Zhu

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

YAFENG ZHU & SHUHUI ZHANG, )

)

Plaintiffs, )

)

vs. ) Case No. 3:24-CV-908-MAB

)

KEELEY & SONS, INC., )

)

Defendant. )

MEMORANDUM AND ORDER

BEATTY, Magistrate Judge:

This matter is before the Court on Defendant Keeley & Sons, Inc.’s Daubert Motions

seeking to exclude the expert reports, testimony, and opinions of Michelle Albers (Doc.

145), Dr. Richard Bowman (Doc. 146), and Dr. Helena Breuer (Doc. 148). For the reasons

set forth below, Defendant Keeley’s Daubert Motions are DENIED (Docs. 145, 146, 148).

BACKGROUND

Plaintiffs Yafeng Zhu and Shuhui Zhang filed this action in March 2024 for

damages stemming from a motor vehicle accident that occurred in April 2022 (see Doc.

1).1 Specifically, Plaintiffs allege that at approximately 12:21 a.m. on April 1, 2022, Plaintiff

Zhu was traveling westbound on a two-lane section of Interstate 70 in Bond County,

Illinois, as part of his employment (Doc. 78 at p. 6). The right lane of the highway

contained markings for ongoing construction, but no construction work was being

performed at that time (Id.). At or near milepost 37.6 westbound, there was a manmade

1 For a more detailed recollection of Plaintiffs’ allegations and the history of this case, see the Court’s Orders

dated March 12, 2025, and January 23, 2026 (Docs. 111, 134).

pothole (i.e., a cutout) that was only marked by cones in the right lane (Id.). According to

Plaintiff, however, the pothole protruded into the left lane without any signs or cones

signifying the full length of the protrusion (Id.). As a result, Plaintiff Zhu’s vehicle crashed

into the manmade pothole, causing the vehicle to flip onto its side and Plaintiff Zhu to

suffer severe injury and expense (Id. at pp. 7-8).

Several months after filing this action, Plaintiffs filed a First Amended Complaint

that no longer raised claims against Defendant Stutz Excavating (Doc. 63; see also Docs.

57, 61). Plaintiffs then filed the operative Second Amended Complaint in August 2024 in

response to the Court’s Jurisdictional Order (Doc. 78; see also Doc. 75). Thereafter,

discovery commenced and Plaintiffs ultimately settled or dismissed their claims against

all Defendants other than Defendant Keeley & Sons, Inc. (see Docs. 104, 108, 154, 165).

Accordingly, this matter is proceeding solely on Plaintiffs claims raised against

Defendant Keeley & Sons, Inc. (hereinafter, “Defendant Keeley” or Defendant) (see Doc.

165 at p. 2). Meanwhile, on February 10, 2026, Defendant Keeley filed three Daubert

motions seeking to exclude the expert reports, testimony, and opinions of Michelle Albers

(Doc. 145), Dr. Richard Bowman (Doc. 146), and Dr. Helena Breuer (Doc. 148). On March

9, 2026, Plaintiffs filed responses in opposition to each of those respective motions (Docs.

155, 156, 157).2

2 Each of Defendant Keeley’s motions and Plaintiffs’ responses attached supporting exhibits, including

expert reports, deposition transcripts, and resumes (see generally Docs. 145-1, 145-2, 146-1 to 146-4, 148-1 to

148-5, 155-1 to 155-4, 156-1 to 156-4, 157-1). The Court’s discussion will summarize and address these

records as appropriate.

EXPERT TESTIMONY STANDARD

The admission of expert testimony is governed by Federal Rule of Evidence

702 and the Supreme Court’s opinion in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579

(1993). See also Krik v. Exxon Mobil Corp., 870 F.3d 669, 673 (7th Cir. 2017); Manpower, Inc.

v. Ins. Co. of Pennsylvania, 732 F.3d 796, 806 (7th Cir. 2013) (Explaining that although

Daubert interpreted a prior version of Rule 702, “it remains the gold standard for

evaluating the reliability of expert testimony and is essentially codified in the current

version of Rule 702.”); Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 778 (7th Cir. 2017)

(stating that even when a federal court’s jurisdiction rests on diversity, Daubert and Rule

702 govern the admissibility of expert witness testimony). Rule 702 provides:

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:

(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 has reliably applied the principles and methods to the facts

of the case.

FED. R. EVID. 702.

Similarly, “Daubert requires the district court to act as an evidentiary gatekeeper,

ensuring that an expert’s testimony rests on a reliable foundation and is relevant to the

task at hand.” Krik, 870 F.3d at 674.3 “Although this places the judge in the role of

gatekeeper for expert testimony, the key to the gate is not the ultimate correctness of the

expert’s conclusions. Instead, it is the soundness and care with which the expert arrived

at her opinion[.]” Schultz v. Akzo Nobel Paints, LLC, 721 F.3d 426, 431 (7th Cir. 2013).

Consequently, the Court’s inquiry must focus upon the principles and methodology

employed by the expert. Id. “In other words, the district court must evaluate: (1) the

proffered expert’s qualifications; (2) the reliability of the expert’s methodology; and (3) the

relevance of the expert’s testimony.” Gopalratnam, 877 F.3d at 779 (emphasis in original).

In conducting that inquiry, district courts possess broad discretion in determining

the relevance and reliability of expert opinion testimony. Krik, 870 F.3d at 674.

Specifically, when determining the reliability of a qualified expert’s testimony under

Daubert, the Seventh Circuit has directed courts “to consider, among other things: (1)

whether the proffered theory can be and has been tested; (2) whether the theory has been

subjected to peer review; (3) whether the theory has been evaluated in light of potential

rates of error; and (4) whether the theory has been accepted in the relevant scientific

community.” Id. (internal quotation marks and citation omitted). Likewise, as it relates to

relevance, the ultimate question is whether the qualified expert’s specialized knowledge

3 Furthermore, the principles set forth in Daubert apply equally to non-scientific fields. See Manpower, 732

F.3d at 806; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999) (holding that a district court’s

gatekeeping obligation applies to all expert testimony).

will “assist the trier of fact to understand the evidence or to determine a fact in issue.”

