ILLINOIS OFFICIAL REPORTS

Appellate Court

Citibank, N.A. v. McGladrey & Pullen, LLP, 2011 IL App (1st) 102427

Appellate Court

Caption

CITIBANK, N.A., Successor by Merger to CITIBANK, F.S.B.,

Plaintiff-Appellant, v. McGLADREY AND PULLEN, LLP, an Iowa

Limited Liability Partnership, Defendant-Appellee.

 District & No. First District, Second Division

Docket No. 1–10–2427

Filed June 14, 2011

Held

(Note: This syllabus

constitutes no part of the

opinion of the court but

has been prepared by the

Reporter of Decisions for

the convenience of the

reader.)

In a bank's action alleging that defendant accounting firm was negligent

in conducting the audit the bank relied on in making a loan to a

physician with a surgical practice who absconded with the proceeds of

the $1.4 million loan, the trial court did not err in granting defendant's

motion in limine to bar the testimony of a senior marketing director

from a consulting firm the bank engaged to offer a professional opinion

regarding defendant's audit as to the opinions of the consulting firm's

health care specialists who examined the files of the surgical practice

and in denying the bank's motion in limine to exclude any evidence of

the bank's contributory negligence unrelated to the loan at issue, since

the consulting firm's director admitted he was not qualified to read a

patient's medical chart, his testimony would be "parroting" the opinions

and conclusions of the firm's health care specialists that were beyond his

ken, and the evidence relating to the bank's lending decisions with the

physician and his practice other than the loan at issue was relevant to

the issue of causation and reliance and was therefore admissible.
1Dr. Weinberger was subsequently located residing in a tent in the Italian Alps and was brought back

to the United States in 2010. Hundreds of malpractice suits were filed against him and federal prosecutors

charged him with multiple counts of health care fraud.

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Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 05–L–13222; the

Hon. Daniel J. Lynch, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Quarles & Brady LLP, of Chicago (Leonard Shifflett, Thomas J. Magill,

and Anthony P. Steinike, of counsel), for appellant.

Williams & Connolly LLP, of Chicago (Edward J. Bennett, Charles

Davant IV, and Thomas P. Windom, of counsel), for appellee.

Panel JUSTICE KARNEZIS delivered the judgment of the court, with

opinion.

Presiding Justice Cunningham and Justice Harris concurred in the

judgment and opinion.

OPINION

¶ 1 Plaintiff Citibank, N.A., successor by merger to Citibank, F.S.B., appeals the circuit

court’s judgment in favor of defendant McGladrey & Pullen, LLP, an Iowa limited liability

partnership. Citibank contends on appeal that the circuit court’s pretrial rulings on two

motions in limine were in error and a new trial is required as a result of the error. We affirm

the judgment of the circuit court.

¶ 2 Background

¶ 3 In this case, Citibank seeks to recover money it loaned to Dr. Mark S. Weinberger, an ear,

nose and throat (ENT) surgeon, who absconded to Europe with the proceeds of a $1.4 million

term loan from Citibank.1 Citibank seeks to recover its money by suing McGladrey for its

negligent audit of Dr. Weinberger’s surgical practice, Subspecialty Centers of America, LLC

(SCA). Citibank claims that it relied on McGladrey’s audit in making the $1.4 million term

loan to SCA.
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¶ 4 McGladrey conducted a financial audit of SCA for the year ending December 31, 2003,

and issued its audit report in March 2004. The audit report indicated that SCA’s “balance

sheet presents fairly in all material respects to the financial position of SCA in conformity

with generally accepted auditing standards.” Citibank received the audit report and in June

2004, made a $1.4 million term loan to SCA. The term loan was a modification of a prior

term loan Citibank had made to SCA. Prior to 2004, Citibank had four outstanding loans to

SCA; (1) a mortgage loan for its diagnostic surgery center; (2) a mortgage loan for its office

condominium; (3) a revolving line of credit; and (4) a term loan. The 2004 term loan was an

increase and an extension of the prior term loan.

¶ 5 During discovery, Citibank disclosed three expert witnesses: Edward A. Bartko, an

accountant; Dr. Robert Kern, an ENT doctor; and, Dr. Robert Naclerio, an ENT doctor.

