La Playita Cicero, Inc. et al v. The Town of Cicero et al

Filing 433

MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 3/28/17. Mailed notice(ca, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LA PLAYITA CICERO, INC.,
d/b/a Serenata Restaurant and Bar,
and GERARDO MEZA,
Plaintiffs,
v.
TOWN OF CICERO, ILLINOIS,
a municipal corporation, LARRY
DOMINICK in his official and
individual capacities, PAUL
DEMBOWSKI, LARRY POLK, and
SERGE ROCHER,
Defendants.
LA PLAYITA CICERO, INC.,
d/b/a Serenata Restaurant and Bar,
and GERARDO MEZA,
Plaintiffs,
v.
TOWN OF CICERO, ILLINOIS,
a municipal corporation,
Defendant.

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No. 11-cv-1702
Judge John Z. Lee

No. 11-cv-5561
Judge John Z. Lee

MEMORANDUM OPINION AND ORDER
From 2005 to 2009, Gerardo Meza owned La Playita Cicero, Inc., d/b/a
Serenata Restaurant and Bar (“Serenata”), a restaurant in Cicero, Illinois, that is
now closed. Beginning in 2006, municipal officials from the Town of Cicero cited,
fined, and summarily closed Serenata numerous times. Meza and Serenata allege

that these officials targeted them because Meza is Hispanic and was politically
unsupportive of Larry Dominick, who was the Town President and Liquor
Commissioner.

By contrast, the Town of Cicero and its officials claim that the

citations and fines were merely the legal consequences of local liquor code violations.
Plaintiffs Meza and Serenata have sued the Town of Cicero under 42 U.S.C.
§ 1983, alleging violations of the First and Fourteenth Amendments of the federal
Constitution (Case No. 11-cv-5561). 1

They have also brought these same

constitutional claims against the Town of Cicero in a separate lawsuit in which they
further allege several state law claims and add Larry Dominick, Paul Dembowski,
Larry Polk, and Serge Rocher as individual defendants (Case No. 11-cv-1702). 2
In anticipation of trial, Plaintiffs have offered expert witnesses Dr. Gregory
Green and Dr. Louise Fitzgerald, and Defendants have offered expert witness Dr.
Alan Jaffe. The parties have filed motions in limine to bar or strike the opposition’s
expert testimony. 3 For the reasons set forth below, Defendants’ motions to bar
1

Docket entries cited herein correspond to Case No. 11-cv-5561 unless otherwise noted.

For summaries of the labyrinthine procedural history of these two cases, see La
Playita Cicero, Inc. v. Town of Cicero, No. 11-cv-1702, 2014 WL 944859, at *1 (N.D. Ill. Mar.
11, 2014); La Playita Cicero, Inc. v. Town of Cicero, No. 11-cv-5561, 2013 WL 309089, at *1
(N.D. Ill. Jan. 24, 2013).
2

All of Defendants’ motions in limine have been filed in Case No. 11-cv-5561, in which
only the Town of Cicero is named as a Defendant. The Court’s rulings on these motions,
however, shall apply equally to the evidence in both Case No. 11-cv-1702 and Case No. 11cv-5561, in light of the Court’s prior ruling—and counsels’ agreement—to consolidate the
cases for pretrial purposes. See Case No. 11-cv-1702, ECF No. 386; Case No. 11-cv-5561,
ECF No. 111; see also Case No. 11-cv-1702, ECF No. 387; Case No. 11-cv-5561, ECF No. 112
(setting forth identical briefing schedules for the parties’ motions in limine). As such, to
facilitate readers’ understanding of the scope of this Memorandum Opinion and Order, the
Court will refer to “Defendants” collectively throughout, even though many of the filings
referenced herein were filed only in Case No. 11-cv-5561 by the Town of Cicero.
3

2

Green [123] [154] are denied. Plaintiffs’ cross-filed motions to bar Jaffe in Case
No. 11-cv-5561 [133] and Case No. 11-cv-1702 [399] are granted in part and denied
in part. Defendants’ motion to bar Fitzgerald [131] is also granted in part and
denied in part.
Legal Standard
Although the Federal Rules of Evidence do not explicitly authorize the
practice of making in limine rulings, “the practice has developed pursuant to the
district court’s inherent authority to manage the course of trials.” Luce v. United
States, 469 U.S. 38, 41 n.4 (1984). Motions in limine allow courts to “ensure the
expeditious and evenhanded management of the trial proceedings” by barring
evidence that will be clearly inadmissible for any purpose. Jonasson v. Lutheran
Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997). Rulings on motions in
limine are “subject to change when the case unfolds.” Luce, 469 U.S. at 41; see also
Farfaras v. Citizens Bank & Trust of Chi., 433 F.3d 558, 565 (7th Cir. 2006).
Indeed, “even if nothing unexpected happens at trial, the district judge is free, in
the exercise of sound judicial discretion, to alter a previous in limine ruling.” Luce,
469 U.S. at 41–42.
The admissibility of expert testimony is governed by Federal Rule of
Evidence (FRE) 702 and the Supreme Court’s seminal decision in Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See United States v. Parra, 402
F.3d 752, 758 (7th Cir. 2005) (“At this point, Rule 702 has superseded Daubert, but
the standard of review that was established for Daubert challenges is still

3

appropriate.”). FRE 702 allows the admission of testimony by an expert—that is,
someone with the requisite “knowledge, skill, experience, training, or education”—
to help the trier of fact “understand the evidence or [ ] determine a fact in issue.”
Fed. R. Evid. 702. An expert witness is permitted to testify when (1) the testimony
is “based on sufficient facts or data,” (2) the testimony is “the product of reliable
principles and methods,” and (3) the witness has “reliably applied the principles and
methods to the facts of the case.” Id.
Under Daubert, the district court must act as the evidentiary gatekeeper,
ensuring that FRE 702’s requirements of reliability and relevance are satisfied
before allowing the finder of fact to hear the testimony of a proffered expert. See
Daubert, 509 U.S. at 589; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147–
49 (1999). District courts have broad discretion in determining the admissibility of
expert testimony. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997); Lapsley v.
Xtek, Inc., 689 F.3d 802, 810 (7th Cir. 2012).

