not specifically identified by plaintiff as an expert witness in pretrial discovery and no expert

Teport was provided pursuant to Rule 26(a)(2).

Via concedes that Dr. Sullivan will be giving what amounts to expert testimony — as he
did not examine or treat the child - but says that any failure on her counsel’s part to make the
proper disclosure is harmless and should not lead to the exclusion of Dr. Sullivan. Federal Rule
of Civil Procedure 37(c)(1) provides that “[a] party that without substantial justification fails to
disclose information required by Rule 26(a) . . . is not, unless such failure is harmless, permitted
to use as evidence at a trial, at a hearing, or on a motion any witness or information not so
disclosed.”

The Court concludes that Via’s failure to make the proper disclosure is, in fact, harmless,
for several reasons. First, Via did disclose, in her Rule 26(a)(1) disclosures, the fact that she
intends to call Dr. Sullivan as a witness, as well as the subject of his testimony ~ namely, the
condition of the child. Second, there was no mystery to defendants, or to anyone else for that
matter, regarding the particulars of Dr. Sullivan's testimony; as a non-treating physician, the only
possible thing about which he can testify concerns the conclusions he drew after reviewing the
child’s medical records. Third, defendants themselves disclosed Dr. Sullivan as a witness in
their own Rule 26(a)(1) disclosures, meaning that they viewed him as a person “likely to have
discoverable information that [defendants] may use to support [their] claims or defenses.” Fed.
R, Civ. P. 26(a)(1) (bracketed material and emphasis added). Fourth, counsel for the DCFS had a
more-than-adequate opportunity, which he exercised, to cross examine Dr. Sullivan at the DCFS
administrative hearing. Though the defendants are represented by the Illinois Attorney General

in the present case, they do not suggest that the DCFS’s interests were different from theirs in


guidelines, which ordinarily impose no legal duty vis-a-vis others. Jd. (citing Morton y. City of

Chicago, 286 Ill. App. 3d 444, 676 N.E.2d 985, 992 (1997) (“the violation of self-imposed rules
or internal guidelines, such as General Order 81-8, does not normally impose a legal duty, let
alone constitute evidence of negligence, or beyond that, wilful and wanton conduct”);
Blankenship v. Peoria Park Dist., 269 Ill. App. 34.416, 647 N.E.2d 287, 291 (1995) (“While the
violation of a statute or ordinance designed to protect human life or property is prima facie
evidence of negligence, a legal duty is normally not established through rules or internal
guidelines, and the failure to comply with self-imposed regulations does not necessarily impose
upon municipal bodies and their employees a legal duty”)),'

Thompson did not address the potential admissibility of evidence showing a violation of
internal agency rules and procedures with regard to a claim for punitive damages. The
considerations may not be the same; a claim for punitive damages typically requires a showing
that the defendant acted maliciously.’ The parties in the present case did not cite Zhompson with
regard to the present motion and have not discussed its applicability when a claim for punitive

damages is made. The Court will require further argument before it can rule on this motion.

' In other contexts, the Seventh Circuit has held that a defendant’s failure to follow
established internal rules is admissible evidence of intent. See, e.g., Rudin v. Lincoln Land
Commun, Coll., 420 F.3d 712, 727 (7th Cir. 2005) (Title VII employment discrimination case;
employer's failure to follow own procedures is evidence that its claimed reason for adverse
employment action is pretextual).

? On Via’s section 1983 claim, punitive damages may be awarded against a defendant if
her actions were “malicious or in reckless disregard of [p]laintift’s rights, Conduct is malicious
if it is accompanied by ill will or spite, or is done for the purpose of injuring [p]laintiff. Conduct
is in reckless disregard of [p]laintiff’s rights if, under the circumstances, it reflects complete
indifference to [p]laintiff’s safety or rights.” Seventh Cir. Pattern Civil Jury Instr. 7.24. See
Smith v. Wade, 461 U.S. 30, 56 (1983).

10


render an opinion. For this reason, ruling on defendants’ Rule 702 objection is deferred until

trial.
3. Defendants’ motion to bar James Greve

Defendants ask the Court to preclude Via from calling James Greve, a DCFS attorney, as
a witness at trial. Greve acted as DCFS’ attorney during the previously referenced administrative
proceedings. Via says that she wants to call Greve to elicit testimony that at the request of the
ALJ, he asked Eads to undertake a review of the agency’s file regarding Via. See Pl. Resp. to
Defs.” Mots. Jn Limine at 3.

