Williams v. Schwarz et al

Filing 160

Order signed by the Honorable Sheila M. Finnegan on 6/1/2018. Mailed notice(sxw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
WILLIAM WILLIAMS,
Plaintiff,
v.
MARY DIANE SCHWARZ, P.A.,
Defendant.

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No. 15 C 1691
Magistrate Judge Finnegan

ORDER
Plaintiff William Williams filed this lawsuit under 42 U.S.C. § 1983 alleging that
Defendant Mary Diane Schwarz, P.A., was deliberately indifferent to his Type 2 diabetes
mellitus while he was a pretrial detainee at the Stateville Northern Reception
Classification Center (“NRC”).

Plaintiff also asserts state law claims for medical

malpractice, negligent infliction of emotional distress, and intentional infliction of
emotional distress. Currently before the Court are the parties’ motions in limine. For the
reasons stated here, the motions are granted in part and denied in part.
DISCUSSION1
I.

Standard of Review
A motion in limine is Aany motion, whether made before or during trial, to exclude

anticipated prejudicial evidence before the evidence is actually offered.@ Luce v. U.S.,
469 U.S. 38, 40 n.2 (1984). See also Mason v. City of Chicago, 631 F. Supp. 2d 1052,
1055 (N.D. Ill. 2009) (citing Wilson v. Williams, 182 F.3d 562, 570 (7th Cir. 1999)) (AA

This opinion assumes the reader’s familiarity with the facts of this case as set forth in the
Court’s April 26, 2018 Memorandum Opinion and Order denying Defendant’s motion for summary
judgment (Doc. 140). See also Williams v. Schwarz, No. 15 C 1691, 2018 WL 1961143 (N.D. Ill.
Apr. 26, 2018).
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motion in limine is a request for the court=s guidance concerning an evidentiary
question.@). District courts have broad discretion in ruling on motions in limine, but
evidence should not be excluded before trial unless it is clearly inadmissible on all
potential grounds. Betts v. City of Chicago, Ill., 784 F. Supp. 2d 1020, 1023 (N.D. Ill.
2011); Gomez v. Palmer, No. 11 C 1793, 2016 WL 212800, at *1 (N.D. Ill. Jan. 19, 2016).
Otherwise, rulings should be deferred until trial so that questions of foundation,
competency, relevancy, and potential prejudice may be resolved in proper context. Id.
See also Thomas v. Sheahan, 514 F. Supp. 2d 1083, 1087 (N.D. Ill. 2007).
“The denial of a motion in limine [to bar evidence] does not mean that the evidence
is necessarily admissible, rather, it means only that the party moving in limine has not
demonstrated that there is no possible basis for the admission of the evidence.@ Austin
v. Cook County, No. 07 C 3184, 2012 WL 1530452, at *1 (N.D. Ill. Apr. 30, 2012).
Accordingly, A[t]rial judges may alter prior >in limine rulings, within the bounds of sound
judicial discretion.=@ Kiswani v. Phoenix Sec. Agency, Inc., 247 F.R.D. 554, 557 (N.D. Ill.
2008) (quoting Townsend v. Benya, 287 F. Supp. 2d 868, 872 (N.D. Ill. 2003)).
II.

Relevant Background
Before turning to the motions in limine, the Court provides a brief summary of the

relevant facts and allegations taken largely from the parties’ agreed statement of the case
and proposed jury instructions.
Plaintiff was diagnosed with Type 2 diabetes in 1993 while detained at the Cook
County Jail. Since 1993, he has been homeless except when in the custody of the Illinois
Department of Corrections or the Cook County Sheriff. At times since 1993, he has been
treated for various problems related to diabetes, both while in custody and not in custody.

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In 2013, Plaintiff spent nine months at the NRC and was examined by Defendant
(a physician assistant) five times between March and October that year. This case
concerns Plaintiff’s claims that Defendant harmed him when she violated his
constitutional rights by being deliberately indifferent to his condition, committed medical
malpractice, and negligently and intentionally inflicted emotional distress on him. In
support of his assertion that Defendant harmed him, Plaintiff argues that she wrongfully
discontinued his prescriptions for blood pressure, pain, and diabetes medications. Then
insulin was not prescribed until July 2013 and even then it was allegedly an insufficient
dosage and was not increased until October 2013. Plaintiff argues that these actions
harmed him by resulting in his uncontrolled blood sugar levels at the NRC. When
Defendant failed to follow up on and properly care for Plaintiff (for example by not sending
him to a diabetes specialist, requesting a diabetic diet, or screening for microvascular
complications of hyperglycemia), she further harmed him by causing him to suffer a
serious diabetes-related fungal neck infection in October 2013 for which he spent 10 days
in the infirmary. As still further evidence that Defendant improperly cared for and harmed
him, Plaintiff points to his loss of vision, his worsening pain, and the loss of sensation in
his extremities that he has experienced during and since leaving Defendant’s watch at
the NRC.
During the Final Pretrial Conference on May 23, 2018, Plaintiff’s counsel explained
that the medical records reflect that Plaintiff’s first ever occurrence of retinopathy was
approximately two and a half months after he left the NRC and it got progressively worse
over the years that followed despite receiving treatment. His vision in both eyes also
worsened, and he has more recently become partially blind in his field of vision in his right

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eye. Plaintiff’s expert, Marla Barkoff, M.D., will elaborate on these progressive injuries,
as follows:
●

The failure to recognize and manage Plaintiff’s elevated blood pressure
“directly contributes to eye and kidney damage in addition to increasing his
risk of heart disease and stroke.” (Doc. 144-1, at 16-17, Barkoff Report ¶
23).

●

Poor glucose and blood pressure control while under Defendant’s care
contributed to the onset of diabetic retinopathy discovered in March 2014,
and failure to refer him for a dilated eye exam sooner prevented early
detection and intervention. As a result, Plaintiff “now suffers from the
permanent retinal damage undoubtedly due to poor glycemic control under
Ms. Schwarz’s care.” (Id. at 17, Barkoff Report ¶ 25).

