Dunn et al v. Thomas et al

Filing 602

PHASE 2 DISCOVERY OPINION AND ORDER: it is ORDERED as follows: (1) Plaintiffs motion to compel (doc. no. 570 ) is granted as further set out below. (2) By no later than August 3, 2016, defendants or non-party Corizon Health, Inc., are to produce all practitioner peer-review documents in their possession or control related to physicians, dentists, and mid-level providers, whether or not contained within a credentialing file, subject to the exceptions outlined in the parties' joint report (d oc. no. 336 at 3), contingent on payment by plaintiffs' counsel of the attorneys' fees and costs of litigating the portion of this motion pertaining to the inclusion of dentists. Defendants are allowed until August 17, 2016, to file a req uest for reimbursement pursuant to this paragraph. (3) By no later than August 3, 2016, the parties and non-party Corizon are to confer and arrange a date and time prior to August 12, 2016, on which defendants or Corizon are to make available for rev iew by plaintiffs' counsel and their experts the mortality reviews for the three formerly named plaintiffs who are now deceased, contingent on payment by plaintiffs' counsel of the attorneys' fees and costs of litigating the portion of this motion pertaining to mortality reviews. Defendants are allowed until August 17, 2016, to file a request for reimbursement pursuant to this paragraph. Signed by Honorable Judge Myron H. Thompson on 8/2/2016. (kh, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

JOSHUA DUNN, et al.,
Plaintiffs,
v.
JEFFERSON S. DUNN, in his
official capacity as
Commissioner of
the Alabama Department of
Corrections, et al.,
Defendants.

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CIVIL ACTION NO.
2:14cv601-MHT
(WO)

PHASE 2 DISCOVERY OPINION AND ORDER
The

plaintiffs

in

this

putative

class-action

lawsuit are dozens of state prisoners and the Alabama
Disabilities Advocacy Program.
Alabama

Department

of

The defendants are the

Corrections,

its

Commissioner,

and its Associate Commissioner of Health Services.

In

Phase

is

2

of

concerned,

this

case,

plaintiffs

with

assert

constitutionally inadequate
treatment
medication

in

Alabama

without

the

this

and

claims:

mental-health

facilities,

process,

opinion

following

medical and

prison

due

which

involuntary

discrimination

against prisoners with mental disabilities.
with

respect

to

these

claims

on

the

They rely
Eighth

and

Fourteenth Amendments (as enforced through 42 U.S.C.
§ 1983), the Americans with Disabilities Act (42 U.S.C.
§§ 12131-12134), and § 504 of the Rehabilitation Act of
1973 (29 U.S.C. § 794).

Jurisdiction is proper under

28 U.S.C. § 1331 (federal question) and § 1343 (civil
rights).
This

case

is

currently

before

the

court

on

plaintiffs’ motion to compel supplementation of certain
documents from defendants.

Upon consideration of the

briefing submitted by both parties and the arguments
offered

orally

at

a

status

conference

held

on

the

record on July 20, 2016, and for the reasons below,
this motion will be granted.
At issue are two categories of documents.

First,

plaintiffs contend that they are entitled to production
of

certain

healthcare
medical

peer-review
providers

contractor,

documents

employed
Corizon

2

by

Health,

pertaining
the

to

Department’s

Inc.

Second,

plaintiffs
copies

contend

of,

or

at

that
least

they
the

should

have

opportunity

received

to

review,

mortality reviews produced by Corizon after three named
plaintiffs died during the course of discovery. 1
The court will address each issue in turn.

I.

Peer-Review Documents

The crux of the first dispute is this: both parties
agree

that

Corizon,

the

Department’s

medical

contractor, has produced credentialing files related to
three categories of healthcare providers it employs in
Department facilties: physicians, mid-level providers,2
and dentists.

Some of these credentialing files have

contained peer-review documents, but others have not.

1. In addition, plaintiffs’ motion to compel
requested
supplementation
of
medical
charts
or
confirmation that production was complete.
As the
parties have settled this matter, see Phase 2 Discovery
Order (doc. no. 573) at 3-4, it need not be addressed
by the court.
2. Although the court is uncertain as to which
providers are “mid-level,” the parties do not appear to
disagree on this point.
3

Plaintiffs argue that they are entitled to receive all
peer-review

documents

related

to

these

providers,

whether they are contained in credentialing files or
not.

