West v. Home Depot, The

Filing 114

MEMORANDUM Opinion and Order written by the Honorable Lindsay C. Jenkins on 6/5/2024. Mailed notice. (jlj, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Carla West,
Plaintiff,

No. 21 CV 1145

v.

Judge Lindsay C. Jenkins

Home Depot U.S.A., Inc.,
Defendant.

MEMORANDUM OPINION AND ORDER

In a recent ruling, the Court excluded all of Carla West’s experts who sought
to opine West’s various injuries were caused by the impact of steel drywall studs
falling on her at Home Depot (the “Incident”). This holding had several corollaries.
First, West’s ability to recover damages was limited to those injuries West herself
could competently establish. Second, her treating physician experts could not opine
on the prognosis and permanency of West’s injuries, nor the treatment they provided
West in the aftermath of the Incident (lest the jury confuse West’s diagnoses and
treatments as being caused by the Incident). Finally, the Court likewise excluded
West’s economist, Smith, and nurse, Busch, whose opinions were premised on the
assumption the Incident caused West’s injuries. [Dkt. 94.]
West has moved the Court to reconsider and vacate portions of this order. [Dkt.
97.] West argues the Court erroneously excluded her causation experts, but that West
can also establish causation through Dr. Engelhard, a Home Depot expert. And if
West provides expert causation testimony, then her experts’ prognosis and
permanency opinions, as well as the opinions from her economist and nurse, should
1

be admitted. In addition, West contends the Court overestimates the complexity of
West’s injuries, and that expert testimony is not required.
West’s motion is denied. The Court disagrees that it erred in excluding her
experts’ causation opinions. Nor can the Court conclude Dr. Engelhard provided any
opinions which support a finding that the injuries West suffered that require expert
testimony were caused by the Incident. Accordingly, the five experts the Court
initially excluded—Dr. Dudycha, Dr. Kotecha, Dr. Lee, Smith, and Busch—remain
barred from testifying at trial, with a minor exception explained below. Nor is the
Court persuaded by West’s arguments that a layperson could ascertain causation for
many of her injuries without expert testimony.
I.

Legal Standard
District courts have discretion to entertain motions to reconsider prior

decisions. See Rule 54(b); Patrick v. City of Chicago, 103 F. Supp. 3d 907, 911 (N.D.
Ill. 2015); see also Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1,
12, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983) (“[E]very order short of a final decree is
subject to reopening at the discretion of the district judge.”). But motions for
reconsideration are “disfavored”, Patrick, 103 F. Supp. 3d at 911, and “[t]o be within
a mile of being granted, a motion for reconsideration has to give the tribunal to which
it is addressed a reason for changing its mind.” Ahmed v. Ashcroft, 388 F.3d 247, 249
(7th Cir. 2004).
Ultimately, motions for reconsideration serve a very limited purpose:
correcting manifest errors of law or fact and presenting newly discovered evidence.
Caisse Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir.
2

1996). A manifest error of law occurs “when the district court commits a wholesale
disregard, misapplication, or failure to recognize controlling precedent.” Burritt v.
Ditlefsen, 807 F.3d 239, 253 (7th Cir. 2015) (cleaned up); see also United States v.
Ligas, 549 F.3d 497, 501-502 (7th Cir. 2008) (a manifest error of law or fact occurs
“when there has been a significant change in the law or facts since the parties
presented the issue to the court, when the court misunderstands a party’s arguments,
or when the court overreaches by deciding an issue not properly before it.”)
II.

Analysis
West argues the Court made three manifest errors. First, it misapplied Rule

702 and ignored existing Seventh Circuit precedent when it found West’s causation
experts did not have a sufficient basis to form their opinions. Second, it incorrectly
presumed her experts were the only source of causation evidence, when in fact Home
Depot’s expert could supply the required testimony. Finally, it overreached by
concluding most of West’s injuries require expert testimony. The Court reviews each
in turn.
A.

