Fowler v. United States Of America

Filing 89

WRITTEN Opinion entered by the Honorable Robert M. Dow, Jr on 1/17/2012: For the reasons stated below, Plaintiff James Fowlers motion to compel 53 is granted in part and denied in part. Mailed notice(tbk, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Robert M. Dow, Jr.

CASE NUMBER

08 C 2785

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

1/17/2012

Fowler vs. United States

DOCKET ENTRY TEXT

For the reasons stated below, Plaintiff James Fowler’s motion to compel [53] is granted in part and denied in
part.
O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
In his motion, Plaintiff Fowler asks the court to allow the previously disclosed testimony and opinions of Dr.
David Zoellick. With the exception of a small portion of Dr. Zoellick’s deposition testimony that deals with
injuries Plaintiff suffered other that those to Plaintiff’s left knee (Plaintiff’s Ex. D. at 28:25-30:12), Defendant
does not oppose the motion. Under Banister v. Burton, 636 F.3d 828, 833 (7th Cir. 2011); Meyers v. Nat’l
Railroad Passenger Corp., 619 F.3d 729, 734-35 (7th Cir. 2010), it is clear that Dr. Zoellick is a treating
physician who plainly made his determinations as to the causes of the injuries to Plaintiff’s left knee in the
course of providing treatment. That determination was included in Plaintiff’s initial Rule 26(a)(1) disclosures
and has been known to Defendant throughout this litigation. For these reasons, the Court grants Plaintiffs
motion with regard to all of Dr. Zoellick’s testimony dealing with the treatment of the Plaintiff’s left knee
injury.
With regard to the injuries to Plaintiff’s right knee and left hip that Dr. Zoellick discussed during his
deposition (Plaintiff’s Ex. D. at 28:25-30:12), the Court reserves its ruling until it has additional information.
Plaintiff submits that, in contrast to Meyers, “there is evidence in this case that Dr. Zoellick had previously
considered or determined the cause of plaintiff’s injuries during the course of his treatment of plaintiff.”
That assertion is demonstrably true as to the alleged injuries to Plaintiff’s left knee, but not self-evident as to
any other alleged injuries. If Plaintiff wishes to elicit testimony from Dr. Zoellick as to injuries to Plaintiff’s
right knee and left hip, Plaintiff must produce evidence that the doctor reached these conclusions in the
course of treating Plaintiff. See Meyers, 619 F.3d at 734-35 (“A treating physician who is offered to provide
expert testimony as to the cause of the plaintiff’s injury, but who did not make that determination in the
course of providing treatment, should be deemed to be one ‘retained of specially employed to provide expert
testimony in the case,’ and thus is required to submit an expert report in according with Rule 26(a)(2).”).
However, if Dr. Zoellick never examined or treated Plaintiff’s right knee and/or left hip, then he is an expert –
not a treating physician – as to any opinion on causation of injuries to those parts of Plaintiff’s body. To
allow Dr. Zoellick to testify as a treating physician without evidence that he assessed Plaintiff’s right knee
and left hip in the course of providing treatment would constitute an end run around Meyers and Banister and
the lines drawn by those cases in regard to testimony that can be offered without the submission of an expert

08C2785 Fowler vs. United States

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STATEMENT
report. If either party wishes to obtain a pre-trial ruling on the permissible scope of Dr. Zoellick’s testimony,
that party may submit a further motion in limine that takes into account the foregoing discussion and the
pertinent case law cited above.

08C2785 Fowler vs. United States

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