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Holmes v. City of Chicago

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

November 1, 2016

HUGO HOLMES, Plaintiff,
v.
CITY OF CHICAGO, et al., Defendants.

          MEMORANDUM AND OPINION ORDER

          Robert M. Dow, Jr. & United States District Judge

         Before the Court are Plaintiff's Daubert motion to bar expert testimony by Dr. Richard McPartlin [243], Plaintiff's motions in limine [258], [259], [260], [261], [262], and Defendant's motions in limine [257], including Defendant's motion to bar expert testimony by Dr. Edward Keuer [257 No. 9, at 18]. For the reasons set forth below, Plaintiff's Daubert motion to bar expert testimony by Dr. Richard McPartlin [243] is denied. Defendant's motion [257 No. 9, at 18] to bar expert testimony by Dr. Edward Keuer is denied.

         Plaintiff's motion [258] to bar reference to harassment allegations by Donna Smith is granted. Plaintiff's motion [259] to bar testimony of citizen complaints about prostitution is granted. Plaintiff's motion [260] to bar evidence of disciplinary action for misuse of his work computer is granted in part and denied in part. Plaintiff's motion [261] to bar reference to Defendant's cancer condition is granted. Plaintiff's omnibus motion in limine [262] is granted in part and denied in part: the Court grants Plaintiff's motion No. 1 [262, at 1], motion No. 2 [262, at 1], motion No. 3 [262, at 1-2], motion No. 4 [262, at 2], motion No. 5 [262, at 2], motion No. 7 [262, at 2], motion No. 8 [262, at 2-3], motion No. 9 [262, at 3], motion No. 10 [262, at 3-4], motion No. 11 [262, at 4], and motion No. 12 [262, at 4]; the Court denies Plaintiff's motion No. 6 [262, at 2].

         Defendant's motions in limine [257] are granted in part and denied in part: the Court grants Defendant's motion No. 4 [257, at 5], motion No. 5 [257, at 9], and motion No. 10 [257, at 22]; the Court grants in part and denies in part Defendant's motion No. 1 [257, at 1], motion No. 2 [257, at 3], motion No. 3 [257, at 4], motion No. 6 [257, at 11], motion No. 7 [257, at 16], and motion No. 8 [257, at 17]. This case remains set for a jury trial to commence on November 7, 2016.

         I. Background

         On the morning of April 25, 2008, Plaintiff Hugo Holmes was arrested and charged with solicitation of a sex act. At the time of Plaintiff's arrest, Defendant Chicago Police Officer Michelle Acosta, along with other Chicago police officers who are no longer defendants in this suit, [see 181, 217], were conducting a “prostitution solicitation sting operation” to arrest individuals who solicited a sex act from a police officer impersonating a prostitute. Defendant's role was to act as a “decoy” prostitute and signal to Officer Herrera when a person solicited her for a sex act. The officers would then make an arrest for solicitation of a sex act. Officer Herrera's role was to watch for Defendant's signal and to protect her safety. Officer Matich and Officer Coffee were to park their unmarked police car out of sight of a potential offender and wait for a radio transmission from Officer Herrera indicating that a person had solicited a sex act from Defendant.

         At the time of his arrest, Plaintiff was a Field Service Supervisor of the Chicago Department of Transportation's (“CDOT”) Division of Infrastructure Management, for CDOT's Central District. On April 25, 2008, Plaintiff was working in the Central District, which included the intersection of 47th Street and Washtenaw. At approximately, 8:30 a.m., Plaintiff was driving his 2006 GMC pickup truck eastbound on 47th Street. After passing the intersection at 47th Street and Washtenaw, Plaintiff drove around the block as follows: he took a left turn on Talman Avenue (the next block east from Washtenaw) and proceeded one block north to 46th Street; Plaintiff then turned left and proceeded one block west on 46th Street to Washtenaw Avenue and took another left turn and proceeded one block southbound on Washtenaw Avenue until he came to a stop at approximately 4658 S. Washtenaw Avenue.