In considering whether to admit

expert testimony, district courts employ a three-part framework that inquires
whether: (1) the expert is qualified by knowledge, skill, experience, training, or
education; (2) the reasoning or methodology underlying the expert’s testimony is
reliable; and (3) the expert’s testimony will assist the trier of fact in understanding
the evidence or determining a factual issue. See Bielskis v. Louisville Ladder, Inc.,
663 F.3d 887, 893–94 (7th Cir. 2011).
With regard to the reliability of an expert’s methodology, courts consider
factors such as whether the methodology can and has been tested, whether it has

4

been subject to peer review, whether it has a known or potential rate of error, and
whether it is generally accepted among the relevant community. See Smith v. Ford
Motor Co., 215 F.3d 713, 719 (7th Cir. 2000) (citing Daubert, 509 U.S. at 593–94).
Under this framework, “shaky expert testimony may be admissible, assailable by its
opponents through cross-examination,” and criticisms of the testimony’s quality
speak not to admissibility but to the weight that the testimony should be accorded
by the trier of fact. Metavante Corp. v. Emigrant Savings Bank, 619 F.3d 748, 762
(7th Cir. 2010) (quoting Gayton v. McCoy, 593 F.3d 610, 616 (7th Cir. 2010)).
The proponent of an expert witness bears the burden of demonstrating that
the expert’s testimony would satisfy the Daubert standard by a preponderance of
the evidence. Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).
Analysis
I.

Defendants’ First Motion to Bar Damages Expert Dr. Gregory Green
Plaintiffs have offered economist Dr. Gregory Green to opine on the economic

damages sustained by Serenata as a result of Defendants’ conduct. In his Initial
Report from September 2011, Green offers two principal opinions. First, he opines
on Serenata’s lost business profits from 2007 until 2009. Green’s calculation of
these lost profits is based on estimates of Serenata’s expected revenues and costs,
which in turn are based on Serenata’s actual revenues and costs from 2005 to 2009
as well as comparisons to the revenues and costs of Dona Cuca, Inc., a similar
restaurant owned by Meza’s niece and located approximately 1.5 miles from
Serenata. See Def.’s Mot. Bar Green, Ex. A (“Green Initial Report”), at 1, 6–8, ECF
No. 123. Second, because Serenata ceased operations in December 2009, Green
5

opines on the lost value of Serenata’s business as a going concern from 2010
forward. This opinion is based on Green’s use of the Capital Asset Pricing Model,
which Green describes as “a method for determining the risk-adjusted discount rate
to be used to reduce Serenata’s estimated lost profits to their 2011 present value.”
Id. at 1, 10–13.
In response to Green’s Initial Report, Defendants obtained rebuttal experts,
who criticize Green’s Initial Report. See Def.’s Mot. Bar Green, Ex. B. Green then
prepared a second report, entitled “Rebuttal Report.”

See id., Ex. C (“Green

Rebuttal Report”). Green’s Rebuttal Report is dated December 2011.
Defendants’ first motion in limine seeks to bar Green’s Initial Report and
Rebuttal Report. Primarily, Defendants challenge Green’s use of the Capital Asset
Pricing Model. They also argue that Green lacks qualifications to testify as an
expert. Lastly, they contend that Green’s Rebuttal Report should be barred because
it is a sur-rebuttal report that is not permitted under the Federal Rules of Civil
Procedure. For the reasons explained below, the Court rejects these arguments and
denies Defendants’ motion.
A.

Capital Asset Pricing Model

In challenging Green’s use of the Capital Asset Pricing Model (CAPM),
Defendants first argue that the model is methodologically unsound. Relatedly, they
challenge the factual assumptions underlying Green’s application of the CAPM as
unreliable. They also argue that Green’s discussion of the CAPM reveals that his
testimony will not assist the trier of fact as required by FRE 702. The Court finds
none of these arguments persuasive.
6

1.

Reliability of the Methodology

As explained in Green’s Initial Report, the CAPM is an economic model that
can be used to estimate a company’s going-concern value. 4 The CAPM estimates
this value as a function of (1) the rate of return on default-free assets, such as U.S.
Treasury securities, (2) the risk measure of the company, (3) the expected risk
premium on the overall market portfolio, and (4) the company’s size premium.
Green Initial Report at 11–13. Courts have long recognized the reliability of the
CAPM as a valuation methodology and have routinely permitted expert witnesses to
rely upon the CAPM. See, e.g., Fish v. Greatbanc Trust Co., No. 09 C 1668, 2016
WL 5923448, at *28, *35 (N.D. Ill. Sept. 1, 2016) (discussing expert witnesses’ use of
the CAPM); In re Bachrach Clothing, Inc., 480 B.R. 820, 869 (Bankr. N.D. Ill. 2012)
(same); In re Pullman Constr. Indus. Inc., 107 B.R. 909, 921 (Bankr. N.D. Ill. 1989)
(same); see also Buchwald v. Renco Grp., 539 B.R. 31, 44 (S.D.N.Y. 2015) (“[I]t is
undisputed that the Capital Asset Pricing Model generally, and the use of companyspecific risk premium in general, are part of accepted methodologies in corporate
valuation.”). Tellingly, Defendants cite no case law to the contrary. The Court
therefore finds that the CAPM is a sufficiently reliable and well-accepted
methodology to form the basis of Green’s opinions.
Defendants nevertheless argue that even if the CAPM can reliably estimate
the going-concern value of publicly held companies, it is an unreliable method of

“Going-concern value” is “[t]he value of a commercial enterprise’s assets or of the
enterprise itself as an active business with future earning power.” Black’s Law Dictionary
(10th ed. 2014).

