Cooley v. Board of Education of the City of Chicago et al

Filing 89

MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 6/14/2011:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KATHALEEN COOLEY,
Plaintiff,
v.
BOARD OF EDUCATION OF THE CITY
OF CHICAGO, et al., etc.,
Defendants.

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No.

09 C 2109

MEMORANDUM OPINION AND ORDER
At the time of this Court’s May 13, 2011 approval and entry
of the parties’ jointly-submitted proposed final pretrial order
(“FPTO”),1 defendants also filed four motions in limine.

With

counsel for plaintiff Kathaleen Cooley (“Cooley”) having since
responded, this memorandum opinion and order addresses the
motions to ready the case for trial.
Defendants’ first motion (Dkt. 74) is captioned “Defendants’
Motion To Bar the Admission of Medical Evidence That Has Not Been
Disclosed in Accordance with Federal Rule of Civil Procedure
26(A).”

Cooley’s response shows this to be a quibble that really

should not have occupied either the litigants’ or this Court’s
time for its resolution.

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That was the litigants’ second effort at developing a
suitable FPTO. During the conference held to consider the
parties’ initial effort (a practice that this Court always
employs), a number of items were identified that needed
correction or revision, so counsel for the parties were sent back
to the drawing board both literally and figuratively. Their
revised version was the subject of the May 13 conference.

At issue are three doctors who treated Cooley during her
pregnancy--Drs. Catherine Dillon, Suzanne Ashby and David Shaw.
Although defendants say they were not disclosed pursuant to
either Fed. R. Civ. P. (“Rule”) 26(a)(1) or 26(a)(2)(B), Cooley
has responded that they were disclosed nearly two years ago in
her July 22, 2009 answers to the First Set of Interrogatories
promulgated by defendant Board of Education (“Board”), which then
subpoenaed Cooley’s medical records from the three doctors two
weeks later.
Treating physicians have long been a source of confusion in
the treatment prescribed by the Rules governing discovery,
because their testimony most often encompasses their roles both
as occurrence witnesses (e.g., what they observed in the course
of their treatment) and as opinion witnesses under Fed. R. Evid.
(“Evid. R.”) 702 (testifying to their diagnoses and the like).
As such they are not required to prepare the full-bore written
reports called for by Rule 26(a)(2)(B), yet it is quite
artificial to attempt to erect a wall between those two
categories of testimony.

That tension, which has vexed the

drafters of the Rules as well as the courts, has prompted the
adoption as part of the 2010 amendments to Rule 26 of a provision
that points the way to resolution of the parties’ current dispute
in a manner that is fair to both (see new Rule 26(a)(2)(C)).
Because this case has not yet been set for trial (indeed, it

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could not be until after the current motions have been ruled
upon), there is time to carry out such an equitable solution.
Accordingly:
1.

Dkt. 74 is denied, essentially on mootness grounds

in light of this ruling.
2.

Cooley is ordered to deliver to defendants, within

21 days from the issuance of this opinion, a report as to
each of the three doctors conforming to the requirements of
Rule 26(a)(2)(C).
3.

If defendants wish to depose one or more of the

doctors upon receipt of those reports, counsel for the
parties are ordered to arrange for the taking of the
deposition or depositions as promptly as possible.

Any

doctor whom defendants do not depose may not be called as a
defense witness at trial.
Next, Dkt. 75 is captioned “Defendants’ Motion To Bar
Plaintiff’s Trial Exhibits 39, 40, 41, 42, 43, 45, 46, 47 and
48.”

Those exhibits are characterized by defense counsel as

“inadmissible hearsay under Fed. R. Evid. R. [sic] 801(d)(1)(B).”
Here is how defendants’ motion describes those exhibits:
Plaintiff’s Trial Exhibits 39, 40, 41, 42, 43, 45 and
46 are memos that plaintiff wrote to herself during the
spring of 2006 discussing conversations she had with
various people and her observations and thoughts.
(attached to Pretrial Order, Revised Exhibit C, and
attached hereto as Group Exhibit A). Plaintiff’s Trial
Exhibits 47 and 48 are narratives written by plaintiff
describing her duties as counselor and setting forth
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her version of the events of her employment at
Community Links Highs [sic] School.
But defense counsel have gotten off on the wrong foot by
focusing on Evid. R. 801, which sets out conditions that must be
met for a statement to qualify as nonhearsay.

