The opinion
FOR THE SOUTHERN DISTRICT OF ILLINOIS
BRIAN LEE BIRGE, )
)
Plaintiff, )
)
vs. ) Case No. 20-cv-769-RJD
)
VENERIO SANTOS, M.D., and )
WEXFORD HEALTH SOURCES, INC., )
)
Defendants. )
ORDER
DALY, Magistrate Judge:
Plaintiff, an inmate of the Illinois Department of Corrections (IDOC) and formerly
incarcerated at Centralia Correctional Center (“Centralia”), filed this suit pursuant to 42 U.S.C.
§1983 on August 7, 2020. Doc. 1. Plaintiff alleged that Dr. Venerio Santos was deliberately
indifferent to his severe back pain at Centralia, violating Plaintiff’s Eighth Amendment rights. Id.
Plaintiff later filed an Amended Complaint that included a claim against Wexford Health Sources,
Inc. (“Wexford”), a company that contracts with IDOC to provide medical treatment of IDOC
inmates (Doc. 47). Plaintiff alleged that Wexford maintains policies and/or practices that
resulted in the delay or denial of his necessary medical treatment. Id. Plaintiff filed a Motion
for Preliminary Injunction on July 29, 2021 regarding his medical treatment at Centralia; the Court
granted the motion on September 30, 2021. Doc. 81. Plaintiff has since transferred to
Pinckneyville Correctional Center (“Pinckneyville”).
This case is set for trial on March 12, 2024. Currently pending are the parties’ Motions in
Limine (Docs. 193, 206, and 208). Evidence may be excluded in limine if the movant establishes
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Supp. 2d 1020 (N.D. Ill. 2011). Rulings in limine may be reconsidered during trial “as the case
unfolds” and “even if nothing unexpected happens at trial.” Id., quoting Farfaras v. Citizens Bank
& Trust of Chi., 433 F.3d 558, 565 (7th Cir. 2006).
Plaintiff’s Motions in Limine
1. Evidence, testimony, or argument regarding specifics of Plaintiff’s prior arrests and
convictions
Plaintiff acknowledges that he is aware of the undersigned’s typical practice in §1983 cases
involving conditions of confinement to allow the jury to hear that the plaintiff was convicted of a
felony for which he was incarcerated at the time of the events in question, and contends there is
no reason to deviate from this practice for this trial. Defendants have no objection, but they “may
wish to question Plaintiff about his prior arrests or prisoner misconduct…..[regarding] his level of
activity and severity of medical symptoms.” If Defendants intend to do so, they must address this
issue with the Court out of the jury’s presence prior to asking such questions. Plaintiff’s Motion
in Limine No. 1 is GRANTED.
2. Reference to Plaintiff as an “inmate,” “prisoner,” or “felon”
Defendants have no objection, but it is impractical to expect the witnesses to refrain from
referring to Plaintiff as an “inmate.” Plaintiff’s Motion in Limine No. 2 is GRANTED TO THE
EXTENT that defense counsel shall refer to Plaintiff as “Mr. Birge” instead of “prisoner, inmate,
or felon”, but is otherwise DENIED.
3. To allow Plaintiff to appear in civilian clothes without restraints and whatever means
of motor assistance provided by IDOC
Defendants have no objection. Plaintiff’s Motion in Limine No. 3 is GRANTED to the
extent Plaintiff may wear civilian clothes. The Court will also attempt to prevent the jury from
seeing any restraints on Plaintiff. If possible, the Court will not ask Plaintiff to move from the
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Department of Corrections, the U.S. Marshals Service, and courtroom security officers regarding
necessary restraints and motor assistance.