Plaintiff seeks compensation for his physical and emotional harm, which he says
Defendant inflicted on him negligently and even intentionally.
Defendant denies that she improperly cared for Plaintiff in 2013. She argues that
she properly discontinued the prescriptions that Plaintiff brought with him to the NRC,
properly followed up on him, and appropriately refused requests for diabetes medication
until he needed it. As for Plaintiff’s symptoms and alleged harm, Defendant says Plaintiff
was contributorily negligent because over the years since becoming diabetic in 1993, he:
●

Engaged in smoking, drinking, and illicit drug use;

●

Failed to accurately report his medical history;

●

Failed to obtain appropriate medical care while not incarcerated;

●

Failed to timely submit requests for access to healthcare services while
incarcerated;

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Failed to comply with medical recommendations;

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Failed to submit to blood sugar monitoring; and

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Failed to take his medications as prescribed.

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In addition, Defendant asserts that her alleged conduct did not proximately cause
Plaintiff’s injuries. Defense expert, Mark R. Molitch, M.D., has opined that diabetes is a
progressive illness that is “well-known to be associated with multiple, long-term
complications that contribute to its significant morbidity and mortality.” It is “the leading
cause of adult blindness and kidney failure in the U.S.” and “the major contributor” to
cardiovascular disease. (Doc. 146-1, Molitch Report, at 3). Dr. Molitch states that viewing
Plaintiff’s level of diabetes control over the course of many years, he would have
developed diabetic retinopathy, cellulitis and other complications “regardless of the
alleged deficiencies in the care of Ms. Schwarz.” (Id. at 6, 9).
III.

Plaintiff’s Motion to Exclude the Testimony of Rebecca Roberts, M.D.
Plaintiff’s first motion in limine seeks to preclude Rebecca Roberts, M.D., a Cook

County Hospital physician, from testifying at the trial. Dr. Roberts saw Plaintiff in the
emergency room on October 12, 2016 for complaints of abdominal pain. Plaintiff argues
that this entire encounter is irrelevant to the case because Dr. Roberts only saw him on
that one occasion, for reasons unrelated to his diabetes, and this was a few years after
Defendant stopped treating him. (Doc. 145, at 3). This Court disagrees and so denies
the motion except that one limited portion of Dr. Roberts’ testimony will be excluded.
Not surprisingly, both sides’ experts agree that diabetes is a progressive disease
that can lead to serious injuries and that requires proper management and treatment, the
lack of which can affect the timing and severity of the disease’s symptoms and
complications. To that end, these experts have closely examined the totality of Plaintiff’s
medical records--both before and after his treatment at the NRC in 2013--to understand

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how and why the disease progressed as it did and how the diabetes was managed and
treated over the years.
Given the progressive nature of the disease and the parties’ disputes over
contributory negligence and proximate causation (among other disputes), the Court finds
that the testimony of Dr. Roberts is relevant. For one thing, based on Plaintiff’s reported
history of diabetes, Dr. Roberts ordered a blood glucose reading, which came back high
between 224 and 229. (Doc. 145-1, at 17-18, 40-41, Roberts Dep., at 16-17, 39-40). In
addition, Dr. Roberts indicated in her notes that Plaintiff did not have a regular doctor for
follow-up medical care:
Q. Do you have any recollection of how you knew that he didn’t have good
follow up?
A. No, but I know what I do with every single patient. I say, Do you have a
regular doctor you see all the time? And when they tell me no, I know
that they don’t.
Q. Okay. So if he had answered no to that question, that would have given
you reason to [write], “does not have F/U”?
A. Yes.
(Id. at 54, Roberts Dep., at 53). Further, Plaintiff left the hospital against medical advice
after receiving a dose of morphine (telling a nurse he was no longer in pain), and before
Dr. Roberts had a chance to assess whether his diabetes was under control:
Q. All right. Do you have enough information to tell us whether or not Mr.
Williams had his diabetes in good control on October 12, 2016?
A. No, because like I said, I didn’t know if he took his medicine that morning.
I didn’t know if he had eaten breakfast. I did not know.
Q. You didn’t have enough information because you had not completed your
exam before he left . . . AMA [against medical advice]?
A. Correct.
(Id. at 85-86, 90, Roberts Dep., at 84-85, 89).
Testimony of Dr. Roberts such as that summarized above is relevant to whether
Plaintiff was taking reasonable care of his diabetes condition in the Fall of 2016. This in
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turn may be considered by the jury in assessing the parties’ arguments regarding
proximate causation for the claimed injuries and whether Plaintiff acted negligently and
thereby contributed to those injuries. Plaintiff’s arguments to the contrary go to the weight
of the evidence rather than its admissibility. Indeed, Plaintiff does not object to testimony
about his alleged poor diabetes control and heroin abuse from medical personnel who
treated him in 2016 and 2017, including Michael Schindelbeck, M.D., Tyisha Clary, M.D.,
and Glen Trammel, P.A. (See Doc. 148, Final Pretrial Order, at 5-6). For all of these
reasons, the motion to exclude Dr. Roberts’ notes and testimony is denied but with one
exception noted below.
Dr. Roberts stated that the most memorable part of Plaintiff’s visit to the hospital
was his sudden departure: after Plaintiff received morphine, he got dressed and then ran
down the hall with an IV still in his arm, which was extremely dangerous. (Doc. 145-1, at
61-62, Roberts Dep., at 60-61) (noting that IV infections can be “[h]ighly fatal.”). Dr.
Roberts will be foreclosed from testifying to the manner in which Plaintiff left the hospital
(i.e., running away with the IV still in his arm) since the incremental probative value of this
particular testimony is substantially outweighed by the danger of unfair prejudice.
Plaintiff’s motion to exclude this limited portion of Dr. Roberts’ testimony is therefore
granted. In all other regards, however, Dr. Roberts’ testimony is allowed.
IV.

Plaintiff’s Motion to Exclude The Expert Report and Testimony of Steven
Shelton, M.D.
Plaintiff next seeks to bar the expert report and testimony of Steven R. Shelton,

M.D., a Certified Correctional Health Professional with Advanced Standing. Plaintiff
argues that Dr. Shelton’s report “parrots” the opinions provided by Mark R. Molitch, M.D.,
a board-certified endocrinologist, and so is needlessly cumulative. (Doc. 146, at 1).
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“[T]his district generally prohibits a party from offering multiple experts to express the
same opinions on a subject.” Sunstar, Inc. v. Alberto-Culver Co., No. 01 C 736, 2004 WL
1899927, at *25 (N.D. Ill. Aug. 23, 2004).2 Under Rule 403, “[m]ultiple expert witnesses
expressing the same opinions on a subject is a waste of time and needlessly cumulative.
It also raises the unfair possibility that jurors will resolve competing expert testimony by
‘counting heads’ rather than evaluating the quality and credibility of the testimony.” Id. It
may be “more advantageous to have two experts from different fields interpret and assess
a body of evidence.

