Artunduaga v. The University of Chicago Medical Center et al

Filing 217

MEMORANDUM Opinion and Order Signed by the Honorable Amy J. St. Eve on 12/8/2016:Mailed notice(kef, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
DR. MARIA ARTUNDUAGA,
Plaintiff,
v.
THE UNIVERSITY OF CHICAGO
MEDICAL CENTER,
Defendant.

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Case No. 12 C 8733

MEMORANDUM OPINION AND ORDER
AMY J. ST. EVE, District Court Judge:
On June 19, 2015, the Honorable James B. Zagel granted in part and denied in part
Defendant University of Chicago Medical Center’s (“UCMC” or “Defendant”) motion for
summary judgment brought pursuant to Federal Rule of Civil Procedure 56(a). The Court
presumes familiarity with the June 19, 2015 summary judgment ruling, as well as Judge Zagel’s
other rulings in this matter. The two remaining claims in this lawsuit include Plaintiff Dr. Maria
Artunduaga’s (“Dr. Artunduaga” or “Plaintiff”) national origin discrimination and retaliation
claims brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.1
Before the Court are five of Defendant’s motions in limine in advance of the January 30,
2017 trial date. For the following reasons, the Court, in its discretion, grants in part, grants in
part without prejudice, denies in part, and denies in part without prejudice Defendant’s motions
in limine. [R. 152, 153, 154, 155, 157]. The Court will address Defendant’s motion brought
pursuant to Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d

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On October 24, 2016, the Executive Committee reassigned this lawsuit to this Court,
after which the Court set a trial date for January 30, 2017.

469 (1993), in a separate order. Likewise, the Court will address Defendant’s motion in limine
#5 seeking to bar certain exhibits and testimony concerning consultations with counsel and
Defendant’s motion in limine #7 in which it seeks to exclude evidence regarding “improper
comparators” in another order.
BACKGROUND
Dr. Artunduaga was born and raised in Colombia, graduated from a Colombian medical
school in 2003, practiced medicine in Colombia for three years, and completed a post-doctoral
research fellowship at Harvard Medical School in 2011. She is a native Spanish speaker, who
also speaks English. In late June 2011, Dr. Artunduaga began working at UCMC as a resident in
the Section of Plastic and Reconstructive Surgery (“PRS”) – a residency that lasts six years. In
2011, Plaintiff signed a one-year residency contract that was subject to renewal in the spring of
2012. Dr. David Song served as the program director for UCMC’s PRS residency program. The
PRS residency program is considered a “combined program” with UCMC’s General Surgery
residency program. The General Surgery residency program directors during the relevant time
period were Dr. Mitchell Posner and Dr. Kevin Roggin.
In this lawsuit, Dr. Artunduaga claims that beginning in July 2011 she was subjected to
discrimination at UCMC based on her national origin. Further, Dr. Artunduaga asserts that she
complained about this national origin discrimination to various persons at UCMC. In midNovember 2011, UCMC placed Dr. Artunduaga on probation, and in March 2012, PRS faculty
decided not to renew Dr. Artunduaga’s one-year residency contract. UCMC denies that it
subjected Dr. Artunduaga to any discrimination. In addition, UCMC maintains that Dr.
Artunduaga did not complain about the alleged national origin discrimination until after UCMC
decided not to renew her contract.

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LEGAL STANDARDS
I.

Motions in Limine
Trial courts have broad discretion in ruling on evidentiary issues before and during trial.

