Lujano v. Town of Cicero et al

Filing 390

MEMORANDUM Opinion and Order Signed by the Honorable Martin C. Ashman on 12/6/2011:Mailed notice(tlp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JANIDET LUJANO,
Plaintiff,
v.
TOWN OF CICERO, et al.,
Defendants.

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Case No. 07 C 4822
Magistrate Judge
Martin C. Ashman

MEMORANDUM OPINION AND ORDER
Plaintiff Janidet Lujano ("Lujano") has sued the Town of Cicero and various municipal
officials and employees (collectively "Defendants") for employment-related discrimination,
bringing claims under the First and Fourteenth Amendments pursuant to 42 U.S.C. § 1983, as
well as a state law claim for the intentional infliction of emotional distress. Currently before the
Court is Defendants' motion to bar Desiree Connelly from testifying as an expert witness on
behalf of Lujano. The parties have consented to have this Court conduct all proceedings in this
case, including the entry of final judgment pursuant to 28 U.S.C. § 636(c) and
N.D. Ill. R. 73.1(c). For the reasons set forth below, this Court finds that Defendants' motion
should be granted.
The admissibility of expert testimony under Federal Rule of Evidence 702 is governed by
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The Seventh Circuit has
interpreted Daubert as requiring a two-step analysis under Rule 702. A court must determine
whether the expert's testimony is reliable and, if it is, whether it assists the trier of fact "in

understanding the evidence or in determining a fact in issue." Cummins v. Lyle Industries,
93 F.3d 362, 367-68 (7th Cir. 1996). The first half of this test involves deciding if the witness is
qualified "as an expert by knowledge, skill, experience, training, or education."
Fed. R. Evid. 702. "Whether a witness is qualified as an expert can only be determined by
comparing the area in which the witness has superior knowledge, skill, experience, or education
with the subject matter of the witness's testimony." Gayton v. McCoy, 593 F.3d 610, 616
(7th Cir. 2010) (internal quote and citation omitted). The court acts as a gatekeeper to insure that
a witness is not only qualified to testify as an expert, but that "his qualifications provide a
foundation for [him] to answer a specific question." Id. at 617.
The parties in this case dispute whether Ms. Connelly, who acted as a midwife to Lujano,
is qualified to give expert testimony under Rule 702. As an initial matter, neither party has
clearly explained what issues are at stake in Ms. Connelly's possible testimony. The Court infers
from remarks in the parties' briefs, and from the sealed portions of Ms. Connelly's deposition,
that Lujano experienced difficulties during a pregnancy and that Ms. Connelly advised bed rest
due to "stressors" experienced in Lujano's work place. For example, Lujano stated in her
Rule 26(a)(2)(C) disclosures that
Ms. Connelly is expected to testify consistent with her deposition in this matter,
and consistent with the medical records relating to Plaintiff, as well as her
opinions that she placed Plaintiff on bed rest during her pregnancy because she
was concerned about Plaintiff, Plaintiff's preterm labor, Plaintiff's report of work
related stress, and that Plaintiff's work related stress could have been a cause of
Plaintiff's preterm labor.

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The Court also infers from Lujano's expert disclosures that she was treated by Dr. Eileen Murphy
during her pregnancy.
Lujano argues at some length that Ms. Connelly's testimony should not be barred because
she will not be called at trial to rebut testimony given by Dr. James Cavanaugh and Dr. Orest
Wasyliw – Defendants' own designated experts – concerning how Lujano's work-related stress
affected her pregnancy; Lujano contends that Drs. Cavanaugh and Wasyliw are not qualified to
testify on this issue because they are not trained in caring for pregnant women. This argument
misses the mark, however, because the relevant issue is not the qualifications of Defendants'
experts, but the those of Ms. Connelly herself.1
Unfortunately, Lujano provides little evidence on this crucial issue. She briefly contends
that Ms. Connelly meets the standard for Rule 702 because she has a four-year undergraduate
degree in science and nursing, two years of training as a midwife, and five years of midwife
experience. In support, she directs the Court's attention to portions of Connelly's deposition that
were filed in camera. However, Ms. Connelly's testimony largely duplicates what Lujano states
in her brief: Ms. Connelly received four years of undergraduate training in nursing, two years of

