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Kirkland v. Sigalove

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

January 16, 2015

DARYL KIRKLAND, et al., Plaintiffs,
STEVEN SIGALOVE, et al., Defendants.


JEFFREY T. GILBERT, Magistrate Judge.

Plaintiffs Daryl and Judy Kirkland (collectively "Plaintiffs") bring this personal injury action against Defendants Steven Sigalove, M.D. and DuPage Medical Group, Ltd., d/b/a The Institute for Aesthetic Surgery (collectively "Defendants"), alleging, inter alia, that Defendants committed medical malpractice in the course of performing suction-assisted lipectomy of Daryl Kirkland's ("Daryl's") abdomen, flanks, and lower back, resulting in injury to Daryl's colon. Am. Compl., ECF No. 9. Trial is set for February 17, 2015 through February 27, 2015. ECF No. 73. This Court has subject matter jurisdiction pursuant to 28 U.S.C. ยง 1332.[1]

Currently before the Court is Plaintiffs' Motion in Limine #1, which seeks to bar the testimony of Dr. Sean P. Barnett, whom Defendants have retained as an expert. Pl.'s Mot. Lim., ECF No. 79. For the reasons set forth below, Plaintiffs' Motion in Limine #1 (ECF No. 79) is granted.


1. Motions in Limine

Trial courts have broad discretion in ruling on evidentiary issues before and during trial. Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002). Accordingly, "[a]lthough 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 (1984). Motions in limine are intended "to avoid the delay and occasional prejudice caused by objections and offers of proof at trial." Wilson v. Williams, 182 F.3d 562, 566 (7th Cir. 1999). In addition, "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." Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997).

The Court will grant a motion in limine only where the evidence is clearly inadmissible for any purpose. See id. (a motion in limine "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 inadmissable [sic] for any purpose"). Rulings on motions in limine are "subject to change when the case unfolds[.]" Luce, 469 U.S. at 41; see also Farfaras v. Citizens Bank & Trust of Chi., 433 F.3d 558, 565 (7th Cir. 2006). Indeed, "even if nothing unexpected happens at trial, the district judge is free, in the exercise of sound judicial discretion, to alter a previous in limine ruling." Luce, 469 U.S. at 41-42. Some evidentiary submissions, however, cannot be evaluated accurately or sufficiently prior to trial. Jonasson, 115 F.3d at 440. "In these instances, it is necessary to defer ruling until during trial, when the trial judge can better estimate its impact on the jury." Id.

2. Admissibility of Expert Testimony

Rule 702 of the Federal Rules of Evidence, as interpreted in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), governs the admissibility of expert testimony. Under Rule 702, "[a] witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case." Fed.R.Evid. 702. In Daubert, the Supreme Court held that Rule 702 requires the trial court to "ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Daubert, 509 U.S. at 589. To that end, the trial court serves a "gatekeeping" function to ensure that the proffered expert testimony is, in fact, both relevant and reliable. Id.

The district court must engage in a three-step inquiry when evaluating the admissibility of proffered expert testimony. Myers v. Ill. Cent. R.R. Co., 629 F.3d 639, 644 (7th Cir. 2010). First, it must determine whether the witness is qualified. Id. Second, it must determine whether the witness's testimony is scientifically reliable. Id. Third, it must determine whether the testimony has a sufficient nexus with the facts of the case such that it will assist the trier of fact in understanding the evidence or determining a fact in issue. Id. The proponent of the expert bears the burden of demonstrating that the expert's testimony satisfies the Daubert standard by a preponderance of the evidence. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).


One of Defendants' case theories is that "the injury to the colon of Daryl Kirkland occurred as a result of the traditional liposuction cannula having entered the peritoneum due to a defect in the abdominal wall with the cannula tip having come to rest adjacent to the colon." Def.'s Rule 26(a)(2) Discl., ECF No. 66-2. In support of that theory, Defendants have proffered the expert testimony of Dr. Sean Barnett, a general surgeon. Dr. Barnett essentially offers three expert opinions: (1) a laparoscopic Nissen fundoplication procedure can leave defects in the abdominal wall, which weakens the wall at the points at which the surgical ports were placed; (2) Daryl underwent a laparoscopic Nissen fundoplication procedure in 1998 which left such defects in his abdominal wall; and (3) the cannula used in the 2009 liposuction procedure performed by Dr. Sigalove may have gone through one of those defective areas and, if so, he would not have known that he entered the abdominal cavity. The Court addresses each of these opinions in turn below and finds them all inadmissible.

I. Whether the laparoscopic Nissen fundoplication procedure causes abdominal defects.

Dr. Barnett's first proffered opinion is that a laparoscopic Nissen fundoplication procedure can cause defects in the abdominal wall, which weakens the wall at the points at which the surgical ports were placed. Dr. Barnett is qualified to testify generally about the laparoscopic Nissen fundoplication procedure and abdominal weaknesses it may cause. Dr. Barnett's Rule 26(a)(2) disclosure states that his opinions "are based on [his] education, training and experience as a Board Certified General Surgeon." Def.'s Rule 26(a)(2) Discl., ECF No. 66-2. At his deposition, he confirmed that his opinions are "based on [his] experience in performing the procedure and training [and] that's it." Tr.[2] at 33:21-22, 24. This is sufficient. "An expert's testimony is not unreliable simply because it is founded on his experience rather than on data." Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010). Indeed, "Rule 702 specifically contemplates the admission of testimony by experts whose knowledge is based on experience." ...

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