Nolan v. United States of America

Filing 140

MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 9/1/2015:Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MATTHEW NOLAN,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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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.
Robert Reff 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). After the parties fully briefed the
present motion, on August 25, 2015, the Court held a Daubert hearing during which Dr. Reff
testified. For the following reasons, the Court, in its discretion, grants in part and denies in part
Defendant’s motion to exclude the expert testimony of Dr. Reff. In particular, Nolan has failed
in his burden of demonstrating that Dr. Reff’s causation opinion satisfies Daubert.

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, his bankruptcy
proceedings, 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

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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
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, including his attempt to facilitate his escape from the
MCC. 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 his 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.

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II.

Dr. Reff’s Qualifications
Dr. Reff began treating Nolan in April 2005 until Nolan’s incarceration at the MCC

beginning in early 2009. During Nolan’s incarceration from early 2009 until his release in
August 2010, Dr. Reff did not visit Nolan at the MCC nor treat him during this time period. Dr.
Reff began treating Nolan again upon his release from the MCC in 2010.
In his response to the present Daubert motion, Nolan asserts that Dr. Reff’s testimony “is
offered to establish the mental health status of Matthew Nolan before he was taken into custody
and held in solitary confinement; Matthew Nolan’s mental health status upon release from being
held in solitary confinement; [] the change in mental health status experienced by Matthew
Nolan as a result of the deprivations he suffered while held in solitary confinement; and whether
he received mental health treatment while in solitary confinement that met the standard of care
required by mental health professionals.” (R. 127, Pl.’s Resp. Brief, at 1-2.)
Dr. Reff is a physician certified to practice in Illinois, Indiana, and Colorado having
graduated from the Rosalind Franklin University of Medicine and Science in 1981. Following
graduation, Dr. Reff did his residency in psychiatry at Northwestern University, after which he
had a fellowship with Northwestern Memorial Hospital working at the Rehabilitation Institute
with patients who suffered trauma and other disabilities. Dr. Reff has remained affiliated with
Northwestern Memorial Hospital for the past 20 years.
Furthermore, Dr. Reff is a faculty member at the Feinberg School of Medicine at
Northwestern University in the Department of Psychiatry and Behavioral Sciences and
supervises psychiatric residents, who are in the training program at Northwestern Memorial
Hospital. In his private practice, Dr. Reff maintains outpatient offices in Northwest Indiana and

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Chicago where he regularly sees patients managing medication and conducting psychotherapy.
Also, Dr. Reff consults with corporations and attorneys regarding disability evaluations,
psychiatric injuries, appropriateness of treatment, and prognosis. Dr. Reff treats outpatient
adults in his private practice for mood disorders, ADHD, anxiety disorders, depression, bipolar
disorder, PTSD, chronic pain, and stress-related disorders. On the other hand, Dr. Reff has never
treated anyone in solitary confinement or anyone who has been incarcerated.
III.

Dr. Reff’s Expert Opinions
In his October 7, 2013, expert report, Dr. Reff explains that, when forming his opinions,

