Moriconi v. Williamson et al
Filing
84
OPINION entered by U.S. Magistrate Judge Tom Schanzle-Haskins. Defendant Koester's Motion to Bar Testimony, or in the Alternative, Motion for Extension of Time 82 is ALLOWED. Plaintiff is barred from presenting any testimony by Dr. Robert Ru ssell or any other witness that expresses expert opinions about the Tasers, including whether the Taser shot alleged in the Second Amended Complaint almost killed Moriconi. The request for alternative relief is denied as moot. See written order. (LB, ilcd)
E-FILED
Friday, 25 July, 2014 08:58:14 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS, SPRINGFIELD DIVISION
PAUL F. MORICONI
Plaintiff,
v.
TRAVIS KOESTER, Deputy
Sheriff, Sangamon County,
Illinois, and SANGAMON
COUNTY, ILLINOIS,
Defendants,
)
)
)
)
)
)
)
)
)
)
)
)
No. 11-cv-3022
OPINION
TOM SCHANZLE-HASKINS, U.S. MAGISTRATE JUDGE
This matter comes before the Court on Defendant Travis Koester’s
Motion to Bar Testimony, or in the Alternative, Motion for Extension of Time
(d/e 82) (Motion). The parties consented to have this case heard before
this Court. Consent to the Exercise of Jurisdiction by a United States
Magistrate Judge and Reference Order entered April 11, 2014 (d/e 74).
For the reasons set forth below, the Motion is allowed.
BACKGROUND
Moriconi brings a claim against Defendant Deputy Sheriff Koester
under 42 U.S.C. §1983 for using excessive force in an incident that
occurred during the night of July 28-29, 2009. Koester allegedly used
Page 1 of 8
excessive force when he shot Moriconi with a Taser that night. Second
Amended Complaint (Supplement to d/e 45), ¶¶ 21-26.
This Court entered a Scheduling Order (d/e 55) on December 1,
2011. The Scheduling Order set the deadlines for disclosing expert
witnesses,
Plaintiff is to identify testifying experts and to provide Rule 26
expert reports by December 1, 2012. All Defendants are to
identify testifying experts and to provide Rule 26 expert reports
by April 1, 2013.
Scheduling Order, ¶ 3. Koester states in the Motion that Moriconi did not
provide any expert witness disclosures. Motion, ¶ 3. Moriconi does not
dispute this. Moriconi states that he disclosed the two physicians who
treated him after the incident, Dr. Michael Bova and Dr. Robert Russell, as
witnesses, but not has expert witnesses. Plaintiff’s Response to Defendant
Koester’s Motion to Bar Testimony, or in the Alternative, Motion for
Extension of Time (d/e 83) (Opposition), ¶ 8 (“They have been disclosed as
witnesses but not as experts with reports.”).
On June 13, 2014, the parties were conducting the deposition of
Dr. Michael Murphy, Moriconi’s current treating physician. At the
deposition, counsel for Moriconi told counsel for Koester that Dr. Russell
would testify that the “Taser nearly killed his client.” Motion, ¶ 2. The
medical records produced from Dr. Russell in discovery did not contain this
Page 2 of 8
statement or any indication that Dr. Russell concluded that the Taser shot
that hit Moriconi was nearly lethal. Motion, attached Medical Record.
Koester moves to exclude Dr. Russell’s opinion testimony that the Taser
almost killed Moriconi.
ANALYSIS
A party must separately disclose any witness that will present expert
testimony under Federal Rules of Evidence 702, 703 or 705. Fed. R. Civ.
P. 26(a)(2)(A). Moriconi argues without reference to any authority that
Dr. Russell’s statement that the Taser almost killed Moriconi was not an
expert opinion, but a diagnosis. The Court disagrees. The Federal Rules of
Evidence divide opinions into lay witness opinions and expert witness
opinions. A lay witness opinion is one which is “not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702.”
Fed. R. Evid. 701(c). Rule 702 governs opinions by expert witnesses.
Fed. R. Evid. 702. A doctor’s opinion that the Taser shot almost killed a
person is based on his specialized knowledge as a physician; the opinion is
not a lay opinion, but an expert opinion. See e.g., Banister v. Burton, 636
F.3d 828, 832 (7th Cir. 2011) (treating physician’s opinion of effect of injury
was an expert opinion).
Page 3 of 8
Moriconi was required to disclose Dr. Russell as an expert witness
under Rule 26(a)(2)(A). Moriconi was not required to provide an expert
report from Dr. Russell because Dr. Russell was Moriconi’s treating
physician and was not specially retained to provide an expert opinion. Fed.
R. Civ. P. 26(a)(2)(B); Musser v. Dentiva Health Services, 350 F.3d 751,
758 (7th Cir. 2004). Moriconi, however, was required to disclose the subject
matter on which Dr. Russell would be expected to present opinion evidence
and a summary of the facts and opinions to which Dr. Russell would be
expected to testify. Fed. R. Civ. P. 26(a)(2)(C)(i) and (ii). Moriconi was
required to make these expert disclosures at the time set by this Court in
the Scheduling Order, December 1, 2012. Scheduling Order, ¶ 3; Fed. R.
