Troy Banister v. Craig Burton ( 2011 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1484
T ROY B ANISTER,
Plaintiff-Appellant,
v.
O FFICER C RAIG B URTON, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:06-cv-05759—John W. Darrah, Judge.
A RGUED D ECEMBER 3, 2010—D ECIDED F EBRUARY 14, 2011
Before F LAUM, R OVNER, and E VANS, Circuit Judges.
E VANS, Circuit Judge. Troy Banister sued Chicago
police officers Craig Burton and Marc Moore along with
the City of Chicago (we’ll refer to all the defendants,
collectively, as “the City”) alleging deprivation of his
civil rights under 42 U.S.C. § 1983. A jury returned a
verdict in favor of the City. Banister now appeals the
admission of the testimony of one of the City’s main
witnesses, the City’s failure to file an expert witness
2 No. 10-1484
report under Federal Rule of Civil Procedure 26(a)(2)(B),
and the admission of a remark made during closing
arguments by counsel for the City.
The jury in this case heard two irreconcilable versions
of what ultimately happened on a January night in
Chicago in 2006. We start with the version presented by
Mr. Banister.
Banister, who was in his mid-20s at the time, testified
that on the night in question he was riding around in a
gray van with his girlfriend, Melissa DeBerry, looking to
buy “some weed.” Melissa, who was driving, pulled up
alongside a car and talked to its driver about buying
marijuana. The driver of that car turned out to be Craig
Burton who, unbeknownst to DeBarry or Banister, was
a Chicago police officer working undercover in a drug
operation. The cars moved off the road, then stopped, and
Banister got into the passenger’s side of Burton’s car.
There, they had a “very calm and normal conversation”
with Banister saying he wanted to buy “weed” from
Burton. A few moments later, both got out of the car, and
Banister heard someone (probably Burton) say put your
hands up and “drop the gun.” Banister put his hands
up, but he had no gun to drop. Burton then shot the
unarmed Banister. It is undisputed that thirteen shots
were fired (all the bullets that Burton had in his nine-
millimeter semiautomatic pistol) and that Banister was
hit some six times. Banister said he was about eight feet
away when Burton shot him “for no reason at all.” Most
of the bullets apparently hit an arm, a leg, and Banister’s
buttocks.
No. 10-1484 3
Burton’s story was quite different. He said his role in
the undercover operation was to nail drug sellers and
for that reason, when Banister got into his car and said
“what are you looking for,” he replied “rocks” meaning
crack cocaine. But things went south when Banister saw
Burton’s money. At that point Banister pulled a gun,
demanded money, and said, “Give it up punk-ass nigger.”
Burton said he gave Banister a $20 bill, but that wasn’t
enough. Thus, with Banister threatening him, he opened
the center console of the car and in a panic (he said he
feared for his life and did not want Banister to see
his gun and conclude he was a cop) he “reached in franti-
cally and just threw money at him and said: take the car.”
Banister replied, “I know you got more money,” and
Burton (in an effort to get out of the car) said he
had more in the trunk. Both men then got out of their
respective sides of the car. Banister was still pointing a
gun at him when Burton pulled out his gun, said “police,
drop it” and fired thirteen shots when Banister failed
to comply. The shots were fired in around three to five
seconds. Burton said he fired because he thought he
was going to be killed.
Burton also testified that after being shot, Banister fell
to his back and threw a gun over his shoulder. A gun was
found forty feet from Banister. Banister, who maintains
that he was unarmed, said the police planted the gun
after shooting him as part of a frame-up. After being
shot, paramedics transported Banister to Christ Hospital
in Chicago, where Dr. Ross Fishman treated his gunshot
wounds.
4 No. 10-1484
Subsequently, Banister was charged in state court
with robbery for his role in the aborted drug transaction.
He was acquitted by a jury. That could mean, of course,
that the jury did not believe Burton’s account of the
incident. But one could speculate, alternatively, that
it meant the jury believed Burton’s version of the in-
cident but concluded that getting shot six times was
punishment enough for Banister. No one knows with
100% certainty why the state court jury did what it did.
What we do know for certain is that after the acquittal,
Banister filed this lawsuit in federal court against
Burton and the City of Chicago. He added Moore as a
defendant in his third amended complaint. And with
that, we return to the issues raised on this appeal.