         Plaintiff testified that a woman walked toward his pickup truck while he was stopped on Washtenaw and 47th Street and stated, “$20 for a blowjob?” Plaintiff denies that he solicited a sex act and further testified that he ignored Defendant's solicitation with disgust and a dismissive gesture, telling her, “I'm working.” In contrast, Defendant testified that Plaintiff offered her $20 in exchange for “head” and to “lick her titty.” Plaintiff did not see Defendant wave or gesture with her hand when he was stopped and he did not look back at her when he drove away. Defendant testified that she signaled Officer Herrera that Plaintiff had solicited her for a sex act. Officer Herrera then told Officers Matich and Coffee over the radio that Plaintiff solicited a sex act from Defendant.

         Plaintiff drove his pickup truck across 47th Street and southbound on Washtenaw. Officers Matich and Coffee pulled their unmarked police car out of the ally off of Washtenaw south of 47th Street and stopped Plaintiff. The officers arrested Plaintiff and charged him with solicitation of a sex act in violation of 720 ILCS 5/11-14.1-A, and his car was impounded pursuant to Chapter 8-8-060 of the Chicago Municipal Code.[1] Plaintiff remained in custody until he posted bond at approximately 4:00 p.m. on April 25, 2008.

         The underlying criminal case against Plaintiff, People v. Hugo Holmes, No. 08 MC1 222705, was called for a jury trial in the Circuit Court of Cook County, Illinois, Municipal Department, First District, in late September 2008. However, the State decided not to pursue the charge of prostitution solicitation. Plaintiff also took part in a municipal administrative proceeding before an Impound Hearing Officer to recover his impounded vehicle. Plaintiff prevailed and received a full refund of the impoundment fees. Finally, since Plaintiff was a City employee, the Inspector General's Office of the City of Chicago conducted an investigation of Plaintiff's alleged conduct. In the end, the Inspector General concluded that the investigation should be “closed not sustained.” Plaintiff filed the instant lawsuit, bringing a claim against Defendant Officer Michelle Acosta pursuant to 42 U.S.C. § 1983 for false arrest in violation of the Fourth Amendment, as well as state law claims for malicious prosecution and intentional infliction of emotional distress. The Court previously dismissed Plaintiff's other claims against Defendant Acosta and the other officers. [181, 217.] In addition to bringing the individual claims, Plaintiff alleged liability on the part of Defendant City of Chicago (“the City”). See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1976).

         The City moved to bifurcate [50] Plaintiff's Monell claims against the City from the claims against Defendant Acosta and to stay discovery against it on the Monell claims until the resolution of all claims against Defendant Acosta. On April 14, 2011, the Court granted the City's motion pursuant to the parties' agreement to bifurcate discovery. See [52.] On November 17, 2015, after considering the parties' status reports [222, 223] articulating their views on whether the Court should postpone trial as to Plaintiff's Monell claim until the claims against Defendant Acosta are resolved, the Court ruled that it should continue to defer further litigation of Plaintiff's Monell claim until the conclusion of trial on Plaintiff's claims against Defendant Acosta.

         A jury trial is set to begin on November 7, 2016. The claims to be tried at that time are Plaintiff's false arrest, malicious prosecution, and intentional infliction of emotional distress claims against Defendant Acosta.

         II. Daubert Motions [243] and [257, No. 9]

         Portions of the damages Plaintiff claims relate to an outbreak of herpes zoster, commonly known as shingles, with complications of post-herpetic neuralgia (subsequent nerve pain sometimes resulting from shingles). Plaintiff claims that his shingles were caused by the stress of his arrest and the related proceedings and that the condition leaves him in a state of chronic physical discomfort. Defendant has disclosed Dr. McPartlin as a witness who may be called to provide expert testimony that Plaintiff's shingles were not caused by the stress of his arrest.

