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Kevin P. Dixon, Deceased, By and Through Lula M. Dixon, His Mother, Next Best Friend, and Independent Administrator of the Estate of Kevin v. Cook County

September 25, 2012

KEVIN P. DIXON, DECEASED, BY AND THROUGH LULA M. DIXON, HIS MOTHER, NEXT BEST FRIEND, AND INDEPENDENT ADMINISTRATOR OF THE ESTATE OF KEVIN P. DIXON,
PLAINTIFF,
v.
COOK COUNTY, D/B/A CERMAK HEALTH SERVICES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant Cook County, d/b/a Cermak Health Services' Motion to Strike the Rule 26(a)(2) report of Plaintiff's retained expert witness, Robert Greifinger, M.D. (hereinafter, "Dr. Greifinger"). For the reasons stated herein, Defendant's Motion is granted in part and denied in part.

I. BACKGROUND

On September 5, 2008, Kevin Dixon (the "Decedent") entered the Cook County Department of Corrections as a pre-trial detainee. At this time, Decedent's estate (the "Plaintiff") alleges that Decedent was in good health. In October 2008, Decedent began to experience pain in his stomach, back, and chest. Plaintiff alleges that after Decedent began to experience pain, Decedent repeatedly requested help from various Defendant Correctional Officers, but Defendants refused to provide Decedent appropriate medical assistance.

On November 12, 2008, Decedent visited a physician and was diagnosed with possible gastroesophageal reflux disease. On November 19, 2008, Decedent appeared in court and a judge ordered Decedent to be seen by physicians at Cermak Hospital. On November 28, 2008, a physicians' assistant (the "PA") evaluated Decedent and diagnosed him with psychosomatic pain. Plaintiff alleges that Decedent's tier-mate filled out many requests for care on behalf of Decedent in November 2008, and further alleges that despite these requests, Defendants failed to respond.

On December 10, 2008, Decedent had a chest x-ray which revealed a paratracehal mass density in his chest. On December 11, 2008, a CT scan was performed and confirmed the presence of a mass in Decedent's chest. On December 23, 2008, Decedent visited the pulmonary clinic at Stroger Hospital of Cook County. During this visit, physicians again confirmed the mass in Decedent's chest. As a result, Decedent was scheduled for a follow-up CT scan on January 2, 2009, and a visit on January 6, 2009.

On or about December 29, 2008, Decedent again experienced pain in his abdomen and leg and complained to various correctional officers that he was constipated and could not get up. On this date, Decedent was sent to Cermak Hospital's Emergency Room for lack of breathing and pain. On December 30, 2008, Decedent reported two weeks of constipation and reported he was unable to walk. Plaintiff alleges that at this time Decedent was referred to a mental health physician.

On December 31, 2008, Decedent was admitted to Cermak Hospital Infirmary. A physician saw Decedent and completed a Cermak Hospital Consultation Request Form, requesting that Decedent have a pulmonary consultation at Stroger Hospital. Plaintiff alleges on this visit the physician marked it was "RUSH" request.

On January 2, 2009, Decedent had another CT scan which reported similar findings to his prior exams, the presence of a mass in Decedent's chest. On January 5, 2009, Decedent was transported to Stroger Hospital and saw a physician who reported that Decedent had metastasized lung cancer. On March 4, 2009, Decedent died.

On November 5, 2009, Decedent's estate filed suit against Defendant Cook County d/b/a Cermak Health Services as well as other agents of the Cook County Department of Corrections. Plaintiff alleges Defendants violated Decedent's civil rights under 42 U.S.C. § 1983 by failing to provide adequate medical care and alleges intentional infliction of emotional distress.

Defendant Cook County now seeks to strike Plaintiff's Rule 26(a)(2) report of Plaintiff's expert Dr. Robert Greifinger.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 26(a)(2) governs the disclosure of expert testimony. The rule states that parties must disclose the identity of any expert who may be used at trial to present evidence under Federal Rules of Evidence 702, 703, or 705. FED. R. CIV. P. 26(a)(2)(A). Rule 26(a)(2) also requires litigants to provide opposing counsel an accompanying report prepared and signed by the disclosed expert which contains "a complete statement of all opinions the witness will express and the basis and reasons for them; the data or other information considered by the witness in forming the ...


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