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Brama v. Target Corp.

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

October 25, 2019



          Young B. Kim, Magistrate Judge

         Plaintiff Christine Brama claims that Defendant Target Corporation (“Target”) is liable for personal injuries she sustained in August 2012 after she allegedly slipped and fell on a foreign substance near the entrance of a Target store. Before the court are Target's motions in limine Nos. 1-20. Brama opposes all 20 motions. For the following reasons, Target's Motion Nos. 1, 4-7, 9, 12, 13-17, 19, and 20 are granted, Motion Nos. 8, 10, and 18 are denied without prejudice, and Motion Nos. 2, 3, and 11 are denied:


         Because Brama is acting pro se, the court finds it appropriate to describe the procedural history of this case only to provide extra context. In July 2014 Brama, then represented by attorneys, filed her negligence complaint against Target in state court. (R. 1.) Target then removed the case to this court based on diversity jurisdiction, (id.), and shortly thereafter Brama's attorneys sought and were granted leave to withdraw their appearances, (R. 13). Subsequently, the court stayed the case until April 9, 2015, giving Brama 130 days to find a new attorney. (R. 13; R. 14.)

         After Brama's new attorneys entered their appearances, the case proceeded to discovery. (R. 16; R. 17.) During that time, the court twice extended the discovery period-first at Brama's request and then at Target's-before discovery eventually closed in April 2016. (R. 24; R. 42; R. 151.) Following the close of discovery, and on the eve of Target filing a motion for summary judgment, Brama's second team of attorneys sought and were granted leave to withdraw their appearances. (R. 48; R. 49; R. 50; R. 54.) For over a year thereafter Brama acted pro se, opposing Target's summary judgment motion and filing her own motion for summary judgment and related motions to strike. (R. 66; R. 78; R. 81; R. 100.) The court denied the cross-motions for summary judgment in June 2017. (R. 112.)

         The following month in July 2017, the court recruited an attorney to represent Brama in response to her motion for attorney representation. See 28 U.S.C. § 1915(e)(1); (R. 116; R. 118). Thereafter, on August 24, 2017, Brama (then represented by the court-recruited attorney) and Target consented to this court's jurisdiction. See 28 U.S.C. § 636(c); (R. 120). About two months later, Brama's court-recruited attorney also sought and was granted leave to withdraw as counsel of record. (R. 128.) Brama then filed two pro se motions seeking to withdraw her consent to proceed before this court, which the court denied. (R. 129; R. 131; R. 134.) Brama's subsequent challenges to that denial were also denied. (R. 140; R. 149.) Meanwhile, Brama requested and the court granted Brama two extensions of time to retain new counsel. (R. 136; R. 142; R. 150.)

         On December 4, 2018, Brama reported that she had not yet retained counsel. (R. 151.) Consequently, the court advised Brama of her right to continue her efforts to retain counsel and took steps to move this 2014 case forward-namely, by setting deadlines for the parties to disclose their list of witnesses and exhibits for trial. (Id.) In the interim, the court assigned a volunteer attorney to Brama for the limited purposes of assisting her with settlement discussions with Target. (R. 157.) When settlement proved unsuccessful, (R. 167), the court ordered each side to file objections to the opposing side's witnesses and exhibits by July 15, 2019, (R. 172). Target timely filed its objections, but Brama did not. (R. 175.) Brama also did not comply with the court's orders to: comment on Target's objections by July 31, 2019, (R. 175; R. 180); submit proposed jury instructions by August 30, 2019, (R. 176; R. 180); and identify current Target employees she will call as witnesses at trial by September 13, 2019, (R. 176; R. 181).

         A jury trial is now set to begin on October 29, 2019, and Brama has persisted in acting pro se. (R. 176.) A pre-trial conference took place on October 2, 2019, during which, in addition to setting the October 9, 2019 deadline for the parties to issue their trial subpoenas, the court scheduled dates for the filing of Target's motions in limine and Brama's responses thereto. (R. 181.) On October 3, 2019, Target filed its motions in limine Nos. 1-20. (R. 182-201, Def.'s Mot. Nos. 1-20.)

         Brama then filed her oppositions to Target's motions on October 18, 2019. (R. 206-225, Pl.'s Resps.)

