Greene-McCann v. Ogle County et al

Filing 313

MEMORANDUM Opinion, REPORT AND RECOMMENDATIONS; Currently pending before the Court are the motions of Gregory A. Beitel, Wendy Kerwin, Ogle County, Ogle County Sheriffs Department and Cindy Mongan (collectively, Defendants) to strike Valerie McCanns rebuttal expert reports. (Dkt. ##298, 300.) McCann (Plaintiff) has responded to the motions and Defendants have replied. (Dkt. ## 301, 302, 303.) For the reasons stated in Court on August 30, 2016, and those that follow, it is the Courts report and r ecommendation that the motions be granted. Plaintiff is given until September 20, 2016 to file an objection to this report and recommendation. The failure to do so may result in waiver of this issue. (See attachment for full detail.) Signed by the Honorable Iain D. Johnston on 9/2/2016: (yxp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
VALERIE R. McCANN, Special Administrator
of the Estate of Patrick McCann,
Plaintiff,
v.
STEPHEN A. CULLINAN, M.D., et al.,
Defendants.

)
)
)
)
)
)
)

No. 11 CV 50125
Judge Iain D. Johnston

MEMORANDUM OPINION AND
REPORT AND RECOMMENDATION
INTRODUCTION
Currently pending before the Court are the motions of Gregory A. Beitel,
Wendy Kerwin, Ogle County, Ogle County Sheriff’s Department and Cindy Mongan
(collectively, “Defendants”) to strike Valerie McCann’s rebuttal expert reports.
(Dkt. ##298, 300.) McCann (“Plaintiff”) has responded to the motions and
Defendants have replied. (Dkt. ## 301, 302, 303.) For the reasons stated in Court
on August 30, 2016, and those that follow, it is the Court’s report and
recommendation that the motions be granted. Plaintiff is given until September 20,
2016 to file an objection to this report and recommendation. The failure to do so
may result in waiver of this issue.
FACTS
This case involves the death of Patrick McCann. He suffered horrific burns
while allegedly setting his mother’s house ablaze after trying to strangle her.
Patrick was first treated at St. Anthony Medical Center in Rockford, Illinois. He
was then discharged and transported to and detained in the Ogle County Jail.
Patrick was administered methadone for pain. He eventually died. The coroner
initially ruled Patrick’s death to be caused by cardiac arrhythmia resulting from a
natural condition or by cardiomegaly resulting from left ventricular hypertrophy,
but later changed the cause of death to be due to the adverse effects of methadone,
based, at least in part, on information provided by Plaintiff’s counsel.

1

PROCEDURAL HISTORY
Expert discovery in this 2011 case has been protracted and cumbersome. See,
e.g., McCann v. Cullinan, No. 11 CV 50125, 2015 U.S. Dist. LEXIS 91362 (N.D. Ill.,
July 14, 2015). Over one year ago, the Court allowed Plaintiff the opportunity to
provide the retained experts’ reports, subject to paying certain monetary sanctions.
Id. at *52. The sanctions were paid, and Defendants deposed Plaintiff’s retained
expert witnesses. Thereafter, the Court ordered that Defendants’ retained experts’
reports be served on Plaintiff by February 19, 2016. (Dkt. #290.) The Court then
ordered that Defendants’ retained experts be deposed by April 29, 2016. (Dkt.
#295.) The case was set for a status on May 10, 2016.
At the May 10, 2016 status, Plaintiff verbally requested to be allowed to use
rebuttal expert witnesses. The Court and counsel discussed at length the nature of
“rebuttal experts.” The Court noted that the U.S. District Court for the Northern
District of Illinois maintains a standing order limiting one retained expert witness
per subject matter absent a showing of good cause that more are needed, and that
District Judge Kapala has adopted the standing order. The Court expressed its
concern that the “rebuttal experts” would either simply bolster the opinions
provided in Plaintiff’s experts’ initial reports or add new opinions. Counsel for
Defendants asserted that they believed that the “rebuttal experts” did just that.
The Court warned Plaintiff’ counsel that if the witnesses were not true rebuttal
experts, they would be barred. At the conclusion of the May 10, 2016 status, the
Court required Plaintiff to provide the reports to Defendants by June 15, 2016, and
set the case for status on June 21, 2016. Plaintiff timely complied and provided the
reports of Victor Lofgreen and Jane Grametbaur. (Lofgreen had previously provided
an initial expert report on behalf of Plaintiff.)
At the June 21, 2016 status, Defendants asserted that Lofgreen’s second
report and Grametbaur report were not truly rebuttal expert reports.
Consequently, the Court entered a briefing schedule, requiring Defendants to file a
motion to strike these “rebuttal expert” reports and allowing Plaintiff the
opportunity to respond to the motions.
At the next status, on August 30, 2016, the Court verbally ruled on the
motions to strike, recommending that the district judge grant them. This Report
and Recommendation provides a fuller explanation of the Court’s ruling.

