Queen v. W.I.C., Inc. et al

Filing 207

ORDER re 167 MOTION in Limine, 168 MOTION in Limine, 168 MOTION in Limine, 169 MOTION in Limine, 170 MOTION in Limine, 171 MOTION in Limine, 172 MOTION in Limine, 173 MOTION in Limine, 174 MOTION in Limine, 175 MOTION in Limine, 176 MOTION in Limine, 177 MOTION in Limine, 178 MOTION in Limine, 179 MOTION in Limine, 180 MOTION in Limine, 198 MOTION in Limine and 204 MOTION in Limine. See Order for details. Signed by Judge David R. Herndon on 9/22/2017. (lmp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JORDAN QUEEN
Plaintiff,
vs.

Case No. 14-CV-519-DRH-SCW

W.I.C., INC. d/b/a
SNIPER TREESTANDS,
Defendant.
MEMORANDUM AND ORDER
HERNDON, District Judge:
Pending before the Court are nine motions in limine filed by defendant WW
Industrial Corp., (Docs. 167-175) and seven motions in limine filed by plaintiff
Jordan Queen and (Docs. 176-180; 198; 204).
Defendant and plaintiff both seek preclusion of specific evidence and
barring of specific testimony pursuant to FEDERAL RULES

OF

EVIDENCE 401, 402,

and 403. Rule 401 holds evidence is relevant if it “has any tendency to make a
fact more or less probable than it would be without the evidence.” Fed.R.Evid.
401.

Further, relevant evidence is admissible unless a binding rule holds

otherwise, while irrelevant evidence is inadmissible. See Fed.R.Evid. 402. Lastly,
“[t]he court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Fed.R.Evid. 403.
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The Court now turns to the pending motions, and hereby finds as follows:
1. Defendant’s First Motion i n Limine to Exclude Evidence or Testimony
Regarding Future Surgery (Doc. 167)
Defendant first requests that plaintiff be prohibited from offering any
evidence, testimony, opinions, or argument regarding future surgery. Defendant
argues that plaintiff’s attorneys are expected to argue that plaintiff needs a future
ankle fusion surgery based on life care planner Santo Steven BiFulco’s testimony
that surgery is “probable”. Defendant goes on to argue that Dr. Gardner, an
orthopedic surgeon and plaintiff’s treating physician, was unable to state “whether
Mr. Queen is in that 5 percent” of patients who require a future ankle fusion
surgery or not. Based on Dr. Gardner’s testimony and that of Dr. Miller—the
doctor who took over plaintiff’s care after Dr. Gardner moved to California—
defendant argues that “a 5% chance for surgery… is nowhere near the reasonable
certainty necessary to render evidence or testimony regarding that surgery
admissible.” (Doc. 167).
In response, plaintiff argues that Dr. Gardner’s actual testimony reflects
that fusion surgery is presently medically directed at plaintiff’s election, taking
into consideration a risk-benefit assessment of the surgery (Doc. 181). Plaintiff
also argues that Dr. Gardner did not indicate that there is only a 5% chance that
plaintiff will need the future ankle fusion surgery. Plaintiff instead argues that Dr.
Gardner did not offer his opinion specific to Mr. Queen, but instead it pertained
to the percentage of the overall population of individuals with post-traumatic
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arthritis who ultimately have an ankle fusion. Upon review, the Court GRANTS
in part and DENIES in part the motion. Defendant’s motion is granted as to
BiFulco's testimony, because he is not qualified to testify to plaintiff’s need for
future surgery, but denied as to Dr. Gardner and Dr. Miller’s testimony, which is
clearly relevant to the issue at hand. Resolution of the doctors’ credibility or the
correctness of his or her theories is left to the jury’s determination after opposing
counsel has cross-examined the expert at issue. Smith v. Ford Motor Co., 215
F.3d 713, 719 (7th Cir. 2000).
2. Defendant’s Second Motion i n Limine to Prohibit Plaintiff from
Offering Evidence or Testimony Regarding Unpaid Medical Bills (Doc.
168)
Defendant next requests that plaintiff be prohibited from offering evidence
or testimony regarding unpaid medical bills (Doc. 168). Defendant argues that in
Illinois, medical bills are admissible only if a plaintiff can prove the charges were
necessarily incurred due to the defendant’s negligence, and that the charges were
reasonable. Arthur v. Catour, 833 N.E.2d 847, 853 (Ill. 2005). For unpaid
medical bills, a plaintiff establishes necessity and reasonableness “by introducing
the testimony of a person having knowledge of the services rendered and the
usual and customary charges for such services.” Klesowitch v. Smith, 52 N.E.3d
365, 376 (Ill.App. 1st Dist. 2016) (quoting Arthur, 833 N.E.2d at 853).
Here, plaintiff intended to rely on life care planner Santo Steven BiFulco to
testify that plaintiff’s “past medical treatment in relation to the accident has been
reasonable and necessary and the associated medical charges are usual and
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customary” (Doc. 168). However, based on the Court’s September 5, 2017, Order
excluding the report and testimony of Dr. Santo Steven BiFulco (Doc. 200), the
Court GRANTS the motion as to BiFulco. However, if plaintiff has another expert
who testified in a qualified way about the bills, evidence regarding the medical
bills is permissible. 1 If, in the alternative, plaintiff does not have a witness who
can testify about the bills, and said bills are in fact unpaid, the unpaid bills are
excluded.
3. Defendant’s Third Motion i n Limine to Prohibit Santo Steven Bifulco
From Providing an Independent Diagnosis of or Prognosis for Plaintiff
that is not Contained in Plaintiff's Medical Records (Doc. 169)
Defendant’s third motion seeks to prohibit plaintiff’s life care planner Santo
Steven BiFulco from providing any independent diagnoses or prognoses for
plaintiff that are not contained in plaintiff’s medical records (Doc. 169). In light of
the Court’s September 5, 2017, Order excluding the report and testimony of Dr.
Santo Steven BiFulco (Doc. 200), the Court DENIES as moot Defendants’ motion