4

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valuating privately held companies like Serenata because it is impossible to
calculate precise risk measures for such companies. Indeed, Green’s Initial Report
acknowledges this weakness, explaining that “[b]ecause Serenata is not and never
has been a publicly traded entity, no [ ] risk measure can be calculated directly for
Serenata.” Green Initial Report at 11. To work around this issue, Green estimates
Serenata’s risk measure by averaging the risk measures of three publicly traded but
otherwise comparable restaurant businesses: Chipotle Mexican Grill (whose risk
measure is 0.95), Chili’s Restaurants (whose risk measure is 1.25), and Texas
Roadhouse, Inc. (whose risk measure is 1.00). The average of these businesses’ risk
measures is 1.07, which Green then rounds to 1.15 in order to make his final
estimate more conservative. Id. at 11–13.
Contrary to Defendants’ assertion, Green’s methodology appears to be an
accepted means of using the CAPM to estimate a privately held company’s goingconcern value. See, e.g., Pullman, 107 B.R. at 921 (describing use of CAPM by
expert witnesses and noting that, because it is impossible to obtain the risk
measure of a privately held company, the risk measure must be estimated by way of
comparison to publicly traded companies). To the extent Defendants believe that
Green’s estimate is unsound or contend that the three restaurants used by Green
are not comparable to Serenata, they can explore these issues on cross-examination.
Cf. LoggerHead Tools, LLC v. Sears Holdings Corp., No. 12-CV-9033, 2016 WL
5112025, at *4 (N.D. Ill. Sept. 20, 2016) (“[T]he fact that [an expert witness] cannot
calculate the specific amount of lost profits goes to weight, not admissibility.”);

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Davis v. Duran, 277 F.R.D. 362, 366 (N.D. Ill. 2011) (“Vigorous cross examination,
presentation of contrary evidence and careful jury instructions, Daubert stressed,
are the traditional and appropriate means of attacking shaky but admissible
evidence.”). Green is therefore permitted to give testimony based on his use of the
CAPM.
2.

Reliability of Underlying Factual Assumptions

Defendants also argue that Green’s testimony regarding the CAPM should be
barred as unreliable because his opinions are based on unsupported factual
assumptions that constitute hearsay.

For example, Defendants take issue with

Green’s assumption that Serenata’s earnings would have grown by 30 percent per
year until reaching normal operating capacity, as well as his assumption that
normal operating capacity would have brought in $1.4 million to $1.5 million in
annual revenues. See Reply Supp. Mot. Bar Green at 4–5, ECF No. 167 (citing
Green Initial Report at 6).
The reliability of such factual assumptions, however, is not to be weighed by
the Court in limine, but rather is to be “tested by the adversarial process and
determined by the jury.” Manpower, Inc. v. Ins. Co. of Pa., 732 F.3d 796, 808 (7th
Cir. 2013); see also Wilbern v. Culver Franchising Sys., Inc., No. 13 C 3269, 2015
WL 5722825, at *11–12 (N.D. Ill. Sept. 29, 2015) (denying motion to strike damages
expert and noting that “the validity of the expert’s factual assumptions is not the
focus under a pre-trial Daubert inquiry”). And it is well established that an expert
witness may base an opinion on otherwise inadmissible facts, including hearsay.

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Fed. R. Evid. 703; Daubert, 509 U.S. at 595. As such, Defendants’ challenges to
Green’s underlying assumptions are not a basis for barring Green’s testimony.
3.

Assisting the Trier of Fact

In addition, Defendants argue that Green’s testimony is unnecessary to assist
the trier of fact because his Initial Report demonstrates that damages can be
calculated simply by plugging numbers into a formula using the CAPM.

This

argument is meritless. As explained above, the methodologies that Green employs
to estimate Serenata’s going-concern value from 2010 forward, as well as to
calculate its lost profits from 2007 to 2009, require the use of numerous steps and
the input of multiple variables.

The Court thus finds that expert testimony

explaining the application of these methodologies will clearly assist the jury in
determining the issue of damages in this case.
B.

Green’s Qualifications

Next, Defendants challenge Green’s qualifications to testify as an expert
witness.

Because Green’s expertise focuses on macro-level economic analysis,

Defendants argue, he is unqualified to conduct the type of micro-level analysis
involved in valuating an individual business such as Serenata.

In response,

Plaintiffs assert that Green is indeed qualified, pointing out that he has provided
consulting services as an economist and taught university courses in macro- and
microeconomics since 1997. See Pls.’ Resp. Mot. Bar Green, Ex. 3, ECF No. 140.
As the Seventh Circuit has warned, “[t]he notion that Daubert . . . requires
particular credentials for an expert witness is radically unsound.”

Tuf Racing

Prod., Inc. v. Am. Suzuki Motor Corp., 223 F.3d 585, 591 (7th Cir. 2000). A witness
10

is qualified to testify as an expert as long as he has “relevant expertise enabling him
to offer responsible opinion testimony helpful to the judge or jury.” Id. (citing Fed.
R. Evid. 702). As such, an expert witness is not required to have an academic
degree in economics, statistics, or mathematics—much less a specialization in a
specific subfield of those areas—to be qualified to opine on the calculation of
damages. See id. Here, Green has relevant expertise as an economist that enables
him to opine on Plaintiffs’ economic damages. The Court therefore concludes that
Green is qualified to testify regarding the opinions he has offered.
C.

Whether Green’s Report Is an Improper Sur-rebuttal Report

As a procedural matter, Defendants seek to bar Green’s Rebuttal Report on
the ground that, notwithstanding its title, the report is a sur-rebuttal responding to
Defendants’ rebuttal to Green’s Initial Report.

