Nutall v. Terminals

• Decision Date: 28 June 2016
• Docket Number: 1:14 CV 4738
• Parties: IVORY NUTALL, Plaintiff, v. RESERVE MARINE TERMINALS, Defendant.
• Court: U.S. District Court — Northern District of Illinois

IVORY NUTALL, Plaintiff, v. RESERVE MARINE TERMINALS, Defendant.

1:14 CV 4738

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

June 28, 2016

Judge Marvin E. Aspen

MEMORANDUM OPINION AND ORDER

MARVIN E. ASPEN, District Judge:

Plaintiff Ivory Nutall ("Nutall") alleges that Defendant Reserve Marine Terminals ("Reserve Marine") discriminated against him on the basis of a perceived disability and retaliated against him for filing a workers' compensation claim in violation of the Americans with Disabilities Act, ("ADA"), 42 U.S.C. § 12101, et seq., the Illinois Human Rights Act ("IHRA"), 775 ILCS 5/1-103(I), and Illinois common law. A jury trial is scheduled to begin on Monday, July 18, 2016. Presently before us are ten motions in limine filed by Defendant in preparation for trial.

As set forth below, we grant Defendant's motions in part and deny them in part.

STANDARD OF REVIEW

Pursuant to our "inherent authority to manage the course of trials," we have broad discretion when ruling on evidentiary questions raised by motions in limine. Luce v. United States, 469 U.S. 38, 41 n.4, 105 S. Ct. 460, 463 (1984); Perry v. City of Chi., 733 F.3d 248, 252 (7th Cir. 2013); Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002). In limine rulings serve "to ensure the expeditious and evenhanded management of the trial proceedings." Jonasson v. Lutheran Child and Family Servs., 115 F.3d 436, 440 (7th Cir. 1997); see Tzoumis v. Tempel Steel Co., 168 F. Supp. 2d 871, 873 (N.D. Ill. 2001). Such rulings allow the parties to focus their preparations, eliminate delays during trial, and enable us to preemptively exclude "evidentiary submissions that clearly ought not be presented to the jury because they clearly would be inadmissible for any purpose." Jonasson, 115 F.3d at 440; Goldberg v. 401 N. Wabash Venture LLC, No. 09 C 6455, 2013 WL 1816162, at *1 (N.D. Ill. Apr. 29, 2013); Casares v. Bernal, 790 F. Supp. 2d 769, 775 (N.D. Ill. 2011); Thomas v. Sheahan, 514 F. Supp. 2d 1083, 1087 (N.D. Ill. 2007).

Unless the moving party can demonstrate that the challenged evidence is clearly inadmissible on all possible grounds, we must defer our evidentiary ruling until trial. Thomas, 514 F. Supp. 2d at 1087; Anglin v. Sears, Roebuck & Co., 139 F. Supp. 2d 914, 917 (N.D. Ill. 2001); Tzoumis, 168 F. Supp. 2d at 873. We can then accurately assess the foundation, relevance, and potential prejudice of the evidence in the context of the trial as a whole. Casares, 790 F. Supp. 2d at 775; Thomas, 514 F. Supp. 2d at 1087; Tzoumis, 168 F. Supp. 2d at 873. Because a ruling on a motion in limine is "subject to change as the case unfolds," we reserve the option of revisiting our preliminary evidentiary determinations as appropriate at trial. Luce, 469 U.S. at 41, 105 S. Ct. at 463; Perry, 733 F.3d at 252; Thomas, 514 F. Supp. 2d at 1087.

ANALYSIS

We shall first briefly address two unopposed motion and then will consider the disputed motions in greater detail.

Defendant filed two unopposed motions in limine, seeking to prelude Plaintiff from: (1) presenting evidence regarding the size or location of defense counsel's law firm, and (2) offering evidence or argument that Defendant is an out-of-state or foreign company.(See Mot. (Dkt. No. 77) at 1.) Since Plaintiff does not contest either motion, (See Resp. (Dkt. No. 78) at 6), Defendant's two unopposed motions are hereby granted. Plaintiff shall not offer any evidence concerning defense counsel's law firm's size or location or Defendant's status as an out-of-state or foreign company.

In addition to the unopposed motions, Defendant filed eight motions in limine that Plaintiff opposes. (See Mot. at 1; Resp. at 1-6.) Defendant asks us to preclude: (1) testimony from Dr. Kern Singh and David Noble as experts, (2) the CVs and/or resumes of Dr. Singh and Mr. Noble, (3) the introduction of Plaintiff's entire personnel file, Dr. Singh's entire medical file for Plaintiff, or ATI's entire medical file for Plaintiff, (4) evidence regarding emotional distress or damages relating to Plaintiff's back injury or as a result of his subsequent surgery or rehabilitation, (5) evidence regarding Plaintiff's claim that he believes he can lift 70 pounds, (6) evidence regarding Plaintiff's allegation that Defendant never returned Plaintiff's tools to him, (7) testimony from witnesses not previously identified by Plaintiff,¹ and (8) evidence of testimony from expert witnesses. (See Mot. at 1.) We discuss each opposed motion in limine below.

