United States District Court, C.D. Illinois
JAMIE TROEGER, Administrator of the Estate of Gayle Mitchell, Deceased, Plaintiff,
MINNESOTA LIFE INSURANCE COMPANY, Defendant.
ORDER AND OPINION
E. SHADID CHIEF UNITED STATES DISTRICT JUDGE.
matter is now before the Court on Defendant's  Motion
in Limine to Exclude Expert Opinion Testimony. For
the reasons set forth below, Defendant's Motion  is
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
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
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.
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.
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."
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.
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.
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.
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
(iii) any exhibits that will be used to summarize or support
(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
(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).
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
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 ...