United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION ORDER
JEFFREY T. GILBERT, Magistrate Judge.
Defendants Steven Sigalove, M.D. and DuPage Medical Group, Ltd. have filed two more motions in limine (Defs.' Mots. Lim. #5-6, ECF Nos. 92-93) on top of the four motions in limine they previously filed on December 1, 2014 (Defs.' Mots. Lim. #1-4, ECF Nos. 74-77). The two new motions in limine were filed after the deadline set for doing so ( see ECF No. 73) and apparently in reaction to the Court's ruling on Plaintiffs' Motion in Limine #1 (Mem. Op. Order, ECF No. 90), which Defendants quote liberally in their new motions. Plaintiffs included a "Motion to Bar" in their Response to Defendants' Motion in Limine #6. Pls.' Resp. Br., ECF No. 100.
Having reviewed the parties' briefs and other supporting materials, the Court denies Defendants' Motions in Limine #5 and #6 (ECF Nos. 92-93), on the merits and not because they are untimely. Plaintiffs' "Motion to Bar" (ECF No. 100) is stricken because it was not filed in accordance with Local Rule 5.3(b), which requires motions to be filed separately and noticed for presentment, not incorporated into responsive legal memoranda. If Plaintiffs' "Motion to Bar" (ECF No. 100) had been filed properly, it would be denied as moot in light of the Court's ruling on Defendants' Motion in Limine #6 (ECF No. 93).
A. Defendants' Motion in Limine #5
Defendants' Motion in Limine #5 (ECF No. 92) asks the Court to enter an order barring Dr. John Lease, Plaintiffs' expert, from offering any testimony via direct or cross examination relating to the doctrine of res ipsa loquitur or any allegations of failure to obtain informed consent. In support of their motion, Defendants argue that these lines of testimony "tremendously" exceed the scope of Dr. Lease's Rule 26(a)(2) disclosure and should therefore be barred pursuant to Rule 37(c)(1) of the Federal Rules of Civil Procedure. Defs.' Mot. Lim. #5 5, ECF No. 92. Defendants' motion is denied.
1. Res Ipsa Loquitur
Rule 26(a)(2) of the Federal Rules of Civil Procedure requires a party to disclose to other parties the identity of an expert witness and a written report containing, among other things, "a complete statement of all opinions the witness will express and the basis and reasons for them." Fed.R.Civ.P. 26(a)(2)(A), 26(a)(2)(B); Salgado v. Gen. Motors Corp., 150 F.3d 735, 741 n.6 (7th Cir. 1998) ("Rule 26(a) expert reports must be detailed and complete.") (quotations omitted). Defendants argue that, pursuant to Rule 37(c)(1), Dr. Lease must be barred from offering testimony relating to the issues of informed consent and res ipsa loquitur because Dr. Lease did not address these issues in his Rule 26(a)(2) disclosure. See Salgado, 150 F.3d at 741 n.6 ("The incentive for total disclosure is the threat that expert testimony not disclosed in accordance with [Rule 26(a)] can be excluded pursuant to Rule 37(c)(1).") (quotations omitted). The Court has reviewed Dr. Lease's written report and disagrees with Defendants' characterization of the contents of the report.
"The doctrine of res ipsa loquitur allows for proof of negligence by circumstantial evidence when the direct evidence concerning cause of injury is primarily within the knowledge and control of the defendant.'" Aguirre v. Turner Const. Co., 501 F.3d 825, 831 (7th Cir. 2007) (quoting Kolakowski v. Voris, 415 N.E.2d 397, 400, 83 Ill.2d. 388, 394 (1980)). To prevail under a res ipsa loquitur theory, a plaintiff must demonstrate that he was injured (1) in an occurrence that would not have happened in the absence of negligence, and (2) by an instrumentality under the management or control of the defendant. Id. (citing Dyback v. Weber, 500 N.E.2d 8, 11, 114 Ill.2d 232, 238 (1986)).