But that does not make their testimony any less needlessly

cumulative or unfairly prejudicial.” In re Testosterone Replacement Therapy Prods. Liab.
Litig., No. 14 C 1748, 2018 WL 1316724, at *3 (N.D. Ill. Mar. 14, 2018).
Plaintiff prepared a chart showing numerous instances where Dr. Shelton and Dr.
Molitch provide nearly identical opinions. For example, both experts agree that: (1)
Plaintiff’s existing complications from diabetes would have occurred notwithstanding
Defendant’s allegedly deficient treatment; (2) it was reasonable for Defendant to order
blood glucose monitoring with planned follow-ups; (3) it was reasonable for Defendant to
rely on nursing staff to monitor Plaintiff’s glucose levels; (4) Defendant’s prescription of
insulin on July 24, 2013 was reasonable; and (5) Plaintiff’s hemoglobin A1c levels were
no better before or after Defendant’s treatment. (Doc. 146, at 4-6). In Plaintiff’s view,
allowing Dr. Shelton to testify “could cause jurors to resolve competing expert testimony

In a “Supplemental Authority Submission” filed on May 24, 2018, Plaintiff purported to
quote from the Sunstar opinion, stating it set forth a “one-expert-per-topic-per-party rule.” (Doc.
155, at 4) (quoting Sunstar, Inc. v. Alberto-Culver Co., No. 01 C 736, 2004 WL 2725461 (N.D. Ill.
Apr. 26, 2004)). In actuality, the quoted language is from a Reply Memorandum of Law in that
case rather than a judicial opinion.
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in this case by ‘counting heads’ and speculating why Williams did not produce as many
experts as Schwarz.” (Id. at 6).
In her response brief, Defendant appeared to concede that the experts’ testimony
could be “potentially cumulative,” but stated that “for most opinions” there would be no
overlap. (Doc. 150, at 2). During the Final Pretrial Conference, however, Defendant
insisted that her experts will not duplicate each other’s opinions in any respect. Dr.
Shelton, who is familiar with the provision of medical services in a correctional setting, will
provide testimony regarding the standard of care and opine that Defendant at all times
acted reasonably and within that standard of care based on the circumstances presented.
Dr. Molitch, on the other hand, will be called to testify about disease progression for
diabetes and opine that Defendant’s actions (even if found to be below the standard of
care) did not cause the claimed injuries since the retinopathy, diabetic neuropathy, and
other conditions were going to occur regardless of the alleged inadequate medical
treatment over the nine months in question.
With this clear delineation of topics, the testimony from Dr. Shelton and Dr. Molitch
will not be cumulative because each will address entirely separate matters. Cf. Sunstar,
Inc., 2004 WL 1899927, at *25 (disallowing “[m]ultiple expert witnesses expressing the
same opinions on a subject.”) (emphasis added). See also Hall v. Hall, No. 14 C 6308,
2018 WL 1695365, at *4 (N.D. Ill. Apr. 7, 2018) (Kennelly, J.) (finding that two experts
could not provide identical conclusions on the same topic, but allowing both to testify on
discrete matters). If a defense expert attempts to testify at trial on topics already covered
by the other defense expert, this Court will sustain an objection that the testimony is
cumulative and exclude the testimony.

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Plaintiff insists that the testimony should still be excluded because Dr. Shelton was
never presented as an expert on prison medicine. Dr. Shelton’s report clearly states,
however, that he is a Certified Correctional Health Professional – Advanced Standing,
and that he worked for more than 20 years as the Medical Director for Health Services
for the Oregon Department of Corrections. (Doc. 146-2, Shelton Report, at 2). In addition,
his disclosure contained multiple opinions regarding the provision of medical services in
a prison setting. (See Id. at 5-6). Based on this, the fact that Dr. Shelton would be
testifying as an expert on prison medicine cannot be a surprise to Plaintiff.
Finally, Plaintiff objects that Dr. Shelton has never been to Illinois or the NRC and
so has no relevant knowledge about that facility. This goes to the weight rather than the
admissibility of the testimony.

Plaintiff’s motion in limine to exclude Dr. Shelton’s

testimony is denied.3
V.

Plaintiff’s Motion to Exclude Evidence of His Past Behaviors to Support a
Contributory Negligence Defense
At the Final Pretrial Conference on May 23, 2018, Plaintiff argued for the first time

that Defendant should be barred from introducing evidence of his past behaviors to
support her contributory negligence defense. Plaintiff claims that his history of smoking,
drinking, and using illegal drugs is irrelevant because Defendant allegedly cannot link
those behaviors to the injuries he sustained. (Doc. 155, at 1-2). Plaintiff also objects that

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The Court also denies Plaintiff’s request at the Final Pretrial Conference to submit a brief
regarding why Dr. Shelton should be foreclosed from testifying based on his lack of knowledge of
prison medicine as practiced in Illinois and at the NRC (as opposed to Oregon prisons), or
alternatively, to voir dire the expert before he is allowed to provide any opinions. Plaintiff was
given a detailed expert disclosure, and the time for Daubert motions is long past. Plaintiff’s
counsel certainly may cross-examine Dr. Shelton concerning the fact that he has never served
as a doctor within a prison in Illinois and the jury may then consider this in deciding what weight
to give the expert’s testimony.