Exclusion of West’s Causation Experts

The Court barred West’s Doctor of Chiropractor, Dr. Dudycha; her
neurosurgeon, Dr. Nilesh Kotecha; and her orthopedic surgeon, Dr. Andrew Lee from
testifying that the Incident caused West’s injuries. The basis for excluding each
expert was similar: none of the experts were aware of West’s salient medical history
in rendering their causation opinions, and in fact, they affirmatively relied on West’s
inaccurate representation she had no previous injuries in these areas. Consequently,
the Court held West failed to meet her burden of showing “it is more likely than not
3

that” these expert’s opinions were “based on sufficient facts or data.” Rule 702(b);
[Dkt. 94 at 5-14]. 1
In so ruling, the Court relied heavily on the Advisory Committee’s comments
to the operative version of Rule 702, which came into effect just six months ago on
December 1, 2023. The Committee explained Rule 702 required amending because
“many courts have held that the critical questions of the sufficiency of an expert’s
basis, and the application of the expert’s methodology, are questions of weight and
not admissibility”, which is “incorrect.” Fed. R. Evid. 702 Advisory Committee Notes
to 2023 Amendments; see also [Dkt. 94 at 3-4]. The Court held these instructions
supersede caselaw instructing that where “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.” [Dkt. 94 at 8-10]; see also Walker v. Soo Line R. Co., 208 F.3d 581,
586 (7th Cir. 2000).
In her motion, West argues this Court misinterprets the amendment and that
cases such as Walker are still good law. [Dkt. 97 at 8-15.] West outlines the factual
similarities between what Drs. Dudycha, Kotecha, and Lee did in this case as
compared to the medical providers in Walker; namely, both sets relied on a physical
examination of the plaintiff and the plaintiff’s inaccurate recitation of their medical
history to opine on causation. [Id. at 8-12.]

Citations to docket filings generally refer to the electronic pagination provided by
CM/ECF, which may not be consistent with page numbers in the underlying documents.
1

4

As to the amendment’s impact, West argues the Committee meant to clarify
that Rule 702 is subject to Rule 104(a)’s preponderance of the evidence standard as
opposed to the more permissive standard under Rule 104(b). [Id. at 13-14.] And
according to West, there is nothing in Walker or its progeny that suggest it applied
the Rule 104(b) standard in holding cross-examination is the appropriate place to
question a medical provider who relies on inaccurate medical history. [Id.]
The Court disagrees. As explained more fulsomely in the order, the Court reads
the Rule 2023 amendments to be aimed precisely at cases like Walker. [Dkt. 94 at 810.] In Walker, the expert relied in part on inaccurate medical history in reaching his
conclusion, but otherwise employed a methodology the Seventh Circuit deemed
sufficient. Walker, 208 F.3d at 586. In determining the district court erred by
excluding the opinion, the Seventh Circuit quoted portions of Daubert which
discussed the importance of cross-examination and noted the defendant could have
used the inaccurate medical records to call the expert’s conclusions into question. Id.
at 586-87. Ultimately, the Seventh Circuit held the “critical point is that [the expert]
employed a proper methodology.” Id. at 587; see also Cooper v. Carl A. Nelson & Co.,
211 F.3d 1008, 1020-21 (7th Cir. 2000) (expert testimony admissible because his
methodology was “generally appropriate” and Daubert “is concerned primarily with
the issue of methodology”).
In both cases, the Seventh Circuit sidestepped an analysis of whether the
expert’s opinion was “based on sufficient facts or data” because the testimony was
“the product of reliable principles and methods.” Rule 702(b)-(c). The text of the

5

operative Rule 702 and accompanying Committee comments make clear this is
insufficient. Now, courts must ensure the proponent of expert testimony establishes
that each of the four elements of Rule 702 are satisfied by a preponderance of the
evidence. A proper methodology is not enough if the expert did not rely on sufficient
facts or data.
The Court is not satisfied West has met this burden. Her experts relied on
inaccurate (indeed, affirmatively misleading) medical histories and a personal
examination. Nothing more. The Court stands by its prior ruling that this factual
basis is inadequate “where the medical history is crucial to understanding causation,
the experts affirmatively relied on inaccurate and misleading self-reported
information, and they failed to review other information that could mitigate these
shortcomings.” [Dkt. 94 at 14.] The factual similarities between this case and
Walker/Cooper are irrelevant.
Accordingly, the Court declines to reconsider its prior holding, and the
causation opinions of Drs. Dudycha, Kotecha, and Lee remain excluded.
B.

