## I LLINOIS 

## O FFICIAL 

## R EPORTS Appellate Court

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

Appellate Court Caption CITI BANK, N.A., Suc cess or by Merger to CIT IBANK, F .S.B., Plaintiff -Appe llant, v. McGLADREY AND PUL LEN, L LP, an I owa Limited Liability

Partnership, Defendant-Appellee.

District & No. First District, Second Division Docket No. 1–10–2427

Filed June 14, 2011

Held ( Note: This syllabu s constitutes no part of

the opinion of the court but has been prepared by th e Reporter of Decisions for the convenience of

the reader. ) Ina bank's action alleging that defendant

accounting firm

was negligent inconducting 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 noterr in granti ng defen dant's motion i n limine to bar the testimony of a se nior marketing direct o r froma consulting firm the bank engag ed to offer a professional opinion regarding defendant's audit as to the opinions of thec onsul ting fi rm's health care specialists who e xamined the files of the surgical practice and in denying

the bank's motion in limine to exclude any evidenc e of the bank's contributory

negligence unrelate d to the loan at issue, since the consultin

g firm' s directo

r admitte d he was n

ot qual ified to read a patie nt's medical c

hart, his testimony would be "parr oting" the opinions and conclusi ons of the

firm's health ca

re spec ialists that were bey ond his ken, a nd th e evid ence rel ating t o the b ank's lending decisions with the phy sician and his prac tice othe r than the loan at iss

ue was r elevant to the issue of causation and reliance and was the refore admissible.1 Dr. Weinberger was sub sequently located residin g in a tent in the Italian Alps and was broug ht back
to the United States in 2010. Hundreds of malpractice suits were filed against him a nd fede ral pros ecutors charged him

with multiple co

unts of health care fraud.

-2- Decision Under Review Appeal fromthe Circuit Court of Cook County, No. 05–L

–13222; the Hon. D aniel J. Lynch, J udge, p resid ing.

Judgment Affirmed.

Counsel on Appeal Quarles & Brady LL P, of Chic ag o (Leon ard

Shif flett, T hom as J. Magill, and Anthony P. Steinike, of counse l), for a ppellant

.

Williams & Conno ll y L LP, of Chicago (Edwa rd J. Bennett, Charles Davant IV, and Thomas P. Windom, of counsel), for appellee.

Panel JUSTICE KARNEZ IS de livered

the judg

ment o f the cour

t, with opinion. Presiding Justice Cunningham and J ustice Harris concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff

Citibank , N.A., successor by merg er to Citibank, F.S.B., appeals the circuit court’s judgment in favor of defendant McGladr ey & Pullen, LL

P, an I owa limite d liability partnership. Citibank contends on appeal that the c irc uit court’s pretrial rulings on two motions in limine were in error and a ne w trial isrequired as a result of the error. We af firm the judg ment of the

circuit c ourt.

¶ 2 Background ¶ 3 Inthis case, Citibank seeks to recov er money it loaned to Dr. Mark S. Weinberger, an ear,

nose and throat (ENT) surgeon, who absconde d to Europe with the proceeds of a $1.4 million
termloan from Citibank. 1 Citiba nk seeks t o recove r its money

by s uing McGladrey

for its negligent audit of Dr. Wei

nberg er’s sur

gical practice , Subspec ialty Cen ter s of

Ame ric a, LLC (SCA). Citibank claims that it relied on McGladr ey ’s audit in

making the $1.4 million term loan to SCA.-3-

¶ 4 McGladrey

conducted a financial audit of SCA for the year ending December

31, 2003, and issued its a

udit report i n March 2004. The audit report indicated that SCA’s “balance sheet present s fairly

in all mate

rial res pects to the financial positionof 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 m odification of a prior
termloan Citibank had made to SCA. Prior to 2004, Citibank had four outstandi ng loan s to SCA; (1) a mortgage loan for its diag nostic surgery

center; (2) a mortgag e loan for its office condomini

um; (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 discover y, C itibank dis closed three expe rt 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 dire ctor in the corporate finance de partment of