Defendants contend that, per the terms of the

agreement between the parties and Corizon, Corizon was
required to produce only those peer-review documents
contained

in

credentialing

files,

and

only

if

the

peer-review files pertained to physicians or mid-level
providers (not to dentists).
Plaintiffs

requested

peer-review

documents

and

credentialing files in separate requests for production
(RFPs)--95 and 246, respectively.
limited

to

certain

categories

Neither request was
of

personnel.

The

parties and Corizon agreed that Corizon would produce
the credentialing files of “physicians and mid-level
providers”

working

that

production

the

in

Department
would

omit

facilities,
reports

except

from

the

National Practitioner Data Bank and documents related
to malpractice insurance.

Joint Report on the Status

of Disc. Disputes (doc. no. 336) at 3.

4

In an email

exchange,

counsel

represented

to

for

defendants

plaintiffs’

counsel

and
that

Corizon
“the

peer

review documents are part of the credentialing files
and will be produced.”

Correspondence of Counsel (doc.

no. 570-1) at 2.
Then, Corizon produced credentialing files for a
number

of

doctors,

dentists.

None

peer-review

mid-level

of

documents

the

providers,

dentists’

other

than

and

files

also

included

certifications

that

peer review had occurred; some of the physicians’ and
mid-level

providers’

files

contained

peer-review

documents, while many others did not. 3
The

question

whether

the

complete

peer-review

documents for physicians and mid-level providers should
be

produced

is

quite

easy

to

resolve:

plaintiffs

reasonably relied on defense counsel’s representation

3. Although defendants do not renew the argument
that peer-review documents are privileged, the court
notes that any such privilege has been waived by
voluntary production of some of these documents.
5

(and apparent good-faith belief) 4 that these documents
were contained within credentialing files, and believed
that they would therefore be produced according to the
parties’

agreement.

They

declined

to

pursue

their

separate request for peer-review documents any further
based on the understanding that it was functionally
subsumed within the request for credentialing files.
Plaintiffs are entitled to these documents.
The exclusion of dentists’ peer-review files poses
a closer question.

On the one hand, the court cannot

avoid the conclusion that plaintiffs’ counsel simply
slipped up; they mistakenly
credentialing

files

agreed to production of

(including

the

peer-review

4. The court takes pains to note that it does not
suggest that counsel for defendants and Corizon acted
improperly in making this representation; it seems that
his understanding at the time was that peer-review
documents would always be contained within the relevant
credentialing files.
Indeed, during a discussion of
this issue at a status conference held on the record on
July 20, 2016, he stated to the court that he is
uncertain why some peer-review documents are held
separately from, and not included within, credentialing
files.
Although his prior representation was by all
(continued...)
6

documents they believed to be contained within them)
only for physicians and mid-level providers, and failed
to

clarify

dentists.

that
On

they
the

also

sought

other

these

hand--and

files

for

critically--it

appears very likely that defendants and Corizon did not
themselves intend the omission, as Corizon did in fact
produce the credentialing files for dentists along with
the

files

for

physicians

and

mid-level

providers.

There is certainly no indication anywhere in the record
or in the parties’ representations that the exclusion
of dentists was the subject of any negotiation or even
discussion.
Indeed,
“physicians”

confusion
seems

as

quite

to

the

scope

reasonable.

of

the

Although

term
the

parties do not address the definitions of “physician”
and “dentist” under Alabama state law, the degree of
their overlap is less than clear, and the Alabama Code
alternately

supports

defendants’

contention

that

the

accounts an honest mistake, plaintiffs cannot fairly be
penalized for relying on it.
7

category

“physician”

“dentist”

and

does

not

plaintiffs’

include

contention

the

that

category
it

does.

Although a “physician” is defined as a person “licensed
to practice medicine” and

a “dentist” is separately

defined as a person “licensed to practice dentistry”
for purposes of the section of the Code pertaining to
medical-liability

actions,

1975

Ala.

Code

§ 6-5-481,

another section of the Code, 1975 Ala. Code § 27-1-11,
states that “[w]henever the terms ‘physician’ and/or
‘doctor’ are used in any policy of health or accident
insurance ..., said terms shall include within their
meaning those person licensed under and in accordance
with Chapter 9 of Title 34 [pertaining to the licensure
of dentists].”