         Legal Standard I

         Included in the district court's inherent authority to manage trials is the broad discretion to rule on motions in limine. Aldridge v. Forest River, Inc., 635 F.3d 870, 874-75 (7th Cir. 2011). The purpose of such motions is to perform a “gatekeeping function and permit[] the trial judge to eliminate from further consideration evidentiary submissions that clearly ought not to be presented to the jury because they clearly would be inadmissible for any purpose.” Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997). The moving party bears the burden of proving blanket inadmissibility. See Mason v. City of Chicago, 631 F.Supp.2d 1052, 1056 (N.D. Ill. 2009). Absent such a showing, evidentiary rulings should be deferred until trial, where decisions can be informed by the context, foundation, and relevance of the contested evidence within the framework of the trial as a whole. Anglin v. Sears, Roebuck & Co., 139 F.Supp.2d 914, 917 (N.D. Ill. 2001). “A pre-trial ruling denying a motion in limine does not automatically mean that all evidence contested in the motion will be admitted at trial.” Bruce v. City of Chicago, No. 09 CV 4837, 2011 WL 3471074, at *1 (N.D. Ill. July 29, 2011). Rather, the court is free to revisit evidentiary rulings during trial as appropriate in the exercise of its discretion. Luce v. United States, 469 U.S. 38, 41-42 (1984).


         A. Motion No. 1

         Target seeks to bar Brama's treating physicians Drs. Randon Johnson, Ziauddin Ahmed, Hong Vo, and Victor Cimino from testifying as expert witnesses at trial. (R. 182, Def.'s Mot. ¶ 9.) Target asserts that although Brama identified and the court approved the treating physicians as witnesses, she did not comply with the Federal Rules of Civil Procedure 26(a)(2)(A) and 26(a)(2)(C), which required Brama to serve non-retained expert disclosures during discovery. (Id. ¶¶ 1-4.) Target thus argues that Brama should be “barred from presenting any expert testimony of any kind.” (Id. ¶ 9.)

         A party's obligation to identify its expert witnesses is set out in Rule 26(a)(2). Under Rule 26(a)(2)(A), “a party shall disclose to the other parties the identity of any person who may be used at trial to present evidence under Rules 702, 703, or 705 of the Federal Rules of Evidence.” In addition, under Rule 26(a)(2)(C), if a witness is not “retained or specially employed to provide expert testimony” but nonetheless is expected to give expert testimony, then the party must also disclose “(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the expert is expected to testify.” Because “[d]isclosing a person as a witness and disclosing a person as an expert are two distinct acts, ” Rule 26(a)(2) requires formal disclosure of all witnesses who are to give testimony under Rules 702, 703, or 705 irrespective of any prior disclosures of witnesses or the fact that the witnesses are “already known . . . through prior discovery.” Musser v. Gentiva Health Servs., 356 F.3d 751, 757 (7th Cir. 2004).

         Target is correct that Brama did not provide any Rule 26(a)(2)(C) disclosure, or any other formal expert disclosure. Because Brama failed to disclose her treating physicians as expert witnesses as is required by Rule 26(a)(2), Rule 37(c)(1) prohibits them from testifying as expert witnesses at trial “unless the failure was substantially justified or is harmless.” Target argues that Brama's failure is not substantially justified because this court reminded Brama of “her obligation to update discovery responses and make required disclosures under Rule 26(a), ” (R. 182, Def.'s Mot. ¶ 7; R. 151), and Brama “should have known that expert testimony was crucial to her case, and likely to be contested, ” (R. 182, Def.'s Mot. ¶ 7) (internal citations omitted). Target also argues that Brama's failure is not harmless because Target “has been unable to depose those treating physicians” and was “prevented from identifying any rebuttal experts.” (Id. ¶ 8.) Brama responds that the names of her treating physicians were disclosed by her former attorneys and in medical records authorization, and Target had an opportunity to depose them but chose not to do so. (R. 206, Pl.'s Resp. at 1.) Brama adds that “she is Pro Se and depends on [the] Court to be specific” and “was never ordered by the Court to supply a Rule 26(a)(2)(C) disclosure.” (Id.)

