, 2012 that the testimony they intend to elicit from Dr. Schwaner will cover the following matters that arguably constitute expert opinions:

1. His belief, based on his knowledge and experience as an ER physician and his personal observation of Plaintiff on March 21, 2009, that Plaintiff was "clinically intoxicated" and "diffusely ataxic";

2. His administration of IV fluids to Plaintiff to treat the intoxication; and

3. Plaintiff's consciousness during the ER visit.

Dr. Schwaner already testified to all of these topics during his November 23, 2011 deposition, and most of this information is contained in the medical records. Plaintiff will not suffer any harm or prejudice if Dr. Schwaner is allowed to testify regarding these issues for purposes of trial. See, e.g., Osuji v. City of Chicago, No. 02 C 4199, 2005 WL 1799277, at *7 (N.D. Ill. July 26, 2005) (failure to disclose doctors as Rule 26(a)(2) ...


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