HAMDAN v. INDIANA UNIVERSITY HEALTH NORTH, LLC

Filing 232

ENTRY ON MOTIONS IN LIMINE ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 6/11/2015. (DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
TALAL S. HAMDAN, M.D.,
Plaintiff,
vs.
INDIANA UNIVERSITY HEALTH
NORTH HOSPITAL, INC.,
Defendant.

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) CAUSE NO. 1:13-cv-195-WTL-MJD
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ENTRY ON MOTIONS IN LIMINE
This cause is before the Court on the parties’ motions in limine. The motions are fully
briefed and the Court, being duly advised, resolves them as set forth below.
The Court notes that the granting of a motion in limine is not a final ruling regarding the
admissibility of the evidence at issue. Rather, it simply prohibits any party from eliciting
testimony regarding or otherwise mentioning a particular issue during trial without first seeking
leave of Court outside of the presence of the jury. Therefore, a party who wishes to elicit
testimony or introduce evidence regarding a topic covered by a motion in limine that has been
granted should request a sidebar conference during the appropriate point in the trial, at which
time the Court will determine how best to proceed. Parties should always err on the side of
caution and interpret rulings on motions in limine broadly, requesting sidebars before eliciting
testimony or offering evidence that is even arguably covered by a ruling in limine and avoiding
mention of such topics during voir dire, opening statements and closing argument. Counsel shall
also carefully instruct each witness regarding subjects that should not be mentioned or alluded to
during testimony unless and until a finding of admissibility is made by the Court.

Plaintiff’s Motions in Limine
1. Plaintiff’s Religion (Dkt. No. 196)
Dr. Hamdan “requests the Court to enter an Order barring discussion or crossexamination by the Hospital’s counsel or testimony by its witnesses about [his] Muslim faith or
religion, or that he or his parents or family are practicing Muslims.” Dkt. No. 196 at 1. He
argues that “religion [is] not at issue in this case” and there exists a “danger of hard-to-detect
prejudice against Muslims that might exist in the jury pool.” Id. at 1-2. This motion is DENIED.
It is true that § 1981 does not encompass discrimination based on religion; however, this
does not mean that Dr. Hamdan’s religion is irrelevant to the case. The allegedly-discriminatory
comments made by the Cath Lab employees include a mix of racial and religious comments, e.g.,
“Middle Eastern Muslims.” As the Hospital notes, “[t]he jury must be allowed to consider all of
the evidence and alternatives in order to put the whole story together as to what was happening
in the Cath Lab[.]” Dkt. No. 212 at 4.
The Court also notes that Dr. Hamdan will have ample opportunity during voir dire to
question potential jurors about their potential bias towards his religion.
2. Contractual Relationship (Dkt. No. 197)
Dr. Hamdan “requests the Court to enter an Order barring discussion or crossexamination by counsel or testimony by witnesses suggesting, implying, or tending to create an
inference that there was not a contractual relationship between Dr. Hamdan and the Hospital, as
that term is used in 42 U.S.C. §1981, as amended.” Dkt. No. 197 at 1. The Hospital “has no
objection to Hamdan’s Second Motion in Limine so long as the Hospital’s right to appeal the
Court’s Entry on Cross Motions for Summary Judgment is preserved.” Dkt. No. 213 at 1.
Accordingly, this motion is GRANTED.

