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Troeger v. Minnesota Life Insurance Co.

United States District Court, C.D. Illinois

November 9, 2016

JAMIE TROEGER, Administrator of the Estate of Gayle Mitchell, Deceased, Plaintiff,



         This matter is now before the Court on Defendant's [34] Motion in Limine to Exclude Expert Opinion Testimony. For the reasons set forth below, Defendant's Motion [34] is DENIED.


         On July 20, 2002, Michael Mitchell fractured his neck after falling head-first into Kickapoo Creek. The fracture resulted in quadriplegia, or paralysis of all four extremities, m September 2005, Michael became a resident at Rose Garden Care Center ("Rose Garden"), a residential care facility in Peoria Heights, Illinois. He developed several medical conditions after his paralysis, including seizure disorder, depression, hypertension, obesity, dyslipidemia, bowl mobility disorder, gastroesophageal reflux disease ("GERD"), deep venous thrombosis, spasticity and chronic pain.

         On at least four occasions between 2005 and 2006, Michael was found "non-responsive" by caretakers at Rose Garden. On June 24, 2006, Michael was admitted to the intensive care unit at Proctor Hospital for respiratory failure after he became unresponsive and stopped breathing during ambulance transport to the hospital. In August 2006, Michael was transferred to OSF Saint Francis Medical Center ("OSF") when he was found unresponsive and caretakers were unable to feel a pulse. Michael was again found unresponsive by Rose Garden caretakers and transferred to OSF in September 2006. He was successfully resuscitated on each occasion.

         On July 28, 2007, Michael began "actively seizing" at Rose Garden. He was initially breathing on his own, but stopped breathing. Rose Garden called paramedics, and Advanced Medical Transport ("AMT") transferred Michael to OSF Hospital. AMT paramedics documented Michael's condition during transport, noting "no evidence of trauma" in any location and an "unremarkable" physical examination. ECF Doc. 16, ¶ 22. When paramedics attempted to intubate Michael, they suctioned his airway and aspirated foreign material. ECF Doc. 28, at 13. Michael could not be resuscitated and was pronounced dead at OSF Hospital. Dr. Richard C. Frederick was the emergency room physician who treated Michael at OSF on July 28, 2007. Dr. Frederick signed the medical records prepared by a resident which noted, under the heading of Initial Physical Exam, "General-no evidence of trauma . . . Head/Neck-atraumatic . . . Extremities-no signs of trauma." See ECF Doc. 16-10. Those records also indicated that Michael had vomit on his face. On October 18, 2007, a Coroner's Inquest into Michael's death was held by Peoria County Coroner Johnna Ingersoll. The jury found that Michael's death was "natural" from "seizure disorder." Michael, as a former employee of the State of Illinois, obtained life insurance coverage under a group policy for state employees. The life insurance policy was issued by Minnesota Life Insurance Company ("Minnesota Life") and included Accidental Death and Dismemberment ("AD&D") coverage. Minnesota Life paid Michael's wife, Gayle Mitchell, $156, 500 pursuant to the policy's Basic Life and Optional Life coverage. However, Minnesota Life declined to pay the additional $156, 500 under the AD&D double indemnity provision. The AD&D provision of the policy states:

Accidental death or dismemberment by accidental injury as used in this supplement means that your death or dismemberment results, directly and independently of disease or bodily infirmity, from an accidental injury which is unexpected and unforeseen.

ECF Doc. 16, ¶10.

         The policy also stated "injury must occur while your coverage under this supplement is in force" and "death or dismemberment must occur within 365 days after the date of the injury and while your coverage under this supplement is in force." Id.; ECF Doc. 16-1, at 27. The AD&D policy further provided that "[i]n no event will [Minnesota Life] pay the accidental death or dismemberment benefit where your death or dismemberment results from or is caused directly by any of the following ... (3) bodily or mental infirmity, illness or disease; or (4) medical or surgical treatment. . . ." Id.