in limine.
4.

Defendant’s Fourth Motion in Limine to Allow Plaintiff's Treating
Physician Anna N. Miller, M.D.'s Videotaped Testimony to be Played at
Trial (Doc. 170)
Defendant’s fourth motion seeks an Order allowing plaintiff’s treating

physician Dr. Anna N. Miller to testify via videotaped deposition at trial.
Specifically, defendant argues that Dr. Miller’s professional responsibilities
constitute ‘exceptional circumstances’, and there is no reason to prohibit her from
The Court addresses plaintiff’s permissive motion in limine regarding proposed witnesses
testimony addressing usual and customary charges for medical bills below.
1

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testifying via videotaped deposition, in light of the disruption to her busy schedule
seeing patients or performing surgery. Defendant also notes that plaintiff’s
attorney was able to cross-examine Dr. Miller at her deposition and asked nothing
that would indicate plaintiff is challenging Dr. Miller’s credibility. In the
alternative, defendant notes that even if Dr. Miller’s credibility were being
challenged, her deposition was videotaped, thereby enabling jurors to observe her
mannerisms and voice to determine her credibility.
Plaintiff opposes the motion contending that the doctor's busy schedule
does not constitute exceptional circumstances and that hardship has not been
established for this witness (Doc. 189). As noted by the defendant, “Courts are
sharply split on the circumstances under which a physician's professional
responsibilities

may

constitute

‘exceptional

circumstances,’