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3. Information not Previously Considered or Relied Upon (Dkt. No. 198)
Dr. Hamdan seeks to exclude any discussion, cross-examination, or testimony “about any
conduct or action (including inaction) of Dr. Hamdan, whether behavioral or clinical, unless the
conduct or action (including inaction) had been considered or relied upon by the PA&I
Committee or the MEC in issuing the two Adverse Action Letters, and made known to Dr.
Hamdan.” Dkt. No. 198 at 1. He argues that “evidence or remark[s] outside the peer review
process and not considered during the peer review process cannot be relevant to any element of
Dr. Hamdan’s civil rights claim.” Id. at 2.
It appears to the Court that the Hospital may use this evidence for impeachment purposes.
It notes that Dr. Hamdan’s experts will testify “as to his purported glowing professional
reputation” that has been tarnished as a result of the peer review process. Dr. Hamdan has
likened this to a “black mark” on his record. The Court agrees with the Hospital that
[i]f Hamdan continues to assert at trial that the Hospital’s confidential peer review
process left a permanent “black mark” which damaged his reputation and
diminished his future earning capacity, the Hospital is certainly permitted to admit
evidence of other potential causes of damage to Hamdan’s reputation, including
evidence of problems he had at other institutions before and after the Hospital’s
peer review.
Dkt. No. 211 at 2. Accordingly, this motion is DENIED.
4. Earlier Lawsuit against Cath Lab Personnel (Dkt. No. 199)
Hamdan seeks to exclude evidence that he filed a lawsuit against the Cath Lab employees
in August 2011; he later voluntarily dismissed this lawsuit. He argues that this evidence is
irrelevant and would unfairly portray him “as a litigious fellow[.]” Dkt. No. 199 at 2. The
Hospital has no objection to this motion so long as its motion in limine “seeking to preclude
admission of the Hearing Transcript and DC Findings is granted[.]” Dkt. No. 214 at 3.

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The Court disagrees that this evidence unfairly portrays him as a litigious fellow; indeed
the Hospital notes that it “has never alleged or argued that Hamdan has a litigious character and
would not make such a suggestion if the Cath Lab Complaint is admitted into evidence.” Id. at 2.
That said, the Court is still unclear as to how this evidence is relevant. In light of the Court’s
ruling below regarding the Designated Committee Report and Recommendation, if the Hospital
seeks to admit evidence of the lawsuit Dr. Hamdan filed against the Cath Lab employees at trial,
it should request a sidebar conference before doing so to discuss the relevancy with the Court.
5. Palestinian versus Middle-Eastern Descent (Dkt. No. 200)
Dr. Hamdan seeks to exclude any discussion, cross-examination, or testimony “about the
fact that [he] is Palestinian (as opposed to Middle-Eastern descent), or that his parents have
returned to Palestine to live, or that Dr. Hamdan has from time-to-time visited his parents there.”
Dkt. No. 200 at 1. He argues that “his connection to the region in the Middle-East commonly
referred to as ‘Palestine,’ as opposed to some other country or region in the Middle-East, is not a
central or even relevant fact” and that “the terms ‘Palestine’ or ‘Palestinian’ have acquired a
secondary and opprobrious meaning in the United States in recent years.” Id. This motion is
DENIED.
Clearly, the fact that Dr. Hamdan is of Palestinian descent and ethnicity is relevant to his
§ 1981 claim. Moreover, he will have ample opportunity during voir dire to question potential
jurors about their potential bias towards his Palestinian descent and ethnicity.
6. Unsupported Expert Opinions (Dkt. No. 201)
Dr. Hamdan seeks to prohibit the Hospital’s expert, Dr. Skoog, from “parroting” the
affidavit of Dr. King. While the Court previously ruled on Dr. Hamdan’s Daubert motion
regarding both Drs. Skoog and King (Dkt. No. 172), Dr. Hamdan argues that a new problem