2

DISCUSSION
Legal Principles
The sequence of expert discovery is set by the Court. Fed. R. Civ. P.
26(a)(2)(D). Generally, the party with the burden of proof on an issue should
disclose its initial report first. Fed. R. Civ. P. 26 1993 Committee Comments;
Manual for Complex Litigation, §11.481, p. 98 (4th ed. 2004). Federal courts have
the discretion and inherent authority to limit the number of expert witnesses who
can testify at trial. Blair v. Eagle-Picher Industries, Inc., 962 F.2d 1492, 1500 (10th
Cir. 1992); Aetna Casualty & Surety Co. v. Guynes, 713 F. 2d 1187, 1193 (5th Cir.
1983). Indeed, the courts are told to “[d]iscourage efforts by attorneys to try to
bolster the weight of their case by cumulative expert testimony.” Manual for
Complex Litigation, §23.32, p. 496. The Final Pretrial Order to the United States
District Court for the Northern District of Illinois’ Standing Order Establishing
Pretrial Procedure provides that “[o]nly one expert witness on each subject for each
party will be permitted to testify absent good cause shown.” Judge Kapala, who is
assigned to this case, has adopted the Standing Order. The rationale for this
limitation is based on the principle that multiple expert witnesses expressing the
same opinions on the same subject matter is a waste of time and needlessly
cumulative. Stanfield v. Dart, No. 10 C 6569, 2013 U.S. Dist. LEXIS 20175, at *12
n. 3 (N.D. Ill. Feb. 14, 2013). Limiting the number of expert witnesses also reduces
the unfair possibility that jurors will resolve competing expert testimony by
“counting heads” rather than evaluating the quality and credibility of the
testimony. Id.; cf. Seventh Circuit Civil Pattern Jury Instruction 1.17 (2010).
Rebuttal evidence contradicts, impeaches, or defuses the impact of evidence
offered by an adverse party; testimony that is offered merely as additional support
for evidence for its case in chief is not “rebuttal.” Peals v. Terre Haute Police Dep’t,
535 F.3d 621, 630 (7th Cir. 2008). Rebuttal expert testimony is intended solely to
contradict or rebut opinions on the same subject matter identified by an initial
expert witness. R & O Constr. Co. v. Rox Pro Int’l Grp., Ltd., No. 2:09 C 01749LRH-LRL, 2011 U.S. Dist. LEXIS 78032, at *4-5 (D. Nev. July 18, 2011). Rebuttal
expert testimony may not be used to present new opinions or simply bolster a
previous expert opinion. Id. at *8-9; Stanfield, 2013 U.S. Dist. LEXIS 20175, at *810 (a party may not offer “rebuttal” opinion testimony only to provide additional
support for its case). Expert opinions offered to bolster a party’s case in chief or to
add entirely new opinions are not rebuttal opinions. Stanfield, 2013 U.S. Dist.
LEXIS 20175, at * 8-10.