he relied on his treatment of Nolan before and after Nolan was in custody at the MCC; the
depositions of Dr. Jason Dana, Ph.d., the MCC’s psychologist, and Dr. Paul Harvey, M.D., the
MCC’s internist; Dr. Dana’s psychological reviews and notes regarding Nolan’s treatment; a
2006 article published in the Washington University School of Law’s Journal of Law & Policy
by Dr. Stuart Grassian entitled “Psychiatric Effects of Solitary Confinement;” and a journal
article authored by Dr. Craig Haney entitled “Mental Health Issues in Long-Term Solitary and
‘Supermax’ Confinement,” published in Crime & Delinquency, Vol. 49 No. 1, January 2003.
In the present Daubert motion, Defendant challenges Dr. Reff’s qualifications and
opinions focusing on the following language in Dr. Reff’s October 7, 2013, expert report:
It is my opinion that at the very least, Dr. Harvey and/or Dr. Dana could
have ameliorated Mr. Nolan’s psychological distress by having pursued the
available medical information regarding his pre-existing psychiatric condition and
treatment. By not having done so, Mr. Nolan was unnecessarily subjected to
additional and treatable stressors which significantly contributed to the
development of his psychological deterioration while in solitary and ongoing
problems since his release. It is my opinion that Mr. Nolan was not treated for
ADHD per the established standard of psychiatric practice. It is my opinion that
Mr. Nolan clearly suffered from at least a number of the symptoms described by
Dr. Grassian in his article. These include impaired sleep, perceptual distortions,
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hyper-responsivity to external stimuli such as light or sound, difficulties with
thinking/concentration and memory, intrusive obsessional thoughts and problems
with impulse control. As previously stated, Mr. Nolan continues to have
problems with his memory, concentration, focus and thinking. He is not as hypervigilant as he had been when released from incarceration. He is not as hyperresponsive to external stimuli though this condition persisted upon his release for
many months. He no longer experiences perceptual distortions. He continues to
have problems reintegrating to the community at large as well as has ongoing
problems with social interactions.
The above opinions are based on my work with Matthew Nolan, my
experience as a Board Certified Psychiatrist, diagnostic criteria from the DSM IV
TR, review of articles by Dr. Stuart Grassian and Dr. Craig Haney, and a
reasonable degree of medical psychiatric certainty.
(R. 114-2, 10/07/13, Reff Report, at 7.)
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).
A district court’s evaluation of expert testimony under Daubert does not “take the place
of the jury to decide ultimate issues of credibility and accuracy.” Lapsley v. Xtek, Inc., 689 F.3d
802, 805 (7th Cir. 2012). Once it is determined that “the proposed expert testimony meets the
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Daubert threshold of relevance and reliability, the accuracy of the actual evidence is to be tested
before the jury with the familiar tools of ‘vigorous cross-examination, presentation of contrary
evidence, and careful instruction on the burden of proof.’” Id. (citation omitted). Also, a district
court’s inquiry under Rule 702 and Daubert is a flexible one and district courts have wide
latitude in performing this gate-keeping function. See Hartman, 758 F.3d at 818. “‘[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, at *5 (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).

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To succeed on his medical malpractice claim under Illinois law, Nolan must prove: “(1)
the 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). “Unless the
physician’s negligence is so grossly apparent or the treatment so common as to be within the
everyday knowledge of a layperson, expert medical testimony is required to establish the
standard of care and the defendant physician’s deviation from that standard.” Massey v. United
States, 312 F.3d 272, 280 (7th Cir. 2002); see also Wipf, 519 F.3d at 384.
ANALYSIS
In the present Daubert motion, Defendant challenges Dr. Reff’s disclosed expert opinion
testimony as to: (1) the appropriate standard of care; (2) the breach of the standard of care; and
(3) causation, namely, that the lack of proper psychological care at the MCC, including the
failure to properly medicate Nolan’s ADHD, contributed to Nolan’s psychological deterioration
while in custody, his ongoing problems since his release, and also caused his PTSD. The Court
first turns to Dr. Reff’s opinions as to the appropriate standard of care and the deviation or
breach of that standard.
I.

Standard of Care and Deviation
A.

Relevant Standard of Care

“In determining the appropriate standard of care, Illinois follows the ‘similar locality’
rule, ‘which requires physicians to possess and apply the knowledge, skill, and care which a
reasonably well-qualified physician in the same or similar community would bring to a similar