See Bridgeview Health Care Ctr., Ltd. v. Clark, 816 F.3d 935, 939 (7th Cir. 2016); Whitfield v.
Int’l Truck & Engine Corp., 755 F.3d 438, 447 (7th Cir. 2014). “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); see also Dietz v. Bouldin, ___ U.S. ___, 136
S.Ct. 1885, 1891 195 L.Ed.2d 161 (2016) (“The Federal Rules of Civil Procedure set out many
of the specific powers of a federal district court,” but “they are not all encompassing,” for
example, they make no provision “for the power of a judge to hear a motion in limine.”). “Trial
courts issue rulings on motions in limine to guide the parties on what evidence it will admit later
in trial,” and “[a]s a trial progresses, the presiding judge remains free to alter earlier rulings.”
Perry v. City of Chicago, 733 F.3d 248, 252 (7th Cir. 2013). It is well-established that a motion
in limine “is an important tool available to the trial judge to ensure the expeditious and
evenhanded management of the trial proceedings” and that it “permits the trial judge to eliminate
from further consideration evidentiary submissions that clearly ought not be presented to the jury
because they clearly would be inadmissible for any purpose.” Jonasson v. Lutheran Child &
Family Servs., 115 F.3d 436, 440 (7th Cir. 1997).
II.

Federal Rules of Evidence
Pursuant to Federal Rule of Evidence 401, evidence is relevant if “it has any tendency to

make a fact more or less probable than it would be without the evidence” and “the fact is of
consequence in determining the action.” Fed.R.Evid. 401; United States v. Boros, 668 F.3d 901,

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907 (7th Cir. 2012). In short, Rule 401 defines relevance broadly. See United States v. Boswell,
772 F.3d 469, 475 (7th Cir. 2014). Rule 402 “provides the corollary that, with certain
exceptions, ‘[r]elevant evidence is admissible’ and ‘[i]rrelevant evidence is not admissible.’”
Boros, 668 F.3d at 907. The Court, however, may exclude relevant evidence “if its probative
value is substantially outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403. When considering Rule 403, courts use “a sliding
scale approach: as the probative value increases, so does our tolerance of the risk of prejudice.”
Whitehead v. Bond, 680 F.3d 919, 930 (7th Cir. 2012). “Evidence is unduly prejudicial if it
creates a genuine risk that the emotions of the jury will be excited to irrational behavior, and the
risk is disproportionate to the probative value of the offered evidence.” Morgan v. City of
Chicago, 822 F.3d 317, 339 (7th Cir. 2016) (citation omitted).
ANALYSIS2
I.

Defendant’s Motion in Limine #1
In its motion in limine # 1, Defendant seeks to bar Plaintiff from calling former UCMC

associate general counsel Jane McAtee as a witness at trial. Defendant explains that during
Plaintiff’s residency at UCMC, McAtee provided legal advice to the PRS Section regarding
Plaintiff’s probation, contract non-renewal, and Plaintiff’s internal grievance. Under these
circumstances, Defendant asserts that Plaintiff cannot call McAtee as a trial witness because she