Daubert, 509 U.S. at 591 (quoting FED. R. EVID. 702(a)).4

“The party seeking to introduce the expert witness testimony bears the burden of

demonstrating that the expert witness testimony satisfies the standard by a

preponderance of the evidence.” Krik, 870 F.3d at 673. Ultimately, however, “[v]igorous

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.” Daubert, 509 U.S. at 596.

DISCUSSION

Defendant Keeley’s Daubert motions seek to exclude the expert reports, testimony

and opinions of three of Plaintiffs’ experts: Michelle Albers, Dr. Richard Bowman, and

Dr. Helena Breuer (Docs. 145, 146, 148). Plaintiffs have filed responses opposing each of

Defendant Keeley’s respective motions (Docs. 155, 156, 157). The Court addresses each

motion in turn.

I. Michelle Albers’s Expert Opinions (Doc. 145)

Plaintiffs retained and disclosed Michelle Albers as an expert witness to provide

opinions and testimony related to Plaintiff Zhu’s employability and loss of earning

capacity (see Doc. 145 at p. 2; see also Doc. 145-1). Defendant Keeley argues that the Court

should exclude the reports, testimony, and opinions of Ms. Albers because her expert

opinions: (1) are not based on sufficient facts and data; (2) are not based on principles or

4 Additionally, Federal Rule of Evidence 403 “overlays all other evidentiary rules by stating that a court

may ‘exclude relevant evidence if its probative value is substantially outweighed by the danger of ... unfair

prejudice, confusing the issues, [or] misleading the jury.’” Krik, 870 F.3d at 674 (quoting FED. R. EVID. 403).

methods reliably applied to the facts of this case; and (3) will not assist the jury (Doc. 145

at p. 4). In response, Plaintiffs contend that Ms. Albers’s testimony, opinions, and report

meet the threshold requirements of Daubert and any further arguments go to the weight

of Ms. Albers’s testimony, not its admissibility (see generally Doc. 155).

As an initial matter, to the extent Defendant Keeley has even raised such a

challenge, the Court finds that Ms. Albers is qualified as an expert in the area she will be

providing her expert opinions on. See Tuf Racing Products, Inc. v. Am. Suzuki Motor Corp.,

223 F.3d 585, 591 (7th Cir. 2000) (“Anyone with relevant expertise enabling him to offer

responsible opinion testimony helpful to judge or jury may qualify as an expert

witness.”). Ms. Albers has a Master of Science degree in rehabilitation psychology from

the University of Wisconsin and has obtained numerous licenses and certifications

related to rehabilitation counseling and life care planning (see Doc. 155-1 at p. 2). In

addition, she has practiced vocational rehabilitation counseling for over 27 years, has

worked as a vocational and life care planner for over 17 years, and has served as a social

security vocational expert since 2004 (Doc. 145-1 at pp. 7-8). Ms. Albers has also served

as an expert witness in numerous cases across various state and federal courts (Doc. 155-

1 at pp. 4-5). Put simply, the Court finds that Ms. Albers is qualified to offer expert

testimony regarding the topics contained in her report (see Doc. 145-1).

Defendant Keeley challenges the sufficiency of the facts and data underlying Ms.

Albers’s opinions, as well as the methodology and reliability of those opinions (see Doc.

145 at pp. 8-14). Specifically, Defendant Keeley contends that Ms. Albers’s opinions are

not the product of sufficient facts and data because, among other things, they were not

personally observed by her, ignored relevant evidence and data, and relied on erroneous

assumptions (Id. at pp. 8-11). Relatedly, Defendant Keeley contends that Ms. Albers failed

to employ her usual methodology in reaching her conclusion (Id. at pp. 8-14). The Court

is not persuaded by Defendant Keeley’s arguments.

Significantly, Ms. Albers’s opinions about Plaintiff Zhu’s inability to work and lost

earning potential were based on sufficient facts and data. Her expert report considered

hundreds of documents including dozens of medical and billing records, depositions, tax

returns, photographs and videos, and numerous other discovery documents from this

case (see Doc. 145-1 at pp. 2-7). In addition to relying upon those documents, Ms. Albers

based her opinions on the information she obtained from a clinical interview with

Plaintiff Zhu and her many years of experience in this field (Id. at pp. 8-20). Frankly, it

does not appear that Defendant Keeley is arguing that those documents are necessarily

insufficient to reach Ms. Albers’s conclusions. Instead, Defendant Keeley appears to be

arguing that Ms. Albers’s analysis and opinions failed to consider other relevant evidence

such as Plaintiff Zhu’s tax returns, and failed to conduct standardized testing or a work

inventory assessment (see generally Doc. 145). Neither of these contentions hold weight.

For one, Ms. Albers explained that Plaintiff Zhu’s tax returns in the years

preceding the accident were not particularly useful in identifying his income at the time

of the accident because they were filed jointly with his wife, he was self-employed as an

owner operator, and he only recently began his employment with his current company

(Doc. 145-2 at pp. 23:12-25:6). Consequently, Ms. Albers instead looked at both the

median wage of truck drivers “with commensurate experience to demonstrate his

earning capacity” and also considered the pay he was to receive per mile, which she

believed provided an accurate representation of his earning capacity (Id. at pp. 24:1-11 &

27:1-24). See, e.g., Owens v. Natl. Collegiate Athletic Assn., No. 11 C 6356, 2022 WL 2967479,

at *9 (N.D. Ill. July 27, 2022) (“Given the general soundness of his methodology, however,

Dr. Scott’s decision to use national averages versus more particularized data also goes to

weight.”). Accordingly, rather than simply failing to consider pertinent facts and data,

Ms. Albers did consider that data and adequately explained why she did not rely on it.

Similarly, Ms. Albers explained why she did not conduct standardized vocational

testing or other assessments such as a work inventory. For the former, she explained that

standardized vocational testing would not have been viable because of Plaintiff Zhu’s

inability to read or write English and the inability to effectively translate the test to

Mandarin (see Doc. 145-2 at pp. 54:14-56:22). For the latter, she provided several

additional reasons for not conducting certain assessments (such as a work inventory

assessment) including the fact that Plaintiff Zhu was almost 55 years old, did not speak

English, and was hindered by the physical and mental limitations found by his doctors

(see Doc. 145-2 at pp. 54:14-63:21).

