1

 Although originally named as a Defendant in this case, the City of St. Clair Shores was

voluntarily dismissed from this lawsuit by the Plaintiff on April 13, 2010.

1

UNITED STATES DISTRICT COURT

 EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JOHN GORAJCZYK,

Plaintiff,

v.

CITY OF ST. CLAIR SHORES, et al.,

Defendants.

Case No. 08-14764

Honorable Julian Abele Cook, Jr.

ORDER

This case pertains to claims by the Plaintiff, John Gorajczyk, who contends that the

Defendants,1 Cathy McCabe, Paul Plaza, Phil Rzotkiewicz, Michael Notorlano, and Margaret Eidt,

all of whom were law enforcement officers with the St. Clair, Michigan municipal government

during all of the relevant times in this controversy, violated his constitutional right to be free from

an excessive use of force, contrary to the specific language within the Fourth Amendment to the

United States Constitution and 42 U.S.C. § 1983. These allegations relate to the execution of a

search warrant at his home in November 2005, in which he contends that the Defendants used

excessive force when they allegedly (1) handcuffed him too tightly, (2) forcibly pushed him to the

ground, and (3) pulled him up by his arm which, in turn, produced an unwarranted injury. 

On April 14, 2010, the Defendants filed a motion to strike the Plaintiff’s proposed first
2

 E.D. Mich. LR 7.1(e)(2)(B) states that “[a] response to a nondispositive motion must be

filed within 14 days after service of the motion.” 

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amended witness list, asserting that he had failed to comply with the specific requirements in the

Federal Rules of Civil Procedure and the dates within Scheduling Order that had been previously

issued by the Court. An opposition pleading by the Plaintiff was filed one week later.

On June 1st, the Defendants filed a motion to strike the Plaintiff’s proposed expert witness,

Joseph Jager. It is their position that Jager’s expert report does not conform to the requirements

of the Federal Rules of Civil Procedure and the Federal Rules of Evidence. The record reveals that

the Plaintiff submitted his opposing brief on July 16th - over one month after the filing of the

Defendants’ motion. Inasmuch as (1) this tardy filing constitutes a gross violation of the time

deadlines within the Local Rules of this District,2

 and (2) the Plaintiff failed to request and obtain

an extension of time in which to file an opposing brief, the Court will decline to consider his

response when evaluating the merit, if any, of the Defendants’ motion. 

Finally, the Defendants filed a third motion to strike on June 3rd, seeking to obtain an order

from the Court that, if granted, would (1) strike the Plaintiff’s designated medical experts, (2)

compel his compliance with Fed. R. Civ. P. 26(a)(2), and (3) allow them to depose the Plaintiff’s

proposed medical experts. 

The Court will address each of these three requests seriatim. 

I. 

In making the request to strike the Plaintiff’s first amended witness list, which includes the

name of E. Craig Young – who had been added to the witness list approximately four months after

the designated deadline of November 6, 2009 – the Defendants assert that the addition of Young
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will preclude them from deposing him in advance of trial because the discovery period has now

ended. 

The Plaintiff asserts in his response that when the original witness list was submitted, he

was under the impression that the three union witnesses would be able to testify about his claims

for loss of wages and fringe benefits. He claims that he initially acquired this information on

December 14, 2009 (for one witness) and February 1, 2010 (for another witness). 

 Fed. R. Civ. P. 16(b)(4) states that a scheduling order “may be modified only for good

cause and with the judge’s consent.” The Sixth Circuit Court of Appeals opined in 2002 that the

“primary measure” of this good cause requirement is the moving party’s diligence in attempting

to comply with the court-imposed scheduling order. Inge v. Rock Fin. Corp., 281 F.3d 613, 625

(6th Cir. 2002). Here, the Scheduling Order advised the parties that (1) the deadline for identifying

all possible witnesses was November 6, 2009, and (2) the close of discovery was February 28,

2010. The record reveals that the Plaintiff’s original witness list was filed on November

6, 2009, and subsequently amended to include the name of E. Craig Young. The Court accepts the

Plaintiff’s representation that he did not learn of the previously-listed union witnesses’ inability to

testify regarding his lost wages and benefits until December 2009 and February 2010. Therefore,

the Court believes that he has shown good cause for his request. Hence, the Defendants’ request

to strike his witness list is denied. However, in order to avoid an unfair prejudice to the

Defendants, the Court declares that they shall have the ability to depose Young at a time to be

determined by the parties, but not later than thirty (30) days from the date of this order. 