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Although the parties filed numerous documents under seal, the Seventh Circuit has held
that “[d]ocuments that affect the disposition of federal litigation are presumptively open to public
view, even if the litigants strongly prefer secrecy, unless a statute, rule, or privilege justifies
confidentiality.” In re Specht, 622 F.3d 697, 701 (7th Cir. 2010); see also United States v.
Foster, 564 F.3d 852, 853 (7th Cir. 2009) (sealed documents “that influence or underpin the
judicial decision are open to public inspection unless they meet the definition of trade secrets or
other categories of bona fide long-term confidentiality.”).
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is “opposing counsel” under the Eighth Circuit’s Shelton factors. See Shelton v. Am. Motors
Corp., 805 F.2d 1323 (8th Cir. 1986). In Shelton, the Eighth Circuit set up a strict three-part test
in order for a litigant to depose opposing counsel. See Pamida, Inc. v. E.S. Originals, Inc., 281
F.3d 726, 729-30 (8th Cir. 2002); see also Armada (Singapore) Pte Ltd v. Amcol Int’l Corp., 160
F. Supp. 3d 1069, 1071 (N.D. Ill. 2016). As the Pamida decision explains “the difficult burden
imposed by Shelton was intended to guard against the ‘harassing practice of deposing opposing
counsel ... that does nothing for the administration of justice but rather prolongs and increases the
costs of litigation, demeans the profession, and constitutes an abuse of the discovery process.’”
Pamida, 281 F.3d at 729-30. Since the Eighth Circuit decided Shelton over thirty years ago, “the
Eighth Circuit has limited Shelton to the depositions of trial counsel regarding their knowledge
about the particular case in which they served as trial counsel.” aaiPharma, Inc. v. Kremers
Urban Dev. Co., 361 F. Supp. 2d 770, 775 (N.D. Ill. 2005). Although the Seventh Circuit has
yet to adopt the Shelton standard, courts in this district have applied a more flexible approach in
determining whether to allow the deposition or trial testimony of a party’s attorney, namely, by
looking to the circumstances of each particular case. See, e.g., Armada, 160 F.Supp.3d at 1071;
Espejo v. Santander Consumer USA, Inc., No. 11 CV 8987, 2014 WL 6704382, at *2 (N.D. Ill.
Nov. 25, 2014).
Here, Plaintiff maintains that the Shelton factors are inapplicable under the circumstances
because the now-retired McAtee is not “opposing counsel” for purposes of Shelton, especially
because she did not attend any depositions or settlement conferences in this case and has not
filed an appearance in these proceedings. Whether McAtee is opposing counsel for purposes of
Shelton turns on if she was actively involved in the present federal litigation. See, e.g.,
Friendship Vill. of Mill Creek v. Philadelphia Indem. Ins. Co., No. 14 C 1593, 2016 WL

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3702680, at *2 (N.D. Ill. Jan. 6, 2016); Lincoln Nat’l Life Ins. v. TCF Nat’l Bank, No. 10 C 6142,
2011 WL 13119407, at *2 (N.D. Ill. Dec. 12, 2011). On the record before the Court, it is unclear
how actively involved McAtee was in this litigation before her retirement. Further, if Plaintiff
calls McAtee as a witness, work product and attorney privilege issues will most likely arise.
Therefore, the best course of action is to address privilege and work product issues on a
question-by-question basis after the parties establish a factual foundation that McAtee was or
was not actively involved as trial counsel in the present litigation. See Armada, 160 F.Supp.3d at
1071. The Court therefore denies Defendant’s motion in limine #1 without prejudice. Plaintiff
must provide the Court with a written proffer of the anticipated testimony she seeks to elicit from
McAtee and explain its relevance by no later than December 16, 2016.
II.

Defendant’s Motion in Limine # 2
In UCMC’s motion in limine #2, it seeks to bar Plaintiff from presenting testimony,

evidence, or argument concerning publicity that is unrelated to this lawsuit and unfavorable to
UCMC, its witnesses, or the University of Chicago. Defendant specifically points to two
incidents: (1) UCMC’s decision to build a trauma center in Hyde Park; and (2) the University of
Chicago’s recent letter to students regarding academic freedom. Defendant contends that these
incidents are not relevant to the present lawsuit and will serve only to unfairly prejudice the jury
and confuse it as to the relevant issues.” See United States v. Alayeto, 628 F.3d 917, 922 (7th
Cir. 2010) (evidence is confusing if it distracts jurors from central issue of case).
In response, Plaintiff asserts that she has no intention of introducing evidence related to
the trauma center and letter to students about academic freedom. Therefore, the Court grants
Defendant’s in limine motion without objection and excludes evidence and testimony regarding
these two incidents. Plaintiff, however, argues that Defendant’s request to bar evidence

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regarding unfavorable publicity in relation to its trial witnesses is overly broad. The Court
agrees that Defendant has not met its burden of establishing that other unfavorable evidence as it
relates to its witnesses is inadmissible for any purpose. See SEC v. Ferrone, 163 F. Supp. 3d
549, 555 (N.D. Ill. 2016) (“moving party bears the burden of establishing clear inadmissibility”).
Defendant may object to any such evidence at trial after the parties present “the context,
foundation, and relevance of the contested evidence within the framework of the trial as a
whole.” Id. (quoting Casares v. Bernal, 790 F.Supp.2d 769, 775 (N.D. Ill. 2011)). The Court
therefore grants in part and denies in part Defendant’s motion in limine #2. The parties must be
prepared to address the specifics of such evidence at the final pretrial conference on December
20, 2016.
III.

