Dean v. Wexford Health Source et al

Filing 190

ORDER Entered by Judge Sue E. Myerscough on 12/20/2019. (SG, ilcd)

E-FILED

Friday, 20 December, 2019 02:01:53 PM
Clerk, U.S. District Court, ILCD

UNITED STATES DISTRICT COURT
THE CENTRAL DISTRICT OF ILLINOIS
WILLIAM KENT DEAN,
Plaintiff,
v.
WEXFORD HEALTH
SOURCES,
INC., et al.,
Defendants.

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17-CV-3112

OPINION
SUE E. MYERSCOUGH, U.S. DISTRICT JUDGE.
During the trial, the Court granted in part and denied in part
the Wexford Defendants’ motion in limine to bar the admission of
court-appointed expert reports from a Northern District of Illinois
case, Lippert v. Godinez, 10-cv-4603. Lippert is a class action
challenging the delivery of healthcare to Illinois Department of
Corrections inmates.
The Court allowed the admission of limited portions of the
expert reports for purposes of notice but not for the truth of the
matters asserted therein. A limiting instruction was read to the jury
explaining that Defendants disputed the reports and that the
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reports should be considered only as to notice. This order explains
in more detail the Court’s analysis in reaching that conclusion.
The first court-appointed expert report in Lippert found
“breakdowns in almost every area, starting with delays in
identification of the need for the offsite services, delays in obtaining
an authorization number, delays in being able to schedule an
appointment timely, delays in obtaining offsite paperwork and
delays or the absence of any follow-up visit with the patient.”
(Plaintiff’s trial exhibit PTX194-0029.) The second court-appointed
expert report in Lippert found “no improvement since the First
Court Expert’s report. Our opinion is that the specialty care
process of collegial review is a patient safety hazard and should be
abandoned until such time that patient safety is ensured.”
(Plaintiff’s trial exhibit PTX193-0064). The second report, though
authored after the events in this case, in part covered the relevant
time here.
Defendants are correct that several district courts have ruled
that these reports are inadmissible hearsay when offered for the
truth of the matters asserted therein. The Seventh Circuit has

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agreed. Wilson v. Wexford Health Sources, Inc., 932 F.3d 513, 52223 (7th Cir. 2019)(collecting cases).
However, these cases do not address whether the reports are
admissible for a nonhearsay purpose. The Court agrees with
Plaintiff that the reports are admissible for a nonhearsay purpose:
to show notice to Defendants (particularly, to Wexford) that courtappointed experts had reported systemic problems with the process
for obtaining offsite diagnostic tests and offsite care, the same
issues in this case. See Daniel v. Cook County, 833 F.3d 728, 743
(7th Cir. 2016)(monitor’s report not admissible for truth of the
matter but might be admissible to show notice); Saccameno v.
Ocwen Loan Servicing, LLC, 372 F.Supp.3d 609, 647 (N.D. Ill.
2019)(consent decrees admissible for purpose of notice; jury
instructed that evidence admitted not for the truth but for notice
that issues were brought to parties’ attention). The reports are
relevant as to notice, and notice is relevant to the deliberate
indifference inquiry on the Eighth Amendment claim. Admission of
the reports for notice purposes only was not unfairly prejudicial—
Defendants were free to and did offer evidence disputing the reports’
conclusions, and the jury was instructed to consider the reports
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only as to notice of the reports’ findings, not for the truth of those
findings.
FOR THE COURT:

s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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