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Defendant only wants to mention the evidence “for the threadbare purpose of prejudicing
the jury against him.” (Id. at 3). Since the parties were to file all motions in limine by May
8, 2018 (extended from May 4) with responses by May 11, 2018, this motion is untimely
and denied for that reason. (Doc. 143). See Pearl v. Keystone Consol. Indus., Inc., 884
F.2d 1047, 1052 (7th Cir. 1989) (district court did not abuse discretion in denying an
untimely motion in limine). In addition, the two-page motion is undeveloped in describing
the evidence and is lacking in merit.
As noted, Dr. Molitch and Dr. Barkoff both agree that diabetes is a progressive
disease that will worsen without proper treatment and observation. In addition, Dr. Barkoff
indicated at her deposition that use of alcohol, tobacco and illegal drugs could potentially
affect a person’s blood sugar control in certain ways. On the record presented, Plaintiff
has not established that no reasonable jury could conclude that his drinking, smoking,
and drug use had an effect on his diabetes progression, and the jury will be permitted to
hear and weigh this evidence. Like the evidence of how Plaintiff managed the disease
after leaving the NRC in 2013, this evidence of what occurred before he entered the NRC
is relevant to the disputed issues, including whether Defendant’s conduct proximately
caused the claimed injuries, and whether Plaintiff is contributorily negligent.
The cases Plaintiff cites do not support a different conclusion. Not only are most
of them from other states, but none addresses a plaintiff suffering from a progressive
disease like diabetes. Compare Matthews v. Williford, 318 So.2d 480, 483 (Fla. Dist. Ct.
App. 1975) (patient’s conduct that may have contributed to his having a heart attack not
relevant to whether the defendant wrongfully caused the patient’s death while treating
him for that heart attack); Harding v. Deiss, 3 P.3d 1286, 1289 (Mont. 2000) (patient’s

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conduct in going horseback riding, which triggered an asthma attack, not relevant to
whether the doctors who treated her negligently caused her death; “[C]omparative
negligence as a defense does not apply where a patient’s pre-treatment behavior merely
furnishes the need for care or treatment which later becomes the subject of a malpractice
claim.”). The cases are also distinguishable because unlike here, there was no expert
testimony linking the prior behavior to the alleged injury. Cf. Voykin v. Estate of DeBoer,
192 Ill. 2d 49, 60, 733 N.E.2d 1275, 1281 (2000) (in car accident case, court erred in
admitting evidence of the plaintiff’s prior history of unspecified neck problems because
there was no expert testimony establishing the nature of the prior neck problems or the
relationship between those problems and the plaintiff’s current claim).4
For the reasons stated, Plaintiff’s motion in limine to exclude evidence of his past
behavior is denied.
VI.

Defendant’s Motions in Limine
A.

Motion No. 1 to Bar or Limit the Testimony of Marla Barkoff, M.D.

In her first motion in limine, Defendant raises several arguments aimed at barring
or limiting the testimony of Plaintiff’s expert, Marla Barkoff, M.D. The Court addresses
each in turn.

Once again, one of the cited “cases” is not a case at all, but an Appellate Brief. (Doc. 155,
at 2) (citing Krklus v. Stanley, 2004 WL 5686547 (1st Dist. June 25, 2004)). Notably, the Illinois
Appellate Court ultimately held in Krklus that the trial court properly admitted evidence that the
plaintiff was contributorily negligent in failing to follow the defendant’s advice to take prescribed
medication, which complicated treatment and reduced his chances of survival. Krklus v. Stanley,
359 Ill. App. 3d 471, 485, 833 N.E.2d 952, 964 (1st Dist. 2005).
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1.

Bar Dr. Barkoff’s Testimony as to the Standard of Care for a
Physician Assistant

Defendant argues that Dr. Barkoff, a medical doctor, should not be allowed to offer
any testimony regarding the standard of care applicable to Defendant, a physician
assistant. This argument arises out of Illinois medical malpractice law, which requires
that an expert “must be a licensed member of the school of medicine about which the
expert proposes to express an opinion.” Alm v. Loyola Univ. Med. Ctr., 373 Ill. App. 3d
1, 5, 866 N.E.2d 1243, 1247 (1st Dist. 2007). See also Dolan v. Galluzzo, 77 Ill. 2d 279,
282, 396 N.E.2d 13, 15 (1979) (“[A] practitioner of one school of medicine is not
competent to testify as an expert in a malpractice action against a practitioner of another
school of medicine.”). The reason behind this rule is to “prevent a higher standard of care
being imposed upon the defendant and to ensure that the testifying expert has expertise
in dealing with the patient’s medical problem and treatment and that the allegations of
negligence are within the expert’s knowledge and observation.” Wingo by Wingo v.
Rockford Mem’l Hosp., 292 Ill. App. 3d 896, 906, 686 N.E.2d 722, 728 (2d Dist. 1997).
Here, Dr. Barkoff testified that her knowledge of the standard of care for a physician
assistant practicing correctional medicine is based on her review of Illinois Department of
Corrections (“IDOC”) and Wexford guidelines. (Doc. 144-2, at 9, Barkoff Dep., at 35-36).
Defendant argues that since policies and guidelines are not determinative of the standard
of care, Dr. Barkoff is not qualified to opine on this issue at trial. (Doc. 144, at 2) (citing
Heastie v. Roberts, 226 Ill. 2d 515, 553-54, 877 N.E.2d 1064, 1088 (2007)) (“[P]olicies
are not determinative of the standard of care, [but] the failure of a hospital to follow its

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policies can be evidence of a breach of the hospital’s duty to a patient.”). See also parties’
proposed Court’s Instruction 17.5
Plaintiff argues that this case falls within an exception to the licensure rule that
applies where the allegations of negligence “do not concern an area of medicine about
which there would be a different standard between physician [sic] and another school of
medicine.” Wingo by Wingo, 292 Ill. App. 3d at 906, 686 N.E.2d at 728. Plaintiff insists
there is no concern here that Defendant will be held to a higher standard of care because
she “herself has supplied the standard of care upon which Dr. Barkoff opines.” (Doc. 147,
at 3). Specifically, Defendant testified that she tries to follow the IDOC guidelines for
diabetes; she tries to “utilize” the American Association of Diabetes Guidelines; she is
authorized to prescribe medicine; and she can order follow-up exams. (Id. at 3-4) (citing
Doc. 147, at 12-17, Schwarz Dep., at 12-13, 143, 146-47, 209). In Plaintiff’s view, since
Defendant has set the standard of care, it is not necessary to have another physician
assistant testify on this issue. (Id. at 4) (citing Walski v. Tiesenga, 72 Ill. 2d 249, 259, 381
N.E.2d 279, 284 (1978) (“The testimony of the defendant doctor may be sufficient to
establish the standard of care.”).
On the record presented, this Court declines to bar in limine any testimony from
Dr. Barkoff regarding the appropriate standard of care in this case and whether Defendant
complied with it. There has been no suggestion that physician assistants are held to a
different standard of care than medical doctors with regard to the treatment at issue here

