Weisman et al v. Barnes Jewish Hospital et al

Filing 251

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants Barnes-Jewish Hospital's and BJC HealthCare's Second Motion to Compel (ECF No. #237 ) is DENIED, in part, and GRANTED, in part. Within ten (10) days, Plaintiffs must produce documents demonstrating that Dr. Weisman has/had an ownership interest, as testified by him. Further, Plaintiffs must provide documents, such as a profit and loss statements, to demonstrate the value of Dr. Weisman's ownership interest in Marek Weisman. SEE ORDER FOR DETAILS. Signed by District Judge John A. Ross on 1/19/2023. (CLT)

Case: 4:19-cv-00075-JAR Doc. #: 251 Filed: 01/19/23 Page: 1 of 5 PageID #: 3518

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JEFFERY WEISMAN and
STRAGETIC BIOMEDICAL, INC.,
Plaintiffs,
vs.
BARNES JEWISH-HOSPITAL,
BJC HEALTHCARE, WASHINGTON
UNIVERSITY, DR. ALEX EVERS,
DR. RICHARD BENZINGER, and
DR. THOMAS COX,
Defendants.

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Case No. 4:19-cv-75- JAR

MEMORANDUM AND ORDER
This matter is before the Court on Defendants Barnes-Jewish Hospital’s and BJC
HealthCare’s Second Motion to Compel (ECF No. 237). The Court ordered expedited briefing.
(ECF No. 239). This matter is now fully briefed and ready for disposition. For the reasons stated
herein, the Court denies, in part, and grants, in part, the Motion to Compel
A. Background
After he separated from the anesthesiology residency program, Plaintiff Jeffery Weisman
(“Dr. Weisman”) formed and began working for Marek Weisman Law Offices. 1

See

https://marekweisman.com/ (last visited 1/11/23). At his deposition, Dr. Weisman stated he owned
“50% of the company.”

However, Dr. Weisman further clarified that he has “not been

Plaintiffs take issue with the Hospital Defendants’ reference to Marek Weisman Law Offices,
claiming that such an entity does not exist. (ECF No. 240 at 2). Rather, Plaintiffs identify the
proper name of the firm as Marek Weisman LLC. (Id.) The Court refers to these entities
interchangeably for purposes of this Motion to Compel, as neither side is arguing that Plaintiffs
are excused from their discovery obligations due to a misnomer.
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compensated for the work [he] has done for Marek Weisman” and he does “not receive dividends
relative to the ownership interest.” (ECF No. 238 at 3 (citing Dr. Weisman’s deposition, ECF No.
238-5, pp. 581-582)).
Defendants Barnes-Jewish Hospital (“BJH”) and BJC Healthcare (“BJC”) (collectively,
“Hospital Defendants”) served written discovery requests to determine what consideration the
Marek Weisman Law Offices arranged with Dr. Weisman for his work for the firm. Request
Number 24 asks for “[a]ll documents related to or reflecting formation of Marek Weisman Law
Offices” and Request Number 25 seeks “[a]ll agreements entered into between you and Marek
Weisman Law Offices including any employment agreements and engagement letters regarding
this complaint.” (ECF No. 238 at 2). Dr. Weisman has not produced any documents in response
to these requests.
B. Standard of Review
Generally, “[p]arties may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs of the case, considering the
importance of the issues at stake in the action, the amount in controversy, the parties’ relative
access to relevant information, the parties’ resources, the importance of the discovery in resolving
the issues, and whether the burden or expense of the proposed discovery outweighs its likely
benefit. Information within this scope of discovery need not be admissible in evidence to be
discoverable.” Fed. R. Civ. P. 26(b)(1). Rule 37 of the Federal Rules of Civil Procedure governs
motions to compel discovery. “‘A district court has very wide discretion in handling pretrial
discovery and [the Eighth Circuit] is most unlikely to fault its judgment unless, in the totality of
the circumstances, its rulings are seen to be a gross abuse of discretion resulting in fundamental
unfairness in the trial of the case.’” Rowles v. Curators of Univ. of Missouri, 983 F.3d 345, 353

