United States District Court, N.D. Illinois, Eastern Division
WANDA COLON, as Administrator of the Estate of CESAR MUNIVE, deceased, Plaintiff,
TOWN OF CICERO, et al., Defendants.
L. ALONSO United States District Judge
the Court are defendants' objections  and  and
plaintiff's cross-objections  to Magistrate Judge
Schenkier's Report and Recommendation of October 14, 2016
 regarding plaintiff's motion for evidentiary
sanctions. For the reasons set forth below, defendants'
objections are overruled and plaintiff's cross-objections
are also overruled. Judge Schenkier's Report and
Recommendation is adopted in its entirety, and
plaintiff's motion for evidentiary sanctions  is
Schenkier recommended that plaintiff's motion for
sanctions be granted and that (1) discovery should be
re-opened to allow (a) Dr. Galatzer-Levy to examine the
reports of Drs. Frank, Pua, and Reff, to determine whether,
based on those reports, he wishes to issue a supplemental
report; (b) plaintiff to further depose defendant
Garrity for a period not to exceed three hours, to question
him on any disclosures she received in April, June, and
August 2016 that had not previously been disclosed to
(c) Cicero to obtain and produce transcripts from two Pension
Board hearings on Garrity's application; (d) Garrity to
produce his amended pension application, if one exists, and
(2) a $5, 000 fine be imposed on Garrity and a $5, 000 fine
be imposed on Cicero, to be paid to the Clerk of the Court.
a magistrate judge prepares a report and recommendation for a
district court, the governing statute provides that the
district court ‘shall make a de novo
determination' with respect to any contested
matter.” Kanter v. C.I.R., 590 F.3d 410, 416
(7th Cir. 2009) (quoting 28 U.S.C. § 636(b)). The Court
of Appeals has observed:
De novo review requires the district judge to decide the case
based on an independent review of the evidence and arguments
without giving any presumptive weight to the magistrate
judge's conclusion. The district judge is free, and
encouraged, to consider all of the available information
about the case when making this independent decision. A
district judge may be persuaded by the reasoning of a
magistrate judge or a special master while still engaging in
an independent decision-making process.
Mendez v. Republic Bank, 725 F.3d 651, 661 (7th Cir.
2013) (citing United States v. Raddatz, 447 U.S.
667, 676 (1980)). The district judge makes the ultimate
decision to adopt, reject, or modify the magistrate
judge's recommendation. Schur v. L.A. Weight Loss
Ctrs., Inc., 577 F.3d 752, 760 (7th Cir. 2009); see
also Fed. R. Civ. P. 72.
5, 2012, Cicero Police Officer Donald Garrity was involved in
an incident during which he shot and killed Cesar Munive.
Plaintiff, the Administrator of Munive's estate, has sued
the Town of Cicero and Officer Garrity for wrongful death,
excessive force, and negligent hiring.
a party fails to provide information or identify a witness as
required by Rule 26(a) or (e) . . . the court . . . (A) may
order payment of the reasonable expenses, including
attorney's fees caused by the failure; (B) may inform the
jury of the party's failure; and (C) may impose other
appropriate sanctions including any of the orders listed in
Rule 37(b)(2)(A)(i)-(vi).” Fed.R.Civ.P. 37(c)(1).
“Federal Rule of Civil Procedure 37(b)(2)(A) grants the
district courts . . . ‘wide latitude in fashioning
appropriate sanctions'” for violating discovery
orders. e360 Insight, Inc., v. Spamhaus Project, 658
F.3d 637, 642 (7th Cir. 2011) (quoting Johnson v.
Kakvand, 192 F.3d 656, 661 (7th Cir. 1999)).
Garrity acknowledges that he should have provided copies of
the pension board's decision to defense counsel and that
they also should have been disclosed to plaintiff earlier in
the proceeding. (Garrity's Obj. at 2.) Garrity does not
object to plaintiff's expert (Dr. Galatzer-Levy)
reviewing Drs. Frank, Pua, and Reff's reports and issuing
a supplemental report. (Id.) Garrity objects to the
recommendation that he sit for an additional three-hour
deposition, and he asks the Court to limit any reopened
deposition to one hour. (Id.) Garrity also objects
to the recommendation of a $5, 000 fine. (Id. at 3.)
Specifically, Garrity states that he sat for three previous
depositions for a total of twelve hours, and three additional
hours related to eighteen pages of documentation is
excessive. (Id. at 9.) Further, Garrity disagrees
with Judge Schenkier's finding that defendants
“steadfastly refused to provide information, ”
arguing that such a description mischaracterizes
defendants' motivation, conduct, and concerns regarding