The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MAXWELL H. SCHRAMM and
ALEXANDRIA ZIEGLER SCHRAMM,
Plaintiffs,
v. Case No. 3:22-CV-161-NJR
THE PEREGRINE TRANSPORTATION
COMPANY, LLC, and PAMELA KIDD,
Defendants.
MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
Pending before the Court are several issues raised by Plaintiffs, Maxwell Schramm
and Alexandria Ziegler Schramm, and Defendants, The Peregrine Transportation
Company, LLC (“Peregrine”) and Pamela Kidd, in their Trial Briefs (Docs. 136, 137). The
parties argued their positions at the Final Pretrial Conference held on June 11, 2024, and
the Court now rules as follows.
Law Applicable to Plaintiffs’ Punitive Damages Claims
In their Trial Brief, for the first time, Defendants raise the issue of which state’s law
should apply to Plaintiffs’ punitive damages claim—Illinois or Kentucky.1 In Illinois, the
conduct supporting punitive damages must be proven by a preponderance of the
evidence, Kleronomos v. Aim Transfer & Storage Inc., No. 19-CV-01844, 2021 WL 1546428,
at *2 (N.D. Ill. Apr. 20, 2021), while Kentucky law requires proof by “clear and convincing
1 Notably, Defendants cited only to Illinois law when seeking summary judgment on the issue of punitive
damages. (See Docs. 88-89).
evidence,” Louisville SW Hotel, LLC v. Lindsey, 636 S.W.3d 508, 514 (Ky. 2021). Defendants
argue that Kentucky law should apply in this case.
As a federal court sitting in Illinois, this Court applies Illinois’s choice of law rules
to determine which state’s law governs Plaintiffs’ request for punitive damages. Mathis
v. Metro. Life Ins. Co., 12 F.4th 658 (7th Cir. 2021), reh’g denied (Sept. 24, 2021). Illinois
follows the Second Restatement of Conflict of Laws, which looks to the state with the
most significant relationship to the parties and to the dispute. Cont’l Vineyard, LLC v.
Vinifera Wine Co., LLC, 973 F.3d 747, 758 (7th Cir. 2020).
As the Court orally pronounced at the Final Pretrial Conference, Illinois has the
most significant relationship to the parties and the dispute. Schramm is a resident of
Illinois, and the accident occurred in Illinois. While Defendants are residents of Kentucky,
Peregrine uses Illinois roadways to conduct its business. See Curtis v. TransCor Am., LLC,
No. 10 C 4570, 2012 WL 1080116, at *9 (N.D. Ill. Mar. 29, 2012) (“Illinois has an interest in
the application of its punitive damages law to a company that regularly does business
within its borders.”). The Court thus finds that Illinois law shall govern the burden of
proof required for Plaintiffs’ punitive damages claim.
Witness Testimony at Trial
Defendants object to Plaintiffs’ intent to use the deposition testimony of Dr.
Matthew F. Gornet, Dr. Latai E. Grant Brown, and Tammy Mattingly at trial in lieu of
their live testimony.
Rule 32(a)(4) allows a party to use deposition testimony in lieu of live testimony
at trial against another party when the court finds the proffered witness is unavailable.
Hall v. Jaeho Jung, 819 F.3d 378, 383 (7th Cir. 2016). A witness is unavailable under five
circumstances: (A) the witness is dead; (B) the witness is more than 100 miles from the
courthouse; (C) the witness is unable to testify due to age, illness, infirmity, or
imprisonment; (D) the party moving for admission of the deposition testimony could not
procure the witness’s attendance by subpoena; or (E) on motion and notice, exceptional
circumstances—in the interest of justice and with due regard to the importance of live
testimony in open court—make it desirable to permit the deposition to be used. FED. R.
