SUE E. MYERSCOUGH, District Judge.
A hearing was held on May 17, 2013, during which the Court ruled on pending motions. This order memorializes those rulings and sets forth additional information for the trial.
IT IS ORDERED:
1) Dr. Obaisi's motion in limine #132 is granted in part and denied in part. The motion is denied with regard to Dr. Vance's opinions. Dr. Vance agrees that he cannot testify to the ultimate conclusion that Dr. Obaisi was deliberately indifferent. However, Dr. Vance has adequately disclosed his opinion that, essentially, Dr. Obaisi persisted in pursuing ineffective treatment causing plaintiff years of prolonged and unnecessary pain.
The motion is granted with respect to Dr. Obaisi's request to exclude the fact that Dr. Vance is offering his services to Plaintiff pro bono.
2) Dr. Obaisi's motion in limine with regard to his background is denied (d/e 134). The Court does not see anything prejudicial about the fact that some of Dr. Obaisi's training occurred in Syria.
3) Dr. Obaisi's unopposed motion to exclude the fact that Lincoln Correctional Center is a minimum security facility is granted (d/e 135).
4) Defendant Neisler's motion to exclude his employment disciplinary history and traffic/criminal history is granted in part and reserved in part (d/e 139). Plaintiff agrees not to introduce Neisler's driving record, criminal history, or discipline for the collision. The motion is granted as to those three items. A ruling on the motion is reserved with regard to Neisler's discipline for impeding an internal investigation until the Illinois Department of Corrections has produced those documents to Plaintiff. The Court has ordered that production in a separate order.
5) Defendant Neisler's motion to exclude Dr. Vance from testifying to the cause of Plaintiff's injury is denied (d/e 141). Dr. Vance opines in his report that "It is my expert opinion that as a result of a motor vehicular collision the patient developed symptoms in his low back and left lower extremity, which were the product of a discogenic disease of his spine, a herniated disc at the L4-5 level." Dr. Vance elaborated in his deposition that the collision "resulted in some minor injury to his neck, which was not the source for the need for care, and a significant injury to his lumbar spine, which aggravated or gave rise to discogenic disease in his spine."
Dr. Vance's conclusion that the collision caused or aggravated Plaintiff's medical condition is properly based on Plaintiff's medical records and tests as well Plaintiff's subjective complaints of pain and difficulty functioning following the collision which are memorialized in the documents reviewed by Dr. Vance. Plaintiff's subjective complaints are proper facts upon which Dr. Vance can rely. Defendants can bring out on cross-examination the weaknesses in Dr. Vance's conclusions.
6) Plaintiff's motion to exclude Dr. Hauter from testifying that Dr. Obaisi was not deliberately indifferent is granted (d/e 143). Dr. Hauter cannot testify to the ultimate conclusion regarding whether Plaintiff proved his claim. However, Dr. Hauter can testify to the appropriateness of Dr. Obaisi's treatment approach and Dr. Hauter can explain why he disagrees with Dr. Vance's opinions.
7) Plaintiff's motion to exclude evidence of Dr. Vance's finances is granted (d/e 144) because the pro bono nature of Dr. Vance's services will not be introduced at trial.
8) Plaintiff's motion to exclude "investigative materials in relation to Plaintiff's grievances" is granted in part and denied in part (d/e 145). The Court does not view the administrative responses to Plaintiff's grievances as prejudicial to Plaintiff. This motion is granted to the extent Plaintiff asks to redact the reference to "sex offender registry required" on Dr. Obaisi's exhibit 2 (d/e 145-1, p. 3).
9) Plaintiff's motion to exclude his armed robbery conviction is granted in part (d/e 147). The fact that Plaintiff has been convicted of a felony will be admitted, but no further details will be admitted unless the door is opened by Plaintiff.
10) The Court reserves a ruling on Dr. Obaisi's motion to quash Plaintiff's subpoena to Wexford for grievances filed against Dr. Obaisi and Dr. Obaisi's personnel file (d/e 148). A separate order has entered directing Dr. Obaisi to review Dr. Obaisi's personnel record and determine if it contains any of the requested documents.
11) Dr. Obaisi's motion in limine #151 is granted in part and denied in part (d/e 151). The motion is granted as to compensation by insurance companies. The motion is denied as to the "personal practices of physicians in treating patients."
12) Plaintiff's motion to adopt jury instructions is denied (d/e 138). Further, the proposed jury instructions on which the Court reserved ruling from the last final pretrial conference are refused. The Court will give its own instructions on the definition of deliberate indifference. The Court's third version of jury instructions is attached to this order and includes revised definitions of deliberate indifference, which was again revised after the hearing in response to objections.
The Court disagrees with Defendants that the Seventh Circuit has jettisoned the idea that "reasonable measures" must be taken in response to a substantial risk of serious harm. Rosario v. Brawn , 670 F.3d 816 (7th Cir. 2012) dealt with whether officers were deliberately indifferent to a detainee's suicide risk. In affirming summary judgment for the officers, the Seventh Circuit noted that "[a]lthough we require that prison officials act reasonably when presented with a detainee's substantial risk of harm, ..., we do not assess the officers' actions according to a mere negligence standard." 670 F.3d at 821. Rosario stands for the proposition that assessing whether prison officials acted reasonably in the deliberate indifference context is not defined by a negligence standard. Rosario confirms that "we require that prison officials act reasonably when presented... with a detainee's substantial risk of serious harm." See also Arnett v. Webster , 658 F.3d 742, (7th Cir. 2011) ("Although an inmate is not entitled to demand specific care and is not entitled to the best care possible, he is entitled to reasonable measures to meet a substantial risk of harm.").
