Banister v. Burton, 636 F.3d 828

Banister alleges 42 U.S.C. § 1983 violations against Officer Burton, Officer Moore, and the City of Chicago for excessive force in 2006.
Two diametrically opposed versions of events: Banister says Burton shot him unarmed after a traffic stop during an undercover drug sting; Burton says Banister pulled a gun and he fired in self‑defense.
Dr. Ross Fishman, Banister’s treating trauma physician, testified Banister could have thrown a gun and could have crawled after being shot.
City disclosed Fishman as an expert under Rule 26(a)(2)(B); Banister moved in limine to bar the testimony for lack of a written report.
District court determined Fishman was not required to file a Rule 26(a)(2)(B) report and admitted his testimony.
Closing arguments included a brief misstatement by City counsel about Fishman’s testimony, which was then corrected by counsel and the court.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was Fishman admissible as an expert?	Banister contends Fishman lacked specialized biomechanics expertise.	City contends a trauma surgeon can opine on Banister’s physical capabilities post‑tiring injuries.	Yes; Fishman qualified as an expert in context of treating trauma physician giving post‑treatment physical‑ability opinions.
Rule 26(a)(2)(B) requirement for treating physicians	Musser requires a report when treating physicians provide non‑treatment expert opinions.	Fishman was treating physician; no report needed; Meyers distinguished but not controlling here.	Harmless error; district court did not abuse discretion; no reversible trial error.
Harmlessness of Rule 26(a)(2)(B) lapse	Failure to file a report prejudices Banister and requires new trial.	Prejudice minimal; Banister was not surprised; no bad faith; admissibility upheld.	Harm not shown; no new trial warranted.
Closing argument misconduct	Counsel’s misstatement about Fishman’s testimony was improper.	Statement was a slip corrected immediately; instruction to disregard minimizes harm.	No reversible error; instructions cured potential prejudice.

Musser v. Gentiva Health Services, 356 F.3d 751 (7th Cir.2004) (expert disclosure framework for Rule 26(a)(2))
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (Supreme Court, 1993) (gatekeeper for reliability of scientific testimony)
Happel v. Walmart Stores, Inc., 602 F.3d 820 (7th Cir.2010) (Daubert standard applied in the Seventh Circuit)
General Electric Co. v. Joiner, 522 U.S. 136 (Supreme Court, 1997) (abuse of discretion standard for expert testimony rulings)
Westefer v. Snyder, 422 F.3d 570 (7th Cir.2005) (factors for harmless Rule 26 violation analysis)
Meyers v. National Railroad Passenger Corp., 619 F.3d 729 (7th Cir.2010) (distinguishes treating physician opinions about causes vs. effects; need for report when retained to testify)
Deimer v. Cincinnati Sub-Zero Products, Inc., 58 F.3d 341 (7th Cir.1995) (physician opinions beyond requisite experience may be disallowed)
Porter v. Whitehall Laboratories, Inc., 9 F.3d 607 (7th Cir.1993) (medical opinions must be supported by method)
Cunningham v. Masterwear Corp., 569 F.3d 673 (7th Cir.2009) (trained physician opinions require appropriate scope)
Spicer v. Rossetti, 150 F.3d 642 (7th Cir.1998) (tone of counsel comments considered for reversible error)
Wilson v. City of Chicago, 6 F.3d 1233 (7th Cir.1993) (distinct issues of postmortem/medical expertise)
Rosen v. Ciba-Geigy Corp., 78 F.3d 316 (7th Cir.1996) (distinguishes causation testimony from treatment observations)