         Plaintiff argues that Dr. McPartlin's should be barred from testifying pursuant to Federal Rule of Evidence 702 because his opinion is based on faulty research, an incomplete and unscientific methodology, and was formed without fully considering all of the salient facts. [243.] Plaintiff intends to call his expert, Dr. Edward Keuer, to offer his opinion that stress was the primary cause of Plaintiff's shingles. Defendant moves to bar Dr. Keuer's testimony, arguing that his opinion is purely speculative. [257, Defendant's Motion No. 9.] The Court will address each expert in turn.

         A. Legal Standard

         Federal Rule of Evidence 702[2] and the Supreme Court's decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), provide the legal framework for the admissibility of expert testimony. C.W. ex rel. Wood v. Textron, Inc., 807 F.3d 827, 834 (7th Cir. 2015). The purpose of the Daubert inquiry is to scrutinize proposed expert witness testimony to determine whether it has “the same level of intellectual rigor that characterizes the practice of an expert in the relevant field” so as to be deemed reliable enough to present to a jury. Lapsley v. Xtek, Inc., 689 F.3d 802, 805 (7th Cir. 2012) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999)). Rule 702 requires the district court judge to act as a gatekeeper to ensure that admitted expert testimony is relevant, reliable, and has a factual basis. Id. at 809; see also Daubert, 509 U.S. at 589. The Seventh Circuit has stressed that “the key to the gate is not the ultimate correctness of the expert's conclusions. Instead, it is the soundness and care with which the expert arrived at her opinion[.]” Textron, 807 F.3d at 834 (citation and internal quotation marks omitted) (alteration in original).

         To determine whether expert testimony is admissible, the district court must ascertain (1) whether the expert is qualified, (2) whether his methodology is scientifically reliable, and (3) whether the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 893 (7th Cir. 2011). “The proponent of the expert bears the burden of demonstrating that the expert's testimony would satisfy the Daubert standard.” Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009). Daubert sets forth the following non-exhaustive factors for the district court to consider when assessing an expert's methodology: (1) whether the theory has been or is capable of being tested; (2) whether the theory has been subjected to peer review and publication; (3) the theory's known or potential rate of error; and (4) the theory's level of acceptance within the relevant community. Daubert, 509 U.S. at 593-94; see also Bielskis, 663 F.3d at 893. However, the test for reliability is flexible, and “the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.” Kumho Tire Co., 526 U.S. at 142; see also United States v. Pansier, 576 F.3d 726, 737 (7th Cir. 2009) (noting that the Seventh Circuit “gives the [district] court great latitude in determining not only how to measure the reliability of the proposed expert testimony but also whether the testimony is, in fact, reliable”).

         B. Analysis

         1. Plaintiff's Challenge to Dr. McPartlin [243]

         Defendant has disclosed Dr. McPartlin as an expert witness who may be called to testify that Plaintiff's shingles were not caused by the stress of his allegedly false arrest. Plaintiff argues that the testimony of Dr. McPartlin should be barred because the testimony is not based on sufficient facts or data and is not the product of reliable principles and methods. Dr. McPartlin states in his expert disclosure report:

After reviewing the medical records and deposition transcripts provided to me, it is my opinion, to a reasonable degree of medical certainty, that Mr. Holmes' April 24, 2010 Shingles diagnosis, and, therefore, his Post-herpetic Neuralgia, arising 2 years after his April 25, 2008 arrest, are not related to the stress of his arrest and subsequent sequelae of the arrest. Although in medical literature there are anecdotal reports of Shingles following periods of “perceived” stress, the onset of such cases of Shingles are proximally related to the stressful event, and are not observed more than 12 months following the stressful event.

[245, Exhibit 6, at 2.]

         Plaintiff does not challenge Dr. McPartlin's qualifications, and the Court concludes that Dr. McPartlin is qualified to testify about the cause of Plaintiff's shingles. Dr. McPartlin has been a board-certified physician in internal medicine for more than thirty-five years and has treated hundreds of patients with shingles. [245, Exhibit 2, at 73.] As an internist, he specializes in the diagnosis of adult diseases and the treatment of nonsurgical adult diseases. [245, Exhibit 2, at 44-45.] Plaintiff also does not challenge the relevance of Dr. McPartlin's testimony. The Court agrees that reliable testimony on this subject would assist the jury in understanding shingles and post-herpetic neuralgia, the risk factors for developing these medical conditions, and whether Plaintiff's arrest caused his outbreak of shingles and post-herpetic neuralgia.