Defendant Keeley next contends that Ms. Albers failed to rely on personal

observations of Plaintiff to reach her opinions (see Doc. 145 at p. 11). This argument merits

little discussion. Ms. Albers conducted a clinical interview of Plaintiff Zhu, relied on the

depositions of Plaintiff Zhu and his family (see generally Doc. 145-1), and also relied on

the medical records and findings of Plaintiff Zhu’s doctors. See Gopalratnam v. Hewlett-

Packard Co., 877 F.3d 771, 789 (7th Cir. 2017) (Holding that “there is nothing objectionable

about an expert relying upon the work a colleague.”). Ultimately, the Court finds that

Ms. Albers relied on sufficient facts and data to reach her conclusion. The challenges

raised by Defendant Keeley “goes to the weight and not the admissibility of [her]

testimony.” Burton v. Am. Cyanamid, 362 F. Supp. 3d 588, 601 (E.D. Wis. 2019).

Next, Defendant Keeley argues that Ms. Albers’s testimony should be excluded

because she did not follow a reliable methodology, and thus “the opinions included in

her report are unreliable because they amount to mere speculation or conjecture.” (Doc.

145 at p. 11). To the extent this argument is distinguishable from Defendant Keeley’s prior

argument, it too fails because the methodology Ms. Albers used to reach her conclusions

is sufficiently reliable to satisfy Daubert.

That is, Ms. Albers indicated that she relied upon the RAPEL Model and the

Vocational and Rehabilitation Assessment Model (VRAM) to reach her conclusions (see

Doc. 145-1 at pp. 20-21). While Defendant Keeley contends that Ms. Albers merely

explained what those methods entail, without also explaining how they were applied in

this case, the Court does not believe that to be true. Rather, Ms. Albers’s report

demonstrates how she applied those accepted methodologies to the facts of Plaintiff

Zhu’s case (see generally Doc. 145-1). See also Teresko v. The 3M Co., No. 22-CV-1532-JPS,

2024 WL 2864402, at *17 (E.D. Wis. June 16, 2024) (Finding the RAPEL and VRAM

“methodologies are both reliable.”). Ms. Albers’s report explains the factors and evidence

she considered, the methods she applied, and the conclusions she reached based on that

information and her experience (see Doc. 145-1). And, as was discussed above, in the

instances where Ms. Albers did not perform certain tests that she otherwise may have

conducted, she provided adequate explanations for her decisions. Nothing further was

required and Defendant Keeley’s specific challenges are more appropriately reserved for

cross-examination. See Narkiewicz-Laine v. Doyle, No. 11 C 1826, 2017 WL 11889310, at *7

(N.D. Ill. Sept. 13, 2017) (Criticisms of specific aspects of an expert witness’s methodology

and resulting opinion “go more to the weight the jury should give these opinions, rather

than their admissibility.”); Huckaba v. CSX Transportation, Inc., No. 13-CV-0586-MJR-PMF,

2014 WL 12139079, at *6 (S.D. Ill. Aug. 6, 2014) (“Tabak’s methodology is not flawed. Her

failure to deduct x or to consider y is fertile ground for cross-examination by defense

counsel, which should shine light on any areas of potential confusion.”); Lapsley v. Xtek,

Inc., 689 F.3d 802, 805 (7th Cir. 2012) (“A Daubert inquiry is not designed to have the

district judge take the place of the jury to decide ultimate issues of credibility and

accuracy. If the proposed expert testimony meets the Daubert threshold of relevance and

reliability, the accuracy of the actual evidence is to be tested before the jury with the

familiar tools of vigorous cross-examination, presentation of contrary evidence, and

careful instruction on the burden of proof.”) (internal quotation marks and citation

omitted).

Finally, Defendant Keeley argues that Ms. Albers’s testimony and report should

be excluded because her opinions would not assist the trier of fact due to the lack of data

underlying her opinions and errors or inconsistencies in her methodology (Doc. 145 at

pp. 14-15). The Court has already rejected Defendant Keeley’s data and methodology

arguments above. Thus, all that is left is to determine whether Ms. Albers’s opinions may

be helpful to the jury. Suffice to say, the Court believes Ms. Albers’s expert opinion as to

lost earning capacity would be relevant and helpful to the trier of fact in determining

damages, if applicable. In fact, the difficulties in determining Plaintiff’s earnings due to

the lack of individual tax returns and his relatively recent employment at the time of the

incident only further demonstrate the relevance and potential utility of having expert

testimony on this topic. See Smith v. Ford Motor Co., 215 F.3d 713, 721 (7th Cir. 2000)

(“However, under Rule 702, expert testimony need only be relevant to an issue in the

case; it need not relate directly to the ultimate issue.”).

For these reasons, the Court DENIES Defendant Keeley’s Motion to Exclude

Expert Reports, Testimony and Opinions of Michelle Albers (Doc. 145). Defendant Keeley

may raise the challenges discussed above through cross-examination, but none of those

challenges merit the exclusion of Ms. Albers’s expert testimony.

II. Dr. Richard Bowman’s Expert Opinions (Doc. 146)

Plaintiffs retained and disclosed Dr. Richard Bowman as an expert to develop a

disability evaluation and life care plan (see Doc. 146 at pp. 2-3, Doc. 156 at p. 6). Defendant

Keeley argues that the Court should exclude the reports, testimony, and opinions of Dr.

Bowman because they are not based on sufficient facts and data, they do not have a

reliable basis in applied principles and methods within the field of life care planning, and

they will not assist the jury (Doc. 146 at p. 4). In response, Plaintiffs contend that Dr.

Bowman’s testimony and report meet the threshold requirements of Daubert and any

further arguments raised by Defendant Keeley go to the weight of Dr. Bowman’s

testimony, not its admissibility (see generally Doc. 156).