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case.’” Wilbourn v. Cavalenes, 398 Ill.App.3d 837, 853, 923 N.E.2d 937, 953, 338 Ill.Dec. 77,
93 (1st Dist. 2010) (citation omitted). Under this standard, “an expert will be qualified to testify
as to the standard of care in a medical malpractice case if (1) the expert is familiar with the
standards of care applicable to a reasonably well-qualified physician in the same or similar
locality of treatment or (2) certain nationally uniform, minimum standard[s] exist despite the
locality of treatment, and the expert is familiar with those standards.” Id. at 854 (citing Purtill v.
Hess, 111 Ill.2d 229, 246, 95 Ill.Dec. 305, 489 N.E.2d 867, 874 (1986)).
In essence, Nolan asserts that there is a uniform standard of care, namely, that the general
standard for mental health care applies to patients who are in custody, as well as those who are in
the outside community. Indeed, the Illinois Appellate Court has held, “[i]f it has not already
been recognized, we now hold that those practicing the medical arts in the penitentiary are held
to the same standard of care as those practicing in the communities of our State.” Moss v.
Miller, 254 Ill.App.3d 174, 184-85, 625 N.E.2d 1044, 105, 192 Ill.Dec. 889, 896 (4th Dist.
1993). In discussing the standard of care in an Illinois medical malpractice case involving a state
inmate, the Seventh Circuit concluded that a jury instruction including the language that the
defendant doctor “owe[d] the plaintiff the same duty of care owed to patients in private practice”
was proper under Illinois law and supported by Illinois Pattern Jury Instruction Civil § 105.01.
See Chambers v. Ingram, 858 F.2d 351, 356 (7th Cir. 1988) (citing Purtill, 489 N.E.2d 872). As
such, although the Federal Bureau of Prisons Clinical Practice Guidelines and the Federal
Bureau of Prisons Health Services National Formulary will assist the trier of fact in
understanding the expert testimony regarding the standard of care, these guidelines do not
establish the standard of care in federal prisons for medical malpractice cases under Illinois law.

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See, e.g., Gevas v. McCann, No. 08 C 3074, 2014 WL 2926201, at *4 (N.D. Ill. June 27, 2014).1
Nonetheless, Defendant maintains that Dr. Reff does not have the requisite qualifications
to testify as to the relevant standard of mental health care in prisons because he does not have
any experience in prison health care or solitary confinement. Specifically, at his deposition and
at the Daubert hearing, Dr. Reff acknowledged that, other than Nolan, he has never treated
anyone who has been in solitary confinement or the SHU. Dr. Reff further testified that he has
never been inside the MCC and knows nothing about its medication rules and restrictions,
including the formulary restrictions. When forming his opinions, Dr. Reff did not review all of
Nolan’s MCC records or other Federal Bureau of Prison reports or administrative records. Dr.
Reff also admits that he had no contact with Nolan and did not treat him while he was detained at
the MCC.
As discussed, however, the relevant standard of care is the general area of psychology
and psychiatry–not a particularized prison mental health care standard–and the Court would be
hard-pressed to conclude that Dr. Reff, a clinical psychiatrist with decades of experience in his
field, is not qualified to testify about the standard of care under the circumstances. Indeed, Dr.
Reff’s credentials and experience render him highly qualified to testify to the standard of care in
psychology and psychiatry. Therefore, the Court, in its discretion, denies Defendant’s motion to
exclude Dr. Reff’s opinion testimony regarding the proper standard of care.

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Defendant’s reliance on prisoners’ civil rights cases for the relevant standard of care is
misplaced. As Defendant repeatedly argues in its legal memoranda, this is a medical malpractice
action and not a constitutional conditions of confinement case.
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B.

Breach of the Standard of Care

The Court’s analysis of whether Dr. Reff is qualified to testify to the alleged breach of
the standard of care, and ultimately causation, does not end there because “[w]hether a witness is
qualified as an expert can only be determined by comparing the area in which the witness has
superior knowledge, skill, experience, or education with the subject matter of the witness’s
testimony.” Gayton v. McCoy, 593 F.3d 610, 618 (7th Cir. 2010) (internal quote and citation
omitted). To clarify, the relevant question “is not whether an expert witness is qualified in
general, but whether his ‘qualifications provide a foundation for [him] to answer a specific
question.’” Id. at 617 (citation omitted).
With this in mind, the Court turns to Dr. Reff’s opinion testimony that Drs. Dana and
Harvey breached the established psychological or psychiatric standard of care when treating
Nolan at the MCC. Under Illinois law, a physician breaches the standard of care if he fails to use
“reasonable skill such as physicians in good practice ordinarily use and would bring to a similar
case.” Cummings v. Jha, 394 Ill.App.3d 439, 452, 333 Ill.Dec. 837, 915 N.E.2d 908, 920 (5th
Dist. 2009). “The determination of whether a doctor acted in compliance with the applicable
standard of care is limited, by definition, to the circumstances with which he was confronted at
the time the medical service was rendered.” Steele v. Provena Hosp., 996 N.E.2d 711, 722, 374
Ill.Dec. 1016, 1027 (3d Dist. 2013).
1.

