Curtis et al v. Wilks et al

Filing 426

MEMORANDUM Opinion and Order Signed by the Honorable Mary M. Rowland on 3/26/2013: Defendants Motion In Limine to Bar the Trial Testimony of William Rotolo 333 is GRANTED IN PART and DENIED IN PART; Defendants' Motion In Limine to Bar Kevin Chick from Testifying as an Expert Witness at Trial 336 is GRANTED. Mailed notice(gel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TOD CURTIS, et al.,
Plaintiffs,
v.

No. 08 C 3527
Magistrate Judge Mary M. Rowland

IRVANA K. WILKS, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Defendants move to bar Plaintiffs’ proposed experts, William Rotolo and Kevin
Chick, because (1) the District Court already ruled that they are not qualified; and
(2) Rotolo’s and Chick’s opinions are unreliable or irrelevant in any event. (Dkt. 333
& 336). For the reasons stated below, the Court makes the following rulings:
William Rotolo


Defendants’ Motion In Limine to Bar the Trial Testimony of William
Rotolo [333] is DENIED as to the following opinions: (1) Defendants failed
to comply with current practices regarding development and code
enforcement; (2) Plaintiffs’ potential return on investment, had they
developed their property, would have been substantial.



Defendants’ Motion In Limine to Bar the Trial Testimony of William
Rotolo [333] is GRANTED as to the following opinions: (1) Defendants
engaged in selective code enforcement against Plaintiffs; (2) the Village
Defendants and Oztekin were operating under an unwritten agreement to
obtain Plaintiffs’ property; and (3) the Village’s appraisal of Plaintiffs’
property was invalid.

Kevin Chick


Defendants’ Motion In Limine to Bar Kevin Chick from Testifying as an
Expert Witness at Trial [336] is GRANTED.

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I. PROCEEDURAL BACKGROUND
Plaintiffs Tod Curtis, First United Tryst Company, and Elto Restaurant, Inc.
bring this action against the Village of Mount Prospect (“Village”), as well as
associated individual defendants, alleging Defendants engaged in a pattern of
racketeering activity to deprive Plaintiffs of their property and retaliated against
Plaintiff Tod Curtis in violation of his First Amendment rights.
On July 24, 2009, Defendants filed a motion for summary judgment. In
responding, Plaintiffs attached declarations from two proposed experts: William
Rotolo and Kevin Chick. (Dkt. 153-3 and 153-4). On October 27, 2009, Defendant
moved to strike the Rotolo and Chick declarations. (Dkt. 172). In ruling on the
motions for summary judgment, the District Court (Judge Guzman) granted
Defendants’ motion to strike, finding that neither Rotolo nor Chick, based on their
declarations, were qualified to provide the opinions offered. (Dkt. 185).
A. Motion to Strike the Declaration of William Rotolo
According to his declaration, from 1975 to 1986, Rotolo worked in senior
planning positions with the Village of Schaumberg and the Village of Wilmette. He
has since worked in the private sector, helping developers get projects approved by
various municipalities. During his time in private development, Rotolo has worked
on a total of three projects with the Village of Mount Prospect. In his declaration,
Rotolo opined that Defendants departed from their normal code enforcement
practices when dealing with Plaintiffs’ property. (Dkt. 153-2 at ¶ 11) (“In all of my
years in dealing with municipal government, both as a business owner and code