Because defendants have not supported their contention that Greve’s request to Eads to
review the file amounts to “conduct or statements made in compromise negotiations regarding
[a] claim” inadmissible under Federal Rule of Evidence 408(a)(2), the Court rejects that
contention.

At the pretrial conference, Via’s counsel suggested that he wished to elicit from Greve
that when the ALJ asked him to conduct a review of the file, she stated that the case against Via
was weak, Were this communicated to Eads, it might be relevant to show her knowledge and
intent, But upon inquiry at the pretrial conference, Via’s counsel acknowledged that he had no
evidence that Greve had communicated to Eads either the ALJ’s alleged statement or the fact that
the request to review the file had come from the ALJ, The Court therefore excludes the ALJ’s
alleged comment to Greve regarding the strength of the case against Via. In addition, because it
appears that Eads has acknowledged in deposition testimony that she directed a review of the file
after being asked to do so, Greve’s testimony that he made this request of Eads is cumulative and

is therefore excluded,


any material way or that the DCFS attorney did an inadequate job of cross examination, Though

that cross examination might not be a perfect substitute for a deposition of Dr. Sullivan, an
opportunity that defendants chose not to take in the present case, the Court will direct plaintiff's
counsel to produce Dr. Sullivan for a deposition by no later than February 21, 2007. Finally,
defendants cannot credibly take the position that they would have identified or decided to call
any additional witnesses had plaintiff made the proper disclosures. They have already designated
both of the child’s treating doctors as witnesses, and the primary thrust of their arguments
regarding Dr, Sullivan’s testimony is that as someone who did not actually examine or treat the
child, he cannot possibly have a better idea as to the cause of her injuries than the treating
doctors. Given that position, no competent defense attorney would then call a similar non-
treating expert witness in rebuttal, as to do so would completely undermine the main defense
argument for disregarding the testimony of the plaintiff's expert. In sum, defendants will not
suffer any appreciable harm if Dr. Sullivan is permitted to testify at trial.

For these reasons, the Court denies defendants’ request to bar Via from calling Dr.
Sullivan to testify at trial based on non-compliance with Rule 26(a\(2). Defendants’ objection to
Dr, Sullivan’s testimony under Federal Rule of Evidence 602 is likewise overruled; Via does not
claim that Dr. Sullivan observed anything but rather is calling him only as an expert witness.
The Court takes under advisement defendants’ objection to Dr. Sullivan under Rule 702, based
on their contention that his review of medical records is an insufficient basis to permit him to
give an opinion about the cause of the child’s injuries, The Court is inclined to believe that this
is an argument best addressed afler the Court has heard the foundation for Dr. Sullivan’s

testimony, including his testimony regarding why a record review gives him an adequate basis to


DCFS.” Via has not opposed the motion.

8. Defendants’ motion to bar evidence of “credible evidence” standard

The Court grants defendants’ motion to bar evidence regarding the constitutionality of the
“credible evidence” standard, Via has not opposed the motion, and in any event, her claim that
the defendants’ use of that standard violated her constitutional rights has been disposed of by
way of the Court’s rulings on the defendants’ motion to dismiss and motion for summary
judgment.
% Defendants’ motion to bar reference to State laws and DCFS rules

Defendants have moved to bar reference to any violation of state or DCFS rules,
procedures, and policies. In Thompson v. City of Chicago, 472 F.3d 444 (7th Cir. 2006), a case
involving the alleged use of excessive force by a police officer, the Seventh Circuit affirmed the
district court’s exclusion of evidence regarding internal police department rules concerning the
use of force. The court stated that the internal rules were irrelevant to the jury’s determination of
whether the use of force at issue in the particular case was objectively reasonable under the
circumstances (the federal constitutional standard). Jd. at 454-55 (citing Whren v. United States,
517 U.S. 806, 815 (1996) (internal police department rules are unreliable guide to measuring
reasonableness of police conduct in context of traffic stop)), The court also affirmed the district
court’s determination that with regard to the plaintiff's state law wrongful death claim, the unfair
prejudice defendants would experience if the internal rules were admitted substantially
outweighed the rules’ probative value. Jd. at 457, The court acknowledged that under Illinois
law, violation of a statute or ordinance designed to protect others is proper evidence of

negligence or willful conduct, but it noted that the same is not true regarding internal rules or


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
TONISHA VIA, )
Plaintiff, }
vs. } Case No. 03 C 3278
SANDRA LAGRAND, ROI MONTALVO, ;
and MARY ELLEN EADS, )
Defendants. }

MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

In this order, the Court rules on several of the motions in limine filed by the parties in
preparation for trial in this case, which is set for February 26, 2007.