Non-Disclosed Opinions

Comparing Dr. Reff’s expert report to his deposition testimony and his testimony at the
August 2015 Daubert hearing, Dr. Reff’s opinion on how Drs. Dana and Harvey breached the
standard of care is somewhat of a moving target. In his October 2013 expert report, Dr. Reff

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opined that Drs. Dana and Harvey breached the standard of care by not properly treating Nolan’s
ADHD and by failing to obtain records or a verbal consultation with Nolan’s former treatment
providers concerning his pre-existing mental health care conditions. At his deposition and at the
Daubert hearing, Dr. Reff also mentioned that Drs. Dana and Harvey breached the relevant
standard of care by not conducting individual psychotherapy, although at his deposition, Dr. Reff
backed away from this opinion.
Similarly, at his deposition and the Daubert hearing, Dr. Reff posited that the standard of
care was breached because Nolan did not have the opportunity to discuss his psychological
issues with Dr. Dana in a private or contained environment while he was in the SHU. In his
October 2013 expert report, Dr. Reff mentioned that Dr. Dana spoke with Nolan through the
door of the cell and that Nolan had a sense that anything he said to Dr. Dana was not
confidential. Dr. Reff further explained in his report that Nolan was reticent to describe how he
was feeling because he feared that other MCC inmates or detainees would use this information
against him. Even though Dr. Reff described this situation in his expert report, he never opined
that Dr. Dana breached the standard of care by failing to conduct his conversations with Nolan in
private.2
As such, Dr. Reff did not properly disclose his breach opinions concerning
psychotherapy and private consultation in his October 2013 expert report under Federal Rule of
Civil Procedure 26(a)(2), which requires that an expert must disclose a “complete statement of

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At the Daubert hearing, the Court gave Nolan’s counsel the opportunity to identify
where Dr. Reff disclosed this opinion in his expert report. (8/25/15 Hr’g Tr., at 37.) To date,
counsel has not identify any such disclosure. Indeed, after a careful review of Dr. Reff’s expert
report, this opinion was not disclosed.
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all opinions [he] will express and the basis and reasons for them.” See Novak v. Board of Trs. of
So. Ill. Univ., 777 F.3d 966, 972 (7th Cir. 2015). “Failure to comply with the disclosure
requirements of Rule 26(a) results in automatic and mandatory exclusion ... ‘unless the failure
was substantially justified or is harmless.’” Id. (quoting Fed.R.Civ.P. 37(c)(1)); see also Rossi v.
City of Chicago, 790 F.3d 729, 738 (7th Cir. 2015). With less than two weeks until trial, the
prejudice against Defendant in failing to disclose these opinions and their bases is
insurmountable. See Tribble v. Evangelides, 670 F.3d 753, 760 (7th Cir. 2012); David v.
Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003). Moreover, there is nothing in the record
indicating that Dr. Reff’s failure to disclose these opinions is substantially justified. See Rossi,
790 F.3d at 738; Novak, 777 F.3d at 972. Therefore, Nolan cannot rely on these non-disclosed
opinions in relation to Drs. Dana’s and Harvey’s breach of the standard of care.
2.

Properly Disclosed Opinions

Turning to the opinions disclosed in his expert report, Dr. Reff opined that Drs. Harvey
and Dana breached the psychiatric or psychological standard of care by not treating Nolan’s
ADHD with Adderall, which contains amphetamine-like agents, or with Strattera, a nonamphetamine stimulant.3 Instead, Dr. Harvey prescribed the antidepressant Venlafaxine for
Nolan, which Dr. Reff admits provided Nolan a benefit due to its serotonin enhancing qualities,
but was not appropriate for treating ADHD. At his deposition, Dr. Reff stated that using

