UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MARY OSHANA, ) 

) 

Plaintiff, ) 

) 

v. ) No. 20 C 2041

) 

AER LINGUS LIMITED, ) Judge Rebecca R. Pallmeyer 

a foreign corporation, ) 

) 

Defendant. ) 

MEMORANDUM AND ORDER

Pending before the court are five motions in limine: three filed by Plaintiff [34, 35, 36] and 

two filed by Defendant [37, 38]. For the reasons explained here, the motions are granted in part 

and denied in part. 

BACKGROUND

On April 26, 2018, Plaintiff Mary Oshana was a passenger onboard a flight from Chicago 

to Dublin that was operated by Aer Lingus, Defendant. (App. Stipulated Facts, Ex. 1 to Proposed 

Pretrial Order [31-1] at 1.) The plane pushed back from the gate nearly an hour after it was 

scheduled to depart. (Id.) After the plane had pushed back from the gate, but before it took off, 

Oshana got up from her seat and entered the plane’s lavatory. (Id.) What happened next is 

disputed. Oshana claims that, while she was seated on the toilet with her pants and underpants 

around her ankles, a crew member of the plane ordered her to return to her seat immediately. 

(App. Pl.’s Trial Brief, Ex. 7 to Proposed Pretrial Order (hereinafter “Pl.’s Trial Brief”) [31-7] at 1-

2.) She contends that before she had time to pull her pants up, the crew member unlocked the 

lavatory door from the outside, grabbed Oshana, and pushed her into her seat. (Id. at 2.) She 

claims to have experienced physical pain from “hitting the armrest when the flight attendants threw 

her into her seat.” (Id. at 4.) She also claims emotional distress from “having her genitals exposed 

in front of others.” (Id.) 

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Aer Lingus says “this account is a fabrication.” (App. Def.’s Trial Brief, Ex. 8 to Proposed 

Pretrial Order [31-8] at 1.) It contends that when the crew member unlocked the lavatory door, 

Oshana had her pants “pulled up” and was “fixing her trousers.” (Id. at 2.) Defendant further

claims that while Oshana was verbally directed to take a seat, “[a]t no time did any crewmember 

make physical contact with Plaintiff.” (Id. at 2-3.) 

Oshana brings suit to recover money damages under an international treaty known as the 

Montreal Convention. (Pl.’s Trial Brief at 1.) Article 17 of the Montreal Convention provides that 

an international carrier “is liable for damage sustained in case of death or bodily injury of a 

passenger upon condition only that the accident which caused the death or injury took place on 

board the aircraft or in the course of any of the operations of embarking or disembarking.” 

Convention for the Unification of Certain Rules for International Carriage by Air (hereinafter 

“Montreal Convention”), art. 17, May 28, 1999, S. Treaty Doc. 106-45, ICAO Doc. No. 9740. 

Article 20 of the Convention states that if the damage “was caused or contributed to” by the 

passenger, “the carrier shall be wholly or partly exonerated from its liability.” Id. art. 20. As 

explained here, the parties disagree about the admissibility of a variety of evidence and seek 

pretrial rulings on these issues.

DISCUSSION

Excluding evidence before trial is generally disfavored. The court will grant a motion in 

limine to bar evidence only where that evidence is clearly not admissible for any purpose. 

Hawthorne Partners v. AT & T Techs., Inc., 831 F. Supp. 1398, 1400 (N.D. Ill. 1993). The moving 

party carries the burden of meeting this high standard. Euroholdings Capital & Inv. Corp. v. Harris 

Trust & Sav. Bank, 602 F. Supp. 2d 928, 934 (N.D. Ill. 2009). If the burden is not met, the 

evidentiary ruling should be deferred until trial. Green v. Goodyear Dunlop Tires N. Am., Ltd., No. 

08-472-GPM, 2010 WL 747501, at *1 (S.D. Ill. Mar. 2, 2010). Even if the burden is met and the 

court grants the motion, the court can change its ruling at trial. Luce v. United States, 469 U.S. 

38, 41 n.4 (1984). In considering or reconsidering evidentiary issues at trial, the court will have 

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the benefit of understanding “the context, foundation, and relevance of the contested evidence 

within the framework of the trial as a whole.” Casares v. Bernal, 790 F. Supp. 2d 769, 775 (N.D. 

Ill. 2011). 

I. Plaintiff’s Motion in Limine [34] Regarding the Application of Article 20 and 21

In its minute entry of August 2, 2021, the court noted that the parties disputed “whether 

Articles 20 or 21 [of the Montreal Convention] apply and support an instruction to the jury on the 

issue of exoneration or comparative/contributory fault.” (Aug. 2, 2021 Minute Entry [33].) In 

briefing this issue, the parties now appear to be largely in agreement that Article 20 and pure 

comparative negligence apply to this case. (Pl.’s Mot. in Lim. Regarding the Application of Article 

20 and 21 (hereinafter “Pl.’s Mot in Lim. on Article 20”) [34] at 1; Def.’s Resp. Regarding the 

Application of Article 20 and 21 (hereinafter “Def.’s Resp. on Article 20”) [43] at 1; see Quevedo 

v. Iberia Lineas Aereas de España, Sociedad Anónima Operadora Co., No. 17-21168, 2019 WL 

3804126, at *1-2 (S.D. Fla. Aug. 13, 2019).) Accordingly, the parties agree to language set forth 

in Plaintiff’s new Requests to Charge Nos. 5, 6, 7, 8, and 9, proposed jury instructions that contain 

the language of comparative negligence. Oshana has withdrawn her earlier proposed Charge 

No. 4 and her earlier proposed Verdict Form A. (App. Proposed Jury Instrs., Ex. 9 to Proposed 

Pretrial Order (hereinafter “Proposed Jury Instrs.”) [31-9] at 32, 33.)

The remaining disagreement relates to the parties’ competing proposed verdict forms. 

Oshana’s proposed Verdict Form,1 she contends, “incorporates defendant’s claim of contributory 

negligence.” (Pl.’s Mot in Lim. on Article 20 at 2.) Defendant contends that its proposed Verdict 

Form2 “more clearly addresses the elements of Plaintiff’s claim and already adequately addressed 

1 It reads, in relevant part: “[A]ssuming that 100% represents the total combined fault 

of Mary Oshana and Aer Lingus Limited, we find that the percentage of negligence attributable 

solely to Mary Oshana is ______%.” (Plaintiff’s Request to Charge No. 10, Ex. 7 to Pl.’s Mot in 

Lim. on Article 20 [34-7] at 15.) 