First, the Court finds that Dr. Bowman is qualified as an expert in the area he will

be providing his expert opinions on. See Tuf Racing Products, Inc., 223 F.3d at 591

(“Anyone with relevant expertise enabling him to offer responsible opinion testimony

helpful to judge or jury may qualify as an expert witness.”). Dr. Bowman earned his M.D.

from West Virginia University, and he specializes in physiatry (physical medicine and

rehabilitation) (see Doc. 156-1). In addition, Dr. Bowman has been certified by the World

Institute of Pain as a Fellow of Interventional Pain Practice and he has been certified by

Capital University School of Law as a Certified Life Care Planner (Id. at p. 3). He has also

served on the International Commission on Health Care Certification’s Certified Life Care

Planner Board of Commissioners (Id. at p. 4). Accordingly, due to both Dr. Bowman’s

education and extensive experience in physiatry and life care planning, the Court finds

that he is qualified to offer expert testimony evaluating Plaintiff Zhu’s injuries and

preparing a life care plan based upon those injuries (see Doc. 146-1).

Similar to Defendant Keeley’s challenges to Ms. Albers, Defendant Keeley makes

three primary challenges to Dr. Bowman’s report, testimony, and opinions. First,

Defendant Keeley argues that Dr. Bowman’s evaluation is not supported by sufficient

facts and data (Doc. 146 at pp. 8-11). Second, Defendant Keeley contends that Dr.

Bowman’s evaluation is not based on reliable principles and methods (Id. at pp. 12-15).

And third, Defendant Keeley avers that Dr. Bowman’s evaluation will not be helpful to

the jury (Id. at pp. 15-16). The Court addresses each of these arguments in turn.

Defendant Keeley first argues that Dr. Bowman’s evaluation is not supported by

sufficient facts or data. In this regard, Defendant Keeley emphasizes that Dr. Bowman

“did not perform any physical tests or any kind of investigation” into Plaintiff Zhu’s

capabilities and instead relied on Plaintiff Zhu’s subjective self-reporting (Id. at p. 9).

However, as shown in Dr. Bowman’s report, he relied on extensive medical records from

Plaintiff Zhu’s providers and also evaluated Plaintiff Zhu over Zoom (see generally Doc.

146-1). This was permissible and any further arguments challenging Dr. Bowman’s

reliance on the findings and records of other medical professionals go to the weight of his

opinions, not their admissibility. See, e.g., Hale v. Gannon, No. 1:11-CV-277-WTL-DKL,

2012 WL 3866864, at *3 (S.D. Ind. Sept. 5, 2012) (“It is important to note at the outset that

a life care planner relies on the opinions of appropriately credentialed individuals to

provide identification of treatment and its duration.”); Eliason v. Super. Refining Co. LLC,

No. 19-CV-829-WMC, 2021 WL 4820252, at *6 (W.D. Wis. Oct. 15, 2021) (limiting a nurse

lifecare planner’s “opinion testimony to that supported by physician recommendations

or medical records.”); Paine ex rel. Eilman v. Johnson, No. 06 C 3173, 2010 WL 749861, at *3

(N.D. Ill. Feb. 25, 2010) (“As elaborated in the Court’s Order regarding Defendants’

Motion to Bar Capell’s testimony, however, Capell is qualified as a rehabilitation expert.

As such, he is qualified to provide opinions related to her future medical needs when

considering ‘the natural trajectory of her condition over a period of years.’”).

Notably, after challenging the facts underlying Dr. Bowman’s original report,

Defendant Keeley has expressed significantly greater concern with a supplemental

evaluation and report prepared by Dr. Bowman that altered his projected life care plan

for Plaintiff Zhu from the two to three million dollar range to the six-million dollar range

(compare Doc. 146-1 at p. 23 with Doc. 146-1 at p. 36). According to Defendant Keeley, in

making that substantial adjustment, Dr. Bowman “parrot[ed] the conclusions of another

retained expert and bas[ed] the needs of the Plaintiff on a conversation with the Plaintiff’s

wife,” which was “not an evaluation based on reliable, first-hand information.” (Doc. 146

at p. 10). 5

Pertinently, while the substantial change in Dr. Bowman’s anticipated costs is

something that Defendant Keeley can (and presumably will) emphasize when

questioning Dr. Bowman on cross-examination, neither the adjusted life care costs in that

supplemental report nor Dr. Bowman’s reliance on Dr. Wen’s report change the fact that

Dr. Bowman relied on appropriate treatment records and evaluations to reach his

conclusions. “An expert witness must base his testimony on the facts,” but there is no

requirement that the expert “has to know the facts himself; they can be established by

other witnesses and then used as the premise for his testimony. But the facts must

somehow be gotten into the record for expert testimony premised on them to be

admissible.” Pecoraro v. Walls, 286 F.3d 439, 446 (7th Cir. 2002). Here, that is exactly what

occurred—Dr. Bowman relied on Dr. Wen’s treatment and evaluations to make and

adjust his opinions. While Dr. Bowman’s supplemental changes are undoubtedly fair

game on cross-examination, their supplementation doesn’t change the fact that Dr.

Bowman’s reliance on Dr. Wen’s evaluations was permissible and based on sufficient

facts and data. Walker v. Soo Line R. Co., 208 F.3d 581, 588 (7th Cir. 2000) (“Medical

5 Presumably, in referencing “another retained expert,” Defendant Keeley is referring to Dr. Wen. Notably,

however, the Court has already found that Dr. Wen is a treating physician and not a retained expert witness

(see Doc. 134). Thus, the Court will not revisit this point or any challenge Defendant has raised herein.

professionals have long been expected to rely on the opinions of other medical

professionals in forming their opinions.”).6

Defendant Keeley next contends that Dr. Bowman’s evaluation is not based on

reliable principles and methods (Doc. 146 at p. 12). More specifically, Defendant Keeley

argues that Dr. Bowman relied exclusively on the conclusions of other medical providers,

rather than the underlying data generated by them (Id.). Defendant Keeley also argues

that Dr. Bowman’s predictions fail to account for Plaintiff Zhu’s alleged declination of

treatment and medication (Id. at pp. 12-14). The Court does not find these arguments to

be persuasive.

