IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION 

EDWARD HOLMES, ) 

 ) 

 Plaintiff, ) 

 ) 02 C 7266 

 v. ) 

 ) Judge Brown 

DR. KUL SOOD, ) 

 ) 

 Defendant. ) 

DEFENDANT’S SECOND MOTION IN LIMINE BARRING EXPERT OPINION 

TESTIMONY WHICH HAS NOT BEEN DISCLOSED PURSUANT TO RULE 

26(A)(2) AND THIS COURT’S STANDING ORDER

 Defendant, DR. KUL SOOD, by his attorneys, CHARYSH & SCHROEDER, LTD., 

moves this Honorable Court to enter an order in limine barring plaintiff, his counsel and/or 

any witness from questioning, arguing, mentioning or referring in any way, or introducing 

into evidence undisclosed expert opinion testimony under Rules 702, 703 or 705 of the 

Federal Rules of Evidence and in support thereof states: 

 1. Pursuant to Rule 26(a)(2) of the Federal Rules of Civil Procedure a party shall 

disclose the identity of any person who may be used to present evidence under Rules 702, 

703 or 705 of the Federal Rules of Evidence. 

 2. Rules 702, 703 and 705 govern the admission into evidence of testimony of 

experts, the bases of opinion testimony by experts and the disclosure of facts or data 

underlying expert opinion. (FRE 702, 703 and 705) 

 3. This Court’s Standing Order as to Expert Disclosure and Discovery further 

provides that treating physicians must be identified pursuant to Rule 26(a)(2)(A) but waives 

the report requirement for Rule 26(a)(2)(B) as long as the testimony of the treating physician 

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is limited to a description of the symptoms presented to the physician; a description of the 

records or other information relied on to provide treatment; any diagnosis made for purpose 

of treatment; and a description of any treatment prescribed or provided. 

 4. The court’s standing order further provides that any disclosure pursuant to 

Rule 26(a)(2)(A) shall specifically designate the witness as a person who will provide 

testimony under Rule 702, 703, or 705 and if the witness is not subject to the report 

requirement of the rules the disclosure shall include a written statement containing a 

complete statement as to all expert opinions to be expressed by that witness. 

 5. On May 14, 2004 plaintiff disclosed that he intended to call two expert 

witnesses; Dr. Franklin and Dr. Himmelman. (See plaintiff’s May 14, 2004 disclosure 

attached hereto as Exhibit A) 

 6. Prior to this disclosure , a joint motion to amend the discovery schedule was 

filed on February 9, 2004, in which plaintiff states that he has disclosed to defendants that he 

intends to call the treating physicians to testify only as treaters and not to give testimony on 

causation, prognosis and future impact subject to Rule 26(a)(2). (See joint motion attached 

hereto as Exhibit B) 

 7. It is anticipated that plaintiff will claim this February 9, 2004, motion satisfies 

the requirements of Rule 26(a)(2)(a) as well as this Court’s Standing Order with regard to 

any medical personnel plaintiff plans to call beyond Dr. Franklin and Dr. Himmelman. 

 8. In the final pretrial order plaintiff indicates he will call Dr. Sood, and may call 

Julie McCabe (a social worker), Christine Keenan, Dottie Clark, Mary Jo O’Sullivan, John 

Petrocelli, Cindy Boston and Carleen Sloan (all of whom are nurses), and Dr. Darbandi and 

Dr. Rotnicki (both medical doctors) as witnesses at trial. 

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 9. While plaintiff may claim that the February 9, 2004 motion satisfies the 

requirement of Rule 26(a)(2)(A) as disclosing his intention to call plaintiff’s treating 

physicians, he had never, prior to the Final Pretrial Order disclosed which of his numerous 

treating physicians he planned on calling. Plaintiff also did not provide any indication as to 

which time period these treating physicians might come from, i.e. before plaintiff’s 

incarceration, during his incarceration, or after his incarceration. 

 10. In plaintiff’s answers to interrogatories plaintiff identified three physicians or 

surgeons, Dr. Mukanda, Dr. Darbandi, and Dr. Marwana. In plaintiff’s Rule 26(a)(1) 

disclosure he further disclosed Dr. Y. Shaw as his physician. Plaintiff’s medical records 

from Silver Cross hospital (totaling 10 volumes) also indicate the following physicians could 

be considered plaintiff’s “treaters:” Dr. Pethkar, Dr. Hashim, Dr. Castro, Dr. Abbasi, Dr. 

Mikolajczak, Dr. Nagarkatte, Dr. Gadde, Dr. Zambrano, Dr. Hamad, and Dr. Tyler among 

numerous other doctors who saw or treated plaintiff in his long and complicated medical 

history. 

 11. Without plaintiff specifically identifying which ‘treaters’ plaintiff planned on 

calling as witnesses his February 9, 2004 ‘disclosure’ amounts to no disclosure at all. As can 

be seen above plaintiff’s medical history does not include one or two treating physicians, but 

many doctors who could provide numerous opinions as to plaintiff’s health and treatment. 