2 It reads, in relevant part: “Was MARY OSHANA’s bodily injury proximately caused 

by her refusal to comply with the flight attendants’ request to exit the lavatory? If your answer to 

question number 4 is YES proceed no further and sign and date this Verdict Form in the space 

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comparative fault.” (Def.’s Resp. on Article 20 at 1.) Oshana states that her proposed form is 

“based on the Illinois Pattern Jury Instructions (Civil),” it is “simpler for the jury to understand and 

easier to follow,” and it avoids “[t]he multiple problems with the defendant’s proposed form.” (Pl.’s 

Reply Regarding the Application of Articles 20 and 21 [52] at 1.) 

Having reviewed the proposed forms, the court agrees that Oshana’s proposed verdict 

form (set forth as Proposed Charge No. 10) is appropriate. As Oshana notes, it makes sense to 

use the word “cause” rather than the less-familiar (and sometimes confusing) expression 

“proximate cause” which appears in Defendant’s proposed form. (See id.) The court also agrees 

with Plaintiff that the fourth question on Defendant’s proposed form is misleading because it states

that if Oshana’s injury was caused by her refusal to comply with Defendant’s request, then she is 

not entitled to any damages. As noted, the parties have agreed that pure comparative negligence 

applies in this case, meaning that this language in Defendant’s proposed form is overbroad; if her 

refusal to comply with Defendant’s request was less than the sole cause of her injury, she may

nevertheless be entitled to recover from Defendant. 

Plaintiff’s Motion in Limine Regarding the Application of Article 20 and 21 [34] is granted.

II. Plaintiff’s Motion in Limine [35] Regarding the August 26, 2017 Event

 Oshana moves to bar evidence or argument of certain facts related to an incident that 

predated this case. (Pl.’s Mot. in Lim. Regarding the Aug. 26, 2017 Event [35] at 1.) Specifically,

on August 26, 2017, Plaintiff and her mother went to the United Center to see a concert but were 

“wrongfully accused of possessing counterfeit or stolen tickets.” (Id.) Following that accusation, 

Oshana and her mother were allegedly “physically escorted” out of the venue, which was 

“emotionally upsetting and caused her anxiety.” (Id.) In her motion, Oshana acknowledges that 

“[i]n light of the emotional damages claimed in this case, she agrees that the fact[ ] that she had 

an experience which caused her emotional upset and anxiety, and that she was prescribed 

below. If your answer to question number 4 is NO, proceed to question number 5.” (Proposed 

Jury Instrs. at 45.) 

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medication to help her cope with those feelings, are relevant.” (Id.) But Oshana moves to exclude 

any additional facts, such as “the details of the United Center incident” or “the fact that a claim for 

damages was made.” (Id. at 2.)

Defendant opposes the motion. (Def.’s Resp. Regarding the Aug. 26, 2017 Event 

(hereinafter “Def.’s Resp. on Aug. 26”) [44] at 4.) Defendant acknowledges that Oshana’s prior 

acts, including filing a lawsuit, may not be admitted as evidence of her character, but contends it 

is admissible for other purposes. Specifically, Defendant contends that this evidence shows that 

Oshana’s present claim is nearly identical to one she made before, which demonstrates a “modus 

operandi” and “bears on her credibility.” (Id. at 2-3.) Second, Defendant argues the United Center 

incident “provide[s] an alternative explanation for Plaintiff’s continuing stress and anxiety during 

the period after the April 2018 Aer Lingus incident.” (Id. at 3.) 

In addressing these arguments, the court notes, initially, that the parties disagree about 

the legal framework to be used for admitting evidence of prior acts under Federal Rule of Evidence 

404(b). Defendant urges the court to apply a four-part test outlined 20 years ago by the Seventh 

Circuit. (Id. at 2 (citing Mathis v. Phillips Chevrolet, Inc., 269 F.3d 771, 775-76 (7th Cir. 2001)).) 

As Plaintiff observes, however, that four-part test was abandoned by the Seventh Circuit in United 

States v. Gomez, 763 F.3d 845 (7th Cir. 2014) (en banc). (Pl.’s Reply Regarding the Aug. 26, 

2017 Event (hereinafter “Pl.’s Reply on Aug. 26”) [51] at 1.) In Gomez, the court stated that the 

“four-part test for evaluating the admissibility of other-act evidence has ceased to be useful” and 

thus the court “abandon[ed] it in favor of a more straightforward rules-based approach.” Gomez, 

763 F.3d at 853. The starting point for this and “[a]ll evidentiary questions,” the court stated, is

Rule 402, which requires admissible evidence to be relevant. Id. If the evidence is relevant, Rule 

404(b) will exclude it “if the purpose is to show a person’s propensity to behave in a certain way,” 

but 404(b) will allow it if the purpose is “proving motive, opportunity, intent, preparation, plan, 

knowledge, identity, absence of mistake, or lack of accident.” Id. (quoting FED. R. EVID. 404(b)). 

It is not enough for a party to simply “point to a purpose in the ‘permitted’ list,” though; other-act 

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evidence is permissible “only when its admission is supported by some propensity-free chain of 

reasoning.” Id. at 856 (citing United States v. Lee, 724 F.3d 968, 978 (7th Cir. 2013) (“When one 

looks beyond the purposes for which the evidence is being offered and considers what inferences 

the jury is being asked to draw from that evidence, and by what chain of logic, it will sometimes 

become clear . . . that despite the label, the jury is essentially being asked to rely on the evidence 

as proof of the defendant’s propensity to commit the charged offense.”)). Finally, even if evidence 

is relevant and supported by a propensity-free chain of reasoning, it is still subject to Rule 403,

which gives the district court discretion to exclude evidence if its probative value is “substantially 

outweighed by a danger of . . . unfair prejudice.” Gomez, 763 F.3d at 856-57 (citing FED. R. EVID. 

403).

Defendant cites three cases for its first relevance argument—that the United Center 

incident demonstrates a modus operandi that bears on Oshana’s credibility. None of those cited 

cases satisfy the court that the proposed evidence is inadmissible under “some propensity-free 

chain of reasoning.” Gomez, 763 F.3d at 856. In Defendant’s first cited case, Gastineau v. Fleet 

Mortgage Co., 137 F.3d 490, 495 (7th Cir. 1998), the Seventh Circuit concluded that the trial court 

did not abuse its discretion in admitting evidence of the plaintiff’s prior lawsuits against other 

employers, because the evidence “tend[s] to establish something other than [the plaintiff’s] 

propensity to sue his employers.” The court found that the evidence “tends to show [the plaintiff’s] 

modus operandi of creating fraudulent documents in anticipation of litigation against his 

employers.” Id. Gastineau, where the court applied the now-outdated four-part test, 137 F.3d at 

494-95, does not satisfy this court that the United Center evidence must be admitted. A 

conclusion that the trial court did not err in admitting contested evidence is not a ruling that such 

evidence must be admitted. See id. at 494 (quoting United States v. Beasley, 809 F.2d 1273, 

1279 (7th Cir. 1987)) (“Discretion, when exercised, will rarely be disturbed.”); Jonathan S. Masur 

& Lisa Larrimore Ouellette, Deference Mistakes, 82 U. CHI. L. REV. 643, 646 (2015) (“Just 

because an evidentiary holding is not an abuse of discretion does not mean that a contrary holding 

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is not allowed.”). In addition, the defendant in Gastineau was the fourth employer the plaintiff had 

sued. Gastineau, 137 F.3d at 495. Defendant in this case identified just one other potentially 

similar incident. This court—applying the modern framework—finds that Oshana’s one prior

lawsuit alleging emotional distress does not amount to a modus operandi as in Gastineau. 