¶ 6 Bartko is a senior managing director in the corporate finance department of FTI

Consulting, Inc. (FTI), and has an extensive auditing background. His expert credentials are

not at issue. Bartko was engaged by Citibank to offer a professional opinion regarding

McGladrey’s audit of SCA. According to Bartko’s “Expert Report and Disclosure,” he

opined that McGladrey’s audit was deficient and “did not comply with the general standards,

standards of field work and standards of reporting within the body of generally accepted

auditing standards.” Specifically, according to Bartko, McGladrey’s audit was deficient

because McGladrey did not use health care specialists who possessed the expertise to analyze

the medical files of SCA’s patients, and who would have ultimately uncovered any medical

fraud. Bartko’s report indicated that FTI’s team of health care specialists uncovered

numerous red flags in SCA’s patient files, which should have been discovered by

McGladrey’s audit. Bartko’s report only refers to FTI’s health care specialists as “two

registered nurses” (one of which is a “Certified Coding Specialist” and “Certified

Professional Coder”) and “an individual who leads FTI’s Healthcare Compliance Consulting

Services practice.”

¶ 7 McGladrey filed a motion in limine to “Strike Certain Expert Testimony,” which is one

of the two motions in limine at issue in this appeal. The motion sought to preclude Bartko

from testifying as to the opinions and conclusions of FTI’s health care specialists, because

the specialists were never disclosed during discovery and because Bartko was not qualified

to testify to their findings. McGladrey noted in the motion that Bartko admitted during his

deposition that the opinions of the health care specialists were the specialists’ opinion and

not his opinions and that he was not qualified to read or interpret a patient’s medical records.

The circuit court granted the motion to the extent that Bartko could testify that he would have

engaged the use of health care specialists, but he could not testify as to the specific opinions

and conclusions of FTI’s health care specialists.

¶ 8 Prior to trial, the circuit court limited Citibank’s claims of damages to the 2004 term loan

because Citibank had made the other outstanding loans to SCA prior to receiving the

McGladrey audit report.

¶ 9 Citibank subsequently filed a motion in limine to exclude any evidence of Citibank’s

alleged contributory negligence unrelated to its term loan to SCA, which the circuit court

denied. This motion is the second of the two motions in limine at issue in this appeal.
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¶ 10 The case proceeded to trial, with the jury finding in favor of McGladrey. Citibank appeals

the circuit court’s pretrial rulings concerning the above two motions in limine.

¶ 11 Analysis

¶ 12 On appeal, Citibank first contends the circuit court’s order granting McGladrey’s motion

in limine to preclude Bartko from testifying as to the opinions and conclusions of FTI’s

health care specialists was in error.

¶ 13 Evidentiary motions, such as motionsin limine, are within the trial court’s discretion and

are reviewed under an abuse of discretion standard. Petraski v. Thedos, 382 Ill. App. 3d 22,

26 (2008). The trial court abuses its discretion when the ruling is arbitrary or unreasonable

or no reasonable person would agree with the position taken by the court. Petraski, 382 Ill.

App. 3d at 26-27. The decision of whether to admit expert testimony is also subject to an

abuse of discretion standard. Petraski, 382 Ill. App. 3d at 27.

¶ 14 Specifically, Citibank argues that Bartko should have been permitted to testify as to the

specific opinions and conclusions of FTI’s health care specialists, citing to Walker v. Soo

Line R.R. Co., 208 F.3d 581 (7th Cir. 2000), which held that the leader of a clinical medical

team need not be qualified as an expert in every individual discipline encompassed by the

team in order to testify as to the team’s conclusions. Walker, 208 F.3d at 589. Citibank

argues that although Bartko was not qualified to interpret a patient’s medical records, he

should have nevertheless been permitted to testify as to the health care specialists’ opinions

and conclusions that medical fraud was prevalent and obvious in many of SCA’s patient

files.

¶ 15 McGladrey responds that although Federal Rule of Evidence 703 permits an expert

witness to rely on and explain to the jury certain inadmissible evidence, an expert witness

“is not permitted to be the mouthpiece of [an expert] in a different specialty” (quoting Dura

Automotive Systems of Indiana, Inc. v. CTS Corp., 285 F.3d 609, 614 (7th Cir. 2002)).

