Cooper et al v. City of Chicago et al

Filing 96

MEMORANDUM Opinion and Order signed by the Honorable Ronald A. Guzman on 12/4/2014: For the reasons set forth above, the Court denies defendant's motion to bar the testimony of Dr. Bertram Kraft 77 . Mailed notice (cjg, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SHOSHANA COOPER and
SARA KUPER,
Plaintiffs,
vs.
CHICAGO POLICE OFFICER
MONTE CASSIDY,
Defendant.

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No. 12 C 5104
Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER
Plaintiff Kuper seeks to call Dr. Bertram Kraft as an expert witness to opine that she “lost
the vision in her right eye [due to central vein occlusion that occurred] following a period of acute
blood pressure elevation in September 2011.” (See Pls.’ Resp. Mot. Bar, Ex. 1, Kraft Dep. at 33.)
Defendant asks the Court to bar Kraft’s testimony because he lacks the requisite expertise, his
opinion is not based on sufficient data, and his opinion was not derived from a reliable methodology.
See Fed. R. Evid. 702 (stating that a witness can testify as an expert if he has specialized knowledge
that will help the jury understand the evidence or determine an issue, his testimony is based on
sufficient data, and it is the product of a reliable methodology that has been reliably applied to the
facts of the case.)
The record establishes that Kraft is an expert in the field of ophthalmology. He graduated
from the University of Illinois College of Medicine in 1969, completed a medical internship in 1970,
was a resident in ophthalmology at Michael Reese Hospital from 1970-1973, was Chief of
Ophthalmology at the Ireland Army Hospital in Fort Knox, Kentucky from 1973-1975, was a
clinical instructor at the University of Louisville from 1974-1975, and has been in private practice

ever since. (Id. at 10-23.) Kraft testified that the condition from which Kuper suffers, central vein
occlusion, i.e., “essentially a stroke of the eye,” is one that he sees “all the time” but does not treat
because it requires injection of medication directly into the eye, a procedure that only retinal
specialists perform. (Id. at 59, 99-100.) Moreover, the record shows that: (1) Kraft diagnosed
Kuper with central vein occlusion in her left eye, years before the events giving rise to this case, as
well as the one that occurred in her right eye in September 2011; (2) retina specialist Schroeder
concurred with both diagnoses; and (2) Schroeder agreed with Kraft that glaucoma, hypertension
and coagulation disorders like Factor V Leiden are risk factors for central vein occlusion. (Id. at 4344, 57-60, 80-81, 91-93, 97; Pls.’ Resp. Mot. Bar, Ex. 2, Schroeder Dep. at 21-27, 30-31, 56.)
Finally, defendant offers no evidence that suggests only a retinal specialist can diagnose or opine
on the causes of central vein occlusion. Accordingly, the Court finds that Kraft has the requisite
expertise to testify about the cause of Kuper’s eye condition.
Defendant also attacks the factual basis for Kraft’s opinion, which he said was the records
of his and Schroeder’s treatment of Kuper in 2011, his familiarity with Kuper and her medical
history as a result of his decades-long doctor-patient relationship with her, and the statements Kuper
made to him about her blood pressure. (Pls.’ Resp. Mot. Bar, Ex. 1, Kraft Dep. at 38-41, 110-11,
139, 143.) Defendant argues that Kraft’s reliance on Kuper’s statements, rather than actual blood
pressure readings, vitiates his opinion. The Court disagrees. As the Seventh Circuit explained in
Walker v. Soo Line R.R. Co., a medical expert’s reliance on patient statements goes to the weight
of his testimony, not its admissibility:
Under Daubert, the first inquiry that must be undertaken is whether Dr. Pliskin relied
upon a proper scientific methodology to determine Mr. Walker’s pre-incident IQ.
The record establishes that Dr. Pliskin’s evaluation relied on the medical, educational
and professional histories reported by Mr. Walker and Harris, and on his
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administration of the National Adult Reading Test, a test specifically designed to
estimate a person’s IQ before that person suffered a trauma. Medical professionals
reasonably may be expected to rely on self-reported patient histories. See Cooper
v. Carl A. Nelson & Co., 211 F.3d 1008, 1019-21 (7th Cir. 2000). Such histories
provide information upon which physicians may, and at times must, rely in their
diagnostic work. Of course, it is certainly possible that self-reported histories may
be inaccurate. . . . In situations in which a medical expert has relied upon a patient’s
self-reported history and that history is found to be inaccurate, district courts usually
should allow those inaccuracies in that history to be explored through
cross-examination.
208 F.3d 581, 586 (7th Cir. 2000). In short, Kraft’s acceptance of Kuper’s statements may be fertile
ground for cross-examination, but it does not make his opinion inadmissible.
Defendant further contends that Kraft’s opinion should be barred because it was not formed
pursuant to a reliable methodology. In fact, the method Kraft used was differential diagnosis, i.e.,
“the accepted diagnostic tool of examination accompanied by physical history as related by the
patient,” Cooper v. Carl A. Nelson & Co., 211 F.3d 1008, 1021 (7th Cir. 2000) (footnote omitted),
the same as that used by Schroeder, whose opinion defendant lauds. Both doctors took information
from Kuper, her medical records and her physical examinations, compared it to the undisputed risk
factors for central vein occlusion – high blood pressure, clotting disorders and glaucoma – and
reached a conclusion as to the probable cause of the central vein occlusion in her right eye. (See
Pls.’ Resp. Def.’s Mot. Bar, Ex. 1, Kraft Dep. at 38-41, 98-99, 110-11, 139, 143; id., Ex. 2, Schroder
Dep. at 21-37.) Moreover, though Kraft said the occlusion was likely caused by high blood
pressure, while Schroeder said a clotting disorder was the likely culprit, each acknowledged that
both conditions are risk factors for, and could have caused or contributed to, Kuper’s condition.
(See Pls.’ Resp. Def.’s Mot. Bar, Ex. 1, Kraft Dep. at 113-14, 135, 138-39; id., Ex. 2, Schroder Dep.
at 54-56, 62, 65-67.) Thus, flawed methodology is not a basis for barring Kraft’s testimony. See
Cooper, 211 F.3d at 1021 (saying that the possibility that plaintiff’s condition was “attributable to
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a factor other than the fall” and “the accuracy and truthfulness of the underlying medical history”
are “quite susceptible to exploration on cross-examination,” and thus defendant’s “contention that
[plaintiff’s] other conditions might have caused his [condition] goes to the weight of the medical
testimony, not its admissibility”); see Walker, 208 F.3d at 589 (“That two different experts reach
opposing conclusions from the same information does not render their opinions inadmissible.”).

Conclusion
For the reasons set forth above, the Court denies defendant’s motion to bar the testimony of
Dr. Bertram Kraft [77].
SO ORDERED.

ENTERED: December 4, 2014

__________________________________
HON. RONALD A. GUZMAN
United States District Judge

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