Civ. P. 26(a)(2)(D).
Moriconi did not disclose that Dr. Russell would render this opinion by
December 1, 2012. Rather, he waited until more than a year and a half
later on June 13, 2014, to make the disclosure. Koester moves to bar this
opinion testimony at trial as a sanction for Moriconi’s failure to comply with
the expert disclosure requirements in Rule 26(a)(2).
If a party fails to make the required disclosures under Rule 26, “the
party is not allowed to use that information or witness to supply evidence . .
. at a trial, unless the failure was substantially justified or is harmless.” Fed.
Page 4 of 8
R. Civ. P. 37(c)(1). The language of Rule 37(c) is mandatory; the
testimony must be excluded unless the failure to disclose was substantially
justified or harmless. Musser, 356 F.3d at 758. Rule 37(c) authorizes the
Court to impose an alternative sanction, but only on motion and after giving
an opportunity to be heard. Fed. R. Civ. P. 37(c)(1). Moriconi has made
no such motion.
In determining whether a violation of Rule 26 required disclosures
was substantially justified or harmless, this Court must consider the
following factors:
(1) the prejudice or surprise to the party against whom the
evidence is offered; (2) the ability of the party to cure the
prejudice; (3) the likelihood of disruption to the trial; and (4) the
bad faith or willfulness involved in not disclosing the evidence at
an earlier date.
Banister, 636 F.3d at 833 (quoting Westefer v. Snyder, 422 F.3d 570, 585
n.1 (7th Cir. 2005)).
Moriconi presents no justification for his failure to make the Rule
26(a)(2) disclosures in a timely fashion. Moriconi states that Dr. Russell
was disclosed as a witness, but not as an expert witness. Opposition, ¶ 8.
Disclosure as a fact witness is not sufficient. A treating physician who is
going to render expert opinions must be disclosed both as a fact witness
and as an expert witness. Fed. R. Civ. P. 26(a)(1) and (2); Musser, 356
Page 5 of 8
F.3d at 757. Moriconi argues that Dr. Russell was not retained and was not
required to submit a report. That is true; however, Moriconi still was
required to disclose him and provide a summary of his expected opinions
pursuant to Rule 26(a)(2)(A) and (a)(2)(C). Moriconi concedes that
Dr. Russell should have been disclosed as an expert, “Treating expert must
be disclosed as expert pursuant to rule 26 (a) (2) (A) but it has never held
that treating physicians must file expert reports.” Opposition, ¶ 5 (citing
Musser, 356 F.3d at 758). Moriconi fails to show that the failure to disclose
was substantially justified. No evidence, however, indicates that Moriconi’s
failure to disclose was willful or done in bad faith.
The failure to disclose also was not harmless. Moriconi alleges that
Koester used excessive force when he shot him with a Taser in violation of
Moriconi’s rights under the Fourth and Fourteenth Amendments to the
Constitution. Second Amended Complaint, ¶ 24. Dr. Russell’s opinion that
the Taser shot nearly killed Moriconi is clearly relevant to whether the force
used was excessive. The failure to disclose that opinion was prejudicial to
Koester because he has had no opportunity to secure a rebuttal expert.
Koester’s time to disclose an expert expired on April 1, 2013, more than a
year before Moriconi disclosed the opinion. Koester also had no other
Page 6 of 8
notice of the opinion. Dr. Russell’s medical records produced in discovery
did not disclose that he formulated such an opinion.
The late disclosure also threatens to disrupt the trial date. The case
was filed almost three and one half years ago on January 21, 2011. The
matter has been continued several times. The jury trial is currently set for
October 6, 2014. Text Order entered April 15, 2014. If Moriconi is allowed
to present this expert testimony, the Court will be required to reopen expert
discovery to allow Koester to secure a rebuttal expert. The resulting delay
would push the case well past its fourth anniversary. The cost and delay is
not harmless to Koester. Moriconi’s failure to disclose was not harmless.
Because the failure to disclose was not substantially justified or
harmless, Moriconi cannot use Dr. Russell’s expert opinions as evidence.
Fed. R. Civ. P. 37(c). The Motion is allowed.
The Court notes that Drs. Bova and Russell were properly disclosed
as fact witnesses. They, therefore, may testify about their examination and
treatment of Moriconi after the alleged incident in which Koester shot
Moriconi with the Taser. They may not provide expert opinion testimony
about the Tasers, including whether the Taser shot almost killed Moriconi.
THEREFORE Defendant Koester’s Motion to Bar Testimony, or in the
Alternative, Motion for Extension of Time (d/e 82) is ALLOWED. Plaintiff
Page 7 of 8
Moriconi is barred from presenting any testimony by Dr. Robert Russell or
any other witness that expresses expert opinions about the Tasers,
including whether the Taser shot alleged in the Second Amended
Complaint almost killed Moriconi. The request for alternative relief is
denied as moot.
ENTER: July 25, 2014
s/ Tom Schanzle-Haskins
UNITED STATES MAGISTRATE JUDGE
Page 8 of 8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?