I. Motion Concerning Expert Testimony from Dr. Singh or David Noble

In his first motion in limine, Defendant asks us to prohibit any expert testimony by Plaintiff's witnesses Dr. Singh ("Singh") or David Noble ("Noble") based on Plaintiff's failure to properly disclose the witnesses as experts under Federal Rule of Civil Procedure 26(a)(2). (See id. at 2.) Plaintiff "agrees that David Noble is not an expert witness and agrees that he may be called as a fact witness only." (See Resp. at 1.) Accordingly, Plaintiff shall not offer expert testimony from Noble. As to Dr. Singh's testimony, Plaintiff argues that Singh is being called asa "treating physician expert," and "can be deposed or called to testify at trial without any requirement for a written report." (See id. (citing Musser v. Gentina Health Servs., 356 F.3d 751, 757 (7th Cir. 2004).) Plaintiff misstates the disclosure requirements for a treating physician under Rule 26(a)(2).

a. Expert Disclosure under Rule 26

According to the Federal Rules of Civil Procedure, potential witnesses are divided into three categories for the purposes of disclosure: (1) fact witnesses, (2) non-retained expert witnesses, and (3) retained expert witnesses. Fed. R. Civ. P. 26(a)(1)(A); Fed. R. Civ. P. 26(a)(2)(A)-(B). A fact witness is properly disclosed "by sending to the opposing party the name, address, and phone number (if known) of each potential witness," along with "the subjects of information" the witness will likely testify to. Fed. R. Civ. P. 26(a)(1)(A). Expert witnesses, on the other hand, are subject to increased disclosure requirements: "In addition to the disclosures required [for fact witnesses], a party shall disclose to 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."² Fed. R. Civ. P. 26(a)(2)(A). While the rules differentiate between two types of experts^{3 4}; non-retained experts and retained experts; all experts, regardless of whether they are retained or non-retained, must be disclosed inaccordance with Rule 26(a)(2)(A). Banister v. Burton, 636 F.3d 828, 833 (7th Cir. 2011); Musser, 356 F.3d at 756; Brandon v. Vill. of Maywood, 179 F. Supp. 2d 847, 858 (N.D. Ill. 2001). "[E]ven treating physicians . . . must be designated as experts if they are to provide expert testimony." Musser, 356 F.3d at 758. The relevant inquiry when considering required disclosers, then, is not whether the witness is labeled as a "treating physician," but if the witness will testify pursuant to Rule 702. Johnson v. Norfolk S. Ry. Co., No. 12 C 102, 2015 WL 3738545, at *3 (N.D. Ind. June 15, 2015) ("Treating physicians, if disclosed as fact witnesses, may testify only regarding personal observations, examinations, and diagnoses completed during the course of treatment and contained within the relevant medical records."); Norton v. Schmitz, No. 8 C 4365, 2011 WL 4984488, at *3 (N.D. Ill. May 27, 2011) (finding that treating physician testimony concerning cause of illness, low heart rate and the need for a pacemaker were expert opinions that required Rule 26(a)(2)(A) disclosures); Caldwell v. City of Chi., No. 8 C 3067, 2010 WL 380696, at *4 (N.D. Ill. Jan. 28, 2010) (holding that where treating physician was not disclosed as an expert, physician could testify "to his personal observations, diagnoses, and treatment," but could not testify "concerning opinions that he has subsequently formed or testify concerning any causation issues"); Brandon, 179 F. Supp. 2d at 859 ("For a treating physician, testimony about what the physician actually observed and what treatment he provided are not matters outside of the ken of the average juror, so Rule 702 . . . [is] not triggered."); Tzoumis, 168 F. Supp. 2d at 876 ("A treating physician is not automatically an 'expert' witness simply because he is a doctor. . . . A treating physician that has not been previously disclosed as an expert may still testify regarding his observations made during the course of treatment and on matters in his personal knowledge.")

Here, Plaintiff did not disclose Dr. Singh as an expert witness under Rule 26(a)(2)(A).⁵ Accordingly, we must first consider whether a Rule 26(a)(2)(A) disclosure was required; or stated another way, whether Dr. Singh's proposed testimony falls within Rule 702. Musser, 356 F.3d at 757. Plaintiff alleges that Dr. Singh "is being called as a treating physician expert," who may "provide expert testimony because of [his] involvement in the facts of the case . . . ." (Repl. at 1.) Specifically, Dr. Singh "is being called at trial to provide testimony about his medical treatment of Plaintiff." (Id.)

Despite Plaintiff labeling Dr. Singh as an "expert," we believe that Dr. Singh may testify as a fact witness "to his personal observations, diagnoses, and treatment."⁶ Caldwell, 2010 WL 380696, at *4; see also Johnson, 2015 WL 3738545, at *3; Norton, 2011 WL 4984488, at *3; Brandon, 179 F. Supp. 2d at 859; Tzoumis, 168 F. Supp. 2d at 876. However, to the extent that Dr. Singh's testimony relies "on specialized medical training and knowledge that is outside of the average juror's sphere of knowledge," Brandon, 179 F. Supp. 2d at 858, Dr. Singh is no longer testifying as a fact witness and is subject to Rule 26(a)(2)(A) expert disclosures. Accordingly, in the case that Dr. Singh's trial testimony exceeds the scope of a mere fact witness, we must next...