UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA, ex 

rel. MARC SILVER, et al.,

 Relators,

v.

OMNICARE, INC., et al.,

 Defendants.

1:11-cv-01326-NLH-AMD 

OPINION AND ORDER

HILLMAN, District Judge

WHEREAS, the Court ruled on the parties’ Daubert motions in 

a March 31, 2023 opinion and order, (ECF 681; ECF 682), which,

pursuant to a scheduling order entered by Magistrate Judge Ann 

Marie Donio, (ECF 679), rendered summary judgment motions due on 

April 20, 2023; and 

WHEREAS, Defendant PharMerica Corporation (“PharMerica”) 

thereafter moved for an extension of time to file its summary 

judgment motion, (ECF 683), which Judge Donio granted in part 

with an extended motion deadline of May 19, 2023, (ECF 687); and 

WHEREAS, the Court thereafter set out a briefing schedule 

and, while declining to set forth a page limit for PharMerica’s 

statement of material facts not in dispute, reserved the 

opportunity to “consider[] Relator [Marc Silver (“Relator”)]’s 

potential motion to strike any portion of Defendant’s submission 

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that unnecessary complicates proceedings, is ‘overly verbose,’

or departs from the spirit of the Local Civil Rules by expanding 

rather than narrowing the scope of issues,” (ECF 688 (quoting L. 

Civ. R. 56.1 cmt. d(4)); and 

WHEREAS, PharMerica timely moved for summary judgment, (ECF 

692), relying on a 287-page, 1,711-paragraph statement of 

material facts, (ECF 694); and

WHEREAS, Relator thereafter moved to strike PharMerica’s 

statement of material facts, (ECF 704), arguing – in addition to 

its excessive length and failure to identify a lack of material 

facts in dispute – that PharMerica’s statement of material facts 

relied on ninety1 documents not previously produced in discovery,

(ECF 704-1 at 12-20); and

WHEREAS, PharMerica asserts in its opposition that it 

identified eighty-seven additional documents while drafting its 

statement of material facts and produced them to Relator on 

April 28, 2023 – seventy-six of which pertained to nursing homes 

for which full discovery was previously denied2 and eleven for 

1 Relator’s motion to strike refers to ninety-three newly 

provided documents, (ECF 704-1 at 12); however, PharMerica 

asserts that three documents were double counted, (ECF 710 at 1 

n.1). Relator appears to adopt this figure in his reply brief. 

(ECF 712 at 6).

2 In a March 2, 2020 order, former Magistrate Judge Joel 

Schneider identified eighty-seven of a reduced list of one 

hundred and seventy-four nursing homes subject to “full 

discovery.” (ECF 472).

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which full discovery was authorized, (ECF 710 at 9); and

WHEREAS, PharMerica’s opposition further explains that ten 

of the eleven documents not produced for full-discovery homes 

were inadvertently marked as privileged, (id. at 15-17);

seventy-six were not required to be produced under the 

scheduling order, are governed by Federal Rule of Civil 

Procedure 26 as they were not part of the relevant scheduling 

order, and should nonetheless be admitted due to their 

importance to PharMerica’s case and lack of prejudice to 

Relator, (id. at 9-15); and the remaining three documents –

attached to the declaration of Matthew Williams – were 

complaints and a brief filed on the public docket in Chem Rx

litigation, (id. at 1 n.1, 17-18; see also ECF 704-2); and 

WHEREAS, on June 14, 2023, the Court scheduled trial for 

this matter for December 4, 2023, without prejudice to 

PharMerica’s pending motion for summary judgment and Relator’s 

motion to strike, (ECF 711); and

WHEREAS, following subsequent letters from the parties with 

respect to trial scheduling, the Court vacated its order 

establishing the parties’ briefing schedule and ordered the 

parties to appear for oral argument on Relator’s motion to 

strike, (ECF 730); and

WHEREAS, in advance of oral argument, PharMerica filed a 

letter on the docket volunteering to reduce its statement of 

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material facts by half and file with its amended statement an 

