Vela v. Thompson et al

Filing 147

OPINION AND ORDER OVERRULING 139 Motion/Objectiion for Review of Magistrate Judge Decision by a District Judge re 138 Order denying discovery motions 92 , 93 and 95 , filed by Alfred Vela. Signed by Chief Judge Jon E DeGuilio on 5/18/2022. (mrm)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ALFRED VELA,
Plaintiff,
v.

Case No. 3:16-CV-51 JD

CORIZON HEALTH INC,
And JULIE KOLODZIEJ, Administrator of
the Estate of Dr. Joseph Thompson,
Defendant.
OPINION AND ORDER
Plaintiff Alfred Vela has filed an objection, pursuant to Federal Rule of Civil Procedure
72, challenging an order of the Magistrate Judge in this case (DE 139). The Magistrate Judge’s
order (DE 138) denied Mr. Vela’s motions for leave to file discovery (DE 92, 95) and denied his
motion for discovery relief (DE 93) as moot. For the reasons set forth in this order, the objection
will be overruled.
A. Background
Mr. Vela alleges that he was injured while in the custody of the Indiana Department of
Corrections. Mr. Vela further alleges those injuries were exacerbated by the failure of his treating
physician, Dr. Thompson, and his employer, Corizon Health, Inc., to provide proper medical
treatment (DE 118). Mr. Vela specifically alleges that in February 2014, he suffered an injury to
his spine causing a deteriorating condition with symptoms including loss of sensation to his legs,
coordination, paresthesia, and paraplegia. Mr. Vela alleges that Dr. Thompson wrongfully
concluded that he was malingering, or misrepresenting symptoms for secondary gain. On March
4, 2014, Dr. Thompson sent Mr. Vela for a neurosurgery evaluation. On March 25, 2014, Mr.

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Vela underwent an MRI to the middle of his back (thoracic MRI) which showed a “severe”
condition causing the need for “urgent” surgical repair. The surgical procedure took place on
April 14, 2014. Mr. Vela alleges this delay in treatment caused his paraplegia.
As is standard practice, the Magistrate Judge set discovery deadlines in this case (DE 82).
The parties timely disclosed expert reports and opinions (DE 74; 76). Discovery continued and
on May 2, 2019—at the parties’ request—the Court extended the non-expert discovery deadline
to June 28, 2019, and the expert supplementation deadline until July 28, 2019 (DE 87 at 3). The
Court did not, however, extend the March 29, 2019, deadline for the filing of any motion to
compel (Id.).
On May 5, 2019, days after the Court’s order extending these deadlines, Dr. Thompson
passed away. Defendants’ counsel informed Mr. Vela of Dr. Thompson’s death by email on May
30, 2019. The non-expert discovery deadline passed on June 28, 2019. On July 4, 2019, Mr. Vela
filed his Motion for Leave to File Plaintiff’s Motion for Discovery Relief (DE 92) and Plaintiff’s
proposed Motion for Discovery Relief (DE 93). On July 19, 2019, before the expert
supplementation deadline passed, Plaintiff filed another discovery-related motion entitled Motion
for Leave to Disclose Additional Expert (DE 95).
On January 27, 2021, the Magistrate Judge denied Mr. Vela’s motions (DE 126). Mr.
Vela filed a timely objection to the Magistrate Judge’s order under Rule 72 which this Court
sustained (DE 137). This Court then set aside the Magistrate Judge’s decision for entry of a new
decision (Id.). The Magistrate Judge entered a new decision on December 10, 2021, denying the
motions as Mr. Vela had not “demonstrated the diligence in discovery necessary to justify a
finding of good cause to extend the discovery deadlines further and grant leave to file his
proposed Motion for Discovery Relief or to disclose an additional expert.” (DE 138 at 7–8). Mr.

