Zhu et al v. Keeley & Sons, Inc., et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
YAFENG ZHU & SHUHUI ZHANG,
Plaintiffs,
vs.
KEELEY & SONS, INC., et al.,
Defendants.
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)
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)
Case No. 3:24-CV-908-MAB
MEMORANDUM AND ORDER
BEATTY, Magistrate Judge:
This matter is currently before the Court on Defendant Keeley & Sons’ Motion to
Compel Deposition of Dr. Wen (Doc. 131). For the reasons discussed below, Defendant
Keeley’s Motion to Compel is DENIED (Doc. 131).
BACKGROUND
Plaintiffs Yafeng Zhu and Shuhui Zhang filed this action in March 2024 for alleged
damages related to a motor vehicle accident that occurred in April 2022 (see Doc. 1).1
Pursuant to the original Scheduling Order, discovery was to be completed by August 22,
2025, and dispositive motions were to be filed by September 19, 2025 (Docs. 104, 104-1).
Subsequently, on April 3, 2025, Defendant Keeley & Sons (hereinafter “Keeley”) filed a
Motion to Amend which sought to “extend the deadline for expert depositions and to
amend additional discovery and motion deadlines by 10-12 weeks.” (Doc. 113 at p. 2).
Plaintiffs filed a response in opposition which argued, among other things, that
1 For a more detailed recollection of Plaintiffs’ allegations and the history of this case, see the Court’s Order
dated March 12, 2025 (Doc. 111).
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Defendants had not justified such a lengthy extension of time and “the delay in
conducting depositions of the relevant treating physicians is the result of [Defendants’]
own delay.” (Doc. 115 at p. 2). The Court heard additional arguments on the requested
extension at a Status Conference on May 1, 2025 (Doc. 119). At that time, the parties
indicated that written discovery was complete, approximately 15-20 fact witness
depositions had occurred, and 3 to 4 additional fact witness depositions still needed to be
conducted (Id.). Defendants also told the Court that multiple treating physicians, whom
they intended to depose, were located in California (Id.). Therefore, additional time was
needed due to their numerosity and distant location (Id.).
On May 12, 2025, the Court granted Defendant Keeley’s Motion to Amend (Doc.
120). Accordingly, the Scheduling Order was amended to include the following
deadlines:
Depositions of Plaintiffs’ experts must be taken by 8/15/2025; depositions
of Defendants’ experts must be taken by 10/17/2025; and depositions of
Third-Party experts must be taken by 11/13/2025. Discovery shall be
completed by 11/14/2025; and all dispositive motions shall be filed by
12/12/2025.
(Id. at p. 6).
Several months later, on August 6, 2025, Plaintiffs filed a Motion to Close Fact
Discovery, Extend Expert Deposition Deadline, and Set Firm Trial Date (Doc. 124). Most
pertinently, that motion stated that “[b]oth parties have represented that they have no
additional lay witnesses they seek to depose or produce for testimony. The only
remaining discovery relates to expert witnesses and their opinions.” (Id. at p. 2).
Accordingly, Plaintiffs’ motion sought to close fact discovery and extend the deadline to
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conduct depositions of Plaintiffs’ experts to September 30, 2025 (Id.). Defendants did not
respond to Plaintiffs’ motion.
Consequently, on October 3, 2025, the Court granted Plaintiffs’ requests to close
fact discovery and extend the deadline to depose Plaintiffs’ experts (Doc. 126).
Approximately one month later, the parties jointly moved to extend expert discovery
deadlines (Doc. 127). At a scheduled Status Conference held just one day later, the Court
discussed the parties’ joint extension request and learned, for the first time, of a potential
issue regarding the deposition of a witness (Doc. 128). However, rather than hearing
arguments on an involved issue which the Court was previously unaware of (and thus,
not prepared to address), the Court instead directed the parties to meet and confer (Id.).
Meanwhile, the Court granted in part the joint motion for an extension of expert
discovery deadlines, such that “any remaining depositions of Plaintiffs’ experts were to
be completed by 11/7/2025; Defendants’ expert reports are to be disclosed by 12/5/2025;
depositions of Defendants’ experts are to be completed by 1/9/2026; Daubert motions, if
any, are due by 2/9/2026; and all dispositive motions are due by 2/9/2026.” (Doc. 129).
