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Dean Cage v. City of Chicago

November 14, 2012


The opinion of the court was delivered by: Judge Virginia M. Kendall


Plaintiff Dean Cage ("Cage") sued Defendants the City of Chicago, Chicago Police employees Andrew Jones, John Ervin, Cecilia M. Doyle ("Doyle"), Pamela Fish ("Fish"), and as-yet unidentified employees of the City (collectively "Defendants") alleging claims under 42 U.S.C. § 1983. Specifically, Cage alleges that Defendants denied him the right to a fair trial in violation of the Due Process Clause. Cage also asserts constitutional claims for false imprisonment, malicious prosecution, failure to intervene, and conspiracy to deprive him of his constitutional rights. Cage further alleges state law claims for malicious prosecution, intentional infliction of emotional distress, civil conspiracy, respondeat superior, and indemnification. Finally, Cage seeks recovery against the City under Monell v. Dept. of Soc. Svcs., 436 U.S. 658 (1976), alleging that municipal customs, policies, and practices caused the alleged constitutional violations.

Defendants move to strike Cage's Rule 26(a) disclosures, which were made September 4, 2012. For the reasons stated below, Defendants' motion is denied.


On March 15, 2012, this Court entered an Order setting forth the initial expert discovery schedule for this case. (Dkt. 103.) In that Order, the Court required that Cage produce all expert reports by April 30, 2012, and that Defendants produce all of their expert reports by May 30. (Id.) Eight days before Defendants' May 30 deadline, Defendants asked this Court to grant an additional 60 days to disclose their initial experts. The Court granted Defendants' request, and set a new deadline for July 30, 2012 (Dkt. 118.) Cage was to respond with rebuttal disclosures by September 4, 2012. (Id.) At that time, initial Daubert briefing was set to commence November 13, 2012, with responses due by November 26 and replies by December 3. After the expert discovery schedule was set, Defendants proposed to move the Daubert schedule up so that all Daubert issues could be resolved before Defendants moved for summary judgment. According Defendants' request, the Court set a new Daubert briefing schedule, set to commence on September 17, 2012, with responses due October 1 and replies due October 8.

On September 4, 2012, Cage produced rebuttal disclosures that are the subject of the motion before this Court. Specifically, Cage disclosed the following: (1) two forensic serologists, Amy Lee ("Lee") and Marissa Meininger ("Meininger"), as fact witnesses; (2) an amended report and submitted by Gary Harmor ("Harmor"), an expert Cage disclosed on April 30, 2012; (3) Daniel Radakovich ("Radakovich"), a reasonable diligence expert; and (4) Dr. Karl Reich ("Reich"), a DNA expert. Defendants move to strike these disclosures on the basis that they do not constitute proper rebuttal. According to Defendants, Cage's September 4 disclosures simply parrot and bolster what previous experts have testified to in an attempt to get a "do-over" with respect to expert witnesses who admitted to making mistakes after Cage's initial disclosures. Defendants also urge that all disclosures made by Cage on September 4, 2012 be stricken as untimely.


I. Timeliness of Plaintiff's Disclosures

Federal Rule of Civil Procedure 26(a)(2)(D) requires each party to disclose its expert opinion reports "at the times and in the sequence that the court orders." See also Musser v. Gentiva Health Servs., 356 F.3d 751, 756--57 (7th Cir. 2004). Failing to disclose an expert witness by a court-ordered deadline results in an automatic and mandatory exclusion of the witness, unless the non-disclosure was justified or harmless. Fed. R. Civ. P. 37(c)(1); Musser, 356 F.3d at 758.

In this case, the Court did not change Cage's September 4, 2012 deadline for providing rebuttal disclosures. The Court moved Defendants' disclosure deadline from May 30 to July 30, 2012 in order to accommodate Defendants' request for additional time to respond to Cage's initial expert disclosures. While this compressed the expert disclosure schedule on Cage's end, it did not eliminate Cage's opportunity to offer disclosures in response to Defendants' experts. Because Cage submitted his disclosures by the September 4 deadline, the Court finds that Cage's disclosures were timely.

II. Defendants' Substantive Objections to Plaintiff's September 4 Disclosures

"The proper function of rebuttal evidence is to contradict, impeach or defuse the impact of evidence offered by an adverse party." Peals v. Terre Haute Police Dept., 535 F.3d 621, 630 (7th Cir. 2008) (quoting United States v. Grin tjes, 237 F.3d 867, 879 (7th Cir. 2001). If, as here, the court's scheduling order permits rebuttal experts and opinions, a party may submit an expert rebuttal witness who is "limited to contradicting or rebutting evidence on the same subject matter identified by another party in its expert disclosures." Butler v. Sears Roebuck & Co., No. 06 C 7023, 2010 WL 2697601, at *1 (N.D. Ill. July 7, 2010) (citing Fed.R.Civ.P. 26(a)(2)©). A party may not offer testimony under the guise of "rebuttal" only to provide additional support for his case in chief. Peals, 535 F.3d at 630. See also Smetzer v. Newton, No. , 2012 WL 2064507, at *2 (N.D. Ill. June 7. 2012) (noting that use of witness "solely as a rebuttal expert depends on whether his opinion is truly rebuttal"); Larson v. Wis. Cent. Ltd., No. 10--C--446, 2012 WL 368379, at *4 (E.D. Wis. Feb. 3, 2012) (rebuttal report should be limited to contradicting or rebutting evidence on same subject matter identified by another party and cannot be used to advance new arguments or new evidence); Noffsinger v. The Valspar Corp., No. 09 C 916, 2011 WL 9795, at *6--7 (N.D. Ill. Jan. 3, 2011) (limiting a rebuttal expert's opinion to his critique of defendants' experts' opinions and striking parts of the expert's report that went beyond the scope of a proper rebuttal witness). A "plaintiff who knows that the defendant means to contest an issue that is germane to the prima facie case (as distinct from an affirmative defense) must put in his evidence on the issue as part of his case in chief." Braun v. Lorillard, Inc., 84 F.3d 230, 237 (7th Cir. 1996). If parts of an experts testimony constitutes improper bolstering while other parts fairly respond to the conclusions of the opposing party's experts, the appropriate course is to limit the proposed rebuttal expert's testimony rather than striking it altogether. See e.g., Noffsinger, 2011 WL 9795, at *7; L.G. Elecs. U.S.A., Inc. v. Whirlpool Corp., No. 08 C 242, 2010 WL 3397358, at *13--15 (N.D. Ill. Aug. 24, 2010); Commw. Ins. Co. v. Stone Container Corp., No. 99 C 8471, 2002 WL 385559, at *6--7 (N.D. Ill. Mar. 12, 2002).

A. Plaintiff's Disclosure of Two Lab Technicians

On September 4, 2012, Cage disclosed two forensic analysts, Amy Lee and Marissa Meininger, who worked with Harmor in his lab at the Serological Research Institute ("SERI"). Lee and Meininger performed part of the testing on the rape victim's underpants. According to Cage's disclosures, both analysts observed and contemporaneously documented that the test was positive for the presence of semen. Harmor reviewed, analyzed, and used these results as the basis for his opinion that Doyle's March 9, 1995 report ("the CPL Report") caused prejudice to Cage. Defendants urge that Cage's disclosure of Lee ...

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