According to Defendants, sur-

rebuttal reports are not contemplated by the Federal Rules of Civil Procedure and
should therefore be barred. Defendants relatedly argue that allowing Plaintiffs to
use a sur-rebuttal report would be prejudicial.
In support of this argument, Defendants fail to cite any case law from this
jurisdiction holding that sur-rebuttal reports are procedurally forbidden. In fact,
relevant case law suggests that sur-rebuttal reports are permissible, as long as they
remain within the scope of proper rebuttal testimony, as is the case here. See Ernst
v. City of Chi., No. 08 C 4370, 2013 WL 4804837, at *1 (N.D. Ill. Sept. 9, 2013)
(permitting use of sur-rebuttal expert report); City of Gary v. Shafer, No. 2:07-CV56-PRC, 2009 WL 1370997, at *6 (N.D. Ind. May 13, 2009) (same); cf. Shen Wei
(USA) Inc. v. Sempermed USA, Inc., No. 05 C 6004, 2009 WL 674364, at *2 (N.D. Ill.
11

Mar. 12, 2009) (striking sur-rebuttal report only because it exceeded the scope of
proper sur-rebuttal testimony, not because sur-rebuttal reports are categorically
barred as a matter of procedure).

And although the Federal Rules of Civil

Procedure do not make explicit reference to sur-rebuttal reports, neither do they
appear to forbid them. See, e.g., Fed. R. Civ. P. 26(a)(2)(D)(ii) (addressing rebuttal
expert testimony in general and imposing no prohibition on evidence that in turn
rebuts an opposing party’s rebuttal evidence).
Furthermore, Defendants fail to explain why they would be unfairly
prejudiced by the admission of Green’s sur-rebuttal report. Indeed, such prejudice
seems unlikely, given that Defendants have had the report since 2011 and thus
cannot suddenly now claim that the report comes as a surprise. See Pls.’ Resp. Mot.
Bar Green at 1. As such, the Court sees no basis for barring Green’s Rebuttal
Report on grounds of unfair prejudice.
In sum, none of Defendants’ arguments in support of their first motion to bar
Green provides a sufficient basis to bar Green’s testimony. The motion is therefore
denied.
II.

Defendants’ Second Motion to Bar Damages Expert Dr. Gregory Green
In July 2016, Green supplemented his Initial Report with a two-page

document that converts the economic damages estimated in his Initial Report from
2011 dollar values to 2016 dollar values. Def.’s Mot. Strike Supp. Report, Ex. A,
ECF No. 154. Additionally, in their brief responding to Defendants’ first motion to
bar Green, Plaintiffs attached a two-page declaration in which Green briefly

12

addressed some of the criticisms that Defendants had leveled at his use of the
CAPM. Pls.’ Resp. Mot. Bar Green, Ex. 1 (“Green Decl.”).
Defendants’ second motion to bar Green objects to his July 2016 two-page
supplement and the two-page declaration attached to Plaintiffs’ response brief.
Defendants seek to bar these documents on the grounds that (1) the supplement
was tendered to Defendants long after the close of discovery and (2) the supplement
and declaration improperly include new expert opinions.

In the event that the

Court declines to bar these documents, Defendants alternatively seek permission to
re-depose Green and to file a reply brief fourteen days after Green’s second
deposition or the Court’s adjudication of this motion. 5
As an initial matter, Plaintiffs maintain that Green’s two-page supplement
was appropriately and timely tendered to Defendants under Federal Rule of Civil
Procedure (FRCP) 26. The Court agrees. Under FRCP 26, an expert report must be
supplemented with any additional or corrective information at least thirty days
before trial.

Fed. R. Civ. P. 26(e)(2) (incorporating by reference the thirty-day

pretrial deadline set forth under FRCP 26(a)(3)).

Green’s supplement, which

provided additional or corrective information by converting the figures in Green’s

In addition, Defendants’ brief in support of this motion attempts to supplement
Defendants’ first motion to bar Green by raising a new challenge to the assumptions
underlying Green’s Initial Report. Specifically, Defendants challenge the Initial Report’s
use of comparisons to the revenues and costs of the restaurant Dona Cuca, Inc. See Def.’s
Mot. Strike Supp. Report at 6–7. Because this argument was inappropriately raised in a
brief on a separate and unrelated motion, the Court is not obligated to address it. In any
event, the argument is unpersuasive for the same reasons discussed above regarding
Defendants’ other challenges to Green’s underlying assumptions.
5

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Initial Report from 2011 dollar values to 2016 dollar values, was timely provided to
Defendants under this rule. See Def.’s Mot. Strike Supp. Report, Ex. A.
Furthermore, because Green’s supplement merely performed a mechanical
conversion of dollar values to account for the changing time value of money, the
Court finds that the supplement did not improperly include new expert opinions.
Neither did Green’s two-page declaration, which merely restated key points of
information that had already been incorporated in Green’s Initial Report.
Green Decl. ¶¶ 3–7.

See

The Court thus denies Defendants’ motion to strike the

supplement and declaration.
The Court is unpersuaded that the admission of Green’s supplement and
declaration warrants a second deposition of Green, given these documents’ nature
and limited scope. Defendants’ request for leave to re-depose Green is therefore
also denied. To the extent Defendants’ motion requests an extension of time to file
a reply brief, the motion is denied as moot.
III.

Plaintiffs’ Motion to Bar Psychologist Dr. Alan Jaffe
Plaintiffs and Defendants have offered competing experts to opine on the

extent of the emotional pain and suffering Meza has experienced as a result of
Defendants’ conduct.

First, Plaintiffs offer a report by psychologist Dr. Robert

Marshall. In 2010 and 2011, Marshall conducted psychological evaluations of Meza
that included administration of a test called the Minnesota Multiphasic Personality
Inventory, Second Edition (“MMPI-2”).

See Def.’s Resp. Mot. Bar Jaffe, Ex. D

(“Marshall Report”), ECF No. 143. In turn, Defendants offer psychologist Dr. Alan
Jaffe as a rebuttal witness.

In conducting his own evaluation of Meza, Jaffe
14

administered the Personality Assessment Inventory and two sets of Sentence
Completion tests. He also re-administered the MMPI-2 test that Marshall used.
See Pls.’ Mot. Bar Jaffe, Ex. A (“Jaffe Report”), at 2, ECF No. 133.
Plaintiffs have moved to bar Jaffe on multiple grounds. First, they attack the
reliability of Jaffe’s methodology, challenging aspects of the MMPI-2 and Sentence
Completion tests and further challenging Jaffe’s failure to use alternative
evaluative methods.