¶ 16 Federal Rule of Evidence 703, which was adopted by Illinois courts (see Wilson v. Clark,

84 Ill. 2d 186, 196 (1981)), provides:

“The facts or data in the particular case upon which an expert bases an opinion

or inference may be those perceived by or made known to the expert at or before the

hearing. If of a type reasonably relied upon by experts in the particular field in

forming opinions or inferences upon the subject, the facts or data need not be

admissible in evidence in order for the opinion or inference to be admitted. Facts or

data that are otherwise inadmissible shall not be disclosed to the jury by the

proponent of the opinion or inference unless the court determines that their probative

value in assisting the jury to evaluate the expert’s opinion substantially outweighs

their prejudicial effect.” Fed. R. Evid. 703 (amended 2000).

¶ 17 In Walker, upon which Citibank relies, the district court barred a doctor who was an

expert in the area of electrical trauma from testifying as to the opinions of other doctors on

the “team” of medical professionals who evaluated the plaintiff’s claim that an electrical

injury was the cause of his post-traumatic stress disorder. The Seventh Circuit Court of

Appeals reversed, finding that medical professionals “have long been expected to rely on the
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opinions of other medical professionals in forming their opinions.” Walker, 208 F.3d at 588.

The court reasoned that the purpose of the team approach to medical diagnosis was to ensure

that all relevant disciplines worked together for the good of the patient; therefore, the doctor,

as the “team” leader, could rely on the expert opinions of other doctors on the team in

reaching her expert opinion. Walker, 208 F.3d at 589.

¶ 18 In Dura Automotive Systems, upon which McGladrey relies, the Seventh Circuit Court

of Appeals considered whether and to what degree an expert is permitted to use assistants

or other experts in formulating his expert opinion, without those assistants or other experts

testifying to their own opinions or conclusions. The plaintiff’s expert, a hydrologist, was

disqualified by the district court because the expert relied on the conclusions of several

professional groundwater-flow modelers who opined that the defendant’s manufacturing

plant released harmful chemicals into the groundwater, which contaminated a nearby well

field. Dura Automotive Systems, 285 F.3d at 611. The hydrologist expert had admitted during

his deposition that he was not an expert in mathematical models of groundwater flow. The

Seventh Circuit affirmed the district court, finding that an expert may not rely on or testify

to another expert’s opinions or conclusions when it concerns matters beyond the expert’s

ken. Dura Automotive Systems, 285 F.3d at 614. The court noted that “[a] scientist, however

well credentialed he may be, is not permitted to be the mouthpiece of a scientist in a different

specialty. That would not be responsible science.” Dura Automotive Systems, 285 F.3d at

614. The court also cautioned against one expert merely “parroting the opinion” of another

expert in another discipline. Dura Automotive Systems, 285 F.3d at 613.

¶ 19 Here, we find that this case is more similar to Dura Automotive Systems than Walker and

compels a similar result. As in Dura Automotive Systems, Bartko was attempting to testify

to the opinions and conclusions of FTI’s health care specialists who read and interpreted

many of CSA’s patients’ medical charts, even though Bartko admitted he was not qualified

to read a patient’s medical chart. In other words, Bartko would be testifying to or “parroting”

those opinions and conclusions that were beyond his ken, which the Seventh Circuit held was

improper.

¶ 20 We find Walker distinguishable because it involved a team of doctors, all working

together to diagnose the cause of the plaintiff’s post-traumatic stress disorder. Here, all that

Bartko’s “Expert Report and Disclosure” noted about the health care specialists was that two

were registered nurses and the third was “an individual who leads FTI’s Healthcare

Compliance Consulting Services practice.” This is certainly not a team of medical

professionals that can be expected to rely on the opinions of one another, as in Walker.

¶ 21 We take this opportunity to acknowledge that Illinois state courts are not bound to follow

the decisions of the federal district courts and are also not bound by the Federal Rules of

Evidence. Reichert v. Board of Fire & Police Commissioners, 388 Ill. App. 3d 834, 845

(2009). Nevertheless, although the Seventh Circuit’s opinion in Dura Automotive Systems

is only persuasive authority, we find it sound and well reasoned and choose to follow it.
2The parties fail to note in their briefs that the rule has been amended and Citibank quotes the prior

version of the rule in its brief to this court. 

