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Forsythe v. Rosen Medical Group, LLC

United States District Court, N.D. Illinois, Eastern Division

January 8, 2015

NINA FORSYTHE, as Guardian of KATHRYN PARKER, a Disabled Person, Plaintiff,


AMY J. ST. EVE, District Judge.

On September 16, 2013, Nina Forsythe, the guardian of Kathryn Parker ("Plaintiff"), filed a five-count Third Amended Complaint[1] (the "Complaint"). (R. 99.) Plaintiff later settled her claims against Defendant Advocate Health and Hospital Corporation d/b/a Advocate Good Samaritan Hospital (the "Hospital"), and dismissed her claims against it with prejudice. (R. 108.) The remaining defendants are Rosen Medical Group, LLC, d/b/a Lifeweigh Bariatrics; Allen Mikhail, M.D.; and Jeffrey Rosen, M.D. (collectively, "Defendants"). In the Complaint, Plaintiff alleges negligence by the Defendants following the Hospital's admission of Ms. Parker on February 1, 2010 and her subsequent gastric bypass surgery. Before the Court are Defendants' motions in limine to bar certain portions of the testimony of Ms. Parker's life care planner, Dr. Gary Yarkony, and to prevent Plaintiff's experts from referring to either of the individual Defendants as the "captain of the ship." Also before the Court are Plaintiffs' motions in limine to bar testimony from two of Defendants' surgical experts as cumulative, and to prevent the introduction of surgical expert testimony from Ms. Parker's treating hematologist (blood doctor). For the following reasons, the Court grants in part and denies in part Defendants' motions, and grants in part and denies in part Plaintiff's motions.


Plaintiff alleges the following facts. On February 1, 2010, the Hospital admitted Ms. Parker to undergo gastric bypass surgery. While at the Hospital, Dr. Mikhail and Dr. Rosen performed numerous procedures on Ms. Parker, including gastric bypass surgery and hernia repair surgery. As a part of or as a result of the procedures, Ms. Parker experienced extensive internal bleeding, which Dr. Mikhail and Dr. Rosen failed to timely diagnose and treat. Plaintiff further claims that Defendants carelessly and negligently prescribed and/or administered anticoagulation medication to Ms. Parker. The internal bleeding, in turn, caused organ dysfunction including respiratory and kidney problems. She then developed dangerously high potassium levels, which led to an anoxic brain injury and resulting paralysis after Defendants failed to timely treat her condition. Based on these allegations, Plaintiff brings a negligence action against Defendants.


Trial courts have broad discretion in ruling on evidentiary issues before and during trial. See Whitfield v. Int'l Truck & Engine Corp., 755 F.3d 438, 447 (7th Cir. 2014); Manez v. Bridgestone Firestone N. Am. Tire, LLC, 533 F.3d 578, 593 (7th Cir. 2008). "Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials." Luce v. United States, 469 U.S. 38, 41 n.4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). "Trial courts issue rulings on motions in limine to guide the parties on what evidence it will admit later in trial, " and "[a]s a trial progresses, the presiding judge remains free to alter earlier rulings." Perry v. City of Chicago, 733 F.3d 248, 252 (7th Cir. 2013). An in limine ruling avoids delays and allows the parties an opportunity to prepare themselves and witnesses for the introduction or exclusion of the evidence at issue. See Wilson v. Williams, 182 F.3d 562, 566 (7th Cir. 1999) (en banc); see also Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997) ("The prudent use of the in limine motion sharpens the focus of later trial proceedings and permits the parties to focus their preparation on those matters that will be considered by the jury."). Ultimately, an in limine motion "performs a gatekeeping function and permits the trial judge to eliminate from further consideration evidentiary submissions that clearly ought not be presented to the jury because they clearly would be inadmissible for any purpose." Jonasson, 115 F.3d at 440.


Plaintiff and Defendants both filed a number of motions in limine. The parties agreed that the Court should grant the majority of the motions, which the Court did in previous orders. ( See R. 134, 135, 156.) The Court now addresses the four remaining contested motions in limine, two each from Plaintiff and Defendants.