Second, Plaintiffs contend that Jaffe’s conclusions will not

assist the jury because they are speculative, inflammatory, and unsupported. The
Court will address these arguments below. 6
A.

Jaffe’s Methodology
1.

MMPI-2 Test and the “Faking Bad Scale”

MMPI testing is a widely accepted form of psychological evaluation that is
used to “assess multiple dimensions of personality and mental state.”

Federal

Judicial Center, Reference Manual on Scientific Evidence 836, 886 (3d ed. 2011). In
particular, the MMPI-2 test comprises a number of “scales,” and an individual’s
scores along these scales may correlate with various personality traits or mental
states.

Included among these scales is the “faking bad scale,” or “FBS.”

An

individual’s score on the FBS may indicate whether the individual is “faking bad”
Plaintiffs’ motion to bar Jaffe also attempts to incorporate by reference the report of
another one of Plaintiffs’ experts, Dr. Louise Fitzgerald, “as though fully set forth herein as
additional reasons Jaffe’s opinions should be bar[red].” Pls.’ Mot. Bar Jaffe at 2 n.1.
Parties are not permitted to circumvent the page limits imposed by Local Rule 7.1 by
incorporating other documents by reference in this manner, and the Court is in any event
not obligated to construct legal arguments not presented in the parties’ briefs. See Judge v.
Quinn, 612 F.3d 537, 557 (7th Cir. 2010). The Court therefore declines to consider or
construct any additional arguments from Fitzgerald’s report in ruling on Plaintiffs’ motion
to bar Jaffe.
6

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(i.e., malingering by fabricating or exaggerating his symptoms) or “faking good” (i.e.,
hiding or understating his symptoms). See id. at 836, 841.
In objecting to Jaffe’s use of the MMPI-2 test, Plaintiffs focus on the FBS,
arguing that the FBS is an unreliable and controversial component of the MMPI-2
test and that Jaffe should therefore be barred from testifying about the FBS test
results. The Court disagrees. While the FBS is “not without controversy,” “the bulk
of the psychological literature appears to support [its] validity.” Id. at 841 n.150
(citing Nathaniel W. Nelson, et al., Meta-analysis of the MMPI-2 Fake Bad Scale:
Utility in Forensic Practice, 20 Clin. Neuropsych. 39 (2006)). Moreover, numerous
federal courts have recognized the reliability of the FBS and have admitted expert
testimony regarding FBS testing. See Johnson v. BAE Sys. Land & Armaments,
L.P., No. 3:12-CV-1790-D, 2014 WL 1714487, at *34 (N.D. Tex. Apr. 30, 2014)
(denying motion in limine to exclude testimony regarding the FBS on grounds of
unreliability); Johnson v. Rockwell Automation, Inc., No. 1:06CV00017JLH, 2009
WL 1748344, at *4 (E.D. Ark. June 17, 2009) (same); Shea v. Long Island R.R. Co.,
No. 05 CIV 9768 (LLS), 2009 WL 1424115, at *3 (S.D.N.Y. May 21, 2009) (same);
Reiner v. Warren Resort Hotels, Inc., No. CV 06-173-M-DWM, 2008 WL 5120682, at
*15 (D. Mont. Oct. 1, 2008) (“The Court will deny the motion to exclude the evidence
of FBS testing.

The test is recognized as valid within the neuropsychology

profession. While the test is controversial, Plaintiff can argue the weight of the
evidence to the jury.”); see also Kendrick v. Shalala, 998 F.2d 455, 457–58 (7th Cir.

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1993) (discussing testimony from an administrative hearing regarding FBS testing).
The Court accordingly declines to bar Jaffe from testifying about the FBS.
2.

Sentence Completion Tests

Next, Plaintiffs challenge the Sentence Completion tests that Jaffe
administered in evaluating Meza. Jaffe’s report discusses the Sentence Completion
test in only two paragraphs, which read in their entirety as follows:
Mr. Meza was administered the Sentence Completion – Adult Form on
November 2, 2011. Mr. Meza’s responses held one major theme
throughout the majority of the form. The majority of his responses
were in regards to justice and his current litigation. This type of
preservation throughout her [sic] answers indicates that he had a clear
agenda with an obsessional quality. Additionally, some of his answers
were concrete in nature without any level of abstraction. For example,
for the sentence stem “Spiritual matters,” he responded “God first.”
Mr. Meza was administered the Sentence Completion – Work Form on
November 2, 2011. As with the Sentence Completion – Adult Form,
the majority of Meza’s responses on the Sentence Completion – Work
Form were in regards to his current litigation. Furthermore, his
responses on the Work form appear to lack a level of abstraction. For
example, for the sentence stem “Socializing with co-workers,” he
responded, “Never do.”
Jaffe Report at 17–18.

Plaintiffs argue that testimony about the Sentence

Completion tests should be barred because the tests are unreliable and because it is
unclear what Jaffe concludes from Meza’s response to the test questions.
In their response brief, Defendants have made no attempt to defend Jaffe’s
use of the Sentence Completion tests. Where a party fails to advance arguments in
support of expert testimony, the party cannot bear its burden of proving the
testimony’s admissibility. Lewis, 561 F.3d at 706. Here, Defendants have provided
the Court with no information about the Sentence Completion tests, such as the

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method employed in conducting the tests or the content and number of questions
that the tests comprised. Without such information, the Court has no means of
assessing whether the Sentence Completion tests were based on reliable principles
or methodologies as required by FRE 702. By failing to defend or explain Jaffe’s use
of the Sentence Completion tests, Defendants have not carried their burden of
proving the admissibility of testimony regarding these tests. See id. Jaffe is thus
barred from offering such testimony.
3.

