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Moriconi v. Koester

United States District Court, C.D. Illinois, Springfield Division

January 26, 2015

PAUL F. MORICONI, Plaintiff,
v.
TRAVIS KOESTER, et al., Defendants,

OPINION

TOM SCHANZLE-HASKINS, Magistrate Judge.

This matter comes before the Court on the Motions in Limine by Defendants Travis Koester and Sangamon County, Illinois (d/e 100) (Motions). On January 16, 2015, the parties appeared at the final pretrial conference and argued the Motions. Plaintiff Paul F. Moriconi appeared by his attorneys Michael J. Costello and Jackson Edward Donley. Defendants Travis Koester and Sangamon County, Illinois, appeared by their attorney Raylene Dewitte Grischow. After careful consideration of the submissions of the parties, arguments of counsel, and the applicable law, the Motions are ALLOWED in part and DENIED in part.

The Defendants make eleven separate motions in limine. Moriconi does not object to Motions in Limine Numbers 1, 3, 4, and 7. These Motions are allowed. Moriconi also does not object to Motions in Limine Numbers 2 and 5, except to the extent that Moriconi may seek to present evidence sought to be barred by those Motions if Defendants "open the door" by presenting evidence that somehow puts the subject matter of those Motions at issue. Motions in Limine Numbers 2 and 5 are allowed; provided, however, that Moriconi may ask the Court outside of the presence of the jury to allow him to present evidence barred by Motion 2 or 5, if he believes that Defendants have opened the door.

Moriconi stated in his written response that he did not object to Motion in Limine Number 9, but changed his position at the hearing. Defendant Koester had filed a new motion that addresses this issue in greater detail. Defendants' Motion in Limine to Preclude Evidence at Trial Regarding Any Alleged Other Bad Acts (d/e 105) (Motion 105). The Court reserves ruling on Motion in Limine Number 9 at this time, and will address the issue when Motion 105 is fully briefed.

Moriconi objects or responds ambiguously to Motions in Limine Numbers 6, 8, 10 and 11. The Court will address each of these Motions separately in more detail.

Motion in Limine Number 6

The Defendants ask the Court to bar expert testimony admissible under Federal Rule of Evidence 702 because Moriconi did not disclose any expert witnesses. Moriconi does not object to this portion of Motion Six. Moriconi, however, argues that his treating physicians may still testify about his medical condition. The properly disclosed treating physicians may testify as fact witnesses concerning examination, diagnosis, and treatment of Moriconi, but may not present expert testimony. See e.g., Johnson v. Target Corp., 487 Fed.Appx. 298, 300 (7th Cir., June 28, 2102) (district court properly limited treating physician to factual testimony because plaintiff did not disclose treating physician as an expert); see also Tribble v. Evangelides, 670 F.3d 753, 759-62 (7th Cir. 2012) (reversible error to allow fact witness to offer expert testimony).

Moriconi may also testify from his personal knowledge about his medical condition, including lay opinions that would be admissible under Federal Rule of Evidence 701. Moriconi may not personally offer expert testimony.

The Defendants also ask the Court to bar testimony by other witnesses concerning statements made by Moriconi about his pain or symptoms. The Court denies this portion of Motion 6. The Defendants argue that such statements would be inadmissible hearsay. The Defendants do not identify the anticipated testimony at issue. Without more specifics, the Court will not bar all such testimony in limine. Some statements may be admissible under an exception to the hearsay rule. See e.g., Fed.R.Evid. 803(1), (2) and (3). Some may be admissible for a non-hearsay purpose. See Fed.R.Evid. 801(c). The Defendants may raise objections to specific questions or evidence at trial. Motion in Limine Number 6 is allowed in part and denied in part.

Motion in Limine Number 8

Motion 8 asks the Court to bar Moriconi from testifying as to his medical or mental health diagnoses or prognoses which he claims are a result of the incident at issue. Moriconi may not testify about statements made by his treating physicians regarding his diagnoses or prognoses for the truth of the matter asserted. Such statements are hearsay. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 564 (7th Cir. 1996); Martin v. Nicklow, 499 Fed.Appx. 569, 573 (7th Cir., January 23, 2013). Moriconi, again, may testify from his personal knowledge about his medical condition, including lay opinions that would be admissible under Federal Rule of Evidence 701. Moriconi may not personally offer expert testimony.

Moriconi responds, in part, that he intends to elicit testimony about Moriconi's diagnoses and prognoses from Moriconi's treating physicians, not from Moriconi. Again, Moriconi's properly disclosed treating physicians may testify as fact witnesses concerning examination, diagnosis, and treatment of Moriconi. Moriconi, however, did not disclose any expert witnesses. The treating physicians, therefore, may not present expert testimony.

Moriconi also argues, without reference to any authority, that "Plaintiff can testify as to what his subjective belief might be in the future as to his diagnosis." Response to Defendants' Motions in Limine (d/e 102), at 2. Moriconi's testimony about "what his subjective belief might be in the future" is the definition of speculation. Moriconi may not offer such testimony.

Motion in Limine Number 8 is allowed in part. Moriconi may not offer from any source expert testimony about his medical or mental diagnoses or prognoses as a result of the incident at issue. Moriconi further may not testify about statements made by his physicians for the truth of the matter asserted. Moriconi also may not testify about his subjective beliefs concerning his ...


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