 12. By failing to provide defendant with the names of the doctors whom he 

planned to call as witnesses defendant was left to guess which doctors he actually planned to 

call as witnesses. No doubt this is the reason Rule 26(a)(2)(A) and this court’s standing 

order requires a party to “identify” the physicians a party plans to call as witnesses. 

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 13. Even if the joint motion satisfied the “identify” requirement of Rule 

26(a)(2)(A) and this court’s order, plaintiff has completely failed to provide a written 

statement containing a complete statement as to all of the expert opinions expressed by that 

witness. 

 14. Pursuant to Rule 37 of the Rules of Civil Procedure the appropriate sanction 

for failure to disclose pursuant to Rule 26(a) is to bar the witness at trial unless the failure is 

harmless. Musser v. Gentiva Health Services, 356 F.3d 751 (7th Cir. 2004) 

 15. In the present case it would have presented an incredible hardship to attempt 

to depose all of plaintiff’s treating physicians, in fact the deposition of Dr. Rotnicki has not 

even been taken. As such plaintiff’s failure to disclose was not harmless and therefore 

plaintiff should not be allowed to call any of plaintiff’s treating physicians which were not 

properly disclosed and for which plaintiff did not provide a written statement regarding their 

testimony, including Dr. Rotnicki, Dr. Darbandi, and Dr. Sood. 

 16. Further plaintiff failed to disclose his intention of calling any of the nurses 

listed above. While plaintiff may claim that the testimony of the nurses are not “expert 

opinions” and therefore not subject to the disclosure requirement of Rule 26(a)(2)(A), what 

other evidence or testimony are these nurses to provide? The only relevant testimony would 

be based on the scientific, technical and specialized knowledge the nurses possess to assist 

the trier of fact in understanding the issues in this case. (See FRE 702) 

 17. The same is true as to the Social Worker McCabe. Plaintiff has not identified 

what this witness is going to testify to. But what facts could she offer without offering 

opinions based upon her experience as a social worker and in the jail system? As such, the 

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only relevant testimony of this witness should be barred by the failure to disclose her as an 

expert and the failure to disclose the substance of her testimony. 

 18. Again, plaintiff failed to provide any written statements containing all of the 

opinions to be expressed by the nurses. As with the treating physicians, an appropriate 

sanction for failure to disclose the identity of the nurses as witnesses and further for the 

plaintiff’s failure to provide a written statement containing a complete statement as to the 

opinions the witnesses will provide is to bar the plaintiff from using the evidence at trial. 

(FRCP 37(c)(1)) 

 19. With regard to the nurse witnesses identified by the plaintiff in the Final 

Pretrial Order, Christina Keenan was not deposed. As such plaintiff should not be allowed to 

call his nurses as witnesses to provide expert opinion testimony. 

 20. Further, as plaintiff’s disclosed expert, Dr. Franklin, relied upon an affidavit 

of Keenan in coming to his opinions he should further be barred from using this affidavit, as 

to allow plaintiff’s disclosed expert witness to rely upon an affidavit containing the opinions 

of an undisclosed expert would allow plaintiff to benefit from this evidence notwithstanding 

his violation of the Rule 26(a)(2)(A) requirements as well as this Court’s own standing order. 

 21. On March 21, 2006, at approximately 3:00 p.m., Amanda Antholt and 

Michael Kanovitz, counsel for plaintiff and Michael Charysh and Richard Tjepkema met in 

person, at the law offices of Charysh & Schroeder, and attempted in good faith to resolve 

differences related to this motion but were unable to reach an accord. 

 WHEREFORE, Defendant respectfully requests this Honorable Ccourt enter an order 

in limine prohibiting plaintiff from presenting any evidence from Dr. Sood, Dr. Darbandi, Dr. 

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Rotnicki, social worker McCabe, and nurses Keenan, Clark, O’Sullivan, Petrocelli Sloan and 

Boston, and such other relief as the court deems just and proper. 

 

 CHARYSH & SCHROEDER, LTD. 

 

 _/s/ Michael J. Charysh___________

Michael J. Charysh (ARDC 6187455) 

CHARYSH & SCHROEDER, LTD. 

33 North Dearborn Street, Suite 1300 

Chicago, Illinois 60602 

(312) 372-8338 

Case: 1:02-cv-07266 Document #: 102 Filed: 03/27/06 Page 6 of 7 PageID #:691
CERTIFICATE OF SERVICE

 The undersigned attorney certifies that he served a copy of the foregoing documents on 

all attorneys of record via electronic notification to EFC participants, and by U.S. Mail to nonEFC participants at their respective addresses by depositing copies of same with proper postage 

prepaid in the U.S. Mail at 33 North Dearborn Street, Chicago, Illinois at or before 5:00 p.m. on 

March 27, 2006. 

 

 By: /s/ Michael J. Charysh__

 Attorney for Defendant 

SERVICE LIST: 

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