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McCann v. Cullinan

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

September 2, 2016

VALERIE R. McCANN, Special Administrator of the Estate of Patrick McCann, Plaintiff,
STEPHEN A. CULLINAN, M.D., et al., Defendants.


          Iain D. Johnston, U.S. Magistrate Judge.


         Currently 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 this issue.


         This 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.


         Expert 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.

         At the 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.)

         At the 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.

         At the 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.


         Legal Principles

         The 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).

         Rebuttal 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 ...

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