justifying

the

admissibility of his or her deposition even when the witness is within the
subpoena power of the court.” McDaniel v. BSN Med., Inc., 2010 WL 2464970, at
*3 (W.D. Ky. June 15, 2010)(McKinley, Jr., J). However, under the facts of this
case, the Court finds that there is sufficient evidence to constitute exceptional
circumstances, specifically looking to Dr. Miller’s schedule and the inconvenience
to both her and her patients who would have their medical care disrupted by
cancelled appointments. Thus, the Court GRANTS Defendants’ motion in limine,
such that Dr. Miller’s video deposition testimony may be used at trial.
5. Defendant’s Fifth Motion i n Limine to Exclude Evidence, Testimony,
Opinions, or Argument that Plaintiff's Future Medical Expenses Exceed
the Affordable Care Act's Maximum Annual Out-of-Pocket Expenditure
Limit (Doc. 171)
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Defendant’s fifth motion in limine seeks to prohibit plaintiff from offering any
evidence, testimony, opinions, or argument that plaintiff’s future medical
expenses exceed the Affordable Care Act’s (“ACA”) maximum annual out-of-pocket
expenditure limit (Doc. 171). Specifically, defendant’s motion addresses the
projected medical expenses included in BiFulco’s life care plan. In light of the
Court’s September 5, 2017 Order excluding the report, conclusions and testimony
of Dr. Santo Steven BiFulco (Doc. 200), the Court DENIES as moot defendants’
motion in limine.
6. Defendant’s Sixth Motion i n Limine to Exclude Evidence, Testimony,
Opinions, or Argument Suggesting Plaintiff's Refusal to Obtain Medical
Treatment is Because of an Inability to Pay (Doc. 172)
Defendant’s sixth motion in limine seeks to prohibit plaintiff from offering any
evidence, testimony, opinions, or argument suggesting plaintiff’s failure to obtain
medical treatment between October 23, 2014, and December 19, 2016, was due
to an inability to pay. Defendant is concerned that plaintiff might suggest the
reason for not receiving treatment between the aforementioned dates was due to
his inability to afford treatment. In response, plaintiff argues that “defendant
wishes to argue that plaintiff has not received all the treatment that has been
recommended for him because it was not needed.” However, “[d]efendant
recognizes in doing so it is opening the door to evidence of a plaintiff’s inability to
pay under Seventh Circuit precedent.” Van Bumble v. Wal-Mart Stores, Inc., 407
F.3d 823, 826-27 (7th Cir. 2005) (Doc. 187).

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The Seventh Circuit Court is clear that evidence regarding a plaintiff’s financial
situation or inability to pay for medical treatment is prejudicial to a jury’s
damages calculation, and therefore inadmissible. Van Bumble v. Wal-Mart Stores,

Inc., 407 F.3d 823, 826-27 (7th Cir. 2005). Van Bumble involves a slip-and-fall
case, where the court found that the plaintiff's financial condition was irrelevant
and inadmissible as it would prejudice a jury's damages finding.
Defendant argues that Van Bumble is no longer good law following
implementation of the Affordable Care Act. More specifically, defendant argues
that it “cannot open the door to evidence suggesting Queen might not be able to
afford BiFulco’s life care plan items in light of the fact Queen is required to carry
insurance that will pay for those items.” (Doc. 172). However, the Court notes
that the Seventh Circuit and the United States Supreme Court are the only
judicial bodies that can make such a declaration regarding the validity of the Van

