Hebert v. Illinois Department of Corrections

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

EXODUS HEBERT, et al., )

)

Plaintiffs, )

) No. 24 C 7950

v. )

) Judge Sara L. Ellis

ILLINOIS DEPARTMENT OF JUVENILE )

JUSTICE, et al., )

)

Defendants. )

OPINION AND ORDER

Plaintiffs Exodus Hebert, Antonio Monroe, Damen Gonzales, Deleon Moffett, George

Garcia, Jeremiah Brown, Isaiha Herring, Thailan Hopkins, Shirice Hendrix, Darrion Longstreet,

Antwon Tompkin, Ivan Johnson, Keyshawn Nichols, Jesse Garza, Nyree Dugans, Antjuan

Davis, Amaru Evans, Robert “Raven” Melton, Quran Broomfield, Dasheem Pickens, and

Delcheva Harris (collectively, the “Named Plaintiffs”) brought this lawsuit on behalf of

themselves and others similarly situated (the “Putative Class”), alleging that the Illinois

Department of Corrections (“IDOC”), Illinois Department of Juvenile Justice (“IDJJ”), and

Illinois State Board of Education (“ISBE”) (collectively, “Defendants”) violated state and federal

law by failing to provide and monitor adequate education to young people with disabilities in the

custody of IDOC. The Named Plaintiffs have moved for a preliminary injunction to require

Defendants to take several actions regarding their education programs. The Named Plaintiffs

support their motion for a preliminary injunction with testimony and a declaration from an expert

witness, Michael P. Krezmien. Defendants move to exclude Krezmien’s declaration, opinions,

and testimony. Because the Court finds that Krezmien’s declaration is not so lacking in

reliability or relevance that exclusion is warranted, the Court denies Defendants’ motion.

However, the Court will not consider the portions of Krezmien’s declaration that offer improper

legal conclusions and bars Krezmien from testifying as to any such legal conclusions at the

preliminary injunction hearing.

BACKGROUND

Krezmien is a professor of special education at the University of Massachusetts, Amherst,

with a Ph.D. in special education. He has written multiple articles on education for incarcerated

young people and special education; worked on many different investigations, evaluations, and

lawsuits related to youth education and special education; and received millions of dollars in

grants and funding. In this case, the Named Plaintiffs asked Krezmien to provide an opinion on:

(1) [T]he Illinois Department of Corrections (IDOC) and Illinois

Department of Juvenile Justice (IDJJ) procedures for identifying

individuals with disabilities who are eligible for special education,

(2) the IDOC and IDJJ methods for notifying students of their

special education eligibility, (3) the lack of special education and

related services, and associated credit-bearing high school

educational programming for individuals with disabilities within

IDOC as implemented by the IDJJ, (4) the access individuals with

disabilities have to post-secondary education, vocational

programming, and college programming at IDOC, (5) the post-

release economic and employment impact associated with lack of

access to education and special education for individuals with

disabilities at IDOC, (6) the impact the lack of access to education

and special education has on recidivism for individuals with

disabilities at IDOC, (7) the lack of oversight by the Illinois State

Board of Education (ISBE) of education and special education of

individuals with disabilities at IDOC who are eligible for special

education, and (8) the ways IDOC and IDJJ can safely provide

special education and credit-bearing high school education.

Doc. 20-1 at 30.

Krezmien offers several opinions on these topics and reviewed many different documents

in preparation of his opinions, including federal guidance documents, IDOC documents and

websites, IDJJ websites, published articles, publicly available GED practice tests, and

declarations and files from the Named Plaintiffs. Krezmien also states that he reviewed some

materials from Due Process Hearings held with regards to two of the Named Plaintiffs, Exodus

Hebert and Antonio Monroe, (the “Due Process Hearings”) including stipulated facts and

deposition transcripts.

LEGAL STANDARD

Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579 (1993), govern the admissibility of expert evidence. See Bielskis v. Louisville Ladder,

Inc., 663 F.3d 887, 893 (7th Cir. 2011). Rule 702 provides that “[a] witness who is qualified as

an expert by knowledge, skill, experience, training, or education may testify in the form of an

opinion or otherwise if the proponent demonstrates to the court that it is more likely than not

that: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of

fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on

sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and

(d) the expert’s opinion reflects a reliable application of the principles and methods to the facts

of the case.” Fed. R. Evid. 702. An expert may ground their opinion in “personal knowledge or

experience” rather than pure scientific analysis. Kumho Tire Co. v. Carmichael, 526 U.S. 137,

150 (1999) (“[T]here are many different kinds of experts, and many different kinds of

expertise.”). “The Rule 702 inquiry is ‘a flexible one,’” and the Seventh Circuit grants “the

district court wide latitude in performing its gate-keeping function.” Bielskis, 663 F.3d at 894

(quoting Daubert, 509 U.S. at 594). “Determinations on admissibility should not supplant the

adversarial process; ‘shaky’ expert testimony may be admissible, assailable by its opponents

through cross-examination” or the presentation of contrary evidence. Gayton v. McCoy, 593

F.3d 610, 616 (7th Cir. 2010) (citation omitted); see also Daubert, 509 U.S. at 596 (“Vigorous

cross-examination, presentation of contrary evidence, and careful instruction on the burden of

proof are the traditional and appropriate means of attacking shaky but admissible evidence.”).