FTI Cons ulti ng, Inc. (FTI

), and has a

n extensive

auditing backg round. Hi s expert credentials are

n otat issue. Bartko was engag ed by Citibank to offer a professional opinion re gardin g McGladrey ’s a

udit of S CA. According to Bartko’s “Expert Report and Disclosure ,” he opined that McGladrey ’s audit was deficient and “did n

ot comply with the general sta

ndards, standards of fie ld work and standards of reporting within the body of generally

accepted auditing standards.” Specifically , according to Bartko, McGladr ey’s audit wa s de fi cient because McGladr ey did not use

health c are spe cialistswho posse ssed the e xpert

ise to anal yz e the medical files of SCA’s patients, and who would have ultimately uncovered a ny medical fraud. Bartko’s report indicated that FTI ’s team of health care specialists uncovere d

numerous re d flags in SCA’s patient files, which should have been discovered by McGladrey ’s audit. B artko’s report only

refer s to FTI ’s healt

h care s pecialists as “two registere d nurses”

(one of which is a “Certified Coding Specialist” and “Cer tified Professional Coder”)and “an individua l who lead s FTI ’s Healt

hcare C ompli an ce Consulting Services practice.” ¶ 7 McGladrey

filed a motion in limine to “Strike Certain Expert Testimony

,” which is one of the two mot

ions in limine at issue in this appeal. The motion sought to precl u de Bartko from testifying

as to the opinions and co nclusions of FTI ’s health

care sp ecialist s, becau se the specialists were never disclosed during discove ry and because Bartko was

not qualified
to testify to their findings. McGladrey

noted in the motion thatBartko admitted d

uring hi s deposition that the opinions of the health care specialists were the spec ialists’ opinion and
nothis opinions and that he was not qualified to read or interpret a patien t’s medic al records. The circuit c ourt gr

anted the motion to the extent that Bartko could testify tha t he would have engaged the use of health care specialists, but he could not testify as to the specific opinions and conc lusions of

FTI ’s health

care sp ecialist s. ¶ 8 Prior

to trial, the circuit court limited Citibank’s claims of damages to the 2004 term loan be cause Citibank ha

d made the

other out standing

loans to SCA

prior to r

eceivin g th e McGladr ey audit re port. ¶ 9 Citibank

subsequently filed a motion in limine to exclude any evidenc e of Citibank’s alleged contributory negligence unrelated to i ts term loan to SCA, which the circuit court denied. T his motion is

the second of the t

wo motions in limine at issue in this appe al.-4-

¶ 10 The case proceeded to trial, with the jury finding in fa vor of McGladrey . Citibank appeals the circ uit court’ s pretria

l ruling s concer

ning the above tw o motions in limine

.

¶ 11 Analysis ¶ 12 Onappeal, Citibank f irst conte nds the ci rcuit court’s order granting Mc Gladrey’ s motion in limine to preclude Bartko from testify ing as to the opi nions and conclusions of FTI’s health care specialists was in error. ¶ 13 Evidentiary

motions, such as motions in limine , are within the trial court’s discretion and

are reviewed under an abuse of discre tion standard. Petraski v. Thedos , 382 Ill. App. 3d 22, 26 (2008). The tria

l court a buses its discreti on when th e ruling is arbitr ary or unrea sonable

or no reasonable person

would agree with the position taken by the court. Petraski , 382 I ll. App. 3d at 26-2 7. The de cision of whether to admi t expert testimony is also subject to an abuse of discretion standard. Petraski , 382 Ill. App. 3d at 27. ¶ 14 Sp ec if

ic al ly, Citibank

argues that Bartko should have bee n permitte d to testif

y a s to the speci fic opinions and conclusions of FTI’s hea lth care specialists, citing to Walker v. So o Line R.R. Co. , 208 F.3d 581 (7th Cir. 2000), which held that the leader of a clinical medical
teamneed not be qualified as an expert in every individual discipline encompassed by the
teamin order