Proposed Court’s Instruction 17 states (in part): “The law does not say how a reasonably
careful physician’s assistant would act under these circumstances. That is for you to decide. In
reaching your decision, you must rely on opinion testimony from qualified witnesses and evidence
of professional standards, laws, rules, regulations, policies, procedures, or similar evidence.”
(Doc. 148, at 34).
5

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as rendered to Plaintiff while at the NRC. Nor has Defendant articulated any basis for
believing that Dr. Barkoff is holding her to a higher standard of care than would otherwise
apply to physician assistants. Notably, in response to Dr. Barkoff’s opinion, Defendant
retained two expert medical doctors of her own to opine that she met the standard of care.
(Doc. 146-1, Molitch Report, at 8, 9) (“Ms. Schwarz’s order relating to insulin was
reasonable, appropriate, and in compliance with the standard of care.”; “Thus, Ms.
Schwarz did not deviate in any respect from the standard of medical care for patients with
diabetes mellitus . . .”); Doc. 146-2, Shelton Report, at 5 (failure to order insulin or oral
medication on March 4, 2013 “was a reasonable judgment within the standard of care.”;
“Again, the standard of care did not require that insulin or oral medication for diabetes be
ordered in this situation [at appointment on March 8, 2013].”)). Other than observing that
Plaintiff bears the burden of proof on the standard of care, and that since he disclosed a
medical doctor as an expert Defendant felt compelled to do so as well, Defendant offers
no explanation for why her medical doctors are qualified to opine on the standard of care
for a physician assistant and Dr. Barkoff is not.
Defendant also fails to cite any case suggesting that the Illinois licensure rule
applies to claims of deliberate indifference under Section 1983. Under Rule 702, an
expert is qualified to testify on any subject matters that fall within his areas of expertise.
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Aside from noting that Dr.
Barkoff is not a physician assistant, Defendant makes no argument that as an
endocrinologist and diabetes specialist, Dr. Barkoff lacks the knowledge, skill, experience,
or education to opine on proper diabetes treatment in the situation presented here.
Defendant will certainly be permitted to argue that Dr. Barkoff’s statements regarding the

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standard of care are incorrect. Defendant’s motion to completely preclude Dr. Barkoff
from testifying as to the standard of care, however, is denied.
2.

Bar Dr. Barkoff’s Testimony Regarding Defendant’s Failure to
Order a Lipid Profile and Poor Management of Plaintiff’s Blood
Sugar

Defendant next seeks to bar Dr. Barkoff from testifying that Defendant deviated
from the standard of care by failing to order a lipid profile on Plaintiff and generally
mismanaging his blood sugar. (Doc. 144, at 4). Defendant notes that in a medical
negligence case, Plaintiff must establish through expert testimony that “an act by the
defendant could have, within a reasonable degree of medical certainty, caused the
plaintiff’s injuries.” Mengelson v. Ingalls Health Ventures, 323 Ill. App. 3d 69, 74-75, 751
N.E.2d 91, 96 (1st Dist. 2001). In Defendant’s view, Dr. Barkoff did not provide the
necessary link between the two cited actions and any specific injury to Plaintiff. With
respect to the failure to order a lipid profile, Defendant seems to believe that the only
injury this could cause is an acute cardiovascular event, which Plaintiff admittedly never
suffered. (Doc. 144, at 4). As for the blood sugar management, Dr. Barkoff testified that
high sugar levels create an environment that promotes infection, but did not state that
Plaintiff’s blood sugars affirmatively caused him to suffer a fungal infection and cellulitis.
(Id.).
To begin, although Plaintiff never suffered a cardiovascular event, Dr. Barkoff has
opined that people with diabetes should “limit saturated fats and cholesterol to reduce the
risk of cardiovascular disease, a known complication of diabetes.” (Doc. 144-1, at 11,
Barkoff Report ¶ 4). Moreover, Plaintiff alleges that it was Defendant’s totality of care
over a nine-month period, and not any one action, that caused his injuries. Dr. Barkoff

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opines that Defendant’s failure to appropriately manage Plaintiff’s blood sugar placed him
at “severe risk of acute complications,” including infection, vision loss, and neuropathy,
all conditions Plaintiff claims to have suffered. (Id. at 15, Barkoff Report ¶ 19). Dr. Barkoff
also states that Plaintiff’s “poor glycemic control was contributing to his persistent fungal
infections,” and that his “persistent glucose toxic environment likely contributed to [an]
acute bacterial infection.” (Id. at 18, Barkoff Report ¶¶ 29, 30). This testimony is sufficient
to raise questions of fact as to whether Defendant’s overall course of treatment, including
her failure to order a lipid panel and alleged mismanagement of Plaintiff’s blood sugar,
proximately caused Plaintiff’s injuries. Mengelson, 323 Ill. App. 3d at 75, 751 N.E.2d at
96 (“It is well established that issues involving proximate cause are fact specific and
therefore uniquely for the jury’s determination.”).
The same is true for Plaintiff’s deliberate indifference claim. The Seventh Circuit
has recognized that “whether the cause put forth by a qualified expert actually proximately
caused the injury at issue is a question for the jury at trial.” Gayton v. McCoy, 593 F.3d
610, 619 (7th Cir. 2010). Dr. Barkoff’s opinion that Defendant’s actions exacerbated
Plaintiff’s medical problems raises questions of fact as to whether Defendant was
deliberately indifferent to Plaintiff’s serious medical condition, and whether that caused
him to suffer harm as a result. Id.
For all the reasons stated, Defendant’s motion in limine to bar Dr. Barkoff from
testifying that Defendant’s failure to order a lipid profile and mismanagement of Plaintiff’s
blood sugar proximately caused his injuries is denied.

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3.

