Kelly et al v. Village of Lemont et al

Filing 214

MEMORANDUM Opinion and Order: The Court grants plaintiff's motion to preclude Dr. James Cavanaugh's trial testimony 209 without prejudice. Signed by the Honorable Sharon Johnson Coleman on 2/16/2022. Mailed notice. (ym, )

Case: 1:17-cv-08462 Document #: 214 Filed: 02/16/22 Page 1 of 3 PageID #:2761

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BRENDAN KELLY,

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)
Plaintiff,
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v.
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VILLAGE OF LEMONT, ILLINOIS, et al., )
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Defendants.
)

Case No. 17-cv-8462
Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER
Plaintiff Brendan Kelly brought this lawsuit against the Village of Lemont and Lemont
police officers alleging an excessive force claim in violation of the Fourth Amendment and a state
law malicious prosecution claim. Kelly has moved in limine to bar the opinion testimony of
defendants’ expert psychiatrist Dr. James Cavanaugh pursuant to the 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).
Because plaintiff has limited his damages to “garden variety” emotional damages and will not be
calling his treating neuropsychologist and other mental health care provider at trial, the Court grants
Brendan’s motion without prejudice.
Background
Defendants retained Dr. Cavanaugh as a psychological damages expert to “address Plaintiff’s
mental health issues which compromise a significant portion of Plaintiff’s alleged emotional
damages.” After reviewing Brendan’s confidential medical records, Dr. Cavanaugh formed several
opinions based on his expertise and knowledge concerning Brendan’s mental health issues, including
his rebuttal of the posttraumatic stress disorder (“PTSD”) diagnoses of Brendan’s treating
neuropsychologist Dr. Susan Walsh and Carmen T. Adams, LCSW.

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At the February 15, 2022, pretrial conference, plaintiff’s counsel informed the Court that
Brendan was no longer seeking damages based on his diagnosis of PTSD, but instead is only seeking
garden variety emotional damages. In addition, Brendan will not be calling Dr. Walsh or Carmen
Adams as witnesses at trial. Because Brendan is no longer seeking damages based on his PTSD
diagnoses, Dr. Cavanaugh’s opinions rebutting Dr. Walsh’s and Ms. Adams’ PTSD diagnoses, along
with his other PTSD opinions are simply not relevant to these proceedings.
Nevertheless, defendants argue that Brendan’s medical history is relevant to his damages because
there were other stressors in Brendan’s life prior to the November 2015 incident underlying this
lawsuit. Defendants maintain that Brendan’s medical history of these stressors, such as his history
of alcohol abuse, is relevant to his emotional damages, even though Brendan now seeks only garden
variety emotional damages.
Analysis
Courts in this district have explained that a plaintiff’s choice of garden variety emotional
damages is “a self-imposed limitation” that permits a plaintiff “to testify only that []he felt
humiliated, embarrassed, angry or upset because of the alleged” misconduct. Santelli v. Electro-Motive,
188 F.R.D. 306, 309 (N.D. Ill. 1999) (Kennelly, J.). By making this choice, a plaintiff “cannot inject
his or her psychological treatment, conditions, or symptoms into a case,” and thus he limits his
ability to recover “a broader damage claim.” Id.; see also Ikumen v. Bayview Loan Servicing, LLC, 2018
WL 7891978, at *1 (N.D. Ill. July 27, 2018) (Dow, J.) (“This is a permissible tactic that operates as a
waiver of a broader claim.”) (Dow, J.). In short, garden variety emotional damages flow from
defendant’s alleged misconduct. See Gonzalez v. Scaletta, No. 17 C 7080, 2018 WL 6573227, at *4
(N.D. Ill. Dec. 12, 2018) (Castillo, J.)
If Brendan confines his trial testimony and evidence to “garden variety” emotional damages,
the probative value of Dr. Cavanaugh’s opinions about Brendan’s medical history are substantially
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outweighed by Brendan’s privacy interest in his medical records and history. See Valdez v. Lowry, 18
C 5434, 2021 WL 5769533, at *5 (N.D. Ill. Dec. 26, 2021) (Cummings, J.) (citing Doe v. Oberweis
Dairy, 456 F.3d 704, 718 (7th Cir. 2006)). If Brendan opens the door to his medical history, the
Court will allow trial testimony and evidence on the subject.
Conclusion
Based on the foregoing, the Court grants plaintiff’s motion to preclude Dr. James
Cavanaugh’s trial testimony [209] without prejudice.
Date: 2/16/2022

Entered: _____________________________
SHARON JOHNSON COLEMAN
United States District Judge

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