I. Defendants' Motions in Limine

A. Cost Projections in Life Care Plan

Defendants' Motion in Limine Number 1 seeks to bar the testimony of Plaintiff's expert, Gary Yarkony, M.D., that relates to specific costs contained in his life care plan for Ms. Parker (the "Life Care Plan"). Defendants do not object to Dr. Yarkony's qualifications or methodology in developing the Life Care Plan-rather, Defendants object to the costs of two specific items contained in it. Specifically, the Life Care Plan includes for Ms. Parker either a new custom home with 20 percent added to its cost for modifications, or the purchase of a new home plus the cost of modifications. The Life Care Plan also includes the purchase of a new van with wheelchair-accessible modifications every five years. Defendants argue that while Plaintiff may be entitled to the cost of modifications to her house or automobile, Plaintiff cannot be entitled to the cost of an entirely new house or new car. Thus, Defendants contend that the Court should not allow Dr. Yarkony to testify to the full cost of these items, as it will only confuse the jury. In response, Plaintiff argues that Defendants' objections relate to the weight of Dr. Yarkony's cost projections, not to their admissibility, and the Court should not bar this testimony. Instead, Defendants should cross-examine Dr. Yarkony on his cost estimates at trial.

Whether or not an expert's testimony is admissible is governed by Rule 702 of the Federal Rules of Evidence and the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Under Rule 702, an expert may testify if: a) the expert's specialized knowledge will assist the trier of fact; b) the testimony is based upon sufficient facts or data; c) the testimony is the product of reliable principles and methods; and d) the expert has applied the principles and methods reliably to the facts of the case. Fed.R.Evid. 702. The Seventh Circuit, pursuant to Rule 702 and Daubert, has developed a three-pronged approach to determining whether expert testimony is admissible. See Myers v. Illinois Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010); Ervin v. Johnson & Johnson, Inc., 492 F.3d 901, 904 (7th Cir. 2007). The Court must determine: 1) whether the witness is qualified; 2) whether the expert's methodology is scientifically reliable; and 3) whether the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. Myers, 629 F.3d at 644. In the court's role as gatekeeper, it is granted "wide latitude in performing its gatekeeping function and determining both how to measure the reliability of expert testimony and whether the testimony itself is reliable." Lapsley v. Xtek, Inc., 689 F.3d 802, 810 (7th Cir. 2012) (quoting Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 894 (7th Cir. 2011)).

Here, Defendants do not contest Dr. Yarkony's qualifications or methodology. Instead, Defendants contest only the relevancy of his conclusions. In a medical malpractice action, "[d]amages are recoverable to the extent necessary to place the injured party in the position [s]he would have occupied if the wrong had not been committed." Clark v. Children's Memorial Hosp., 2011 IL 108656, ΒΆ 29, 353 Ill.Dec. 254, 955 N.E.2d 1065. These damages can include modifications to an injured party's home or automobile necessitated by her health condition following the alleged malpractice. See Compton v. Ubilluz, 353 Ill.App.3d 863, 866-867, 289 Ill.Dec. 271, 819 N.E.2d 767 (2d Dist. 2004) (affirming trial court's decision to allow testimony from life care planner on entire cost of new home and van that contained modifications required by plaintiff's health condition).

Several other district courts in the Seventh Circuit under similar circumstances have denied pre-trial challenges to specific cost projections in life care plans, finding that the defendants should instead challenge them on cross-examination at trial. See Taylor v. Union P. R.R. Co., Civil No. 09-123-GPM, 2010 WL 3724287, at *3 (S.D. Ill. Sept. 16, 2010) (denying motion to exclude evidence of certain specific costs contained in a life care plan in part because those "are all matters that should be and doubtless will be aired before the jury on cross-examination"); see also Runge v. Stanley Fastening Sys., L.P., No. 09-CV-130, 2011 WL 4903782, at *3 (S.D. Ind. Oct. 14, 2011) (citing Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000) ("The ...

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