Defendant’s Motion in Limine # 3
Next, Defendant moves to exclude evidence, testimony, and argument regarding

Plaintiff’s claims against UCMC and Dr. Song that Judge Zagel dismissed, including Plaintiff’s
claims of defamation, intentional inference with an employment relation, state law retaliatory
discharge, violations of the Illinois Whistleblower Act, discrimination claims brought pursuant to
42 U.S.C. § 1981, and Plaintiff’s Title VII hostile work environment claim. Defendant argues
that what little probative value this evidence may have is substantially outweighed by the danger
of unfair prejudice, namely, that the jury will conclude that UCMC and/or Dr. Song engaged in
wrongdoing as to these claims. See Fed.R.Evid. 403; Morgan, 822 F.3d at 339 (“Evidence is
unduly prejudicial if it creates a genuine risk that the emotions of the jury will be excited to
irrational behavior, and the risk is disproportionate to the probative value of the offered
evidence.”) (citation omitted).

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Plaintiff asserts that she has no intention of referring to the previously dismissed claims.
Rather, Plaintiff argues that Defendant’s motion in limine seeks to bar all evidence that formed
the basis of her dismissed claims and that Defendant has not met its burden of showing that the
underlying evidence is “inadmissible for any purpose.” Jonasson, 115 F.3d at 440; Ferrone, 163
F.Supp.3d at 555. Plaintiff, for example, takes issue with Defendant’s argument that the Court
should bar evidence concerning damages under 42 U.S.C. § 1981. In particular, Plaintiff
maintains that although damages under § 1981 are not subject to the statutory cap for Title VII
damages, her damages under Title VII include damages available under § 1981, such as
emotional distress damages, damages for lost future earnings capacity, and damages for medical
expenses incurred. See Humphries v. CBOCS W., Inc., 474 F.3d 387, 409 (7th Cir. 2007) (Title
VII and 1981 have overlapping damages provisions). The Court agrees that Plaintiff may
present evidence of her Title VII damages that are also recoverable under § 1981, and denies this
aspect of Defendant’s in limine motion.
Furthermore, Defendant argues that the Court should bar Plaintiff from referring to Dr.
Song as a Defendant – to which Plaintiff agrees. Nonetheless, Defendant also moves to bar
Plaintiff from “from attempting to tarnish Dr. Song’s credibility and reputation in any way.” Dr.
Song will be a witness at trial and credibility determinations will be central to this case.
Although the basis of Plaintiff’s dismissed claims may not be relevant to the remaining claims in
this lawsuit, Defendant’s request to bar evidence concerning Dr. Song’s credibility is too broad,
especially because the credibility of any witness is fair game and a question for the jury. See
Whitehead, 680 F.3d at 927; see also Fed.R.Evid. 801(d)(1). The Court, in its discretion, denies
Defendant’s broad request concerning Dr. Song’s credibility.

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Defendant, however, specifically moves to bar evidence concerning Plaintiff’s Illinois
Whistleblower claim raised in a motion to amend her pleadings that Judge Zagel denied. The
underlying allegations include that Dr. Song asked her and other junior residents to participate in
complex surgeries and to double-bill surgical procedures. Any such evidence and arguments are
not relevant to the remaining claims in this lawsuit and what little probative value this evidence
has is substantially outweighed by the danger of prejudice and juror confusion. See Fed.R.Evid.
403, 404(b); see also Davies, 836 F.3d at 890 (“Evidence is unfairly prejudicial ‘only if it will
induce the jury to decide the case on an improper basis, commonly an emotional one, rather than
on the evidence presented.’”). In short, this evidence would only serve the purpose of “dirtying
up” Dr. Song with unrelated bad acts evidence. See Scott v. City of Chicago, 724 F.Supp.2d 917,
927 (N.D. Ill. 2010). The Court grants this part of Defendant’s motion in limine #3.
IV.