         Plaintiff argues that Dr. McPartlin's testimony is unreliable because it is not based on sufficient facts or data and is not the product of reliable principles and methods. First, Plaintiff contends that Dr. McPartlin did not take into account the sequelae of the arrest and the stress that these subsequent events could have caused Plaintiff. [245, at 5.] According to Plaintiff, Dr. McPartlin reached his conclusion simply based on the timing of the arrest in April 2008 and Plaintiff's outbreak of shingles in April 2010. Since Defendant's counsel suggested that Dr. McPartlin read certain highlighted sections of Plaintiff's deposition, Plaintiff argues that Dr. McPartlin “relied entirely on spoon-fed facts” when forming his expert opinion. [245, at 7.] Plaintiff also criticizes Dr. McPartlin for not speaking with or examining Plaintiff to obtain necessary information. [245, at 8-9.]

         The Court does not find these arguments for excluding Dr. McPartlin's proposed testimony convincing. Although Dr. McPartlin conceded that he did not read Plaintiff's entire deposition and read only the highlighted portions suggested by Defendant's counsel and the pages surrounding these highlighted portions, [245, Exhibit 2, at 33-34], Dr. McPartlin was aware of and considered the sequelae of the arrest. In his expert disclosure report, Dr. McPartlin states his opinion that Plaintiff's shingles “are not related to the stress of his arrest and subsequent sequelae of the arrest.” [245, Exhibit 6, at 2.] When asked what he meant by “subsequent sequelae of the arrest, ” Dr. McPartlin explained during his deposition that he meant “[a]nything that would have happened from the arrest * * * in this case, I guess the impounding of his automobile or anything like that, or harassment, as he said. Any subsequent events that might be directly or indirectly from the arrest itself.” [245, Exhibit 2, at 100:15-22.] Dr. McPartlin also explained during his deposition that, in his view, the sequelae of the arrest included: (1) the criminal case and the fact that it had been dismissed, [245, Exhibit 2, at 114, 127], (2) the fact that Plaintiff's job was in jeopardy and Plaintiff was under review for a period of time but did not lose his job or any monetary amounts from his job, [245, Exhibit 2, at 113, 127, 129], (3) the current litigation, [245, Exhibit 2, at 115], and (4) the fact that the money from the impoundment had been returned to Plaintiff, [245, Exhibit 2, at 127]. Dr. McPartlin also reviewed Plaintiff's complaint, Defendant's answer, and Plaintiff's answers to responses to Defendant's first set of interrogatories. [245, Exhibit 6, at 3.] Thus, Dr. McPartlin did not ignore the sequelae of the arrest. And, to the extent that Plaintiff believes that Dr. McPartlin based his testimony on cherry-picked facts, he is free to explore that topic on cross-examination at trial.

         Nor is it of consequence that Dr. McPartlin did not examine or speak with Plaintiff directly. An expert is not required to examine or speak directly with the Plaintiff to provide reliable expert testimony based on sufficient facts. See Fed.R.Evid. 703 (“An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.” (emphasis added)); Dana Corp. v. Am. Standard, Inc., 866 F.Supp. 1481, 1501 (N.D. Ind. 1994) (noting that deposition testimony is a proper basis for expert testimony); cf. Cooper v. Carl A. Nelson & Co., 211 F.3d 1008, 1020-21 (7th Cir. 2000) (plaintiff's self-reported medical history can be proper basis for expert opinion). Here, Dr. McPartlin reviewed Plaintiff's medical records from Dr. Silva, who treated Plaintiff's shingles, and Plaintiff's medical records from Dr. Close, who treated Plaintiff's post-herpetic neuralgia and who Plaintiff will present as a fact witness. [245, Exhibit 6, at 3.] Further, he reviewed the entire deposition of Dr. Silva and the entire deposition of Dr. Close. Thus, Dr. McPartlin's testimony is based on sufficient facts and data. See Fed.R.Evid. 702(b).