CIV. P. 32(a)(4).
With regard to Dr. Brown, she is an employee of TBI Diagnostic Centers of Georgia
and is located in Georgia. At the Final Pretrial Conference, Defendants noted that
Dr. Brown is licensed to practice medicine in Illinois, but they have provided no evidence
to demonstrate that she lives or works within the state of Illinois. In fact, Dr. Brown
testified that she is licensed to practice medicine in 22 different states given the rise of
telemedicine. The Court thus finds that Dr. Brown is more than 100 miles from the
courthouse and is unavailable to provide live testimony at trial. Plaintiffs will be allowed
to use her deposition testimony.
The Court further finds that Dr. Gornet’s testimony may be presented though his
deposition. Although Dr. Gornet is located within 100 miles of the courthouse, he testified
that he has a busy practice involving numerous patients and clinical research. The Court
also is aware of Dr. Gornet’s demanding schedule. Thus, in the interest of justice, the
Court finds that exceptional circumstances permit the use of Dr. Gornet’s deposition
testimony at trial. See FED. R. CIV. P. 32(a)(4)(E).
Finally, to the extent Plaintiffs still intend to call Tammy Mattingly as a witness,
they have provided no exceptional circumstance or other factor under Rule 32(a)(4) that
would permit the use of her deposition in lieu of live testimony. Thus, the Court finds
that Plaintiffs must subpoena Mattingly for her appearance at trial.
Prior Medical Conditions
Plaintiffs next ask the Court to bar Defendants from cross-examining any treating
physician about Schramm’s prior injuries because Defendants do not have an expert to
connect Schramm’s prior injuries to the issues of causation, damages, or any other issue
of consequence.
In support of their argument, Plaintiffs cite to Voykin v. Estate of DeBoer, where the
Illinois Supreme Court overruled prior Illinois precedent holding that evidence of a prior
injury to the same part of a plaintiff’s body is automatically relevant to the plaintiff’s
present injury simply because it affected the same part of the body. 733 N.E.2d 1275, 1279
(2000). The Illinois Supreme Court explained that admissibility of such evidence comes
down to relevance, and a prior injury could be relevant to the question of causation or
damages if, for example, it establishes that the plaintiff had a preexisting condition and
that the defendant is only liable for the portion of the damages that aggravated or
increased the plaintiff’s prior injury. Id. at 1280. It could also be relevant to impeachment
if a plaintiff has failed to disclose to his physician that he previously suffered an injury to
the same part of the body. Id. To that end, an expert can be questioned about whether his
opinion would be different if he had known about the prior injury. Id.
The Voykin court further held that “if a defendant wishes to introduce evidence
that the plaintiff has suffered a prior injury, whether to the ‘same part of the body’ or not,
the defendant must introduce expert evidence demonstrating why the prior injury is
relevant to causation, damages, or some other issue of consequence” unless the injuries
are such that a lay person could readily understand the relationship between those
injuries. Id. The court also clarified that “requiring a defendant to demonstrate a causal
relationship between a prior and present injury in no way shifts the ultimate burden of
proof.” Id. Instead, it just requires a defendant to demonstrate that the evidence is
relevant to the question at issue: whether the defendant’s negligence caused the plaintiff’s
injury. Id.
Plaintiffs also point to Taylor v. National Railroad Passenger Corporation, in which the
Seventh Circuit reversed a defense verdict where the defendant interjected evidence of
the plaintiff’s prior back problems at trial. 920 F.2d 1372, 1375-76 (7th Cir. 1990). In that
case, the plaintiff was asked on cross-examination whether he had any back problems
prior to the accident at issue. Id. at 1374. The plaintiff stated that he did not. Id. The
defendant then presented evidence of the plaintiff’s military records from 14 years prior
in which the plaintiff went to the Army clinic complaining of back pain. Id. The jury later
returned a defense verdict. Id.
On appeal, the Seventh Circuit determined that evidence of the plaintiff’s prior
back pain was a collateral matter, i.e., an “impeaching fact [that] could not have been
introduced into evidence for any purpose other than contradiction.” Id. at 1375. And “the
collateral evidence rule limits the extent to which the witness’ testimony about non-
essential matters may be contradicted by extrinsic proof.” Id. Because evidence of the
plaintiff’s prior injury would not be admissible for any purpose other than impeachment,
the court found that the evidence was barred by the collateral evidence rule. Id. at 1376.