3

The parties do not dispute that Adderall and Strattera are not included in the Federal
Bureau of Prisons Health Services National Formulary. In other words, Adderall and Strattera
are “non-formulary.” See http://www.bop.gov/resources/pdfs/formulary.pdf. Moreover, as
Defendant readily admits, the present Daubert motion is not the appropriate procedural
mechanism for the Court to consider whether treating Nolan with formulary medications instead
of Adderall or Strattera falls under the FTCA’s discretionary function exception pursuant to 28
U.S.C. § 2680(a). See Keller v. United States, 771 F.3d 1021, 1022-23 (7th Cir. 2014).
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Venlafaxine “was a treatment of expediency because of whatever the rules and regulations of the
MCC are regarding the use of stimulants.” (R. 114-3, Reff Dep., at 138.) At the Daubert
hearing, Dr. Reff explained in detail why treating ADHD with Venlafaxine is not as effective as
Adderall or Strattera.
Further, Dr. Reff opined in his October 2013 expert report that Drs. Harvey and Dana
breached the psychological standard of care by failing to obtain Nolan’s medical records or
consult with Nolan’s former mental health care providers. By failing to do so, Dr. Reff posits
that Drs. Harvey and Dana did not review any prior treatment information to corroborate or
substantiate that Nolan had been treated for certain conditions in the past, including ADHD.
Specifically, in his report, Dr. Reff opined that “at the very least, Dr. Harvey and/or Dr. Dana
could have ameliorated Mr. Nolan’s psychological distress by having pursued the available
medical information regarding his pre-existing psychiatric condition and treatment” and by “not
having done so, Mr. Nolan was unnecessarily subjected to additional and treatable stressors
which significantly contributed to the development of his psychological deterioration while in
solitary and ongoing problems since his release.” (Reff Report, at 7.) Similarly, at the Daubert
hearing, Dr. Reff explained that had Nolan received the appropriate treatment for his
psychological issues, the severity of his symptoms would have been mitigated.
Dr. Reff’s opinions as to his diagnosis of Nolan and Drs. Dana’s and Harvey’s breach of
the standard of care are founded on sufficient data and he utilizes the proper method of the
relevant discipline, namely, clinical psychiatry (as opposed to laboratory or research medical
science). See Bielskis v. Louisville Ladder, Inc., 663 F.3d 887, 894 (7th Cir. 2011) (an expert’s
opinion “must be reasoned and founded on data [and] must also utilize the methods of the

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relevant discipline”). Generally speaking, in “clinical medicine, the methodology of physical
examination and self-reported medical history” is appropriate. Cooper v. Carl A. Nelson & Co.,
211 F.3d 1008, 1020 (7th Cir. 2000); see also Brown, 765 F.3d at 772 (“Medical professionals
reasonably may be expected to rely on self-reported patient histories”) (citation omitted).
Accordingly, Dr. Reff’s reliance on Nolan’s self-reported medical history concerning his past
diagnosis of ADHD is an acceptable basis under the circumstances, despite Defendant’s
argument to the contrary. Further, Dr. Reff’s reliance on Dr. Dana’s treatment notes and Drs.
Dana’s and Harvey’s deposition transcripts was sufficiently reliable. See Walker v. Soo Line R.
Co., 208 F.3d 581, 588 (7th Cir. 2000) (“courts frequently have pointed to an expert’s reliance
on the reports of others as an indication that their testimony is reliable”). That Dr. Reff did not
rely on other MCC records and Federal Bureau of Prison reports and formularies goes to the
weight of Dr. Reff’s opinion testimony, not its admissibility. See Kawasaki Kisen Kaisha, Ltd. v.
Plano Molding Co., 782 F.3d 353, 360 (7th Cir. 2015) (“When expert testimony has been
admitted under Daubert, the ‘soundness of the factual underpinnings of the expert’s analysis and
the correctness of the expert’s conclusions based on that analysis are factual matters to be
determined by the trier of fact.’”) (citation omitted). Because Dr. Reff’s expert opinion
testimony as to the standard of care and alleged breach meets the Daubert threshold of relevance
and reliability, the Court, in its discretion, denies this aspect of Defendant’s Daubert motion.
II.

Causation
The Court now turns Defendant’s argument that Dr. Reff did not base his causation

opinions on a scientifically reliable methodology as required by Daubert. See Brown, 765 F.3d
at 772 (“The party offering the expert testimony bears the burden of proving its reliability.”).