Background

Plaintiff Tonisha Via, who worked at a KinderCare day care center, alleges that
defendants Sandra Lagrand and Roi Montalvo, employees of the Illinois Department of Children
and Family Services, participated in obtaining a DCFS finding that Via had physically abused a
child at the day care center, despite the absence of supporting evidence, As a result, Via was
fired from her job. Via obtained counsel and challenged the finding, which ultimately was
expunged despite the alleged resistance of defendants Mary Ellen Eads and John Goad, both
supervisory personnel with DCFS.

In this lawsuit, Via advanced two theories of liability: first, the standard on which

defendants had relied, referred to as the “credible evidence” standard, was too low a threshold to


Conclusion
For the reasons stated above, the Court denies plaintiff's motions in limine [docket no,
81] and grants in part, denies in part, and defers ruling in part on defendants” motions in limine

[docket no. 79}.

WM CWA,

MATTHEW F. KENNELLY (
United States District Judge

Date: February 12, 2007

11


6. Defendants’ motion to bar reference to indemnification by the State

Defendants have moved to bar testimony that the State of Illinois may indemnify the
defendants for a compensatory damage award. The Court grants the motion; evidence of
indemnification is either irrelevant, or unfairly prejudicial to the defendants, or both. Cf Fed. R.
Evid. 411 (evidence of insurance coverage irrelevant). But as Judge Milton Shadur stated in a
recent decision,

if defendants themselves inject the issue of their claimed inability or limited

ability to pay an award, evidence of their right to indemnification by the [State]

will become relevant. Punitive damages pose a somewhat separate problem, They

do not of course create a right of indemnification, and once again it cannot be

known what factors may enter into a jury’s quantification of such damages if they

are to be awarded. But defense counsel should be aware that if they plan to

apprise the jury of the fact that the individual [defendants] will have to bear such

damages out of their own pockets, fairness would require that the jury also be

informed of the true situation (indemnification) as to compensatory damages.
Galvan v. Norberg, No. 04 C 4003, 2006 WL 1343680, at *2 (IN.D, Ill. May 10, 2006). Cf
Joseph v. Brierton, 739 F.2d 1244, 1247-48 (7th Cir. 1984) (stating that it was improper, as well
as unethical, for an attorney for governmental employees who had obtained an order barring
evidence of their indemnification from arguing or insinuating that they could not afford to pay a
damage award); Townsend v. Benya, 287 F. Supp. 2d 868, 874 (N.D. Ill. 2003) (Denlow, M.J.)
(barring evidence of indemnification of police officers by municipality but stating that the issue
would be revisited if the defendants offered evidence of their financial condition in defense to
plaintiff's claim for punitive damages).
7 Defendants’ motion to bar reference to lawyers as “assistant attorneys general”

The Court grants defendants’ motion to bar plaintiff and her counsel from referring to

defendants’ attorneys as “assistant attorneys general” and to the defendants as “the State” or “the


question whether those findings are admissible in evidence. Defendants have moved in limine to

bar admission of the findings, arguing that they are irrelevant and unfairly prejudicial. The Court
disagrees with defendants on the relevance issue, The ALJ’s findings, made after presentation of
evidence, meet the threshold of Federal Rule of Evidence 401, which requires that to be relevant,
evidence must have only a “tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be without the
evidence.”

In response to what Via’s counsel evidently perceived as an argument that the findings
are inadmissible hearsay, Via invoked Federal Rule of Evidence 803(8)(C), under which records
setting forth factual findings resulting from an investigation made pursuant to authority granted
by law are admissible in civil litigation, unless the sources of information or other circumstances
indicate lack of trustworthiness, The Court has taken the matter under advisement and has
requested further briefing regarding the application of Rules 803(8)(C) and Rule 403, which
defendants have also cited in support of exclusion.

