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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

UNITED STATES OF AMERICA 

Plaintiff, 

v. 

PETER ROGAN, 

Defendant. 

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Case No. 02C 3310 

Judge John W. Darrah 

DEFENDANT’S RENEWED MOTION IN LIMINE 

TO EXCLUDE PLAINTIFF’S EXHIBIT 13 AND 

TESTIMONY OF KATHLEEN CREIGHTON

(MOTION 3 OF 6)

Defendant Peter Rogan (“Rogan”) respectfully submits this Motion in Limine to 

exclude Plaintiff United States’ Exhibit 13, a spreadsheet created by Kathleen Creighton, a 

government auditor, that purports to summarize $18 million worth of Medicare and Medicaid 

payments to Edgewater Medical Center (“Edgewater”) from 1995 to 2000 for services provided 

by various attending physicians. Plaintiff’s Exhibit 13 is based exclusively on inadmissible 

hearsay evidence. The United States has failed to produce the underlying documents on which 

this summary is based in violation of Rule 1006 and its discovery obligations. This violation is 

particularly egregious given that the United States intends to rely on Plaintiff’s Exhibit 13 to 

prove over $18 million in alleged damages, before trebling, without affording Rogan an 

opportunity to review the underlying data, which defeats the underlying purpose embodied in 

Rule 1006. The United States also has failed to satisfy the requirements under Rule 1006 of the 

Federal Rules of Evidence necessary to admit Plaintiff’s Exhibit 13, a summary exhibit, into 

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evidence. Rogan also moves to preclude the testimony of Ms. Creighton because her knowledge 

is limited to her preparation of Plaintiff’s Exhibit 13, which is inadmissible as described herein. 

FACTUAL BACKGROUND

1. This case concerns the United States’ sweeping allegations that Rogan 

violated the Civil False Claims Act and committed common law torts by submitting, or causing 

others to submit, claims for reimbursement to The Centers for Medicare and Medicaid Services 

(“CMS”) that purportedly were engendered by unlawful referrals by Drs. Sheshiquiri Rao 

Vavilikolanu (“Rao”), Andrew Cubria, Ravi Barnabas, and/or Kumar Kaliana. The United 

States contends that more than $18 million in claims was falsely submitted over a five-year 

period. 

2. In order to identify the claims that the United States broadly alleged were 

falsely submitted, Rogan issued discovery. Specifically, on April 28, 2003, Rogan served his 

First Set of Document Requests. Request Number 2 sought “all documents that refer or relate to 

false claims that were submitted to insurers, Medicare and Medicaid.” (See Rogan’s First Set of 

Document Requests, attached hereto as Exhibit A, at number 2). On April 28, 2003, Rogan 

served his First Set of Interrogatories. Interrogatory Number 5 asked, “[I]dentify: all false claims 

that were submitted to insurers, Medicare and Medicaid; all persons who created or caused to 

create the false claims submitted to insurers, Medicare and Medicaid; the dates these claims were 

submitted to insurers, Medicare and Medicaid; and the documentary evidence supporting the 

answers given in this interrogatory. Responses must identify the date, time, place, subject matter 

and parties to any communication.” (See Rogan’s First Set of Interrogatories, attached hereto as 

Exhibit B, at number 5). 

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3. On July 21, 2003, Rogan served a Rule 30(b)(6) Deposition Notice on the 

United States, seeking a designated representative to testify about several matters, including “the 

computation of the damages alleged in the Complaint filed by the United States of America 

against Peter Rogan on or about May 8, 2002 in the above-captioned case.” (See Notice of Rule 

30(b)(6) Deposition of The United States of America, attached hereto as Exhibit C, at number 9). 

On February 11, 2004, the United States produced F.B.I. Agent Sherry Coon to testify as its 

designated representative in response to the Rule 30(b)(6) Notice. Agent Coon, however, was 

unable to testify about damages, and the parties agreed to defer the topic of damages and explore 

the possibility of a stipulation. (See Deposition of Sherry Coon, attached hereto as Exhibit D, at 

203-04, 215-16). 

4. On October 21, 2004, after the parties were not successful in negotiating a 

stipulation on the issue of damages, Rogan advised the United States that he needed to resume 

the Rule 30(b)(6) deposition as to damages. (See Correspondence dated October 21, 2004, 

attached hereto as Exhibit E). On November 9, 2004, the United States produced Kathy 

Creighton for a deposition. 