See also 42 U.S.C. § 1395x(r) (defining

the term “physician,” for purposes of Medicare, to mean
“(1)

a

doctor

authorized

to

of

medicine

practice

or

medicine

osteopathy
and

surgery

legally
by

the

State in which he performs such function or action ...,
[and] (2) a doctor of dental surgery or dental medicine

8

who is legally authorized to practice dentistry by the
State in which he performs such function”).
Although

the

language

of

the

parties’

agreement

regarding credentialing files does not refer expressly
to dentists, the court will order their production in
light of the evidence suggesting that until the current
dispute

regarding

peer-review

documents

arose,

all

involved drew no distinction between dentists and other
providers.
concern

This decision is bolstered by the court’s

that

the

inadvertent

exclusion

of

records

pertaining to one category of providers could make it
difficult to adjudicate putative class claims regarding
dental care fairly, and might even hamstring the court
in determining whether dental-care claims are common to
a proposed class.
That

said,

inattentiveness

the
to

court
the

finds

details

that

of

their

plaintiffs’
discovery

agreement created the need for litigation of the issue
whether

dentists’

records

are

to

be

produced.

Therefore, the court will condition receipt of this

9

production on plaintiffs’ payment to defendants of the
costs of litigating this motion reasonably attributable
to this portion of the dispute.

II.

Mortality Reviews

The parties likewise identify two RFPs pertinent to
the mortality reviews created after three of the named
plaintiffs

died.

requested

from

communications

First,

in

defendants

relating

to

RFP
“all

[the

10,

plaintiffs

documents

named]

and

plaintiffs.”

Pls.’ First Req. for Produc. of Docs. (doc. no. 87-3)
at 10.

Second, in RFP 56, they requested from Corizon

“all documents and communications relating to the ...
mortality review process ... including but not limited
to all minutes from the meetings regarding prisoners
who have died between January 1, 2013 and the response
date,

the

mortality

and

suicide

reviews

deaths, and all other death records.”
Compel (doc. no. 362) at 4.

10

of

their

Pls.’ Mot. to

The

parties

and

Corizon

reached

a

mediated

agreement with respect to RFP 56 (and numerous other
discovery

disputes).

This

agreement

provided

that

plaintiffs would be permitted to select 25 names from a
roster of prisoners who had died during the relevant
time period, and would then be allowed to review, but
not copy, the mortality reviews for these prisoners.
See Ex. A to Mediation Agreement (doc. no. 362-5) at 2.
The agreement did not address, or purport to resolve,
RFP 10.

See Mediation Agreement (doc. no. 250-1).

The

roster included the names of two of the three named
plaintiffs at issue; the last one was still alive at
the time.
deceased
their

Plaintiffs did not select either of the two
named

plaintiffs,

mortality

separately,
“documents

reviews

pursuant
...

reportedly

to

relating

RFP
to

believing

would

be

10,

because

the

named

that

forthcoming
they

were

plaintiffs.” 5

5. Actually, by the time the agreement regarding
RFP 56 was reached, these two deceased individuals had
been dismissed as plaintiffs, because their claims for
injunctive relief were now moot.
However, they were
(continued...)
11

Subsequently,

plaintiffs

filed

a

motion

to

compel,

contending that many of the 25 mortality reviews which
had been produced for inspection were incomplete; this
motion was resolved by agreement of the parties during
a hearing.

See Mot. to Compel (doc. no. 362); Tr. of

Hr’g on March 17, 2016 (doc. no. 401) at 97.
As

for

RFP

10,

the

parties

memorialized

no

agreement in writing because, it seems, both believed
they had no dispute regarding its scope: defendants
agreed to “produce the non-privileged documents in its
possession responsive to this Request.” 6

State’s Objs.

and Resps. to Pls.’ First Req. for Produc. of Docs.
(doc. no. 87-4) at 6-7.

Now, however, they disagree as

named plaintiffs at the time RFP 10 was served on
defendants, and so plaintiffs apparently understood
that defendants would produce any documents pertaining
to them.
6. Plaintiffs understood this to include documents
in defendants’ custody and control as well as those in
their physical possession.
This understanding is
reasonable, given that defendants would have no basis
under Federal Rule of Civil Procedure 34(a)(1) for
excluding documents not in their physical possession.
12

to whether mortality reviews relating to the deaths of
named plaintiffs fall within the scope of this RFP.
Defendants

first

contend

that

plaintiffs

failed

specifically to request the named plaintiffs’ mortality
reviews;

they

point

out

that

RFP

10

nowhere

explicit reference to mortality reviews.

makes

Plaintiffs

counter that defendants have, in response to this RFP
and

without

documents
medical

objection,

referencing
records,

produced

the

named

incident

various

sorts

of

plaintiffs--such

as

reports,

and

inmate

newsletters--even though these documents were likewise
not enumerated in the general terms of the RFP.