4. Plaintiff’s IDOC conduct violations
Defendants have no objection, except to the extent that certain actions taken by Plaintiff
for which he was disciplined are relevant to show that he is/was not suffering the amount of pain
that he claims. For example, Plaintiff was involved in an altercation with a corrections officer on
October 23, 2021. Defendants contend that the altercation is relevant to show that Plaintiff’s
activity level was inconsistent with his reports of severe pain. The Court reviewed several
documents related to the investigation of the altercation and finds that the probative value of
evidence related to the altercation is minimal. At most, Plaintiff’s active involvement in the
altercation involved a “chest bump” to a correctional officer. Plaintiff’s recollection of the
altercation differs from the correctional officer’s recollection. Presenting the conflicting accounts
of the altercation is likely to lead to a “trial within a trial” as to what happened on October 23,
2021 at Pinckneyville. The risks of confusing the issues and wasting time far outweigh the
probative value of Plaintiff “chest bumping” a correctional officer. Fed. R. Evid. 403.
Plaintiff’s Motion in Limine No. 4 is GRANTED.
5. Evidence or argument that individuals or entities have been dismissed or could have
been named as Defendants
6. Exclusion of non-party witnesses from the courtroom
Defendants have no objection to either Motion in Limine No. 5 or No. 6; both motions are
GRANTED.
7. Expert opinions by Plaintiff’s treating physicians
Defendants disclosed Dr. Santos and Dr. Percy Myers as non-retained expert witnesses
pursuant to Federal Rule of civil Procedure 26(a)(2)(C), meaning they did not provide a written
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disclosing a written report if their opinions are limited to observations and diagnoses made
during the scope of treatment. Meyers v. Nat’l R.R. Passenger Corp., 619 F.3d 729, 735 (7th
Cir. 2010).
Here, Plaintiff does not argue that Drs. Santos or Myers should have provided a written
report for any of their opinions; instead, he contends that they were untimely disclosed as
experts and he has been prejudiced by their untimely disclosure. Defendants disclosed Drs.
Santos and Myers as Rule 26(a)(2)(C) witnesses on October 11, 2023-which was one of the
Court-ordered discovery deadlines in this case. On that same date, the parties moved to
extend the discovery deadline so that Plaintiff could depose Drs. Santos and Myers. Plaintiff
ultimately deposed both doctors.
Plaintiff has failed to establish that he was prejudiced by the timing of the disclosure of
Drs. Santos and Myers as Rule 26(a)(2)(C) expert witnesses. As the Court previously noted,
Plaintiff can hardly be surprised that the doctors would testify as to their observations and
diagnoses of Plaintiff made while they were treating him, considering that this case is about
whether the treatment (or, the alleged lack thereof) Plaintiff has received for his back pain
violated his Eighth Amendment Rights. Moreover, Plaintiff has since deposed both doctors.
What is troubling to the Court-and seems to be confusing this issue-is that Defendants
apparently intend to elicit opinions from Drs. Santos and Myers that Plaintiff has not yet heard
(which would prejudice Plaintiff) and that violate Rule 26(a)(2)(B), which requires treating
physicians to write a report if expected to offer opinions outside of their scope of treatment.
Id. For example, at the final pretrial conference, defense counsel explained that he intended
to elicit testimony from Dr. Myers that would draw upon his “long career as an
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play out.” Defense counsel made a similar statement regarding Dr. Santos, except Dr. Santos
apparently has a background in orthopedics.
Standard of care testimony must be disclosed by a written report. See, e.g., Walsh v. Chez,
583 F.3d 990, 992-94 (7th Cir. 2009); Pierre v. Intuitive Surgical, Inc., 476 F. Supp. 3d 1260,
1275 (S.D. Fla. 2020); Davids v. Novartis Pharmaceuticals Corp., 857 F. Supp.2d 267, 280-
81 (E.D. New York 2012); Griffith v. Eastern Main Med. Ctr., 599 F. Supp.2d 59, 67 (D. Maine
2009). Thus, while Dr. Myers and Dr. Santos may testify about their observations and
diagnoses of Plaintiff, and also explain why they made treatment decisions, they may not
testify regarding the standard of care because they did not author reports pursuant to Rule
26(a)(2)(B). According, Plaintiff’s Motion in Limine No. 7 is GRANTED to the extent that
Dr. Myers and Dr. Santos may only offer opinions reached in the course of the treatment they
provided Plaintiff.