As reflected in the Court’s Order dated November 12, 2025, the Court
subsequently learned that the parties met and conferred but were unable to resolve the
issue (Doc. 130). The Court’s Order explained that “[a]s the Court understands it,
Defendants seek the deposition of a witness, which Plaintiffs contend is untimely based
on the date the witness was disclosed and the prior closure of fact discovery.” (Id.).
Accordingly, as instructed by the Court (see Id.), Defendant Keeley timely filed a Motion
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to Compel the Deposition of Dr. Johnny Wen (Doc. 131). Plaintiffs timely filed a Response
in Opposition one week later (Doc. 132).2
DISCUSSION
Defendant Keeley argues that the Court should compel the deposition of Dr. Wen
because, although Dr. Wen was initially disclosed as a fact witness, his most recent report
and the reliance of Plaintiffs’ experts upon that report demonstrates that “Dr. Wen’s role
goes beyond that of a simple ‘treating physician.’” (Doc. 131 at p. 3). Therefore, according
to Defendant Keeley, Dr. Wen cannot be considered a “fact witness” and must instead be
identified and treated as a “retained expert witness,” thereby entitling Defendants to
depose him prior to the close of expert discovery (Id. at pp. 3-4). In response, Plaintiff
contends that Dr. Wen was properly disclosed as a fact witness based upon his status as
a treating physician and nothing in his reports alters that determination (see Doc. 132 at
pp. 6-7). Accordingly, Plaintiffs aver that Defendants are solely to blame for failing to
timely depose Dr. Wen as a fact witness and their instant attempts to belatedly depose
him and/or bar his testimony and opinions are unduly prejudicial (see generally Id.).
I. Disclosure History and Reports of Dr. Wen:
Dr. Wen was disclosed as a treating physician in Plaintiffs’ Initial Rule 26
Disclosures provided to Defendants on November 20, 2024 (see Docs. 132-1, 132-2).
Furthermore, Dr. Wen’s medical records from an August 31, 2024, evaluation of Plaintiff
Zhu were provided to Defendants on January 30, 2025 (see Doc. 132-3; see also Doc. 132-
2 The Motion to Compel and the Response in Opposition both attached numerous documents, including
email records, medical records, and deposition testimony (see generally Doc. 131-1 thru 131-6, and Doc. 132-
1 thru 132-9). The Court’s discussion will summarize and address these records as needed.
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4).3 After producing Plaintiff Zhu’s medical records, emails between counsel demonstrate
that Plaintiffs’ counsel asked Defendants’ counsel on several occasions if they intended
to depose Plaintiff Zhu’s treating physicians (see generally Docs. 132-5, 132-6, 132-7). On
April 7, 2025, Plaintiffs’ counsel also sent Defendants’ counsel an email which identified
Dr. Wen as one of the treating physicians Plaintiffs intended to call at trial (see Doc. 132-
9).
Significantly, Plaintiff Zhu had a follow up evaluation with Dr. Wen on April 12,
2025 (see Doc. 131-1). That evaluation was summarized in a report prepared by Dr. Wen
on May 12, 2025 (Id.).4 That second report was disclosed and produced to Defendants in
a supplemental Rule 26 disclosure on July 17, 2025 (see Doc. 131-2). Plaintiffs then
disclosed their expert witnesses on August 13, 2025 (Doc. 125). Dr. Wen was not listed as
one of Plaintiffs’ experts (Id.).
II. Analysis of Defendant’s Motion to Compel:
There can be no question that Dr. Wen was timely disclosed as a fact witness (see
Docs. 131-1; 131-2; 132-9). Conversely, it is equally apparent that Dr. Wen was not
disclosed as a retained expert witness (Doc. 125). Thus, from the Court’s perspective, this
3 That first report, dated September 31, 2024, indicates that Plaintiff Zhu was referred to Dr. Wen, a
neuropsychologist, by his prior counsel (Doc. 132-4). The first report then summarizes Plaintiff Zhu’s
medical and psychological history before listing numerous cognitive tests that were administered and
providing Plaintiff Zhu’s scores (Id.). Finally, that report summarizes Plaintiff Zhu’s test results, includes
conclusions as to recommended treatment for Plaintiff Zhu, and lists several diagnostic impressions (Id. at
pp. 17-18).
