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Bassam Assaf, M.D v. Trinity Medical Center

December 7, 2011

BASSAM ASSAF, M.D., PLAINTIFF
v.
TRINITY MEDICAL CENTER, DEFENDANT



The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge

Illinois Central District Federal District Court

E-FILED

Wednesday, 07 December, 2011 10:07:10 AM

Clerk, U.S. District Court, ILCD

ORDER AND OPINION

Now before the Court are two motions: Plaintiff's Motion for Reconsideration and Defendant's Motion to Clarify or Stay. In addition to these motions, the parties raised a matter in their Trial Briefs that requires resolution. As stated herein, the Motion for Reconsideration (#46) is DENIED. Because the Court sua sponte vacates a portion of the October 4, 2011 Order, the Motion to Clarify or Stay (#44) is FOUND AS MOOT. The ruling below on the issue raised in the Trial Briefs makes a trial in this matter unnecessary.

MOTION FOR RECONSIDERATION

On October 4, 2011, an Order was entered, granting in part and denying in part the Defendant's Motion in Limine. In pertinent part, the Order barred "evidence of Dr. Assaf's claim for lost professional fees," striking that element of the prayer for damages. Dr. Assaf now asks for reconsideration of that part of the Order, asserting that his failure to provide exact calculation of his damages was "substantially justified or harmless."

Despite Dr. Assaf's newly-filed affidavit in which he describes how in the bankruptcy proceedings of his former employer impeded his ability to obtain the documents he needed to support this claim. At no time during the period allocated for discovery, however, did Dr. Assaf make the Court aware of his difficulties or ask the Court to extend the discovery deadline so he could obtain the requisite documentation. Neither did he file a motion to compel during discovery. "Justification" implicitly includes diligence, and having failed to utilize the tools that were available to him in a timely fashion, I conclude that diligence on this issue was lacking. His failure to obtain the requisite documentation was therefore not substantially justified.

Nor was it harmless. As the original Order noted, prejudice to Defendant arose not simply from Dr. Assaf's failure to provide a computation of damages, as Dr. Assaf suggests in this motion. Prejudice instead flowed from Dr. Assaf's failure to obtain and provide any documentary evidence to support his claim for this type of damages. His failure to do so leaves the Defendant in the precarious position of not being able to evaluate or contest any calculation that stemmed from those documents. That failure and the resulting prejudice was not and is not harmless.

Dr. Assaf tries to distinguish Dynegy Marketing and Trade v. Multiut Corp., 648 F.3d 506 (7th Cir. 2011), a case on which the Order relied. He argues that, unlike the defendant in Dynegy and contrary to what this Court held in the Order, Trinity was well aware of where "his numbers were coming from," because those numbers could be derived from records that Trinity had in its own possession. That misses the point entirely. It is Plaintiff's burden to (1) calculate his damages; (2) document his calculation; and (3) provide that information to Defendant in a timely fashion. This burden is not in any way ameliorated by Trinity's awareness that Dr. Assaf was asserting a right to this type of damages, and the general awareness does not somehow transfer the burden to Trinity to try to figure out how to value Dr. Assaf's damages.

The Motion to Reconsider [#46] is denied.

MOTION TO CLARIFY OR STAY

In this Motion, Trinity asks this Court to clarify whether the October 4 Order on its Motion in Limine was intended to be a final order for equitable relief, enforceable immediately, or an interim Order not final until resolution of the issues remaining in this Case. If the former, Trinity asks that the Order be stayed until it has the opportunity to appeal.

The portion of the Order at issue arose from the Court's finding that the February 22 Settlement Agreement was enforceable and that Dr. Assaf had sought the equitable relief of specific performance, which in this case meant reinstatement as Neuroscience Director for 2011. In the October 4 ...


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