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presented itself when the Hospital failed to designate Dr. King as a testifying witness.
Specifically, Dr. Hamdan argues that
[i]f Dr. Skoog is permitted to rely on Dr. King’s affidavit, [] the jury will not have
heard any foundational testimony from Dr. King, and Dr. King will not have been
subjected to cross-examination. Thus, the jury will have no way of learning or
making a judgment about whether Skoog’s reliance on King was sound.
Dkt. No. 201 at 2, n. 1.
Dr. King is an interventional cardiologist with forty-five years of experience. Dkt. No.
145-5, King Aff. ¶ 7. He notes that he has “extensive knowledge regarding the level of
experience necessary to build a reputation in the industry and the financial opportunities
available to interventional cardiologists.” Id. Essentially, Dr. King rebuts the opinions of Dr.
Hamdan’s experts, Drs. Walker and Weinstock, opining that their projections of Dr. Hamdan’s
earning capacity—both in his clinical practice and through supplemental income—are “grossly
inflated,” “completely unsupported,” and “grossly exaggerated.” Id. ¶¶ 14, 17.
The Seventh Circuit has noted that “[a] scientist, however well credentialed he may be, is
not permitted to be the mouthpiece of a scientist in a different specialty.” Dura Auto. Sys. of
Indiana, Inc. v. CTS Corp., 285 F.3d 609, 614 (7th Cir. 2002). The Court agrees, therefore, with
Dr. Hamdan that “to allow [Dr. Skoog] to ‘parrot’ the opinion of another expert in a different
field . . . is improper.” Dkt. No. 201 at 4. In other words, Dr. Skoog will not be allowed to vouch
for Dr. King’s opinions at trial; if the Hospital desired Dr. King’s opinions to be admissible, it
should have designated him as an expert and listed him on its witness list.
However, as Dr. Hamdan noted, Dr. Skoog “should be permitted to testify to the extent
that his opinions are based on published statistics and such other information as he was able to
glean through his own efforts.” Id. Indeed, as the Hospital noted during the final pretrial

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conference, Dr. Skoog came to certain conclusions based on his reliance on data other than Dr.
King’s affidavit. This testimony will not be precluded.
7. Findings and Proceedings of Designated Committee (Dkt. No. 202)
Dr. Hamdan’s final motion in limine “requests the Court to enter an Order permitting
plaintiff to introduce on his case-in-chief any and all documents or other evidence emanating
from the proceedings of the Designated Committee” 1 and requests that this Court preclude the
Hospital “from arguing or introducing evidence to get out from under the Designated
Committee’s findings that there was never any evidence of poor clinical performance by Dr.
Hamdan[.].” Dkt. No. 202 at 1, 5.
The Court disagrees with Dr. Hamdan that issue preclusion or “converse collateral
estoppel” applies in this case. “Issue preclusion, also known as collateral estoppel, bars
successive litigation of an issue of fact or law actually litigated and resolved in a valid court
determination essential to the prior judgment, even if the issue recurs in the context of a different
claim.” Coleman v. Donahoe, 667 F.3d 835, 853 (7th Cir. 2012) (internal quotation marks
omitted). The Court does not believe that the Designated Committee “actually litigated” the
issue of Dr. Hamdan’s clinical performance or made a “valid court determination” on the issue.
Dr. Hamdan has directed the Court to no case law—in this context—to suggest otherwise.
That said, the Court believes the Report and Recommendation, with certain redactions, is
proper evidence. Dr. Hamdan argues that it is admissible under Federal Rule of Evidence
801(d)(2)(B), 2 and the Hospital does not argue otherwise. The Hospital’s main argument is

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The Hospital’s fourth motion in limine essentially requests the opposite—that the
transcript, record, and Report and Recommendation of the Designated Committee not be
admitted into evidence.
2
Rule 801(d)(2)(B) provides that a statement “offered against an opposing party [which] . .
. is one the party manifested that it adopted or believed to be true” is not hearsay.
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premised on Rule 403, 3 arguing that the admission of the Report and Recommendation would be
unfairly prejudicial. See Dkt. No. 217 at 2 (“[T]he danger of the jury simply adopting the
Designated Committee’s [Report and Recommendation] is real. The Hospital has a right for the
jury to hear live witness testimony and evaluate each witness’ credibility[.]”).
To begin, the Court notes that at the final pretrial conference, Dr. Hamdan agreed to
redact the portions of the Report and Recommendation regarding his behavior, as these particular
sections contain comments on witness credibility and fault. 4 The Court finds that this is proper
and remedies much of the Hospital’s concern. That said, with regard to the findings regarding
Dr. Hamdan’s clinical skills, the Court fails to see how the Hospital is unfairly prejudiced by
their admission. The Designated Committee was tasked with determining the propriety of the
“requirements imposed and actions taken by the IU Health North Medical Executive Committee
pertaining to Dr. Hamdan’s medical practice at IU Health North Hospital.” Dkt. No. 112-2,
Report and Recommendation of the Designated Committee, ¶ 4. It was not tasked with
determining whether the Cath Lab employees displayed racial animus towards Dr. Hamdan, if
the Cath Lab employees’ complaints were “bogus” or racially motivated, or if the Hospital was
“duped” by the Cath Lab employees. These are all issues the jury will still have to decide,
regardless of the Report and Recommendation’s admission.5