Defendant’s Motion in Limine #4
In Defendant’s next motion in limine, it seeks to exclude evidence of other types of

discrimination other than national origin discrimination or evidence of discrimination or
retaliation against persons who are not PRS residents. Defendant maintains that the employment
decisions at issue in this lawsuit concern Plaintiff’s PRS residency and the non-renewal of her
one-year residency contract. Although Defendant does not point to the exact evidence it seeks to
bar, the Court agrees that any such generalized evidence of discrimination directed at others has
limited probative value in relation to Plaintiff’s national origin claims, see Lewis v. City of
Chicago, 590 F.3d 427, 443 (7th Cir. 2009), and has the danger of distracting jurors from the
central issue in this case. See Alayeto, 628 F.3d at 922. The Court thus grants this aspect of
Defendant’s motion in limine # 4.

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Similarly, Defendant moves to exclude evidence regarding discrimination or retaliation
against anyone who is not a PRS resident because Plaintiff’s claims focus on the decision-makers
in the PRS residency program. Again, Defendant does not direct the Court’s attention to the
exact testimony or other evidence that it seeks to exclude in the present motion in limine.
Defendant, however, moves to exclude evidence and argument concerning “improper
comparators,” including residents in UCMC’s General Surgery Residency Program in its motion
in limine #7, that the Court will discuss in a separate order.
V.

Defendant’s Motion in Limine # 6
Next, Defendant moves to bar evidence, testimony, and argument regarding Plaintiff’s

state law claims. To clarify, Plaintiff brought a lawsuit against UCMC and Dr. Song in the
Circuit Court of Cook County that involved claims of breach of contract, tortious interference
with contract, and tortious inference of prospective business relations claims. In response to the
present motion, Plaintiff asserts that she has no intention of referring to the state case or any
claims that she brought in that matter.
Defendant also asks the Court to bar evidence relevant to Plaintiff’s tortious inference of
prospective business relations claims, namely, emails that Dr. Song received and/or sent to
program directors at other residency programs about her, as well as an email to a program
director at the University of North Carolina at Chapel Hill, as not relevant to the remaining
claims in this federal lawsuit. Plaintiff, on the other hand, explains that these emails are relevant
in relation to her damages for loss to her future earning capacity as a result of damage to her
reputation. Furthermore, Plaintiff contends that this evidence is probative to rebut Defendant’s
assertion that she failed to mitigate her damages. Under these circumstances, these emails are
highly probative to Plaintiff’s damages claims that are not substantially outweighed by the

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danger of unfair preju
f
udice. See Whitehead, 680 F.3d at 9 (courts u “a sliding scale
W
6
930
use
approach as the prob
h:
bative value increases, so does our to
o
olerance of t risk of pr
the
rejudice.”). As
such, Defendant has failed in its burden of es
stablishing th this evid
hat
dence is inad
dmissible for any
r
purpose. See Ferron 163 F. Su 3d at 55 Wielgus v Ryobi Tec
3
ne,
upp.
55;
v.
chs., Inc., 893 F. Supp. 2
2d
920, 923 (N.D. Ill. 20
012). The Court, in its discretion, de
C
d
enies Defend
dant’s motio in limine #6.
on
CON
NCLUSION
N
For these reas
sons, the Court, in its dis
scretion, gra in part, g
ants
grants in par without
rt
prejudice denies in part, and den in part without preju
e,
p
nies
w
udice Defend
dant’s in lim motions
mine
s.
Dated: December 8, 2016
D
ENTERED
D

__________
__________
___________
__
AMY J. ST EVE
T.
United Stat District Court Judg
tes
ge

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