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Lujano also makes much of the fact that she identified Ms. Connelly as a witness under
Rule 26(a)(2)(C). The 2010 amendments to Rule 26 provide that expert witnesses who are not
specially employed or retained, and who do not regularly give expert testimony, must provide
(1) the subject matter of their testimony and (2) a summary of the facts and opinion to which
they will testify. Fed. R. Civ. P. 26(a)(2)(C). However, they need not provide the written expert
report required for other witnesses identified under Rule 26(a)(2)(B). The Advisory Committee
Notes make clear that witnesses under Rule 26(a)(2)(C) can testify both as fact witnesses and as
expert witnesses. The reasons for Lujano's reliance on this provision, both in her brief and at the
hearing, are unclear, as she does not argue that the 2010 amendments altered the standard for
qualifying an expert witness under Daubert.
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education as a midwife, and is licensed as a midwife by the State of Illinois. She does not
identify the institutions involved, nor does she provide any clear explanation of her work as a
midwife. Instead, she states only that she started her first job "at Erie" in December 2007 and
has worked continuously since that time, except for three-months of maternity leave.
The Court finds this explanation of Ms. Connelly's qualifications insufficient for her to
testify as an expert witness. Lujano cites United States v. Withorn, 204 F.3d 790 (8th Cir. 2000)
for the proposition that a midwife can testify as an expert under Rule 702. In itself, that is not a
remarkable conclusion, and it is certainly not determinative of the issue presented here; nurses,
midwives, and other health care professionals can give expert testimony if they meet the
standards for doing so under Rule 702. Indeed, the Advisory Committee Notes for the 2010
amendments to Rule 26 refer to experts such as "physicians or other health care professionals"
(emphasis added). It is well established that qualifying as a testifying expert is not a function of
specific academic credentials. Rather, "anyone with relevant expertise enabling him to offer
responsible opinion testimony helpful to judge or jury may qualify as an expert witness." Tuf
Racing Prods., Inc. v. American Suzuki Motor Corp., 223 F.3d 585, 591 (7th Cir. 2000) ("The
notion that Daubert . . . requires particular credentials for an expert witness is radically
unsound").
However, the flexibility afforded to experts does not allow Ms. Connelly to testify as
such without some showing that she has the training and experience necessary to give reliable
testimony that could aid the trier of fact. Ms. Connelly overlooks that such expertise was
demonstrated in Withorn, which describes the midwife in that case as a certified nurse midwife
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who practiced in both clinical and hospital settings. The midwife who testified in Withorn also
gave "a detailed description" of her experience and training, including "special training" she
received in the specific issue at stake, a rape examination. Withorn, 204 F.3d at 797. By
contrast, Lujano does not provide any discussion of what Ms. Connelly's practice has involved
since she was certified, any professional organization she belongs to, or where she has worked,
other than the unexplained remark that her first job was "at Erie." Insofar as other, unspecified
portions of Ms. Connelly's deposition may clarify this issue, the burden for presenting such
information lies with Lujano. See Little v. Cox's Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995)
(stating that a court is "not required to scour the party's various submissions to piece together
appropriate arguments"). The Court notes that the deposition submitted by Lujano refers to a
resume that was provided to opposing counsel at the deposition that presumably laid out
Ms. Connelly's training and experience in greater detail. Lujano, however, did not include the
resume as part of the transcript provided to the Court. As a result, the Court has little
understanding of when or where Ms. Connelly was trained or where she has practiced.
Ultimately, "whether a witness is qualified as an expert can only be determined by
comparing the area in which the witness has superior knowledge, skill, experience, or education
with the subject matter of the witness's testimony." Carroll v. Otis Elevator Co., 896 F.2d 210,
212 (7th Cir. 1990). The guiding inquiry is not whether the "expert is qualified in general, but
whether his or her qualifications provide a foundation for [him or her] to answer a specific
question." Gayton, 593 F.3d at 617. Even when the purported expert is a licensed physician,
Gayton points out that a doctor in general practice may or may not have the required expertise to
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testify on specific medical questions. Instead, courts must carefully inquire as to whether the
physician has "the adequate education, skill, and training" to answer specific inquiries. Id.
In this case, Lujano has not shown how her training and experience as a midwife give her
the requisite expertise to testify on the topic identified in Lujano's Rule 26(a)(2)(C) disclosure –
"that Plaintiff's work related stress could have been a cause of Plaintiff's preterm labor."2 The
Court cannot find that Ms. Connelly is qualified to testify as an expert without any understanding
of when or where she was trained as a nurse or as a midwife, what experience she has had in
treating pregnant women undergoing significant stress, or what specific education she has
received for understanding preterm labor. The Court recognizes that an expert's proposed
testimony need not always overlap with her experience "in both kind and degree." Paine ex rel.
Eilman v. Johnson, No. 06 C 3173, 2010 WL 785398, at *2 (N.D. Ill. Feb. 26, 2010). But the
gatekeeping function that is part of a court's duty under Rule 702 would be meaningless if every
potential witness were deemed to be an expert without any evidence showing what the overlap
between training and testimony actually involves.
Thus, Ms. Connelly may not testify as an expert on either the relation between stress and
pregnancy or the effect that Lujano's alleged work-related stress had on her pregnancy. She
may, however, testify as a fact witness concerning what she observed and the actions she took as
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The parties limit their arguments to the issue of Ms. Connelly's qualifications, but
Lujano must also show that her testimony would assist the trier of fact in understanding the
evidence in this case. Cummins, 93 F.3d at 367-68. It is difficult to understand how
Ms. Connelly could testify on the issue identified in the Rule 26(a)(2)(C) disclosures because she
clearly stated in her deposition that "[w]e don't know what causes preterm labor." Thus, the
Court cannot conclude that, even if she were qualified as an expert, Ms. Connelly's testimony
would meet the second part of the analysis that applies to expert witnesses.
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part of Lujano's treatment. For these reasons, Defendant's Daubert Motion to Bar Desiree
Connelly's Expert Opinions (Doc. #360) is granted.
ENTER ORDER:

Dated: December 6, 2011.

__________________________________________
MARTIN C. ASHMAN
United States Magistrate Judge

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