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enforcement manager, I have never experienced or have been otherwise informed of
such overzealous behavior directed at a particular business owner.”). Rotolo also
opined that “the Village engaged in selective and vindictive enforcement of Village
codes and regulations to harass Tod Curtis and to force him to sell his property.”
(Dkt. 153-3 at 5).
The District Court held that Rotolo was not qualified to opine about the currentday practices of the Village of Mount Prospect, because he “gained most, if not all, of
his knowledge of the practices and usage of other suburban municipalities’ planning
practices two or three decades ago.” (Dkt. 186 at 2). Regarding Rotolo’s development
experience in the private sector, Judge Guzman stated, “Plaintiffs have simply
failed to connect the dots” between Rotolo’s private sector experience and the
opinions offered. The District Court also ruled that Rotolo’s statements concerning
the

motives

behind

the

individual

Defendants’

conduct

were

inherently

inadmissible because they relied on speculation. (Dkt. 186 at 3 (“[N]either he nor
anyone else is qualified to speculate as to another’s intent.”)).
B. Motion to Strike Declaration of Kevin Chick
Chick’s declaration indicated that he has been in the remodeling construction
industry for over 30 years. He owns a company that builds homes, renovates
buildings, and designs cabinetry. In his declaration, Chick opines that the
excavation and construction of the Blues Bar caused damage to Plaintiffs’ property.
Judge Guzman held that Chick was not qualified to testify as an expert regarding
the cause of any existing or impending structural damage to Plaintiffs’ property

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because he did not state that he had an engineering degree or any particular
experience in analyzing the cause of structural damage. The District Court also held
that Chick failed to provide the methodology he used to reach his opinion. (Dkt. 186
at 4 (“his ipse dixit conclusions are not sufficiently reliable”).
II. LEGAL STANDARD
Defendants now seek to bar Rotolo and Chick from testifying at trial. They argue
that the District Court’s rulings on Chick and Rotolo’s qualifications at the
summary judgment stage constitute law of the case, which now mandates exclusion
of those experts’ trial testimony. In the alternative, Defendants argue that neither
witness meets the reliability standard under Daubert. Plaintiffs respond that (1)
Defendant’s “law of the case” argument was already rejected by Judge Lee when he
denied Defendants’ motions to quash, and (2) any deficiencies in Rotolo’s and
Chick’s declarations have since been cured by supplemental disclosures and
deposition testimony.
A. Law of the Case Doctrine
Before addressing the merits of Defendants’ law of the case argument, the Court
notes Defendants’ failure to bring certain relevant facts to the Court’s attention in
their Motion In Limine to Bar the Trial Testimony of William Rotolo. (Dkt. 333).
Defendants assert that the Court must exclude Rotolo’s testimony because Judge
Guzman struck Rotolo’s declaration during summary judgment proceedings. (Id. at
4) (“[A]bsent compelling reasons, a ruling made at one stage of a litigation governs
subsequent proceedings even if the case is transferred to another judge, or even

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another coordinate court.”). Defendants fail to mention, however, that Judge
Guzman addressed that argument directly during a hearing on March 6, 2012:
The rulings I previously made were with respect to affidavits
submitted on behalf of these experts in the motion for summary
judgment. . . . I didn’t know what these people are going to testify to at
trial. Maybe it will be exactly the same thing in the affidavits, in which
case, most likely, the rulings I made with respect to those affidavits
will apply to their trial testimony as well and they will not be allowed
to testify. But, I don’t know that to be true. Nor do I know if the
affidavits they presented establish all of their credentials, experience
or other qualifications. They may have others that weren’t in those
affidavits.
(Dkt. 373-1 at 11).
In addition, a July 19, 2012 Order by Judge Lee held that Judge Guzman’s
ruling on Rotolo’s declaration does not bar his testimony at trial:
Although defendants aver that the Court’s striking Rotolo’s and
Chick’s affidavits from the summary judgment record was tantamount
to barring their expert testimony at trial, the Court disagrees. It is yet
unknown precisely to what Rotolo and Chick will attest at trial and
whether they qualify as experts as to such matters.
(Dkt. 310). In arguing that Judge Guzman’s ruling on the summary judgment
declaration constitutes law of the case, Defendants should have informed the Court
of the subsequent proceedings as detailed above. Defendants’ failure to do so wasted
judicial time and resources.
Moving on to the merits, the Court agrees with Defendants that, if Plaintiffs
offer the same expert opinions as those submitted at the summary judgment stage
with the same deficiencies, those opinions will be governed by the law of the case.
As the District Court twice indicated, however, Plaintiffs’ experts may offer opinion
testimony at trial if they cure the deficiencies that led Judge Guzman to strike their