The party seeking to admit the expert’s testimony must show that it satisfies this test by a

preponderance of the evidence. Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 782 (7th

Cir. 2017).

Simultaneously, “evidentiary rules are relaxed at the preliminary injunction stage, and the

Court has substantial discretion to hear and receive evidence intended to ‘preserve the relative

positions of the parties until a trial on the merits can be held’ whether or not that evidence

complies with formal rules and procedures.” City of Evanston v. N. Ill. Gas Co., 381 F. Supp. 3d

941, 948–49 (N.D. Ill. 2019) (quoting Kos Pharm., Inc. v. Andrx Corp., 369 F.3d 700, 718 (3d

Cir. 2004)). Further, the Court’s ruling on the admissibility of Krezmien’s expert opinions at this

stage may not reflect how the Court would rule on the admissibility of Krezmien’s opinions if

the case proceeded to trial. See id. at 949.

ANALYSIS

Defendants argue that the Court should exclude Krezmien’s testimony and declaration

because (1) it is not reliable, as it employs an unreliable methodology and relies on inadequate

evidence; and (2) it is not relevant, as it offers improper legal and factual conclusions. After

careful examination of Krezmien’s declaration, the Court finds that the issues Defendants raise

are appropriate for cross-examination at the preliminary injunction hearing and the wholesale

exclusion of Krezmien’s declaration and testimony is not necessary at this time.

Defendants do not challenge Krezmien’s qualifications. The Court finds that Krezmien is

qualified to offer opinions on Defendants’ educational programs for young people with

disabilities in IDOC custody. Kremein has significant educational credentials and professional

experience with regards to both young people and people with disabilities in correctional

settings. Having found him qualified to offer his opinions, the Court turns to Defendants’

challenges to Krezmien’s declaration and proposed testimony.

A. Reliability

Defendants argue that Krezmien’s declaration is not reliable because it contains many

unsupported, conclusory statements and Krezmien did not rely on credible or reliable sources.

Reliability “is primarily a question of the validity of the methodology employed by an

expert, not the quality of the data used in applying the methodology or the conclusions

produced.” Manpower, Inc. v. Ins. Co. of Pa., 732 F.3d 796, 806 (7th Cir. 2013). “The

soundness of the factual underpinnings of the expert’s analysis and the correctness of the

expert’s conclusions based on that analysis are factual matters to be determined by the trier of

fact, or, where appropriate, on summary judgment.” Id. (quoting Smith v. Ford Motor Co., 215

F.3d 713, 718 (7th Cir. 2000)). However, the Court still has a duty to ensure an expert supports

his opinions with “sufficient facts or data.” See id. at 808 (citation omitted). There must be “a

connection between the data employed and the opinion offered,” and the Court should exclude

an “opinion connected to existing data ‘only by the ipse dixit of the expert’” under Rule 702.

Gopalratnam, 877 F.3d at 781 (quoting Manpower, 732 F.3d at 806).

Here, Krezmien bases his opinions on sufficient facts and data, and he does not rely on

ipse dixit to support his opinions. Toward the beginning of his declaration, Krezmien provides a

list of the materials he reviewed in preparing his opinion, which include federal guidance

documents, documents from Defendants, and documents from the Named Plaintiffs. Further,

through his declaration, Krezmien provides specific references for many sentences in footnotes.

Defendants’ arguments that Krezmien over-relies on information from the Named Plaintiffs and

did not request adequate information to form his opinions is not a sufficient basis to exclude his

opinion; instead, Defendants can explore these issues on cross-examination. See Africano v.

Atrium Med. Corp., 561 F. Supp. 3d 772, 778 (N.D. Ill. 2021) (rejecting an argument that experts

failed to consider certain facts or placed too much emphasis on certain facts over others as that

argument goes “to the weight of the expert’s opinion, not its admissibility” and explaining the

party could raise the issue in cross-examination). That Krezmien’s declaration would benefit

from more detailed footnotes and descriptions of the materials on which he relied similarly does

not pose a reason to exclude his declaration and testimony at this time. See Godinez v. City of

Chicago, No. 16 CV 7344, 2019 WL 5290901, at *6 (N.D. Ill. Oct. 18, 2019) (“The question of

whether the expert is credible or whether his or her theories are correct given the circumstances

of a particular case is a factual one that is left for the jury to determine after opposing counsel

has been provided the opportunity to cross-examine the expert regarding his conclusions and the

facts on which they are based.” (quoting Smith, 215 F.3d at 719)).