However, the Court agrees with Dr. Obaisi that in the context of this case the pattern instruction defining deliberate indifference should include an instruction that negligence is not deliberate indifference. The Court also agrees with Plaintiff that the jury should be clearly instructed that ineffective and unjustified treatment decisions which cause prolonged and unnecessary pain can amount to deliberate indifference. In response to the IDOC objection to the Court's revised definition, the Court has separated out the deliberate indifference instructions for Defendants Neisler and Dr. Obaisi to avoid juror confusion.
Before voir dire begins, the Court will read the statement of the case. After the jury has been selected and before opening statements, the Court will read instructions on the law, elements of the claims, definitions of deliberate indifference (##16, 17, 18, 20, 21, 21a), and the Court's standard instructions on prohibitions on communications and submitting written questions.
13) The Clerk is directed to affix the Court's electronic signature to the proposed final pretrial order (d/e 127) and to redocket #127 as the amended final pretrial order, which replaces #102.
14) In addition to the third draft of jury instructions, a third version of voir dire questions is attached, incorporating Plaintiff's voir dire questions which have been approved by the Court.
Court's #1: General
Members of the jury, you have seen and heard all the evidence and arguments of the attorneys. Now I will instruct you on the law. The law applicable to this case is contained in these instructions, and it is your duty to follow them. You must consider these instructions as a whole, not picking out one instruction and disregarding others.
You must not question any rule of law stated by me in these instructions. Regardless of any opinion you may have as to what the law ought to be, you must base your verdict upon the law given by me.
It is your duty to determine the facts and to determine them from the evidence produced in open court. You are to apply the law to the facts and in this way decide the case. Your verdict must be based on evidence and not upon speculation, guess or conjecture.
The production of evidence in open court is governed by rules of law. From time to time it has been my duty as judge to rule on the admissibility of evidence. You must not concern yourselves with the reasons for these rulings.
The evidence consists of the testimony of the witnesses and the exhibits received in evidence and stipulated facts. You should use common sense in weighing the evidence and consider the evidence in the light of your own observations in life. In our lives, we often look at one fact and conclude from it that another fact exists. In law we call this drawing an "inference." You may draw such reasonable inferences as you believe to be justified from the evidence.
You are to consider only the evidence received in this case. Whenever evidence was received for a limited purpose it should be considered by you for that purpose and for no other purpose.
You are to disregard any evidence to which I have sustained an objection or which I ordered stricken. Anything you may have seen or heard about the case outside the courtroom is not evidence and must be entirely disregarded. You should not be influenced by sympathy, prejudice, fear, or public opinion. Similarly, you should not be influenced by any person's race, color, religion, national ancestry or gender. You are impartial judges of the facts.
Arguments, statements, and remarks of counsel are intended to help you in understanding the evidence and applying the law but are not evidence. If any argument, statement, or remark has no basis in the evidence, then you should disregard that argument, statement, or remark. Lawyers have a duty to object when they believe a question is improper. You should not be influenced by any objection.
Neither by these instructions nor by any ruling, remark, or question which I have made or asked do I or have I meant to indicate any opinion as to the facts or what the outcome of the case should be.
Court's #2: Witness Credibility
You must decide whether the testimony of each of the witnesses is truthful and accurate, in part, in whole, or not at all. You also must decide what weight, if any, you give to the testimony of each witness.
In evaluating the testimony of any witness, you may consider, among other things:
-the ability and opportunity the witness had to see, hear, or know the things that the witness testified about;
-the witness's memory;
-any interest, bias, or prejudice the witness may have;
-the witnesses's intelligence;
-the manner of the witness while testifying;
-and the reasonableness of the witness's testimony in light of all the evidence in the case.
Court's #3: Weight of the Evidence and Who Produced
The weight of the evidence presented by each side does not necessarily depend on the number of witnesses testifying on one side or the other. You must consider all the evidence in the case, and you may decide that the testimony of a smaller number of witnesses on one side of an issue has greater weight than that of a larger number on the other side of that issue. In determining whether any fact has been proved, you should consider all of the evidence bearing on the question regardless of who introduced it.
Court's #4: Types of Evidence
There are two types of evidence: direct and circumstantial. Direct evidence is the testimony of a person who claims to have personal knowledge of the occurrences which are the subject of the case, such as an eye witness. Circumstantial evidence is the proof of a chain of facts and circumstances which tend to show the existence of other relevant facts sought to be proved.
For instance, an example of direct evidence that it is raining is testimony from a witness who says, "I was outside a minute ago and I saw it raining." Circumstantial evidence that it is raining is someone entering a room carrying a wet umbrella.
The law makes no distinction between the weight to be given either direct or circumstantial evidence. All of the evidence in the case, including the circumstantial evidence, should be considered by you in arriving at your verdict. You decide how much weight to give to any evidence.
Court's #5: Parties are Equal
At all times relevant to this case, Plaintiff was and remains incarcerated in the Illinois Department of Corrections. All parties are equal before the law. A prisoner is entitled to the same fair consideration that you would give any individual person.
Court's #6: Party Production
In determining whether any proposition or fact has been proved, you should consider all of the evidence bearing on the question ...