UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JACQUES RIVERA, )

)

Plaintiff, )

) Case No. 12-CV-04428

v. )

) Judge Joan B. Gottschall

REYNALDO GUEVARA et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Defendants have filed a motion asking the court to reconsider a portion of one of its 

pretrial rulings barring certain opinion testimony of John Wasilewski (“Wasilewski”), one of 

defendants’ experts. See Ruling on Pl.’s Mot. in Limine No. 6 at 1–2 (“Ruling”), ECF No. 550.

The trial in this 42 U.S.C. § 1983 and state law action brought by Jacques Rivera (“Rivera”) is 

underway. Rivera spent over 20 years in prison for the 1988 murder of Felix Valentin 

(“Valentin”). In 2010, the only known eyewitness to the shooting, Orlando Lopez (“Lopez”), 

recanted his identification of Rivera as the shooter, and Rivera was released in 2011. In this civil 

suit, Rivera claims that the City of Chicago and several Chicago police officers, among other 

things, suppressed evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). 

To prevail on his Brady claim, Rivera must show that “(1) the evidence was favorable to 

him; (2) the officer concealed the evidence; and (3) the concealment prejudiced him.” Gill v. 

City of Milwaukee, 850 F.3d 335, 343 (7th Cir. 2017) (citing Cairel v. Alderden, 821 F.3d 823,

832 (7th Cir. 2016)). “Evidence is suppressed for Brady purposes when (1) the prosecution 

failed to disclose the evidence in time for the defendant to make use of it, and (2) the evidence 

was not otherwise available to the defendant through the exercise of reasonable diligence.” 
2

United States v. Kimoto, 588 F.3d 464, 492 (7th Cir. 2009) (quoting Ienco v. Angarone, 429 F.3d 

680, 683 (7th Cir. 2005)) (alteration omitted). The second element, reasonable diligence, is at 

issue in the pending motion to reconsider.

Wasilewski, one of defendants’ experts, expresses opinions on, among other matters, 

whether Rivera’s criminal defense attorney, Kenneth Wadas (“Wadas”), acted with reasonable 

diligence. See Wasilewski Report 23–31. Plaintiff moved before trial to bar Wasilewski from 

expressing those opinions. Pl.’s Mot. in Limine No. 6, ECF No. 418. The court granted the 

motion because another pretrial ruling took reasonable diligence out of contention but expressly 

left open the possibility of revisiting the admissibility of Wasilewski’s opinions on reasonable 

diligence.

The reasonable diligence issue was taken out of contention in the 

ruling on plaintiff’s motion in limine no. 1. ECF No. 531. 

Wasilewski’s opinions that Wadas should have attempted to 

interview the 12-year-old eyewitness to the murder of Felix 

Valentin, served subpoenas, filed certain motions, called his client 

as a witness, and so on will not “help the trier of fact.” Fed. R. Evid. 

702. Wasilewski, who served as a prosecutor but never a criminal 

defense attorney, see Wasilewski Report 34–35, does not consider 

the possibility that calling his client to testify about a lineup for 

which Wadas had no documentation (according to his testimony) 

would have subjected his client to a potential perjury charge. 

Wasilewski also does not discuss Wadas’ testimony that he was 

assured by prosecutors, after inquiring, that he had all of the 

investigative documents the prosecutors had. See Wadas Dep. 

86:22–87:10. For these reasons in addition to the court’s ruling on 

plaintiff’s first motion in limine, the court deems Wasilewski’s 

opinions unreliable under Daubert.

Ruling on Pl.’s Mot. in Limine No. 6 at 1–2, ECF No. 550.

For reasons that remain unclear to the court, plaintiff has not objected to evidence and 

argument relevant to reasonable diligence, and the parties agree that the court’s ruling on 

plaintiff’s motion in limine no. 1 no longer independently bars Wasilewski’s opinions on 

reasonable diligence. Thus, defendants’ motion to reconsider raises the question whether the 
3

court’s separate Daubert ruling barring Wasilewski’s reasonable diligence opinions should be 

reconsidered. Before addressing that question, the court considers two procedural arguments 

made by defendants in their motion to reconsider.