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Rule 403 provides that a “court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
4
The Court believes that redacting paragraphs 7 and 8 would be sufficient; however, the
parties should confer with each other and come to an agreement, seeking Court guidance if
necessary. This should be done prior to trial.
5
At the final pretrial conference, the Hospital argued that admitting the findings regarding
Dr. Hamdan’s clinical skills necessitates a finding that the Cath Lab employees’ complaints were
false. The Court disagrees. It is entirely possible that the Cath Lab employees honestly believed
there was an issue with Dr. Hamdan’s clinical skills and that he was a risk to patients. More to
the point, however, is that admitting the findings regarding Dr. Hamdan’s clinical skills does not
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The Hospital had every incentive to present documentary evidence and witnesses
regarding its concerns with Dr. Hamdan’s clinical skills at the Designated Committee hearing.
Moreover, if it felt that Dr. Hamdan was a threat to patient safety or a danger to the Hospital, it
did not have to adopt the Designated Committee’s Report and Recommendation. However, it
did, and the Court finds no unfair prejudice in the admission of a redacted form of the Report and
Recommendation.
The transcript of the Designated Committee hearing, however, is not admissible as
evidence. The transcript is close to 1,000 pages in length and contains a plethora of irrelevant
information and hearsay. Moreover, as the Hospital notes, the hearing was not conducted
pursuant to the Federal Rules of Evidence. 6 Accordingly, the transcript is excluded pursuant to
Rule 403.
Defendant’s Motions in Limine (Dkt. No. 193)
1. Law of the Case and Judicial Admissions
The Hospital “requests that all issues that have become law of the case through this
Court’s Orders or have been judicially admitted by Hamdan during his briefing be settled in
limine prior to trial.” Dkt. No. 194 at 2. In this regard, the Hospital notes that “the following
issues have been determined as law of the case or by Hamdan’s judicial admissions[.]” Id. at 3.
i.

Argument or Evidence of Indirect Discrimination

The Hospital argues that “Hamdan should be precluded from offering evidence of
indirect discrimination by the Hospital” because in his summary judgment briefing he

necessitate a finding that the Cath Lab employees’ complaints were racially motivated. At trial,
the jury will have the opportunity to listen to the testimony of the Cath Lab employees and judge
their motivations behind the complaints. The admission of portions of the Report and
Recommendation does not preclude this.
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Of course, if it is warranted at trial, the transcript may be used for impeachment purposes.
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“designated no indirect evidence of discrimination, nor did he argue that he could prove
discrimination using the indirect method of proof.” Id. Dr. Hamdan does not object to this,
noting that “[h]e will rely only on the Cat’s paw theory—which is a subspecies of the direct
method of proof—to prove liability under § 1981.” Dkt. No. 208 at 3.
The Court does note, however, that now that this matter has reached trial, there are no
“methods,” whether direct or indirect, there is only evidence. See, e.g., Gehring v. Case Corp.,
43 F.3d 340, 343 (7th Cir. 1994) (noting that once a discrimination case reaches trial, “the only
remaining question—the only question the jury need answer—is whether the plaintiff is a victim
of intentional discrimination”). The parties therefore need not concern themselves going forward
with discussions of or objections based on the direct or indirect methods of proof—the ultimate
question for the jury to decide is whether Dr. Hamdan was discriminated against.
ii.