Failure to Use Alternative Methods

Finally, Plaintiffs argue that Jaffe’s testimony should be barred as unreliable
because Jaffe failed to use various alternative methods of evaluating Meza.
Specifically, Plaintiffs criticize Jaffe because he did not conduct a SIRS-2 test, a
Structured Clinical Interview for DSM-IV, or an interview assessment for
depression or psychological harm. In response, Defendants argue that Jaffe did in
fact use a Structured Clinical Interview and also conducted an interview
assessment for depression. See Def.’s Resp. Mot. Bar Jaffe at 4–6.
Even assuming arguendo that Jaffe did not use these alternative methods, as
Plaintiffs allege, Jaffe’s decision not to use those methods does nothing to
undermine the reliability of the methods he did rely upon. The rule that an expert’s
testimony must be “the product of reliable principles and methods,” Fed. R. Evid.
702, does not amount to a requirement that the expert use all methods or even the
best methods available. Recognizing as much, the Seventh Circuit has cautioned
district courts against choosing between competing methods when determining
whether to admit expert testimony. See Schultz v. Akzo Nobel Paints, LLC, 721
18

F.3d 426, 433 (7th Cir. 2013). Jaffe’s failure to use the alternative methods that
Plaintiffs list is therefore not a basis for excluding his testimony. To the extent that
the results of alternative evaluative methods would have cast doubt upon Jaffe’s
conclusions, Plaintiffs are free to raise this issue on cross-examination, and it will
be “the role of the jury to weigh these sources of doubt.” Stollings v. Ryobi Techs.,
Inc., 725 F.3d 753, 766 (7th Cir. 2013).
B.

Jaffe’s Conclusions
1.

Interpretation of the MMPI-2 Test Results

In addition to challenging the reliability of Jaffe’s methodology, Plaintiffs
challenge the reliability of Jaffe’s conclusions. First, Plaintiffs argue that Jaffe’s
interpretations of the MMPI-2 test results are too speculative. By way of example,
Plaintiffs point to statements in Jaffe’s report such as: “Meza’s profile indicates that
he may have some concerns regarding somatic functioning,” and “Meza’s score
indicates that he may be experiencing a moderate degree of stress as a result of
difficulties in some major area of life.” Pls.’ Mot. Bar Jaffe at 10–11 (quoting Jaffe
Report).

According to Plaintiffs, such interpretations of Meza’s test results are

purely speculative because Jaffe has not explained how likely it is that these
interpretations accurately describe Meza.

Second, Plaintiffs take issue with a

portion of Jaffe’s report in which Jaffe expresses disagreement with Marshall’s
interpretation of Meza’s score on the “L scale” of the MMPI-2 test.
These arguments are unpersuasive. “Rule 702’s requirement that the district
judge determine that the expert used reliable methods does not ordinarily extend to
the reliability of the conclusions those methods produce.” Manpower, 732 F.3d at
19

806 (quoting Stollings, 725 F.3d at 765). A district court accordingly “usurps the
role of the jury, and therefore abuses its discretion, if it unduly scrutinizes the
quality of the expert’s . . . conclusions rather than the reliability of the methodology
the expert employed.” Id. The Seventh Circuit has also held that an expert is not
required to interpret test results to a degree of scientific certainty in order for his
testimony to be admissible. See Stutzman v. CRST, Inc., 997 F.2d 291, 296 (7th
Cir. 1993).
In light of these principles, Jaffe is permitted to testify about his
interpretations of what Meza’s scores may indicate about Meza’s psychological and
emotional health.

To the extent the accuracy of these interpretations may be

uncertain, Plaintiffs can take the opportunity at trial to test “the accuracy of the
actual evidence . . . with the familiar tools of ‘vigorous cross-examination,
presentation of contrary evidence, and careful instruction on the burden of proof.’”
Lapsley, 689 F.3d at 805 (quoting Daubert, 509 U.S. at 596).
2.

Conclusions in the Summary of Jaffe’s Report

Lastly, Plaintiffs seek to bar certain statements made in the summary at the
end of Jaffe’s report. They contend that these statements will not assist the jury as
required by FRE 702 because they are inflammatory and unsupported.
In his summary, Jaffe opines in part: “[I]t is clear from the discrepancy in
the test result data given by Dr. Marshall and this examiner that Mr. Meza is
attempting to fake bad on the assessments. This . . . severely calls into question the
accuracy of [Meza’s] reporting.

This is someone who is obviously trying to

manipulate the interpretation of these results.”
20

Jaffe Report at 18.

In these

statements, Jaffe is opining on the credibility or accuracy of Meza’s answers to
questions that Marshall and Jaffe asked him during their psychological evaluations.
Because these statements are based on the results of MMPI-2 and FBS testing, the
Court finds that they are sufficiently supported to assist the jury in determining the
issue of damages with regard to Meza’s emotional pain and suffering.
But other statements in Jaffe’s summary fare differently. For example, Jaffe
states that Meza has made “outlandish claims” and “on several occasions has
blatantly misrepresented the truth.” Id. Jaffe further states that he “questions the
validity of Mr. Meza’s character as an individual.” Id. Having closely reviewed
Jaffe’s report, the Court agrees with Plaintiffs that these overbroad statements
about Meza’s general credibility and character are not supported by the evaluations
Jaffe conducted. “[N]othing in either Daubert or the Federal Rules of Evidence
requires a district court to admit opinion evidence that is connected to existing data
only by the ipse dixit of the expert.” Gen. Elec., 522 U.S. at 146. Because these
generalized criticisms of Meza’s credibility and character constitute such ipse dixit
assertions, the Court finds that they are inadmissible under FRE 702.
In addition, Jaffe’s statements about Meza’s general credibility—as opposed
to his statements about the credibility of the answers that Meza gave specifically in
the context of Marshall’s and Jaffe’s psychological evaluations—will not help the
trier of fact “to understand the evidence or to determine a fact in issue.” Fed. R.
Evid. 702(a). Instead, such statements are more likely to confuse the trier of fact.
The jury might misunderstand Jaffe to be opining not merely on Meza’s credibility

21

in answering questions during the psychological evaluations, but rather on Meza’s
credibility in giving testimony during the trial itself. This is another reason why
Jaffe’s statements about Meza’s general credibility are inadmissible under FRE 702.
In sum, as a means of criticizing Marshall’s conclusions, Jaffe is permitted to
testify about the credibility of Meza’s responses to questions that he was asked
during Marshall’s and Jaffe’s psychological evaluations. Similarly, Jaffe may opine
as to Meza’s psychological and emotional health, to the extent his opinions are
based on the results of the psychological evaluations, again as a means of rebutting
Marshall’s conclusions. But Jaffe is not permitted to testify more generally about
Meza’s credibility outside the context of the psychological evaluations. Nor is Jaffe
permitted to make overbroad statements about Meza’s character untethered from
the results of those evaluations, such as his statement in the summary of his report
that Meza’s purported misrepresentations generally call into question “the validity
of Mr. Meza’s character as an individual.” Such overbroad, unsupported statements
about Meza’s credibility and character shall be barred.
IV.