3No Illinois court has specifically adopted the amended version. See People v. Johnson, 406 Ill. App.

3d 805, 817 n.2 (2010).

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¶ 22 Additionally, we note that Federal Rule of Evidence 703 was amended in 2000.2 The first

two sentences of the amended rule are the same as the prior version of the rule. The amended

version further provides that “[f]acts or data that are otherwise inadmissible shall not be

disclosed to the jury by the proponent of the opinion or inference unless the court determines

that their probative value in assisting the jury to evaluate the expert’s opinion substantially

outweighs their prejudicial effect.” Fed. R. Evid. 703 (amended 2000).3 The advisory

committee notes state that the amendment “provides a presumption against disclosure to the

jury of information used as the basis of an expert’s opinion and not admissible for any

substantive purpose, when that information is offered by the proponent of the expert.” Fed.

R. Evid. 703, Advisory Committee Notes. This presumption serves as an additional reason

why Bartko was properly precluded from testifying to the opinions and conclusions of FTI’s

health care specialists. Therefore, we find the circuit court’s order precluding Bartko from

testifying to the opinions and conclusions of FTI’s health care specialists was not an abuse

of discretion.

¶ 23 Next, Citibank contends the circuit court’s order denying Citibank’s motion in limine to

exclude any evidence of Citibank’s alleged contributory negligence unrelated to the 2004

term loan to SCA was in error. Citibank argues that it was improper for the court to allow

testimony regarding its lending decisions to SCA on all of its loans other than the 2004 term

loan.

¶ 24 In denying Citibank’s motion in limine, the circuit court determined that any evidence

relating to Citibank’s lending decisions with SCA was relevant to the issue of causation and

reliance and was therefore admissible.

¶ 25 Citibank relies on Congregation of the Passion, Holy Cross Province v. Touche Ross &

Co., 224 Ill. App. 3d 559 (1991), for support. In Congregation of the Passion, the plaintiff

sued the defendant accounting firm for its negligent audit of one of its investment advisers,

Cranford Newell. Prior to trial, the plaintiff filed a motion in limine to exclude any reference

to any of its investment accounts other than the accounts managed by Newell. The circuit

court granted the motion and this court affirmed on appeal. This court determined that the

evidence was properly excluded because it did not bear on the specific issues under

consideration, which concerned only the Newell accounts. Congregation of the Passion, 224

Ill. App. 3d at 578. This court further stated that the fact that the plaintiff may have had

problems with other investment advisors had no relevance and was not material to the

plaintiff’s claims that the defendant negligently failed to properly value the Newell

investments. Congregation of the Passion, 224 Ill. App. 3d at 579.

¶ 26 Citibank argues that, similar to Congregation of the Passion, the loans it made to SCA

other than the term loan were not relevant in light of the court’s order limiting Citibank’s
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damages to the 2004 term loan.

¶ 27 Here, however, all of the loans Citibank made to SCA were relevant to the issue of

whether Citibank relied on McGladrey’s audit in making the 2004 term loan. Citibank’s

conduct regarding its prior loans to SCA was relevant to shed light on whether the

McGladrey audit caused Citibank to make the 2004 term loan. Unlike in Congregation of the

Passion, Citibank’s motion in limine did not go beyond the specific issues under

consideration, namely, Citibank’s lending relationship with SCA. Although the circuit court

limited Citibank’s damages to the 2004 term loan, the issue of whether Citibank relied on

McGladrey’s audit in making the 2004 term loan involved Citibank’s entire lending

relationship with SCA. We find no abuse of discretion in the circuit court’s denial of

Citibank’s motion in limine to exclude any evidence of Citibank’s alleged contributory

negligence unrelated to the 2004 term loan to SCA.

¶ 28 Lastly, Citibank argues that the accumulation of the circuit court’s erroneous rulings

prejudiced Citibank and requires a new trial. However, we find no error in the court’s

rulings. Without error, there can be no accumulation of error, and no new trial is required.

¶ 29 Accordingly, we affirm the judgment of the circuit court.

¶ 30 Affirmed.