Defendant’s other case citations are no more persuasive. In Tomaino v. O’Brien, 315 Fed. 

App’x 359, 361 (2d Cir. 2009), the court allowed testimony regarding the plaintiff’s “five previous 

occasions on which he had made strikingly similar claims.” This is distinguishable for the same 

reasons as stated in Gastineau, including the fact that five prior incidents provide much greater 

support to a common scheme argument than does a single prior incident. Finally, Defendant cites

Mathis, which, as noted, applied the outdated four-part test; moreover, the case actually affirmed

the trial court’s exclusion of evidence that the plaintiff had previously brought similar claims, and 

so it does not support Defendant’s argument. Mathis, 269 F.3d at 776-77. As the Mathis court 

noted, “a plaintiff’s litigiousness may have some slight probative value, but that value is 

outweighed by the substantial danger of jury bias against the chronic litigant.” Id. at 776 (quoting 

Outley v. City of New York, 837 F.2d 587, 592 (2d Cir. 1988)). Similarly, Gomez instructed courts 

to apply Rule 403 (which protects against such bias) “with full force,” because “[o]ther act evidence 

raises special concerns about unfair prejudice.” Gomez, 763 F.3d at 856-57 (quoting United 

States v. Miller, 673 F.3d 688, 696 (7th Cir. 2012)). In this case—in addition to the fact that the 

United Center incident is really propensity evidence—the risk that a jury would be prejudiced 

against Oshana’s present claim because she previously brought a similar one significantly 

outweighs any potential value this evidence might have. Thus, the court rejects Defendant’s first 

relevance argument.

Defendant’s second relevance argument is that “the United Center incident and legal claim 

provide an alternative explanation for Plaintiff’s continuing stress and anxiety during the period 

after the April 2018 Aer Lingus incident.” (Def.’s Resp. on Aug. 26 at 3.) The court agrees but 

notes that Oshana “does not object to introduction of testimony, evidence or argument that the 

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plaintiff suffered from anxiety prior to the subject April 26, 2018 incident, or that there was an 

event in August 2017, which caused her anxiety, after which she was prescribed medication to 

treat that condition.” (Pl.’s Reply on Aug. 26 at 4-5.) Evidence relating to the United Center 

incident that is within the scope suggested by Plaintiff is sufficient for Defendant to make 

arguments about alternative causes of Oshana’s symptoms. Thus, the court grants Plaintiff’s 

motion to bar evidence or argument of the specific facts of what occurred at the United Center in 

August 2017, and evidence or argument of the fact that a claim resulted from that incident.

III. Plaintiff’s General Motions in Limine [36]

 In a court filing titled “Plaintiff’s General Motions in Limine,” Plaintiff makes five requests. 

The parties came to a resolution on four of those requests: First, the parties have agreed to entry 

of an order “barring all non-party witnesses from the courtroom prior to the time that their 

testimony is completed.” (Pl.’s General Mots. in Lim. [36] at 1.) Similarly, evidence “that the 

plaintiff’s medical bills were paid in whole or part by insurance” will be excluded unless Plaintiff 

argues “that she did not pursue medical treatment because of the cost.” (Id.; Def.’s Resp. to 

General Mots. in Lim. (hereinafter Def.’s Resp. to Gen. Mots.”) [42] at 1; Pl.’s Reply to General 

Mots. in Lim. (hereinafter “Pl.’s Reply to Gen. Mots.”) [49] at 1.) 

Third, the parties agree that there will be no “argument, questioning or testimony regarding 

whether anyone other than plaintiff Mary Oshana was injured in the subject incident.” (Pl.’s 

General Mots. in Lim. at 1; see Def.’s Resp. to Gen. Mots. at 2.) But Defendant is free to offer 

evidence that the flight attendants “acted as they did because they perceived a safety risk.” (Pl.’s 

Reply to Gen. Mots. at 1; see Def.’s Resp. to Gen. Mots. at 2.) Finally, the parties agree that 

there will be no “testimony or argument that the defendant will be responsible for paying any part 

of a judgment against it.” (Pl.’s General Mots. in Lim. at 2.) 

That leaves Plaintiff’s Request 4, in which Oshana “requests that this Court enter an Order 

in limine barring argument, questioning or testimony on the absence of trial testimony from any 

other passenger on the plane, or from any medical provider other than Barbara Searle, Ph.D.” 

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(Id.) Oshana argues that other passengers and medical providers are not “under the plaintiff’s 

control” but are instead “equally available to the plaintiff and the defendant.” (Id.) Oshana argues

that such an order would be consistent with the parties’ jointly submitted Request to Charge No. 

15, which states that “[t]he law does not require any party to call as a witness every person who 

might have knowledge of the facts related to this trial.” (Id.; Proposed Jury Instrs. at 17.) 

Defendant argues that the “extraordinary nature” of Oshana’s allegations—pulled from 

the lavatory while partially nude, dragged through the aisle, and thrown into her seat—would 

“almost certainly” have been “witnessed and commented upon by other passengers . . . if it had 

occurred as she alleges.” (Def.’s Resp. to Gen. Mots. at 2.) “By contrast,” Defendant argues, 

“the incident as described by the Aer Lingus flight attendants was much less sensational and may 

have passed without notice by other passengers on the flight.” (Id. at 2-3.) Defendant states that 

it disclosed a passenger list with contact information to Oshana in October 2020, though Oshana 

states that the list only included contact information for six passengers, and just two of those 

passengers were sitting in seats where they could have potentially witnessed the incident. (Id.

at 3; Pl.’s Reply to Gen. Mots. at 2.) According to Defendant, the fact that Plaintiff “will not produce 

a non-party witness, or a cell phone video or photograph taken by another passenger, is relevant 

to the credibility of the party witnesses.” (Def.’s Resp. to Gen. Mots. at 3.)

Defendant also objects to Oshana’s request to bar questioning or testimony about the 

absence of medical providers. (Id.) Such evidence, Defendant argues, is relevant to the 

existence or severity of Oshana’s physical and mental injuries. (Id.) Oshana notes that she 

already stipulated she did not seek medical attention for her injuries, and Defendant is free to 

argue that fact to the jury. (Pl.’s Reply to Gen. Mots. at 2.) Oshana argues it “would be unfair to 

allow the defendant to criticize the plaintiff for not calling a doctor as a witness when she admits 

she did not seek treatment from a doctor.” (Id.)