Bumble opinion in light of the Affordable Care Act’s implementation. Therefore,
the Court DENIES defendants’ motion in limine.
7. Defendant’s Seventh Motion i n Limine to Bar Plaintiff's Treating
Physicians' Testimony (Doc. 173)
Defendant’s seventh motion in limine seeks to prohibit plaintiff’s treating
physicians from testifying at trial or, in the alternative, limiting the scope of their
testimony to the subject matter contained in their medical records. Specifically,
defendant points out that Dr. Gardner, Dr. Ricci, Dr. Schutzenhofer, and the
unnamed persons from SSM Health Care, Barnes Jewish Hospital, St. Mary’s
Hospital, and Washington University School of Medicine “may testify regarding the
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treatment of Plaintiff Jordan Queen, as well as his diagnoses and prognoses.”
(Doc. 140-5). Defendant goes on to argue that plaintiff’s “treating physician expert
disclosures that simply refer to medical records and nonexistent deposition
testimony, and that do not provide specifics as to which health care provider will
testify about which aspect of Queen’s treatment, are deficient and do not comply
with Fed.R.Civ.P. 26(a)(2)(C).” (Doc. 173). In response, plaintiff highlights that
Dr. Gardner, was deposed on March 24, 2017, with leave of Court for the specific
purpose of preserving the testimony for trial on account of him having left the St.
Louis region. Dr. Miller’s video deposition testimony was also taken for use
during the trial. Furthermore, plaintiff notes that he does not believe that Dr.
Gardner’s and Dr. Miller’s deposition testimony is the aim of the pending motion,
but instead believes the motion applies to treaters or personnel, including Dr.
Ricci, Dr. Schutzenhofer and “individuals not specifically identified from the
various entities that have treated Plaintiff.” Plaintiff goes on to state that he does
not anticipate calling Dr. Ricci or Dr. Schutzenhofer, or any other employees of
those entities that treated plaintiff during trial.
Upon review, the Court GRANTS in part and DENIES in part defendant’s
motion. Plaintiff’s treating physicians, who have not rendered reports, will be
limited to testimony within their personal knowledge concerning initial
observations, diagnosis and treatment, as reflected in medical records. See

Musser v. Gentiva Health Servs., 356 F.3d 751, 757 (7th Cir.2004), Meyers v.
National R.R. Passenger Corp. (Amtrak), 619 F.3d 729 (7th Cir. 2010). Any
Page 8 of 17

opinions that are not contained in the medical records or a Rule 26 report are
barred.
8. Defendant’s Eighth Motion i n Limine to Exclude Evidence, Testimony,
Opinions, or Argument Concerning Whether it May Have Insurance
(Doc. 174)
Defendant’s eighth motion in limine seeks to prohibit plaintiff from offering
any evidence, testimony, opinions, or argument concerning whether defendant
may have insurance. In his response, plaintiff does not object to defendant’s
motion in limine because “plaintiff does not intend on bringing up insurance
absent defendant opening the door or otherwise making insurance relevant.” (Doc
185). Thus, the Court treats this motion in limine as agreed and GRANTS the
motion.
9. Defendant’s Ninth Motion in Limine to Exclude Evidence, Testimony,
Opinions, or Argument in Front of the Jury that WW Industrial Corp.
Engaged in Wrongful Conduct During Discovery (Doc. 175)
Defendant’s ninth motion in limine seeks to prohibit plaintiff from offering any
evidence, testimony, opinions, or argument in front of the jury that WW Industrial
engaged in wrongful conduct during discovery. In his response, plaintiff does not
object to defendant’s motion in limine because “plaintiff does not intend on
bringing up that WW Industrial Corp. engaged in wrongful conduct during
discovery absent defendant opening the door or otherwise making the issue
relevant” (Doc 186). Thus, the Court treats this motion in limine as agreed and
GRANTS the motion.

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10. Plaintiff’s First Motion i n Limine to Exclude Evidence or Argument as
to Liability, To Include Contributory Fault (Doc. 176)
Plaintiff’s first motion in limine seeks to preclude any evidence, argument, and
inference of issues of liability, to include contributory fault. In its response,
defendant does not object to plaintiff’s first motion in limine (Doc 196), as
defendant understands that the Court has determined trial will be on damages
only. Defendant notes that it “does not intend to offer evidence, argument, or
inference regarding liability or contributory fault issues unless plaintiff opens the
door to such evidence, argument, or issues.” (Id.). Thus, the Court treats this
motion in limine as agreed and GRANTS the motion.
11. Plaintiff’s Second Motion in Limine to Exclude Evidence of Collateral
Sources of Funds (Doc. 177)
Plaintiff’s second motion in limine moves, pursuant to the collateral source
rule, to preclude all evidence of collateral sources of funds used to pay plaintiff’s
medical expenses. Specifically, plaintiff argues that the collateral source rule does
not allow for the amount of damages a plaintiff may be awarded to be decreased
by the amount of payments received from an independent, collateral source in
connection with his injury. See, e.g., E.E.O.C. v. O'Grady, 857 F.2d 383, 389–90
(7th Cir. 1988). In response, defendant requests permission to offer evidence that
“Queen carries insurance through his employer, and that his medical bills might
have been paid by that insurance in the event Queen, his attorneys, or his
witnesses open the door to such evidence by suggesting Queen does not have the
financial wherewithal to pay for BiFulco’s recommended treatment” (Doc. 195).