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More specifically, Dr. Reff opined that the lack of proper psychological care at the MCC,
including the failure to properly medicate Nolan’s ADHD, contributed to Nolan’s psychological
deterioration while in custody, his ongoing problems since his release, and also caused his
PTSD.

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, “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. Reff’s causation testimony
because he failed to use a reliable scientific methodology in forming his opinion, namely, he did
not conduct a “differential etiology.” To clarify, “in a differential etiology, the doctor rules in all
the potential causes of a patient’s ailment and then by systematically ruling out causes that
would not apply to the patient, the physician arrives at what is the likely cause of the ailment.”
Myers v. Illinois Central R. Co., 629 F.3d 639, 644 (7th Cir. 2010); see also C.W. ex rel. Wood v.

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Textron, Inc., ___ F.3d ___ 2015 WL 5023926, at *2 n.4 (7th Cir. Aug. 26, 2015) (“A
differential etiology is a process-of-elimination approach to determining a subject’s cause of
injury.”). The physician need not rule out every possible cause, but the “goal is to identify the
last remaining, or most probable, ‘ruled in’ cause of a medical problem.” Erwin v. Johnson &
Johnson, 492 F.3d 901, 903 (7th Cir. 2007). Even though the Court has not found any legal
authority for the proposition that an expert must perform a differential etiology to establish
causation, Dr. Reff must have employed a reliable methodology to support his causation
opinions. See Higgins v. Koch Dev. Corp., ___ F.3d ___, 2015 WL 4394895, at **5-6 (7th Cir.
July 30, 2015). “In deciding whether an expert employed a reliable method, the district court has
discretion to consider ‘[w]hether the expert has adequately accounted for obvious alternative
explanations.’” Brown, 765 F.3d at 773 (quoting Schultz, 721 F.3d at 434). In short, guesswork,
subjective impressions, or conjecture are not methods that are widely accepted in the scientific
community when making causation determinations. See Brown, 765 F.3d at 773-74; Lewis, 561
F.3d at 705.
Here, Defendant points to Dr. Reff’s deposition testimony in which he stated that he
could not separate out whether Nolan’s injuries, including ADHD, major depression, generalized
anxiety, and PTSD, were due to his solitary confinement or Drs. Harvey’s or Dana’s breach of
the standard of care. (R. 114-3, Reff Dep., at 186.) Specifically, counsel asked Dr. Reff whether
he was able to quantify whether the failure to properly treat Nolan’s ADHD or his solitary
confinement contributed to Nolan’s mental health care issues, after which Dr. Reff replied, “I
would say the frustrating part of what you’re asking is that you’re asking me to discount the fact
that in addition to ADHD he suffered major depression, generalized anxiety and PTSD and it is

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my opinion that you can’t separate these out as a whole. This is not–this is all part of the same
package. You can’t break his brain into sections.” (Id.) On the second day of his deposition,
Dr. Reff testified that “I can’t say within a reasonable degree of certainty that [Nolan] has
residual symptoms of ADHD as a consequence of not having been treated in MCC. I can say
that the symptoms that he continues to manifest of ADHD are worse than they had been prior to
being in MCC.” (Id. at 286-87.) In addition, Dr. Reff stated that “I can’t say that his current
symptoms are as a consequence of not having gotten Adderall when at the MCC.” (Id. at 28788.) A few minutes later in his deposition, Dr. Reff testified that failing to prescribe Adderall
“was part of the mix” in aggravating Nolan’s symptoms–along with his extended stay in solitary
confinement–but was “not solely the reason why.” (Id. at 297.) At the Daubert hearing,
however, Dr. Reff unequivocally testified that the cause of Nolan’s aggravated ADHD was
because he was not prescribed Adderall or an alternative medication that is indicated for the
treatment of ADHD. Moreover, he testified to a reasonable degree of medical certainty the lack
of appropriate treatment for all of Nolan’s psychological conditions contributed to the
aggravation of his symptoms. At the Daubert stage, however, the Court cannot make credibility
determinations based on this inconsistent testimony. See Lapsley, 689 F.3d at 804 (“A Daubert
inquiry is not designed to have the district judge take the place of the jury to decide ultimate
issues of credibility and accuracy.”).
Nevertheless, in forming his causation opinions, Dr. Reff did not account for obvious
alternative explanations concerning Nolan’s deteriorating mental health except for the fact that
Nolan was in solitary confinement during the relevant time period. See Brown, 765 F.3d at 773;
Schultz, 721 F.3d at 434. In response to Defendant’s argument that Dr. Reff did not perform a