Dr. Engelhard as West’s Causation Expert

Although West’s experts are barred from testifying on causation, she contends
she can still offer expert causation testimony from Home Depot’s expert, Dr.
Engelhard. [Dkt. 97 at 8-10.] Home Depot concedes Dr. Engelhard can testify in
West’s case in chief, but argues the point is meaningless here because Dr. Engelhard
did not opine the Incident caused West’s injuries. [Dkt. 103 at 2-3.]
West’s argument relies on the following opinion from Dr. Engelhard’s report:
“The evaluation and treatment given [to West] at St. Francis Hospital, and Dana
6

Chiropractic (for 18 sessions) were reasonable, and were related to the accident of
1/15/2020.” [Dkt. 97 at 8.] West was taken to St. Francis Hospital’s emergency room
following the incident, where she was evaluated for “tenderness of the cervical,
thoracic, and lumbar spine and anterior right shoulder.” [Id.] At the chiropractor,
West received treatment for spinal injuries and pain in both knees. [Id. at 9.] Dr.
Dudycha ordered MRIs of Plaintiff’s spine, which revealed various injuries. [Id.]
Home Depot argues West ignores the rest of Dr. Engelhard’s report, including
his fundamental conclusion as to what injuries West suffered: “West sustained a
contusion of the right shoulder and some transient head, neck, shoulder, arm and
back pain—where she reported that the steel studs struck her.” [Dkt. 103 at 3.] Dr.
Engelhard also opined “West had pre-existing and chronic lumbar pain, as
documented in her past medical records.” [Id.] As to West’s trip to St. Francis Hospital
following the Incident, Dr. Engelhard agrees the evaluations and treatments West
received were reasonable, but notes all her tests came back negative (i.e., St. Francis
did not find any serious medical issues with West). [Id. at 4.] Accordingly, the visit
does not establish the Incident caused West any complex injuries.
Dr. Engelhard also made specific findings regarding West’s treatment at the
chiropractor. For instance, he disputed the need for Dr. Dudycha to order MRIs, and
concluded the MRI findings “showed only normal, mild degenerative changes, as
would be expected for a 48-year-old individual, with no acute changes (such as a disc
herniation with impingement on a nerve root) that could reasonably be related to the
incident of 1/15/20.” [Id. at 3.] He also disagreed with West’s experts that West’s

7

injuries were severe, would require future injections or surgery, or would cause
permanent disability. [Id. at 3-4.] Home Depot contends Dr. Engelhard’s opinion
regarding the reasonableness of the 18 chiropractic visits were to ease the transient
(i.e. acute) pain she suffered during the Incident. [Id. at 5.] West’s response to these
arguments is that Dr. Engelhard’s other opinions do not negate his “reasonableness”
opinion, which a jury could choose to credit. [Dkt. 108 at 1-3.]
While the Court agrees this is theoretically true, the problem for West is Dr.
Engelhard did not opine that any of her allegedly complex injuries were caused by
the Incident. Indeed, as the above quotes from Dr. Engelhard’s report demonstrate,
he believes the opposite. The portion of Dr. Engelhard’s opinion West relies on reveals
nothing more than his agreement that it was reasonable for West to be taken to the
emergency room after the Incident (where St. Francis did not identify any serious
injuries) and that it was reasonable for her to receive chiropractic treatment for her
“transient injuries.” 2 And Dr. Engelhard specifically disagreed with Dr. Dudycha
regarding the need for specific treatments (e.g., MRIs) or the findings therefrom.
Put simply, there is no basis for the Court to conclude Dr. Engelhard would
testify at trial that West suffered anything other than transient injuries, and received
reasonable evaluation and treatment for those injuries. Therefore, the Court will not
disrupt its prior holding excluding West’s treating experts from testifying on the
prognosis and permanency of West’s injuries. Likewise, West’s economist, Smith, and
nurse, Busch, remain barred from testifying.
As described in more detail below, these transient injuries are precisely the type of
damages the Court envisioned West being able to competently establish with lay testimony.
2

8

C.

