could improve its declining performance. Ross indicates that such evidence will
merely be introduced to substantiate Ross’ contention that the endermologie portion
of Ross that Hathaway dealt with was a declining segment of the corporation’s
business. However, such evidence is overly prejudicial to Hathaway and will not be
admitted. Ross cannot introduce such evidence that reflects upon Hathaway’s
performance. Therefore, we grant Hathaway’s motion to exclude evidence regarding
her job performance, and grant Hathaway’s motion to exclude evidence regarding

her refusal to prepare the Business Plan.

D. Testimony of Beverly Mae Temmerman

Hathaway moves to exclude any testimony at trial by Beverly Mae
Temmerman (“Temmerman”) because Defendants did not list Temmerman in the
disclosures provided to Hathaway pursuant to Federal Rule of Civil Procedure 26(a)
(“Rule 26(a)”). Generally, if a party fails to comply with Rule 26(a) by not fully
disclosing pertinent information during discovery, “that party ‘shall not, unless such
failure is harmless, be permitted to use as evidence at a trial any .. . information not
so disclosed.’” Jones v. Lincoln Elec. Co., 188 F.3d 709, 728 (7" Cir. 1999)(quoting
Fed. R. Civ. P. 37(c)(1)). The exclusion of such information is “‘automatic and
mandatory’ unless the party can show that the violation ‘was either justified or
harmless.’” Jones, 188 F.3d at 728 (quoting Finley v. Marathon Oil Co., 75 F.3d
1225, 1230 (7th Cir. 1996)).

In the instant action, Ross does not contest Hathaway’s assertion that


Hathaway’s person or test results and diagnoses made by Toig. Toig will not,
however, be allowed to provide testimony concerning the cause of any of
Hathaway’s medical ailments or testify regarding matters to which Toig does not
have first-hand knowledge. Therefore, we grant in part and deny in part Ross’

motion to bar the testimony of Toig.

CONCLUSION
Based on the foregoing analysis, we grant all of all of the motions in
limine except that we deny Ross’ motion to bar testimony by Toig to the extent that

Toig will testify as a treating physician.

Somme De Yoho —

Samuel Der-Yeghiayan’
United States District Court Judge

Dated: April 4, 2006


should have made such requests formally in a timely motion in limine, rather than as

an aside in its answer to Hathaway’s motion in limine.

C. Job Performance and Failure to Create Business Plan

Hathaway moves to exclude any reference to the quality of her job
performance. Also, in a separate motion in limine, Hathaway seeks to exclude
evidence that she refused to prepare a business plan (“Business Plan”) for the
endermologie portion of Ross’ business. Hathaway argues that evidence relating to
her job performance including her refusal to prepare the Business Plan is wholly
irrelevant, given Dr. Ross’ statement during his deposition that he terminated
Hathaway’s employment solely because his business was in decline and because he
thought that her space could be put to better uses. ( R Dep. 2). Ross indicates that it
does not object to the motion to exclude evidence pertaining to the quality of
Hathaway’s work performance, except in regard to evidence concerning her refusal
to prepare the Business Plan. ( Ans. H. Mot. 3).

Ross argues that evidence concerning the refusal to prepare the Business Plan
does not relate to the quality of Hathaway’s performance of her daily duties. Rather,
according to Ross, there was only an isolated request for the preparation of the
Business Plan. Ross states that it is not intending to argue that it terminated
Hathaway’s employment because she did not obey instructions regarding the
Business Plan or to show poor work performance by Hathaway. Ross contends that

the Business Plan was supposed to address how the endermologie portion of Ross


Defendants neglected to list Temmerman in Rule 26(a) disclosures, but Defendants
argue that Temmerman’s identity was known to Hathaway despite the omission in
Defendants’ Rule 26(a) disclosures. Ross first claims that Temmerman’s identity
was included in a list of employees that was provided to the Equal Employment
Opportunity Commission (“EEOC”) when Hathaway’s EEOC charge was being
investigated. Ross states that Hathaway apparently did not realize that Temmerman
was included in the list because Temmerman was listed under her maiden name of
Beverly May. Even it that were true, Defendants had a duty to clarify this fact
during their initial Rule 26(a) disclosures and Defendants had an ongoing duty to
amend or supplement discovery responses as appropriate pursuant to Federal Rule of
Civil Procedure 26(e). Now that the discovery period has passed, along with the
opportunity to conduct discovery regarding Temmerman, Ross cannot introduce her
as a witness and claim that the confusion concerning Temmerman’s identity is
somehow Hathaway’s fault. Ross also points out that during the deposition of Dr.
Ross, he made references to Temmerman being a former Ross employee who was
pregnant twice while employed by Ross. However, such passing references to
Temmerman were not sufficient to alert Hathaway of the importance of
Temmerman.