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proper differential etiology, Nolan’s counsel explains that Dr. Reff was not required to conduct a
differential etiology because there was only one traumatic experience that Nolan
suffered–although counsel does not clarify if this traumatic experience is Nolan’s detention in
the SHU or the lack of medical treatment at the MCC. That Nolan only suffered one traumatic
experience is belied by the record, which reveals that Nolan had multiple traumatic experiences
surrounding his detention in the SHU, including his arrest on charges of murder and kidnaping in
relation to Costa Rica’s request for extradition, his fear of being extradited to Costa Rica, his
indictment and conviction for making or acquiring several items to facilitate an escape from the
MCC and obstruction of justice, and the death of his father. Also, after multiple failed business
ventures, Nolan had filed for bankruptcy protection on several occasions, which included a nondischargeable fraud-based judgment of $600,000 entered by the bankruptcy court on August 12,
2009. (09 B 325, R. 11.)
Dr. Reff did not mention any of these alternative potential causes in his October 2013
expert report, although at his deposition he testified that he was aware that Nolan filed for
bankruptcy and had financial stress, that Nolan was subject to proceedings in relation to Costa
Rica, and that Nolan’s father had died when he was in solitary confinement. Nonetheless, Dr.
Reff never stated in his report, at his deposition, or at the Daubert hearing whether he considered
any these potential alternative causes in forming his causation opinion as to Nolan’s ADHD,
depression, anxiety disorder, or PTSD or if he “ruled out” or “ruled in” any of these alternatives
in his analysis.4

4

Dr. Reff’s causation analysis regarding Nolan’s PTSD is discussed in more detail
below. Moreover, the Court discussed the cause of Nolan’s PTSD in the August 31, 2015,
Memorandum, Opinion, and Order granting Defendant’s Daubert motion to exclude the
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In addition, at the Daubert hearing, the Court directly asked Nolan’s counsel to clarify
what methodology Dr. Reff used in making his causation determinations, to which counsel
answered by explaining what Dr. Reff relied upon in making his determinations concerning the
breach of the standard of care. (8/25/15 Hr’g Tr., at 88-89.) After counsel answered as such, the
Court re-phrased the question asking “[b]ut what methodology did he use to opine on
causation?” (Id. at 89.) Counsel answered as follows:
Dr. Reff reviewed the records of Dr. Dana. He was aware of the – at the –
there was some confusion about which medical records Dr. Reff reviewed, but he
was – he repeatedly has said he was aware of the medication records of Mr.
Nolan while in the MCC. He relied on Mr. Nolan’s report of what had happened
while he was in the MCC, both in terms of his situation and in terms of what the
doctors did.
He read the depositions of Dr. Harvey and Dr. Dana, and he had his own
diagnosis of Mr. Nolan. So, putting those all together, he was able to draw a
judgment about what – whether – as to what the causation was of the illness.
And the second causation issue was the harm that flowed from the –
through the two causation standards in Illinois law. I think it’s legal causation
and causation in fact.
So, he testified that – he utilized these factors I just mentioned to draw his
conclusion about what caused the illnesses and their aggravation, and then he also
utilized them plus his own diagnosis to conclude what harm flowed from that
manifested itself.
(Id. at 89-90.) In sum, despite the challenge to Dr. Reff’s methodology for his causation
opinions, Nolan has failed to establish a reliable methodology.
The Court recognizes that Dr. Reff need not exclude all alternative causes with certainty,
see Gayton, 593 F.3d at 619, but the failure to consider obvious potential alternative causes of
Nolan’s psychological symptoms is fatal to Dr. Reff’s causation testimony because there is no