Notably, Defendant states that it “does not request a missing witness charge.” (Def.’s 

Resp. to Gen. Mots. at 3.) Indeed, Seventh Circuit Pattern Jury Instruction 1.19 permits drawing 

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an adverse inference from the failure to produce a witness only if, among other things, the witness 

was under the control of the party who failed to produce that evidence. That instruction is the 

exception to “the rule that counsel may not argue an adverse inference from an opposing party’s 

failure to call a witness.” United States v. Ogoke, 860 F.3d 924, 930 (7th Cir. 2017). The Seventh 

Circuit has long held that in order to invoke that exception, “the complaining party must establish 

that the missing witness was peculiarly in the power of the other party to produce.” Oxman v. 

WLS-TV, 12 F.3d 652, 661 (7th Cir. 1993). Defendant has not attempted to demonstrate that any 

particular missing witness is under Oshana’s control and therefore may not argue that Oshana’s 

failure to call a particular passenger or physician raises an adverse inference.

Still, the court cannot grant Oshana’s request as it is worded. Though Ogoke and Oxman

confirm that the absence of a particular witness does not support an adverse inference, the case 

law does not bar comment on the overall inadequacy of Oshana’s evidence, including the general 

absence of witness testimony. That is, Defendant may not argue at trial that Oshana’s failure to 

call specific persons, such as a passenger across the aisle from Oshana, or Oshana’s general 

practice doctor, should lead the jury to draw an adverse inference about how they might have 

testified. But Defendant remains free to “point out holes and deficient evidence in [Oshana’s] 

case.” Jones v. City of Chicago, No. 14-cv-4023, 2017 WL 413613, at *8 (N.D. Ill. Jan. 31, 2017); 

see Ross v. City of Chicago, No. 13 C 751, 2014 WL 1344279, at *1 (N.D. Ill. Apr. 3, 2014) 

(“Defendants correctly point out that it is a fundamental trial strategy to point to the absence of 

evidence to support a plaintiff's case such as the absence of eyewitness testimony.”). And it is 

permissible for Defendant to argue that insufficient corroborating evidence casts shade on 

Oshana’s own credibility. See Lewis v. City of Chicago Police Dept., 590 F.3d 427, 444 (7th Cir. 

2009) (“[In a prior case, the Seventh Circuit] drew a distinction between asking a jury to infer that 

a missing witness's testimony would be unfavorable (which is not allowed according to the 

missing-witness rule) and asking a jury to question a party's credibility because it produced no 

corroborating evidence (which is permissible).”).

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Finally, Request to Charge No. 153 does not compel the court to enter Oshana’s proposed 

order. Request to Charge No. 15 is consistent with Ogoke and Oxman in that it recognizes that 

the failure to call any particular witness does not give rise to an adverse inference. But while the 

law does not require any party to call as a witness every person who might have knowledge, a 

party’s failure to call any persons with knowledge is a matter of fair comment. 

Oshana’s General Motions in Limine [36] is granted as to Requests 1, 2, 3, and 5, and 

denied as to Request 4. 

IV. Defendant’s Motion in Limine [37] on Bodily Injury Requirement

Defendant makes two arguments in its motion. First, Defendant argues that Oshana can 

only recover damages for emotional distress where her emotional distress was caused by her

bodily injury. (Def.’s Mot. in Lim. on Bodily Injury Requirement (hereinafter “Def.’s Mot. on Bodily 

Injury”) [37] at 3-9.) Second, Defendant argues that Oshana cannot establish a physical injury as 

required in Article 17 of the Montreal Convention. (Id. at 9-11.) As the court reads this argument, 

it appears to be, in effect, a motion for summary judgment disguised as a motion in limine. Indeed, 

Defendant concludes that “[t]he evidence presented at trial and instructions to the 

jury should reflect that the law controlling Plaintiff’s claim, the Montreal Convention, does not 

permit recovery for [the damages Oshana claims].” (Id. at 3.) The court rejects both of 

Defendant’s arguments and denies the motion.

A. Emotional Distress Damages and the “Causation Rule”

Oshana claims both physical bodily injury and emotional distress. In her trial brief, Oshana 

states that she plans to testify about and prove that “[a]s a result of th[e] incident, the plaintiff had 

pain in her arm, pain and bruising in her hip and buttocks as a result of hitting the armrest, and 

anxiety and feelings of insecurity and being overwhelmed.” (Pl.’s Trial Brief at 2.) While her 

3 It reads, in relevant part: “The law does not require any party to call as a witness 

every person who might have knowledge of the facts related to this trial.” (Proposed Jury Instrs.

at 17.)

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allegations of physical and mental injuries both resulted from the same general incident, Oshana 

specifies that the physical injuries were “a result of being grabbed” and “hitting the armrest when 

the flight attendants threw her into her seat.” (Id. at 3-4.) In contrast, the emotional injuries “were 

the result of having her genitals exposed in front of others.” (Id. at 4.) Thus, Oshana does not 

appear to argue that her physical bodily injuries were the cause of her emotional injuries. 

Defendant notes that Article 17 of the Montreal Convention states that a “carrier is liable 

for damage sustained in case of death or bodily injury of a passenger.” Montreal Convention

(emphasis added). The Supreme Court interpreted a similar phrase from the Warsaw 

Convention—the predecessor to the Montreal Convention—as barring recovery for “purely mental 

injuries.” Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 534 (1991). The Court in Floyd explicitly 

declined to decide whether, as in Oshana’s case, a plaintiff may recover for “mental injuries that 

are accompanied by physical injuries.” Id. at 552-53. That issue has not yet been decided in the 

Seventh Circuit. Defendant argues that other courts have “held that the text of Article 17 and the 

reasoning of Floyd permit recovery of mental injuries ‘only to the extent that they have been 

caused by bodily injuries.’” (Def.’s Mot. on Bodily Injury at 4 (citing Hansen v. Delta Airlines, No. 

02 C 7651, 2004 WL 524686, at *3 (N.D. Ill. Mar. 17, 2004)).) According to Defendant, this 

“causation rule” has been applied “consistently” by the Second, Third, Fifth, and Eighth Circuits. 

(Id. at 4-5 (collecting cases).) Defendant urges this court to adopt such a rule as well, meaning 

that Oshana cannot claim damages for her emotional injuries, as they were not caused by her 

bodily injuries. 

Oshana views the modern state of the law differently. She points out that, since adoption 

of the Montreal Convention, no court of appeals has decided this issue other than the Sixth Circuit. 

(Pl.’s Resp. on Bodily Injury Requirement (hereinafter “Pl.’s Resp. on Bodily Injury”) [45] at 3.) 

And that court, which considered the issue in great detail, declined to apply the causation rule. 