Defendants’ Motion to Bar Psychologist Dr. Louise Fitzgerald
To contradict the conclusions set forth in Jaffe’s expert report, Plaintiffs have

offered psychologist Dr. Louise Fitzgerald as a rebuttal expert. See Def.’s Mot. Bar
Fitzgerald, Ex. C (“Fitzgerald Report”), ECF No. 131. Defendants have moved to
bar Fitzgerald on the grounds that: (1) Plaintiffs failed to timely disclose
Fitzgerald’s report; (2) Fitzgerald’s report is an improper sur-rebuttal report that is
not contemplated by the Federal Rules of Civil Procedure; and (3) Fitzgerald’s
report will not assist the jury because it is confusing, irrelevant, and duplicative.
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A.

Timeliness of Plaintiffs’ Disclosure

Plaintiffs disclosed Fitzgerald’s report to Defendants on December 26, 2012.
Defendants argue that Fitzgerald should be barred because this disclosure was
untimely under FRCP 26(a)(2)(D)(ii). For the reasons explained below, the Court
disagrees.
FRCP 26(a)(2) requires parties to disclose the written reports of their expert
witnesses. An expert’s written report must contain a complete statement of the
opinions the witness will express, the facts or data considered by the witness in
forming those opinions, any exhibits the witness will use, the witness’s
qualifications, a list of other cases in which the witness has testified as an expert,
and a statement of the compensation to be paid for the witness’s study and
testimony. Fed. R. Civ. P. 26(a)(2)(B). Absent a stipulation or court order, a party
must disclose the report of a rebuttal expert witness no later than thirty days after
the opposing party discloses the report of the expert witness whose testimony is to
be rebutted. Fed. R. Civ. P. 26(a)(2)(D)(ii).
Defendants disclosed Jaffe’s expert report on December 19, 2011.

They

therefore argue that Plaintiffs were required to disclose Fitzgerald’s report no later
than January 19, 2012, thirty days after Defendants’ disclosure. There are two
reasons, however, why Plaintiffs were not required to disclose Fitzgerald’s report by
that date.
First, Plaintiffs’ thirty-day disclosure period did not begin to run when
Defendants tendered Jaffe’s report on December 19, 2011, because Jaffe’s report did
not disclose all of the information required under FRCP 26(a)(2)(B) at that time.
23

Indeed, after failed attempts to obtain Defendants’ cooperation in this regard,
Plaintiffs filed a motion seeking in part to compel the completion of Defendants’
disclosures under FRCP 26(a)(2)(B)(ii). See Mot. Compel at 2–3, No. 11-cv-1702,
ECF No. 241. The Court granted this motion during a hearing on December 12,
2012, ordering Defendants to complete their expert disclosures by December 19,
2012.

Defendants complied, and Plaintiffs then disclosed Fitzgerald’s report on

December 26, 2012—well within thirty days after December 19, 2012.
Second, even if Jaffe’s report had fully complied with all disclosure
requirements from the outset, the record suggests that Plaintiffs were not bound to
the default thirty-day deadline because Defendants agreed to give Plaintiffs an
extension of time to disclose Fitzgerald’s report. See Fed. R. Civ. P. 26(a)(2)(D)
(allowing parties to stipulate deadlines for expert disclosures).

Defendants now

deny ever having made such an agreement. Def.’s Reply Supp. Mot. Bar Fitzgerald
at 4, ECF No. 156 (“[D]efense counsel has no recollection of agreeing to give
[Plaintiffs] additional time to disclose a rebuttal report.”). Yet Plaintiffs’ filings and
representations to the Court repeatedly suggest that the parties had reached such
an understanding, and Defendants have

never before

objected to

these

representations. See Hr’g Tr. 12/12/12 at 10, Case No. 11-cv-1702, ECF No. 416;
Pls.’ Mot. Compel at 2, Case No. 11-cv-1702, ECF No. 241; Hr’g Tr. 1/25/12 at 4,
Case No. 11-cv-1702, ECF No. 218; Pls.’ Mot. Bar Jaffe or Show Cause at 1, Case
No. 11-cv-1702, ECF No. 215. Given that these representations were made as late
as December 12, 2012, the Court finds that Defendants either agreed to Plaintiffs’

24

request for additional time or, at the very least, did not object to it. For these
reasons, the Court declines to bar Fitzgerald’s report on grounds of untimeliness.
B.

Whether Fitzgerald’s Report Is an Improper Sur-rebuttal Report

Defendants also argue that Fitzgerald’s report is a sur-rebuttal report to
Jaffe’s report (which in turn is a rebuttal to Marshall’s report) and that such surrebuttal reports are not permitted under the Federal Rules of Civil Procedure. The
Court rejects this argument for the same reasons it rejected this argument supra in
connection with Defendants’ motion to bar Green. Case law shows that sur-rebuttal
expert reports are permissible, see, e.g., Ernst, 2013 WL 4804837, at *1; Shafer,
2009 WL 1370997, at *6, and Defendants fail to cite authorities from within the
Seventh Circuit suggesting otherwise. Nor have Defendants articulated any undue
prejudice that they would suffer if Fitzgerald’s report were permitted. The Court
therefore declines to bar Fitzgerald on this basis.
C.

