Perez v. Fenoglio et al

Filing 151

ORDER DENYING 141 Motion to Strike. Signed by Magistrate Judge Donald G. Wilkerson on 10/16/2017. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
MIGUEL PEREZ,

)
)
Plaintiff,
)
)
v.
)
)
DR. JAMES FENOGLIO, WEXFORD
)
HEALTH SOURCES, INC., and CHRISTINE )
BROOKS,
)
)
Defendants.
)

Case No. 3:11-cv-819-DGW

ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court is the Motion to Strike filed by Defendants Dr. James
Fenoglio, Nurse Christine Brooks, and Wexford Health Sources, Inc. (Doc. 141). For the reasons
set forth below, the Motion is DENIED.
Defendants ask the Court to strike Plaintiff’s Exhibits 2, 4, and 5 appended to and
referenced in his response to Defendants’ motion for summary judgment. Defendants assert that
these documents should be stricken as they were not timely produced to Defendants in violation of
Rule 26(a)(1)(A)(ii) of the Federal Rules of Civil Procedure, having been disclosed only with the
filing of Plaintiff’s response brief, though the discovery deadline passed on June 13, 2017.
Rule 37(c)(1) prescribes that a party who fails to “provide information … as required by
Rule 26(a) or (e) … is not allowed to use that information … to supply evidence on a motion, at a
hearing, or at a trial, unless the failure was substantially justified or harmless.” Defendants
contend that Plaintiffs “production” of Exhibits 2, 4, and 5 after the close of discovery was neither
justified nor harmless as it prevented Defendants from reviewing, authenticating, investigating, or
responding to the documents.

In response to Defendants’ motion, Plaintiff asserts that his counsel was under the
mistaken belief that the relevant documents had been produced prior to the close of discovery.
Plaintiff further contends that Exhibits 4 and 5 were actually produced by Defendants (this
contention also seems to be mistaken; however, the Court finds that Defendants produced
documents that were substantially similar) and, in any event, Plaintiff’s failure to produce the
documents at issue was harmless. In particular, Plaintiff notes that the subject of the documents at
issue were discussed during Dr. Fenoglio’s deposition. Moreover, Plaintiff asserts that his failure
to disclose the relevant documents was not done in bad faith.
The Court has carefully reviewed Exhibits 2, 4, and 5 and, when considering the record as
a whole, finds that Plaintiff’s failure to produce said exhibits was inadvertent and harmless. First,
Defendants all but concede (rightfully so) that Exhibits 4 and 5 are substantially similar to
documents produced by Defendants as part of the records received from the Carle Clinic on June
20, 2017. Although the Court recognizes that Exhibits 4 and 5 were created at different times,
there is simply no prejudice in Plaintiff’s late production as Defendants had substantially similar
documents in their possession. The Court also finds that Plaintiff’s late production of Exhibit 2
was inadvertent and harmless. Exhibit 2 references a discussion held between Dr. Fenoglio and
an orthopedics provider at the Carle Clinic on May 17, 2010. Although Defendants did not have
this document in their possession prior to the close of discovery, Dr. Fenoglio provided deposition
testimony regarding his May 17, 2010 conversation with providers at the Carle Clinic. Moreover,
Defendants submitted a reply brief in response to Plaintiff’s summary judgment opposition brief;
thus, Defendants had an opportunity to address the document at issue.
For the foregoing reasons, Defendants’ Motion to Strike (Doc. 141) is DENIED.
IT IS SO ORDERED.
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DATED: October 16, 2017

DONALD G. WILKERSON
United States Magistrate Judge

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