In addition, even if Hathaway was made aware of Temmerman’s identity,
Hathaway formally requested in an interrogatory the name, addresses, phone
number, and social security number of all Ross employees who worked for Ross

from 1999 to the present. Hathaway also requested in an interrogatory the name,


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

EASTERN DIVISION
JACQUELINE HATHAWAY, )
Plaintiff, )
v. } No. 03 C 5848
NEW DIMENSION CENTER FOR )
COSMETIC SURGERY, AND )
DR. DAVID ROSS, an individual, )
Defendants. )
MEMORANDUM OPINION

SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Plaintiff Jacqueline Hathaway’s
(“Hathaway”) motions in limine and on Defendant David A. Ross, M.D.S.C.’s

(“Ross”) motion in limine. For the reasons stated below, we grant in part and deny

in part the motions in limine.

DISCUSSION

I. Hathaway’s Motions in Limine
Hathaway seeks in her motions in limine to exclude evidence under the

collateral source rule, evidence concerning dismissed claims, and evidence


addresses, phone number, and social security number of all Ross employees who
have been pregnant from 1995 to present, and for all Ross employees who worked
for Ross in the same position as Hathaway in the three years prior to the filing of the
instant action. Ross does not contest Hathaway’s assertion that Temmerman falls
into all of the above categories listed in Hathaway’s interrogatories, nor does Ross
contest Hathaway’s assertion that Temmerman was never identified by Defendants
in a response to Hathaway’s interrogatories. Defendants have not shown that their
failure to comply with Rule 26(a) was justified or harmless. Therefore, it would not
be fair or equitable to allow Defendants to present Temmerman at trial as a witness.

Accordingly, we grant Hathaway’s motion to bar the testimony of Temmerman.

II. Ross’ Motion in Limine

Ross requests that the court bar Hathaway from introducing expert medical
testimony that was not disclosed during discovery pursuant to Federal Rule of Civil
Procedure 26(a)(2)(A). According to Ross, Hathaway is intending to call as a
witness at trial Dr. Randall Toig (“Toig”), but that Toig was not disclosed as an
expert during discovery. Hathaway acknowledges that “Dr. Toig is not employed by
Plaintiff as an ‘expert,’” (R Mot. Reply 3). Hathaway states that Toig will merely
be called to testify as her treating physician. If the sole purpose of Toig’s testimony
is to testify as a treating physician, then Toig will be allowed to testify at trial.
However, Toig’s testimony will be limited to his role as Hathaway’s treating

physician. Such testimony could include topics such as his first-hand evaluations of


concerning her job performance. Hathaway also seeks to bar any testimony by

Beverly Mae Temmerman.

A. Collateral Source Rule

Hathaway requests that, pursuant to the collateral source tule, the court bar
certain evidence. 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”). However, the
collateral source rule is limited to recovery relating to personal injuries and does not
apply to injuries such as “pecuniary injuries to intangible property interests.” /d.

In the instant action, Hathaway requests that the court exclude all evidence of
“insurance or payment for any medical expenses or other expenses incurred to the
extent payment was made on Hathaway’s behalf from any collateral source, or for
any collateral benefit she received.” (H. Mot. 1). Ross objects to Hathaway’s
motion to the extent that Hathaway is intending to assert that she suffered any
damages due to the negligence of Defendant Dr. David A. Ross (“Dr. Ross”). Dr.
Ross works for the Defendant corporation David A. Ross, M.D.S.C. Ross also

objects to any exclusion of information regarding unemployment compensation


received by Hathaway. Hathaway responds in her reply brief that she simply seeks
to exclude evidence showing that her insurance company has paid for her medical
expenses. Ross has not objected to that limited scope of Hathaway’s motion.
Hathaway is appropriately seeking to invoke the collateral source rule in regard to
alleged personal injuries for which she incurred medical expenses. Therefore, we
grant Hathaway’s motion to exclude evidence that shows that her insurance

company has paid for her medical expenses.

B. Dismissed Claims

Hathaway moves to bar any reference to claims in the instant action that were
dismissed voluntarily or involuntarily. On March 30, 2005, we granted Defendants’
motion to dismiss Counts I and III, and granted Defendants’ motion to dismiss all
claims in Counts V and VI against Dr. Ross and Defendant New Dimension Center
for Cosmetic Surgery. In addition, on December 12, 2005, Hathaway filed a
stipulation under which she voluntarily dismissed Counts V and VI. Ross indicates
that it has no objection to this motion and, therefore, we grant Hathaway’s motion to
bar any reference to claims in the instant action that were dismissed.

We also note that Ross includes in its answer to this motion a statement
indicating that it should also be understood that since the dismissed counts will not
be mentioned at trial, Hathaway will not testify regarding work for which she was
not paid. However, such a statement by Ross is improper. If Ross had such

concerns and believed that the concerns should be addressed before trial, then Ross