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Under the collateral source rule, the “benefits received by the injured party
from a source independent of, and collateral to, the tortfeasor will not diminish
damages otherwise recoverable from the tortfeasor.” Sterling Radio Stations, Inc.

v. Weinstine, 765 N.E.2d 56, 61 (Ill.App.Ct.2002)(explaining that “[t]he rationale
behind this rule is that a wrongdoer should not benefit from expenditures made
by the injured party, or take advantage of contracts or other relations which exist
between the injured party and third persons”). The collateral source rule holds
that a tort victim's damages shall not be reduced merely because all or part of his
loss is covered by insurance or some other source of compensation. Thomas v.

Shelton, 740 F.2d 478 (7th Cir. 1984); see also Wills v. Foster, 892 N.E.2d 1018,
1022-23 (Ill. 2008). Thus, Arthur explained that a plaintiff is entitled to recover
as compensatory damages the reasonable expense of necessary medical care
resulting from a defendant's negligence, even if the plaintiff's insurance has
already paid a lesser amount for such services. Id. at 852–53 (emphasis added).
As to the collateral sources of payment, the Court fails to see any relevance of
these collateral sources of funds to the issues at hand. Further, evidence of such
payments will be inadmissible at trial because the evidence's probative value, if
any, “is substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury....” Fed.R.Evid. 403. Therefore, the Court
GRANTS plaintiff's motion in limine as to evidence of collateral sources of funds
for the payment of plaintiff’s medical expenses.

