The Seventh Circuit Court of Appeals confirmed that the court need not consider the admissibility of expert testimony prior to its consideration of a motion for summary judgment. In Lewis v. CITGO Petroleum Corp. ___ F.3d ____ (7th Cir. 2009) 2009 U.S. App. LEXIS 7031,. The court granted defendant’s motion for summary judgment based solely on the plaintiffs’ inability to demonstrate a triable issue of fact on the necessary element of causation. In the course of entering the summary judgment the court excluded the evidence of two expert witnesses who sought to establish a causal connection to their injuries to an exposure to hydrogen sulfide gas. On appeal the plaintiffs claimed that the district court was required to consider questions pertaining to the admissibility of evidence separately from those related to the summary judgment motion. They contended that the experts’ testimony remained admissible at the time of the summary judgment motion because defendant did not first move to have it stricken. The Court of Appeals disagreed with their assertion that the court’s decision to exclude the evidence, which it made concurrently with its order granting summary judgment was improper the court cited a number of decisions in which it had affirmed district courts that made evidentiary rulings on proposed testimony in conjunction with summary judgment orders and said,
“Given this precedent, it was entirely proper for the district court to determine the admissibility of the plaintiffs’ expert testimony at the same time that it decided the defendant’s motion for summary judgment. Further, given that the district court may consider the admissibility of expert testimony sua sponte, see O’Connor, 13 F.3d at 1094, 1107, it is of no import that CITGO objected to the expert testimony only in its motion for summary judgment, as opposed to first filing a separate motion in limine.”