In so holding, the court emphasized that the defendant could not introduce evidence of
the prior injury unless it “had shown a causal connection to the present injury.” Id.
Here, Plaintiffs argue, Defendants lack expert evidence demonstrating why
Schramm’s prior injuries are relevant to causation or damages. Thus, they should not be
allowed to introduce evidence or cross-examine any treating physician about Schramm’s
prior injuries.
In response, Defendants argue that Schramm failed to disclose all of his prior
accidents and injuries to Dr. Gornet. Therefore, the evidence is relevant for impeachment
purposes. Furthermore, they argue, Schramm claims he cannot remember where he was
treated for any of his prior injuries. As a result, Defendants were prevented from
obtaining Schramm’s prior medical records, and they had no opportunity to elicit expert
testimony demonstrating a causal connection between Schramm’s prior injuries and his
present injuries.
The Court agrees that Schramm’s inability to recall where he was treated for his
prior injuries differentiates this case from Voykin and Taylor. Unlike Voykin, Defendants
were prevented from demonstrating a causal relationship between Schramm’s prior and
present injuries by his inability to recall where he was treated. And unlike Taylor,
Defendants are not attempting to contradict Schramm’s testimony with extrinsic
evidence, as Schramm admitted he suffered previous injuries. Defendants will therefore
be allowed to cross-examine him about those injuries for impeachment purposes.
Defendants also will be allowed to present Dr. Gornet’s deposition testimony
regarding how information about a patient’s prior concussions affects the care that he
provides and that, in this case, Dr. Gornet was not provided with any medical records to
evaluate Schramm’s prior injuries. Dr. Gornet also testified that if he had been able to
review Schramm’s prior medical records, and they were inconsistent with the
information he had, that could affect his opinions in this case. Defendants will be allowed
to admit this testimony. See Voykin, 733 N.E.2d at 1280.
Finally, regarding Dr. Brown, she testified that it would be difficult to distinguish
between damage done to Schramm’s brain from prior concussions and damage from his
July 2021 concussion without reviewing Schramm’s prior medical records. Dr. Brown’s
testimony about the lack of those records and the effect that had on her opinions in this
case will be admitted. See id.
Accident Reconstruction Expert
Finally, in Plaintiffs’ Trial Brief, they argue that Kip Magruder, Defendants’
accident reconstruction expert, should be barred from testifying because there were
eyewitnesses to the accident who will testify. Thus, according to Plaintiffs, the expert’s
testimony would not be useful to the jury.
At the Final Pretrial Conference, Defendants argued that this is a Daubert issue that
should have been raised months prior in a dispositive motion—thus, the argument is
waived. Furthermore, under Federal Rule of Evidence 702, the question is whether
Magruder’s testimony will help the jury determine questions of fact. And here, Magruder
will provide substantial evidence regarding how the accident happened, the position of
the vehicles on the roadway, and the timing of the accident.
The Court agrees with Defendants both that this issue should have been raised
before the deadline for Daubert motions and that Magruder’s testimony will assist the
trier of fact—the jury —to understand the evidence and determine the facts in issue. The
cases cited by Plaintiffs in their Trial Brief support this outcome. In Zavala v. Powermatic,
Inc., the Illinois Supreme Court explained that Plank v. Holman and McGrath v. Rohde—
both of which are cited by Plaintiffs—stand for the principle that expert reconstruction
testimony is proper, even where there is an eyewitness, if what the expert offers is
“knowledge and application of principles of science beyond the ken of the average juror.”
658 N.E.2d 371, 374 (IIL 1995). From Magruder’s accident reconstruction report (Doc. 90-
2), the Court is satisfied that his testimony will provide scientific data and evidence that
is well outside the knowledge of the average juror. Therefore, he will be permitted to
testify at trial.
IT IS SO ORDERED.
DATED: June 13, 2024 Tl
wefpontig!
NANCY J. ROSENSTENGEL
Chief U.S. District Judge
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