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summary judgment declarations. Thus, the law of the case doctrine bars Rotolo’s
and Chick’s opinions to the extent (1) that their proposed opinions at trial are
materially the same as those offered in their summary judgment declarations, and
(2) Plaintiffs have not remedied—through deposition testimony—the lack of
qualifications, reliability, or methodology identified in Judge Guzman’s order.
B. The Law Governing the Admissibility of Expert Opinion Testimony
In addition to the law of the case, of course, the admission of expert testimony is
governed by Federal Rule of Evidence 702:
If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or
otherwise.
The Supreme Court in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993),
interpreted this rule to require that “the trial judge must ensure that any and all
scientific testimony or evidence admitted is not only relevant, but reliable.” Id. at
589.
In analyzing the reliability of proposed expert testimony, the role of the court is
to determine whether the expert is qualified in the relevant field and to examine the
methodology the expert has used in reaching his conclusions. See Kumho Tire Co.,
Ltd. v. Carmichael, 526 U.S. 137, 152 (1999). An expert may be qualified by
“knowledge, skill, experience, training, or education.” Fed. R. Evid. 702. While
“extensive academic and practical expertise” in an area is certainly sufficient to
qualify a potential witness as an expert, Bryant v. City of Chicago, 200 F.3d 1092,
1098 (7th Cir. 2000), “Rule 702 specifically contemplates the admission of testimony
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by experts whose knowledge is based on experience. Walker v. Soo Line R.R., 208
F.3d 581, 591 (7th Cir. 2000); see Kumho, 526 U.S. at 156 (“[N]o one denies that an
expert might draw a conclusion from a set of observations based on extensive and
specialized experience.”).
III. DISCUSSION
A. Proposed opinion testimony of William Rotolo
1. Rotolo’s opinion that Defendants failed to comply with current
practices regarding development and code enforcement
Judge Guzman found Rotolo was not qualified to testify about the current-day
practices of the Village of Mount Prospect in terms of Code Enforcement and
redevelopment project approval because he had not worked in municipal planning
for the past 24 years. (Dkt. 186 at 2). However, Rotolo’s deposition testimony
revealed that his time in private practice was closely related to municipal code
enforcement. In 1986, Rotolo left a senior planning position with the Village of
Wilmette to join the Lexington Development Corporation. There, he worked as a
project manager, responsible for getting development projects approved by
municipalities. (Dkt. 373-2 at 9). He worked on two projects in the Village of Mount
Prospect, requiring him to learn the Village’s building codes, development policies,
and enforcement procedures. (Dkt. 373-2 at 10). He was required to meet with and
make presentations to the Village Board, and he was responsible for negotiating the
ultimate approval of those projects. (Id.) While working for Lexington, Rotolo was
promoted to vice president, executive vice president, and eventually became a part
owner. (Dkt. 373-2 at 11). In 1996, Rotolo left Lexington and formed his own

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development business, Insignia Development Corporation. (Dkt. 373-2 at 12). There,
he worked on two more projects with the Village of Mount Prospect in 1998 and
again from 1999 to 2002. (Dkt. 373-2 at 12–14). He has also worked on an additional
20 projects in other northwest Chicago suburbs. (Dkt. 373-2 at 15).
The Court finds that Rotolo is qualified to opine that Defendants failed to comply
with both the Village of Mount Prospect’s and the Northwest Municipal
Conference’s

current

practices

regarding

development

approval

and

code

enforcement in its dealings with Plaintiffs.
2. Rotolo’s opinion that Defendants
enforcement against Plaintiffs