8. Plaintiff’s past drug use or alleged drug-seeking behavior.
The Court takes this motion under advisement. It is not clear whether Dr. Santos or Dr.
Myers (during their course of treating Plaintiff) ever determined or were concerned about
Plaintiff exhibiting drug-seeking behavior. The parties are to submit trial briefs on this issue.
As ordered at the final pretrial conference, Plaintiff’s brief is due on March 1, 2024;
Defendants’ brief is due on March 5, 2024.
9. Plaintiff’s mental health history
Defendants have no objection. Plaintiff’s Motion in Limine No. 9 is GRANTED.
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Defendants’ Motions in Limine
1. Medical treatment provided to other inmates
Plaintiff objects, noting that evidence regarding other inmates’ medical treatment may be
relevant to his Monell claim against Wexford. However, if Plaintiff intends to present
evidence of other inmates’ medical treatment, he has the burden of establishing that such
evidence is relevant. In this case, he will have to show that the care other inmates received is
sufficiently similar to his in order for such evidence to be admitted to establish a pattern of
Constitutional violations. Howell v. Wexford Health Sources, Inc., 987 F.3d 647, 656-57 (7th
Cir. 2021). Neither Plaintiff nor Defendant have provided the Court with any information
regarding what evidence Plaintiff intends to introduce at trial to support his Monell claim. If
Plaintiff intends to present evidence of medical care provided to other inmates at trial, he must
first make an offer of proof outside the presence of the jury. Defendants’ Motion in Limine
No. 1 is TAKEN UNDER ADVISEMENT.
2. Defendants’ insurance
3. The size of Defendants’ attorneys’ law firm or time/cost of defense
4. Settlement negotiations
Plaintiff does not intend to submit evidence regarding Defendants’ insurance, the size of
Defendants’ attorneys’ law firm, the cost of defense, and/or settlement negotiations.
Defendants’ Motions in Limine Nos. 2-4 are DENIED AS MOOT.
5. Wexford is a “for-profit corporation” or a “big” corporation
Plaintiff contends that evidence of Wexford’s financial motivations is relevant in proving
his Monell claim-that Wexford’s financial motivations “relate to the choices of healthcare it
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this time, that evidence regarding showing Wexford is a “for-profit” or “big” corporation is
inadmissible for any purpose, Defendants’ Motion in Limine No. 5 is DENIED.
6. Medical or technical literature
Plaintiff has no objection. Defendants’ Motion in Limine No. 6 is GRANTED.
7. Opinion testimony from witnesses not qualified as experts
In this motion, Defendants ask the Court to prohibit Plaintiff from offering testimony that
would violate Federal Rule of Civil Procedure 26 and the Federal Rules of Evidence regarding
experts. Nothing in the record before the Court suggests that such an order is necessary.
Defendants do not point to any particular witness or problematic testimony. Defendants’ Motion
in Limine No. 7 is DENIED.
8. Other litigation and claims against Defendants
Plaintiff argues that other litigation and claims against Defendants are relevant to his
Monell claim. As previously noted, neither Plaintiff nor Defendant have provided the Court with
any information regarding what evidence Plaintiff intends to introduce at trial to support his
Monell claim. If Plaintiff intends to present evidence of other claims and lawsuits against
Defendants, he must first make an offer of proof outside the presence of the jury. Defendants’
Motion in Limine No. 8 is TAKEN UNDER ADVISEMENT.
9. Instruction to the jury to “send a message to Defendants” or act as the conscience of
the community
Defendants ask the Court to prohibit Plaintiff from arguing that the jury should “send a
message” to Defendants and act as the conscience of the community. Clearly, Plaintiff’s counsel
should not make any argument in opening statements. Testa v. Village of Mundelein, Ill., 89 F.3d
443, 446 (7th Cir. 1996). However, the Court will determine whether Plaintiff may ask for
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that the purpose of such damages is to “serve as a…warning to Defendant and others” and directs
the jurors to consider “the likelihood that Defendant[s] would repeat the conduct if an award of
punitive damages is not made.” See Seventh Circuit Pattern Jury Instruction 7.28. Depending
on whether the jury receives this instruction, Plaintiff may be allowed to argue that the jury should
“send a message.” Consequently, Defendants’ Motion in Limine No. 9 is DENIED.
