Angelopoulos v. Keystone Orthopedic Specialists, S.C. et al
MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 5/23/2017. Defendants' motion to file document under seal 386 is granted, and Defendants' motion in limine No. 13 369 is denied. Mailed notice(cdh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
DR. NICHOLAS ANGELOPOULOS,
SPECIALISTS, S.C., WACHN, LLC,
and MARTIN R. HALL, M.D.,
Case No. 12-cv-5836
Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Currently before the Court are Defendants’ motion in limine No. 13  to bar the
deposition testimony of Dr. Hartman and Defendants’ motion  for leave to file their brief
under seal. For the reasons set forth below, Defendants’ motion to file document under seal
 is granted, and Defendants’ motion in limine No. 13  is denied.
The Court previously directed the parties to take Dr. Hartman’s deposition during the
week of May 15, 2017 and ruled that the parties would be permitted to present Dr. Hartman’s
admissible testimony at trial by deposition in lieu of live testimony. [364, at 1.] Plaintiff seeks
to offer Dr. Hartman as a 608(a) witness to give his opinion about Defendant Hall’s character for
untruthfulness and as a fact witness to testify about his understanding of the relationship between
Defendant Hall and the other Keystone doctors.
Defendants’ motion in limine No. 13 seeks to bar the testimony of Dr. Hartman, arguing
that his testimony about Defendant Hall’s character for untruthfulness is “not based on any of his
own perceptions and is unquestionably choosing sides” [369, at ¶ 11], and that his testimony that
the other doctors at Keystone were partners is inadmissible hearsay [id., at ¶ 14]. The parties
also dispute whether the testimony of the other 608(a) character witnesses offered by Plaintiff
should be barred. The Court will address each issue in turn.
608(a) Character Witnesses
Defendants acknowledge that Dr. Hartman worked with Dr. Hall at Keystone for
approximately six months and that he spoke with Dr. Hall about once per week during that
period. However, Defendants take issue with the fact that Dr. Hartman “did not mention any
specific conversation with [Defendant] Hall that formed the basis for his [ ] opinion.” [Id.]
Defendants contend that Dr. Hartman has no first-hand knowledge of any untruthfulness.
Defendants’ argument fails for several reasons.
First of all, 608(a) testimony must take “the form of opinion of reputation” evidence,
“rather than specific instances of deceit.” United States v. Tedder, 403 F.3d 836, 839 (7th Cir.
2005). Thus, Dr. Hartman could not properly present to the jury specific conversations that he
had with Dr. Hartman that form the basis for his opinion. Further, according to Dr. Hartman’s
deposition testimony, he had approximately twenty-four conversations with Defendant Hall
during his six months at Keystone. [See 369-1 (Hartman Deposition), at 8:12–18, 9:11–16.]
Contrary to Defendants’ assertion that Dr. Hartman has “no meaningful relationship with
[Defendant] Hall,” Dr. Hartman’s interactions with Defendant Hall are sufficient to provide the
basis for his opinion about Dr. Hartman’s character for untruthfulness. See Wilson v. City of
Chicago, 6 F.3d 1233, 1239 (7th Cir. 1993) (holding that the district court judge had erred in
excluding the testimony of a 608(a) witness who had spent “a fair amount of time” with defense
witness and had “[o]n the basis of his person contacts with [defense witness] [ ] formed the
apparently well-substantiated opinion that [he] was ‘a consummate liar’”); United States v.
Watson, 669 F.2d 1374, 1382 (11th Cir. 1982) (holding that the district court erred in excluding a
608(a) witness for failure to meet a foundation requirement and explaining that “a foundation of
long acquaintance is not required for opinion testimony”); United States v. Lollar, 606 F.2d 587,
589 (5th Cir. 1979) (explaining that 608(a) “imposes no prerequisite conditioned upon long
acquaintance or recent information about the witness” (quoting Weinstein’s Evidence, at
608(04), at 608–20 (1978)).
Defendants’ argument that Dr. Hartman’s testimony should be barred because he is
“unquestionably choosing sides” and “just telling one side of a story” is without merit. All
608(a) witnesses are offered to tell one side of the story; if the testimony of a 608(a) witness did
not support one party, it most likely would be irrelevant. Cf. Kaba v. Stepp, 458 F.3d 678, 681
(7th Cir. 2006) (explaining that the Seventh Circuit has repeatedly warned against attempting to
discredit affidavits as “self-serving” since “[m]ost affidavits are self-serving, as is most
testimony” (quoting Wilson v. McRae’s, Inc., 413 F.3d 682, 694 (7th Cir. 2005)).
Defendants’ challenges to Plaintiff’s remaining 608(a) character witnesses also fail.
Defendants argue that the proposed 608(a) testimony is “not relevant to any of the particular
claims at issue.” [387, at 3.] However, 608(a) testimony is relevant to the truthfulness of
Defendant Hall, and by testifying at trial, Defendant Hall will be putting his veracity at issue.
Nor are Defendants’ challenges to specific 608(a) witnesses availing. Defendants argue that the
608(a) testimony of Dr. Keith Pitchford, Deborah Meadows, and Jennifer Marcordes should be
barred because their opinions are “disputed” and “unsubstantiated.”
However, Dr. Keith
Pitchford worked with Defendant Hall and thus has a sufficient foundation to offer an opinion
about Dr. Hall’s character for untruthfulness.1
[See 364, at 2.]
Similarly, Meadows was
Additionally, the Court has already ruled that Dr. Pitchford is permitted to offer testimony related to
Defendant Hall’s character for untruthfulness pursuant to Rule 608(a). [364, at 2.]