Pursuant to Rule 26(a)(2), the City disclosed its inten-
tion to call Dr. Fishman as a witness, indicating that
he would:
testify as to opinions, including but not limited to
his opinion that [Banister] could have thrown the
handgun with his right hand, and that, medically
speaking, there was nothing that would prevent [him]
from doing so . . . that [Banister] could have crawled
after being shot, and that medically speaking, there
was nothing that would prevent [him] from doing so.
Banister filed a motion in limine to bar Dr. Fishman
from giving his testimony, arguing that the doctor is not
an expert in biomechanics or throwing or crawling.
During Dr. Fishman’s testimony, the district judge held
a sidebar to determine its admissibility. The judge over-
ruled Banister’s objections, responding:
No. 10-1484 5
I don’t think you need expertise in sports medicine
to say whether someone was capable of throwing
something. . . . It would seem to me a doctor could
say whether or not the person he examined would
have the ability to throw an object. And I don’t think
that requires any particular special expertise.
The judge also found that Dr. Fishman was qualified to
testify that Banister “had the physical ability to crawl,”
and that no further expertise beyond his knowledge as
a doctor was required.
Dr. Fishman testified:
[a]lthough Mr. Banister suffered gunshot wounds
to his right upper arm, shoulder area, diagnostic
tests done, x-ray tests done and physical examina-
tion revealed no structural injury of significance. . . .
So in my opinion the mere presence of the gun-
shot wounds and the damage they may have done
to the muscles and to the skin and the fat under-
neath the skin would not have prevented him from
throwing an object.
The doctor also testified that there was nothing in his
opinion that would prevent Banister from being able to
crawl after being shot.
After Dr. Fishman’s testimony, the judge denied Banis-
ter’s motion in limine on the record, finding that the
testimony was admissible and that no written expert
witness report (under Rule 26(a)(2)(B)) was required
since Dr. Fishman was the treating physician. Accord-
ingly, Dr. Fishman’s testimony was heard by the jury in
its entirety.
6 No. 10-1484
During closing arguments, counsel for the City stated:
“Dr. Fishman testified that there was nothing with
the plaintiff’s injuries that would have prevented him
from throwing that gun 40 feet.” Banister immediately
objected. The judge responded, “Ladies and gentlemen,
you heard the testimony in this case. To the extent that
what the lawyers say regarding the testimony does not
comport with your recollection, you should disregard
the statements.” Counsel for the City then corrected
his statement: “He testified that the injuries to him, to
the plaintiff, would not prevent him from throwing an
object.”
The jury returned a verdict in favor of the City on all of
Banister’s claims. Banister filed a motion for a new trial
citing the City’s counsel’s closing argument. The judge
denied the motion for a new trial. Banister’s estate now
appeals.1
Banister first argues that Dr. Fishman did not have the
requisite specialized knowledge to offer an opinion
about his ability to throw a gun or crawl after he was
shot. We review for abuse of discretion the judge’s ruling
on the admissibility of expert testimony. Musser v. Gentiva
Health Services, 356 F.3d 751, 755 (7th Cir. 2004).
1
On December 11, 2009, during post-trial proceedings,
Banister was murdered during an unrelated incident in a yard
on the south side of Chicago. Troy Banister, Sr. was ap-
pointed as the special administrator of the estate of Troy
Banister to pursue this appeal.
No. 10-1484 7
The Federal Rules of Evidence define an “expert” as a
person who possesses “specialized knowledge” due to
his “skill, experience, training, or education” that “will
assist the trier of fact to understand the evidence or
to determine a fact in issue.” Fed. R. Evid. 702. In Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993),
the Supreme Court explained that it is the district court’s
role to act as a gatekeeper before admitting expert
scientific testimony in order to “ensure that any and all
scientific testimony or evidence admitted is not only
relevant, but reliable.” See also Happel v. Walmart Stores,
Inc., 602 F.3d 820, 824 (7th Cir. 2010). When a district
judge applies Rule 702 and Daubert, we will only reverse
a ruling if it is “manifestly erroneous.” General Electric Co.
v. Joiner, 522 U.S. 136, 142 (1997) (quotation marks and
citation omitted).
Banister argues that the admission of Dr. Fishman’s
testimony was erroneous because he is not an expert
in biomechanics or an orthopedic surgeon. In support,
Banister cites several cases in which we found that a
doctor’s experience and training did not fulfill the
criteria of Rule 702 and Daubert. See Wilson v. City of Chi-
cago, 6 F.3d 1233, 1239 (7th Cir. 1993) (holding that the
opinion testimony of a pathologist was properly ex-
cluded because a “pathologist, which is to say an expert
on postmortems” is not an expert on the effects of electro-
shock treatments on the human body and psyche); Rosen
v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir. 1996) (af-
firming the exclusion of a doctor’s opinion on the
grounds that it was a mere “hunch” and “lack[ed]
scientific rigor”).