As explained above, medical professionals may rely on the opinions of other

medical professionals. Walker, 208 F.3d at 588 (7th Cir. 2000) (“Medical professionals have

long been expected to rely on the opinions of other medical professionals in forming their

opinions.”). This is particularly true in the area of life care planning because it would be

virtually impossible to find an expert life care planner who was qualified to opine on

every distinct type of underlying injury.7 See Paine ex rel. Eilman v. Johnson, No. 06 C 3173,

6 Likewise, to the extent Defendant Keeley challenges Dr. Bowman’s alleged “picking and choosing”

between Dr. Wen and another medical provider, that is also a challenge that goes to the weight of Dr.

Bowman’s expert opinion, not its admissibility.

7 As explained in Hale v. Gannon,

It is important to note at the outset that a life care planner relies on the opinions of

appropriately credentialed individuals to provide identification of treatment and its

duration. The first step in composing a life care plan requires gathering and reviewing all

relevant information, including the complete medical records of the client, depositions and

interrogatories of the client's doctors, and day-in-the-life videos. A life care planner will

also interview the client, her family, and her medical care providers. At the second step,

the life care planner then identifies any remaining “holes” in the data and, if needed,

follows-up with the client or her medical care providers to gain additional information.

Once satisfied that all relevant information has been gathered, at the third step the life care

2010 WL 749861, at *3 (N.D. Ill. Feb. 25, 2010) (Rehabilitation expert’s life care plan

provided opinions as to “potential needs in particular areas” and was not “specific

diagnoses or treatment recommendations in those fields, but rather opinions about what

her future medical care might involve on the basis of his review of her medical records

and his evaluation of her current condition.”). Thus, the Court rejects Defendant Keeley’s

argument that Dr. Bowman’s opinion could only rely on the “data generated” by Plaintiff

Zhu’s medical providers and not their overall conclusions (Doc. 146 at p. 12). To the

contrary, had Dr. Bowman relied solely on the data Plaintiff Zhu’s doctors generated, that

would have raised much greater concerns as to Dr. Bowman’s qualifications and

methodology, absent a showing that he was qualified to interpret underlying data from

every type of medical field at issue in this case.

Defendant Keeley’s challenge related to whether Plaintiff Zhu has and will

continue to avail himself of the treatment Dr. Bowman accounted for in his reports is also

a question of weight, not admissibility. Admittedly, evidence that Plaintiff Zhu has not,

or will not, avail himself of treatment that Dr. Bowman anticipated in his life care plan is

something that goes to the weight of Dr. Bowman’s plan and cost estimates. However,

Plaintiff Zhu’s alleged treatment noncompliance does not impact the reliability of Dr.

Bowman’s methodology. And, in regard to methodology, Dr. Bowman reasonably relied

planner “costs-out” the anticipated medical treatment and care indicated by the life care

planner's research. A life care planner is not an economist, however, and therefore she

indicates the costs of the treatment and care in present-day figures. The actual figure

indicated for a specific procedure is unique to the client's geographical area and may be

derived from billing records or internet research.

Hale v. Gannon, No. 1:11-CV-277-WTL-DKL, 2012 WL 3866864, at *3 (S.D. Ind. Sept. 5, 2012)

upon medical opinions as to the care Plaintiff Zhu will need and then expanded upon

that information by using his expertise to estimate future costs. That is an appropriate

methodology for determining Plaintiff’s care costs. Runge v. Stanley Fastening Sys., L.P.,

No. 4:09-CV-130-TWP-WGH, 2011 WL 4903782, at *3 (S.D. Ind. Oct. 14, 2011)

(“Consequently, Lampton’s testimony and Life Care Plan concerning the costs of

placement in a 24–hour care facility are both permissible under Rule 702 because,

contrary to Defendant’s argument, it is based on sufficient facts (the opinions of Dr.

Trexler).”8). Any further challenges about Plaintiff’s compliance with treatment, both to

date and in the future, are challenges to the weight and relevancy of Dr. Bowman’s

opinions, not challenges to his methodology.

Additionally, the Court finds that, at this time, Dr. Bowman’s reports and opinions

are relevant and are likely to assist the jury in determining damages. “A life care plan

assigning a monetary value to medical treatments prescribed for Plaintiff obviously aides

the trier of fact with respect to one determination it must make: the amount of damages.”

Hopey v. Spear, No. 13–CV–2220, 2016 WL 9665159, at *3 (C.D. Ill. Apr. 18, 2016). Plaintiff’s

alleged failure to avail himself of treatment could cast doubt on the relevancy and weight

of Dr. Bowman’s reports and opinions as to future costs, but the appropriate way to raise

those challenges is on cross-examination of Plaintiff Zhu and Dr. Bowman.9 See, e.g.,

8 Significantly, the Runge Court did not further assess this question because an Indiana law made it clear

that the plaintiff was entitled to the value of 24-hour care, even if it was gratuitously provided to him by

family members. Runge v. Stanley Fastening Sys., L.P., No. 4:09-CV-130-TWP-WGH, 2011 WL 4903782, at *3

(S.D. Ind. Oct. 14, 2011).

9 The Court notes that there may be numerous reasons why Plaintiff has allegedly not yet availed himself

of all recommended treatment, from financial concerns to changed conditions and need in the future. See,

e.g., Csikos v. S.M. Constr. & Contracting, Inc., No. 18-CV-9598 (VEC), 2022 WL 3211462, at *9 (S.D.N.Y. Aug.

Guerrero v. Loiacono, 769 F. Supp. 3d 158, 178 (E.D.N.Y. 2024) (Explaining that the fact that

certain care was not recommended does not preclude the need for such care in the future,

but then concluding that “Defendants ‘can and should press’ Dr. Root ‘on these claims

during cross-examination.’”).

Accordingly, the Court DENIES Defendant Keeley’s Motion to Exclude Expert

Reports, Testimony and Opinions of Dr. Bowman (Doc. 146). Defendant Keeley may raise

the challenges discussed above on cross-examination, but none of those challenges merit

the outright exclusion of Dr. Bowman’s expert testimony.