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12. Plaintiff’s Third Motion i n Limine to Exclude Evidence or Argument
that a Judgment in Favor of Plaintiff Would Create a Financial
Hardship for Defendant WW Industrial Corp (Doc. 178)
Plaintiff’s third motion in limine seeks to exclude any evidence or argument
that a judgment in favor of the plaintiff would create a financial hardship for
defendant. The Court agrees that such evidence and argument is not relevant and
would only appeal to the sympathy of the jury. Any probative value is far
outweighed by unfair prejudice. See Fed.R.Evid. 403. In its response, defendant
does not oppose plaintiff’s motion in limine (Doc. 196), Thus, the Court treats
this motion in limine as agreed and GRANTS the motion.
13. Plaintiff’s Fourth Motion in Limine to Exclude Argument that Plaintiff
is Seeking More Money Than He Expects to Win (Doc. 179)
Plaintiff’s fourth motion in limine seeks to exclude from evidence any
argument by the defendant that plaintiff is seeking more money than he expects to
win. The Court agrees that statements regarding why plaintiff filed this lawsuit are
of little or no probative value, and the argument that plaintiff is seeking more
money than he expects to win is improper. See Rebolledo v. Herr-Voss Corp., 101
F. Supp. 2d 1034, 1036 (N.D. Ill. 2000)(Alesia, J.) citing Kallas v. Lee, 22 Ill. App.
3d 496, 317 N.E.2d 704 (1974). Thus, the Court treats this motion in limine as
agreed and GRANTS the motion.
14. Plaintiff’s Fifth Motion in Limine to Preclude Defendant from
Questioning Witnesses Regarding Future Surgery Without Foundation
for Condition Predicate (Doc. 180)
Plaintiff’s fifth motion in limine seeks to preclude defendant from questioning
witnesses about plaintiff’s need for future surgeries without foundation for
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condition predicate. Specifically, plaintiff argues that defendant should not be
permitted to ask questions premised on an unsupported opinion that plaintiff
only faces a 5% chance of needing ankle fusion surgery. In response, defendant
argues that its attorneys should not be prohibited from asking other witnesses
about Dr. Gardner’s 5% probability for future surgery opinion “when Queen’s
counsel is unable to provide any alternative percentage and has only himself to
blame for doing nothing to clarify whether Dr. Gardner’s percentage applied to
Queen.” (Doc. 191). Based on the way the questions about future surgery were
framed, the Court finds that it is a fair inquiry to make. Resolution of the dispute
regarding the probability for future surgery goes to weight of the evidence, and is
left to the jury’s determination after opposing counsel has cross-examined the
expert at issue. Smith v. Ford Motor Co., 215 F.3d 713, 719 (7th Cir. 2000).
Therefore, Court DENIES plaintiff’s fifth motion in limine.
15. Plaintiff’s Sixth Motion in Limine to Exclude Evidence or Argument
Evoking Prejudice Toward Hunters and Gun Owners (Doc. 198)
Plaintiff’s sixth motion in limine seeks to exclude evidence or argument that
evokes prejudice toward hunters and gun owners. Specifically, plaintiff anticipates
that defendant will attempt to introduce evidence or make arguments that convey
or suggest that hunting is cruel to animals and that gun ownership is immoral.
This issue came about following plaintiff’s interpretation of a Facebook photo of
the plaintiff, following a day out hunting, where he is pictured with a coyote and
his hunting rifle (Doc. 198-1). Defendant disclosed said photo as a possible trial
exhibit.
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In response, defendant first notes that “WW Industrial distributes treestands,
climbing systems, blinds, and other equipment and accessories for hunters to use
while hunting. Were WW Industrial to argue hunters are cruel to animals or
immoral or that gun ownership is a societal problem, it would impugn its entire
customer base.” (Doc. 199). Defendant goes to on argue that the photo is a critical
piece of evidence that should be admitted at trial based on responses Queen gave
during his December 30, 2014, deposition. Specifically, Queen was asked what he
“physically could do before [his] accident that either [he] can’t do now or that
[he’s] limited in doing.” (Doc. 199-1). In response, Queen testified his ankle “limits
me in almost everything I do. Like I said, walking, jogging, coaching, sports,
hunting, fishing. You can’t stand on a pond bank or something that I would, you
know, typically do. I have to sit down. Like I said, working.” (Id.).
Upon review of the motions and deposition, the Court DENIES plaintiff’s
motion as posed to the Court, because the photo at issue is a matter that is the
subject of potential impeachment. Fed.R.Evid. 403 does not prohibit use of such
evidence for impeachment purposes during trial. However, the Court notes that
evidence used to simply disparage hunters and gun owners, generally, would not
be relevant and will not be allowed.
16. Plaintiff’s Seventh Motion in Limine regarding Usual and Customary
Charges for Medical Bills (Doc. 204)
Following defendant’s motion in limine regarding the unpaid medical bills
(Doc. 168), which was addressed above, and the Court’s September 5, 2017,

