United States District Court, N.D. Illinois, Eastern Division
JOHN W. LEE, III, Plaintiff,
CHICAGO YOUTH CENTERS, an Illinois nonprofit corporation; and J. HARRY WELLS, individually, Defendants.
MEMORANDUM OPINION AND ORDER
JEFFREY COLE, Magistrate Judge.
Pursuant to the discovery schedule in this case, fact discovery closed on September 30, 2014. Plaintiff was required to disclose his expert and expert's report by November 28, 2014 and defendants had until January 30, 2015 to designate experts and provide reports under Rule 26(a)(2)(B), Federal Rules of Civil Procedure. Expert discovery is set to close on February 27, 2015. [Dkt. #92, 117]. However, on November 24, 2014, four days before the deadline for his expert disclosures, Mr. Lee suffered a heart attack and was hospitalized in the cardiac intensive care unit of West Suburban Medical Center in Oak Park, Illinois. On November 26, 2014, Mr. Lee's counsel informed the defendants of what had occurred. Mr. Lee timely submitted the expert report of forensic accountant, Michael Pakter.
Immediately thereafter, Mr. Lee's counsel identified to defense counsel the two physicians who treated Mr. Lee for his heart attack: Dr. Thomas E. Bielanski and Dr. Fahad Iqbal. It is Mr. Lee's position that the stress that he suffered from being wrongfully fired from his position with the defendant was a proximate cause of the heart attack - that is, that his recent heart attack was due in part to the stress he has been under since being fired from his position by the defendant. In addition to losing his employment along with his salary and a substantial portion of his planned retirement income, his financial precariousness has put him in a position where he may lose his home.
Mr. Lee has moved for leave to designate Doctors Iqbal and Bielanski as treating physicians who will testify at trial and to submit their summary reports under Rule 26(a)(2)(C), Federal Rules of Civil Procedure. A copy of the summary reports are attached as Exhibits A and B to Mr. Lee's motion. [Dkt. #119]. While not denying that Mr. Lee recently suffered a heart attack and that they were promptly notified by plaintiff's counsel, the defendants vigorously object to the motion, invoking the order of October 7, 2014, which provided that there would be no further extensions of discovery. ( See Response to Plaintiff's Motion for Leave to Designate Treating Physicians and Submit Summary Report, Dkt. #124). Perhaps recognizing that the order of October 7th could not have envisioned Mr. Lee's recent unfortunate medical situation, the defendants contend that they will be prejudiced if the motion is granted since they have not had an opportunity to subpoena medical records, depose the treating physicians, or depose plaintiff about issues relevant to factors that might have contributed to a heart attack. (Defendant's Response #124 at 4).
We begin with the defendants' argument that the plaintiff's claim that his heart attack is linked to his firing is "purely speculative" and that a multitude of factors might have contributed to Mr. Lee's heart attack. For purposes of this Motion, this argument is a nonstarter.
The current motion in effect seeks an extension of the expert discovery schedule, and it is pointless to argue that good cause has not been shown. Indeed, it is harder to imagine a better cause than the one set forth in Mr. Lee's motion. Moreover, the motion seeks to invoke the vast discretion that a court has in the oversight and scheduling of discovery under the Federal Rules of Civil Procedure. Cf. Crawford-El v. Britton, 523 U.S. 574, 598 (1998); Semien v. Life Insurance Co. of N.A., 436 F.3d 805, 813 (7th Cir. 2006). Discretion denotes the absence of a hard and fast rule. Langnes v. Green, 282 U.S. 531, 541 (1931); Rogers v. Loether, 467 F.2d 1110, 1111-12 (7th Cir.1972)(Stevens, J.).
Under this standard, a court must act "with regard to what is right and equitable under the circumstances and the law, and directed by the reason and conscience of the judge to a just result." Langnes, 282 U.S. at 541. An abuse of discretion occurs when no reasonable person could agree with the district court's decision. Adams v. City of Indianapolis, 742 F.3d 720, 727 (7th Cir.2014); Cincinnati Life Ins. Co. v. Beyrer, 722 F.3d 939, 953 (7th Cir.2013). That is a difficult showing to make. Indeed, on a virtually identical set of facts, two decision makers can arrive at opposite conclusions, both of which can constitute appropriate exercises of discretion and both be affirmed on appeal. Mejia v. Cook County, Ill., 650 F.3d 631, 635 (7th Cir.2011); United States. v. Banks, 546 F.3d 507, 508 (7th Cir.2008). Cf. United States v. Bullion, 466 F.3d 574, 577 (7th Cir.2006)(Posner, J.) ("The striking of a balance of uncertainties can rarely be deemed unreasonable....").