8 No. 10-1484
But the City correctly explains that both cases are
distinguishable. First, in both cases we affirmed the
ruling of the district court, finding that it did not abuse
its discretion. They were not cases in which we reversed
a district court’s ruling on an abuse of discretion stan-
dard. Second, in Wilson, the issue was whether a patholo-
gist was qualified to testify as to the effects of electro-
shock therapy on the human body or psyche. The dis-
trict judge found that the knowledge of an expert on
postmortems is not the same as that of a neurologist,
psychiatrist or physiologist; and we agreed. The facts
here are different. Dr. Fishman, a trauma doctor, testified
as to the physical abilities of Banister at the time he
treated him. As the judge held, this type of knowledge
is standard to all doctors, and Dr. Fishman was qualified
to testify.
Rosen is equally distinguishable. There, the issue was
whether a nicotine patch caused the plaintiff’s heart
attack. 78 F.3d at 319. Here, Dr. Fishman was not
testifying as to causation, but rather to Banister’s physical
abilities at the time he was involved in the incident
with the officers. He was neither offering a “hunch” nor
presenting evidence that “lack[ed] scientific rigor.” He
was giving his opinion—the opinion of a trained trauma
doctor who treated Banister—as to Banister’s ability to
move after being shot. The judge reasonably concluded
that any “physician [who] studied anatomy” is qualified
to answer such questions. We agree. Dr. Fishman was
perfectly qualified, as both a trauma surgeon and the
doctor who treated Banister, to testify as to Banister’s
ability to throw or crawl at the time of the treatment.
No. 10-1484 9
Finally, Banister argues, citing Deimer v. Cincinnati Sub-
Zero Products, Inc., 58 F.3d 341, 345 (7th Cir. 1995) (physi-
cian is not qualified to testify on matters beyond his
“requisite experience”), Porter v. Whitehall Laboratories,
Inc., 9 F.3d 607, 615 (7th Cir. 1993) (medical opinions
cannot be admitted when a physician intends to give
opinions unsupported by any method), and Cunningham
v. Masterwear Corp., 569 F.3d 673, 674-75 (7th Cir. 2009)
(physician may not present opinions simply because he
is an “experienced physician”), that we have repeatedly
rejected the “trained as a physician” argument to justify
the admission of a doctor’s opinions on matters that are
beyond his (or her) “requisite experience.” While
Banister is correct regarding our precedent, he ignores
the fact that Dr. Fishman is a trauma surgeon who
testified as to the nature and severity of Banister’s
injuries at the time he treated him and then applied
his knowledge of anatomy, gained through his ex-
perience as a trauma surgeon and as a student of medi-
cine, to determine that the gunshot injuries would not
have prevented Banister from using his arm to throw an
object, or from crawling. Therefore, Deimer, Porter, and
Cunningham are distinguishable. The judge did not abuse
his discretion in allowing Dr. Fishman to testify about
Banister’s ability to throw or crawl after he was shot.
Banister next argues that the judge committed reversible
error by allowing Dr. Fishman to testify because the
City failed to file an expert witness report under Rule
26(a)(2)(B). The rule requires that a party must file a
written report “if the witness is one retained or specially
employed to provide expert testimony in the case or one
10 No. 10-1484
whose duties as the party’s employee regularly involve
giving expert testimony.” In Musser, we interpreted this
rule to require that “all witnesses who are to give
expert testimony under the Federal Rules of Evidence
must be disclosed under Rule 26(a)(2)(A)” while “only
those witnesses ‘retained or specially employed to provide
expert testimony’ must submit an expert report complying
with Rule 26(a)(2)(B).” 356 F.3d at 756-57 (emphasis
in original). Accordingly, the City argues that it was not
required to file a report because Dr. Fishman was the
treating physician and he was not retained by the City.
Banister argues that Musser should not end our
inquiry because it does not resolve the question of
whether a treating physician who testifies beyond the
treatment of the patient or beyond the issues covered in
ordinary medical training must file a report. See Fielden v.
CSX Transportation, Inc., 482 F.3d 866, 872 (6th Cir. 2007).