Defendants’ Procedural Arguments

First, defendants repeatedly argue that the court should not adhere to the Daubert analysis 

in its ruling because plaintiff did not explicitly raise concerns about Wasilewski’s qualifications

and methodology in his motion in limine no. 6. This argument fails. Consistent with the role of 

a district court as gatekeeper for expert testimony, the Seventh Circuit has held that a “district 

court may consider the admissibility of expert testimony sua sponte.” Lewis v. CITGO 

Petroleum Corp., 561 F.3d 698, 704 (7th Cir. 2009) (citing O’Conner v. Commonwealth Edison 

Co., 13 F.3d 1090, 1094 (7th Cir. 1994)). 

Second, Defendants submit that the court should hear from Wasilewski in open court 

before excluding his testimony. This court has the discretion to decide questions of the 

admissibility of expert testimony with or without a hearing. See Kumho Tire Co. v. Carmichael, 

526 U.S. 137, 153–54 (1999); Lewis, 561 F.3d at 705 (discussing district court’s broad discretion 

to exclude expert testimony without a hearing at summary judgment); Target Market Publ’g, Inc. 

v. Advo, Inc., 136 F.3d 1139, 1142 n.3 (7th Cir. 1998). Defendants do not explain, in their 

motion to reconsider or their reply, what information the court could glean from questioning 

Wasilewski at a hearing that is not apparent from his expert report and the other papers on file, so 

the court declines to exercise its discretion to hold a Daubert hearing.

The Scope of Wasilewski’s Opinions and Rule 702/Daubert Standard

On the merits, defendants argue that Wasilewski’s opinions satisfy the requirements of 

Federal Rule of Evidence 702 and Daubert. Defendants also contend that Wasilewski’s opinions
4

are relevant to the reasonable diligence component of Rivera’s Brady claim and causation under 

§ 1983. 

The court has reviewed Wasilewski’s report and finds no causation opinions. At the 

motion in limine stage, defendants did not argue that Wasilewski’s opinions were relevant to 

causation. Any opinions on causation Wasilewski intends to express must therefore be barred as 

undisclosed. See Fed. R. Civ. P. 26(a)(2)(B); 37(b). Defendants could, and should, have argued 

that Wasilewski expressed causation opinions at least by the motion in limine stage, so the scope 

of Wasilewski’s opinions cannot be expanded on this motion for reconsideration filed during 

trial. See Ahmed v. Ashcroft, 388 F.3d 247, 249 (7th Cir. 2004) (citing Caisse Nationale de 

Credit Agricole v. CBI Indus., Inc., 90 F.3d 1264, 1270 (7th Cir. 1996)).

Having determined that the scope of Wasilewski’s opinions reaches no further than 

Wadas’ reasonable diligence under Brady, the court considers the merits of defendants’ motion to 

reconsider. As explained at summary judgment and several times in the court’s rulings on the 

motions in limine, Federal Rule of Evidence 702 allows opinion testimony by an expert “who is 

qualified . . . by knowledge, skill, experience, training, or education” to testify provided that four 

conditions are satisfied. In Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), the 

Supreme Court declined to adopt a “‘general acceptance’ standard” for expert opinion testimony 

because it “would be at odds with the ‘liberal thrust’ of the Federal Rules and their ‘general 

approach of relaxing the traditional barriers to opinion testimony.’” Daubert, 509 U.S. at 588 

(quoting Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 169 (1988)). Nevertheless, “the court 

must ensure that the evidence is relevant and reliable before admitting it.” Lees v. Carthage 

Coll., 714 F.3d 516, 521 (7th Cir. 2013) (citing Daubert, 509 U.S. at 588–89). Rule 702 requires 

the court to ask the following questions before admitting expert testimony: (1) is the “expert . . . 
5

qualified by knowledge, skill, experience, training, or education[?]”; (2) does “the proposed 

expert testimony . . . assist the trier of fact in determining a relevant fact at issue in the case[?]”;

(3) is “the expert’s testimony . . . based on sufficient facts or data and reliable principles and 

methods[?]”; and (4) has the expert “reliably applied the principles and methods to the facts of 

the case[?]” Id. at 521–22 (citing Fed. R. Evid. 702 and Smith v. Ford Motor Co., 215 F.3d 713, 

717–19 (7th Cir. 2000)); see also Gopalratnam v. Hewlett-Packard Co., 877 F.3d 771, 778 n.1 

(7th Cir. 2017).