10. Documents or other evidence not produced in discovery
It is not necessary for the Court to enter a pretrial order that directs Plaintiff’s counsel to
comply with the Federal Rules of Civil Procedure. If Plaintiff’s counsel attempts to introduce
evidence not properly disclosed, Defendants may object at that time. Defendants’ Motion in
Limine No. 10 is DENIED.
11. Comparison of medical treatment in prison to treatment outside of prison
Plaintiff objects, but provides no possible explanation for how a comparison of medical
treatment inside a prison to medical treatment outside of prison could be relevant. The Court
recognizes that the burden is on Defendants, as the movants, to establish that such evidence is
not relevant for any purpose, but in this instance the Court will not require Defendants to prove a
negative. Defendants’ Motion in Limine No. 11 is GRANTED.
12. Testimony by Plaintiff regarding the “cause of injuries and medical treatment”
Defendants contend that “Plaintiff may try to testify that his claimed injuries…were caused
by the conduct of Defendants.” Plaintiff is not an expert, and Defendants’ Motion No. 12 is
GRANTED to the extent that Plaintiff cannot offer expert opinions, e.g., that had he underwent a
particular surgery he would not have experienced pain. However, pain and discomfort are
symptoms that a layperson can understand and offer testimony. Gil v. Reed, 381 F.3d 649, 659
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Defendants’ Motion in Limine No. 12 is DENIED.
13. Argument or reference to Defendants’ failure to take responsibility for their actions
Plaintiff objects, contending that he should be allowed to establish Defendants knew and
disregarded his serious medical needs. Defendants’ Motion in Limine No. 13 is GRANTED but
should not be construed as barring Plaintiff from establishing that Defendants knew about and
disregarded a serious risk to Plaintiff.
14. Affidavits by Plaintiff or other potential witnesses
Neither party points the Court to any affidavits that may be used by Plaintiff at trial.
Defendants’ Motion in Limine No. 14 is DENIED AS MOOT.
15. Statements made to Plaintiff about his injuries, treatment, and cause of injuries
Defendants argue that Plaintiff cannot testify to statements made by “other inmates,
healthcare providers, Wexford employees, jail or IDOC employees, or other jail and prison staff”
regarding Plaintiff’s injuries and medical treatment because any such statements are “inadmissible
hearsay.” The Court cannot evaluate a statement to determine whether it constitutes inadmissible
hearsay without knowing what the statement is, who said it, and the context of the statement.
Defendants’ Motion in Limine No. 15 is DENIED.
16. Dr. Myers’ and Dr. Santos’ prior disciplinary history with Wexford
At the final pretrial conference, the parties informed the Court of specific disciplinary
actions related to Dr. Myers and Dr. Santos that were disclosed in discovery. None of those
disciplinary actions have any relevancy to this case and are prohibited by Federal Rule of Evidence
404(b). Defendants’ Motion No. 16 is GRANTED.
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Neither party lists any news articles, media stories, or opinion pieces in their Rule
26(a)(3) disclosures, and therefore Defendants’ Motion in Limine No. 17 is DENIED AS
MOOT.
18. The Lippert reports
If Plaintiff intends to present portions of the Lippert Reports into evidence, he must first
make an offer of proof outside the presence of the jury. Defendants’ Motion in Limine No. 8 is
TAKEN UNDER ADVISEMENT.
19. Dr. Fisher’s medical opinions or personal treatment of prior patients
Neither party has presented any of Dr. Fisher’s testimony to the Court for consideration.
Defendants’ Motion in Limine No 19 is TAKEN UNDER ADVISEMENT.
IT IS SO ORDERED.
DATED: February 28, 2024
s/ Reona J. Daly
Hon. Reona J. Daly
United States Magistrate Judge
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