United States District Court, N.D. Illinois, Western Division
VALERIE R. McCANN, Special Administrator of the Estate of Patrick McCann, Plaintiff,
STEPHEN A. CULLINAN, M.D., et al., Defendants.
MEMORANDUM OPINION AND REPORT AND
D. Johnston, U.S. Magistrate Judge.
pending before the Court are the motions of Gregory A.
Beitel, Wendy Kerwin, Ogle County, Ogle County Sheriff's
Department and Cindy Mongan (collectively,
“Defendants”) to strike Valerie McCann's
rebuttal expert reports. (Dkt. ##298, 300.) McCann
(“Plaintiff”) has responded to the motions and
Defendants have replied. (Dkt. ## 301, 302, 303.) For the
reasons stated in Court on August 30, 2016, and those that
follow, it is the Court's report and recommendation that
the motions be granted. Plaintiff is given until September
20, 2016 to file an objection to this report and
recommendation. The failure to do so may result in waiver of
case involves the death of Patrick McCann. He suffered
horrific burns while allegedly setting his mother's house
ablaze after trying to strangle her. Patrick was first
treated at St. Anthony Medical Center in Rockford, Illinois.
He was then discharged and transported to and detained in the
Ogle County Jail. Patrick was administered methadone for
pain. He eventually died. The coroner initially ruled
Patrick's death to be caused by cardiac arrhythmia
resulting from a natural condition or by cardiomegaly
resulting from left ventricular hypertrophy, but later
changed the cause of death to be due to the adverse effects
of methadone, based, at least in part, on information
provided by Plaintiff's counsel.
discovery in this 2011 case has been protracted and
cumbersome. See, e.g., McCann v. Cullinan, No. 11 CV
50125, 2015 U.S. Dist. LEXIS 91362 (N.D. Ill., July 14,
2015). Over one year ago, the Court allowed Plaintiff the
opportunity to provide the retained experts' reports,
subject to paying certain monetary sanctions. Id. at
*52. The sanctions were paid, and Defendants deposed
Plaintiff's retained expert witnesses. Thereafter, the
Court ordered that Defendants' retained experts'
reports be served on Plaintiff by February 19, 2016. (Dkt.
#290.) The Court then ordered that Defendants' retained
experts be deposed by April 29, 2016. (Dkt. #295.) The case
was set for a status on May 10, 2016.
May 10, 2016 status, Plaintiff verbally requested to be
allowed to use rebuttal expert witnesses. The Court and
counsel discussed at length the nature of “rebuttal
experts.” The Court noted that the U.S. District Court
for the Northern District of Illinois maintains a standing
order limiting one retained expert witness per subject matter
absent a showing of good cause that more are needed, and that
District Judge Kapala has adopted the standing order. The
Court expressed its concern that the “rebuttal
experts” would either simply bolster the opinions
provided in Plaintiff's experts' initial reports or
add new opinions. Counsel for Defendants asserted that they
believed that the “rebuttal experts” did just
that. The Court warned Plaintiff' counsel that if the
witnesses were not true rebuttal experts, they would be
barred. At the conclusion of the May 10, 2016 status, the
Court required Plaintiff to provide the reports to Defendants
by June 15, 2016, and set the case for status on June 21,
2016. Plaintiff timely complied and provided the reports of
Victor Lofgreen and Jane Grametbaur. (Lofgreen had previously
provided an initial expert report on behalf of Plaintiff.)
June 21, 2016 status, Defendants asserted that Lofgreen's
second report and Grametbaur report were not truly rebuttal
expert reports. Consequently, the Court entered a briefing
schedule, requiring Defendants to file a motion to strike
these “rebuttal expert” reports and allowing
Plaintiff the opportunity to respond to the motions.
next status, on August 30, 2016, the Court verbally ruled on
the motions to strike, recommending that the district judge
grant them. This Report and Recommendation provides a fuller
explanation of the Court's ruling.
sequence of expert discovery is set by the Court.
Fed.R.Civ.P. 26(a)(2)(D). Generally, the party with the
burden of proof on an issue should disclose its initial
report first. Fed.R.Civ.P. 26 1993 Committee Comments;
Manual for Complex Litigation, §11.481, p. 98
(4th ed. 2004). Federal courts have the discretion and
inherent authority to limit the number of expert witnesses
who can testify at trial. Blair v. Eagle-Picher
Industries, Inc., 962 F.2d 1492, 1500 (10th Cir. 1992);
Aetna Casualty & Surety Co. v. Guynes, 713 F.2d
1187, 1193 (5th Cir. 1983). Indeed, the courts are told to
“[d]iscourage efforts by attorneys to try to bolster
the weight of their case by cumulative expert
testimony.” Manual for Complex Litigation,
§23.32, p. 496. The Final Pretrial Order to the United
States District Court for the Northern District of
Illinois' Standing Order Establishing Pretrial Procedure
provides that “[o]nly one expert witness on each
subject for each party will be permitted to testify absent
good cause shown.” Judge Kapala, who is assigned to
this case, has adopted the Standing Order. The rationale for
this limitation is based on the principle that multiple
expert witnesses expressing the same opinions on the same
subject matter is a waste of time and needlessly cumulative.
Stanfield v. Dart, No. 10 C 6569, 2013 U.S. Dist.
LEXIS 20175, at *12 n. 3 (N.D. Ill. Feb. 14, 2013). Limiting
the number of expert witnesses also reduces the unfair
possibility that jurors will resolve competing expert
testimony by “counting heads” rather than
evaluating the quality and credibility of the testimony.
Id.; cf. Seventh Circuit Civil Pattern Jury
Instruction 1.17 (2010).
evidence contradicts, impeaches, or defuses the impact of
evidence offered by an adverse party; testimony that is
offered merely as additional support for evidence for its
case in chief is not “rebuttal.” Peals v.
Terre Haute Police Dep't, 535 F.3d 621, 630 (7th
Cir. 2008). Rebuttal expert testimony is intended solely to
contradict or rebut opinions on the same subject matter
identified by an initial expert witness. R & O
Constr. Co. v. Rox Pro Int'l Grp., Ltd., No. 2:09 C
01749-LRH-LRL, 2011 U.S. Dist. LEXIS 78032, at *4-5 (D. Nev.
July 18, 2011). Rebuttal expert testimony may not be used to
present new opinions or simply bolster a previous expert
opinion. Id. at *8-9; Stanfield, 2013 U.S.
Dist. LEXIS 20175, at *8-10 (a party may not offer
“rebuttal” opinion testimony only to ...