Wasilewski’s Expert Report on Reasonable Diligence

Wasilewski grounds his reasonable diligence opinions on a series of supporting opinions 

that “Wadas was under a duty under the Illinois Code of Professional Responsibility to interview 

witnesses in this case, file motions to protect [sic] evidence, supplement his discovery motion 

with a specific requests [sic], issue subpoenas for records, file a motion in limine, file a motion to 

suppress identification, and generally to make a record on the court proceedings for possible 

review.” Wasilewski Report 23. As support, Wasilewski cites, without discussion, Section 7-101 

of the Illinois Code of Professional Responsibility (since repealed) entitled “Representing a

Client Zealously.” Id. (citing Ill. Code Prof’l Responsibility § 7-101 (1987)). As its title 

suggests, § 7-101’s text does not state who a lawyer must interview, what discovery the lawyer 

should pursue, what witnesses should be called, what motions should be filed, or what questions 

a lawyer should ask in a particular case. The rule states in general language that “[a] lawyer shall 

not intentionally fail to seek the lawful objectives of his client through reasonably available 

means permitted by law and the disciplinary rules.”

1 § 7-101(a)(1). When considering the 

 

1 The full text of the rule is: 

Rule 7-101. Representing a Client Zealously

(a) A lawyer shall not intentionally
6

appropriateness of sanctions for a violation of § 7-101, the Illinois Supreme Court stated that 

“each case must be considered on its own facts.” In re Weinberg, 518 N.E.2d 1037, 1040 (Ill. 

1989) (citing In re Hall, 447 N.E.2d 805, 806 (Ill. 1983)). In his report, Wasilewski discusses 

neither the text of § 7-101 nor any Illinois authority interpreting it. See Wasilewski Report 23; 

see also, e.g., In re Weinberg, 518 N.E.2d at 1040; In re Harris, 514 N.E.2d 462, 465 (Ill. 1987).

Instead of discussing the Illinois rules, Wasilewski expressly couches most of his 

opinions in terms of the options Wadas had. Wadas “could have filed a motion for a protective 

order.” Id. at 24. He also “could have filed a motion to suppress identification,” id. at 25, and 

Wasilewski explains the questions that Wadas “could have” put to witnesses, including his client, 

at the motion hearing and the trial, id. at 24–26. And Wadas, according to Wasilewski, “could 

have” called two witnesses at Rivera’s trial to perfect an impeachment and “could have” asked 

Rivera certain questions at trial. Id. at 26, 27. Then, even if unsuccessful, Wadas “could have” 

listed certain grounds in a motion for new trial.2 Id. at 27. Finally, Wadas “should have 

presented mitigation evidence” at Rivera’s sentencing proceeding. Id. at 28.

 

(1) fail to seek the lawful objectives of his client through reasonably available means 

permitted by law and the disciplinary rules, except as provided by Rule 7-101(b); however, 

such “reasonably available means” do not include

(A) refusing to accede to reasonable requests of opposing counsel which do not prejudice 

the rights of his client,

(B) failing to be punctual in fulfilling all professional commitments,

(C) engaging in offensive tactics, or

(D) failing to treat with courtesy and consideration all persons involved in the legal 

process;

(2) fail to carry out a contract of employment entered into with a client for professional 

services, but he may withdraw as permitted under Rules 2-110, 5-102, and 5-101; or 

(3) prejudice or damage his client during the course of the professional relationship, except 

as required under Rule 7-102(b).

(b) In his representation of a client, a lawyer may refuse to aid or participate in conduct that he 

believes to be unlawful, even though there is some support for an argument that the conduct is 

legal.

2 The defendants concede that Wasilewski’s opinions about filing a motion to disqualify the state trial judge, 

Wasilewski Report 27–28, are barred by a separate ruling of this court.
7

After listing all of the things Wadas allegedly could or should have done, Wasilewski 

recites the familiar elements of a Brady claim and the reasonable diligence component of the 

suppression requirement. See id. at 29–30. He describes the reasonable diligence analysis

conducted in Petty v. City of Chicago, 754 F.3d 424 (7th Cir. 2014), Wasilewski Report 30, and 

then transitions without further discussion to his opinions about this case, see id. at 29–31. He

cites these as “examples of Attorney Wadas not exercising reasonable diligence in his 

representation of Mr. Rivera.” Id. at 31.