Dr. Lease states in his expert report that Dr. Sigalove "misdirected the course of the [ultrasound] probe" and that "the misdirection of a suction-assisted lipectomy canula [sic] such that it violates the intra-abdominal cavity... represents a technical error and falls outside the realm of possible expectations. This should not happen in any circumstance and represents a deviation from the accepted standard of care." Dr. Lease's Report 3, ECF No. 92-1. Though Dr. Lease's report does not explicitly use the term " res ipsa loquitur, " it makes clear that Dr. Lease believes Dr. Sigalove had control over the cannula at the time of Plaintiff Daryl Kirkland's ("Daryl's") colon injury and that Daryl's colon injury would not have happened but for negligence. It thus sufficiently comments on the elements of res ipsa loquitur and is not deficient in that regard.
In further support of their motion, Defendants point to portions of Dr. Lease's deposition testimony and argue that trial testimony along those same lines should be excluded because it is "so far afield" from Dr. Lease's expert report. Defs.' Mot. Lim. #5 5, ECF No. 92. Defendants reference, for example, Dr. Lease's deposition testimony that the plastic surgeon "has complete control" over the cannula, that it is "absolutely negligence" for a cannula to enter the abdomen and that it "just should never happen, " and that a cannula entering the abdomen is a "pure technical error." Id. at 2-3. Dr. Lease's deposition testimony is almost a verbatim recitation of his expert report. Defendants' argument that exclusion of this opinion is warranted under Rule 37(c)(1) because it is "so far afield" from Dr. Lease's Rule 26(a)(2) disclosure is without merit. Accordingly, as Dr. Lease sufficiently addressed the elements of res ipsa loquitur in his Rule 26(a)(2) disclosure, Defendants' motion is denied.
2. Informed Consent
Defendants next argue that, pursuant to Rule 37(c)(1), Dr. Lease must be barred from offering testimony relating to informed consent because his Rule 26(a)(2) disclosure was deficient. Dr. Lease comments twice on informed consent in his expert report. He first observes that "[t]he common risks [of the lipectomy procedure] are listed [on Dr. Sigalove's office note] and are noted to have been discussed with the patient." Dr. Lease's Report 1, ECF No. 92-1. He later remarks, "All surgical procedures carry risks, and the common ones are documented to have been discussed with the patient." Id. at 3. Following that statement, Dr. Lease lists some complications that may be expected to result from the liposuction procedure and then explains that the injury Daryl suffered is not an expected complication. Id. Again, while Dr. Lease does not explicitly use the words "informed consent" in his expert report, these comments make clear that informed consent is an element of his expert opinion.
Defendants contend that certain of Dr. Lease's deposition testimony regarding informed consent is "so far afield from his Rule 26(a)(2) disclosure" that trial testimony along those same lines must be barred. Defs.' Mot. Lim. #5 5, ECF No. 92. At his deposition, Dr. Lease stated that surgeons are required to obtain informed consent for all surgical risks, no matter how rare the risk may be; that Dr. Sigalove told Daryl a thermal colon injury was not a surgical risk; and that Dr. Sigalove could not have obtained informed consent from Daryl because he told Daryl that a thermal injury to the colon was not a risk. Id. at 3-4. Dr. Lease's deposition testimony expounds on issues he previously discussed in his expert report. Here, too, Defendants' argument that Rule 37(c)(1) warrants exclusion is without merit.
To the extent that Defendants' Motion in Limine #5 is based on the Court's January 16, 2015 Memorandum Opinion and Order (ECF No. 90) holding that Dr. Karol Gutowski, one of Defendants' disclosed experts, cannot offer testimony that is "so far afield from his Rule 26(a)(2) disclosure, " the issues here are much different. Dr. Gutowski did not talk at all in his expert report about what effects, if any, a prior laparoscopic Nissen fundoplication procedure may have had on a liposuction cannula entering the abdominal cavity. In fact, he admitted during his deposition that he originally dismissed that thought as a viable explanation and did not change his opinion until after Defendants already had disclosed his expert report to Plaintiffs. As Dr. Gutowski put it, "Initially... I didn't think there was anything about [Daryl's] past medical history that could have contributed to [the colon injury]... [I]n the back of my mind I thought I guess there's a possibility of a rare hernia... [b]ut based on the information provided, I didn't see any evidence of that." Dr. Gutowski's ...