4 The second report prepared by Dr. Wen, dated May 12, 2025, indicates that Plaintiff Zhu was returning
for a follow-up visit at the request of his attorney (Doc. 131-1). The second report then summarizes Plaintiff
Zhu’s medical and psychological history before listing several cognitive tests that were administered and
providing Plaintiff Zhu’s scores (Id.). Finally, the second report details Plaintiff Zhu’s test results, provides
conclusions as to recommended treatment for Plaintiff – including specifying anticipated annual costs, and
reiterates that the prior evaluation’s diagnostic impressions remain unchanged (Id. at pp. 10-13).
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Motion to Compel boils down to the specific question of whether Dr. Wen should be
deemed a fact witness (as a treating physician of Plaintiff Zhu) or an expert witness. If
Dr. Wen is found to be a fact witness, then Defendant Keeley’s Motion to Compel must
be denied because it seeks to compel the deposition of a fact witness long after the
deadline to do so has lapsed and without sufficient justification for the request’s
untimeliness. Conversely, if Dr. Wen is deemed an expert witness, then the Court must
either compel his deposition or exclude his opinions (and potentially, other opinions that
were created based upon his underlying opinions) because Plaintiffs impermissibly
refused Defendants’ timely request to depose him.
Federal Rule of Civil Procedure 26(a)(2), which governs the disclosure of expert
witnesses, states:
(A) In General. In addition to the disclosures required by Rule 26(a)(1), a
party must disclose to the other parties the identity of any witness it
may use at trial to present evidence under Federal Rule of Evidence 702,
703, or 705.
(B) Witnesses Who Must Provide a Written Report. Unless otherwise
stipulated or ordered by the court, this disclosure must be accompanied
by a written report--prepared and signed by the witness--if the witness
is one retained or specially employed to provide expert testimony in
the case or one whose duties as the party’s employee regularly involve
giving expert testimony. The report must contain:
(i) a complete statement of all opinions the witness will express and
the basis and reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
(iv) the witness’s qualifications, including a list of all publications
authored in the previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the
witness testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and
testimony in the case.
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(C) Witnesses Who Do Not Provide a Written Report. Unless otherwise
stipulated or ordered by the court, if the witness is not required to
provide a written report, this disclosure must state:
(i) the subject matter on which the witness is expected to present
evidence under Federal Rule of Evidence 702, 703, or 705; and
(ii) a summary of the facts and opinions to which the witness is
expected to testify.
FED. R. CIV. P. 26.
After carefully reviewing the briefs of Defendant Keeley and Plaintiffs, the Court
concludes Dr. Wen’s opinions were made in the course of his treatment of Plaintiff Zhu.
Therefore, Dr. Wen must be deemed a fact witness and Defendant Keeley’s request to
depose him is untimely. Here, Dr. Wen physically met with Plaintiff Zhu, administered
tests, and evaluated him based upon those test results prior to preparing each report (see
Docs. 131-1, 132-4). Thus, rather than being retained to provide expert testimony as
defined in Rule 26(a)(2)(B), this demonstrates Plaintiff Zhu visited Dr. Wen to be
medically evaluated and Dr. Wen’s determinations were made in the course of providing
treatment. See Meyers v. Nat’l R.R. Passenger Corp. (Amtrak), 619 F.3d 729, 734 (7th Cir.
2010)5; Morrison v. Wal-Mart Stores, Inc., 321 F.R.D. 336, 338 (C.D. Ill. 2017) (finding a
5 Both Defendant Keeley and Plaintiffs cite to Meyers to support their respective arguments (see Doc. 131 at
p. 3; Doc. 132 at p. 7). In Meyers, the Seventh Circuit 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
expert testimony in the case,’ and thus is required to submit an expert report in accordance with Rule
26(a)(2).” 619 F.3d 729, 734-35 (7th Cir. 2010). However, as explained at length in Morrison, 321 F.R.D. 336,
Rule 26(a)(2) was revised in 2010 to “resolve a tension that has sometimes prompted courts to require
reports under Rule 26(a)(2)(B) even from witnesses exempted from the report requirement.” Id. at 337-38
(quoting Fed. R. Civ. P. 26, 2010 Advisory Committee Note). Accordingly, “[t]he amended Rule now fills
that gap with subsection (a)(2)(C), and the reasoning of Meyers and its progeny are therefore inapplicable
to the amended version of the Rule.” Id. at 339. In other words, more recent caselaw made in response to
the Rule’s amendment casts doubt upon the applicability of Meyers to the instant version of Rule 26(a)(2).
