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Gecker v. Menard, Inc.

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

August 21, 2019

FRANCIS GECKER, solely as Chapter 7 Trustee for CYNTHIA COLLINS Plaintiff,
MENARD, INC. a/k/a MENARDS Defendant



         This case is before the Court on Plaintiff&#3');">3');">3');">39;s Motion to Strike Defendant&#3');">3');">3');">39;s Expert Barbara King&#3');">3');">3');">39;s Report and Bar Her Testimony. [ECF No. 13');">3');">3');">36]. For the reasons stated below, Plaintiff&#3');">3');">3');">39;s Motion is denied.


         Plaintiff alleges she was injured when a shopping cart made contact with her hip outside of a Menards home improvement store. Plaintiff and two other individuals were present at the time of the accident: Donnie Raulston, the store employee pushing the train of shopping carts, and Cornelia Smiley, a friend with whom Plaintiff was conversing. While the fact that a cart struck Plaintiff is not in dispute, the parties disagree as to the nature, cause, and extent of Plaintiff&#3');">3');">3');">39;s injuries. In anticipation of trial, Defendant retained Barbara King, a medical billing expert, to review Plaintiff&#3');">3');">3');">39;s medical bills and evaluate their reasonableness. Ms. King ultimately opined that Plaintiff&#3');">3');">3');">39;s medical bills were not comprised of usual, customary, and reasonable (“UCR”) charges for the medical procedures performed.


         Federal Rule of Evidence 702 and the United States Supreme Court&#3');">3');">3');">39;s decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993');">3');">3');">3), govern the admissibility of expert testimony in federal court. Hall v. Flannery, 3');">3');">3');">3d 922');">840 F.3');">3');">3');">3d 922, 926 (7th Cir. 2016). The familiar two-step Daubert framework allows admission of expert testimony that is “relevant to a fact in issue, is based on sufficient facts or data, and is the product of reliable scientific or other expert methods that are properly applied.” Stuhlmacher v. Home Depot U.S.A., Inc., 3');">3');">3');">3d 405');">774 F.3');">3');">3');">3d 405, 409 (7th Cir. 2014); see also, Higgins v. Koch Dev. Corp., 3');">3');">3');">3d 697');">794 F.3');">3');">3');">3d 697, 704 (7th Cir. 2015) (“Rule 702 and Daubert require the district court to determine whether proposed expert testimony is both relevant and reliable.”). The district court is the “gatekeeper” of expert testimony but must be mindful of the fact that “the key to the gate is not the ultimate correctness of the expert&#3');">3');">3');">39;s conclusions, ” but “the soundness and care with which the expert arrived at her opinion.” Schultz v. Akzo Nobel Paints, LLC, 3');">3');">3');">3d 426');">721 F.3');">3');">3');">3d 426, 43');">3');">3');">31 (7th Cir. 2013');">3');">3');">3).

         A court will admit expert testimony only where the expert “(i) is qualified to offer opinion testimony under Rule 702, (ii) has employed a reliable methodology, (iii) proposes to offer opinions that follow rationally from the application of his knowledge, skill, experience, training, or education, and (iv) presents testimony on a matter that is relevant to the case at hand, and thus helpful to the trier of fact.” Mintel Int&#3');">3');">3');">39;l Grp., Ltd. v. Neergheen, 63');">3');">3');">36 F.Supp.2d 677, 684-85 (N.D. Ill. 2009) (internal quotation marks omitted). The proponent of expert testimony bears the burden of proving the testimony is admissible. Fail-Safe, L.L.C. v. A.O. Smith Corp., 744 F.Supp.2d 870, 887 (E.D. Wis. 2010).

         An expert may be qualified “by knowledge, skill, experience, training or education” and need not have any “particular credentials.” Fed.R.Evid. 702; Tuf Racing Prod., Inc. v. Am. Suzuki Motor Corp., 3');">3');">3');">3 F.3');">3');">3');">3d 585');">223');">3');">3');">3 F.3');">3');">3');">3d 585, 591 (7th Cir. 2000). The court must consider “‘a proposed expert&#3');">3');">3');">39;s full range of practical experience as well as academic or technical training when determining whether that expert is qualified to render an opinion in a given area.&#3');">3');">3');">39;” Trustees of Chicago Painters & Decorators Pension, Health & Welfare, & Deferred Sav. Plan Trust Funds v. Royal Int&#3');">3');">3');">39;l Drywall & Decorating, Inc., 3');">3');">3');">3 F.3');">3');">3');">3d 782');">493');">3');">3');">3 F.3');">3');">3');">3d 782, 788 (7th Cir. 2007) (quoting Smith v. Ford Motor Co., 3');">3');">3');">3d 713');">3');">3');">3');">215 F.3');">3');">3');">3d 713');">3');">3');">3, 718 (7th Cir. 2000)). When assessing whether an expert is qualified, the court is “not concerned with the witness&#3');">3');">3');">39;s general qualifications.” Hall, 840 F.3');">3');">3');">3d at 926. Instead, the court examines whether the expert has the necessary qualifications to support “‘each of the conclusions he draws.&#3');">3');">3');">39;” Id. (quoting Gayton v. McCoy, 3');">3');">3');">3 F.3');">3');">3');">3d 610');">593');">3');">3');">3 F.3');">3');">3');">3d 610, 617 (7th Cir. 2010)). In other words, the expert must be “qualified to offer opinions in the specific area of his or her proposed testimony.” Bone Care Int&#3');">3');">3');">39;l LLC v. Pentech Pharm., Inc., 2010 WL 3');">3');">3');">3928598, at *1 (N.D. Ill. 2010).

