Nolan v. United States of America

Filing 137

MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 8/31/2015:Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MATTHEW NOLAN,

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Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

Case No. 12 C 0247

MEMORANDUM, OPINION, AND ORDER
AMY J. ST. EVE, District Court Judge:
On June 16, 2014, Plaintiff Matthew Nolan (“Nolan”) filed a First Amended Complaint
against Defendant United States under the Federal Tort Claims Act (“FTCA”) alleging a medical
malpractice claim based on events occurring while he was detained by the Federal Bureau of
Prisons at the Metropolitan Correctional Center (“MCC”) in Chicago, Illinois. See 28 U.S.C. §§
1346, 2671, et seq. On August 6, 2015, Defendant moved to exclude the expert testimony of Dr.
Eric Ostrov regarding causation pursuant to Federal Rule of Evidence 702 and Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). For the
following reasons, the Court, in its discretion, grants Defendant’s Daubert motion to exclude Dr.
Ostrov’s expert testimony as to causation.
BACKGROUND
I.

Factual and Procedural Background
The following background facts are based on the October 19, 2011, Memorandum,

Opinion, and Order in Nolan’s action brought pursuant to Bivens v. Six Unknown Named Agents
of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), regarding his

constitutional conditions of confinement claims. (11 CV 1565, R. 20, 10/19/11 Mem. Op., &
Order.) The Court also bases the background facts on Nolan’s filings in his other federal court
proceedings, including the stipulation of uncontested facts in the present lawsuit and Nolan’s
written plea agreement in 09 CR 860.
On or about February 26, 2009, federal authorities detained Nolan and placed him in
administrative detention at the MCC based on an extradition warrant issued by the Republic of
Costa Rica. The warrant alleged aggravated kidnaping, murder, and use of a false document.
On August 31, 2009, a Magistrate Judge determined that no probable cause existed for the
kidnaping and murder charges, and thus denied the extradition request on those charges. The
Magistrate Judge granted the extradition petition on the false document charge, but the United
States ultimately dismissed that charge against Nolan.
On October 20, 2009, while Nolan was in administrative detention at the MCC, a grand
jury returned an indictment charging Nolan with four counts of possessing prohibited objects
while in federal custody and one count of obstruction of justice. A Magistrate Judge denied
Nolan’s motion for release from custody on November 20, 2009, therefore, from October 20,
2009, until July 7, 2010, Nolan’s status was that of a pre-trial detainee. The October 2009
indictment specifically charged that Nolan made or acquired several items to facilitate an escape
from the MCC. Also, while detained at the MCC, Nolan communicated to an individual about
destroying certain materials at his home related to the Costa Rica extradition case–facts that
formed the basis of the obstruction of justice charge. On May 20, 2010, Nolan entered into a
guilty plea to counts one and five of the indictment. On July 7, 2010, the district court sentenced
Nolan to a total term of fourteen months in prison. Nolan was released from the MCC on August

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6, 2010.
During his confinement at the MCC, Nolan was housed in the special housing unit
(“SHU”) based on several factors, including that Nolan had served in a specialized regiment
within the British Army, which had taught him unique military training and skills. According to
the MCC warden, extra security measures remained necessary because of Nolan’s conduct
underlying the October 2009 indictment. In his previous Bivens action, Nolan alleged that his
detainment in the SHU either caused or worsened his anxiety, depression, attention deficit
disorder, and post-traumatic stress disorder (“PTSD”). On October 19, 2011, the district court in
the Bivens action granted the defendants’ motion to dismiss the individual officials based on
qualified immunity. Nolan then voluntarily dismissed the remainder of the Bivens action on
February 8, 2012, after bringing the present FTCA lawsuit on January 12, 2012. In the present
lawsuit, Nolan alleges a medical malpractice claim in relation to his PTSD, attention deficit
hyperactivity disorder (“ADHD”), anxiety, and depression. Nolan, however, has not brought a
claim challenging the conditions of his confinement.
II.