II.

The Defendants next submit that the Court should strike the Plaintiff’s proposed expert
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witness, Joseph Jager, because his report does not comport with the Federal Rules of Civil

Procedure and the Federal Rules of Evidence. Specifically, they contend that (1) Jager’s report

contains an impermissible legal conclusion (to wit, the Defendants used excessive force during the

search), and (2) his opinions will not assist the trier of fact in understanding the evidence or

determining a fact in issue. 

Fed. R. Evid. 702, which governs the testimony of expert witnesses, states the following:

If scientific, technical, or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or education, may testify thereto in

the form of an opinion or otherwise, if (1) the testimony is based upon sufficient

facts or data, (2) the testimony is the product of reliable principles and methods, and

(3) the witness has applied the principles and methods reliably to the facts of the

case.

In addition, Fed. R. Civ. P. 26(a)(2)(B)(i) requires that the report which must be furnished by the

proposed expert to the opposing party in advance of trial “must contain . . . a complete statement of

all opinions the witness will express and the basis and reasons for them[.]” Rule 37, in turn, provides

that “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) . . . , the

party is not allowed to use that information or witness to supply evidence on a motion, at a hearing,

or at trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1).

Here, Jager’s report states that he was asked to review the record in this case to determine

if the handcuffing of the Plaintiff (1) was “properly done . . .” and (2) whether excessive force was

exercised by the Defendants “in violation of the [F]ourth [A]mendment of the United States

Constitution[.]” His report contains a list of all of the documents that he reviewed in composing this

report (e.g., deposition testimony, home video taken by the Plaintiff’s family after the raid, and

police photos), along with a summary of the relevant facts. Finally, the “Opinions” section within
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his report is divided into two categories: (1) “Notice of Tightness of Handcuffs” and (2) “Injuries.”

 Initially, the Court determines that Jager’s conclusion (i.e., the Plaintiff was subjected to

excessive use of force) is an inappropriate role for an expert witness. Although Fed. R. Evid. 704(a)

states that an expert may express an opinion that “embraces an ultimate issue to be decided by a trier

of fact,” his statement is a bare legal conclusion, which addresses the ultimate question of liability

in this case. Moreover, Jager’s assertion encroaches upon the exclusive province of the jury to make

the ultimate determination of liability. See Berry v. City of Detroit, 25 F.3d 1342, 1353 (6th Cir.

1994) (“Although an expert’s opinion may ‘embrace[] an ultimate issue to be decided by the trier

of fact[,]’ . . . the issue embraced must be a factual one.”) 

With respect to the first half of Jager’s “Opinions” section (i.e., “Notice of Tightness of

Handcuffs”), the Court agrees with the Defendants’ argument that it consists of a mere recitation of

facts from the Plaintiff’s perspective. Thus, it is the conclusion of the Court that this portion of

Jager’s report does not contain opinions which would assist a trier of fact in understanding the

evidence. 

Finally, the second half of Jager’s “Opinions”section (i.e., “Injuries”) states the following,

in its entirety:

In reviewing the video taken by the plaintiff on the night of this incident after they

were released from custody by the St. Clair Shores Police Department, it appeared

to show handcuff marks on John Gorajczyk[’s] wrists area and discoloration of his

skin. This indicates to me that the handcuffs were applied too tightly on the plaintiff

and would cause unnecessary pain and injury to the plaintiff. This is further verified

by Dr. JoAnne Levitan, M.D. who indicated in a letter to Dr. Goldberg, dated

1/19/06 that the plaintiff appears to have nerve damage in his wrist and hand area

that was caused by the police handcuffing the plaintiff behind his back.

(Def.’s Ex. 1 to Mot. to Strike Plaintiff’s Expert Witness, p. 4.) 

The Defendants assert that these opinions are conclusory and Jager does not provide a basis
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and reasons for them, as required by Rule 26. Indeed, “[e]xpert reports must include ‘how’ and

‘why’ the expert reached a particular result, not merely the expert’s conclusory opinions.” R.C.