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Vela then filed a timely objection to that decision which is now fully briefed and ripe for
adjudication (DE 139).
B. Standard of Review
This Court’s review of magistrate judges’ orders on non-dispositive matters is governed
by Federal Rule of Civil Procedure 72(a). Rule 72(a) provides that, “[t]he district court judge in
the case must consider timely objections and modify or set aside any part of the order that is
clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); see also 28 U.S.C. § 636(b)(1)(A).
“The district court reviews the magistrate’s factual determinations under the ‘clear error’
standard, and the legal determinations under the ‘contrary to law’ standard.” Lafayette Life Ins.
Co. v. City of Menasha, 2010 WL 1138973, at *1 (N.D. Ind. Mar. 17, 2010) (citations omitted),
rev’d on other grounds, 627 F.3d 261 (7th Cir. 2010).
“The clear error standard means that the district court can overturn the magistrate judge’s
ruling only if the district court is left with the definite and firm conviction that a mistake has
been made.” Weeks v. Samsung Heavy Indus. Co. Ltd., 126 F.3d 926, 943 (7th Cir. 1997).
“Clear error is an extremely deferential standard of review, and will only be found to exist where
the ‘reviewing court on the entire evidence is left with the definite and firm conviction that a
mistake has been committed.’” Pinkston v. Madry, 440 F.3d 879, 888 (7th Cir. 2006) (quoting
Anderson v. City of Bessemer, 470 U.S. 564, 573 (1985)). In conducting this review, this Court
does not ask whether the finding is the best or only permissible conclusion, nor does it substitute
its own conclusions for the magistrate judge’s. Herz v. Diocese of Fort Wayne-S. Bend, Inc.,
2012 WL 3870528, at *1 (N.D. Ind. Sept. 5, 2012). An order is contrary to law “when it fails to
apply or misapplies relevant statutes, case law, or rules of procedure.” In re Fedex Ground
Package Sys., Inc., 2009 WL 5217341, at *3 (N.D. Ind. Dec. 28, 2009) (citation omitted).

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“[D]eference is particularly appropriate where, as here, the magistrate judge has managed the
case from the outset and developed a thorough knowledge of the proceedings.” Goodman v.
Clark, No. 2:09 CV 355, 2014 WL 5502258, at *4 (N.D. Ind. Oct. 29, 2014) (internal quotations
omitted). The district court exercises broad discretion in determining whether to compel
discovery. Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002); Gile v. United
Airlines, Inc., 95 F.3d 492, 496 (7th Cir. 1996).
C. Discussion
(1) Issues raised before the Magistrate Judge
In Mr. Vela’s first motion, he sought to issue four supplemental interrogatories and
permission to conduct any additional depositions he might deem necessary after reviewing the
answers to those interrogatories (DE 93). 1 Mr. Vela claimed these interrogatories and depositions
were needed in light of Dr. Thompson’s death and because the Defendants allegedly disclosed
twenty-three new witnesses late in the discovery period. Mr. Vela also filed a second motion,
seeking leave to disclose an additional expert witness (DE 95). As relevant here, Mr. Vela asked
to serve a report from previously undisclosed expert Dr. Robert Beatty. Mr. Vela sought this
relief because of Dr. Thompson’s death and because he allegedly discovered new and material
facts in the course of conducting his other discovery. 2 Mr. Vela also argued he should be allowed
this additional discovery as the Defendants did not provide all relevant discoverable
communications, and because Dr. Beatty would serve as a rebuttal witness to Defendants’ expert
Dr. Boody.

The proposed interrogatories principally request the Defendants to provide additional detail or new information
about the communications Dr. Thompson had regarding Mr. Vela’s care in an effort to identify a new group of
witnesses who could comment on Mr. Thompson’s thoughts and actions regarding that care (DE 93 at 11–12).

