Allstate Insurance Company et al v. St. Anthony's Spine & Joint Institue, P.C. et al

Filing 283

WRITTEN Opinion entered by the Honorable Amy J. St. Eve on 9/20/2011: The Court grants in part and denies in part Plaintiffs' motion in limine 268 to exclude certain statements at trial related to statements in Dr. Freeman's expert reports. [For further details see minute order.] Mailed notice(kef, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Amy J. St. Eve

CASE NUMBER

06 C 7010

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

9/20/2011

Allstate Ins Co vs. St. Anthony’s Spine & Joint Inst

DOCKET ENTRY TEXT

The Court grants in part and denies in part Plaintiffs’ motion in limine [268] to exclude certain statements at trial

related to statements in Dr. Freeman's expert reports.

O[ For further details see text below.]

Notices mailed by Judicial staff.

STATEMENT
Before the Court is Plaintiffs’ motion in limine to exclude certain statements at trial related to
statements Dr. Michael Freeman, Defendants’ expert, made in his initial and rebuttal expert reports. For the
following reasons, the Court grants in part and denies in part Plaintiffs’ motion.
BACKGROUND
In this case, Plaintiffs Allstate Insurance Company, Allstate Indemnity Company and Allstate
Property & Casualty Insurance Company (collectively, “Plaintiffs”) allege that Defendant Melvin D’Souza,
D.C., a chiropractic physician and the sole shareholder of Defendant St. Anthony’s Spine & Joint Institute,
P.C. (collectively, “Defendants”), defrauded Plaintiffs by submitting false and misleading medical reports,
records, and billing statements for chiropractic and diagnostic services. (R. 230, Am. Compl. ¶ 1.)
Defendants filed a counterclaim against Plaintiffs alleging that Plaintiffs brought this suit against Defendants
in bad faith in contravention of 720 ILCS § 5/46-5(b). The Court granted Plaintiffs’ motion for summary
judgment with respect to Defendants’ counterclaim.
On June 9, 2011, pursuant to the Court’s scheduling order (R. 154), Plaintiffs filed a motion to strike
the expert testimony in Dr. Freeman’s initial expert report. (R. 155.) The Court granted Plaintiffs’ motion on
August 31, 2009. (R. 179.) On January 21, 2009, Dr. Freeman issued a rebuttal report addressing allegations
made by Plaintiffs’ chiropractic expert, Dr. Tari Reinke. Plaintiffs did not move to exclude Dr. Freeman’s
rebuttal report.

Courtroom Deputy
Initials:

06C7010 Allstate Ins Co vs. St. Anthony’s Spine & Joint Inst

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LEGAL STANDARD
“Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has
developed pursuant to the district court’s inherent authority to manage the course of trials.” Luce v. United
States, 469 U.S. 38, 41 n. 4, 105 S. Ct. 460, 83 L. Ed.2d 443 (1984). In limine rulings avoid delay and allow the
parties the opportunity to prepare themselves and witnesses for the introduction or exclusion of the applicable
evidence. See Wilson v. Williams, 182 F.3d 562, 566 (7th Cir. 1999); United States v. Connelly, 874 F.2d 412,
416 (7th Cir. 1989). Trial courts have broad discretion in ruling on evidentiary issues before trial. See United
States v. Chambers, 642 F.3d 588, 594 (7th Cir. 2011); Cefalu v. Village of Elk Grove, 211 F.3d 416, 426 (7th
Cir. 2000). Regardless of the Court’s initial ruling on a motion in limine, the Court may adjust its ruling during
the course of trial. See Farfaras v. Citizens Bank & Trust of Chicago, 433 F.3d 558, 565 (7th Cir. 2006). The
Court will grant a motion in limine only when the evidence is clearly inadmissable for any purpose. See Jonasson
v. Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997); Thakore v. Universal Mach. Co. of
Pottstown, Inc., 670 F. Supp.2d 705, 714 (N.D. Ill. 2009). The moving party bears the burden of establishing that
the evidence is not admissible for any purpose. See Mason v. City of Chicago, 631 F. Supp.2d 1052, 1056 (N.D.
Ill. 2009).
ANALYSIS
Plaintiffs seek an order precluding “defense counsel, the defendant, Dr. D’Souza, and/or any other
witnesses called by the defendants from attempting to offer into evidence at trial any statements similar to the
content of the statements referred to in Dr. Freeman’s initial report.” (R. 268, Plfs.’ Mot. at 4.) Plaintiffs further
ask the Court to enter an order “preventing Dr. Freeman, defense counsel, and/or any defense witness from
offering their own personal feelings about any other witness, including, but not limited to Plaintiffs’ expert, Dr.
Reinke.” (Id.) Plaintiffs list some of the “personal feeling” statements, which they extracted from Dr. Freeman’s
rebuttal report, in their motion. (Id. at 2.)
Defendants urge the Court to deny Plaintiffs motion, arguing that it ignores the Court’s warning that the
parties should not use motions in limine to re-litigate prior motions. (R. 273, Defs.’ Resp. at 2.) Defendants
contend that Plaintiffs did not move to strike Dr. Freeman’s rebuttal testimony at the Daubert stage, and therefore
cannot do so now through a motion in limine. (Id. at 2-3.) Finally, Defendants argue that Plaintiffs’ complaints
or fears of a “mistrial” are not proper grounds for their motion. (Id. at 3-4.)
To the extent Plaintiffs’ motion seeks to exclude defense counsel and all defense witnesses from making
statements “similar” to those Dr. Freeman made in his expert report, Plaintiffs’ motion is denied. As Plaintiffs
concede, the Court has already excluded the opinions expressed in Dr. Freeman’s initial report. The Court fully
expects the parties to comply with its prior rulings. Moreover, Plaintiffs’ request is much broader and covers
significantly more testimony than this Court excluded in its August 31, 2009 order. Plaintiffs have not met their
burden of establishing that the much broader category of statements they seek to exclude are inadmissible for any
purpose. See Mason, 631 F. Supp.2d at1056 (moving party bears the burden of establishing that the evidence is
not admissible for any purpose); Jonasson, 115 F.3d at 440 (courts will grant a motion in limine only when the
evidence is inadmissible for any purpose); Hawthorne Partners v. AT&T Techs., Inc., 831 F. Supp. 1398, 14001401 (N.D. Ill. 1993) (unless evidence is clearly inadmissible on all grounds, it should “be deferred until trial so
that questions of foundation, relevancy and potential prejudice may be resolved in proper context”).
Plaintiffs’ motion is also denied as to their request to exclude defense counsel and all defense witnesses
from making any “personal feeling” statements about any other witness. Plaintiffs’ request is overly broad, and
they have not met their burden of establishing with sufficient particularity not only the statements they seek to
exclude, but also why such statements are inadmissible for any purpose. See id. If Defendants can lay the proper
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foundation for such testimony at trial, it will be admissible.
Plaintiffs also seek to exclude several specific statements in Dr. Freeman’s rebuttal report where they
claim Dr. Freeman engages in a “character assassination” of Dr. Reinke. (Plfs.’ Mot. at 3; R. 276, at 2.) The
Court will address each of these statements in turn.