engaged

in

selective

code

Judge Guzman ruled that Rotolo could not testify that Defendants “engaged in
selective and vindictive enforcement of Village codes and regulations to harass Tod
Curtis and to force him to sell his property,” because no one is qualified to speculate
as to another’s intent. (Dkt. 186 at 3). Since that ruling, Plaintiffs have toned down
Rotolo’s opinion somewhat: instead of proposing that he testify about “vindictive”
enforcement meant to “harass” Curtis, Plaintiffs propose that Rotolo be allowed to
testify that Defendants’ enforcement was “selective.” Despite that semantic
adjustment, Judge Guzman’s reasoning still stands. Testimony about Defendants’
selective code enforcement would necessarily convey that the enforcement was
based on improper motives. While Rotolo may testify that Defendants failed to
comply with its current practices regarding development and code enforcement, he
cannot go so far as to say it was “selective,” because that would go to Defendants’
mental state. Sommerfield v. City of Chicago, 254 F.R.D. 317, 335 (N.D. Ill. 2008)

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(“Just as judges have no way of crawling into peoples’ minds, neither does [the
proposed expert]”) (internal citation and quotation omitted); United States v.
Benson, 941 F.2d 598, 604 (7th Cir. 1991) (holding inadmissible testimony of an IRS
agent regarding the purpose of a transaction; “[m]uch of [his] testimony consists of
nothing more than drawing inferences from the evidence that he was no more
qualified than the jury to draw.”).
Accordingly, the Court excludes Rotolo’s opinion that Defendants engaged in
selective code enforcement against Plaintiffs.
3. Rotolo’s opinion that the Village Defendants and Oztekin were
operating under an unwritten agreement to obtain Plaintiffs’
property
Likewise, Rotolo cannot testify that Defendants were operating under an
“unwritten agreement” to obtain Plaintiff’s property. That opinion would require an
inference about Defendants’ mental state, which Rotolo is no more qualified to make
than the jury.
4. Rotolo’s opinion regarding Plaintiffs’ potential return on investment
had they developed their property
Defendants also seek to bar Rotolo’s opinion regarding Plaintiffs’ potential
return on investment if they developed their property.1 In his report, Rotolo opined
that
[h]ad the Village allowed Mr. Curtis to move forward with a
condominium building with ground floor retail during the 2005–2006
period when Mr. Curtis was pursuing such a development, . . . the
potential profit that Mr. Curtis would have realized … would have
been substantial. The market for condominiums in suburban
1

This opinion was not at issue in Defendants’ October 27, 2009 motion to strike.

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downturns was at its peak at this time. The housing development
industry was realizing record breaking returns on investment, and
sales of condominiums like those contemplated in Mr. Curtis’s
development plans were realizing record breaking sales paces.
This height[en]ed market for condos in the northwest suburbs
continued through the end of 2006. It can be argued that Mr. Curtis
could have realized a return on his investment of well over 30% . . . .
Since the Fall of 2007, the real estate development industry
nationwide has been in dire condition. However, even in these difficult
times for real estate development, there are a few select development
types that could be profitable for a landowner in downtown Mount
Prospect.
(Dkt. 373-1 at ¶¶ 46–48).
Defendants do not contest Rotolo’s expert qualifications to opine on these issues.
Instead, Defendants contend that by the time Curtis submitted his Gateway Centre
Redevelopment Proposal to the Village in March 2008, Rotolo’s calculations based
on the 2005–2006 economy were no longer reliable. (Dkt. 333 at 10–13). Defendants
argue that Rotolo’s pro-forma projections are not accurate because “[e]very person
in America knows that the development economy tanked in 2007!” (Id. at 11)
(exclamation in original). The Court is not persuaded.
Curtis made his initial Gateway Centre Redevelopment Proposal to the Village
in October 2006. (Stipulations and Uncontested Facts ¶¶ 78–79). Rotolo’s
assessments are reliable for this time frame. Even focusing on Curtis’s second
proposal submitted in March 2008, Defendants provide no support, expert or
otherwise, for their assumption that Rotolo’s opinion is unreliable merely because
the “development economy tanked in 2007!” Indeed, in his deposition, Rotolo
explained that while 2007 was a rough year for the real estate market, it rebounded
in 2008:

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Starting at the end of 2008, rents started rising again and occupancy
started going up and they are now at an all-time high, almost. They’re
very strong because people are not buying houses, they’re renting, and
they’re not buying because they no longer qualify or they don’t have
the income or a big one is they don’t have a down payment.
(Dkt. 373-3 at 137). Rotolo testified that while rents dropped 10–20% in 2007, the
rental market recouped half of its loss during 2008 and by 2009 it had recovered to
its 2006 height. (Id. at 139–40).

Rotolo also testified that the rental market

continued to rise after 2009 and by 2012 was higher than its 2006 peak and was
“probably the strongest rental market we’ve seen in 20 some years.” (Id. at 140).
Rotolo was specifically questioned about the impact of the 2007 economic downturn
on this opinion and responded that it did not make him any less confident in his
original projections. (Id. at 105–40).
In sum, the Court rejects Defendants’ argument that the data underlying
Rotolo’s opinion is so old that it renders his opinion unreliable. Rotolo may testify
about Plaintiffs’ potential return on investment had they developed their property.
Defendants are free to cross-examine him on the temporal scope of the data on
which his opinions are based. Richman v. Sheahan, 415 F. Supp. 2d 929, 949 (N.D.
Ill. 2006) (“[T]he jury is provided with independent means by which it can reach its
own conclusion or give proper weight to the expert testimony.”).
5. Rotolo’s opinion regarding the Village of Mount Prospect’s appraisal
of Plaintiffs’ property
Defendants argue that Rotolo is not qualified to testify about the validity of the
Village’s appraisal of the Plaintiffs’ property. Rotolo opines that John Mundie, the
appraiser retained by the Defendants to appraise Plaintiffs’ property “used

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unscrupulous appraisal techniques” akin to “the corrupt practices of highly political
governmental entities such as the State of Illinois under Governor’s Ryan and
Blagojevich, or in the wards of the City of Chicago.” (Dkt. 333-2 at ¶ 43-44).
Defendants also assert that Rotolo’s opinion is not relevant because Judge Guzman
already found Mundi’s appraisal to be a proper appraisal. (Dkt. 333 at 14).
Rotolo’s opinion is not appropriate under Fed. R. Evid. 702.

It offers no

assistance to the jury and is based on no methodology. It is an inflammatory attack
on the Mundie appraisal, an appraisal the District Judge has already found to have
been properly conducted:
Mundie’s appraisal … compared plaintiffs’ property to two properties in Mount
Prospect, one of with was located a few blocks north of plaintiffs’ property, in its
comparable improved sales analysis. … Because the appraisal clearly compares
the subject property to the value of properties in Mount Prospect which
increased the price per square foot that the Village ultimately offered, no
reasonable jury could find that the appraisal solely relied on properties that
were not in proximity to plaintiffs’ property. … In sum, plaintiffs have failed to
create a genuine issue of fact as to whether the Village’s offer was unreasonable
or below fair market value.
Id. at 32-33. Defendants’ motion to preclude this testimony is granted.
B. Proposed opinion testimony of Kevin Chick regarding the case of the
damage to and the cost to repair Plaintiffs’ property.
Defendants object to the proposed opinion testimony of Kevin Chick. Although
Plaintiffs do not describe the precise contours of Chick’s proposed testimony, it is
clear that he would at least testify that the excavation and construction of the Blues
Bar, beginning October 2006, caused significant damage to Plaintiffs’ property
which will require Plaintiffs to spend approximately $965,000 to repair.