Dr. Ostrov’s Qualifications and Report
Dr. Eric Ostrov received his Ph.D in Human Development/Clinical Psychology from the

University of Chicago in 1974. In 1980, Dr. Ostrov received his J.D. from the University of
Chicago. He is a licensed clinical psychologist, a member of the American Board of
Professional Psychology, and a diplomate in forensic psychology. From 1981 to the present, Dr.
Ostrov has worked as a forensic psychologist administering psychological evaluations and
assessments and providing testimony regarding civil, criminal, and administrative litigationrelated issues.

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Also, Dr. Ostrov works as the Senior Clinical Consultant for the Kane County Diagnostic
Center in Batavia, Illinois; conducts or supervises fitness for duty evaluations for the Chicago
Police Department, the FBI, the DEA, and municipal fire protection districts; and maintains a
private psychotherapy practice in Zihuatanejo, Mexico. From 1982 until 1991, Dr. Ostrov held
the position of Director of Public Safety Evaluation at the Isaac Ray Center in Chicago, where he
was responsible for assessing whether police and other public safety officers were too
psychologically disturbed to serve on active duty or whether they were psychologically prepared
to return to work. In addition, Dr. Ostrov has authored numerous research articles and
presentations in various fields, including police/fire safety psychology, forensic psychology,
social security disability evaluations, legal issues for mental health providers, and adolescent
psychology.
On May 29, 30, and June 10, 2014, Dr. Ostrov conducted a series of interviews and
psychological testing of Nolan, including: (1) the Personal History Checklist for Adults; (2) the
Symptom Checklist-90-Revised; (3) the Shipley Institute for Living Scale 2; (4) the Personality
Assessment Inventory; (5) the Substance Abuse Subtle Screening Inventory, and (6) the
Trauma Symptom Inventory-2. In forming his opinions, Dr. Ostrov also reviewed an email from
Nolan’s mother describing Nolan as a child and the records of Nolan’s treating psychiatrist, Dr.
Robert Reff.1
Based on the his interviews of Nolan, the above-described testing, Dr. Reff’s records, and
the email from Nolan’s mother, Dr. Ostrov concluded that Nolan’s experiences while in custody

1

Pursuant to Dr. Reff’s August 25, 2015, Daubert hearing testimony, Dr. Reff did not
maintain notes of his psychotherapy sessions with Nolan from 2005 to 2013. (8/25/15, Hr’g Tr.,
at 28-29.)
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in SHU traumatized him. In particular, Dr. Ostrov set forth the following opinions in his expert
report:
1.
Traumatic events can include emotionally devastating experiences. Mr.
Nolan was traumatized by his experiences while in solitary confinement at the
Metropolitan Correctional Center.
2.
Mr. Nolan likely was particularly vulnerable to the experiences he had at
the MCC given his hyperactivity and need for stimulation. In addition, he felt
abandoned and helpless, unable to help his conjugal family or share his mother’s
and brothers’ grief over the loss of their husband/father. He was afflicted with
various physical ailments which were not properly cared for in contrast to the
image he had of himself as highly physically fit and competent. He experienced a
great sense of injustice in regard to what was being done to him and a profound
sense of helplessness vis a vis his inability to do anything about that.
3.
At this time, Mr. Nolan is suffering from marked symptoms of depression
and PTSD. His symptoms tend to be self-reinforcing in that he experiences
himself as not being competent, not able to contribute, as weak and emotionally
out of control. These symptoms, to his great distress, contrast with his prior pride
in being a highly competent soldier and a good father and husband.
4.
The evidence strongly indicates that experiences Mr. Nolan had at the
MCC have caused the symptoms of posttraumatic stress, despair, depression,
anxiety, and anger he continues to struggle with.
5.
Mr. Nolan has experienced, among other symptoms, the following
consequences of the trauma he has suffered: symptoms of anxiety including
feeling tense or keyed up, trouble concentrating, worrying too much, difficulty
sleeping, and feeling something bad is going to happen to him; symptoms of
depression including self-blame, feeling guilty, feeling inferior to others,
irritability, low energy, feeling no interest in things, feeling everything is an
effort, feeling blocked in getting things done and feeling hopeless about the
future; anger including temper outbursts he cannot control and threatening to hurt
people, and strained interpersonal relationships including feeling critical of
others, feeling most people can’t be trusted, and getting into frequent arguments.
6.
Specific symptoms of PTSD manifested by Mr. Nolan caused by the
experiences he had at the MCC include:
C