Further, Krezmien’s report is not improperly conclusory. In support of their argument

that Krezmien’s declaration contains improper, unsupported conclusions, Defendants provide a

list of sentences from Krezmien’s report. Krezmien does not support many of these sentences

with footnote citations to specific evidence, rather they appear to be conclusion statements.

However, in context, some of these sentences are introductory and Krezmien provides more

information to support them in subsequent sentences. Further, Krezmien provides a list at the

beginning of his declaration of the materials he reviewed to inform his opinions. Again, these

statements raise issues that are ripe for cross-examination, but do not require exclusion.

Defendants will have the opportunity to cross-examine Krezmien at the preliminary injunction

hearing to attempt to show the Court that Krezmien lacks an adequate basis to offer these

opinions. See Gayton v. McCoy, 593 F.3d 610, 616 (7th Cir. 2010) (“Determinations on

admissibility should not supplant the adversarial process; ‘shaky’ expert testimony may be

admissible, assailable by its opponents through cross-examination.” (citation omitted)).

Finally, in reply, Defendants point out some seeming contradictions between certain

statements in Krezmien’s declaration and his factual support, including materials from the Due

Process Hearings. The Named Plaintiffs filed a sur-reply brief attempting to explain and

reconcile the seeming inconsistencies. This is the exact sort of issue that is appropriate for cross-

examination at the preliminary injunction hearing. See Lapsley v. Xtek, Inc., 689 F.3d 802, 817

(7th Cir. 2012) (“Vigorous cross-examination, presentation of contrary evidence, and careful

instruction on the burden of proof are the traditional and appropriate means of attacking shaky

but admissible evidence.”) (citation omitted). The Court declines to exclude Krezmien’s

declaration and testimony on the basis of unreliability.

B. Relevance

Next, Defendants argue that Krezmien’s declaration and proposed testimony is not

relevant because it merely recites the factual record and provides improper legal conclusions.

The Court finds that Krezmien’s proposed testimony is relevant as it has the potential to

assist the trier of fact determine facts at issue. Krezmien has significant previous experience

evaluating and investigating juvenile and special education programs in correctional settings.

His declaration does not merely recite the Named Plaintiffs’ evidence, as argued by Defendants,

rather he offers opinions on the facts he has reviewed based on his professional experience. See

Kumho Tire, 526 U.S. at 150 (holding that an expert’s opinion may be reliably based on their

“personal knowledge or experience”).

That said, the Court will not consider Krezmien’s declaration or permit his testimony to

the extent his opinions amount to legal conclusions. “Although experts may provide opinions as

to the ultimate factual issues in a case, they may not testify ‘as to legal conclusions that will

determine the outcome of the case’ under Rule 702.” Jn re Dealer Mgmt. Sys. Antitrust Litig.,

581 F. Supp. 3d 1029, 1096-97 (N.D. Ill. 2022) (quoting Scottsdale Ins. Co. v. City of

Waukegan, 689 F. Supp. 2d 1018, 1022 (N.D. II. 2010)). For the most part, Krezmien’s

declaration only touches on the applicable legal standards and statutory framework as

background to his discussions of what he sees as problems with Defendants’ conduct. This is

acceptable factual analysis of issues in the case. However, at some points in his report,

Krezmien appears to veer into offering a legal conclusion on an ultimate question in the case.

See, e.g., Doc. 20-1 at 38 (“The IDOC and IDJJ failed to meet the IDEA (2004) requirements to

have structures and processes in place for identifying, locating, and evaluating students with

disabilities who have a previously identified disability under the IDEA and are in need of special

education and related services.”). To the extent that Krezmien does so, the Court will not

consider these legal conclusions. The Named Plaintiffs should ensure that Krezmien does not

provide any such legal conclusions during his testimony in this case. However, the Court denies

Defendants’ motion to exclude the entirety of Krezmien’s declaration and testimony based on

these legal conclusions, as they form only a small part of his otherwise acceptable analysis.

CONCLUSION

For the foregoing reasons, the Court denies Defendants’ motion to exclude the

declaration, opinions, and testimony of Michael P. Krezmien, Ph.D. [73]. However, the Court

will not consider any legal conclusions offered by Krezmien in his declaration and bars

Krezmien from making any such legal conclusions during his testimony.

Dated: February 18, 2025 i YR

SARA L. ELLIS

United States District Judge