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In the summary judgment proceedings, Judge Guzman ruled that Chick was
unqualified to testify as an expert regarding the cause of any damage or the cost of
remediating the same, because (1) he “does not have an engineering degree or
particular experience in analyzing the cause of structural damage,” and (2) “he does
not provide the methodology he used to reach his opinion.” (Dkt. 186 at 4).
The Court has reviewed Chick’s subsequent deposition testimony to determine
whether Plaintiffs have cured the errors identified in Judge Guzman’s opinion.
Chick testified that he is a long-time associate of Plaintiff Tod Curtis. Chick worked
for Curtis from 1974 to 1976 as an assistant manager and bartender in one of
Curtis’s restaurants. (Dkt. 372-1 at 29). Chick then moved to Minnesota where he
worked for his father in the construction business (Id.) In about 1979, Chick moved
back to Illinois, and soon thereafter started his own construction business. He spent
about a year, again working for Curtis, remodeling Ye Olde Town Inn and the rest
of the building at 6-18 West Busse. (Id. at 30–31). Throughout the course of his
career, Chick has worked on a number of renovation projects, some of which
involved assessing structural integrity and repairing structural damage. (Id. at 34–
35). But, as Judge Guzman noted, Plaintiffs have failed to establish that Chick has
experience in determining the cause of structural damage. (Dkt. 186 at 4) (emphasis
added). It is not clear to the Court that someone experienced in fixing structural
damage has, by extension, expertise at determining the cause of that damage. That
deficiency was clearly identified in Judge Guzman’s ruling, and Plaintiffs were
unable to remedy it through Chick’s deposition testimony.

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Further, Chick still fails to adequately describe his methods. For example,
during his deposition, Chick was asked “what methods did you use to assess the
structural integrity of the building?” to which, he responded “My general
observation and experience in renovations.” (Dkt. 336-3 at 6). That answer does not
afford Defendants with information sufficient to challenge Chick’s opinion. Rule 702
requires that the expert explain the “methodologies and principles” that support his
opinion; he cannot simply assert a “bottom line.” Minix v. Canarecci, 597 F.3d 824,
835 (7th Cir. 2010); see also United States v. Noel, 581 F.3d 490, 497 (7th Cir. 2009)
(rejecting expert testimony where expert “in essence, told the jury nothing more
than, ‘I am familiar with the definition of child pornography, and this meets that
definition because I said so’”).
Because Chick cannot opine that construction of the Blues Bar caused the
damage to Plaintiffs’ property, he also cannot opine as to the cost of remediating
damages caused by construction of the Blues Bar. As Judge Guzman explained,
Chick’s opinion about the cost of repairing Plaintiffs’ property is not relevant unless
he can isolate what specific repairs were made necessary by the Blues Bar
construction, apart from repairs that may have been necessary or desirable for
other reasons (such as to address normal deterioration). Judge Guzman wrote:
[Chick’s] cost estimate in his declarations and report does not separate
the cost of replacing or repairing missing or damaged bricks or parapet
caps from the cost of demolishing and rebuilding the entire wall. The
presumption underlying the estimate is that all of the categorized
repairs are necessary to restore the structural integrity of plaintiffs’
property. However, as stated above, Chick is not qualified as an expert
to testify that all of his suggested repairs are necessary to make the
building structurally sound.

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(Dkt. 186 at 5). That reasoning still stands.
Accordingly, Chick is not qualified to opine (1) that the construction of the Blues
Bar caused damage to Plaintiffs’ property; or (2) the cost of repairs necessary due to
such damage.
IV. CONCLUSION
For the reasons described above, Defendants’ Motion In Limine to Bar the Trial
Testimony of William Rotolo [333] is GRANTED IN PART and DENIED IN
PART; Defendants’ Motion In Limine to Bar Kevin Chick from Testifying as an
Expert Witness at Trial [336] is GRANTED.

E N T E R:
Dated: March 26, 2013
MARY M. ROWLAND
United States Magistrate Judge

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