Scope of West’s Recoverable Injuries
West’s final argument is the Court should vacate its finding that her injuries

require expert causation testimony. [Dkt. 97 at 19-24.] In its initial order, the Court
held West could “testify as a lay witness about her own perceptions of the Incident,
including physical and emotional effects of the Incident”, but nothing further because
West’s injuries were too complex for a layperson to understand. 3 [Dkt. 94 at 15-16.]
As previously explained, “Illinois … require[s] expert testimony in cases
involving specialized or complex issues beyond a layperson’s understanding.” 4 In re
Paraquat Prods. Liab. Litig., 2024 WL 1655500, at *3 (S.D. Ill. Apr. 17, 2024) (citing
Kirk v. Clark Equip. Co., 991 F.3d 865, 878 (7th Cir. 2021)); Thompson v. LaSpisa,
2023 IL App (1st) 211448, ¶ 32 (expert testimony is required where “the proof consists
of specialized medical knowledge beyond the ken of the ordinary juror, thus requiring
testimony from an expert in the field”). An Illinois Appellate Court succinctly
described when expert testimony is necessary:

West argues this holding was unfair because “the Court effectively granted summary
judgment for Defendant with respect to most of Plaintiff’s injuries” without the issue being
briefed by the parties. [Dkt. 97 at 6-7.] Not so. The inherent consequence of excluding
causation experts (the relief requested in Home Depot’s Daubert motions) is that a party
cannot not establish causation for any injuries that require expert testimony. While the
parties did not delineate each and every injury in the Daubert briefing, the parties discussed
several specific diagnoses and injuries, all of which Home Depot argued required expert
testimony. Regardless, any concern West had in this regard has been rectified by her motion
for reconsideration, which gave her a full opportunity to list every injury she seeks to recover
at trial, [Dkt. 107], and to argue why those injuries do not require expert testimony.
4
Because West has alleged a common-law Illinois negligence claim, substantive Illinois
state law applies to when expert causation testimony is required. See Lewis v. CITGO
Petroleum Corp., 561 F.3d 698, 702 (7th Cir. 2009). While informative, the cases cited by the
parties do not apply Illinois law. See Cyrus v. Town of Mukwonago, 624 F.3d 856 (7th Cir.
2010) (applying federal common-law tort rules in 42 U.S.C. § 1983 claim); Robinson v. Davol
Inc., 913 F.3d 690 (7th Cir. 2019) (applying Indiana law); Myers v. Ill. Cent. R.R. Co., 629
F.3d 639 (7th Cir. 2010) (applying causation standards under FELA).
3

9

Generally, a plaintiff in a personal injury case must present the
testimony of a medical expert to establish causation if the relationship
between the claimed injury and the event in question requires special
knowledge and training to establish. For example, if a plaintiff suffers a
cut in an accident, the jury can readily determine without expert
testimony that the accident caused the cut. But, if the nature of
plaintiff’s injury is complex or if the condition could be the result of some
event or condition other than the accident in question, then expert
testimony may be needed to establish the particular event that caused
the pain and the underlying medical condition. This proof of causation
is usually accomplished by presenting testimony from a physician on the
causation issue.
Brown v. Baker, 672 N.E.2d 69, 71 (Ill. App. Ct. 1996).
Here, West seeks to recover for the following injuries allegedly caused by the
Incident: (1) back pain; (2) neck pain; (3) injury to the L3-4, L4-5, L5-S1 nerve roots;
(4) range of motion limitations; (5) multiple disk bulges; (6) posterior central/left
paracentral annular tear at L5-S1; (7) knee pain with swelling and stiffness; (8)
meniscus cartilage tear in the left knee; (9) sprain of the ligaments throughout the
spine; (10) dysfunction of the spine; (11) contractures of muscles at multiple sites; (12)
pain in the left shoulder; and (13) general pain and suffering. [Dkt. 107 at 2.] West
avers none of these injuries require expert testimony. [Id. at 3.]
In support of this contention, West relies on a series of cases which purportedly
show the leeway courts give lay juries in inferring causation. West cites to cases, for
example, where a plaintiff became dizzy after smelling paint; experienced headaches
and memory loss after being hit in the head with luggage; suffered hearing loss after
a plane crash; and experienced low back pain and penile dysfunction after being
punched in the lower abdomen. [Dkt. 97 at 21.]