Admissibility of Wasilewski’s Reasonable Diligence Opinions

When it ruled on plaintiff’s motion in limine, the court noted that Wasilewski, a former 

state judge and prosecutor, did not consider the possibility that calling Rivera would subject 

Rivera to a perjury charge (if he testified about a lineup the state says never happened) and for 

failing to address Wadas’ testimony that the prosecutor assured Wadas that he had everything the 

prosecutor had. Ruling at 1–2.3 Defendants recognize in their motion to reconsider that the 

court’s conclusions rested on three independent grounds: Wasilewski’s lack of adequate 

knowledge, skill, and experience to express his opinions; a conclusion that his opinions would 

not “help the trier of fact” even if they were admissible, Fed. R. Evid. 702; and the related 

conclusion that he did not employ a reliable methodology in reaching his conclusions. The court 

discusses the last two issues first because they help explain why Wasilewski is not qualified by 

knowledge, skill, and experience to express his reasonable diligence opinions.

Defendants argue that this court should reconsider. They analogize Wasilewski’s 

opinions to malpractice suits in which experts testify on the standard of care lawyers, doctors, 

and accountants owe their clients. Expert testimony is frequently admissible in malpractice 

 

3 This has now been confirmed by the prosecutor’s trial testimony that his practice was to turn over everything to 

defense counsel. 
8

actions (indeed, it is often required) to assist the jury in understanding the appropriate standard of 

care. See, e.g., Hassebrock v. Bernhoft, 815 F.3d 334, 341–42 (7th Cir. 2016); Hoagland ex rel. 

Midwest Transit, Inc. v. Sandberg, Phoenix & von Gontard, P.C., 385 F.3d 737, 743–44 (7th Cir. 

2004) (collecting Illinois cases); see also Jimenez v. City of Chicago, 732 F.3d 710, 721–22 (7th 

Cir. 2013) (police practices). 

Focusing exclusively, as Wasilewski’s opinions do, on the standard of care under general 

state ethics rules requiring zealous representation runs the risk of obscuring the whole point of 

reasonable diligence analysis under Brady case law: determining whether evidence was 

suppressed. To the extent they are not cumulative,4 Wasilewski’s opinions will not assist the jury 

in understanding the evidence or deciding a fact in issue, Fed. R. Evid. 702, because he expresses 

opinions on Wadas’ performance as though this were a malpractice action or claim for ineffective 

assistance of counsel. It is not. To repeat, under the Brady suppression element, a plaintiff must 

prove “the evidence was not otherwise available to the defendant through the exercise of 

reasonable diligence.” Boss v. Pierce, 263 F.3d 734, 740 (7th Cir. 2001) (emphasis added; 

citations omitted). 

Wasilewski says only what “could have” been done without purporting to analyze the 

real-world tradeoffs for a criminal defense lawyer in Wadas’ situation or how likely taking those 

steps would have been to bear fruit, i.e., to uncover the allegedly suppressed material. See 

Wasilewski Report 23–31. Instead, Wasilewski treats failures to pursue all available options as 

discrete incidents of which he can cite examples, as though they are instances of alleged deficient 

 

4 Through the testimony on June 21, 2018, of Larry Victorson, the Assistant State’s Attorney who prosecuted Rivera, 

defendants introduced evidence that Wadas had most of the procedural and tactical options Wasilewski discusses in 

his report. Thus, even if Wasilewski’s freestanding explanation of Wadas’ options would have helped the jury 

understand the evidence, Fed. R. Evid. 702, his testimony would be cumulative and likely to waste the jury’s time, 

Fed. R. Evid. 403.
9

performance in an ineffective assistance of counsel claim under Strickland v. Washington, 466 

U.S. 668 (1984). See id. at 30–31. Indeed, in their motion to reconsider, defendants argue that 

Wasilewski’s experience deciding Strickland claims as a judge qualifies him to express his 

opinion. Defs.’ Mot. to Reconsider 4–5, ECF No. 609. For instance, Wasilewski states that 

