Angelopoulos v. Keystone Orthopedic Specialists, S.C. et al
Filing
393
MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 5/23/2017. Mailed notice(cdh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DR. NICHOLAS ANGELOPOULOS,
Plaintiff,
v.
KEYSTONE ORTHOPEDIC
SPECIALISTS, S.C., WACHN, LLC,
and MARTIN R. HALL, M.D.,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 12-cv-5836
Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Currently before the Court is Plaintiff’s motion in limine [382] to bar evidence relating to
Defendants’ Exhibits 32 and 33. For the reasons set forth below, Plaintiff’s motion [382] is
denied.
I.
Discussion
The Court previously granted Plaintiff’s motion in limine No. 7 [339] to exclude
Defendants’ exhibits No. 32 and No. 33, which are purportedly leases for some of Keystone’s
medical equipment. [365, at 33–34.] Defendants offered these exhibits to support Count II of
their counterclaim, which alleges that Plaintiff breached an oral employment agreement with
Keystone by failing to pay for this equipment. The Court excluded these documents because
Defendants did not disclose them until well after the close of discovery. [See id.] Plaintiff now
seeks to exclude not only the actual documents, but all testimony and evidence concerning these
equipment leases.
Plaintiff argues that if Defendants were permitted to introduce evidence on the subject of
the medical equipment leases, it would undermine the Court’s ruling excluding the documents.
Plaintiff contends that there would be no effective way to cross-examine Defendant Hall about
his testimony concerning the medical equipment leases because Plaintiff’s counsel could not
contend that no such documents exist. The Court is not convinced.
As an initial matter, Plaintiff’s motion in limine No. 7 sought to bar Defendants’ Exhibits
Nos. 32 and 33 and focused solely on the actual documents; the motion made no mention of the
testimony relating to the documents. [339.] Thus, the Court ruled on Plaintiff’s motion in limine
No. 7 only in regard to the actual documents.
Additionally, despite Defendants’ late-disclosure of the leases, Plaintiff was aware of
Defendants’ counterclaim related to the medical equipment as early as May 12, 2014, when
Defendants first filed their counterclaims, [147, 47–48], and thus should have been aware that
Defendants may introduce testimony regarding the medical equipment. In fact, it is clear from
the exhibits attached to Defendants’ response brief that Plaintiff and Defendant Hall were asked
about the medical equipment in depositions. Moreover, it is not the lease agreements themselves
that give rise to Defendants’ counterclaim; rather the counterclaim is based on an alleged oral
employment agreement between Keystone and Plaintiff that required Plaintiff to pay for this
medical equipment. Because Plaintiff had notice of the counterclaim related to the medical
equipment at least three years prior to trial, Plaintiff will not be unduly prejudiced by the
introduction of testimony related to the medical equipment and the alleged oral agreement
between Plaintiff and Keystone. While the leases themselves likely would have bolstered the
strength of Defendants’ presentation on this subject, their exclusion was a proper sanction for
non-disclosure. However, precluding Defendants from presenting any testimony relating to this
part of their counterclaim would be too harsh a sanction for the late disclosure of two exhibits
that are by no means Defendants’ sole support for their counterclaim.
2
Next, Plaintiff argues that allowing testimony concerning the equipment would violate
the best evidence rule because testimony is only permitted about the contents of a document
without actually introducing the document if the document does not exist. The best evidence
rule provides that “[a]n original writing * * * is required in order to prove its content unless these
rules or a federal statute provides otherwise.” Fed. R. Evid. 1002. “If a witness’s testimony is
based on his first-hand knowledge of an event as opposed to his knowledge of the document,
however, then Rule 1002 does not apply.” Waterloo Furniture Components, Ltd. v. Haworth,
Inc., 467 F.3d 641, 648–49 (7th Cir. 2006). Thus, as long as Defendants offer witnesses who
have personal knowledge about the event—Keystone leasing medical equipment and Plaintiff’s
alleged agreement to pay (or at least contribute toward the payment) for the equipment— this
testimony does not violate the best evidence rule. However, if the “testimony goes to the
contents of the leases or seeks to prove an event from [the witness’s] familiarity with the leases,
Rule 1002 applies.” Simmons v. Allsteel, Inc., 1999 WL 1045214, at *2 (N.D. Ill. Nov. 12,
1999).
Finally, Plaintiff argues that the counterclaim is “preposterous and self-contradictory”
and the Court should bar it from going to the jury pursuant to Federal Rule of Civil Procedure
16(c)(2)(A).1 However, Plaintiff did not move to strike or dismiss Defendants’ counterclaim, nor
did Plaintiff move for summary judgement on the counterclaim. Thus, the Court declines to
strike Defendants’ counterclaim at this late stage.
II.
Conclusion
For the foregoing reasons, Plaintiff’s motion [382] is denied.
11
Under Federal Rule of Civil Procedure 16(c)(2)(A), at any pretrial conference, the court may consider
and take appropriate action to “formulat[e] and simplify[ ] the issues, and elimiat[e] frivolous claims or
defenses.”
3
Dated: May 23, 2017
____________________________
Robert M. Dow, Jr.
United States District Judge
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?