1

The Court need not address the other issue raised in this motion, serving a supplemental opinion from the
previously disclosed expert Dr. Shicker, which the Defendants do not oppose (DE 138 at 7).
2

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In his December 10, 2021, order denying these motions, the Magistrate Judge concluded
that Mr. Vela had not demonstrated due diligence sufficient to establish the good cause necessary
under Federal Rule of Civil Procedure 16 to justify granting his motions. Fed. R. Civ. P.
16(b)(4).
Rule 16 provides that “[a] schedule may be modified only for good cause and with the
judge’s consent.” Id. “Rule 16(b)’s ‘good cause’ standard primarily considers the diligence of the
party seeking amendment.” Trustmark Ins. Co. v. Gen. & Cologne Life Re of Am., 424 F.3d 542,
553 (7th Cir. 2005) (internal citation omitted). “In other words, in order to demonstrate ‘good
cause’ a party must show that despite their diligence the time table could not have reasonably
been met.” Tschantz v. McCann, 160 F.R.D. 568, 571 (N.D. Ind. 1995) (internal citation
omitted).
(2) Issues raised in the objection
Mr. Vela argues the Magistrate Judge’s decision was clearly erroneous and that he should
be granted additional discovery for four reasons: (1) the Magistrate Judge erred in concluding
Mr. Vela did not establish sufficient diligence in his review of the medical records, (2) the
Magistrate Judge erred by finding the Defendants did not violate their Rule 26 disclosure
obligation by disclosing 23 new witnesses in April 2019, (3) the death of Dr. Thompson created
a need for additional discovery to fill gaps in the records his testimony would have filled, and (4)
the revelation of new facts during discovery also merits the need for additional discovery. 3 The
Court discerns no clear error by the Magistrate Judge and will overrule the objection.

The Court notes that Mr. Vela does not object to the Magistrate Judge’s finding he would not allow the new expert,
Dr. Beatty, to serve as a rebuttal witness, and that Mr. Vela did not establish that the Defendants’ withheld emails
during discovery. Accordingly, any challenge to these portions of the Magistrate Judge’s order is waived. See Davis
v. Kayira, 938 F.3d 910, 917 (7th Cir. 2019) (“Rule 72(a) requires an objection to nondispositive orders within 14
days and itself bars further review of untimely objections”).

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(a) The Magistrate Judge did not clearly err in his finding regarding Mr. Vela’s diligence
The Court begins with the Magistrate Judge’s finding that Mr. Vela did not establish he
was diligent in his review of the medical records. The Magistrate Judge’s key finding was that
Mr. Vela would have detected the names of twenty of the twenty-three alleged new witnesses
from a thorough review of the medical records as their names were in those records and the
records were available to him since near the beginning of the sixteen-month discovery period
(DE 138 at 8). Consequently, the Magistrate Judge concluded Mr. Vela could not claim surprise
or the need for additional discovery based on the “disclosure” of individuals whom he could
have learned of from the records that were in his possession for some time.
Mr. Vela argues this conclusion is clear error due to the complexity of the medical record
which frustrated his diligent review. In particular he points to the fact that both his own and the
Defendants’ experts had “great difficulty in deciphering Dr. Thompson’s medical chart” (DE 139
at 7). Mr. Vela, however, overstates the issues with the medical record and attempts to stretch an
issue concerning a discrete portion of time to cover the entire record.
The parties’ experts agree that the medical records contain a gap from March 25, 2014, to
April 10, 2014, and they are unable to conclude what Dr. Thompson was doing during that time
(DE 93-6, DE 95-2 at 3). However, they only identify an issue with this narrow period. The
experts do not speak of broader issues with the comprehensibility of the medical records and Mr.
Vela does not allege any. As Mr. Vela does not explain how the existence of this narrow gap
precluded him from discovering the names of additional witnesses in the overall medical record,
he has not shown how the existence of this gap undermines the Magistrate Judge’s conclusion.
Nor does he identify why the existence of this gap should leave the Court with “‘the definite and

