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. 

USDC IN/ND case 3:16-cv-00051-JD-MGG document 147 filed 05/18/22 page 1 of 12
2

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. 

USDC IN/ND case 3:16-cv-00051-JD-MGG document 147 filed 05/18/22 page 2 of 12
3

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). 

USDC IN/ND case 3:16-cv-00051-JD-MGG document 147 filed 05/18/22 page 3 of 12
4

“[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.

1 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). 

2 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).

USDC IN/ND case 3:16-cv-00051-JD-MGG document 147 filed 05/18/22 page 4 of 12
5

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.

3 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”). 

USDC IN/ND case 3:16-cv-00051-JD-MGG document 147 filed 05/18/22 page 5 of 12
6

(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 

USDC IN/ND case 3:16-cv-00051-JD-MGG document 147 filed 05/18/22 page 6 of 12
7

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). 

USDC IN/ND case 3:16-cv-00051-JD-MGG document 147 filed 05/18/22 page 7 of 12
8

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, 

USDC IN/ND case 3:16-cv-00051-JD-MGG document 147 filed 05/18/22 page 8 of 12
9

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.

USDC IN/ND case 3:16-cv-00051-JD-MGG document 147 filed 05/18/22 page 9 of 12
10

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.

USDC IN/ND case 3:16-cv-00051-JD-MGG document 147 filed 05/18/22 page 10 of 12
11

(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 

USDC IN/ND case 3:16-cv-00051-JD-MGG document 147 filed 05/18/22 page 11 of 12
12

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

USDC IN/ND case 3:16-cv-00051-JD-MGG document 147 filed 05/18/22 page 12 of 12