Under the unforeseen and unforeseeable circumstances that have occurred on the eve of the close of discovery, and there being no dispositive motion schedule or trial date in place, it would be unjust - and thus an abuse of discretion - not to allow the plaintiff to be able to designate the doctors who attended to him following his recent heart attack. To deny the plaintiff's motion to designate Doctors Bielanski and Iqbal would be inconsistent with the oft-stated insistence that the Federal Rules of Civil Procedure be construed to secure the "just" determination of cases and in accord with the general policy favoring the resolution of cases on their merits. See, e.g., Vance v. Rumsfeld, 653 F.3d 591, 608 (7th Cir.2011); Sun v. Board of Trustees of University of IL, 473 F.3d 799, 811-812 (7th Cir.2007); Musser v. Gentiva Health Services, 356 F.3d 751, 759-760 (7th Cir.2004); Rice v. City of Chicago, 333 F.3d 789, 785 (7th Cir. 2003). That is also the view of the Supreme Court. Cf. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-13 (2002); Torres v. Oakland Scavenger Co., 487 U.S. 312, 316 (1988); Hickman v. Taylor, 329 U.S. 495, 500 (1948).
Ultimately, the plaintiff's real argument is that the plaintiff's claim is "purely speculative, " and "at this late date, Plaintiff should not be permitted to pursue such a claim." After all, say the defendants, a "multitude of factors...may contribute to or cause a heart attack...." (Response at 2). The problems with this observation are obvious. First, what if there were no other contributing factors besides stress. Not everyone has high blood pressure and high cholesterol, or other factors that contribute to heart disease. Second, that there may have been other factors at work besides the stress caused by the allegedly unlawful firing does not mean that there can be no causal relationship between the heart attack and the stress. That is a question involving the meaning of proximate cause in tort law on which the defendants' brief is silent. See supra at 2, n. 2. Third, and perhaps most important, the defendants' brief is not supported by a Declaration or affidavit by a physician or other competent health care professional. There is only the unsupported conclusions of the defendants' lawyers, and that is not enough to demonstrate the absence of a causal relationship. Cf. United States v. Chapman, 694 F.3d 908, 914 (7th Cir. 2012)("a lawyer's unsupported statements are, of course, not evidence, '... and here counsel did not submit reports or affidavits from experts, or any other evidence, to demonstrate a causal relationship between Chapman's criminal history, employment history, and acceptance of responsibility and his individual likelihood of reoffending.").
In case after case, the Supreme Court and the Seventh Circuit have not deviated from the uncompromising principle unsupported statements of counsel in briefs are not evidence and do not count. See INS v. Phinpathya, 464 U.S. 183, 188-89 n. 6 (1984); United States v. Adriatico-Fernandez, 498 Fed.Appx. 596, 599-600 (7th Cir. 2012); Clifford v. Crop Production Services, Inc., 627 F.3d 268, 273 n. 6 (7th Cir. 2010); United States v. Diaz, 533 F.3d 574, 578 (7th Cir. 2008); IFC Credit Corp. v. Aliano Brothers General Contractors, Inc., 437 F.3d 606, 610-611 (7th Cir. 2006); United States ex rel. Feingold v. AdminaStar Federal, Inc., 324 F.3d 492, 494, 497 (7th Cir. 2003); Car Carriers Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984). Cf. In re Payne, 431 F.3d 1055, 1060 (7th Cir. 2005) (Posner, J.)(unsubstantiated assertion at oral argument given no weight).
Fourth, the defendants are in essence seeking to have a decision on a motion to extend and modify a discovery schedule serve as a substitute for a Daubert hearing - and that, without any proof from the defendants. There are merely the conclusory assertions by their lawyers which they are demonstrably incompetent to make. And fifth, whether the materials submitted by the plaintiff are sufficient to satisfy Daubert is a question not appropriate for resolution at this time. Ultimately, that is a matter not for me given the ...