Lawrence v. Metropoliatian Correctional Center-Chicago et al

Filing 143

MEMORANDUM OPINION AND ORDER: Signed by the Honorable Jeffrey Cole on 6/21/22. Emailed notice (yt)

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

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No. 18 C 1570
Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER

On June 14, 2022, the plaintiff filed a motion to bar defense expert, Dr. Edward Ward, under
Fed.R.Civ.P. 26(a)(2)(B) and Fed.R.Evid. 702, and noticed a hearing on the motion before Judge
Gettleman on June 22nd at 9:15 a.m. [Dkt. ##136, 137]. Two days later, Judge Gettleman
determined that the motion was a discovery motion, struck the hearing, and referred the matter to me.
As a result of Judge Gettleman’s characterization of the motion, Local Rule 37.2 applies, which he
plaintiff has not complied with. However, it understandable that the plaintiff did not consider this
motion a discovery motion, and I have exercised my discretion to not demand strict compliance with
the local rule. However, for the following reasons, the plaintiff’s motion [Dkt. #136] is denied.
To make a short story shorter, the plaintiff, who has an above-the-knee amputation, slipped
while trying to negotiate a shower curb while a prisoner at the Metropolitan Correctional Center.
Dr. Ward is one of three medical experts the defendants are offering to testify, essentially, that
plaintiff’s injuries as a result were minor. The target of plaintiff’s motion here, Dr. Ward, reviewed
plaintiff’s treatment records and, in his expert report, concluded that:

Injuries that Mr. Lawrence suffered as a result of a slip and fall injury in the shower
on May 9, 2017 were minor. There is nothing within the medical records to suggest
that he sustained significant injury based on this history provided, physical exam
performed, test results obtained and extended period of observation time. It is likely
that he would not suffer long-term pain related injuries as a result of these events.
[Dkt. #136-1].
The plaintiff has a few problems with Dr. Ward and his report and, as Judge Gettleman
apparently acknowledged in his referral, his motion conflates the discovery rules and the evidentiary
rules. First, the plaintiff says it violates Fed.R.Civ.P. 26(a)(2)(B), which requires that expert reports
“must contain (I) a complete statement of all opinions the witness will express and the basis and
reasons for them; (ii) the facts or data considered by the witness in forming them.” Plaintiff further
contends that the opinion is inadmissible under Fed.R.Evid. 702 because it offers only a bare
conclusion, and is inadmissible under Fed.R.Evid. 703 because it is simply echoes two other
opinions and would not be helpful to the court.
First, let’s look at plaintiff’s criticism that Dr. Ward’s report provides insufficient support
for his conclusion that plaintiff was unlikely to suffer long-term pain because it fails to provide
reasoning and explanation for how Dr. Ward reached the conclusion. [Dkt. #136, at 2-3]. Dr. Ward
has years of experience treating patients with traumatic injuries like plaintiff’s. He went over the
medical evidence and evidence of plaintiff’s treatment, noting that there were no visible signs of
acute trauma, physical exams were normal, x-rays and CT scans revealed no acute injuries, and
multiple studies showed no abnormalities to suggest acute trauma. The doctor’s conclusions, based
on his experience, follow from the unremarkable medical evidence. As such, it’s not clear what
more plaintiff wants from the report and he certainly does not say in his motion.

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“Since pain is subjective and affects people in different ways, it is difficult to determine how
much pain is present and how great its effects are.” Kolar v. Berryhill, 695 F. App'x 161, 162 (7th
Cir. 2017); see also Potter v. Comm'r of Soc. Security, 571 F. App'x 569, 571 (9th Cir. 2014)(“. . .
pain is subjective and difficult to quantify.”); Coleman v. Kirk, No. 07 C 1941, 2009 WL 1657426,
at *4–5 (N.D. Ill. June 10, 2009)(“. . . plaintiff's evidence of feeling “pain” is subjective, not
objective.”). Some people feel more pain than others from similar injuries; some feel less. Some
lie about pain when it suits their purposes. All a doctor can do is what Dr. Ward did: compare the
medical evidence to what he has seen in his experience and opine as to what amount of pain is likely
to come from a person’s injuries.
The cases that the plaintiff relies upon have nothing to do with the issue here. Finwall v. City
of Chicago, 239 F.R.D. 494, 501 (N.D. Ill. 2006) concerned paint fading on a car and an expert
whose report offered no conclusions as to the car and paint in question. Instead, essentially, all he
said was, “sometimes a car's finish will fade, sometimes it won't.” 239 F.R.D. at 502. Uncommon,
LLC v. Spigen, Inc., 305 F. Supp. 3d 825 (N.D. Ill. 2018) is even further from where we are. The
issue was whether a cellphone case might be considered a “capsule” by consumers, and the expert
submitted no report at all, with the party offering his testimony treating him as a non-testifying
expert. A doctor opining on the likely level and extent of pain is very different. “When an expert's
testimony relies ‘not on his subjective belief or unsupported speculation but rather on his extensive
experience,’ his testimony is reliable under Rule 702.” Holliman v. Thompson, No. 15 CV 9050,
2019 WL 13156933, at *3 (N.D. Ill. Mar. 25, 2019).
Plaintiff also complains that the opinion is redundant of opinions from two other doctors
defendants have engaged to provide expert testimony on this matter. But “[a]s a general rule, errors
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in admitting evidence that is merely cumulative of properly admitted evidence are harmless.” Jordan
v. Binns, 712 F.3d 1123, 1138 (7th Cir. 2013). Exclusions of evidence based on redundancy – not
mention based on other issues – are best left to the judge at trial. Perhaps Judge Gettleman will say
two is enough, perhaps he will feel the defendants are entitled to counter the plaintiff’s allegations
of pain (and evidence, if any) with a consensus of three experts. Of course, a magistrate judge
handling discovery has no idea what the district court judge will deem significant or perhaps even
relevant when the time comes for summary judgment or trial. This can sometimes be a difficulty with
bifurcation between substantive issues and discovery disputes. So the tendency is – as will happen
here – to err on the side of more rather than less. See Frank H. Easterbrook, Discovery As Abuse,
69 B.U.L. Rev. 635, 639 (1989)(“One common form of unnecessary discovery (and therefore a ready
source of threatened discovery) is delving into ten issues when one will be dispositive. A magistrate
judge lacks the authority to carve off the nine unnecessary issues; for all the magistrate judge knows,
the district judge may want evidence on any one of them. So the magistrate judge stands back and
lets the parties have at it. Pursuit of factual and legal issues that will not matter to the outcome of the
case is a source of enormous unnecessary costs, yet it is one hard to conquer in a system of notice
pleading and even harder to limit when an officer lacking the power to decide the case supervises
discovery.”).
If Dr. Ward’s testimony ends up being what plaintiff considers shaky, the remedy is not for
a magistrate judge – who will not be presiding over the trial – to exclude it well in advance of a trial
that the district court judge has not even scheduled yet. “Vigorous cross-examination, presentation
of contrary evidence, and careful instruction on the burden of proof are the traditional and
appropriate means of attacking shaky but admissible evidence.” Daubert v. Merrell Dow Pharms.,
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Inc., 509 U.S. 579, 596 (1993).
The plaintiff’s Motion to Bar Defense Expert, Dr. Edward Ward [Dkt. #136], is denied.

ENTERED:
UNITED STATES MAGISTRATE JUDGE

DATE: 6/21/22

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