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firm conviction that a mistake has been committed’” by the Magistrate Judge. Pinkston, 440 F.3d
at 888 (quoting Anderson, 470 U.S. at 573).
Accordingly, the Court finds no clear error in the Magistrate Judge’s finding that Mr.
Vela did not establish sufficient diligence to constitute good cause which would merit further
discovery.
(b) The Magistrate Judge did not clearly err in finding the Defendants complied with
their Rule 26 disclosure obligations
Mr. Vela also argues that the Defendants’ disclosure of “23 new witnesses” violates their
obligations under Federal Rule of Civil Procedure 26, and, in lieu of sanctions, the Magistrate
Judge should have permitted his additional interrogatories. This argument is without merit.
Rule 26 requires “a party to disclose the name of ‘each individual likely to have
discoverable information—along with the subjects of that information—that the disclosing party
may use to support its claims or defenses . . . .’” King v. Ford Motor Co., 872 F.3d 833, 838 (7th
Cir. 2017) (citing to Fed. R. Civ. P. 26(a)(1)(A)(i)). However, according to the Defendants,
twenty of those twenty-three individuals were not intended to be disclosed as witnesses; rather
that list was merely a restatement of a group of individuals listed in the previously produced
medical records who may have discoverable information. The Defendants indicate they provided
this list as a good faith response to a request from Mr. Vela’s counsel, but they accidentally used
language indicating the listed individuals were “expected to testify” in their April 11, 2019,
filing. They corrected this mistake in an amended filing on April 29, 2019, which indicates the
individuals “may have discoverable information” (DE 141 at 11; compare DE 93-7 at 6 with DE
94-2 at 2).

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Mr. Vela oddly does not address this claim in his reply brief despite renewing his Rule 26
argument and even emphasizing the word “witness” in his restatement of the Rule (DE 144 at 3).
Based on this decision to not engage with the Defendants’ arguments and the support for the
Defendants’ position in the record, the Court finds Mr. Vela has not established the disclosure of
these individuals violated their Rule 26 obligations. Accordingly, the Court concludes the
Magistrate Judge did not clearly err in determining the Defendants complied with their Rule 26
obligations.
Further, even if these twenty individuals were subject to Rule 26 the Court would find
their late disclosure harmless. See King, 872 F.3d at 838 (“The determination of whether a Rule
26(a) violation is justified or harmless is entrusted to the broad discretion of the district court.”)
As previously mentioned, the Magistrate Judge found the names of these individuals appeared in
the medical records that were produced over a year prior to their alleged disclosure in April
2019. The Magistrate Judge reasoned that this presence in the medical records put Mr. Vela on
notice of these individuals’ existence. Mr. Vela has not disputed this finding by the Magistrate
Judge. Consequently, Mr. Vela has not established why the Defendants referring to them in the
April 2019 filing would constitute unfair surprise.
Regarding the three individuals not previously mentioned in the medical records, Mr.
Vela does not meaningfully dispute the Magistrate Judge’s conclusion that their disclosure does
not merit further discovery. The Magistrate Judge found these three individuals are intended as
rebuttal witnesses to address potential arguments related to Corizon’s policies and procedures.
The Magistrate Judge also concluded that any concern about surprise at trial regarding these
witnesses was unfounded. The Magistrate Judge reached this conclusion on the grounds that Mr.
Vela, by not clarifying the scope of his arguments related to Corizon’s policies and procedures,

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made it necessary for the Defendants to prepare for any potential argument by having these
witnesses available. Mr. Vela’s brief does not raise any argument targeting this conclusion and
thus the Court has no basis to doubt the Magistrate Judge’s finding. Consequently, the Court
discerns no clear error and will conclude the disclosure of these three witnesses to be harmless or
justified even if it ran afoul of Rule 26.
(c) The Magistrate Judge did not err in finding the death of Dr. Thompson did not
establish good cause for further discovery
In regard to the death of Dr. Thompson, the Magistrate Judge reasoned that the prejudice
of his death was “equivocal, evenly spread amongst the parties, and does not warrant further
discovery efforts to mitigate” (DE 138 at 8).
Mr. Vela argues this was clear error as the prejudice was not evenly spread given the
parties have different burdens of proof and he is placed at a relative disadvantage. Specifically,
he argues that the gap in the medical records, which could only be filled by Dr. Thompson’s
testimony, creates a crucial hole in his case which may cause him to lose. Mr. Vela is correct
inasmuch as the parties have different burdens of proof, but incorrect in arguing that this fact
alone creates the need for additional discovery.
The plaintiffs always carry the burden of proof to establish their case, and that burden
exists regardless of the quality of the record. Further, the parties are in the same position relative
to the evidence, with a noticeable gap in the record and unable to ask Dr. Thompson to fill it in.
As previously discussed, neither party’s expert witness could fill in the gap in the medical
records. Crucially, the Court would note it is an assumption that Dr. Thompson’s testimony
would actually fill this gap, given there is no evidence in the record suggesting what his
testimony would have been or that he recalled his actions on the dates in question.