On page two of Dr. Freeman’s rebuttal report, he refers to “Dr. Reinke’s obviously venomous feelings
toward Dr. D’Souza. (R. 268-2 at 2.) Because Dr. Freeman is not an expert qualified to opine on Dr. Reinke’s
feelings, the Court will exclude this statement. The Court will also exclude Dr. Freeman’s statement on page 3 of
the rebuttal report where he refers to “Dr. Reinke’s sometimes hysterical claims.” (Id. at 3.) That
characterization lacks foundation and is outside Dr. Freeman’s expertise.
On page 6 of his report, Dr. Freeman opines that “Dr. Reinke shows a remarkable aptitude for finding
suspicious activity where there is none.” (Id. at 6.) On page 15 of Dr. Freeman’s report, he opines that “[e]ven if
all of Dr. Reinke’s claims regarding Dr. D’Souza’s use of DMX were true, none of his actions would rise to the
level of fraud. Dr. Reinke’s standard for fraudulent action by Dr. D’Souza is that she does things differently. By
this standard Dr. Reinke would easily find more than 90% of chiropractors to be committing fraud daily.” (Id. at
15.) The Court denies Plaintiffs’ motion to exclude these statements because Dr. Freeman’s supports them with
analysis and examples drawn from his specialized knowledge as an expert.
Plaintiffs also seek to exclude Dr. Freeman’s statement on page 17 of his report that “Dr. Reinke’s
standard for fraudulent behavior appears to be whatever it is that Dr. D’Souza does and her apparent belief is that
calling his activities fraudulent makes them so.” (Id. at 17.) The Court denies Plaintiffs’ motion as to the first
half of Dr. Freeman’s statement (i.e., “Dr. Reinke’s standard for fraudulent behavior appears to be whatever it is
that Dr. D’Souza does”) because it relates to and is supported by his analysis of the standard he believes Dr.
Reinke applied Dr. Souza’s conduct. (See id. at 16-17.) The second half of the statement, however, lacks
foundation and is based on conjecture. Therefore, the Court grants Plaintiffs’ motion as to the portion of the
statement that reads “her apparent belief is that calling his activities fraudulent makes them so.”
The Court grants Plaintiffs’ motion as to Dr. Freeman’s statement on page 20, where he writes that “Dr.
Reinke is being either obtuse or dishonest here.” (Id. at 20.) Dr. Freeman’s statement not only lacks foundation
but is also a personal attack on Dr. Reinke. On page 25, Dr. Freeman states that Dr. Reinke’s opinions
concerning Dr. D’Souza’s website materials are “consistent with the baseless, illogical and frankly hysterical
allegations that Dr. Reinke repeatedly throws at Dr. D’Souza throughout her report.” (Id. at 25.) As to this
statement, the Court grants Plaintiffs’ motion as to the term “frankly hysterical,” which is a characterization and
not a proper expert opinion. The Court denies the motion as to the remainder of the statement because it is
supported by Dr. Freeman’s analysis and is within his specialized knowledge.
Plaintiffs further seek to exclude two statements in Dr. Freeman’s rebuttal report where Dr. Freeman
repeats statements he made in his initial report, which the Court excluded. (Plfs.’ Mot. at 2-3.)1 As indicated in
the Court’s August 31, 2009 Order, that testimony is inadmissible. See 8/31/2009 Order at 9 (“The Court thus
excludes the entirety of Dr. Freeman’s initial report and the opinions expressed therein.”) (emphasis added).

1

The statements appear on page 26 of Dr. Freeman’s rebuttal report: “As I concluded in
my earlier report in this matter it is quite obvious that for Allstate Insurance Inc. and their
employees, when it comes to Dr. D’Souza the suspicion of fraud is the same as evidence of
fraud. The expression that I used originally for Dr. Reinke’s report was a hatchet-job, and that’s
precisely what it was.” (Freeman Rebuttal Rep. at 26.)
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Therefore, the Court grants Plaintiffs’ motion as to those statements.
To the extent the Court denies Plaintiffs’ motion with respect to Dr. Freeman’s rebuttal report in this
Order, such denial is without prejudice. Plaintiffs are free to make whatever objections to testimony they deem
fit to make at trial, at which time the Court will consider them in context. See Hawthorne Partners, 831 F. Supp.
at 1401 (“The court will entertain objections on individual proffers as they arise at trial, even though the proffer
falls within the scope of a denied motion in limine.”) (citing United States v. Connelly, 874 F.2d 412, 416 (7th
Cir. 1989)).
CONCLUSION
For the reasons set forth above, the Court grants in part and denies in part Plaintiffs’ motion in limine to
bar certain statements at trial related to statements in Dr. Freeman’s expert reports.

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