And Banister is correct that in Musser we acknowledged
that “there is some expert testimony in the nature of the
treating physician’s testimony that does not require a
report,” but that “some district courts have suggested
that if the Rule 26(a)(2)(A) testimony exceeds the scope
of treatment and ventures into more general expert
opinion testimony, a report may be necessary.” 356 F.3d
at 758 n.3. Recently, we held that:
a treating physician who is offered to provide expert
testimony as to the cause of the plaintiff’s injury,
but who did not make that determination in the
course of providing treatment, should be deemed to
be one “retained or specially employed to provide
No. 10-1484 11
expert testimony in the case,” and thus is required
to submit an expert report in accordance with Rule
26(a)(2).
Meyers v. National Railroad Passenger Corp., 619 F.3d 729,
734-35 (7th Cir. 2010).
The City, however, correctly argues that Meyers is
distinguishable from the facts of this case. First, Meyers
applies to a physician’s opinion as to the cause of an
injury determined for the purpose of litigation, which is
different from a physician’s opinion as to the effects of the
injury at the time of treatment. Id. Second, Dr. Fishman
did not formulate his opinion at the request of the City
as the doctors in Meyers had. Rather, he gave the same
testimony at the state criminal trial and when he was
deposed by the parties.
Moreover, even if the City was required to file a report
for Dr. Fishman, a new trial is only required if the error
was harmful. The judge found, and we agree, that the
City’s failure to file a report did not harm Banister. In
Westefer v. Snyder, we explained that a district court:
need not make explicit findings regarding a justifica-
tion or the harmlessness of the Rule 26 violation,
but . . . the following factors should guide the
district court’s discretion: (1) the prejudice or surprise
to the party against whom the evidence is offered;
(2) the ability of the party to cure the prejudice; (3) the
likelihood of disruption to the trial; and (4) the bad
faith or willfulness involved in not disclosing the
evidence at an earlier date.
12 No. 10-1484
422 F.3d 570, 585 n.21 (7th Cir. 2005) (citing David v.
Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003)). In this
case, the judge was correct that even if a report was
necessary, the failure to file one was clearly harmless
because Banister wasn’t surprised by the doctor’s testi-
mony—he heard it before in the state trial. Also, Banister
provides no evidence that the failure to file the report
was in bad faith. The City reasonably believed that
Dr. Fishman was not covered by the rule: he was the
treating physician and was not “retained or specially
employed to provide testimony.”
Lastly, Banister argues that he is entitled to a new trial
because the City’s counsel made improper comments
during closing arguments. We disagree. We have “re-
peatedly explained that ‘improper comments during
closing argument rarely rise to the level of reversible
error.’ ” Valbert v. Pass, 866 F.2d 237, 241 (7th Cir. 1989)
(citations omitted). This is “particularly pertinent when
the comment is merely a brief and unrepeated part of a
lengthy argument.” Id. Furthermore, “an instruction to
the jury stating that the arguments of counsel are not
evidence can mitigate the harm potentially caused by
improper statements made by counsel during closing
argument.” Id.In this case, the City’s counsel obviously made a slip
of the tongue when he said, “Dr. Fishman testified that
there was nothing with the plaintiff’s injuries that
would have prevented him from throwing that gun
40 feet.” The “40 feet” part of the comment was not in
evidence. After Banister immediately objected, counsel
No. 10-1484 13
corrected his statement, and the judge immediately
reminded the jury that “[t]o the extent that what the
lawyers say regarding the testimony does not comport
with your recollection, you should disregard the state-
ments.”
The facts here are readily distinguishable from the
cases Banister cites in which we have ordered a new trial.
Counsel did not take “improper advantage of the order
he himself had procured forbidding the plaintiff’s
counsel to put before the jury the true financial conse-
quences of a judgment.” Joseph v. Brierton, 739 F.2d 1244,
1247 (7th Cir. 1984) (granting a new trial when the
district judge’s instructions were not enough to counter
the serious misconduct). Counsel also did not tell the
jury that Banister’s “own lawyer doesn’t believe his
client. . . . He’s not even convinced.” Spicer v. Rossetti, 150
F.3d 642, 643 (7th Cir. 1998) (finding that the counsel’s
comments were “grossly inappropriate” and thus a
new trial was warranted). While counsel’s comment
went a bit too far, it was cured both by his immediate
correction and the judge’s instructions to the jury.
For these reasons, the judgment of the district court
is A FFIRMED.
2-14-11