Bar Dr. Barkoff from Providing Pejorative Testimony and
Opinions on Defendant’s State of Mind

Defendant objects that Dr. Barkoff’s opinion is “strewn with personal attacks
against Ms. Schwarz that go beyond a clinical examination of the applicable standards of
care and her subsequent opinion on whether Ms. Schwarz’s care met that standard of
care.” (Doc. 144, at 6). In this motion, she seeks to bar Dr. Barkoff from making “personal
interjections which are pejorative in nature[,]” and identifies a sampling of statements from
Dr. Barkoff’s report that arguably qualify as such. (Id. at 5-6). Relatedly, Defendant seeks
to preclude Plaintiff from eliciting opinion testimony from Dr. Barkoff regarding
Defendant’s state of mind. (Id. at 6). The example that is given is testimony related to
the following entry in Defendant’s treatment notes: “WANTS INSULIN??” (Id.). Dr.
Barkoff states in her report that the phrase “takes on a mocking tone towards Mr. Williams
and denigrates his own medical judgment of himself and his own medical history.” (Doc.
144-1, at 12, Barkoff Report ¶ 8). She also views the entry as a “flippant notation” that
evidences a “blatant disregard for [Plaintiff’s] critical request for insulin.” (Id.). Defendant
objects that this is “merely personal speculation or conjecture” on Dr. Barkoff’s part and
is not an appropriate subject for expert testimony. (Doc. 144, at 7).
Defendant’s motions are denied since Plaintiff is not seeking to offer Dr. Barkoff’s
expert report into evidence. Instead, the doctor will testify at trial in response to specific
questions posed to her, and her testimony may or may not include statements that
Defendant views as “pejorative” or that opine on her state of mind. But the Court will
provide general guidance to both parties regarding what it deems to be impermissible
expert testimony. The parties are directed to share this guidance with their respective
experts in order to minimize objections and adverse rulings at trial.
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First, the experts may not express opinions on the ultimate issues regarding
whether or not a party was “negligent,” or whether or not Defendant was “deliberately
indifferent” or committed “medical malpractice.” “While experts may offer testimony that
‘embraces an ultimate issue to be decided by the trier of fact,’ . . . expert testimony that
is ‘largely on purely legal matters and made up of solely legal conclusions’ is
inadmissible.” Heard v. Illinois Dep’t of Corrections, No. 06 C 644, 2012 WL 2524748, at
*5 (N.D. Ill. June 29, 2012) (quoting FED. R. EVID. 704; Good Shepherd Manor Found.,
Inc. v. City of Momence, 323 F.3d 557, 564 (7th Cir. 2003)). In Heard, for example, the
court did not permit the expert to testify that the defendants acted with deliberate
indifference, or use the terms “willful and wanton,” a legal standard very similar to
deliberate indifference. Id. See also Hall, 2018 WL 1695365, at *3 (“[N]either expert may
properly render an ultimate-issue opinion regarding whether the defendants were
deliberately indifferent or negligent or committed malpractice.”). In this Court’s view,
these types of opinions unnecessarily invade the province of the jury which must make
the same determination based on its assessment of the evidence.
The experts may, however, offer opinions couched in terms of the underlying
requirements necessary for the jury to find deliberate indifference or negligence, along
with the supporting factual information. For example, an expert may opine as to whether
the plaintiff had a serious medical need or whether the defendant’s treatment met the
standard of care. See Hall, 2018 WL 1695365, at *3 (expert permitted to testify “regarding
the applicable standard of care and … compliance with that standard.”); Haney v. Mizell
Memorial Hosp., 744 F.2d 1467, 1475 (11th Cir.1984) (court reasonably precluded expert

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from using the word “negligent” while allowing him to opine that the defendant’s conduct
fell below the standard of care).
Second, the experts may not testify regarding what another person “believed,
understood, or intended, as these are inappropriate subjects for expert testimony.” Hall,
2018 WL 1695365, at *3. For this reason, if Dr. Barkoff were to opine at trial as to
Defendant’s state of mind when writing “WANTS INSULIN??” in Plaintiff’s medical
records, any objection would be sustained. Of course, it would be different if the expert
learned the state of mind from the other person who actually described it. For this reason,
in forming her opinions, Dr. Barkoff may choose to credit and rely on Plaintiff’s statements
as to his state of mind at a particular point in time if relevant.
Finally, the experts must avoid unnecessary, conclusory and pejorative
characterizations of the evidence and the credibility of witnesses that stray from the
relevant issues set forth in the jury instructions and that require medical expertise.
Objections to such testimony will be sustained since the probative value of the testimony
is substantially outweighed by the danger of unfair prejudice, and essentially transforms
the expert into an advocate. See Hall, 2018 WL 1695365, at *4 (experts foreclosed from
making “pejorative references” that the plaintiff’s claims were “completely disingenuous”
and that statements of opposing expert were “simply ridiculous” since these statements
suggest the testifying expert is “acting as an advocate as opposed to a witness” and are
“unfairly prejudicial in a way that significantly outweighs any conceivable probative value
that would be derived from a witness communicating this sort of rhetoric in a courtroom.”).
This type of testimony also invades the province of the jury which is charged with,
and capable of making its own determinations as to the credibility of witnesses and the

20

weight of the evidence. Consider, for example, Dr. Barkoff’s statement that an entry made
by Defendant in the medical records was “blatantly false” and the “fact [Defendant]
doesn’t believe [Plaintiff’s] previous insulin use when she herself prescribed Mr. Williams
insulin at Stateville during a previous incarceration proves that her medical insight and
thoroughness are quite poor.” (Doc. 144-1, at 13, Barkoff Report ¶ 13) (emphasis added).
(See also Doc. 130-6, at 6, Barkoff Supp. Report ¶ 4) (“[Defendant’s] ability at his 3/4/13
intake to schedule follow-up the following week in March 2013 proves that she had the
ability to schedule medical follow-up for Mr. Williams when she saw him in May 2013 but
chose not to.”). An expert certainly may highlight factual information supporting an
opinion regarding whether the standard of care was met (or not) or whether a Plaintiff was
denied necessary medical care; however, the expert should refrain from offering opinions
as to what has been “proved” (based on the expert tying together various pieces of
evidence -- as counsel undoubtedly will do in closing argument), and opinions as to
whether an inference can be drawn from the evidence that a statement is “blatantly false.”
With the aid of the expert’s proper opinions on medical issues and counsel’s closing
arguments, the jury is capable of deciding for itself what inferences to draw from the
totality of the evidence, whether facts have been “proved” to their satisfaction, and
whether any statement is “blatantly false” or not. In this Court’s view, it invades the
province of the jury for an expert to express such opinions.
The Court is also concerned that such testimony may result in jury confusion
regarding the proper legal standards to be applied by the jury. For example, Dr. Barkoff’s
report at times refers to Defendant as lacking the “medical capacity” to care for Plaintiff
(Doc. 144-1, at 13, Barkoff Report ¶ 10), and opines that he “deserved better medical

21

diabetes care than he was provided at Stateville under Ms. Schwarz’s duty.” (Id. at 19).
Elsewhere she accuses Defendant of “medical incompetence.”

