Repking v. McKennedy

Filing 50

OPINION by U.S. Magistrate Judge Byron Cudmore: Defendant's First Motion in Limine to Bar Evidence of the Defendant's Use of Drugs or Mental Condition at Trial 37 ALLOWED; Defendant's Third Motion in Limine 39 ALLOWED; Defendant's Second Motion in Limine 38 ALLOWED in part and DENIED in part. See written order. (LB, ilcd)

E-FILED

Thursday, 24 October, 2013 11:50:21 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION
WILLIAM T. REPKING,
Plaintiff,
v.
DAVID A. McKENNEDY,
Defendant.

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No. 12-cv-2034

OPINION
BYRON G. CUDMORE, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Defendant David
McKennedy’s First, Second and Third Motions in Limine (d/es 37, 38,
and 39). The parties consented to proceed before this Court. Consent to
Proceed Before a United States Magistrate and Order of Reference
entered June 6, 2012 (d/e 15). For the reasons set forth below,
Defendant’s First Motion in Limine to Bar Evidence of the Defendant’s Use
of Drugs or Mental Condition at Trial (d/e 37) (Motion 37) is ALLOWED;
Defendant’s Second Motion is Limine (d/e 38) (Motion 38) is ALLOWED in
part; and Defendant’s Third Motion is Limine (d/e 39) (Motion 39) is
ALLOWED. The Court addresses each Motion separately.

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First Motion in Limine
Motion 37 seeks to bar evidence of McKennedy’s drug use or his
mental condition. The Court has entered partial summary judgment in
favor of Plaintiff William Repking on liability and had determined that the
trial will be limited to damages. Opinion entered October 18, 2013 (d/e 49)
(Opinion 49), at 7-9. Issues regarding McKennedy’s mental state and use
of drugs are irrelevant to a trial on damages. Repking agrees. Plaintiff’s
Response to Defendant’s First Motion in Limine to Bar Evidence of the
Defendant’s Use of Drugs or Mental Condition at Trial (d/e 43), at 1. Thus,
the First Motion in Limine is ALLOWED and this evidence will be barred at
trial.
Second Motion in Limine
Motion 38 seeks to bar Repking’s expert witness Dr. David Fletcher,
M.D., from opining about whether Repking suffers from any residual or
permanent cognitive defect, emotional defect, post-traumatic stress,
psychological defect or mental impairment of any kind as a result of the
accident. Motion 38, at 1. McKennedy also seeks to bar Dr. Fletcher from
opining that Repking suffered a closed head injury. Motion 38, at 11. The
case arose from a head-on automobile collision on Interstate 55 in
Montgomery County, Illinois, that occurred on August 23, 2010. Repking
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suffered injuries as a result of the accident. See Opinion 49, at 2-3 for a
summary of the facts.
Repking retained Dr. Foster to conduct an independent medical
examination of Repking. Dr. Fletcher is a physician and board certified in
the fields of occupational and preventive medicine. Dr. Fletcher reviewed
Repking’s medical records and examined Repking. Dr. Fletcher then
issued a report. Plaintiff’s Response to Defendant’s Second Motion in
Limine to Bar Evidence of Dr. Fletcher’s Opinions on Mr. Repking’s Mental
Impairment (d/e 44), Exhibit B, Report dated January 28, 2013 (Report).
McKennedy then deposed Dr. Fletcher. At his deposition,
Dr. Fletcher opined to a reasonable degree of medical certainty that
Repking suffered a closed head injury in the collision. Motion 38, Exhibit A,
Deposition of David Fletcher, M.D. (Fletcher Deposition), at 47-48.
Dr. Fletcher further testified that he observed some cognitive deficits in his
examination, but could not opine as to the extent of any permanent
cognitive deficit caused by the closed head injury. Dr. Fletcher testified that
Repking needed to undergo a neuropsychological assessment to
determine the extent of any permanent deficits caused by the closed head
injury. Fletcher Deposition, at 49.

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This Court must perform a gate-keeping function to allow only expert
opinion testimony that is relevant and reliable. Fed. R. Civ. P. 702; Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993). After
careful review of the Report and the Fletcher Deposition, the Court finds
that Repking can present Dr. Fletcher’s opinion that Repking suffered a
closed head injury in the collision. Dr. Fletcher is a physician qualified to
render this opinion, and the opinion is based on the following: Repking lost
consciousness after the collision; a CT scan of Repking’s brain that showed
some petechial hemorrhages that were not deemed significant; Dr. Brian K.
Russell, M.D., a neurological surgeon examined Repking on August 26,
2010, and concluded that Repking had suffered a closed head injury; other
information in Repking’s medical records; Repking’s reports of symptoms;
and Dr. Fletcher’s observations of Repking. Report, at 7; Fletcher
Deposition, at 27-30, 48. The Court finds that this material provided a
sufficient basis for the opinion that Repking suffered a closed head injury.
McKennedy complains that Dr. Fletcher is doing little more than
repeating hearsay statements in Repking’s medical records. Experts,
however, can base their opinions on hearsay if experts in their field would
rely on such data. Fed. R. Civ. P. 703. Doctors properly rely on medical

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records to formulate medical opinions. Dr. Fletcher can testify to his
opinion that Repking suffered a closed head injury.
Dr. Fletcher, however, may not opine whether Repking suffers from
any residual or permanent defect or deficits as a result of the closed head
injury. Dr. Fletcher testified that Repking needed to undergo a
neuropsychological assessment to determine the extent of any permanent
deficits caused by the closed head injury. Repking has not undergone this
test. Therefore, Dr. Fletcher has no basis to opine on these matters, and
so, such opinions are barred.
Third Motion in Limine
Motion 39 seeks to bar:
(a) Evidence, testimony or records regarding Dr. Karen Lee’s
examination, treatment or opinions on Plaintiff’s
psychological, mental or cognitive conditions or
limitations;
(b) Any evidence of Dr. Lee’s medical bills for
treatment/evaluation of the Plaintiff.
Motion 39, at 1. McKennedy filed Motion 39 on August 14, 2013. Repking
was required to respond to Motion 39 within fourteen days of service. If
Repking did not respond within that time frame, the Court presumes that
Repking has no opposition to Motion 39. Local Rule 7.1(B)(2). The
certificate of service on Motion 39 shows that McKennedy served Motion
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39 by mail on August 14, 2013, on Repking’s counsel of record. The
Court’s CM/ECF Notice of Electronic Filing shows that Motion 39 was
served electronically on Repking’s counsel of record on August 14, 2013.
More than two months have passed, and Repking has not responded.
Therefore, the Court presumes that Repking has no opposition to Motion
39. Motion 39 is allowed.
WHEREFORE Defendant’s First Motion in Limine to Bar Evidence of
the Defendant’s Use of Drugs or Mental Condition at Trial (d/e 37), and
Defendant’s Third Motion in Limine (d/e 39) are ALLOWED; and
Defendant’s Second Motion in Limine (d/e 38) is ALLOWED in part and
DENIED in part.
ENTER: October 24, 2013

s/ Byron G. Cudmore
UNITED STATES MAGISTRATE JUDGE

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