(Id. (citing Doe v. Etihad Airways, 870 F.3d 406 (6th Cir. 2017)).) Doe involved a passenger who 

suffered emotional distress after being pricked by a hypodermic needle while onboard an 

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international flight. Doe, 870 F.3d at 409. The court concluded that, to recover damages for 

emotional distress under the Montreal Convention, a passenger must have a physical injury (such 

as a pricked finger), but the emotional distress need not be caused by the physical injury. Id.

Similarly, Oshana contends, she is entitled to seek recovery for all of her injuries, even though 

her emotional distress was not the result of her physical injuries. (Pl.’s Resp. on Bodily Injury at 

3.) As explained here, the court agrees. 

First, Defendant’s reference to what this court “held” in Hansen is misleading. (See Def.’s 

Mot. on Bodily Injury at 4.) In the portion of Hansen that Defendant cites, the court denied the 

defendant’s motion to dismiss, because on the pleadings, the Warsaw Convention did not 

preempt the plaintiff’s state law claims. Hansen, 2004 WL 524686, at *2-7. In dicta, the court 

cited—but did not discuss—Ehrlich v. American Airlines, Inc., 360 F.3d 366, 385 (2d Cir. 2004), 

in which the Second Circuit applied the causation rule. But the causation rule was not directly 

applicable to resolving the preemption issue before the court in Hansen; rather, the issue was 

whether the plaintiff was “‘in the course of any of the operations of embarking’ under Article 17” 

of the Warsaw Convention. Hansen, 2004 WL 524686, at *3 (citation omitted). The Hansen 

ruling’s lone citation in dicta to a court in another jurisdiction that applied the causation rule does 

not control the issue in this case. 

Turning next to Defendant’s circuit court citations, the court begins with Ehrlich, the 

Second Circuit case cited in Hansen. That court held that “the negotiating history of the Warsaw 

Convention demonstrates that the [French] phrase ‘dommage survenu en cas de . . . lésion 

corporelle’

4 should be read to impose a causation requirement.” Ehrlich, 360 F.3d at 385. 

Similarly, the Eighth Circuit held that “damages for mental injury must proximately flow from 

physical injuries caused by the accident,” because that approach “provides full compensation for 

4 This phrase roughly translates to English as “damage sustained in the event 

of . . . bodily injury,” though the Ehrlich court found that there were multiple potential 

interpretations of certain words. Ehrlich, 360 F.3d at 375-79.

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the victim within the bounds established by the Warsaw Convention.” In re Air Crash at Little 

Rock Arkansas, on June 1, 1999, 291 F.3d 503, 511 (8th Cir. 2002). As Oshana points out, 

Ehrlich and In re Air Crash interpreted the Warsaw Convention, whereas the Montreal Convention 

governs this case. (Pl.’s Resp. on Bodily Injury at 3.) Defendant notes that “[c]ourts routinely 

look to precedent interpreting the Warsaw Convention when dealing with similar provisions in the 

Montreal Convention.” (Def.’s Mot. on Bodily Injury at 3 n.2 (citing Shabotinsky v. Deutsche 

Lufthansa AG, 245 F. Supp. 3d 1018, 1023 n.3 (N.D. Ill. 2017)).) The court agrees that it may 

frequently be useful to turn to Warsaw Convention precedent when interpreting the Montreal 

Convention, but also agrees with the Sixth Circuit in Doe that there is good reason not to do so 

on this particular issue.

In Doe, where the plaintiff had been pricked by a hypodermic need in the seatback pocket 

in front of her, she claimed damages for both her physical injury (her pricked finger) and the 

“mental distress, shock, mortification, sickness and illness, outrage and embarrassment” that 

flowed from her “possible exposure to various diseases.” Doe, 870 F.3d at 409 (internal quotation 

marks omitted). The district court granted the defendant partial summary judgment as to the 

passenger’s claims for emotional distress damages. Id. at 410. On appeal, the Sixth Circuit, 

“after analyzing both the plain text of the [Montreal Convention] and relevant persuasive 

authorities,” held that the district erred when it applied the causation rule. Id. at 411, 433-34.

The court began with the text of the treaty and decided that a defendant’s liability for 

damages sustained “in case of death or bodily injury” does not mean a defendant is liable only for 

damages “caused by death or bodily injury.” Id. at 413. The court observed, first, that “in case 

of” is clearly conditional, not causal language. Id. Second, the court noted that Article 17 imposed 

a separate causal requirement, which indicates that the decision not to impose a causal 

requirement here was intentional. Id. (“The drafters’ use of ‘caused’ to express that an accident 

must have caused the bodily injury thus provides additional support for our conclusion that the 

drafters did not, in the very same sentence, use ‘in case of’ also to mean ‘caused by.’”). 

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The Doe court then considered the holding in Ehrlich, which addressed language in the 

Warsaw Convention. Doe found the Ehrlich court’s “purposivist interpretation of a Frenchlanguage predecessor treaty signed in 1929” unpersuasive, particularly because a purposivist

analysis of the Montreal Convention leads to a different conclusion. Id. at 417. In a lengthy 

examination of the “[h]istory and [p]urpose of the Montreal Convention,” the court identified the 

primary purpose of the Warsaw Convention as “limiting the liability of air carriers in order to foster 

the growth of the fledgling commercial aviation industry.” Id. at 420 (quoting Floyd, 499 U.S. at 

546). When the Montreal Convention was signed 70 years later, the industry was hardly 

“fledgling,” and “the purpose of the Montreal Convention was not to protect the aviation industry, 

but rather to provide a modernized uniform liability regime for international air transportation.” Id.

at 423 (internal quotation marks omitted). “In short,” the Doe court found, “the Montreal 

Convention replaced a restrictive, pro-airline industry regime, with a treaty that favors passengers 

rather than airlines.” Id. (internal quotation marks and citations omitted). And the causation rule, 

which is unsupported by the plain text of the treaty, does not align with that new purpose.

Defendant claims that the reasoning in Doe is flawed for two reasons. First, Defendant 

argues that the court’s “idiosyncratic reading of Article 17 ignores the drafting history of the 

Montreal Convention.” (Def.’s Mot. on Bodily Injury at 6.) Defendant cites a district court opinion 

stating that the Montreal Convention drafters tried “‘wherever possible’ to retain the language of 

the Warsaw Convention ‘with the purpose of not disrupting the existing jurisprudence.’” (Id.

(quoting In re Air Crash at Lexington, KY, Aug. 27, 2006, 501 F. Supp. 2d 902, 907-08 (E.D. Ky. 