Wadas should have interviewed Lopez, but he does not purport to opine on what difference the 

interview would have made, stating, “[I]t is unknown whether Orlando Lopez would have talked 

to Attorney Wadas because he did not try.” Wasilewski Report 23. Of course, even if Lopez had 

talked to Wadas, there is no reason to believe that he would have told Wadas that what he was 

telling the police was untrue. And as to filing certain motions, Wasilewski opines that at least 

Wadas could have created a record. Id. at 24–25. Wasilewski’s report is bereft of any opinion on 

the likelihood that taking those steps have yielded Brady material. See id. at 24–25, 30–31; cf. 

Transcraft, Inc. v. Galvin, Stalmack, Kirschner & Clark, 39 F.3d 812, 816 (7th Cir. 1994) 

(“Judges ought not by taking an expansive view of the tort of legal malpractice create incentives

for lawyers to engage in busy ‘motion practice’ in order to insulate themselves from legal 

liability.”). 

Moreover, without explanation or support, Wadas equates constitutional reasonable 

diligence with the general requirement of zealous representation under the Illinois Rules of 

Professional Conduct. Wasilewski Report 23. Even the most thorough criminal defense 

attorney, however, would be hard pressed to unearth evidence that is truly suppressed when it is, 

say, locked in a police officer’s desk drawer, as in Jones v. City of Chicago, 856 F.2d 985, 991, 

995 (7th Cir. 1988), or in a witness’s head, as in Boss, supra, 263 F.3d at 741. So there is more 

to reasonable diligence than the criminal defense attorney’s duties under state ethics rules, but 

Wasilewski offers no opinion on whether the allegedly suppressed evidence would have been 
10

available had Wadas done as Wasilewski opines he should have done. Accordingly, Wasilewski’s 

opinions on reasonable diligence would likely confuse, rather than assist, the jury, see Fed. R. 

Evid. 702, 403, because they depart from the governing Brady standard to the standard of care he 

believes § 7-101 required. See Superior Aluminum Alloys, LLC v. U.S. Fire Ins. Co., No. 1:05-

CV-207, 2007 WL 1850858, at *6 (N.D. Ind. June 25, 2007) (excluding expert testimony in part 

because expert utilized incorrect standard of care).

The initial and final steps of Wasilewski’s analysis have an additional, though related, 

Daubert problem. As already mentioned, Wasilewski simply cites § 7-101 of the Illinois Rules 

without discussing the text or law applying that rule. Wasilewski Report 23. After reviewing 

what Wasilewski believes Wadas could and should have done, Wasilewski gives his bottom line 

that each instance provides an example of Wadas’ lack of reasonable diligence. Wasilewski 

Report 30–31. 

Wasilewski offers no analysis of Illinois law explaining his opinion that the general 

language of § 7-101 required the specific steps he claims Wadas should or could have taken. See 

Wasilewski Report 23. By way of example, Wasilewski does not discuss § 7-101(a)(1)(C) which 

states that a lawyer’s duty of zealous representation does not require the lawyer to “engag[e] in 

offensive tactics.” When, if ever, is filing a baseless motion an “offensive tactic?” Wasilewski 

opines that if Wadas had filed a motion to suppress the lineup that everyone agreed occurred, he 

could have used it as a means to ask questions about the lineup that the state denied occurred. Is 

this realistic? Wasilewski doesn’t say, but it seems to assume a comatose trial judge. He 

provides a bottom line: § 7-101 was violated. Wasilewski Report 23–28. He does the same at 

the end of his report where he states that Wadas could have taken certain steps and then asserts 

the conclusion that Wadas was not reasonably diligent for not taking them. As defendants point 
11

out, Wasilewski cites rules and case law he contends would have allowed Wadas to take certain 

steps. Mot. to Reconsider 7. But surely, Wasilewski does not mean that everything that can be 

done must be done. Nevertheless, he does not explain how he narrows the universe of all steps 

that could be taken to those that governing Illinois professional standards required. See

Wasilewski Report 23–31. What is worse, he offers no explanation for leaping from his opinion 

on what § 7-101 required to what Brady case law requires. See id. Thus, on all of those issues, 

Wasilewski provides a “bottom line” without adequately explaining his “methodologies and 

principles.” Metavante Corp. v. Emigrant Sav. Bank, 619 F.3d 748, 761 (7th Cir. 2010) (quoting 

Minix v. Canarecci, 597 F.3d 824, 835 (7th Cir. 2010)) (required by Rule 702).