(Id.).

And in a

supplemental report, Dr. Barkoff opines that Defendant was “medically reckless.” To
avoid confusion as to the standard to be applied by the jury in determining liability, the
experts should use the standard of care language or other terminology from the jury
instructions (except “negligence,” “medical malpractice” and “deliberate indifference”).
B.

Motion No. 2 to Bar Reference to or Utilization of Plaintiff’s Grievances

Plaintiff filed two grievances seeking medical treatment for his diabetes during his
stay at the NRC in 2013. The first grievance, dated May 7, 2013, requested emergency
care to address symptoms of hypoglycemia several nights a week, but a prison official
denied the grievance on May 23, 2013. (Doc. 130-1, at 27-28). Plaintiff submitted a
second grievance on June 8, 2013, largely reiterating his previous complaints. On June
13, 2013, a prison counselor indicated on the grievance that a copy “will be forwarded to
the HCU [Health Care Unit] for review and response. The original will be sent to the
Grievance Officer. When the HCU responds you will receive a final response from the
Grievance Officer.” (Doc. 123-1, at 95-97). A little more than a month later, on July 24,
2013, Defendant wrote in the subjective portion of a treatment note that Plaintiff “filed [a]
grievance [secondary to] his insulin.” (PX19).
Defendant seeks to bar Plaintiff from introducing these grievances at trial on the
grounds that they constitute inadmissible hearsay under Rule 801. (Doc. 144, at 7).
Plaintiff argues they are not hearsay because he plans to use them to show Defendant
had notice of his pleas for medical care. (Doc. 147, at 7) (citing Harden v. Marion County

22

Sheriff’s Dep’t, 799 F.3d 857, 861 (7th Cir. 2015)) (“Evidence that is ‘used only to show
notice’ is not hearsay.”).
Plaintiff has not provided any evidence suggesting that Defendant ever saw the
May 7, 2013 grievance (which was denied by a prison official), so it is not evidence that
Defendant knew of Plaintiff’s plea for medical care and is inadmissible hearsay. With
respect to the June 8, 2013 grievance, there is evidence that a prison counselor sent a
copy to the HCU, and Defendant’s July 24, 2013 treatment note indicates that Plaintiff
told her about a grievance. Yet there is still no evidence that Defendant actually saw the
grievance, and if so, when. Given the uncertainty as to when (or if) Defendant saw the
June 8 grievance, it is not evidence that Defendant had notice of Plaintiff’s requests for
medical treatment at any time prior to July 24, 2013 when she wrote her treatment note. 6
The motion in limine to exclude the grievance as inadmissible hearsay is granted.
C.

Motion No. 6 to Bar Non-Party Witnesses from the Courtroom

In her next motion in limine, Defendant seeks to exclude all non-party witnesses
from the courtroom until they are called to testify. The motion is granted without objection
with respect to fact witnesses. As for expert witnesses, the motion is denied. Federal
Rule of Evidence 615 provides that “[a]t a party’s request, the court must order witnesses
excluded so that they cannot hear other witnesses’ testimony[;]” however, there is an
exception for “a person whose presence a party shows to be essential to presenting the
party’s claim or defense.” FED. R. EVID. 615(c). “The exclusion of fact witnesses rests on

6

For this reason, Dr. Barkoff may not provide testimony regarding the following opinion:
“Despite Mr. Williams’s grievance which was filed and stated he requested to resume the diabetes
medications which he had been on prior to arrival at Stateville, an additional 10 weeks passed
before a glucose level was checked.” (Doc. 144-1, at 13, Barkoff Report ¶ 12). Nor may Dr.
Barkoff otherwise rely on Plaintiff’s statements in the grievance or the content of them as the basis
for an opinion regarding Defendant’s knowledge.

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a concern that having heard the testimony of others, the witnesses may inappropriately
tailor their testimony to conform to the testimony of previous witnesses.” Client Funding
Solutions Corp. v. Crim, 943 F. Supp. 2d 849, 868 (N.D. Ill. 2013) (citing Geders v. United
States, 425 U.S. 80, 87 (1976)).
No such danger is present with expert witnesses, whose testimony, by
nature, is based on facts and information provided by others. Indeed,
Federal Rule of Evidence 703 expressly provides that “[a]n expert may base
an opinion on facts or data in the case that the expert has been made aware
of or personally observed,” and the Seventh Circuit has noted that “there is
little if any difference between counsel disclosing prior testimony to an
expert and having an expert listen to such testimony in the courtroom.”
Id. at 868-69 (quoting United States v. Crabtree, 979 F.2d 1261, 1270 (7th Cir. 1992)).
See also Below by Below v. Yokohama Tire Corp., No. 15-CV-529-WMC, 2017 WL
764824, at *7 (W.D. Wis. Feb. 27, 2017) (“The court’s general practice is to exclude all
lay witnesses from the courtroom until they have completed their testimony, while allowing
experts to remain.”).
Plaintiff has argued that Dr. Barkoff must be permitted to observe the testimony of
Defendant since it is possible, depending on what Defendant says, that Plaintiff will need
to call Dr. Barkoff as a rebuttal witness. The Court recognizes that “Rule 703 is not an
automatic exemption for expert witnesses from Rule 615 sequestration.” U.S. v. Olofson,
563 F.3d 652, 660 (7th Cir. 2009). At the same time, “experts who are responding to the
theories of an adversary’s expert are infrequently sequestered.” Ty Inc. v. Softbelly’s Inc.,
No. 00 C 5230, 2006 WL 5111124, at *18 (N.D. Ill. Apr. 7, 2006). See also Polythane
Sys., Inc. v. Marina Ventures Int’l, Ltd., 993 F.2d 1201, 1209 (5th Cir. 1993) (“Expert
witnesses clearly fall within Rule 615([c])’s exception” for persons whose presence is
essential to the presentation of a party’s case).