         Courts have broad latitude when deciding whether an expert&#3');">3');">3');">39;s testimony is reliable. Higgins, 794 F.3');">3');">3');">3d at 704. Reliability involves, “among other things: (1) whether the proffered theory can be and has been tested; (2) whether the theory has been subjected to peer review; (3');">3');">3');">3) whether the theory has been evaluated in light of potential rates of error; and (4) whether the theory has been accepted in the relevant scientific community.” Baugh v. Cuprum S.A. de C.V., 3');">3');">3');">3d 83');">3');">3');">38');">845 F.3');">3');">3');">3d 83');">3');">3');">38, 844 (7th Cir. 2017). To satisfy reliability, an expert may not “simply assert[s] a ‘bottom line&#3');">3');">3');">39;” or base her opinion on “subjective belief or speculation.” Metavante Corp. v. Emigrant Sav. Bank, 3');">3');">3');">3d 748');">619 F.3');">3');">3');">3d 748, 761 (7th Cir. 2010). Rather, an expert&#3');">3');">3');">39;s testimony must demonstrate “the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Kumho Tire Co. v. Carmichael, 526 U.S. 13');">3');">3');">37, 153');">3');">3');">3 (1999).

         The relevance standard for expert testimony is similarly liberal. Hale v. State Farm Mut. Auto. Ins. Co., 2016 WL 6947065, at *2 (S.D. Ill. 2016). Simply put, an expert&#3');">3');">3');">39;s testimony must “assist[] the jury in determining any fact at issue in the case.” Stuhlmacher, 774 F.3');">3');">3');">3d at 409. If “the jury is able to evaluate the same evidence and is capable of drawing its own conclusions, ” then the expert&#3');">3');">3');">39;s testimony is not helpful. Sanders v. City of Chicago Heights, 2016 WL 43');">3');">3');">398011, at *4 (N.D. Ill. 2016).

         The court&#3');">3');">3');">39;s application of these admissibility standards “is not intended to supplant the adversarial process.” Ortiz v. City of Chicago, 656 F.3');">3');">3');">3d 523');">3');">3');">3, 53');">3');">3');">36 (7th Cir. 2011). Even “shaky” testimony may satisfy Rule 702 and Daubert, Bielskis v. Louisville Ladder, Inc., 3');">3');">3');">3 F.3');">3');">3');">3d 887');">663');">3');">3');">3 F.3');">3');">3');">3d 887, 894 (7th Cir. 2011), as it ultimately is for the jury to determine the accuracy of admissible expert evidence that has been “tested” through “‘vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.&#3');">3');">3');">39;” Lapsley v. Xtek, Inc., 3');">3');">3');">3d 802');">689 F.3');">3');">3');">3d 802, 805 (7th Cir. 2012) (quoting Daubert, 509 U.S. at 596).


         Plaintiff filed the instant Motion to strike Ms. King&#3');">3');">3');">39;s report and bar her testimony, arguing that Ms. King&#3');">3');">3');">39;s opinion was based on “hearsay” data and therefore unreliable. Plaintiff does not challenge Ms. King&#3');">3');">3');">39;s qualifications, nor does she contest the relevance of her testimony. Rather, Plaintiff asserts Ms. King impermissibly relied upon a medical coding database, “Medata, ” and that her use of this data from a third-party constitutes “hearsay.” However, because Ms. King is qualified and her proposed testimony is both relevant and reliable, as explained in detail below, Ms. King&#3');">3');">3');">39;s opinions are admissible under Daubert and Rule 702. Plaintiff&#3');">3');">3');">39;s objections to Ms. King&#3');">3');">3');">39;s opinion and testimony, if they are valid at all, go to the weight and not the admissibility of that opinion and testimony.

         While Ms. King&#3');">3');">3');">39;s qualifications are not in dispute, they are relevant to her knowledge of the field of medical billing and her decision to rely on a particular medical billing database in forming her opinion. Ms. King is an active, registered nurse in both Illinois and Iowa and received her nursing degree over forty years ago. Ms. King has been involved in medical billing in various capacities during that time, including having done billing at a doctor&#3');">3');">3');">39;s office, worked as a nurse case manager negotiating fees for medical treatment, and working at a bill review company, Rising Medical Solutions. While at Rising Medical Solutions, Ms. King reviewed medical bills nationwide, including from various providers and fee schedules. At that time, she also became a certified professional coder. For the last thirteen years, Ms. King has owned a consulting business, NurseValue, Inc., which focuses, in part, on medical cost analysis and medical cost projection. Ms. King has testified as an expert in about two hundred depositions and trials involving bill review since starting NurseValue Inc. All of Ms. King&#3');">3');">3');">39;s ...

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