Assisting the Trier of Fact

Finally, Defendants contend that Fitzgerald’s report should be barred
because it is too confusing, irrelevant, and duplicative to assist the trier of fact as
required by FRE 702. According to Defendants, the report is confusing and irrelevant
because it focuses exclusively on rebutting Jaffe’s report, and it is duplicative because
it merely restates information already included in Marshall’s report. Defendants also
take issue with portions of Fitzgerald’s report in which she opines as to the reliability
of Jaffe’s methodology and the admissibility of expert testimony based on the FBS.
As an initial matter, the fact that Fitzgerald’s report is devoted to
contradicting Jaffe’s report is grounds for admitting it as proper rebuttal evidence,
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not grounds for excluding it as confusing or irrelevant. Such rebuttal evidence is
routinely admitted under the Federal Rules of Evidence. See Peals v. Terre Haute
Police Dep’t, 535 F.3d 621, 630 (7th Cir. 2008).

The Court also disagrees that

Fitzgerald’s report is duplicative of Marshall’s report. Even though both reports
speak to the issue of Meza’s damages for emotional pain and suffering, Marshall’s
report was prepared before Jaffe’s report was made available to Plaintiffs, and
Marshall’s report therefore could not have included the rebuttal evidence that is
offered in Fitzgerald’s report.
That said, some portions of Fitzgerald’s report are indeed rendered irrelevant
by this Court’s decision, discussed supra, to bar certain portions of Jaffe’s report.
Specifically, because Jaffe is barred from giving testimony about the Sentence
Completion tests and from making generalized statements about Meza’s credibility
and character outside the context of Marshall’s and Jaffe’s psychological
evaluations, Fitzgerald’s rebuttal testimony with regard to these matters is no
longer relevant and will not assist the trier of fact. Fitzgerald is therefore barred
from testifying about them.
Moreover, Fitzgerald is barred from opining on the admissibility of Jaffe’s
testimony, as well as from opining that Jaffe’s methodology is unreliable for
purposes of the Daubert standard. Expert witnesses are generally prohibited from
offering legal opinion testimony. See, e.g., United States v. Sinclair, 74 F.3d 753,
757 n.1 (7th Cir. 1996) (collecting cases); Sullivan v. Alcatel-Lucent USA Inc., No.
12 C 07528, 2014 WL 3558690, at *8–9 (N.D. Ill. July 17, 2014). In addition, even if

26

such legal opinion testimony were permissible as a general matter, Fitzgerald is
unqualified to give such testimony because she is not, and does not purport to be, a
legal expert. See Willis v. Sears Holdings Mgmt. Corp., No. 10 C 5926, 2012 WL
3915333, at *7–9 (N.D. Ill. Sept. 7, 2012) (barring legal opinion testimony in part
because expert was not a lawyer and was thus unqualified to give the legal opinions
he offered).

As such, Fitzgerald may not opine on the admissibility of Jaffe’s

testimony or on the reliability of his methodology for Daubert purposes. 7 She may,
however, testify as to the reliability of the conclusions that Jaffe draws, including
his interpretations of the test results from his and Marshall’s psychological
evaluations of Meza.

Furthermore, in the course of critiquing the reliability of

Jaffe’s conclusions, Fitzgerald may also discuss weaknesses in Jaffe’s underlying
methodology, because such weaknesses speak to the weight that the trier of fact
should ultimately give to Jaffe’s conclusions. Again, however, she may not opine
that Jaffe’s methodology is wholly unreliable or otherwise suggest that Jaffe’s
testimony is inadmissible under Daubert.
In sum, Fitzgerald is barred from testifying on matters that are rendered
irrelevant by the Court’s rulings on Plaintiffs’ motion to bar Jaffe.

She is also

barred from giving legal opinions regarding the admissibility of Jaffe’s testimony or

For example, in her report, Fitzgerald writes: “Considering the current controversy
within the scientific community, it is prudent at this point not to rely on [the FBS] scale.
. . . In addition, controversy exists in the courts considering whether testimony of expert
witnesses is admissible if based on the FBS.” Fitzgerald Report at 6. Such testimony
states a legal opinion and speaks to the reliability of Jaffe’s methodology under Daubert. It
is therefore inadmissible.

7

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regarding the reliability of Jaffe’s methodology under the Daubert standard. In all
other respects, Defendants’ motion to bar Fitzgerald is denied.
Conclusion
For the reasons stated herein, the motions to bar Green in Case No. 11-cv5561 [123] [154] are denied. The cross-filed motions to bar Jaffe in Case No. 11-cv5561 [133] and Case No. 11-cv-1702 [399] are granted in part and denied in part.
Jaffe is permitted to testify about the reliability of Marshall’s conclusions, to the
extent they are affected by the truthfulness of Meza’s responses to questions asked
during Marshall’s and Jaffe’s psychological evaluations. Jaffe may also opine as to
Meza’s psychological and emotional health, to the extent his opinions are based on
the results of psychological evaluations, again for the purposes of rebutting
Marshall’s conclusions. But Jaffe is barred from opining as to Meza’s credibility
outside the context of his answers to questions asked during Marshall’s and Jaffe’s
psychological evaluations. He is also barred from making overbroad statements
about Meza’s character in general, because such statements are not based on the
results of the psychological evaluations. In all other respects, the motions to bar
Jaffe are denied. The motion to bar Fitzgerald in Case No. 11-cv-5561 [131] is also
granted in part and denied in part.

Fitzgerald is barred from testifying about

Jaffe’s Sentence Completion tests or about Jaffe’s opinions regarding Meza’s
credibility or character in general, in light of the fact that Jaffe’s opinions on these
matters are barred. She is also barred from testifying about the admissibility of

28

Jaffe’s testimony or the reliability of Jaffe’s methodology for purposes of Daubert.
In all other respects, the motion to bar Fitzgerald is denied.

IT IS SO ORDERED.

ENTERED

3/28/17

__________________________________
John Z. Lee
United States District Judge

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