10

These cases stand for nothing more than the unremarkable proposition that
expert testimony is not required when the injury intuitively flows from the accident.
During the Incident, West was struck by several steel studs. The natural
consequences of such an injury—and what a layperson could understand—is the
physical harm (e.g., bruises, cuts, pain) from the impact, and concomitant emotional
harm. The Court already held West can establish damages for these injuries at trial
without expert testimony. But West seeks to recover for injuries significantly more
complex than damages from being struck, many of which are degenerative in nature.
She claims the studs caused damage to nerve roots in her spine, disc bulges, vertebrae
tears, cartilage tears, and sprained ligaments. West has not cited to any case law
where lay testimony was sufficient to establish these types of injuries from being
struck by an object, which suggests causation for these injuries is complex.
West’s experts agree. For example, West testified at her deposition that she
immediately felt pain in her knee after the Incident, then ultimately got an MRI
showing she had a torn meniscus. 5 [Dkt. 97 at 20.] West analogizes this injury to her
suffering a broken leg, which a layperson can easily infer. [Id.] But Dr. Lee, West’s
orthopedic surgeon, testified that torn meniscuses can only be caused by trauma if
the force “sheer[s] off the surface of the cartilage”, and West admits the beams did
not hit her knee. [Dkt. 103 at 8.]
As to whether the Incident caused West’s knee injuries, Dr. Lee’s testimony
also belies West’s assertion that a layperson could ascertain the cause of her knee
The St. Francis medical records do not make any record of West complaining about
knee pain. [See Dkt. 97-3.]
5

11

injuries without expert testimony. Dr. Lee opined the Incident did not cause harm to
West’s right knee, and it is “almost impossible to tell” whether West’s injury to her
left knee was caused by the Incident, even after reviewing an MRI. [Id.] If an expert
finds it “almost impossible” to determine the causal link between the Incident and an
injury, then causation on this point is plainly beyond the ken of a layperson. The same
analysis is true for West’s back and spine injuries. [See Dkt. 103 at 9-10 (citing
deposition testimony from Dr. Kotecha describing the complexity and various
potential causes of West’s back injuries).]
The Court’s conclusion that West’s injuries require expert testimony is further
underscored by the prior injuries. West has well-documented back and spine issues
making it even more difficult for a layperson to ascertain causation. Voykin v. Estate
of DeBoer, 733 N.E.2d 1275, 1279–80 (Ill. 2000) (“evidence of a previous injury is
relevant … if it tends to negate causation or injuries”). And although West argues
Home Depot has failed to provide sufficient expert analysis regarding her prior
injuries, expert testimony is not required where, as here, “the nature of the prior and
current injuries are such that a lay person can readily appraise the relationship.” Id.
at 1280. Here, West had a pre-Incident diagnosis of a herniated disc, complained of
chronic back pain, and received injections, as well as narcotics and prescription
medicine, to deal with her pain. [Dkt. 94 at 2.] A layperson would have no basis to
distinguish between West’s pre and post-Incident back and spinal injuries (e.g.,
herniated disc and bulging disc) without expert testimony. West has none.

12

With this holding in mind, the Court slightly modifies its prior order as follows:
consistent with this Order, West’s treating physicians can testify to the treatment
they provided West related to her recoverable injuries. For example, Dr. Dudycha may
testify to the treatment he provided West related to her upper-body contusions. But
Dr. Kotecha cannot testify to his diagnoses of West’s back/spine. The Court need not
draw every line in this order, but suffice it to say this is a narrow opening.
III.

Conclusion
For the reasons stated herein, West’s motion is denied, with the minor caveat

stated above. The holdings in the Court’s initial order otherwise stand. [Dkt. 94.]
Enter: 21 CV 1145
Date: June 5, 2024

__________________________________________
Lindsay C. Jenkins
United States District Judge

13