to test if y as to the team’s conclusions. Walker , 208 F.3d at 589. Citibank
argues that although Bartko was not qualified to interp ret a pa tie nt’s medical records, he should have neverth eless be en permi tted to tes tify

as to the h ealth ca

re spec ialists’ opinions and conclusions that medical fraud was prevalent and obvious in many of SCA’ s patien t files. ¶ 15 Mc Gladrey

respond s that although Federal Rule of Evidence 703 pe rmits an expert witness to rely on and explain to the jury certain inadmissible evidence, an expe rt witnes s “is not permitted to be the mouthpiece of [an expert] in a di fferen t spec ialt y” (quoti ng Dura Automotive Systems of Indiana, Inc. v. CTS Corp. , 285 F.3d 609, 614 (7th Cir. 2002)). ¶ 16 Federal Rule of Evidence 703, which wa s adopted by I llinois courts (see Wilson v. Clark
, 84 Ill . 2d 186, 19 6 (1981)) , provide s:

“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 hearin g. If of

a ty pe reas onably

relied u pon by experts in t

he parti cular f

ield in forming opinions or inferences upon the subjec t, the fac ts or data need not be admissible

in evidence in order for theopinion or infere nce to be admitted. Facts or data that are otherwis e inadmiss ible shall not b e disclosedto the jury by the proponent

of the opinion or inference unless the court determines that

their probative value in assisting the jury to eva luate the expert’s opinion substantially outwe i ghs their prejudicial effect.” Fed. R. Evid. 703 (a mended 2000). ¶ 17 In Walker , upon which Citibank relies, the district court barred a doctor w ho was a n expertinthe area

of electrical trauma from testify ing as to the opinions of other doctors on the “team” of med ical prof essionals who evaluated the plaintiff’s claim that an electrica l injury was th e cause

of his post-traumatic stress disorder. The Seventh Circuit Court of Appeals reversed, finding that medical profe ssionals “have long been expected to rely on the-5-

opinions of other

medical professionals in forming their opinions.” Walker , 208 F.3d at 588. The court reasoned that the purpose of the team appr oach to medical diagnosis was to ensure that all relevant disciplines worked together for the good of the patient; therefore, the doctor,

as th e “ te am ” l ea de r, co ul d r el y o n the exper t opinions o f other d

octors on the team i

n reaching her expert opinion. Walker , 208 F.3d at 589. ¶ 18 In Dura Automotive Systems , upon whichMcGladrey relies, the Seventh Circuit Court of Appeals considered

whether and to wha

t degre e an exper

t is permitt

ed to use a ssistants

or other experts in formulating his expert opinion, without those assistants or other experts testifying to their o wn opinions or conclusions. The plaintiff’s expert, a hy drologist, was disqualified

by the district court bec ause the expert relied on the c onclusion s of several professional groundwater- f low modelers who opined that the defendant’s manufacturing plant releas ed harm ful ch emica ls in to th e gr o undwate r, which contaminated a ne arby

well field. Dura Automotive Systems , 285 F.3d at 611. The hy drologist expert had admitted during his deposition that he wa s not an expe rt in mathe

matical 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 c oncerns matters bey ond 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 specia lt y. That would not be responsible science.” Dura Automotive Systems , 285 F.3d at 614. The court also cautioned against one expert merely “pa

rroting the opinion” of another expert in another discipline. Dura Automotive Systems , 285 F.3d at 613. ¶ 19 Here, we find

that this c ase is mor

e similar to Dura Autom otive Sy

stems than Walker

and compels a similar result. As in Dura Automotive Systems , Bartk o was atte mpting to testify
to the opinions and conclusions of FTI’s he alth care specialists who read and inter prete d
many of CSA’s patients’ medical charts, even though Ba rtko admitted he was not qualified
to read a pa ti ent ’s m edi cal cha rt. Inother words , Bartk o woul d be te stif ying to or “ parrot ing” those opinions and conclusions that were beyond his ken, which the Seve nth 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 plain tiff’s po st-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 He alt hcare Compliance Co nsulti ng Services practice.” This is cer tainly not a team of medica l professionals that can be expected to rely on the opinions of one another, as in Walker