         On October 14, 2014, Plaintiff provided her Rule 26(a) initial disclosures, which identified "Richard C. Frederick, M.D." as an individual likely to have discoverable information on the subject of "[diagnosis and treatment of Michael Mitchell when he arrived at the hospital, and his death." ECF Doc. 22, at 2. Plaintiff did not disclose Dr. Frederick as an expert witness. The Court's March 27, 2015, scheduling order provided that Plaintiff's expert disclosure was due by September 7, 2015, with depositions to be completed by October 7, 2015. On January 21, 2015, the Court granted Plaintiff's motion for an extension of time and set a discovery deadline of March 7, 2016. Plaintiff scheduled a deposition of Dr. Frederick and provided him with the medical records from OSF and AMI Plaintiff's counsel asserts that he "learned Dr. Frederic[k]'s [aspiration] opinion based on the records was the likely cause of death was aspiration from vomiting in the 10 minute conversation he had before the deposition was finally taken on March 4, 2016."

         On March 18, 2016, Defendant moved to exclude Dr. Frederick's undisclosed expert testimony, arguing that Plaintiff failed to disclose Dr. Frederick as an expert witness under Fed.R.Civ.P. 26(a)(2), and failed to include either a written report under Fed. R. Civ. P 26(a)(2)(B) or a summary of expected testimony under Fed.R.Civ.P. 26(a)(2)(C). See ECF Docs. 17, 18. Defendant further argued that Dr. Frederick's testimony was unreliable under Daubert. Plaintiff's response argued that Dr. Frederick's opinion on the cause of death was a "pleasant surprise, " and that "Plaintiff's Initial Disclosures disclosed Dr. Frederick] as a witness to testify on the diagnosis and treatment of Mitchell and death" and the initial disclosures also provided copies of the medical records. ECF Doc. 20-1, at 20. That, Plaintiff argued, was "all Rule 26(a)(2)(C) requires." Id.

         On July 8, 2016, a status conference was held and the Court granted Plaintiff's motion to amend the Complaint in order to name Minnesota Life, rather than Securian, as Defendant. The Court also denied Defendant's motion to exclude Dr. Frederick's testimony, allowed Minnesota Life to depose Dr. Frederick, and required Plaintiff's counsel to make an appropriate certification or disclosure under Fed.R.Civ.P. 26(a)(2)(B) or (C). Defendant was granted leave to supplement their retained expert disclosure after Dr. Frederick was deposed, and the Court reserved ruling on Defendant's motion for costs and fees. On August 9, 2016, the Court issued an Order and Opinion denying Defendant's motion for summary judgment. After the final pretrial conference on October 21, 2016, Defendant filed a motion in limine to exclude opinion testimony from Dr. Frederick. See ECF Doc. 34. Defendant's motion reasserts the objections in the prior motion that were denied, and further challenges the admissibility of Dr. Frederick's opinion testimony under Fed.R.Evid. 702 and Daubert.

         Standard of Review

         Rule 26 of the Federal Rules of Civil Procedure sets forth the disclosure requirements for witnesses. Rule 26(a)(1)(A) provides that fact witnesses-anyone likely to have discoverable information that the disclosing party may use to support its claims or defenses, unless solely for impeachment-must be disclosed by sending the name, address, and phone number of each potential witness to the opposing party. Musser v. Gentiva Health Servs., 359 F.3d 751, 756 (7th Cir. 2004). In addition to and separate from Rule 26(a)(1)(A) disclosures, Rule 26(a)(2)(A) requires a party to "disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705." Fed.R.Civ.P. 26(a)(2)(A).

         Under Rule 26 (a)(2)(B), the disclosure of expert witnesses who are "retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony" must be accompanied by a written report that is prepared and signed by the witness. The expert's report must include:

(i) a complete statement of all opinions the witness will express and the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness's qualifications, including a list of all publications authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the case.

Fed. R. Civ. P. 26(a)(2)(B).

         However, expert witnesses not "retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony" are not required to provide a Rule 26(a)(2)(B) written report. Rather, Rule 26(a)(2)(C) requires only that the disclosure state "the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and a summary of the facts and opinions to which the witness is expected to testify."

         "The exclusion of non-disclosed evidence is automatic and mandatory under Rule 37(c)(1) unless non-disclosure was justified or harmless." Musser, 356 F.3d at 758 (7th Cir. 2004). Rule 37(c) provides:

(c) Failure to Disclose, to Supplement an Earlier Response, or to Admit. (1) Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to ...

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