Intense psychological distress at exposure to cues that symbolize or
resemble an aspect of the traumatic events

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C

Reliving the traumatic experiences

C

Repeated unpleasant thoughts that won’t leave his mind

C

Hypervigilance

C

Thoughts and images of a frightening nature

C

Nightmares, disturbing dreams

C

Low self-esteem

C

Symptoms of anxiety, fearfulness and depression, feeling hopeless

C

Difficulty falling and staying asleep

C

Interpersonal alienation, difficulty trusting others

(R. 114-4, 6/13/14, Ostrov Report, at 16-17.)
DAUBERT STANDARD
“A district court’s decision to exclude expert testimony is governed by Federal Rules of
Evidence 702 and 703, as construed by the Supreme Court in Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L.Ed.2d 469 (1993).” Brown v. Burlington No. Santa
Fe Ry. Co., 765 F.3d 765, 771 (7th Cir. 2014). “The rubric for evaluating the admissibility of
expert evidence considers whether the expert was qualified, whether his methodology was
scientifically reliable, and whether the testimony would have assisted the trier of fact in
understanding the evidence or in determining the fact in issue.” Hartman v. EBSCO Indus., Inc.,
758 F.3d 810, 817 (7th Cir. 2014); see also Manpower, Inc. v. Ins. Co. of Pa. 732 F.3d 796, 806
(7th Cir. 2013) (Rule 702 “requires that the trial judge ensure that any and all expert testimony
or evidence admitted ‘is not only relevant, but reliable.’”) (citation omitted).
Further, a district court’s inquiry under Rule 702 and Daubert is a flexible one and

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district courts have wide latitude in performing this gate-keeping function. See Hartman, 758
F.3d at 818. In other words, although appellate courts review, de novo, whether district courts
properly apply the Daubert framework, the ultimate decision whether to admit expert testimony
is within the district court’s sound discretion. See Stuhlmacher v. Home Depot U.S.A., Inc., 774
F.3d 405, 409 (7th Cir. 2014). “‘[T]he key to the gate is not the ultimate correctness of the
expert’s conclusions,’” rather, “‘it is the soundness and care with which the expert arrived at her
opinion[.]’” C.W. ex rel. Wood v. Textron, Inc., ___ F.3d ___, 2015 WL 5023926 (7th Cir. Aug.
26, 2015) (quoting Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013)
(citations omitted)). Last, the “proponent of the expert 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).
MEDICAL MALPRACTICE STANDARD
“The Federal Tort Claims Act makes the federal government liable for acts or omissions
by its employees that would be torts in the state in which they occurred had they been committed
by someone other than a federal employee.” Glade ex rel. Lundskow v. United States, 692 F.3d
718, 721 (7th Cir. 2012); see also Keller v. United States, 771 F.3d 1021, 1022 (7th Cir. 2014)
(“Prisoners can sue under the FTCA ‘to recover damages from the United States Government for
personal injuries sustained during confinement in a federal prison, by reason of the negligence of
a government employee.’”) (citation omitted)). Because the alleged medical malpractice took
place in Illinois, the Court turns to Illinois’ substantive law. See Bueschel v. United States, 746
F.3d 753, 763-64 (7th Cir. 2014); Morisch v. United States, 653 F.3d 522, 530 (7th Cir. 2011).
To succeed on his medical malpractice claim under Illinois law, Nolan must prove: “(1) the