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Order excluding the report and testimony of Santo Steven BiFulco (Doc. 200),
plaintiff filed the pending motion in limine seeking permission from the Court to
allow recently disclosed designees of the respective treatment providers to testify
regarding plaintiff’s medical bills in order to show that the bills reflect the usual
and customary charges. Alternatively, plaintiff seeks to allow BiFulco’s limited
opinion in this regard. First, based on the Court’s September 5, 2017 Order (Doc.
200), and the rationale set forth above, BiFulco is not permitted to offer an
opinion regarding plaintiff’s medical bills.
Looking now to the proposed designees of the respective treatment
providers, plaintiff specifically seeks an Order permitting the designees of the
treatment providers to testify, who previously executed supporting affidavits, to
establish that plaintiff’s medical bills reflect usual and customary charges (Doc
204-1). Defendant opposes plaintiff’s motion and argues that plaintiff fails to show
how the proposed records custodians are qualified to testify as to whether
plaintiff’s medical bills were reasonable and customary (Doc. 205). Defendant also
opposes the motion arguing that the proposed records custodians are untimely
supplemental expert witness disclosures proposed well after the expert disclosure
deadline and after the Final Pretrial Order was entered. See Anderson v. Procter

& Gamble Paper Prod. Co., 2013 WL 5651802, at *3 (E.D. Wis. Oct. 15,
2013)(Griesbach, C.J.)(“ It would be unfair under such circumstances to require
the Defendant to spend time and energy the week prior to trial to accommodate a
proceeding that could have occurred at any time in the last several years.”)

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“The rules regarding the admissibility of evidence of medical expenses and
the burden of proving medical expenses are well established. In order to recover
for medical expenses, the plaintiff must prove that he or she has paid or become
liable to pay a medical bill, that he or she necessarily incurred the medical
expenses because of injuries resulting from the defendant's negligence, and that
the charges were reasonable for services of that nature.” Arthur v. Catour, 216 Ill.
2d 72, 82, 833 N.E.2d 847, 853 (2005); Baker v. Hutson, 333 Ill.App.3d 486, 266
Ill.Dec. 791, 775 N.E.2d 631, 637–38 (Ill.App.Ct.2002). For purposes of
recovering medical expenses in personal injury action, “a party seeking the
admission into evidence of a bill that has not been paid can establish
reasonableness of the bill by introducing the testimony of a person having
knowledge of the services rendered and the usual and customary charges for such
services. Once the witness is shown to possess the requisite knowledge, the
reasonableness requirement necessary for admission is satisfied if the witness
testifies that the bills are fair and reasonable.” Baker, 333 Ill. App. 3d 486, 775
N.E.2d 631 (2002) citing Diaz v. Chicago Transit Authority, 174 Ill.App.3d 396,
123 Ill.Dec. 853, 528 N.E.2d 398 (1988). See also Arthur, 216 Ill. 2d at, 82, 833
N.E.2d at 853–54. Furthermore, expert testimony is required to establish that
each unpaid medical bill is a “usual and customary” charge for such service, given
that the average layperson does not have knowledge of the rates charged for

Page 16 of 17

medical

services

in

a

particular

area.

See

Fed.R.Evid.

702;

Battle v.

O'Shaughnessy, 2012 WL 4754747, at *4 (N.D. Ill. Oct. 4, 2012)(Lefkow, J);
Haack v. Bongiorno, 2011 WL 862239, at *6–7 (N.D.Ill. Mar.4, 2011)(Nolan, J.);
Kunz v. Little Co. of Mary Hosp. & Health Care Cntrs., 869 N.E.2d 328, 338, 373
Ill.App.3d 615, 311 Ill.Dec. 654 (Ill.App.Ct.2007).
The Court notes that that plaintiff’s proposed designees—Shelly Cooper,
Amy Knolhoff, Charles Heidel, Tanya Ramierz, Alicia Bell, and Pamela Adams—
are records custodians not qualified as experts in this case. Paintiff has failed to
show that each possesses the requisite knowledge regarding the “usual and
customary” charges for medical services. Thus, they may only testify as to what
records are in the file, not to what medical expenses plaintiff necessarily incurred
because of injuries resulting from the defendant's negligence, or what is a “usual
and customary” charge. Therefore, the Court DENIES plaintiff’s seventh motion in

Digitally signed by
Judge David R.
Herndon
Date: 2017.09.22
10:57:06 -05'00'

limine.
IT IS SO ORDERED.

United States District Court Judge

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