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(8th Cir. 2020) (quoting United States v. One Assortment of 93 NFA Regulated Weapons, 897 F.3d
961, 966 (8th Cir. 2018)).
C. Discussion
Hospital Defendants argue that Dr. Weisman’s contracts with and compensation from
Marek Weisman are relevant to Dr. Weisman’s obligation to mitigate his damages. See ECF No.
238 at 4 (citing Jacobson Warehouse Co. v. Schnuck Markets, Inc., 13 F.4th 659, 672 (8th Cir.
2021) (quoting Scheck Indus. Corp. v. Tarlton Corp., 435 S.W.3d 705, 729 (Mo. Ct. App. 2014)
(“Under the rule of mitigation of damages, one damaged through [the] alleged breach by another
of some legal duty or obligation has to make reasonable efforts to minimize the resulting
damage.”); see also Johnson v. Mers-Goodwill, No. 4:14-CV-1069 CEJ, 2014 WL 7205170, at *1
(E.D. Mo. Dec. 17, 2014) (“where adverse employment actions led to demotions or dismissal, then
pecuniary damages may be calculated from the amount by which the employee's earnings were
reduced”); Lewis v. Temp-Air, Inc., No. 4:14-CV-398 CDP, 2014 WL 5432122, at *1 (E.D. Mo.
Oct. 27, 2014) (“I find that employment records for all of Lewis's employers subsequent to his
termination by Temp–Air on December 20, 2011 are relevant to Temp–Air's defense of failure to
mitigate damages. I will therefore compel Lewis to complete records release authorizations for
these employers.”). Hospital Defendants admit that Dr. Weisman “asserts he did not receive any
compensation at all, including salary or a single dividend” but claim “it is unclear . . . what
monetary and non-monetary considerations Plaintiff received as a result of his time spent working
at and co-owning Marek Weisman.” (ECF No. 238 at 4). In particular, Hospital Defendants note
that

“the

Marek

Weisman

firm

was

counsel

of

record

in

this

case

for five months, and it was counsel of record when this discovery was served and initially

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answered.” Id.; see also ECF No. 243 at 3 (“Plaintiff testified his ‘representation
is at a blended rate’ including both hourly and contingent fees.”).
In response, Plaintiffs reiterate their position that Dr. Weisman did not receive any payment
from Marek Weisman, but was simply a “part-time volunteer.” (ECF No. 240 at 2). Plaintiffs
note that they have provided Dr. Weisman’s tax returns for the relevant time period, which do not
indicate any payment from Marek Weisman. (ECF No. 240 at 4-5).
The Court finds that the documents requested in Hospital Defendants’ Document Request
Numbers 24 and 25 are largely irrelevant and overly broad. Documents related to the formation of
Marek Weisman and engagement letters for this case are not relevant to Dr. Weisman’s efforts to
mitigate his damages. Likewise, the Court finds that any future recovery that Marek Weisman may
receive as part of its five month representation of Dr. Weisman in this lawsuit has only a tangential
relationship to Dr. Weisman’s efforts to mitigate his damages. That is, whatever speculative and
tenuous future recovery Marek Weisman may recover as part of this litigation does not warrant
the Hospital Defendants’ additional requested discovery under Document Request Numbers 24
and 25.
However, the Court finds that minimal additional discovery is necessary to verify Dr.
Weisman’s ownership interest in Marek Weisman and the value of that interest, which are relevant
to Dr. Weisman’s efforts to mitigate his damages. The Court orders Plaintiffs to produce
documents demonstrating Dr. Weisman’s ownership interest in Marek Weisman and the value of
that ownership interest within ten (10) days of the date of this Memorandum and Order.
Accordingly,
IT IS HEREBY ORDERED that Defendants Barnes-Jewish Hospital’s and BJC
HealthCare’s Second Motion to Compel (ECF No. 237) is DENIED, in part, and GRANTED, in
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part. Within ten (10) days, Plaintiffs must produce documents demonstrating that Dr. Weisman
has/had an ownership interest, as testified by him. Further, Plaintiffs must provide documents,
such as a profit and loss statements, to demonstrate the value of Dr. Weisman’s ownership interest
in Marek Weisman.

Dated this 19th day of January, 2023.
JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

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