The methodology and reliability discussion so far helps to illuminate the problem with 

Wasilewski’s qualifications by knowledge, skill, training, and experience. An admissible expert 

opinion must be “informed by the witness’s expertise[,] rather than simply an opinion broached 

by a purported expert.” United States v. Hall, 93 F.3d 1337, 1343 (7th Cir. 1996) (quoting 

United States v. Benson, 941 F.2d 598, 604 (7th Cir. 1991)). Wasilewski spent his career as a 

prosecutor and state judge; he has never tried a case as a criminal defense attorney and he has not 

conducted discovery as a criminal defense attorney. See Wasilewski Report 34–35. He has 

never analyzed a case as a criminal defense attorney must, considering the strength of the State’s 

case, the resources he has available, and the concern not to aggravate the judge by pressing 

losing points. 

The court “must look at each of the conclusions [an expert] draws individually to see if 

he has the adequate education, skill, and training to reach them.” Hall v. Flannery (hereinafter 

“Hall”), 840 F.3d 922, 926 (7th Cir. 2016) (quoting Gayton v. McCoy, 593 F.3d 610, 617 (7th 

Cir. 2010)). Thus, in a legal malpractice suit, an expert on the standard of professional care does 
12

not necessarily need to be qualified by experience in the particular specialty; a lawyer may 

instead be qualified by studying the law, i.e., by “knowledge” rather than “experience” under 

Rule 702, but general legal training and even standing in the local legal community do not 

always qualify a lawyer to opine on the standard of professional care. Compare CDX 

Liquidating Trustee ex rel. CDX Liquidating Trust v. Venrock Assocs., 411 B.R. 571, 585 (Bankr. 

N.D. Ill. 2009) (holding law professor specializing in corporate governance law was qualified to 

opine on fiduciary obligations under Delaware law even though he had not practiced in 

Delaware), with Landeen v. PhoneBILLit, Inc., 519 F. Supp. 2d 844, 848 (S.D. Ind. 2007)

(“Although the Court has no doubt that [the witness] has considerable experience as a lawyer in 

the Indianapolis community, there is no specialized training, experience, or education in [the 

witness]’s background that would qualify him as an expert on matters of legal malpractice.”); 

Noske v. Friedberg, 713 N.W.2d 866, 872 (Minn. Ct. App. 2006) (affirming exclusion of law 

professor’s testimony because “his lack of practical or academic experience in the criminal-law 

area made it unlikely that his testimony on the duty of a criminal-defense attorney would have 

been admissible as expert opinion”). 

This fact-intensive inquiry depends in part on the area of specialty and the scope of the 

opinion expressed, so, for instance, the Seventh Circuit has upheld a state trial judge expressing 

opinions on whether a lawyer met the applicable standard of care in an ordinary negligence 

lawsuit tried in state court. Am. Int’l Adjustment Co. v. Galvin, 86 F.3d 1455, 1461–62 (7th Cir. 

1996). But a lawyer who has never tried a medical malpractice case has been disqualified from 

expressing an opinion second-guessing trial strategy in such a case. Dean v. Tucker, 517 N.W.2d 

835, 837 (Mich. Ct. App. 1994) (per curiam). These case-specific outcomes flow from the rule 

that the expert’s qualifications are not considered in the abstract; the court concerns itself 
13

“instead with his foundation for answering a specific question.” Hall, 840 F.3d at 928 

(alterations and quotation omitted); see also generally Mallen, 4 Legal Malpractice § 37:141 

(2018 ed.).