For

example, plaintiffs were required to select a certain
number

of

names

from

a

list

of

prisoners

who

were

treated at hospitals in order to view those prisoners’
hospital records.

This list included the names of some

of the named plaintiffs, but plaintiffs did not select
them for review; the named plaintiffs’ hospital records
were

produced

separately,

pursuant

Pls.’ Reply (doc. no. 590) at 12.

13

to

RFP

10.

See

Hence, the court

concludes

that

these

three

mortality

reviews

were

properly requested.
Defendants also argue that the mortality reviews do
not fall within the scope of RFP 10 because they are
privileged.
that

This argument is unavailing: to the extent

defendants

selection

of

or

these

Corizon
mortality

have

agreed

reviews

to

to

show

a

plaintiffs’

counsel and their experts, they have consented to a
limited

waiver

of

any

privilege

Permitting

review

of

materially

alter

the

scope

of

court

has

already

Furthermore,

this

three

that

more

might

files
this

exist.

does

not

disclosure.

explained--in

a

lengthy opinion granting a motion to compel production
of quality-assurance files maintained by another of the
Department’s

contractors,

MHM

Correctional

Services,

Inc.--that Alabama’s statutory peer-review privilege is
inapplicable in this litigation. 7

See Dunn v. Dunn, --

7. The court also declined to
analogous federal common-law privilege.
14

recognize

an

F. Supp. 3d --, 2016 WL 324990 (M.D. Ala. Jan. 27,
2016) (Thompson, J.).
Finally,

defendants

take

issue

with

alleged delay in raising this issue.

plaintiffs’

However, given

plaintiffs’ stated belief that the mortality reviews at
issue would be forthcoming, it appears to the court
that

they

reasonably

waited

for

the

supplemental

production of records related to the named plaintiffs
they were promised--and received--in late May, before
bringing

this

issue

to

the

court’s

attention

for

mediation and then for adjudication.
The

more

resolving

troublesome

the

request

question

is

RFP

56--for

in

whether,

in

mortality

reviews--defendants and Corizon put plaintiffs’ counsel
on notice that they were not planning separately to
produce mortality reviews for deceased prisoners, such
that

plaintiffs’

raised

this

counsel

dispute

at

should
that

have
time.

recognized

and

Although

the

inclusion of the names of two deceased plaintiffs on
the roster should have prompted diligent counsel to

15

clarify at that time whether defendants and Corizon
intended to produce records of named plaintiffs’ deaths
even if they were not among the 25 names selected for
review, the court cannot conclude that this failure
represents a concession; instead, it appears to have
been an oversight.
On

balance,

the

court

will

exercise

its

“broad

discretion in shaping the scope of discovery,” Williams
v.

City

1984),

of
to

Dothan,

745

permit

F.2d

1406,

review--not

1415

(11th

copying--of

Cir.
these

mortality reviews in light of (1) the significance of
the evidence at issue to plaintiffs’ case and (2) the
importance of the civil-rights issues being litigated
in this putative class action.
First,

as

plaintiffs

explained

during

a

status

conference held on the record on July 20, 2016, this
mortality-review
portion

of

Department’s
healthcare

evidence

their

is

case--they

inadequate
contribute

potentially

to

allege

systems
the

16

for

deaths

of

key
that

to

a
the

providing
prisoners

including their clients, and seek documents created by
those responsible for that care identifying the causes
of those deaths.
more

evidence

Because plaintiffs have substantially

regarding

the

conditions

suffered

and

treatment received by the named plaintiffs than they do
for any other deceased prisoners, the mortality reviews
for these particular prisoners are especially valuable.
Second,

a

liberal

approach

to

adjudication

of

discovery disputes is warranted in cases like this one.
This court has previously explained, in adjudicating
another

discovery

“‘normally

dispute

predominant

in

this

principle

of

case,

that

the

utilizing

all

rational means for ascertaining truth’ ... is at its
strongest

in

civil-rights

cases.”

Dunn,

2016

WL

324990, at *8 (quoting Adkins v. Christie, 488 F.3d
1324, 1328 (11th Cir. 2007)).
broad

discovery

in

civil

“Federal policy favors

rights

actions.