         Next, Plaintiff argues that Dr. McPartlin's testimony is not reliable because it is based on a flawed review of medical literature. Plaintiff contends that “Dr. McPartlin failed to survey published literature, relied on dubious and unknown sources obtained through a brief Google search, and omitted any recording of his research process, rending his opinion woefully inadequate, completely unreliable, and inadmissible.” [245, at 10.]

         The Court is not convinced that Dr. McPartlin's testimony is based on “a flawed review of medical literature.” Dr. McPartlin relied on the medical textbook Harrison's Principles of Internal Medicine, [245, Exhibit 2, at 20], two dermatology texts/treatises, [245, Exhibit 2, at 21], and around six to eight online articles, [245, Exhibit 2, at 23]. He explained that he specifically looked for information on stress and shingles and only found two articles that dealt with this topic. According to Dr. McPartlin, one article said that stress originally heightens the immune system but that there was no specific evidence on the long term effects. He opined that the other article was inconclusive about the connection between stress and shingles generally but concluded that a stressful event occurring more than six months prior to the shingles outbreak was not a risk factor. [245, Exhibit 2, at 79-80.] Dr. McPartlin also explained that in his review of the medical literature, stress was not mentioned as one of the known risk factors for shingles and stated that he was not familiar with any other literature that identified stress as a known risk factor. Although Plaintiff correctly points out that it is unclear whether the articles Dr. McPartlin consulted were peer-reviewed, this is merely one of many factors the Court can consider when assessing an expert's methodology. Thus, the Court concludes that Dr. McPartlin's testimony is the product of reliable principles and methods, and the criticisms that Plaintiff offers are appropriate for cross-examination but do not justify exclusion under Daubert. Plaintiff's motion is denied.

         2.Defendant's Challenge to Dr. Keuer [257, No. 9]

         Plaintiff intends to call Dr. Keuer as an expert witness to testify that “stress was the primary/trigger cause of [Plaintiff's shingles] (the proximate cause being, of course, the virus itself).” [257, Exhibit 14, at 2.] In Dr. Keuer's opinion, Plaintiff's arrest and the subsequent events caused him stress that reduced his cell-mediated immunity and triggered his shingles infection. Defendant moves to bar Dr. Keuer's expert testimony, arguing that his opinion is purely speculative.

         First, Defendant argues that Dr. Keuer's conclusions are outside the scope of his area of expertise as a dermatologist and that Dr. Keuer is unqualified to testify about the connection between stress and shingles because Dr. Keuer is not a specialist in whether a patient's immune system is compromised or in the area of chronic stress. The Court concludes that Dr. Keuer is qualified to offer expert testimony about the cause of shingles. Dr. Keuer is a board certified dermatologist and has taught dermatology at Loyola Stritch School of Medicine for thirty-four years. Dr. Keuer does not need to be a specialist in immunology or chronic stress to offer an expert opinion that stress weakened Plaintiff's immune system, leading to his outbreak of shingles.

         Next, Defendant challenges the reliability of Dr. Keuer's methodology, arguing that “[n]one of the literature [reviewed by Dr. Keuer] discusses a stress similar to an arrest, ” and “[n]one of the literature supports a finding that ongoing stress arising from the court and administrative proceedings occurring subsequent to Plaintiff's arrest (or a comparable ongoing stress arising from ongoing events such as litigation) could cause the onset of [shingles].” [257, at 21.] This argument fails because the medical literature relied upon by Dr. Keuer does not need to discuss the specific facts of this case: ongoing stress from an arrest and related events, including litigation. Rather, Dr. Keuer could properly apply the principles from the medical literature to the facts of this case. Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, (1997) (“Trained experts commonly extrapolate from existing data.”).