 5. Three days before Ms. Creighton’s deposition, on November 6, 2004, the 

United States provided a copy of Ms. Creighton’s C.V., a copy of a spreadsheet she created 

(“spreadsheet”), which is Plaintiff’s Exhibit 13, and a document the United States obtained from 

Edgewater entitled “EMC – Payments by Attending Physician” (“EMC document”). (The 

spreadsheet is attached hereto as Exhibit F and the EMC document is attached hereto as Exhibit 

G.). Because it designated Ms. Creighton as its Rule 30(b)(6) representative as to damages, the 

United States intends to prove damages at trial using the spreadsheet along with the testimony of 

Ms. Creighton, a financial auditor employed by the U.S. Attorney’s Office. 

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 6. Ms. Creighton testified at her deposition that she has been involved in 

several health care investigations. (See Deposition of Kathleen Creighton, attached hereto as 

Exhibit H, at 25). Not surprisingly, Ms. Creighton testified that she reviews documents, 

participates in interviews, reviews Form 302 reports and grand jury testimony, and attempts to 

find out as much information as possible with respect to her role in the case, typically the review 

and analysis of financial information. (See Exhibit H at 22-25). 

7. In this case, however, her work was limited to preparing the spreadsheet 

based solely on the EMC document. (See Exhibit H at 32-34). Ms. Creighton explained at her 

deposition that the EMC document was a schedule that she received from Dan May, an Assistant 

U.S. Attorney, that purported to set forth the monies received by Edgewater for claims submitted 

to Medicare, Medicaid, and private insurance companies for services provided by certain 

physicians acting as attending physicians. (See Exhibit H at 33). She testified that she believed 

that the U.S. Attorney’s Office obtained this schedule over e-mail from an attorney representing 

Edgewater. (See Exhibit H at 49). Ms. Creighton testified that, although her typical practice is 

to question and confirm the source of information she relies upon to conduct her analysis, she did 

not conduct any investigation to determine the accuracy of the EMC document and that AUSA 

May did not ask her to conduct any such investigation. (See Exhibit H at 43-44). Nonetheless, 

the EMC document became the sole basis for Ms. Creighton’s spreadsheet, which is Plaintiff’s 

Exhibit 13, despite the fact that she cannot attest to its foundation or accuracy. (See Exhibit H at 

33-37, 53-54). The United States, in turn, intends to introduce her spreadsheet into evidence to 

attempt to prove damages against Rogan. 

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ARGUMENT

 8. Plaintiff’s Exhibit 13 should be excluded as inadmissible hearsay. 

Hearsay is a statement, other than one made by a declarant while testifying at trial or at a 

hearing, offered to prove the truth of the matter asserted, and unless an exception applies, all 

hearsay must be excluded at trial. Fed. R. Evid. 803(c); Cent. States, SE and SW Areas Pension 

Fund v. Bomar Nat’l, Inc., 253 F.3d 1011, 1018 (7th Cir. 2001). Here, Plaintiff’s Exhibit 13 

summarizes another hearsay document, the EMC document, that allegedly sets forth the monies 

paid to Edgewater for claims submitted to Medicare, Medicaid, and private insurance companies 

for services provided by various attending physicians. The EMC document, which is the lone, 

underlying basis for Plaintiff’s Exhibit 13, is a classic hearsay document for which no exceptions 

apply. Yet, the United States plainly intends to introduce Plaintiff’s Exhibit 13 to prove the truth 

of the matters asserted in the EMC document, namely, the monies allegedly paid for services 

provided by certain physicians who allegedly referred patients to Edgewater in violation of 

applicable law.1 Thus, Plaintiff’s Exhibit 13, a hearsay document, is based exclusively on 

another hearsay document. 

 9. Further, the United States has failed to satisfy the requirements under Rule 

1006 of the Federal Rules of Civil Procedure necessary for the admission of Plaintiff’s Exhibit 

13, which is plainly a summary of payments allegedly received by Edgewater. Under Rule 1006, 

“[t]he contents of voluminous writings, recordings, or photographs which cannot conveniently be 

examined in court may be presented in the form of a chart, summary, or calculation.” Fed. R. 