Instead the first

seven of the nine challenged exhibits may indeed be hearsay, but
they qualify for admissibility under Evid. R. 803(1) or 803(3),
or perhaps 803(5),2 as exceptions to the barring of hearsay
evidence.3

That scotches defendants’ opposition to those seven

exhibits, but it does not apply to the statement of Cooley’s
duties as a counselor or to her extended narrative of events,
respectively Exs. 47 and 48--those exhibits are inadmissible.
Thus Dkt. 75 is denied as to Cooley’s Exs. 39 through 43, 45
and 46.

It is granted as to Exs. 47 and 48.

Dkt. 76 is captioned “Defendants’ Motion in Limine To Bar
Plaintiff from Introducing Evidence of Speculative Damages.”
That label is misleading, because the term “speculative” suggests
uncertainty as to the existence or amount of a claimed item of
damages, while what is really at issue here are questions as to

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That last category covers what used to be known in common
law terms as “past recollection recorded.”
3

What has been said here bears on the admissibility of
those exhibits as such. To the extent that those documents may
contain statements that are themselves hearsay and that are not
within any of the exceptions provided by Evid. R. 803, that
contention will be addressed if an appropriate objection is
renewed at the time of trial.
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the appropriate causal relationship between (1) the assertedly
wrongful termination of Cooley’s employment and (2) the damage
items at issue.

And in that respect the question of reasonable

foreseeability plays an important role, just as is the case in
applying the concept of proximate cause.
On that score Cooley Ex. 93, which relates to what she
states is the forced sale of the family house that she attributes
to her loss of employment, appears appropriate for jury
consideration if it finds the requisite causal connection.

That

is not however true of Ex. 97, for defendants can scarcely be
held responsible for claimed damages attributable to the later
loss of employment by Cooley’s husband.
Hence Dkt. 76 is denied as to Cooley Ex. 93 but is granted
as to Ex. 97.

Both parties should be mindful of the predicate

for that first ruling in their preparation of an appropriate jury
instruction on damages.
Lastly, Dkt. 77 is captioned “Defendants’ Motion in Limine
To Bar Plaintiff from Introducing Evidence Related to her
Proceedings Before the EEOC and IDHR.”

In that regard Cooley

describes her challenged Exs. 73 through 84 in this fashion:
an Equal Employment Opportunity Commission (“EEOC”)
reasonable cause Determination, EEOC investigation
notes, forms Plaintiff submitted to the EEOC, Defendant
Board’s Position Statement, Questionnaire Response,
Supplemental Questionnaire Response, and an Affidavit
of Defendant Carlos Azcoitia.
This Court is among those--including our Court of Appeals,
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most recently in Silverman v. Board of Education, No. 10-2977,
2011 WL 941518, at *1-2 (7th Cir. Mar. 21)--that are troubled by
providing a jury with the result of EEOC’s administrative
evaluation of charges of discrimination.

That information, in

whichever direction it goes, tends to put a thumb on the scales
on which the jury is called on to do its own measuring.

By the

same token, Cooley’s input to EEOC, and EEOC’s internal documents
such as handwritten notes and memoranda, are totally
inappropriate grist for the jury’s evidentiary mill.
That is obviously not true, though, of defendants’ own
submissions to EEOC:

Board’s 10-page Position Statement

(Ex. 78), codefendant Carlos Azcoitia’s December 30, 2006
affidavit (Ex. 79), Board’s Questionnaire Response (Ex. 81) and
Board’s Supplemental Questionnaire Response (Ex. 83).

All of

those exhibits are by definition nonhearsay (see Evid. R.
801(d)(2)), so that any portions that meet the fundamental test
of relevance (Evid. R. 401) will be admitted at trial.
In summary, Dkt. 77 addresses Cooley’s Exs. 73 through 84.
And of that group of a dozen exhibits, defendants’ motion for
exclusion is granted as to all but Exs. 78, 79, 81 and 83.
Conclusion
Defendants’ Dkt. 74 motion is denied as moot, with added
conditions being imposed on both sides.

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Each of defendants’

Dkt. 75, 76 and 77 motions is granted in part and denied in part.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

June 14, 2011

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