4. Defendant’s motion to bar Dr. Sullivan

Defendants have moved to bar Via from calling Dr. Christopher Sullivan to testify at trial.
Dr. Sullivan reviewed the medical records of the child Via was accused of abusing and testified
on Via’s behalf at the DCFS administrative hearing, rendering an opinion that the child’s injuries
did not result from physical abuse and contradicting the contrary conclusion of the child’s
treating physicians. DCFS counsel cross-examined Dr. Sullivan at the administrative hearing.

Defendants intend to call the child’s treating doctors to testify at trial in the present case.

Defendants contend, however, that Dr. Sullivan should not be permitted to testify because he was


2. Plaintiffs motion to bar evidence of abuse or neglect

Via argues that a DCFS Administrative Law Judge’s finding that the injury to the child
did not result from abuse is binding on the defendants and that any evidence suggesting that
abuse occurred, or that Via was responsible for it, should be excluded.

A state administrative agency’s findings of fact made while acting in a judicial capacity
are given the same preclusive effect in federal court as those findings would be given in state
court. See Univ. of Tennessee v, Elliott, 478 U.S. 788, 799 (1986); Goodwin y. Bd. of Trustees of
Univ. of IHL, 442 F.3d 611, 620 (7th Cir, 2006). Via invokes the doctrine of issue preclusion,
under which a party to prior litigation, or someone in privity with him, may be barred from
relitigating in a later case an issue determined adversely to him in the prior case if there was a
final judgment on the merits in the prior case. The general rule under Illinois law, however, is
that issue preclusion may not be used “offensively” (i.e., by a party with the burden of proof)
against a non-party to the prior suit, unless the non-party is considered to be in privity with the
party to the prior suit, See, e.g., Dowrick v. Village of Downer ’s Grove, 362 Ill, App. 3d 512,
519-20, 840 N.E.2d 785, 793 (2005); Rhoads v. Bd. of Trustees of City of Calumet City
Policemen's Pension Fund, 293 Ill. App. 3d 1070, 1074-75, 689 N.E.2d 266, 269-70 (1997).
Government employees sued in their individual capacities are not, as a general rule, considered to
be in privity with their employer. See, e.g, Beard v. O'Neal, 728 F.2d 894, 897 (7th Cir. 1984).
Via has identified no proper basis to invoke issue preclusion in her favor in this case, and for this
reason the Court denies her motion in limine.

3. Defendants’ motion to exclude ALJ’s findings

Even though the ALJ’s findings are not binding on the defendants, it is a separate


satisfy due process requirements; and second, irrespective of the standard used by DCFS, the

defendants violated Via’s due process rights by acting despite the absence of evidence supporting
the allegation against Via. The Court dismissed Via’s claims under on the first theory on the
ground that the unconstitutionality of the “credible evidence” standard was not clearly
established at the time of the conduct at issue, thus entitling the defendants to qualified immunity
regarding that theory of liability. See Via v. Lagrand, No. 03 C 3278, 2003 WL 22901210 (N.D.
Ul. Dec. 9, 2003). The Court later granted summary judgment in favor of all of the defendants
other than Lagrand on the remainder of Via’s section 1983 claim and in favor of defendant Goad
on Via’s state law claims. See Via vy. Lagrand, No, 03 C 3278, 2004 WL 2554447 (N.D. Ill. Nov.
10, 2004), appeal dismissed, 469 F.3d 618 (7th Cir. 2006). Remaining for trial are Via’s section
1983 claim against Lagrand and her state law claims against Lagrand, Montalvo, and Eads.
Discussion

1 Plaintiff's motion to bar evidence of collateral source

Via has moved in limine to bar evidence of what she characterizes as “a collateral source
of payment” for her legal fees in the course of the DCFS proceedings — namely, the fact that the
fees were paid by her employer, KinderCare. Via’s motion begs the question of how evidence
regarding the legal fees is relevant in the first place. At the pretrial conference, Via’s counsel
stated that Via had not paid the legal fees and was not obligated to reimburse KinderCare. Under
the circumstances, the legal fees cannot possibly be an element of Via’s damages, and evidence
about the fees is not otherwise relevant. The Court therefore excludes all evidence regarding the
legal fees incurred in representing Via in the DCFS proceedings and denies as moot Via’s motion

in imine.