Evid. 1006. However, a summary may not be admitted unless its proponent has laid a proper 

foundation showing that the underlying material is admissible and accurate. United States v. 

 

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 It is worth noting that both Plaintiff’s Exhibit 13 and the EMC document purport to list payments made or 

services provided by attending physicians, not referring or admitting physicians, despite the fact that this is a case 

over allegedly unlawful referrals. 

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Driver, 798 F.2d 248, 252-53 (7th Cir. 1986); Needham v. White Laboratories, Inc., 639 F.2d 

394, 403 (7th Cir. 1981). 

 10. The United States has failed to satisfy this foundation requirement. As 

stated above, the underlying document, the EMC document, is inadmissible hearsay. The United 

States has failed to establish the accuracy of the underlying document. Indeed, Ms. Creighton, 

the auditor who created Plaintiff’s Exhibit 13, admitted in her deposition that she conducted no 

investigation to determine the accuracy of the document. (See Exhibit H at 42-43). Thus, the 

United States has not laid a foundation showing that the underlying material is admissible and 

accurate, and the summary exhibit should be excluded. 

 11. Additionally, the EMC document that Ms. Creighton used to create the 

summary exhibit is itself a summary and suffers from the same deficiencies. According to the 

United States, the EMC document on which the summary exhibit is based is a compilation of 

Edgewater records regarding money paid to Edgewater for claims submitted to Medicare, 

Medicaid, and private insurance companies. (See Exhibit H at 33). The United States clearly 

intends to use the summary exhibit to argue the truth of the matters asserted in the Edgewater 

records, therefore the documents underlying the schedule are also inadmissible hearsay evidence. 

See Fed. R. Evid. 803(c) (defining hearsay); Cent. States, SE and SW Areas Pension Fund, 253 

F.3d at 1018 (defining hearsay). Moreover, the United States has not established the accuracy of 

these records (because, as described below, it never produced them), and thus it has failed to lay 

the necessary foundation as required by Rule 1006. See Driver, 798 F.2d at 252-53 (holding that 

a summary exhibit will be excluded unless its proponent lays a foundation establishing the 

accuracy and admissibility of the underlying documents). 

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 12. Finally, Plaintiff’s Exhibit 13 should be excluded under Rule 1006 

because, notwithstanding Rogan’s discovery requests and the United States’ discovery 

obligations, the United States has failed to make available the records used to compile the EMC 

document that formed the basis of the summary exhibit. Under Rule 1006, the documents 

underlying a summary exhibit “shall be made available for examination or copying, or both, by 

other parties at reasonable time and place.” Fed. R. Evid. 1006. The purpose of Rule 1006’s 

disclosure requirements is to allow the opposing party a reasonable opportunity to assess the 

accuracy and admissibility of the summary exhibit. Eastern Trading Co. v. Refco, Inc., No. 97 C 

6815, 1997 U.S. Dist. LEXIS 962, at *9 (N.D. Ill. Feb. 2, 1999). Where a party is not granted 

reasonable time to examine the underlying documents, that party lacks a reasonable opportunity 

to assess the accuracy and admissibility of the summary exhibit. Id. What constitutes 

“reasonable time” depends on the complexity and volume of the summary exhibit and underlying 

documents at issue. Id. Where the exhibit and underlying documents are uncommonly 

complicated and voluminous, however, their proponent must make them available well in 

advance of trial. Id.; see also Davis & Cox v. Summa Corp., 751 F.2d 1507, 1516 (9th Cir. 1985) 

(excluding summary exhibits where the defendant failed to make the underlying documents 

available “until just before trial”); Air Safety, Inc. v. Roman Catholic Archbishop of Boston, 94 

F.3d 1, 9 (1st Cir. 1996) (excluding summary exhibits where the plaintiff neglected to produce 

the underlying documents before trial despite the fact that the plaintiff would have made the 

documents available upon request). 

 13. In Eastern Trading Co. v. Refco, 1997 U.S. Dist. LEXIS at *9, the 

Northern District court held that disclosure “even a few weeks before trial” would not satisfy the 

requirements of Rule 1006. In Eastern Trading, the defendant intended to admit thirty-four 

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summary exhibits relating to 14,000 pages of underlying material, but failed to disclose more 

than one of the summary exhibits before trial. Id. at *8-9. The court held that disclosure of the 

exhibits “even a few weeks before trial” would fail to provide the plaintiff reasonable 

opportunity to analyze their accuracy and admissibility. Id. at *9. Accordingly, the court 

excluded the exhibits the defendant had failed to disclose. Id.