2007)).) But the operative language retained by the Montreal Convention—“in case of death or 

bodily injury”—was found to be “ambiguous” by the court in Ehrlich, which is why that court looked 

to the “purposes of the treaty.” Ehrlich, 360 F.3d at 385. And as Doe demonstrates, because the 

purpose of the Warsaw Convention differs from that of the Montreal Convention, not all cases 

interpreting that earlier treaty are authoritative. Notably, Doe accepted the general premise that 

Warsaw Convention precedent remains relevant. See Doe, 870 F.3d at 412 (“[I]nterpretations of 

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the Warsaw Convention have at least some persuasive value in interpreting parallel provisions of 

the Montreal Convention.”) But the Montreal Convention is a superseding treaty, and thus where 

there is reason to depart from past jurisprudence—as there is in this case—the new interpretation 

governs. 

Second, Defendant argues that “jettisoning the causal link requirement would effectively 

nullify the Supreme Court’s holding in Eastern Airlines, Inc. v. Floyd.” (Def.’s Mot. on Bodily Injury

at 7.) Here, too, the court disagrees. As previously noted, Floyd prohibited recovery of purely 

mental injuries; it expressly left unanswered the question whether a plaintiff claiming both physical 

and mental injuries is entitled to recovery. As Defendant sees things, the causation rule is the 

only thing stopping a plaintiff from alleging “some de minimis, subjective injury” to open a “back 

door to recovery of purely psychological injuries.” (Id. (internal quotation marks omitted).) 

Perhaps, but as Defendant recognizes elsewhere (see below), a “bodily injury” under Article 17 

is something more than de minimis physical harm. See, e.g., Tharp v. Delta Air Lines, Inc., No. 

3:20-CV-00258, 2021 WL 3375662, at *2, *8 (D. Or. Aug. 3, 2021) (holding that the plaintiff did 

not suffer a “bodily injury” when another passenger repeatedly touched her during the flight).5

 

Nor is it clear that the Supreme Court would come to the same conclusion were it to 

interpret Article 17 of the Montreal Convention. In reaching its conclusion in Floyd, the Court 

noted the purpose of the Warsaw Convention: “Whatever may be the current view among 

Convention signatories, in 1929 the parties were more concerned with protecting air carriers and 

5 In the course of arguing this point, Defendant also states that the “case at bar is 

comparable to Carey [v. United Airlines, 255 F.3d 1044 (9th Cir. 2001)]. (Def.’s Mot. on Bodily 

Injury at 7-8.) Defendant notes that Carey involved a “heated exchange in which flight attendants 

allegedly proceeded to humiliate [the plaintiff] in front of the other . . . passengers,” and the 

plaintiff claimed “physical manifestations” of “nausea, cramps, perspiration, nervousness, tension, 

and sleeplessness.” (Id. at 7 (citing Carey, 255 F.3d at 1046).) The court does not find Carey 

comparable, as Oshana’s alleged bodily injuries were not “manifestations” of her humiliation, but 

rather were the product of alleged rough physical treatment by the flight attendants. The court is 

also not persuaded by Defendant’s argument that “as in Carey, Plaintiff’s claim is essentially for 

infliction of emotional distress.” (Id. at 8.) As discussed further below, Oshana has in fact alleged

a “bodily injury” under Article 17 of the Montreal Convention.

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fostering a new industry rather than providing a full recovery to injured passengers.” Floyd, 499 

U.S. at 546. As discussed, that purpose is outdated. In any event, the court need not speculate 

as to what the Supreme Court would do today; Doe remains consistent with Floyd because the 

issues in the two cases were different.

Finally, the court is unmoved by Defendant’s citations to cases in the Fifth and Third

Circuits. See Bassam v. Am. Airlines, 287 F. App’x 309, 317 (5th Cir. 2008) (“[E]motional injuries 

are not recoverable under Article 17 . . . unless they were caused by physical injuries.”); 

Terrafranca v. Virgin Atl. Airways Ltd., 151 F.3d 108, 111 (3d Cir. 1998) (holding that to recover 

under Article 17, the passenger “must demonstrate direct, concrete, bodily injury as opposed to 

mere manifestation of fear or anxiety”). As Oshana points out, these cases did not involve 

allegations of a physical injury, and thus did not address the causation rule issue left unresolved 

by Floyd. (Pl.’s Resp. on Bodily Injury at 3; see Bassam, 287 Fed. App’x at 317 (“Bassam has 

not alleged any physical injury.”); Terrafranca, 151 F.3d at 112 (holding that the plaintiff had 

“purely psychic injuries that do not qualify as bodily injuries under the Warsaw Convention”). In 

addition, Bassam is unpublished, and Terrafranca—like Ehrlich and In re Air Crash—interpreted 

the Warsaw Convention. For these reasons, Defendant’s additional citations do not advance its

argument.

B. Bodily Injury Requirement

Defendant argues that Oshana’s “generalized pain” is “insufficient to satisfy the 

requirements of Article 17.” (Def.’s Mot. on Bodily Injury at 9.) Defendant cites four cases, none 

binding on this court, as support for its argument that Article 17 requires proof of an “objective 

and identifiable injury to the body” and requires that injury to be more than “de minimis . . . to 

support a much more significant claim for emotional distress.” (Id. at 9-10 (citations omitted).) 

Article 17 only imposes liability on the condition that a passenger suffers death or bodily injury; 

thus, if the court grants this motion in limine, Oshana could recover nothing. But the parties’ 

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dispute over the legitimacy and severity of Oshana’s claimed bodily injuries are issues for the jury 

to decide, not an issue for the court to rule on in limine.

Moreover, the court agrees with Oshana that the cases Defendant cites are not controlling 

and are factually distinguishable. (Pl.’s Resp. on Bodily Injury at 1-3.) In Tharp, noted above, the 

plaintiff alleged another passenger touched and brushed against her during the flight. Tharp,

2021 WL 3375662, at *4. The plaintiff in Tharp also conceded that the contact “did not cause 

lasting injuries.” Id. The court declines to decide that, as a matter of law, Oshana’s allegations 

of pain and bruising after being roughly thrown into her seat are no more significant than the de 

minimis physical contact at issue in Tharp. 

In Salis v. Ghana Airways, 9 A.D.3d 421, 422 (N.Y. App. Div. 2004), a passenger alleged

that two of the airline’s agents seized his handbag after he was told it was too heavy to qualify as 

carry-on luggage. The passenger alleged that in the act of taking his bag, they “twisted his arm.” 

Salis, 9 A.D.3d at 422. As Oshana points out, it is not clear from the court’s opinion whether the 

agents made any physical contact with the passenger, or if his arm was twisted when they took 

the bag out of his hands. (Pl.’s Resp. on Bodily Injury at 2.) Nor did the court say whether this 

incident caused the passenger any physical pain or suffering beyond his conclusory statement 

that he “suffered bodily injuries.” Salis, 9 A.D.3d at 423. Again, this court is not prepared to say 

that a slight twist of the arm is analogous to Oshana’s allegations. In Rosman v. Trans World 

Airlines, Inc., 34 N.Y.2d 385, 388 (N.Y. 1974), where passengers claimed significant mental 

trauma after their plane was hijacked, the court held that “psychic trauma alone” was not 

compensable under the Warsaw Convention. Rosman, 34 N.Y.2d at 400. Oshana alleges more 

than psychic trauma. Finally, the plaintiff in Liaw v. United Airlines, Inc., No. C 19-00396 WHA, 

2019 WL 6251204, at *1 (N.D. Cal. Nov. 22, 2019), conceded that a faster-than-usual descent 

caused only a “minor” injury that “even he readily describe[d] as de minimis.” Oshana has not 

conceded that her injuries are de minimis. 