Defendant Hall’s office manager and assistant for twenty-seven years, so she has had ample
opportunity to form an opinion about Defendant Hall’s character for truthfulness that is
“rationally based on [her] perception.” See Fed. R. Evid. 701(a). Marcordes, for her part,
worked with Defendant Hall as a physician’s assistant for ten years, and thus also has an
adequate basis for forming an opinion about Defendant Hall’s character for untruthfulness.
As a general matter, the fact that a 608(a) witness’s opinion is “disputed” is not a reason
to bar the testimony; most, if not all, opinions of any witness’s character for untruthfulness will
be disputed. For this reason, Rule 608(a) allows a witness’s credibility to be rehabilitated by
testimony about the witness’s character for truthfulness after the witness’s character for
truthfulness has been attacked. As Plaintiff points out, there is nothing in the Federal Rules of
Evidence suggesting that an exploration into whether the opinion witness is correctly perceiving
the situation is a precondition to admissibility. Rather, “[a]n adequate foundation for opinion
testimony concerning another witness’s character for untruthfulness requires a demonstration
that the opinion witness knows the relevant witness well enough to have formed an opinion.”
Martinez v. City of Chicago, 2014 WL 5529644, at *2 (N.D. Ill. Nov. 3, 2014) (barring opinion
testimony where there was no claim that proposed opinion witness “knew the relevant witness
well enough to have formed an opinion”). The Court concludes that Plaintiff’s proffer satisfies
this foundational requirement for all of the above-discussed potential Rule 608(a) character
Plaintiff also seeks to offer Marcordes’s testimony about Defendant Hall’s reputation for
untruthfulness in the south suburban medical community. Marcordes is physician’s assistant
who worked with Defendant Hall in the same field and same geographical area for at least ten
years. Thus, Marcordes has a sufficient foundation to testify about Defendant Hall’s reputation
in the community for truthfulness. See United States v. Tedder, 403 F.3d 836, 839 (7th Cir.
2005) (lawyer permitted to testify about defendant former lawyer’s reputation for truthfulness in
the legal community); United States v. Bedonie, 913 F.2d 782, 802 (10th Cir. 1990) (proper
foundation established where reputation witness lived and worked in same community as
witnesses whose credibility was at issue and knew witnesses personally); but see United States v.
Nedza, 880 F.2d 896, 904 (7th Cir. 1989) (reputation testimony inadmissible where character
witness attended high school with witness whose credibility was at issue but was 57 years old at
the time of trial and only foundation for her knowledge about witness’s reputation for
truthfulness derived from two discussions with former high school classmates).
Finally, to the extent Defendants argue that permitting 608(a) testimony will lead to an
“endless” trial and be a “colossal waste of time,” the Court notes that Plaintiff asserted at the
May 18, 2017 final pretrial conference that he intends to call only two or three 608(a) character
witnesses and that each such witness’ testimony will be brief. Additionally, and perhaps more
importantly, the Court maintains its discretion under Rule 403 to evaluate the probative value of
additional character witnesses as the trial progresses and as the Court has a better sense of
whether the testimony of additional character witnesses should be excluded as cumulative or a
waste of time.
Next, Defendants argue that Dr. Hartman’s testimony about his understanding that the
doctors at Keystone were partners is inadmissible hearsay. Dr. Hartman testified as follows:
What was your understanding of their relationship to Dr. Hall?
I thought they were partners.
And why did you think that?
Well, I was told that. I mean I did not think - - they were not his
employees. They were partners because they were working together as a group
and they - - I mean - 5
Who told you that they were partners?
The - - Dr. Weber did, Dr. Angelopoulos, Dr. Hall. A person named Bear
Roalsen who was a person who recruited me to work with Dr. Hall who was Dr.
[369-1, 7:18–8:11.] On cross-examination, Dr. Hartman elaborated:
You testified that you were told by numerous doctors at Keystone that
they were partners, correct?
Yes. Including -- Marty Hall's right-hand man was Bear Roalsen at the
time, his brother-in-law.
When did that conversation occur, that Mr. Roalsen told you that the
doctors in Keystone were partners?
Well, it was on multiple occasions. Can I give you specific dates? No, I'm
not sure anyone could this far down the line, but we had multiple conversations
before I joined Marty Hall and his group and afterwards. So probably no less than
five, six, seven times?
[Id. at 18:4–16.] With one exception, these statements are statements by a party opponent, and
thus not hearsay pursuant to Federal Rule of Evidence 801(d)(2). The statements attributed to
Defendant Hall are statements “made by the party in an individual or representative capacity.”
Fed. R. Evid. 802(d)(2)(A). The statements attributed to Dr. Weber and “Bear” Roalsen were
“made by the party’s agent or employee on a matter within the scope of that relationship and
while it existed.” Fed. R. Evid. 802(d)(2)(D). However, Dr. Hartman cannot testify that Plaintiff
said he was a partner at Keystone, as this does not fall within any hearsay exception. Thus, the
Court strikes “Dr. Angelopoulos” from line 8 of page 8 of Dr. Hartman’s deposition, [369-1,
8:8]. Additionally, the Court is not convinced by Defendants’ argument that Dr. Hartman’s
testimony concerning whether the doctors at Keystone were partners is unnecessarily cumulative
and should be excluded pursuant to Rule 403, as Defendants provide no support for this
argument. Finally, Defendants argue that Dr. Hartman provides no specifics to support his
statements, but this argument goes to weight, not admissibility.
For the foregoing reasons, Defendants’ motion  to file document under seal is
granted, and Defendants’ motion  is denied.
Dated: May 23, 2017
Robert M. Dow, Jr.
United States District Judge
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