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doctor did not need to prepare an expert witness written report under Rule 26 because
was not a retained to provide expert testimony). And again, there can be no genuine
dispute as to whether Plaintiffs’ properly disclosed Dr. Wen as a fact witness – they did
(see, e.g., Docs. 131-2; 132-9).
Furthermore, the Court is not persuaded, at this time, by Defendant Keeley’s
contention that Dr. Wen’s 2025 report “goes beyond that of a simple ‘treating physician’”
(Doc. 131 at p. 3) and thus transforms him into an expert witness that must be disclosed
as such. While it is true that Dr. Wen’s second report differs from his first by estimating
annual costs associated with the anticipated treatment Dr. Wen recommended (compare
Doc. 131-1 with Doc. 132-4), the first report also specified anticipated future treatment (see
Doc. 132-4 at p. 18) (Stating, for example, that Plaintiff Zhu’s “ongoing cognitive
complaints can be addressed with a mandarin speaking neuropsychologist who can
provide him with cognitive retraining and remediation.”). In addition, while Defendant
Keeley contends that Dr. Wen was asked by Plaintiffs’ counsel to provide causation
opinions for purposes of litigation (Doc. 131 at p. 3), Defendant Keeley has neither
provided specific examples of Dr. Wen’s allegedly improper causation opinions nor
explained why Dr. Wen’s opinions went beyond facts made known to him during the
course of his treatment of Plaintiff Zhu. See, e.g., Cobble v. Wal-Mart Stores E., L.P., 1:10-
CV-010, 2010 WL 1088513, at *3 (N.D. Ind. Mar. 19, 2010) (“If Cobble’s treating physician
Although Morrison implies that Meyers is no long applicable, the Court need not make such a
distinction here because under either version of the Rule, it is clear that Dr. Wen was a treating physician
who made determinations in the course of providing treatment.
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bases his or her testimony upon facts learned during his or her care and treatment of
Cobble and the opinion was not sought in anticipation of litigation, he or she may testify
about causation, future medical care and prognosis, or permanency of injury or disability
without producing an expert report under Rule 26(a)(2)(B). However, if the treating
physician’s testimony about causation, future medical care and prognosis, or
permanency of injury or disability extends beyond facts made known to him or her
during the course of care and treatment of Cobble, and the opinion was seemingly
retained in anticipation of litigation, then an expert report is required.”). Moreover, the
Court does not yet know the specific topics and aspects of Dr. Wen’s report that he will
attempt to testify to as a fact witness. As a result, the Court need not preemptively reach
a determination as to the hypothetical question of whether Dr. Wen would be able to
testify about a specific subject as a fact witness. For these reasons, the Court finds Dr.
Wen to be a treating physician and not a retained expert.6
Indeed, courts routinely limit the testimony of treating physicians when the
physician is solely testifying as that of a fact witness. See, e.g., Rivera v. Aerovias de Mexico,
S.A. de C.V., 690 F. Supp. 3d 906, 909-10 (N.D. Ill. 2023); Simpson v. Brewer, 19-CV-00410-
NJR, 2021 WL 8053541, at *1 (S.D. Ill. Aug. 2, 2021) (“While the Court agrees that Dr.
6 Simply put, Defendants knew of Dr. Wen’s role as a treating physician for a prolonged period of time and
did not take any action to depose him - even after being asked by Plaintiff if they intended to do so (see
Docs. 132-5, 132-6, 132-7, 132-9). While Defendant Keeley now seeks to classify Dr. Wen’s testimony as
being related to causation, prognosis, and future disability, thus requiring expert disclosure, this argument
fails to establish that Dr. Wen’s anticipated testimony will be expert testimony and not fact testimony.