         Finally, Defendant takes issue with Dr. Keuer's elimination of “advanced age” as a shingles risk factor for Plaintiff, who was 58 at the time of diagnosis. [257, Exhibit 15, at 76- 77.] However, Dr. Keuer's expert report states that 60 and above would qualify as “advanced age.” Further, he explained in his deposition that in his view, “his age is not a high risk factor because the incidence in the 50 to 59 age group is not very high * * *[p]erhaps 3.9 to 4.5 cases per thousand.” [257, Exhibit 15, at 76.] Thus, Dr. Keuer gave support for his method of eliminating “advanced age” as a risk factor for Plaintiff. Therefore, the Court concludes that Dr. Keuer's methodology was reliable. Moreover, as with Dr. Partlin, any flaws that Defendant sees in Dr. Keuer's analysis may be explored on cross-examination. For the foregoing reasons, Defendant's motion is denied.[3]

         III. Motions in Limine

         A. Legal Standard

         A motion in limine is a motion made “at the outset” or “preliminarily.” Black's Law Dictionary 803 (10th ed. 2014). Motions in limine may be used to eliminate evidence “that clearly ought not be presented to the jury because [it] clearly would be inadmissible for any purpose.” Jonasson v. Lutheran Child & Family Svcs., 115 F.3d 436, 440 (7th Cir. 1997). The party seeking to exclude evidence “has the burden of establishing the evidence is not admissible for any purpose.” Mason v. City of Chicago, 631 F.Supp.2d 1052, 1056 (N.D. Ill. 2009). The power to rule on motions in limine inheres in the Court's role in managing trials. Luce v. United States, 469 U.S. 38, 41 n.4 (1984). Because motions in limine are filed before the Court has seen or heard the evidence or observed the trial unfold, rulings in limine may be subject to alteration or reconsideration during the course of trial. United States v. Connelly, 874 F.2d 412, 416 (7th Cir. 1989).

         B. Plaintiff's Motions in Limine

         1. Plaintiff's Motion to Bar Evidence and Testimony Regarding Allegations by Donna Smith of Harassment [258]

         Plaintiff moves to bar evidence and testimony related to allegations by Donna Smith of harassment. [258.] Smith previously worked under the supervision of Plaintiff and was subject to discipline by the Department of Transportation for poor job performance. Plaintiff alleges that Smith spread unfounded rumors that Plaintiff had threatened her that she might lose her job if she did not spend time with him outside of work and accept his advances. Plaintiff argues that the rumors of harassment are unsupported by any evidence and are irrelevant to the case at hand and should thus be excluded under Federal Rule of Evidence 402. See Fed.R.Evid. 402 (“Irrelevant evidence is not admissible.”).

         Defendant has no objection to this motion, unless Plaintiff opens the door by, for example, arguing or eliciting testimony that he has never been accused of inappropriate behavior by women or has never been accused of misconduct at work. [270, at 1.] Plaintiff accepts this condition. Thus, the Court grants this motion in limine, but if Plaintiff opens the door, Defendant will be permitted to bring in evidence of the harassment allegations by Donna Smith.

         2.Plaintiff's Motion to Bar Evidence and Testimony of Citizen Complaints About Prostitution or Frequency of Prostitution [259]

         Plaintiff moves to bar evidence and testimony about alleged complaints about prostitution or prostitution solicitations. Plaintiff sought discovery of evidence relevant to prostitution, prostitution solicitation, or the frequency of such acts, in the general area of Plaintiff's arrest. The magistrate judge denied Plaintiff's discovery request based on lack of relevance.

         Defendant does not intend to introduce evidence relating to citizen complaints of prostitution in the area in which Plaintiff was arrested; rather, Defendant is expected to testify that she and her fellow officers went to that location at their supervisor's direction. Defendant argues that Plaintiff should be barred from suggesting that (1) Defendant and her fellow officers did not have any reasonable basis for choosing 47th Street and Washtena Avenue as the location for their prostitution mission, or (2) Defendant and her fellow officers chose that location for a ...


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