III. Dr. Helena Breuer’s Expert Opinions (Doc. 148)

Plaintiffs retained and disclosed Dr. Helena Breuer as an expert to evaluate the

placement of temporary traffic control devices around the pavement cutout that is the

subject of this case (see Doc. 157 at p. 7; Doc. 148 at pp. 2-3). Defendant Keeley argues that

the Court should exclude Dr. Breuer’s reports, testimony and opinions because: (1) she is

not qualified to provide expert opinions in this case; (2) her opinions are not based on

sufficient facts or data; (3) she has not properly applied principals and methods to the

facts of this case; and (4) her opinions would not assist the jury (Doc. 148 at p. 4). In

response, Plaintiffs contend that Dr. Breuer is qualified to provide her opinions, her

opinions, testimony, and report meet the threshold requirements of Daubert, and any

9, 2022) (“Likewise, the costs of future assistive devices and prescription medications that Plaintiff may

require — irrespective of whether Plaintiff currently requires such care — are not so speculative that a

physician cannot opine on the likelihood Plaintiff will need such treatment in the future. Defendant can

and should press Dr. Carfi on these claims during cross-examination, but a jury could reasonably find that

Plaintiff will likely require psychotherapy, medication, or assistive devices in the future, despite not

needing such care currently.”).

further arguments raised by Defendant Keeley go to the weight of her testimony, not its

admissibility (see generally Doc. 157).

a. Dr. Breuer’s Qualifications as an Expert

Defendant Keeley first avers that Dr. Breuer is not qualified to provide expert

opinions in this case because she lacks sufficient education, training, and experience to

offer those opinions (Doc. 148 at p. 9). As Plaintiffs admit, this is Dr. Breuer’s “first case

as an expert.” (Doc. 157 at p. 9). Obviously, however, the Court’s inquiry focuses on Dr.

Breuer’s qualifications and not her experience or lack thereof as an expert witness.

As to her qualifications, Dr. Breuer obtained a master’s degree and a bachelor’s

degree in civil engineering, both of which included a focus in transportation engineering

(Doc. 148-1 at p. 3; Doc. 148-2). In addition, she obtained a Ph.D. in civil engineering with

a specialization in transportation engineering (Doc. 148-1 at p. 3).10 Dr. Breuer also

completed 280 hours of accident reconstruction-related training approved by the

Accreditation Commission for Traffic Accident Reconstruction (Id.). Conversely,

however, Dr. Breuer does not dispute the fact that she is not a licensed engineer, has not

designed a traffic control plan, has not assisted or evaluated the setup of an active traffic

10 When asked if she had specific experience related to traffic control, Dr. Breuer stated:

Well, I have taken numerous classes that touch on traffic control. I have familiarity with

design guidelines and industry standards that support traffic control management, traffic

control plans. I have had experience from previous work walking through active work

sites and construction and looking at traffic control plans.

(Doc. 148-3 at Tr. 20:3-11).

control plan, and has no prior work experience related to commercial truck drivers in

construction zones (see Doc. 148-3 at Tr. 17:19-24:17).

The Seventh Circuit has explained that “[a]nyone with relevant expertise enabling

him to offer responsible opinion testimony helpful to judge or jury may qualify as an

expert witness.” Tuf Racing Products, Inc. v. Am. Suzuki Motor Corp., 223 F.3d 585, 591 (7th

Cir. 2000). And notably, here the purpose of Dr. Breuer’s investigation and report was “to

determine if the temporary traffic controls (TTC) at the time of the incident (1) met the

requirements outlined in the approved TTC plans, (2) adequately warned road users of

hazards created by work activities, and (3) provided adequate positive guidance for

drivers to safely navigate the work zone.” (Doc. 148-1 at p. 3). Accordingly, given Dr.

Breuer’s extensive education in civil engineering with a focus in transportation

engineering along with her accident reconstruction training, the Court finds that she is

qualified and has an adequate foundation to answer the above questions. See O’Connor v.

Ford Motor Co., No. 19-CV-5045, 2026 WL 579329, at *12 (N.D. Ill. Mar. 2, 2026)

(“Nonetheless, [t]he requirement that an expert be qualified by knowledge, skill,

experience, education or training should not be viewed as being particularly rigorous,

and a witness may qualify as an expert even if the opposing party can point to deficiencies

in his or her qualifications.”) (internal quotation marks and citations omitted).

Defendant Keeley has also argued that, even if Dr. Breuer is qualified to provide

expert opinions on certain transportation related topics, such as passenger vehicles and

commercial vehicles at rest, she is not qualified to provide expert opinions for situations

involving “extensive interstate construction and commercial vehicles traveling on a busy

interstate.” (Doc. 148 at p. 10). However, “[t]he fact that an expert may not be a specialist

in the field that concerns her opinion typically goes to the weight to be placed on that

opinion, not its admissibility.” Hall v. Flannery, 840 F.3d 922, 929 (7th Cir. 2016). Thus, to

the extent Dr. Breuer has greater specialized experience in passenger vehicles or

commercial vehicles at rest, as opposed to “commercial vehicles traveling on a busy

interstate,” that distinction goes to the weight of her expert opinions, not their

admissibility. See id.; see also Arrington v. City of Chicago, No. 17 C 04839, 2022 WL 2105871,

at *6 (N.D. Ill. June 10, 2022) (“Even if traffic collisions are not Bauer’s specialty, ‘a lack of

specialization generally affects the weight of the opinion, not its admissibility.’”).

Accordingly, the Court finds Dr. Breuer is qualified to offer her expert opinions, and any

specific challenges Defendant Keeley has to her qualifications regarding the specific

scenario presented in this case may be raised on cross-examination.

b. Sufficient Facts and Data

Defendant Keeley next argues that Dr. Breuer’s testimony, report, and opinions

should be barred because they are not supported by sufficient facts and data (Doc. 148 at

pp. 10-13). More precisely, Defendant contends that Dr. Breuer’s report is lacking facts

and data because: (1) she never visited the crash site or performed any sort of scene

examination; (2) she has no knowledge of how traffic control measures were placed at the

end of the construction day; (3) she lacks knowledge as to the reasons for the cutout

extension; and (4) her opinions rely on unsupported assumptions (Id.). Again, the Court

is not persuaded.