amended memorandum in support of its summary judgment motion,

(ECF 738), which Relator argues is insufficient and does not 

address the specific challenges raised in the motion to strike,

(ECF 739); and

WHEREAS, a party who has made a disclosure pursuant to 

Federal Rule of Civil Procedure 26(a) or otherwise responded to 

an interrogatory or request for production or admission must,

“in a timely manner,” supplement or correct its response or 

disclosure “if the party learns that in some material respect 

the disclosure or response is incomplete or incorrect, and if 

the additional or corrective information has not otherwise been 

made known to the other parties during the discovery process or 

in writing,” Fed. R. Civ. P. 26(e)(1)(A); and

WHEREAS, the Court cannot find that supplementation or 

correction was done in a “timely manner” when the newly provided 

documents were not transmitted to Relator until twenty months 

after the close of discovery, (ECF 550); see also In re 

BlackRock Mut. Funds Advisory Fee Litig., No. 14-1165, 2018 WL 

11242142, at *5 (D.N.J. June 13, 2018) (finding that “the duty 

to supplement requires a party to correct incomplete information 

‘during the discovery process’” and that the identification of 

fact witnesses after the close of fact discovery rendered the 

supplemental disclosure untimely (quoting Fed. R. Civ. P. 

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23(e)(1)(A)); and

WHEREAS, if a party fails to provide information as 

required by Federal Rules of Civil Procedure 26(a), (e), a court 

may impose sanctions including barring use of the information 

“unless the failure was substantially justified or is harmless,”

Fed. R. Civ. P. 37(c)(1); and 

WHEREAS, courts within the Third Circuit determine whether 

to strike untimely disclosed evidence by evaluating the 

“Pennypack factors,” which include 1) the prejudice or surprise 

to the opposing party, 2) the ability to cure that prejudice, 3) 

the extent to which permitting the evidence might disrupt the 

orderly and efficient administration of the case, 4) the bad 

faith or willfulness associated with the untimely disclosure,

and 5) the importance of the evidence, see Webster v. Dollar 

Gen., Inc., 314 F.R.D. 367, 370 (D.N.J. Feb. 9, 2016) 

(collecting cases); and

WHEREAS, the Court concludes that Relator will be 

prejudiced by PharMerica’s use of the newly provided documents 

as their significantly delayed production has deprived him of 

the opportunity to probe their contents through depositions and 

other means of discovery, incorporate them into expert 

reporting, or otherwise prepare his case while factoring in 

PharMerica’s likely reliance on them and that these prejudices 

may not be adequately cured at this advanced stage of 

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litigation, see Holley v. Port Auth. of N.Y., No. 14-7534, 2018 

WL 11413338, at *7 (D.N.J. May 3, 2018) (precluding the 

plaintiff from calling three witnesses due to the burden it 

would have placed on the defendants four months prior to trial 

to potentially depose the witnesses and amend their strategy for 

a matter that had been pending for three-and-a-half years); and 

WHEREAS, the Court further concludes that permitting 

PharMerica to use the newly provided documents at this stage,

would disrupt the efficient administration of this twelve-yearold case that is at the summary-judgment phase and scheduled for 

trial, see Juice Ent., LLC v. Live Nation Ent., No. 11-07318,

2022 WL 2803169, at *3-4 (D.N.J. July 18, 2022)(finding that the 

significantly delayed disclosure of an expert report prejudiced 

the defendant by placing it in position to need to address new 

information and that, while that prejudice could have been cured 

by reopening discovery, doing so would have jeopardized the 

efficient administration of the case); and 

WHEREAS, though the Court does not find that PharMerica has 

acted maliciously or deceitfully, it is nonetheless dissatisfied 

with its explanations and concludes that it was obligated to 

thoroughly review documents that were marked as privileged and,

to the extent that PharMerica advocated for less than full 

discovery for all 174 nursing homes at issue, (see, e.g., ECF 

467), it accepted the award of truncated discovery with the risk 

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of losing the use of evidence helpful to it from nursing homes 

for which full discovery was not exchanged, see E.M. Sergeant 

Pulp & Chem. Co., Inc. v. Travelers Indem. Co. Inc., No. 12-

1741, 2015 WL 9413094, at *5 (D.N.J. Dec. 22, 2015) (finding 

that the plaintiff did not engage in bad faith or willfulness to 

cause undue delay or expense, but nonetheless violated 

scheduling orders without proper explanation and that 

“[v]iolation of scheduling orders, when accompanied by 

unsatisfactory explanations, ‘may be characterized fairly as 

willful and bad faith.’” (quoting Exxon Corp. v. Halcon Shipping 

Co., Ltd., 156 F.R.D. 589, 592 (D.N.J. June 14, 1994))), and the 

Court finds this principle equally applicable because though 

many of the newly provided documents were not subject to Judge 

Schneider’s order concerning full discovery it was PharMerica 

that affirmatively sought and received the benefit of limiting 

discovery; and

WHEREAS, while the Court acknowledges the stated importance 

of the ninety newly provided documents, (ECF 710 at 13-15), and 

that the “exclusion of critical evidence is an extreme sanction,

not normally to be imposed absent a showing of willful deception 

or flagrant disregard of a court order by the proponent of the 

evidence,” Cost v. Borough of Dickson City, 858 F. App’x 514,

516 n.5 (3d Cir. 2021) (quoting In re Paoli R.R. Yard PCB 

Litig., 35 F.3d 717, 791-92 (3d Cir. 1994)), it nonetheless 

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notes that “Rule 37 is written in mandatory terms and is 