Olmstead, Inc. v. CU Interface, LLC, 606 F.3d 262, 271 (6th Cir. 2010). The Court agrees with the

Defendants that Jager’s opinions do not satisfy this minimum standard. In his report, Jager asserts

that he reached this conclusion (i.e., the Plaintiff’s handcuffs were “applied too tightly”) after

reviewing a post-raid home video and reviewing the medical records of Drs. Levitan and Goldberg.

However, he has failed to proffer any reasoning for his conclusion. For instance, and despite noting

marks and discoloration on the Plaintiff’s wrists, Jager does not explain the rationale which led him

to his conclusion that the handcuffs were too tight and why it would exclude the possibility that all

persons who are handcuffed end up with marks on their wrists. 

The Defendants correctly note that Jager did not set forth his knowledge, if any, regarding

the proper method of handcuffing people and what physical manifestations can result if handcuffs

are applied inappropriately. Therefore, the Court concludes that Jager’s report fails to satisfy the

minimum requirements of Fed. R. Evid. 702 and Fed. R. Civ. P. 26(a)(2)(B)(i). Therefore, the Court

grants the Defendants’ motion to strike the Plaintiff’s expert witness, Joseph Jager, from testifying

for the reasons that have been set forth above. 

III. 

The Defendants’ third motion seeks to obtain an order from the Court that will (1) strike the

Plaintiff’s medical experts, (2) compel compliance with Fed. R. Civ. P. 26(a)(2), and (3) permit them

to conduct discovery depositions upon his proposed medical experts (i.e., Drs. JoAnn Levitan, Amer

Aboukasm, and Thomas McCormick). The Defendants maintain that the Plaintiff’s failure to

disclose the requisite opinions, exhibits, and qualifications of his expert medical witnesses is
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prejudicial to their effort to assert a proper defense in this cause, and effectively prevents each of

them from discovering the experts’ proposed testimony as well as the basis for their conclusions.

On the other hand, the Plaintiff, while acknowledging that he had not provided the expert

reports for these three doctors, states that they are his treating physicians. Hence, he submits that,

under this circumstance, none of them are obligated to produce an expert report or other background

information pursuant to Rule 26(a)(2).

This evidentiary rule, which governs the disclosure of expert witnesses, provides, in part, that

“[u]nless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a

written report - prepared and signed by the witness - if the witness is one retained or specially

employed to provide expert testimony in the case or one whose duties as the party's employee

regularly involve giving expert testimony.” Fed. R. Civ. P. 26(a)(2) (emphasis added). In the

context of a claim under the Federal Employees Liability Act, 45 U.S.C. § 51 et seq., a panel of the

Sixth Circuit Court of Appeals (“Sixth Circuit”) determined in 2007 that this Rule does not require

the production of an expert report from a treating physician. Fielden v. CSX Transp., Inc., 482 F.3d

866, 869 (6th Cir. 2007). In rendering its decision, the Sixth Circuit set forth certain parameters

upon which treating physicians could testify about the causation of a claimant’s injury in the

absence of a Rule 26 Report. Id. Additionally, the Court noted that the Advisory Committee Notes

to Rule 26 support its conclusion that treating physicians are not required to prepare expert reports.

Id. (“The Note to Rule 26 states that ‘[a] treating physician . . . can be deposed or called to testify

at trial without any requirement for a written report.’”) 

In order to prevent a circumvention of the expert report requirement, Fielden declared that
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“when the nature and scope of the treating physician’s testimony strays from the core of the

physician’s treatment, Rule 26(a)(2)(B) requires the filing of an expert report from the treating

physician.” Id. at 870 (citations omitted). In making a determination on this issue, courts have

examined a number of factors, including whether (1) the treating physician reached his conclusions

at the time of the treatment, id. at 871 (citing Mohney v. USA Hockey, Inc., 138 Fed. Appx. 804, 811

(6th Cir. 2005)); (2) both parties were able to prepare for trial and the outcome of the trial would not

be affected by surprise tactics, id. (citing Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000)); (3)

the “condition at issue leaves room for debate as to the specific ailment and its sources” id. (citing

Gonzalez v. Executive Airlines, 236 F.R.D. 73, 81 (D. P.R. 2006)); (4) the physician would rely on

ordinary medical training, id. at 872 (citing Sowell v. Burlingon N. & Santa Fe Ry. Co., 2004 U.S.