Discriminatory Animus By Anyone Other Than Cath Lab Employees

The Hospital also argues that “[g]iven [Dr. Hamdan’s] admissions and elected Cat’s Paw
theory of liability, [he] should be precluded from now arguing or suggesting that the Hospital’s
peer review committees or anyone other than some members of the Cath Lab acted with
discriminatory animus against him.” Dkt. No. 194 at 5. To the extent this is referring to
members of the PA&I Committee and MEC, Dr. Hamdan does not object and agrees that he
“should not be heard to argue otherwise at trial.” Dkt. No. 208 at 4. He does, however, suggest
that “[e]vidence that others, outside the Cath Lab, also displayed racial animus toward him
should be admissible if, but only if, racial animus was a proximate cause of the Adverse Actions
later issued by the MEC.” Id. at 5. The Court is unaware of such evidence given Dr. Hamdan’s
consistent position that it was certain Cath Lab employees who displayed racial animus toward
him and “duped” the Hospital from issuing the Notice of Medical Executive Committee Action

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letters. If Dr. Hamdan believes he has evidence of this sort, he should request a sidebar
conference before eliciting it at trial.
4. Events Occurring After July 18, 2011, Letter
This motion seeks to preclude the admission of the testimony and transcripts before the
Designated Committee and the Report and Recommendation issued by the Designated
Committee. The Court has resolved those issues above.
5. Evidence of Reputational Harm
The Hospital argues that Dr. “Hamdan should also be precluded from introducing
evidence or argument that the Hospital cause him reputational harm as a result of the alleged
discrimination.” Dkt. No. 194 at 9. This motion is DENIED. As the Court has previously noted,
“Dr. Hamdan is free to assert at trial that he has incurred career-long reputational damages due to
the ‘black mark’ left by the choice of the Hospital to submit him to peer review and issue two
adverse actions against him.” Dkt. No. 172 at 8. In other words, Dr. Hamdan is free to argue that
the discrimination he faced proximately caused him reputational damages.
6. Evidence Of Lost Earnings And Damages After Voluntary Relinquishment of
Privileges From Indiana Hospitals
The Hospital argues that Dr. “Hamdan should be precluded from offering evidence or
expert testimony concerning lost earnings or damages he incurred after he voluntarily
relinquished his privileges at all Indiana hospitals, including the Hospital.” Dkt. No. 194 at 10.
This motion is also DENIED. Again, as the Court previously noted, “Dr. Hamdan may, if he
believes the evidence warrants it, assert at trial that he was constructively discharged from Heart
Partners and therefore he is entitled to recover the expenses associated with his relocation to
Florida. It will then be up to the jury to determine what the circumstances of his relocation were
and whether the requirements of constructive discharge are satisfied.” Dkt. No. 172 at 6.
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After hearing from the parties at the final pretrial conference, however, the Court believes
it is best to address this issue with the jury as one of proximate cause rather than constructive
discharge. Heart Partners, Dr. Hamdan’s former employer, is not a defendant in this case and,
therefore, there is no constructive discharge claim. As the Hospital notes, this issue is only
relevant to Dr. Hamdan’s damages, i.e., whether he can recover certain relocation expenses and
whether he can recover (or must offset) the difference between his Florida and Indiana salaries.
If the jury finds for Dr. Hamdan and addresses the issue of damages, it will simply be asked
whether these damages were proximately caused by the Hospital’s actions, not whether Dr.
Hamdan was “constructively discharged” from Heart Partners.
7. Settlement Negotiations During The Peer Review Process
The Hospital seeks to exclude any “evidence that during efforts to compromise and
resolve the difference between the Hospital and Hamdan in September of 2011 concerning the
issuance of the letters forming the basis of his discrimination action, Hospital attorneys allegedly
made ‘threats’ to Hamdan’s counsel.” Dkt. No. 194 at 12. Dr. Hamdan believes these
negotiations are relevant to the issue of punitive damages.
While the Court agrees with Dr. Hamdan that Rule 408 7 does not apply to these
negotiations, the Court finds that this evidence is irrelevant, even as to the issue of punitive

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Rule 408 provides the following:

(a) Prohibited Uses. Evidence of the following is not admissible—on behalf of any party—
either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior
inconsistent statement or a contradiction:
(1) furnishing, promising, or offering—or accepting, promising to accept, or offering to
accept—a valuable consideration in compromising or attempting to compromise the
claim; and
(2) conduct or a statement made during compromise negotiations about the claim—
except when offered in a criminal case and when the negotiations related to a claim
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damages. As discussed below, Dr. Hamdan argues that his claim for punitive damages is
premised on the Hospital’s “reckless and callous disregard of abundant warning signs that the
complaints it was rushing to judgment on were the product of racial animus.” Dkt. No. 208 at 10.
If that is the case, then any “threats” the Hospital may have made are irrelevant to the issue of
punitive damages, as “threatening” someone is completely different than recklessly or callously
disregarding the truth of a complaint.
If Dr. Hamdan believes this evidence is otherwise relevant for some other purpose, he
should request a sidebar conference to discuss that with the Court before eliciting any such
testimony regarding the alleged “threats.”
8. Stipulation Regarding Hospital Charges and Collection for Hamdan’s Patients
The Hospital seeks to preclude Dr. Hamdan from introducing “evidence pursuant to a
Stipulation executed by the parties concerning the amount of hospital charges to the patients and
their insurers associated with procedures performed by Hamdan.” Dkt. No. 194 at 13. Dr.
Hamdan seems to agree that this evidence need not be admitted if the contractual relationship
between him and the Hospital is not disputed at trial. He does indicate, however, that this
evidence may be relevant “for a different purpose.” Dkt. No. 208. While the Court is unaware of
what other relevance this evidence may have, if Dr. Hamdan wishes to introduce such evidence,
he should request a sidebar conference before so doing.
9. Evidence of Front Pay And Other Damages Impacted By Resignation from Heart
Partners
Dr. Hamdan does not intend to argue that he is entitled to front or back pay. See Dkt. No.
208 at 9. Accordingly, this motion is GRANTED.

by a public office in the exercise of its regulatory, investigative, or enforcement
authority.
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10. Punitive Damages
The Hospital argues that because Dr. Hamdan has argued a Cat’s Paw theory of liability,
he “should be barred from introducing any argument or evidence in support of a punitive
damages claim in this case.” Dkt. No. 194 at 17. The Hospital notes that punitive damages are
available if a defendant acts with malice or with reckless indifference to the federally protected
rights of a plaintiff. The Hospital argues that because Dr. Hamdan’s case is premised on the
Hospital being “duped” by the Cath Lab employees, “there can be no evil motive, subjective
consciousness or criminal indifference on the part of the Hospital justifying Hamdan’s
entitlement to punitive damages.” Id. at 16.
As noted above, however, Dr. Hamdan argues that his claim for punitive damages is
premised on the Hospital’s “reckless and callous disregard of abundant warning signs that the
complaints it was rushing to judgment on were the product of racial animus.” Dkt. No. 208 at 10.
If the Hospital believes Dr. Hamdan has failed to submit enough evidence on the issue of
punitive damages, it can make an appropriate motion at the end of his case. At this point in time,
however, the Hospital’s motion in limine is DENIED.
11. Non-disclosed expert opinions and testimony
The Hospital seeks to preclude Dr. Hamdan from presenting any non-disclosed expert
opinions and testimony, noting that he has “identified himself and several other doctors as lay
witnesses on his Final Witness List.” Dkt. No. 194 at 17. Clearly, the Court will not allow Dr.
Hamdan or the Hospital to elicit expert testimony from a non-disclosed expert; the expert witness
deadline has long passed. That said, if the Hospital believes that Dr. Hamdan, or any other
medical doctor identified as a witness, is asked to offer expert testimony, it can make an
appropriate objection at that time.

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12. Any evidence of other discrimination actions or claims not involving Hamdan
and
13. Evidence concerning the Hospital’s size, profitability, comparative wealth, or
availability of insurance
and
14. The Filing of the Parties Motions in Limine, Motions to Exclude, Any Pre-Trial
Discovery Disputes and/or Motions
Dr. Hamdan does not object to these motions in limine. Accordingly, they are all
GRANTED.
SO ORDERED: 6/11/15
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copies to all counsel of record via electronic notification

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