designed to provide a strong inducement for disclosure of Rule 

26(a) material,” Miller v. Warren Hosp. IPA, PA, No. 15–7496,

2018 WL 566214, at *6 (D.N.J. Jan. 26, 2018) (quoting Newman v. 

GHS Osteopathic, Inc., Parkview Hosp. Div., 60 F.3d 153, 156 (3d 

Cir. 1995)), and finds that some level of exclusion is warranted 

to prevent prejudice to Relator; and

WHEREAS, in light of PharMerica’s letter offer to reduce 

its statement of material facts, (ECF 738), the Court will deny 

its motion for summary judgment, (ECF 692), without prejudice,

permit it to refile its motion with an amended statement of 

material facts and supporting memorandum,3 and prohibit the use 

of the newly provided documents with the exception of the three 

documents included with the Williams Declaration that were filed 

in Chem Rx matters and the additional pharmacy services 

3 The Court understands that revisions to PharMerica’s statement 

of facts and exclusion of relied-upon documents may require 

associated revisions to PharMerica’s supporting memorandum, 

certifications, and any affidavits. The Court’s decision to 

dismiss without prejudice and permit refiling should not,

however, be interpreted as an opportunity to add or

substantively modify legal arguments. In addition to permitting 

the revision of PharMerica’s statement of facts and supporting 

memorandum, the Court will invite the parties to submit briefs 

of no more than five single-spaced pages discussing United 

States ex rel. Schutte v. SuperValu Inc., 143 S.Ct. 1391 (2023),

and its implications on this case within twenty-one days of this 

order. As such, PharMerica’s motion to cite supplemental 

authority in its summary judgment motion, (ECF 715), will be 

denied as moot. 

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agreement with Meridian; and

WHEREAS, the Court will grant Relator’s motion to strike, 

(ECF 704), to the extent that it will prohibit the use of 

eighty-six of the newly provided documents as identified above 

at the summary judgment stage and deny it as moot to the extent 

that the Court has accepted PharMerica’s offer to refile an 

amended motion and statement.

THEREFORE,

IT IS HEREBY on this 8th day of September , 2023

ORDERED that PharMerica’s motion for summary judgment, (ECF 

692), be, and the same hereby is, DENIED WITHOUT PREJUDICE, and 

PharMerica will be permitted to refile its motion accompanied by 

a shortened statement of material facts and supporting 

memorandum of law and related materials within seven days of the 

issuance of this order, Relator will be permitted to file his 

opposition within twenty-one days of the filing of the renewed 

motion, and PharMerica may file its reply within seven days 

thereafter,4 and it is further 

ORDERED that Relator’s motion to strike, (ECF 704), be, and 

the same hereby is, GRANTED IN PART, in that PharMerica is be 

barred from using the seventy-six documents pertaining to homes 

4 The Court acknowledges that this briefing schedule conflicts 

with the previously approved schedule for pretrial submissions,

(ECF 732), which the Court may amend at a later date.

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for which full discovery was not exchanged and ten documents for 

full discovery homes that were improperly marked as privileged 

for purposes of seeking summary judgment,5 but will be permitted 

to use the three Chem Rx documents included with the Williams 

Declaration and additional pharmacy services agreement with 

Meridian, and it is further 

ORDERED that considering the alternative relief provided 

and the Court’s denial of summary judgment without prejudice, 

Relator’s motion to strike, (ECF 704), be, and the same hereby 

is, otherwise DENIED AS MOOT, and is further 

ORDERED that the parties may file simultaneous letter 

briefs of no more than five single-spaced pages discussing 

United States ex rel. Schutte v. SuperValu Inc., 143 S.Ct. 1391 

(2023), and its implications on this case within twenty-one days 

of this order, and it is further 

ORDERED that also considering the alternative relief 

provided, PharMerica’s motion to cite supplemental authority in 

its summary judgment motion, (ECF 715), be, and the same hereby 

is, DENIED AS MOOT. 

 s/ Noel L. Hillman 

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J. 

5 The Court does not decide here whether or to what extent the 

eighty-six documents may be used by PharMerica during trial to 

prevent manifest injustice.

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