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Additionally, Mr. Vela argues that the death of Dr. Thompson should be treated like a
spoliation claim, where a party may craft a reasonable remedy when material evidence is
removed from a case. While the Court is sympathetic to Mr. Vela’s desire to obtain a substitute
for the missing testimony of Dr. Thompson, the spoilation analogy is rather odd given it implies
the Defendants are culpable for the loss of Dr. Thompson’s testimony. Further, the analogy is
ultimately unavailing as Mr. Vela has simply not explained how his proposed additional
discovery would serve as a substitute for Dr. Thompson’s personal knowledge which has been
lost.
The Court will also note it is doubtful Mr. Vela can establish good cause given his lack of
diligence in conducting discovery with Dr. Thompson. Mr. Vela twice scheduled depositions
with Dr. Thompson, in February 2019 and March 2019, that would have allowed him to ask the
doctor to fill in this evidentiary gap. However, Mr. Vela cancelled both depositions in order to
pursue additional discovery. Mr. Vela has not argued that he was unable to take a meaningful
deposition on either of these dates. Therefore he has not established that these delays were
necessary or that he diligently pursued the testimony of Dr. Thompson. As such, it is not clear
from the record that Mr. Vela established sufficient diligence in his discovery efforts to
constitute good cause and merit further discovery.
In sum, Mr. Vela has not established that the death of Dr. Thompson unfairly prejudiced
him, that his proposed additional discovery would fill the evidentiary gap Dr. Thompson’s death
created, or that he otherwise merits the additional discovery being sought. Accordingly, the
Court discerns no clear error by the Magistrate Judge in denying further discovery.

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(d) The Magistrate Judge did not err in concluding the discovery of any “new evidence”
during timely depositions did not merit admission of a new expert past the deadline
Mr. Vela argues that he should be allowed to submit his proposed new expert as he
discovered new facts as a result of timely depositions taken from Dr. Mitcheff and Fatima
Agemy. The Magistrate Judge found these revelations did not merit additional discovery as the
delayed revelation of this information was of the Plaintiff’s own making and indicated a lack of
diligence. Specifically, the depositions of Dr. Mitcheff and Ms. Agemy were conducted in June
2019, late in the discovery period, despite Dr. Mitcheff and Ms. Agemy being identified in the
records produced early in this case. Mr. Vela does not dispute the Magistrate Judge’s reasoning
or conclusion, but instead asserts the Magistrate Judge did not address the existence of the new
facts (DE 139 at 12). As previously mentioned however, the Magistrate Judge does recognize
Mr. Vela’s claim and properly notes the dispositive issue is Mr. Vela’s diligence in conducting
discovery to find these new facts (DE 138 at 9). Without Mr. Vela’s meaningful response
indicating why his actions should be considered diligent, the Court discerns no clear error by the
Magistrate Judge.
Further, the Court would note that while Mr. Vela argues his late disclosure of the new
expert is justified by the new facts, he never develops this claim beyond a conclusion. Mr. Vela
simply does not explain why these new facts require a new expert witness. The closest he comes
is indicating that the new facts are incorporated in the new expert, Dr. Beatty’s, report (DE 139
at 11 n.7). At best, this seems to be circular reasoning that the new facts merit an additional
expert because the new expert relies on the new facts for his opinion. At no point does Mr. Vela
explain that an expert is needed to interpret these facts or otherwise render the facts usable in

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litigation. Accordingly, the Court discerns no clear error by the Magistrate Judge in denying Mr.
Vela’s motion for a new expert.
D. Conclusion
Accordingly, the Court OVERRULES Mr. Vela’s objection (DE 139) to the Magistrate
Judge’s order denying his discovery motions (DE 92, 93, 95).
SO ORDERED.
ENTERED: May 18, 2022
/s/ JON E. DEGUILIO
Chief Judge
United States District Court

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