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proper standard of care by which a physician’s conduct may be measured, (2) a negligent failure
to comply with the applicable standard, and (3) a resulting injury proximately caused by the
physician’s lack of skill or care.” Walsh v. Chez, 583 F.3d 990, 995 (7th Cir. 2009) (quotation
omitted); see also Wipf v. Kowalski, 519 F.3d 380, 384 (7th Cir. 2008).
ANALYSIS
Defendant moves to exclude Dr. Ostrov’s expert opinion pursuant to Daubert and Rule
702 in relation to his testimony on causation, namely, that Nolan’s confinement in the SHU
caused his PTSD and other psychological symptoms. Under Illinois law, “[p]roximate cause in a
medical malpractice case must be established by expert testimony to a reasonable degree of
medical certainty, and the causal connection must not be contingent, speculative, or merely
possible.” Morisch, 653 F.3d at 531 (quoting Johnson v. Loyola Univ. Med. Ctr., 384 Ill.App.3d
115, 323 Ill.Dec. 253, 893 N.E.2d 267, 272 (1st Dist. 2008) (quotation omitted). To establish
proximate cause in a medical malpractice case under Illinois law, “a plaintiff must satisfy two
requirements: cause in fact and legal cause.” LaSalle Bank, N.A. v. C/HCA Dev. Corp., 384
Ill.App.3d 806, 828, 893 N.E.2d 949, 970, 323 Ill.Dec. 475, 496 (1st Dist. 2008). “[T]o prove
cause in fact, a plaintiff must show, within a reasonable degree of medical certainty, that
defendants’ breach of the standard of care was more probably than not a proximate cause of the
resulting injury.” Id. “[T]o prove legal cause, a plaintiff must also show that ‘an injury was
foreseeable as the type of harm that a reasonable person would expect to see as a likely result of
his or her conduct.’” Id. (quoting Bergman v. Kelsey, 375 Ill.App.3d 612, 625, 313 Ill.Dec. 862,
873 N.E.2d 486 (1st Dist. 2007)).
Here, Defendant argues that the Court must exclude Dr. Ostrov’s causation testimony

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because: (1) Dr. Ostrov lacks expertise regarding solitary confinement or its effects; (2) Dr.
Ostrov’s opinion is unreliable because it is based upon insufficient data and not based upon any
valid scientific methodology; and (3) Dr. Ostrov’s opinion testimony is not helpful because it
does not address the relevant issue in the case, namely, Dr. Ostrov does not link Nolan’s PTSD
and psychological symptoms with the conduct of the MCC’s psychologist, Dr. Jason Dana,
Ph.D, and the MCC’s internist, Dr. Paul Harvey, M.D. The Court turns to Defendant’s third
argument because it is dispositive.
Defendant argues that Nolan has failed to demonstrate that Dr. Ostrov’s causation
testimony is relevant to the present medical malpractice claim because it will not help the trier of
fact in determining whether Drs. Dana’s and Harvey’s alleged “breach of the standard of care
was more probably than not a proximate cause of his injuries.” See LaSalle Bank, 384 Ill.App.3d
at 828. As Daubert teaches, Rule 702 “requires that the evidence or testimony ‘assist the trier of
fact to understand the evidence or to determine a fact in issue.’ This condition goes primarily to
relevance.” Id. at 591. In other words, “Daubert instructs that expert testimony must be relevant
and factually linked to the case in order to meet Rule 702’s ‘helpfulness’ requirement.” United
States v. Gallardo, 497 F.3d 727, 733 (7th Cir. 2007); see also Rodefer v. Hill’s Pet Nutrition,
Inc., No. IP 01-123-C H/K, 2003 WL 23096486, at *5 (S.D. Ind. 2003) (Hamilton, J.)
(“Evidence is relevant under Daubert if it is “helpful” to the trier of fact and “fits” the issues in
the case.”).
In his expert report, Dr. Ostrov alludes to “experiences Mr. Nolan had at the MCC” and
states that Nolan experienced “various physical ailments which were not properly cared for.” At
his deposition, Dr. Ostrov mentions that Nolan had a sinus infection, an ear problem, and skin