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Here there is no suggestion that Dr. Barkoff will be providing factual testimony that
she could alter to conform with the statements of others. In addition, to the extent that
she is properly called as a rebuttal witness, her presence in the courtroom during
Defendant’s testimony will limit the need to “repeat previous testimony in the form of
lengthy hypothetical questions.” United States v. Dimora, 843 F. Supp. 2d 799, 821 (N.D.
Ohio 2012). On the record presented, the Court finds that in light of the uncertainty
regarding what Defendant will testify to at trial, Plaintiff has adequately shown that Dr.
Barkoff’s presence in the courtroom is essential for the management of the case since
she may well be necessary as a rebuttal witness.
Defendant’s real concern with Dr. Barkoff observing Defendant’s testimony (as
expressed during the Final Pretrial Conference) is that the expert may then formulate new
and undisclosed opinions that she will testify about during her rebuttal testimony. This is
a valid concern but not one that justifies exclusion of Dr. Barkoff from the courtroom.
Instead, the Court will take a recess before Plaintiff’s rebuttal case to learn whether Dr.
Barkoff will be called as a witness. If so, the Court will hear in advance what rebuttal
testimony is planned and allow Defendant to make objections in the event she will offer
testimony that exceeds the scope of proper rebuttal. See Hill v. Porter Mem’l Hosp., 90
F.3d 220, 223 (7th Cir. 1996) (district court did not err in allowing the defendant’s experts
to testify after reviewing the plaintiff’s expert’s trial testimony where “[t]hey maintained
and testified to the same opinions throughout the case.”). See also Peals v. Terre Haute
Police Dep’t, 535 F.3d 621, 630 (7th Cir. 2008) (“Testimony offered only as additional
support to an argument made in a case in chief, if not offered ‘to contradict, impeach or
defuse the impact of the evidence offered by an adverse party,’ is improper on rebuttal.”).

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D.

Motion No. 8 to Bar Plaintiff from Providing Medical or Mental Health
Opinions

This motion seeks to preclude Plaintiff (or other unidentified lay witnesses) from
offering medical opinions. (Doc. 144, at 10-11). The Court agrees generally that lay
witnesses such as Plaintiff cannot give medical opinions or testify about causation. They
can, however, testify about their symptoms and course of treatment. Defendant argues
that Plaintiff should not be permitted to say he “needed insulin” or suffered from
“hypoglycemia” because these are not things a lay person would know. Given that
Plaintiff has been a diabetic since 1993, he would reasonably know common medical
terms related to diabetes and its treatment, and be familiar with how his body reacts when
his blood sugar is either too high or too low. Plaintiff may therefore testify that he needed
insulin and suffered from hypoglycemia as long as he explains the specific symptoms that
led him to those conclusions. Defendant will then be free to argue that the symptoms
described are not in fact evidence of a need for insulin or associated with episodes of
hypoglycemia. Motion in limine No. 8 is granted in part and denied in part.
E.

Motion No. 9 to Bar Evidence of Future Physical or Emotional Injury or
Treatment

In her next motion in limine, Defendant seeks to bar Plaintiff from arguing that he
will incur future medical or mental health expenses because he has not disclosed an
expert competent to make such a determination. (Doc. 144, at 11). Plaintiff responds
that he has presented evidence that his condition is progressive and will require additional
medical care in the future, particularly with respect to his eye problems and neuropathy.
He also directs the Court to Maddox v. Rozek, 265 Ill. App. 3d 1007, 639 N.E.2d 164 (1st
Dist. 1994), for the proposition that “Illinois courts have accepted the view that lay

26

testimony alone, or the nature of an injury, can support an instruction on future pain and
suffering.” Id. at 1009, 639 N.E.2d at 166. As the Maddox court explained:
Where future pain and suffering can be objectively determined from the
nature of an injury, the jury may be instructed on future pain and suffering
based on lay testimony alone or even in the absence of any testimony on
the subject. Where future pain and suffering is not apparent from the injury
itself, or is subjective, the plaintiff must present expert testimony that pain
and suffering is reasonably certain to occur in the future to justify the
instruction.
Id. at 1011, 639 N.E.2d at 167.
This motion is denied without prejudice since the Court must hear the evidence of
future damages at trial before determining whether a jury could find that future damages
are reasonably certain.
F.

Motions Granted Without Objection or Withdrawn

The following motions are granted without objection:
●

Motion in limine No. 3 to bar evidence of any prior or ongoing lawsuits
involving Plaintiff or Defendant;

●

Motion in limine No. 4 to bar evidence of prior grievances or complaints
against Defendant, or Defendant’s disciplinary records, if any;

●

Motion in limine No. 5 to bar evidence regarding the existence of any liability
insurance or indemnification on the part of Defendant;

●

Motion in limine No. 7 to bar opinion testimony from any medical treaters
not disclosed as expert witnesses;

●

Motion in limine No. 10 to bar evidence or testimony critiquing the medical
care provided to Plaintiff by non-parties.

Finally, Defendant’s motion in limine No. 11, which seeks to bar any argument that
Plaintiff is entitled to double recovery on his state and federal claims, is withdrawn without
prejudice. The parties have agreed to address this issue through the jury verdict forms.
(Doc. 147, at 10).
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CONCLUSION
For the reasons stated above, Plaintiff’s Motion in Limine to Exclude the Testimony
of Rebecca Roberts, M.D. [145] is granted in part and denied in part. Plaintiff’s Motion in
Limine to Exclude the Expert Report of Steven Shelton, M.D. [146] is denied. Plaintiff’s
motion to exclude evidence of his past behaviors to support a contributory negligence
defense is also denied. Defendant’s Motions in Limine [144] are granted in part and
denied in part.
ENTER:

Dated: June 1, 2018

__________________________
SHEILA FINNEGAN
United States Magistrate Judge

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