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In sum, the court disagrees with Defendant’s arguments that Oshana may only recover 

for emotional distress caused by a bodily injury and that Oshana’s bodily injuries are insufficient 

as a matter of law to support recovery under Article 17. Accordingly, Defendant’s Motion in Limine

on Bodily Injury Requirement [37] is denied. 

V. Defendant’s Motion in Limine [38] Regarding Dr. Searle

Defendant argues that the court should not permit Dr. Searle, identified as a witness by 

Oshana in her Rule 26(a)(2) disclosure, to testify. Defendant argues that Oshana did not adhere 

to the disclosure requirements of Federal Rule of Civil Procedure 26(a)(2)(B), and that Dr. 

Searle’s testimony would separately be inadmissible because it does not meet the relevancy and 

reliability requirements of Federal Rule of Evidence 702. (Def.’s Mot. in Lim. Regarding Dr. Searle 

[38] at 2.) Oshana argues that Dr. Searle’s testimony is not subject to the disclosure requirements 

of Rule 26(a)(2)(B) because she is a treating physician under Rule 26(a)(2)(C). (Pl.’s Resp. 

Regarding Dr. Searle [46] at 2.) Oshana also argues that the record is ambiguous as to whether 

Dr. Searle’s testimony would meet the requirements of Federal Rule of Evidence 702, and as 

such it should not be excluded at this time. Instead, Oshana suggests, the court should permit 

Defendant the opportunity to voir dire Dr. Searle before she testifies at trial to determine whether 

her opinion is the product of reliable principles and methods. 

Dr. Searle is a counseling psychologist who met with Oshana four times between June 28 

and August 3, 2018. (Def.’s Mot. in Lim. Regarding Dr. Searle at 1.) In response to a request 

from Plaintiff’s counsel, Dr. Searle produced only a two-page “summary including diagnosis, 

clinical issues and treatment recommendations.” (Dr. Searle Rep., Ex. 1 to Def.’s Mot in Lim. 

Regarding Dr. Searle (hereinafter “Dr. Searle Rep.”) [40-1] at 2.) When Plaintiff asked Dr. Searle 

to supplement that summary with items called for by Federal Rule of Civil Procedure 26(a)(2)(B), 

Dr. Searle responded by saying that she did not feel equipped to be “such a witness after having 

met with [Oshana] only four times.” (Pl.’s Counsel and Dr. Searle Emails, Ex. 3 to Pl.’s Resp. 

Regarding Dr. Searle (hereinafter “Emails”) [46-3] at 1, 2; see FED. R. CIV. P. 26(a)(2)(B).) In the 

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email exchange that ensued, she stated, further, that, in order for her to offer useful expert

testimony, Oshana would need to undergo “a full battery of psychological tests to 

substantiate/disprove what [Dr. Searle] observed in [their] brief sessions.” (Emails at 2.) When 

counsel replied by explaining that Plaintiff only required testimony concerning the contents of Dr. 

Searle’s report, Dr. Searle responded that she remained “unwilling to do that” because she knew 

“the kinds of questions that could be asked” and she “would not be able to answer based on the 

information” that she had. (Id. at 3, 4.) Dr. Searle later wrote directly to Oshana, stating that she 

was “not in any position to help [Oshana] in a trial setting” and “simply do[es] not have the skill 

that setting requires.”6

 (Id.) 

A. Disclosure Requirement

Plaintiff acknowledges that she has not met the disclosure requirements of Rule 

26(a)(2)(B). (Pl.’s Resp. Regarding Dr. Searle at 2.) Subsection (B) of Rule 26(a)(2) requires the 

disclosure of a written report, containing certain specified items, for any witness “retained or 

specially employed to provide testimony in the case.” FED. R. CIV. P. 26(a)(2)(B). Though she 

cited subsection (B) in her Rule 26(a)(2) disclosure to Defendant, Oshana now claims she has 

instead met the disclosure requirements of subsection (C) of that same Rule. (Pl.’s Resp. 

Regarding Dr. Searle at 2.) Subsection (C) was added in a 2010 amendment to the Rule. See 

FED. R. CIV. P. 26, Committee Notes on Rules—2010 Amendment (hereinafter “2010 Committee 

Note”). It provides that witnesses who are not retained or specially employed to provide testimony 

need not provide a written report and instead must simply disclose “(i) the subject matter on which 

the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; 

and (ii) a summary of the facts and opinions to which the witness is expected to testify.” FED. R.

CIV. P. 26(a)(2)(C). The Committee Note for the 2010 amendment states that “this disclosure is 

6 As this is the most recent email provided by the parties to the court, it is not clear 

that Dr. Searle will in fact be called to testify; if she is not, then Defendant’s motion in limine to 

exclude her testimony is moot. 

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considerably less extensive than the report required by Rule 26(a)(2)(B)” and that “[c]ourts must 

take care against requiring undue detail, keeping in mind that these witnesses have not been 

specially retained.” 2010 Committee Note. “Frequent examples” of these witnesses, the note 

continues, “include physicians or other health care professionals.” Id. 

The court concludes that Dr. Searle’s two-page summary report, though brief, is a 

sufficient disclosure under Rule 26(a)(2)(C). (Pl.’s Resp. Regarding Dr. Searle at 2.) Defendant 

initially argued that Oshana only “superficially” satisfied the requirements under subsection (C) 

(Def.’s Mot. in Lim. Regarding Dr. Searle at 5), but later stated that “[t]he parties agree that Dr. 

Searle can only testify as a ‘treating physician’ and not as a retained expert witness.” (Def.’s 

Reply Regarding Dr. Searle [47] at 1.) With that limitation on the scope of Dr. Searle’s testimony, 

Defendant’s objection based on an inadequate disclosure is overruled. 

B. Substance of Dr. Searle’s Testimony

The parties disagree about the consequences of designating Dr. Searle as a treating 

physician under subsection (C) rather than as a retained expert witness under subsection (B). As 

an initial matter, though, both parties cite Meyers v. Nat’l R.R. Passenger Corp. (Amtrak), 619 

F.3d 729 (7th Cir. 2010), and are in apparent agreement that Dr. Searle may testify only about 

the facts that are in her summary report and the opinions she formed in the course of treating 

Oshana. (See Pl.’s Resp. Regarding Dr. Searle at 2; Def.’s Reply Regarding Dr. Searle at 1-2.)