. ¶ 21 We take this opportunity to acknowledg e that Illinois state courts are not bound

to follow th e decision s of the f

ederal district c ourts and

are als o not bound

by t he Fede ral Ru les o f Evidence. Reicher

t v. Board

of Fire &

Police Co mmissione

rs , 388 Ill. Ap p. 3d 83 4, 845 (2009). Nevertheless, although the Seventh Circuit’s opinion in Dura Automotive Systems is only persuas ive authority , we find it sound an

d well re asoned a

nd choose

to follow i

t.2 The parties fail to note in their briefs that the rule has been am ended and

Citibank quotes the prior version of the rule in its brief to this court.

3 No Illinois court has specifically adopted the amended v ersion. See People v. Johnson
, 406 Ill. App. 3d 805, 817 n. 2 (2010 ).

-6- ¶ 22 Ad di ti on al ly, 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

versionof the rule. The amended versionfurther provides that “[f]acts or data that are otherwise ina dmissible 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 substantia

lly
outwe ighs their prejudicial effect.” Fed. R. Evid. 703 (a mended 2000). 3 The advisory committee notes state that the amendment “provides a presumption aga inst disclosure to the jury of information used as the basis of an expert’s opinion and not ad missible for any substantive purpose, when that information is offered by the proponent of the expert.” Fed. R. Evid. 703, Advisory CommitteeNotes. 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 B artko from testifying to the opinions and conclusions of FTI’s hea lth care specialists was not an abu se of discretion. ¶ 23 Next, Citibank c ontends th e circu it court’s order deny

ing Citibank’s motion in limine to exclude any evidenc e of Citibank’s alleged contrib utory negligence unrelated to the 2004
t erm loan to SCA was in error. Citibank argues that it was improper for the c ourt to allo w testimony regarding its lending dec isions to SCA on all of its loans other than the 2004 term loan. ¶ 24 Indenying

Citibank’s motion in limine , the circuit court determine d that any

evidence relatingto 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 Passio n, Holy Cro

ss Province

v. Touche

Ross & Co.
, 224 Ill. App. 3d

559 (1991), for support. In Congregation of the Passion
, the plaintiff sued the defendant

accoun ting fir m for its ne glige

nt audit of one of its investm ent advis ers, Cranford Newell. Prior to trial, the plaintiff filed a motion in limine to exclude any ref erence to any of its investment acc ounts other than the accounts managed by Newell. T he circ

uit
court granted the motion and this court affirmed on appea l. This court determine d that the evidence was properly

excluded because it did not bear on the specific i ssues under consideration, which concerne d only the Newell accounts. Congregation of the Passion , 224 Ill. App. 3d at

578. This c ourt fur

ther stat ed that the fac t that the plaintiff may have had problems with other investment advisors had no relevance and was not mater ial to the plaintif f’s claims tha

t the def endant ne glige

ntly failed to

properl y va lue the Ne

well 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 SC A other than the t

erm lo an were

not relevant in light of the court’s order limiting Citibank’s-7-

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 loa n. Citibank’s

con duct regar ding 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 n ot go beyond the spec ific issues under consideration, namely, Citibank’ s lending relation ship with

SCA. Althou

gh the c ircuit

court limitedCitibank’s damages to the 2004 t erm loan, the issue of whether Citibank relied on McGladrey ’s audit in making the 2004 term loan inv ol ved Citibank’s entire lending relation ship with SC A. We find no abuse of discretion in the circuit court’s denial of Citibank’s motion in limine to exclude any evid ence of Citibank’s alleged contributory negligence unrelate d to the 2004 term loan to SCA. ¶ 28 Last

l y, Citibank ar gues that the accumulation of the circuit court’s e rroneous rulin gs prejudiced

Citibank and requires a new trial. However, we find no error in the cour t’s rulings. Without error, there can be no acc umulation of error, and no new trial is required. ¶ 29 Accord

ingly , we aff

irm the jud

gment of the circ uit court. ¶ 30 Affirmed.