Again, however, this ruling does not prevent Defendants from seeking to exclude Dr. Wen from providing
testimony beyond that of a fact witness. Instead, it merely concludes that Dr. Wen is proceeding as a fact
witness and resultingly, Defendant Keeley’s attempt to compel his deposition after the close of fact
discovery is untimely.
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Conduah may serve as a fact witness, the Court will limit Dr. Conduah’s opinion to his
‘observations [ ] and treatment of Plaintiff, essentially he is [limited] [to] testifying about
what he saw and did, why he did it and when he did it.’”). Thus, as a treating physician,
Dr. Wen’s testimony may very well be limited to that of his “personal observations, the
diagnoses [he] made, Plaintiff’s history, and the treatments [he] provided.” Rivera, 690 F.
Supp. 3d at 909-10. See also Levingston v. Myles, 17 C 5947, 2022 WL 952279, at *4 (N.D. Ill.
Mar. 30, 2022) (“Because Levingston did not formally disclose any treating physicians as
experts, they are treated as fact witnesses. In other words, they may testify to what they
observed and the diagnoses they made, but they may not testify about what could have
caused the injuries.”); Xidias v. United States, 2:21-CV-354-TLS, 2024 WL 3982931, at *5
(N.D. Ind. Aug. 29, 2024) (“Thus, a treating physician acts as a fact witness when
testifying as to the treating physician’s observations, diagnoses, and treatment for which
no Rule 26(a)(2)(C) disclosures are required.”); Johnson v. Norfolk S. Ry. Co., 3:12-CV-102-
JD, 2015 WL 3738545, at *3 (N.D. Ind. June 15, 2015) (limiting treating medical witnesses
testimony to topics appropriate for fact witnesses such as their personal observations,
examinations, diagnoses, and treatments, and prohibiting counsel from soliciting
testimony beyond their individual observations).
Finally, Defendant Keeley also claims that Plaintiffs’ retained experts’ use of Dr.
Wen’s reports further justifies the need to treat Dr. Wen as an expert witness. The Court
is not persuaded by this contention. For one, the two deposition passages provided by
Defendant Keeley do not establish that Plaintiffs’ retained experts are merely parroting
Dr. Wen’s reports (see generally Docs. 131-4, 131-5). Rather, at most, they indicate that
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Plaintiffs’ retained experts utilized Dr. Wen’s treatment reports when formulating their
own opinions (see, e.g., Doc. 131-5 at p. 3) (“[T]here are discussions of [Plaintiff Zhu’s]
limitations by his treating providers. Dr. Wen and Dr. Bowman just gave us more specific
limitations in terms of his ability to work.”). This is entirely permissible. “Medical
professionals have long been expected to rely on the opinions of other medical
professionals in forming their opinions.” Walker v. Soo Line R. Co., 208 F.3d 581, 588 (7th
Cir. 2000). Furthermore, to the extent Defendant Keeley seeks to challenge Plaintiffs’
experts’ reliance on any allegedly faulty (or impermissible) aspects of Dr. Wen’s reports,
those challenges are more suitably raised in a Daubert motion or upon cross-examination.7
CONCLUSION
For the reasons discussed above, Defendant Keeley’s Motion to Compel
Deposition of Dr. Wen is DENIED (Doc. 131).
To the extent the parties require additional time to prepare dispositive motions
and/or Daubert motions in light of this ruling, they may jointly move for an extension of
time to do so.
IT IS SO ORDERED.
DATED: January 23, 2026
s/ Mark A. Beatty
MARK A. BEATTY
United States Magistrate Judge
7 Notably, “[t]he Court will exclude expert testimony only if an expert’s reliance on the opinions of others
is ‘too speculative ... or the underlying basis is faulty.’” Chicago Teachers Union, Local 1 v. Bd. of Educ. of City
of Chicago, 12 C 10311, 2020 WL 914881, at *3 (N.D. Ill. Feb. 25, 2020) (quoting Walker, 208 F.3d at 588)). Here,
Defendant Keeley’s motion has not developed adequate arguments as to this point and, even if it had,
moving to compel Dr. Wen’s deposition is not the appropriate means by which to challenge Plaintiffs’
experts’ reliance on Dr. Wen’s opinions and reports.
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