For one, even if the Court assumes that there was value in Dr. Breuer visiting the

crash site several years after the incident in question,11 Defendant Keeley’s argument

improperly presumes that the failure to personally visit the site renders an expert’s

opinions unreliable. This is an argument that has already been rejected in this circuit on

multiple occasions. For example, in Arrington, the United States District Court for the

Northern District of Illinois stated:

Plaintiffs emphasize that Bauer did not conduct a site visit, instead relying

on photographs and videos, maps, and virtual mock-ups of the intersection,

which they claim render his opinions unreliable. But Courts in this district

have rejected similar arguments that site visits are “required” elements of

accident reconstruction analysis. See, e.g., Paine ex rel. Eilman v. Johnson, 2010

WL 749857, at *2 (N.D. Ill. Feb. 25, 2010) (finding expert’s accident

reconstruction was appropriately founded on traffic collision report,

photographs of the vehicle and accident site, and other mechanical and

structural information); Pike v. Premier Transp. & Warehousing, Inc., 2016 WL

6599940, at *5 (N.D. Ill. Nov. 8, 2016) (rejecting argument that expert’s

failure to inspect the scene of the accident rendered opinions unreliable and

inadmissible). Any discrepancies between the circumstances in those cases

and the situation at bar are tangential—the Court is satisfied that a site visit

was not absolutely necessary and that Bauer’s methodology rests on

sufficient objective evidence to meet the bare foundational requirements for

admissibility. To the extent his failure to visit the site around the time of the

accident undermines the credibility of his opinions, Plaintiffs are free to

cross-examine him on it. See Paine, 2010 WL 749857, at *3 (finding that

expert’s failure to refer to specific pieces of evidence was a factor going to

the weight of his conclusion, not its admissibility).

Arrington v. City of Chicago, No. 17 C 04839, 2022 WL 2105871, at *7 (N.D. Ill. June 10,

2022).

11 The accident in question occurred on April 1, 2022 (see Doc. 78 at p. 3; see also Doc. 148 at p. 1). Meanwhile,

Dr. Breuer’s report is dated July 15, 2025, and she only began working for the firm retained by Plaintiffs in

March 2025 (see Doc. 148-1; see also Doc. 148-2).

Turning to Defendant Keeley’s next contention—that Dr. Breuer has no

knowledge of how traffic controls were placed at the end of the workday—the Court

again finds that this challenge would, at most, go to the weight of Dr. Breuer’s opinions.

For one, Dr. Breuer’s report demonstrates that several individuals associated with

Defendant Keeley have claimed that their placement of safety barrels was permissible at

the time of the accident (see Doc. 148-1 at pp. 15-17). Put simply, Dr. Breuer’s expert

opinion on the placement of safety barrels at the time of the accident is not impacted by

the separate question of whether those safety barrels were initially placed in different,

suitable locations. Moreover, a part of Dr. Breuer’s opinion addresses the question of

whether traffic surveillance should have noticed and fixed any barrels that may have

shifted out of their original position (Id.). Consequently, while Defendant Keeley is free

to question Dr. Breuer as to her knowledge of barrel placement at the end of the workday,

those challenges would only impact the weight of some of her opinions. However, they

by no means indicate that her testimony should be barred in its entirety for relying on

insufficient data.

Defendant Keeley also argues that Dr. Breuer’s opinions should be excluded

because she lacks knowledge as to the underlying cause for the cutout extension (i.e., the

manmade pothole referenced in the Complaint) (Doc. 148 at p. 12). The Court questions

how Dr. Breuer’s alleged lack of knowledge as to the underlying reasoning for the

extension of the cutout impacts her opinions and testimony related to traffic safety.

Certainly, if Dr. Breuer testifies to the need for the extension of the cutout from a

construction standpoint, that is something Defendant Keeley could raise an objection to

at trial. But, as far as the Court can discern, the underlying reason for the extension of the

cutout is not directly relevant to Dr. Breuer’s opinions about traffic safety measures, and

Defendant Keeley’s attempt to conflate these two distinct issues is not persuasive.

For similar reasons, the Court rejects Defendant Keeley’s argument that Dr. Breuer

lacks knowledge to provide expert opinion as to the failure to inform the Illinois

Department of Transportation about the cutout extension. Undoubtedly, if Defendant

Keeley possesses evidence tending to demonstrate that the engineer in question was

informed of the extension, they are free to use that evidence to challenge Dr. Breuer’s

opinion that there is no evidence the engineer was informed. However, at this time,

Defendant Keeley has not shown that Defendant Breuer failed to rely on sufficient facts

when reaching her conclusion that “[t]here is no evidence that Defendants informed the

engineer nor received an inspection following the new saw cuts[.]” (Doc. 148-1 at p. 19).

For the reasons discussed above, the Court rejects Defendant Keeley’s claim that

Dr. Breuer’s expert report and opinions are not supported by sufficient facts and data.

Dr. Breuer’s report denotes numerous sources underlying her opinions and conclusions

(see Doc. 148-1 at pp. 4-5) and any further challenges may be raised on cross-examination.

c. Methodology

Defendant Keeley also avers that Dr. Breuer’s opinions are not the product of

reliable principles or methods (Doc. 148 at pp. 13-16). More specifically, Defendant Keeley

challenges: (1) Dr. Breuer’s use of photogrammetry to form her opinion as to the

extension of the cutout; and (2) her failure to look at other factors that may have

contributed to the incident (Id.). The Court rejects both contentions and finds that Dr.

Breuer reliably applied an acceptable methodology.

Dr. Breuer’s report first describes the site and the accident (Doc. 148-1 at pp. 5-8).