Dist. LEXIS 24738 at *5 (N.D. Ill. Dec. 7, 2004)); and (5) the “treating physician relies on tests,

documents, books, videos, or other sources that the physician did not rely upon during his or her

treatment of the patient.” Id. (citing Mohney v. USA Hockey, Inc., 300 F. Supp. 2d 556, 561 (N.D.

Ohio 2004)). 

The Court first notes that there is no evidence to suggest that these three physicians were

hired by the Plaintiff or his counsel for the purposes of testifying at trial. The Defendants submit

that without an expert report or a discovery deposition, they do not know whether these physicians

relied on ordinary medical training, or if they reviewed additional material to reach their medical

opinions. However, the Court concludes that the Defendants, notwithstanding an opportunity to

depose these witnesses during the discovery phase of this trial, chose to forego such a discovery
3

 In addition, the Plaintiff notes that he has scheduled de bene esse depositions for all of

these physicians wherein the Defendants will be able to ask questions of these individuals at that

time.

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option.3 Nothing in the medical reports by Drs. Levitan, Aboukasm, or McCormick suggests that

they used any outside material or anything above and beyond their ordinary medical training to reach

the conclusions they did. Moreover, there is no indication within these medical reports that they

came to their conclusions at any time other than at the time of treatment. However, notwithstanding

that which is contained in their medical reports, the Plaintiff is advised that to the extent these

physicians have in fact reached any of their conclusions by means other than the treatment of the

Plaintiff, they must file expert reports and otherwise comply with the requirements of Rule

26(a)(2)(B).

The Defendants also object to the physicians’ conclusion regarding the cause of the

Plaintiff’s injuries (e.g., the handcuffing caused nerve damage). However, as the Fielden court

concluded:

It is within the normal range of duties for a health care provider to develop opinions

regarding causation and prognosis during the ordinary course of an examination. To

assume otherwise is a limiting perspective, which narrows the role of a treating

physician. Instead, to properly treat and diagnose a patient, the doctor needs to

understand the cause of a patient's injuries. See McCloughan [v. City of Springfield],

208 F.R.D. [236,] 242 [(C.D. Ill. 2002)] ("doctors do not operate in a vacuum. . . .

Thus, the [c]ourt believes causation, diagnosis, and prognosis would be based on the

treating physician's personal knowledge. . . .").

Fielden, 482 F.3d at 870 (quoting Martin v. CSX Transp., Inc., 215 F.R.D. 554, 557 (S.D. Ind.

2003)). Thus, it is the conclusion of the Court that, under the limited circumstances of this case, the

Plaintiff’s treating physicians may testify regarding the cause of his injuries, as long as they reached

their conclusion in the course of treatment. 
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Moreover, it should be noted that the instant case is distinguishable from the case which has

been cited by the Defendants, Gass v. Marriott Hotel Svcs., Inc., 501 F. Supp. 2d 1011 (W.D. Mich.

2007). In Gass, the plaintiffs complained that (1) the defendants had negligently allowed the

spraying of dangerous chemicals inside their hotel room and (2) their exposure to such chemicals

caused them to suffer poisoning and other damages. 501 F. Supp. 2d at 1015. When the plaintiffs

proffered the proposed testimony of two physicians, the defendants objected and moved to strike

their testimony. Id. The district court determined that the two doctors were treating physicians and

thus, were not required to file expert reports. Id. at 1018. However, the court granted the

defendants’ motion to strike and relied upon the failure of the plaintiffs to proffer a sufficient

scientific foundation. Id. at 1021. The court opined that (1) the treating physicians had neither any

knowledge about the specific chemicals to which the plaintiffs had been exposed nor had they

conducted any diagnostic testing, and (2) there was a lack of scientific literature that linked the

plaintiffs’ symptoms with an exposure to pesticides. Id. Therefore, the court concluded that,

although the treating physicians could testify as to the plaintiffs’ symptoms, treatment, and

diagnosis, they were not qualified to testify about what caused their ailments. Id. The Gass court

struck the causation conclusions of the treating physicians after concluding that they did not have

the requisite scientific foundation for reaching those conclusions. 