causation testimony of Nolan’s expert witness Dr. Eric Ostrov.
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evidence in the record that he followed a reliable method in forming his causation opinions. See
Brown, 765 F.3d at 774. Although Dr. Reff admitted at his deposition that he could not separate
the failure to treat and Nolan’s incarceration in the SHU, he backed off this position at the
Daubert hearing. In any event, it appears that Dr. Reff relied upon his subjective impressions
and guesswork based on his treatment of Nolan before and after his detainment at the MCC. See
Happel v. Walmart Stores, Inc., 602 F.3d 820, 826 (7th Cir. 2010) (physician’s reliance on “past
experience and the temporal proximity...does not an expert opinion make.”); cf. Erwin, 492 F.3d
at 904-05 (“The mere existence of a temporal relationship between taking a medication and the
onset of symptoms does not show a sufficient causal relationship.”); see, e.g., Higgins, 2015 WL
4394895, at *6. Based on Dr. Reff’s failure to apply a reliable method in making his causation
determinations, the Court, in its discretion, grants Defendant’s motion to exclude Dr. Reff’s
causation testimony. See Bryant v. City of Chicago, 200 F.3d 1092, 1098 (7th Cir. 2000)
(“district court enjoys broad latitude both in deciding how to determine reliability and in making
the ultimate reliability determination.”). In other words, although Dr. Reff employed a reliable
methodology in diagnosing Nolan and when forming his opinions on the breach of the standard
of care, Dr. Reff did not employ a reliable methodology in making his causation determinations.
See Higgins, 2015 WL 4394895, at *6 (“although a doctor may have ‘experience diagnosing and
treating’” a condition “‘that does not make him qualified to assess its genesis.’”) (citation and
internal quotation marks omitted).
In addition, although Dr. Reff considered the conditions of Nolan’s confinement as a
cause of Nolan’s psychological symptoms, there are no pending constitutional claims against any
MCC officials in relation to Nolan’s conditions of confinement allegations. As discussed, in

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2011, Nolan’s 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. (11 CV
1565, R. 20, 10/19/11 Mem. Op., & Order.) By agreement of the parties, Judge Zagel dismissed
the remainder of the lawsuit on February 8, 2012. Therefore, any allegations concerning Nolan’s
conditions of confinement in relation to his detainment in the SHU are not before the Court.
Moreover, Dr. Reff did not link Nolan’s PTSD to his mental health care treatment at the
MCC. Specifically, at the Daubert hearing, Dr. Reff testified to a medical degree of certainty
that he believed that the cause of Nolan’s PTSD was the environment in which he was subjected
to for the seventeen and a half months, namely, his detention at the MCC, along with Nolan’s
belief that he would be extradited to a foreign country where he would be killed. Likewise, at
his deposition, Dr. Reff testified that Nolan’s PTSD was a consequence of Nolan’s incarceration
in solitary confinement. (Reff Dep., at 128-29.) Accordingly, Dr. Reff has not offered an expert
opinion that Drs. Dana’s and Harvey’s mental health care treatment of Nolan or lack thereof was
the cause of his PTSD, as is relevant and necessary to Nolan’s medical malpractice claim.
III.

Dr. Reff’s Conditions of Confinement Opinions Will Not Assist the Trier of Fact
In order to be admissible, an expert’s opinions must assist the trier of fact to understand

the evidence or to determine a fact in issue. See Myers v. Illinois Cent. R.R. Co., 629 F.3d 639,
644 (7th Cir. 2010). 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

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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 deposition testimony and Daubert hearing testimony, Dr. Reff opined that Nolan’s
incarceration in solitary confinement caused or aggravated his psychological issues, including
his PTSD, anxiety disorder, ADHD, and depression. Because this is a medical malpractice case
and not a conditions of confinement case, these opinions are not helpful to the trier of fact
because they are not relevant to any issues in this case. Accordingly, even if Dr. Reff had used
an appropriate methodology to reach his causation opinions, the Court would strike his opinions
where he opines that Nolan’s solitary confinement caused or aggravated a variety of his mental
health issues.
CONCLUSION
For these reasons, the Court, in its discretion, grants in part and denies in part
Defendant’s Daubert motion to exclude the expert testimony of Dr. Robert Reff.
Dated: September 1, 2015
ENTERED

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

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