         The court finds that Brama's failure to properly disclose her treating physicians as expert witnesses, combined with her failure to provide the required report or summary under Rule 26(a)(2)(C), is not substantially justified or harmless. As Target points out, Brama's main arguments are foreclosed by the decision in Musser v. Gentiva Health Services, 356 F.3d 751 (7th Cir. 2004), in which the Seventh Circuit affirmed the exclusion of expert testimony of the plaintiffs' witnesses-including treating physicians-first identified less than three months before trial. Musser, 356 F.3d at 754, 760. In that case, as is the case here, plaintiffs argued that they complied with expert disclosure rules because defendant was “made aware of the identity and records of all their witnesses” and “had an opportunity to depose these witnesses as to their opinions.” Id. at 757. The Seventh Circuit rejected this argument, noting that formal disclosure of experts is essential for a party to properly prepare for trial. Id.

         Here discovery has been closed for more than three years, since April 5, 2016, (R. 42; R. 151), and neither side has moved to have it re-opened. Regardless, the trial date is set for October 29, 2019, (R. 176), and there is no time to re-open discovery without causing significant prejudicial delay. During the almost six-year history of this case, Brama never attempted to disclose any witnesses as experts. Target should not be made to assume for purposes of its trial preparation that each treating physician previously disclosed by Brama's former attorneys or in medical records authorization could be an expert witness at next week's trial. Moreover, Brama's assertion that Target could have made such assumptions because it had this information does not provide substantial justification. See Musser, 356 F.3d at 759 (noting the fact “that defendant could have obtained the undisclosed information through its own efforts does not provide substantial justification”). Nor does the fact that Target could have deposed her treating physicians. Id. It was Brama's responsibility to make proper Rule 26(a)(2) disclosures and she did not.

         Brama's remark that “she is Pro Se and depends on [the] Court to be specific, ” (R. 206, Pl.'s Resp. at 1), essentially blames the court for her failure to supply Rule 26(a)(2)(C) disclosures, which is not an acceptable litigation strategy. In any event, Brama's pro se status does not provide substantial justification for her failure to supply Rule 26(a)(2)(C) disclosures (or make any other expert disclosure, for that matter) because the Seventh Circuit has held that “pro se litigants are not entitled to a general dispensation from the rules of procedure.” Jones v. Phipps, 39 F.3d 158, 163 (7th Cir. 1994). Moreover, and as discussed infra, Brama has been intermittently represented by counsel throughout the course of this litigation, including during discovery when such disclosures should have been made. Indeed, even when not represented by counsel, Brama has illustrated an understanding of the federal rules by filing motions and briefs, including two motions seeking to withdraw her consent to proceed before the court. (R. 129; R. 131.) Also, as noted by Target, the court has reminded Brama of her disclosure obligations under the federal rules. (R. 182, Def.'s Mot. ¶ 7; R. 151.) Thus the court concludes that Brama's current pro se status does not constitute substantial justification for her disclosure failures.

         In further effort to divert blame away from herself and onto the court for her failure to properly disclose her treating physicians as expert witnesses, Brama contends that certain statements made by this court show “a bias” against her and favoritism toward Target that makes her “very uncomfortable.” (R. 206, Pl.'s Resp. at 2.) She also takes issue with the “MICRO-MINI printed” text size of the notices of case activity mailed to her by the clerk's office because “[i]t's an eye strain, brain-freeze and feels disrespectful to receive something that is barely readable.” (Id.) Apart from the fact that Brama's complaints are not a basis for substantial justification, they are without merit. Brama has received numerous extensions of time to find new counsel, complete and respond to discovery, file and respond to motions, and submit her list of witnesses and exhibits for trial, all of which have contributed to the protracted history of this slip-and-fall case. Thus Brama's assertion that the court's acknowledgement of the fact that this case is indeed a “very old matter” and needs to be resolved “as soon as possible, ” (R. 172), somehow shows a bias is simply wrong. Further, Brama has been receiving notices of case activity from the clerk's office via mail since at least July 2016, (R. 55), and has never asserted that the text size of the notices that she now insists present her such a dilemma made her unable to meaningfully participate in this case. To the contrary, Brama has consistently and actively engaged in these legal proceedings.

         Finally, Brama's failure to properly disclose her treating physicians as expert witnesses is not harmless. Although Target was not completely in the dark about the possibility of Brama's treating physicians testifying about Brama's medical condition, without advance notice that Brama intended to elicit expert opinions, Target was denied the opportunity to take certain ...

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