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cancer that Nolan claims were not treated,2 but never speaks to Drs. Dana’s or Harvey’s
treatment of Nolan in connection to his mental health care issues. In his expert report, Dr.
Ostrov further states that Nolan “experienced a great sense of injustice in regard to what was
being done to him,” but at no point in his report or at his deposition does Dr. Ostrov opine that
Drs. Dana’s and/or Dr. Harvey’s breach of the standard of care caused or aggravated Nolan’s
PTSD or other psychological symptoms. Instead, Dr. Ostrov explained that the prison
conditions, such as the filthy environment, the lack of privacy, and that Nolan had no way to
busy himself, caused Nolan’s PTSD and other symptoms. (R. 114-5, Ostrov Dep., at 213-14,
236.) In short, in his report and at his deposition, Dr. Ostrov opines that the conditions of
Nolan’s confinement caused Nolan’s PTSD and other psychological symptoms. As discussed, in
2011, Nolan brought a constitutional conditions of confinement claim pursuant to Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d
619 (1971), against various MCC officials. Judge Zagel dismissed Nolan’s constitutional claims
against the individual MCC officials based on qualified immunity on October 19, 2011. By
agreement of the parties, Judge Zagel dismissed the remainder of the lawsuit on February 8,
2012. As such, there are no pending constitutional claims against any MCC officials in relation
to Nolan’s conditions of confinement allegations.
More importantly, Dr. Ostrov testified that he did not make any findings of malpractice
in his report because he had no basis for doing so, namely, he did not review any MCC records
and did not talk to MCC staff in forming his expert opinions. (Id., at 73, 210.) More

2

In the August 6, 2015, Final Pre-trial Order, Plaintiff waived his claims concerning his
staph infection and obstruction in his ear, the actinic keratosis legion, and other skin lesions and
skin disorders. (R. 111, Final Pre-trial Order, Claim Waiver, at 27.)
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specifically, at his deposition, counsel asked Dr. Ostrov: “And you also didn’t – have not in
your report made any findings of malpractice by anyone on the MCC staff, correct?” (Id. at
210.) Dr. Ostrov answered, “I wouldn’t – I didn’t even approach that. I have no basis for doing
that, and I did not.” (Id.) Counsel then asked: “Why do you say you have no basis for doing
that?” (Id.) Dr. Ostrov articulated, “I haven’t talked to them. I haven’t heard their side of the
story. There is no way that I would opine something like that.” (Id.) Moreover, when testifying
to his understanding about the issues in this lawsuit, Dr. Ostrov stated that his testimony is
relevant to “the issue of [Nolan’s] confinement at the MCC and the conditions of that
confinement at the MCC and the psychological affects and particularly the deleterious
psychological affects of his confinement during that time.” (Id. at 59.) Nolan’s present claim,
however, is not based on the conditions of his confinement at the MCC, but is a medical
malpractice claim in which Nolan must provide expert testimony that Drs. Dana’s and Harvey’s
breach of the standard of care caused his PTSD and aggravated his other psychological
symptoms. See LaSalle Bank, 384 Ill.App.3d at 828. Dr. Ostrov–by his own admission–does
not provide this necessary testimony.

Because Dr. Ostrov does not link Nolan’s PTSD or

other any other psychological symptoms to Drs. Dana’s and Harvey’s alleged breach of the
standard of care, Dr. Ostrov’s causation testimony is not relevant or helpful, especially because
he admits that he did not make any findings regarding Nolan’s malpractice allegations. See
Gallardo, 497 F.3d at 733; see also Kunz v. DeFelice, 538 F.3d 667, 676 (7th Cir. 2008).
Simply put, Dr. Ostrov’s expert opinion would not assist the trier of fact in determining whether
Drs. Dana’s and Harvey’s alleged breach of the standard of care caused Nolan’s psychological
injuries. See Daubert, 509 U.S. at 591; Goswami v. DePaul Univ., 8 F.Supp.3d 1019, 1030

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(N.D. Ill. 2014).
On a final note, in his response brief, Nolan did not address Defendant’s argument that
Dr. Ostrov failed to link Nolan’s symptoms to the alleged breach by Drs. Dana and Harvey,
which further supports the Court’s conclusion that Dr. Ostrov’s expert testimony as to causation
is not helpful under Daubert. See Steen v. Myers, 486 F.3d 1017, 1020-21 (7th Cir. 2007)
(absence of discussion in brief amounts to abandonment of claims).
CONCLUSION
For these reasons, the Court, in its discretion, grants Defendant’s Daubert motion to
exclude the expert testimony of Dr. Eric Ostrov regarding causation.
Dated: August 31, 2015
ENTERED

______________________________
AMY J. ST. EVE
United States District Court Judge

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