Here, the Defendants moved to prevent the Plaintiff’s physicians from testifying because it

is their belief that these medical professionals are experts who had failed to proffer the required

expert reports. However, as determined by the Gass opinion on which the Defendants rely, treating

physicians need not file expert reports. Accordingly, the Court concludes that Drs. Levitan,

Abouksam, and McCormick are treating physicians who are not required to prepare expert reports.
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To the extent the Defendants are challenging the scientific foundation for the physicians’

conclusions, the Court concludes that this argument is without merit. Dr. Levitan states in her report

that the Plaintiff suffers from “possible residual neuritis along the superficial radial nerve and

tendinitis along the flexor carpi radialis tendons from tight bands around the wrists and abnormal

positioning.” She further advances her belief that “this is related to the handcuffs that were placed

on his wrists behind his back.” (Pf.’s Resp. to Defs.’ Mot. to Strike, Ex. 1.) Unlike the

circumstances in Gass, where the treating physicians was not aware of the chemicals to which the

plaintiffs had been exposed, see Gass, 501 F. Supp. 2d at 1021, the medical doctor in this case (i.e.,

Dr. Levitan) knew that the Plaintiff had been handcuffed. The Court determines that her conclusion

regarding the cause of the Plaintiff’s injuries had been based on her treatment of him in the regular

course of a medical examination. Hence, the Court determines that Dr.Levitan is entitled to render

opinion without the necessity of submitting an expert report. 

With respect to Dr. Aboukasm, he conducted medical testing of the Plaintiff in April 2006

and concluded that his patient had “bilateral dorsal hands paresthesias since hands [sic] cuffing

incident in November ‘05.” (Id., Ex. 2.) Further, his medical report to Dr. Levitan, dated June 12,

2006, indicates that the Plaintiff had “developed numbness and tingling sensation over the lateral

aspect of the bilateral hands after he was mistakenly cuffed by the St. Clair Shores Police

Department. His cuffs were extremely tight according to him. They were having to frequently

remove the straps from around the wrist.” (Id.) One month later, Dr. Aboukasm transmitted another

report to Dr. Levitan on July 10, 2006, in which he explained that “this is the result of a local injury

to the nerve and the natural history of an injury is to improve with time.” (Id.). In its review of the

Aboukasm written reports, the Court concludes that this medical doctor is precluded from opining
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that the Plaintiff was “mistakenly” handcuffed by the Defendants. However, there is nothing else

in his medical reports that is objectionable or would require additional scientific foundation or

knowledge. 

Finally, and with respect to Dr. McCormick, who conducted an Adult Psychiatric

Assessment evaluation on September 29, 2008, his report includes a recitation of the events that

were relayed to him by the Plaintiff (e.g., his home was raided by police officers in November 2005,

he was handcuffed, and now suffers from inability to work, leave his house, memory lapses, etc.).

Dr. McCormik diagnosed the Plaintiff as suffering from major bouts of depression, in addition to

a post traumatic stress disorder, along with pain in his wrist and thumb. Like Drs. Levitan and

Aboukasm, Dr. McCormick made his diagnosis on the basis of the information that had been

obtained from the Plaintiff. Although it would be inappropriate for Dr. McCormick to conclude that

the incident of November 2005 was wrong, unjustified, or unlawful, he could - consistent with the

ordinary course of a medical examination and treatment - testify about the conditions which may

have caused the Plaintiff’s maladies.

Therefore, the Court denies the Defendants’ request to strike medical experts, compel their

compliance with Rule 26(a)(2)(B), and to compel discovery only depositions.

IV. 

Accordingly and for the reasons that have been stated above, the Court (1) grants in part,

denies in part, the Defendants’ motion to strike the Plaintiff’s proposed first amended witness list

which includes the addition of E. Craig Young as a witness (Doc. #26); (2) grants the Defendants’

motion to strike the Plaintiff’s expert witness, Joseph Jager (Doc. #32); and (3) denies the

Defendants’ motion to strike medical experts, compel their compliance with Rule 26(a)(2)(B), and
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to compel discovery only depositions (Doc. #33).

IT IS SO ORDERED.

Dated: August 17, 2010 s/Julian Abele Cook, Jr. 

Detroit, Michigan JULIAN ABELE COOK, JR.

United States District Court Judge

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing Order was served upon counsel of record via the Court's ECF System to their respective

email addresses or First Class U.S. mail to the non-ECF participants on August 17, 2010.

s/ Kay Doaks 

Case Manager