It then lays out the purpose and utility of temporary traffic control measures before

discussing the hazard created by the extension of the cutout (Id. at pp. 8-14). Thereafter,

Dr. Breuer references numerous resources and evidence discussing/specifying what

temporary traffic control occurred in this case and what was required under the

applicable plans and standards (Id. at pp. 14-21). Her report then outlines the

responsibilities the Defendants failed to follow for proper temporary traffic control (Id. at

pp. 21-25). Finally, her report lists seven findings related to the traffic hazard at issue and

the failure to take appropriate actions to protect drivers from it (Id. at p. 26).

To the extent Defendant Keeley has even challenged Dr. Breuer’s overall

methodology, the Court is not persuaded. Dr. Breuer’s report provides sufficient context,

explains and relies on applicable standards and plans, and analyzes Defendant Keeley’s

alleged deviation from those requirements to reach her opinions. In other words, Dr.

Breuer arrived at her opinions with appropriate soundness and care. See Anderson v.

Raymond Corp., 61 F.4th 505, 510 (7th Cir. 2023) (“At all times the correct inquiry focuses

not on the ultimate correctness of the expert’s conclusions, but rather on the soundness

and care with which the expert arrived at her opinion.”) (internal quotation marks and

citations omitted).

Moreover, regarding the specific photogrammetry challenge Defendant Keeley

has raised, the Court finds that such an approach was permissible because it satisfies the

reliability requirements specified in Daubert. See Deputy v. Lehman Bros., Inc., 345 F.3d 494,

505 (7th Cir. 2003) (listing factors that, pursuant to Daubert, could be considered in

assessing the reliability of expert testimony). Crucially, not only has photogrammetry

become more precise as technology has advanced, but “photogrammetry itself has a long,

recognized history of reliability in the scientific and judicial community.” Gecker as Tr. for

Collins v. Menard, Inc., No. 16 CV 50153, 2019 WL 3778071, at *4 (N.D. Ill. Aug. 12, 2019).

If Defendant Keeley seeks to raise any specific challenges to Dr. Breuer’s measurements

or methodology in using that technique, it can do so on cross-examination.

Additionally, the Court is not persuaded by Defendant Keeley’s argument that Dr.

Breuer’s methodology was inadequate because she failed to use the same methodology

to “determine Plaintiff’s lane positioning” or “the width of other cutouts in the

construction zone.” (Doc. 148 at p. 14). If Defendant Keeley wanted an expert to opine on

Plaintiff’s lane positioning or the adequacy of temporary traffic controls for other cutouts

in the area, it should have retained its own expert to conduct that analysis. The Court will

not fault Dr. Breuer’s methodology because she did not undertake a task she was not

retained to perform. For the same reason, the Court rejects Defendant Keeley’s argument

that Dr. Breuer’s methodology is flawed because she did not adequately consider the

implications of Plaintiff Zhu’s alleged speeding (see Doc. 148 at pp. 14-15). While

Defendant Keeley is free to examine Dr. Breuer on the traffic safety implications of any

alleged speeding, the absence of such discussion in her report does not demonstrate a

flawed methodology or otherwise cast doubt upon her opinions related to traffic safety

and barrel placement.

In conclusion, the Court finds that Dr. Breuer’s opinions are the product of reliable

principles and methods. Any further challenges to Dr. Breuer’s methodology may be

raised on cross-examination.

d. Dr. Breuer’s Report is Relevant and Will Assist the Trier of Fact

Finally, Defendant Keeley argues that Dr. Breuer’s opinions, report, and testimony

should be excluded because they will not assist the trier of fact (Doc. 148 at pp. 16-17). In

support of this contention, Defendant avers that Dr. Breuer’s report and opinions are

unreliable, provide little to no independent investigation, and can readily be observed

through evidence in the record (and underlying standards and specifications cited

therein) (Id.). The Court does not find any of these arguments convincing.

The Court need not rehash its prior finding that Dr. Breuer’s methodology was

reliable. It was. Likewise, that methodology demonstrates that Dr. Breuer provided

ample independent investigation. In fact, the Court finds it curious that Defendant Keeley

challenged Dr. Breuer’s use of, among other things, photogrammetry, while also claiming

that she provided no useful independent analysis. Regardless, the Court finds that Dr.

Breuer’s report and opinions rely upon useful, independent analysis of temporary traffic

control standards and compliance. Moreover, contrary to Defendant Keeley’s argument,

the Court does not believe that the pictures and other evidence in the record adequately

establish whether traffic control measures were appropriately followed. In addition,

contrary to Defendant’s assertions, such a topic is not within the purview of the average

juror. Arrington v. City of Chicago, No. 17 C 04839, 2022 WL 2105871, at *5 (N.D. Ill. June

10, 2022) (“In cases involving complicated questions of accident causation—perhaps

involving more vehicles or unexpected mechanical behavior —accident reconstruction

experts might provide valuable assistance in understanding what really ‘caused’ a

crash.”); Davis v. Duran, 277 F.R.D. 362, 366-67 (N.D. Ill. 2011) (“To be helpful, the

testimony must concern a matter beyond the understanding of the average person.”). In

fact, this point is demonstrated by the discussion in Dr. Breuer’s report which explains

how at least two employees of the defendants believed the safety barrels were

appropriately placed or did not need to be addressed (see Doc. 148-1 at p. 15).

Accordingly, the Court concludes that Dr. Breuer’s opinions and testimony would

be of assistance to the jury. In addition, Dr. Breuer’s opinions are based on sufficient facts

or data and were the product of reliable principles and methods. As a result, the Court

DENIES Defendant Keeley’s Motion to Exclude Expert Reports, Testimony and Opinions

of Dr. Breuer (Doc. 148).

CONCLUSION

For the reasons discussed above, Defendant Keeley & Sons, Inc.’s Daubert Motions

seeking to exclude the expert reports, testimony, and opinions of Michelle Albers (Doc.

145), Dr. Richard Bowman (Doc. 146), and Dr. Helena Breuer (Doc. 148) are DENIED. A

Status Conference will be set by separate order to discuss trial scheduling and the utility

of engaging in an additional mediation.

IT IS SO ORDERED.

DATED: July 2, 2026

MARKA.BEATTY ——

United States Magistrate Judge

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