Here, defendants have not demonstrated that Wasilewski is qualified by knowledge, skill, 

and experience to answer the specific Brady suppression questions on Wadas’ reasonable 

diligence discussed in his report. Wasilewski’s failures to consider the danger of a perjury 

charge against Rivera if he were called as a witness in a motion to suppress a lineup the State 

contends never happened and Wadas’ testimony that the prosecutor assured him that he had 

everything provide concrete examples of a gap between expertise in the general field of 

“criminal law,” Wasilewski’s claimed area of expertise, and the more specific field of criminal 

defense law needed here to opine on whether Wadas acted with reasonable diligence. See Hall, 

840 F.3d at 930 (collecting cases in which expert was qualified to opine on one subject but not a 

more specific, often more specialized, subject); Noske, 713 N.W.2d at 872 (recognizing need for 

knowledge or “practical” experience in criminal law to render opinions on criminal defense 

lawyer’s decisions at trial). “Lawyers often have reasons for not going by the book—not making 

all the objections that might be well founded in the law of evidence, not cross-examining every 

witness for the other side, not calling every potential witness, not fussing over the particular 

wording of an instruction, not using up all one’s peremptory challenges, and so forth.” Am. Int’l 

Adjustment Co., 86 F.3d at 1466. 

Defendants point out that Wasilewski has supervised criminal discovery as a state trial 

judge and enforced discovery rules, tried criminal cases, decided habeas cases with Brady issues

(they do not say whether reasonable diligence was at issue), and enforced substantive rules in 

criminal cases. Mot. to Reconsider 5. Clearly Wasilewski has a great deal of experience. But he 
14

has no experience relevant to criminal defense strategy. Wasilewski’s opinions necessarily 

implicate strategic decisions peculiar to the practice of criminal defense in Cook County, 

including handling of witnesses, his client, and his relationship with a prosecutor with whom he 

testified he had a relationship of trust. As a prosecutor and trial judge, Wasilewski never found 

himself in the position of making the out-of-court tactical tradeoffs Wadas faced when 

considering all of the options for interviewing witnesses, conducting discovery in the face of the 

vast Cook County bureaucracy described at trial, and filing the motions he discusses in his 

report. So his experience has limited utility in enlightening the jury on the issues that would be 

most helpful to the jury on reasonable diligence, namely the likelihood that any particular tactic 

would have made otherwise suppressed material available. Defendants point out that Wasilewski 

served for over twenty years on the Illinois State Bar Association’s (“ISBA”) Criminal Justice 

Section Council. Defendants do not explain what, if any, knowledge of the realities of private 

criminal defense practice he gained thereby, and his experience as described by defendants 

sounds like policy work, which, while important, does not show that he is qualified here. See 

Mot. to Reconsider 5 (stating that the Commission’s “purpose is to review, study and analyze the 

field of criminal law and make recommendations to the ISBA on proposed changes to the field of 

criminal law in Illinois”).

For these reasons, the court finds that Wasilewski is not qualified by knowledge, skill, 

and experience to opine on Wadas’ reasonable diligence under Brady. See Landeen, 519 F. Supp. 

2d at 848; Noske, 713 N.W.2d at 872; Dean, 517 N.W.2d at 837. That said, the decision to 

exclude Wadas’ opinions does not rest exclusively on a qualification decision. “The fact that an 

expert may not be a specialist in the field that concerns her opinion typically goes to the weight 

to be placed on that opinion, not its admissibility.” Hall, 840 F.3d at 929 (collecting cases) 
15

(medical standard of care). As already explained, the court also excludes his opinions on 

reasonable diligence because they will not assist the jury and because they are unreliable. See id.

(stating in dictum that would have been error to exclude doctor’s opinion “on the sole basis that 

his medical specialty was something other than gynecology or obstetrics” (quoting Gaydar v. 

Sociedad Instituto Gineco-Quirurgico y Planificacion Familiar, 345 F.3d 15, 24–25 (1st Cir. 

2003))). They are likely to confuse the jury into thinking that because Wadas had an option to do 

something under Illinois law, he failed the reasonable diligence test by not doing it, and to cause 

the jury to speculate on whether doing any of the things Wasilewski opines Wadas should have 

done would have made any difference at all in uncovering the allegedly suppressed evidence. 

Conclusion

For the reasons stated, defendants’ motion to reconsider the court’s ruling barring 

Wasilewski’s opinions on reasonable diligence, ECF No. 609, is denied. 

Date: June 22, 2018 /s/

Joan B. Gottschall

United States District Judge