 14. Here, the United States has failed to disclose the records presumably used 

to create the EMC document, the schedule of payments that formed the sole basis for its 

summary exhibit (Plaintiff’s Exhibit 13), making its nondisclosure even more egregious than the 

one at issue in Eastern Trading. Not only did Rogan repeatedly request the records used to 

create the EMC document during discovery, but on February 10, 2005, Rogan filed his initial 

Motion in Limine to exclude Plaintiff United States’ Exhibit 13, based in part on the United 

States’ failure to disclose these records. This Motion in Limine put the United States on notice 

well over a year ago that Rogan sought to exclude the summary exhibit because the backup 

documents had not been produced. Despite the repeated discovery requests and despite Rogan’s 

initial Motion in Limine, the United States has not disclosed to Rogan which documents were 

used to compile the EMC document, let alone provided him an opportunity to review these 

documents. Without an opportunity to review the records from which the schedule was formed, 

Rogan cannot assess whether the schedule accurately summarizes the payments or whether the 

records themselves are admissible at trial. Therefore, for this additional reason, Plaintiff’s 

Exhibit 13 should be excluded under Rule 1006. 

15. Finally, this Court should also exclude Ms. Creighton’s testimony. Since 

Plaintiff’s Exhibit 13 is not admissible, her testimony is irrelevant. “Whether testimony is 

relevant depends on whether it makes the existence of any fact that is of consequence to the 

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determination of the action more or less probable.” Fed. R. Evid. 401. Irrelevant evidence is 

inadmissible. Fed. R. Evid. 402. Here, Ms. Creighton’s testimony regarding damages would 

pertain solely to her preparation of the spreadsheet summarizing the EMC document. Because 

this Court should exclude the spreadsheet, Ms. Creighton will have nothing to add to the 

proceeding. Aside from her limited knowledge of the hearsay documents, Ms. Creighton has no 

information regarding the existence of any fact that is of consequence to the determination of this 

action. Thus, her testimony is irrelevant and inadmissible.

CONCLUSION

 Plaintiff’s Exhibit 13 is based on hearsay evidence for which the United States 

has offered no exception. Thus, the United States cannot establish that its summary exhibit is 

based on admissible evidence as required under Rule 1006. Moreover, Ms. Creighton conducted 

no investigation into the accuracy of the underlying documents, and thus the United States 

cannot lay a proper foundation for its summary exhibit under Rule 1006. Finally, the United 

States also failed to make available the records that form the basis of the underlying document, 

which it was required to do under Rule 1006. Ms. Creighton’s testimony should be excluded 

because her only role in this case was to prepare Plaintiff’s Exhibit 13 and she otherwise has no 

relevant, admissible testimony. 

 WHEREFORE, for the reasons set forth above, Defendant Peter Rogan 

respectfully requests that the Court exclude Plaintiff’s Exhibit 13 and the testimony of Kathleen 

Creighton. 

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Dated: March 15, 2006 

Respectfully submitted, 

 PETER ROGAN 

 By: s/Bryna J. Dahlin 

 One of his attorneys 

 Neil E. Holmen 

 Joseph A. Spiegler 

 Bryna J. Dahlin 

 Chris J. Stathopoulos 

 WINSTON & STRAWN LLP 

 35 West Wacker Drive 

 Chicago, Illinois 60601 

 (312) 558-5600 

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CERTIFICATE OF SERVICE

I certify that the foregoing Defendant’s Renewed Motion to Exclude Plaintiff’s 

Exhibit 13 and Testimony of Kathleen Creighton has been served upon the following counsel 

this 15th day of March, 2006 as indicated below: 

Laurie Oberembt (by federal express) 

Trial Attorney 

Ben Franklin Station 

P.O. Box 261 

Washington, D.C. 20044 

Linda Wawzenski (by messenger) 

Assistant United States Attorney 

Dirksen Federal Building 

219 South Dearborn Street 

Chicago, IL 60604 

 ____s/Bryna J. Dahlin_________________ 

 Attorney for Peter Rogan 

 

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