3

The sequence of disclosures of experts’ opinions envisions a winnowing
process, not an expansion. By way of example, a plaintiff’s initial (sometimes
referred to as “affirmative”) expert report may identify opinions #1, #2, and #3.
Subsequently, a defendant’s expert report (sometimes referred to as “response
reports”) may rebut opinions #1, #2, and #3, but also add opinions #4, #5, and #6.
That defendant’s expert report is a proper rebuttal in that it contradicts the first
three opinions. But that defendant’s expert report may also be an appropriate
initial expert report by presenting opinions #4, #5, and #6.
Under these
circumstances, Rule 26(a)(2)(D)(ii) envisions that the plaintiff be given the
opportunity to provide – if it chooses – a rebuttal expert to contradict opinions #4,
#5, and #6. But what is not permissible is allowing plaintiff to now—by way of a
“rebuttal”—offer opinions #7, #8, and #9.
Experts’ Reports
Plaintiff presented two initial expert reports: one by Marlene McGann
regarding medical issues, primarily relating to defendant Mongan, a nurse; and one
by Lofgreen regarding jail standards. McGann offered seven expert opinions in her
report, with the overarching theme being that defendant Mongan deviated from the
standard of care. Defendants then presented their expert witness: Jacqueline
Moore. Moore generally opined that defendant Mongan did not deviate from the
standard of care, and specifically rebutted several of McGann’s opinions. Moore
went on to opine that defendant Mongan was a dedicated nurse and that McGann
was not qualified to offer expert opinions in this case. Plaintiff then offered the
expert opinions of Grametbaur – opinions that are the subject of the motion to
strike. Grametbaur’s opinions did not specifically respond to Moore’s opinions
regarding defendant Mongan’s dedication or McGann’s qualifications to be an
expert witness. Instead, Grametbaur offered a blunderbuss of opinions, ranging
from an opinion that defendant Mongan’s medical duties as a licensed practical
nurse violated state law to improper supervision to alleged failures to address
Patrick’s mental health issues.
Lofgreen’s initial expert report was targeted to whether Ogle County Jail met
state standards, in doing so he offered four opinions. Essentially, Lofgreen opined
that Patrick should not have been treated at Ogle County Jail because it was not
equipped as a medical facility to treat a person with injuries of the severity and
extent Patrick suffered. Defendants then presented their expert witness: Jeff Eiser.
Eiser offered opinions rebutting the four specific opinions offered by Lofgreen. Like
Moore, Eiser added an opinion that Lofgreen was not qualified as an expert, and
stated that he disagreed with a medical opinion of another witness. Plaintiff then
4

offered a subsequent expert report of Lofgreen in rebuttal, which is the subject of
the motion to strike. In his “rebuttal” expert report, Lofgreen presents at least
eight new opinions, ranging from Dr. Cullinan’s treatment of McCann to Ogle
County’s failure to appoint a “medical authority.” To some extent, Lofgreen’s
“rebuttal” report picked at Eiser’s opinions.
Analysis
The proposed “rebuttal” expert opinions are not truly rebuttal evidence. Both
Grametbaur and Lofgreen primarily espouse new opinions for the first time that
attempt to bolster Plaintiff’s case in chief or simply pile on additional opinions in
support of Plaintiff’s initial expert opinions. These reports are not rebuttal expert
opinions. Instead, they are merely untimely and addition initial expert reports.
Accordingly, the opinions do not comply with this Court’s orders.
Having determined that Lofgreen’s and Grametbauer’s “rebuttal” opinions
are contrary to this Court’s orders and Rule 26(a)(2)(D), this Court must determine
(a) whether good cause has been shown pursuant to the Standing Order to allow the
additional expert opinions and (b) whether the reports should be stricken as a
sanction under Rule 37. See generally Fed. R. Civ. P. 37. Rule 37(c) bars untimely
reports unless the reports’ proponent can establish that the failure to provide the
reports was substantially justified or harmless. Fed. R. Civ. P. 37(c). Plaintiff has
failed to address either of these issues. Instead, Plaintiff only argued that the
reports were proper rebuttal expert opinions. Accordingly, Plaintiff has not met her
burden under either the Standing Order or Rule 37. Nevertheless, the Court notes
that in exercising its discretion to strike these reports, it considers the following
facts. This case is a 2011 case; it is old. Allowing the new opinions would add more
delay to a case already besieged with delays, adding further costs to the case
because the Court would need to provide an opportunity to depose these experts and
provide Defendants a chance to provide experts to respond to those new expert
opinions. Plaintiff offered no new evidence that caused the new opinions from
Lofgreen and Grametbaur; nothing new came to light necessitating these new and
untimely opinions. No reason has been presented showing why the opinions in
Grametbaur’s and Lofgreen’s responsive report could not have been contained in the
initial expert reports. Finally, Plaintiff will not be prejudiced by barring these
reports. Plaintiff was given the opportunity to present expert witness opinions and
did so; Plaintiff is just being prevented from improperly attempting to bolster
previous opinions or presenting new opinions in the guise of rebuttal.

5

CONCLUSION
It is this Court’s Report and Recommendation that Defendants’ motions to
strike be granted. (Dkt. ##298, 300.) Plaintiff’s proffered “rebuttal opinions” are
not, in substance, rebuttal opinions; instead, the opinions simply attempt to bolster
opinions to support Plaintiff’s case in chief or add entirely new opinions that do not
contradict Defendants’ experts’ opinions.
Any objection to this Report and Recommendation is due September 20, 2016.
The failure to timely object may result in waiver.

Entered: September 2, 2016

By:

6

__________________________
Iain D. Johnston
U.S. Magistrate Judge