It is not clear to the court that the parties’ reliance on Meyers is warranted. The Meyers 

ruling was issued prior to the 2010 amendments, and thus the Meyers court was forced to decide 

how to classify treating physicians without an on-point rule of civil procedure. The court held that 

a treating physician who is offered to provide expert testimony as to the cause of 

the plaintiff’s injury, but who did not make that determination in the course of 

providing treatment, should be deemed to be one “retained or specially employed 

to provide expert testimony in the case,” and thus is required to submit an expert 

report in accordance with Rule 26(a)(2).

Meyers, 619 F.3d 729, 734-35 (emphasis added). The court’s use of the word “deemed” in its

holding is notable; treating physicians are generally sought for their treatment and are not 

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“retained or specially employed to provide expert testimony” as stated in subsection (B). 

Arguably, then, by directly addressing treating physicians in its committee notes, the 2010 

amendment to Rule 26(a)(2) distinguishes this holding in Meyers.

Such has been the finding by some district courts in the years following Meyers. A court 

in the Northern District of Indiana found that, “[b]ecause the amendment to Rule 26 attempts to 

clarify the distinction between an expert retained to testify and one who will testify for reasons

independent of trial preparation . . . the amendment overcomes the holding in Meyers.” 

Coleman v. Am. Fam. Mut. Ins. Co., 274 F.R.D. 641, 645 (N.D. Ind. 2011). In that case, where 

plaintiff consulted with the treating physicians for no purpose other than treatment, those 

physicians only needed to comply with the more limited disclosure requirements under subsection 

(C). Id. That was true even though the four experts in that case “intend[ed] to testify to the cause 

of [the plaintiff’s] injuries.” Id.; see also Morrison v. Wal-Mart Stores, Inc., 321 F.R.D. 336, 338-

39 (C.D. Ill. 2017) (noting that Meyers “interpreted a different version of Rule 26(a)(2)” and thus, 

for purposes of disclosure requirements, “Meyers and its progeny are . . . inapplicable”). 

At this juncture, the court need not decide whether Meyers still prohibits a treating 

physician, who was not disclosed according to subsection (B), from testifying about the cause of 

a plaintiff’s injury where that opinion was formed outside the course of providing treatment. 

Oshana herself has not argued that Dr. Searle can provide such testimony. In addition, as 

discussed below, Dr. Searle has made it clear that she cannot reliably provide opinion testimony 

that exceeds the scope of her report, and her report only relays facts and opinions that were

formed during Oshana’s treatment sessions. The potential scope of her testimony is therefore

quite limited, and even under Meyers, Dr. Searle would not be deemed a witness retained or 

specially employed to provide expert testimony. Thus, as both parties agree, Dr. Searle can only 

testify about the contents of her report and the opinions she developed while treating Oshana.

The issue for the court, then, is to determine whether there are facts and opinions in Dr. 

Searle’s report from her sessions with Oshana that are relevant under Federal Rule of Evidence 

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702, and whether Dr. Searle is qualified to testify about them. Defendant argues that “[t]here

simply is no relevant opinion, professional or otherwise, in the Treatment Summary that might 

‘help the trier of fact to understand the evidence or to determine a fact in issue.’” (Def.’s Mot. in 

Lim. Regarding Dr. Searle at 6 (quoting FED. R. EVID. 702(a)).) Defendant also argues that “[t]here 

are no ‘facts’ in the Treatment Summary other than Dr. Searle’s recording of Plaintiff’s statements 

to her during their therapy sessions.” (Def.’s Reply Regarding Dr. Searle at 2.) 

Dr. Searle herself describes her report as “a summary including diagnosis, clinical issues 

and treatment recommendations.” (Dr. Searle Rep. at 2.) Scattered throughout the report are 

statements reflecting Dr. Searle’s own thoughts and actions, such as her observation that 

“[d]epressive symptoms were more manifest in this session.” (Id.) She also noted treatment 

strategies, including that Dr. Searle and Oshana together “made a list of behaviors that could help 

[Oshana] with this heightened anxiety,” and that Dr. Searle made the determination that “[o]ngoing

therapy is indicated to deal with the underlying anxiety that manifests itself in various ways.” (Id. 

at 3.) In the report’s summary paragraph, Dr. Searle offers a “diagnosis of Generalized Anxiety 

Disorder,” and pointed out that “the focus of the patient’s anxiety may shift from one concern to 

the other, as noted in the course of our four sessions of psychotherapy.” (Id.)

As noted in the report, in at least two of the sessions, Oshana and Dr. Searle discussed 

the alleged incident involving Defendant. And Dr. Searle appears to draw a connection between 

that incident and Oshana’s anxiety diagnosis, since the “focus” of Oshana’s anxiety was on her 

concerns “noted in the . . . sessions.” (Id.) The court expresses no opinion on the strength of this 

causation evidence. As Defendant points out, the fact that Oshana’s focus was shifting “from one 

concern to the other” may suggest that factors other than the alleged incident were at least 

partially responsible for her anxiety. (Def.’s Mot. in Lim. Regarding Dr. Searle at 6.) For purposes 

of relevance under Rule 702(a), however, it appears that the report may “help the trier of fact to 

understand the evidence or to determine a fact in issue.” FED. R. EVID. 702(a). 

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Finally, Defendant argues that Dr. Searle’s testimony is unreliable and thus inadmissible 

according to Rule 702. (Def.’s Mot. in Lim. Regarding Dr. Searle at 6.) In support, Defendant 

points to Dr. Searle’s emails to Plaintiff and Plaintiff’s counsel, in which Dr. Searle casts doubt 

upon her willingness and ability to testify. In the court’s view, Dr. Searle’s comments on the 

limitations of her testimony are a basis for cross-examination; those comments do not disqualify 

her as a witness. As Plaintiff suggests, the court will permit Defendant to voir dire Dr. Searle prior 

to her testimony to ensure that what she will say will be the product of “reliable principles and 

methods.” FED. R. EVID. 702(c). Defendant’s Motion in Limine Regarding Dr. Searle [38] is 

provisionally denied. 

CONCLUSION

For the foregoing reasons, and subject to the conditions discussed above, the court grants 

Plaintiff’s Motion in Limine Regarding the Application of Article 20 and 21 [34]; grants Plaintiff’s 

Motion in Limine Regarding the August 26, 2017 Event [35]; grants in part and denies in part 

Plaintiff’s General Motions in Limine [36]; denies Defendant’s Motion in Limine on Bodily Injury 

Requirement [37]; and denies Defendant’s Motion in Limine Regarding Dr. Searle [38].

ENTER:

Dated: January 12, 2022 _________________________________________

REBECCA R. PALLMEYER

United States District Judge

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