Kinoy

v.

Mitchell, 67 F.R.D. 1, 12 (S.D.N.Y. 1975) [(Ward, J.)].
...
by

[S]uits under 42 U.S.C. § 1983 should be resolved
a

determination

of

the

17

truth

rather

than

a

determination that the truth shall remain hidden.

Wood

v. Breier, 54 F.R.D. 7, 11 (E.D. Wis. 1972) [(Reynolds,
J.)].

A most important fact to be considered in the

determination as to whether particular evidence should
be discovered is the importance of the evidence to the
plaintiffs’ case.

Crawford v. Dominic, 469 F. Supp.

260, 263 (E.D. Pa. 1979) [(Pollack, J.)].

...

Mutual

knowledge of all the relevant facts gathered by both
parties is essential to proper litigation.
Taylor, 329 U.S. [495,] 507 [(1947)].”

Hickman v.

Inmates of Unit

14 v. Rebideau, 102 F.R.D. 122, 128 (N.D.N.Y. 1984)
(Foley, J.).
However, the court finds that plaintiffs’ failure
to promptly clarify whether the mortality reviews of
named plaintiffs would separately be produced created
the need for litigation of this issue.
court

will

condition

plaintiffs’

Therefore, the

ability

to

peruse

these reviews on their payment to defendants of the
costs of litigating this motion reasonably attributable
to this portion of the dispute.

18

III.

Defendants’ Possession, Custody, or Control

One final point requires some discussion.

Formally

speaking, the pending motion to compel production was
directed at defendants, and not at their contractor,
Corizon.

The parties agree that the documents at issue

were created by Corizon, and some of them may not be in
the physical custody of defendants.

Defendants contend

that these documents are not within their custody or
control, but plaintiffs dispute this, pointing out that
defendants appear to have a contractual right to obtain
these files from Corizon.

See Pls.’ Reply (doc. no.

590) at 4.
The

court

defendants’

need

not

contractual

wade

into

rights,

the

however,

weeds

on

because

defendants have manifested their ability to direct the
production of the documents at issue, and indeed elided
the distinction between the two entities for purposes
of this discovery dispute.
Corizon

and

the

The same lawyers represent

Commissioner

19

and

Associate

Commissioner.

In their brief opposing this motion to

compel, defendants make representations on behalf of
Corizon

(“The

State

and

Corizon

maintain

that...”);

describe the joint resolution of plaintiffs’ requests
for production by defendants and Corizon (“[T]he State
and Corizon resolved...”); and explain that defendants
and

Corizon

jointly

settled

the

dispute

over

and

produced the mortality reviews (“The State and Corizon
went to great cost...”; “[T]he State and Corizon only
agreed to a limited review...”).
no. 581) at 7 n.6, 9, 13, 15.
describe

the

“self-critical

Defs.’ Reply (doc.
Defendants even twice

analysis”

and

“quality

improvement reviews” in these documents as assessments
in which defendants and Corizon jointly engage.
17,

18.

By

the

same

token,

Corizon

Id. at
produced

credentialing files in response to a request directed
at defendants, after the court previously made clear
that

it

was

not

interested

in

adjudicating

non-substantive disputes regarding whether requests or
subpoenas

were

properly

directed

20

to

defendants

or

Corizon.
54

Tr. of Hr’g on Feb. 8, 2016 (doc. no. 354) at

(“THE

COURT:

[I]t

doesn’t

make

any

difference

whether Corizon or ADOC has custody or control.

...

I

can just require that you [the plaintiffs] serve it
[the request] on Corizon, but I would rather go ahead
and just address the merits of any objection.”).

* * *
Accordingly, it is ORDERED as follows:
(1) Plaintiffs’ motion to compel (doc. no. 570) is
granted as further set out below.
(2) By no later than August 3, 2016, defendants or
non-party

Corizon

Health,

Inc.,

are

to

produce

all

practitioner peer-review documents in their possession
or

control

related

to

physicians,

dentists,

and

mid-level providers, whether or not contained within a
credentialing file, subject to the exceptions outlined
in

the

parties’

joint

report

(doc.

no.

336

at

3),

contingent on payment by plaintiffs’ counsel of the
attorneys’ fees and costs of litigating the portion of

21

this motion pertaining to the inclusion of dentists.
Defendants are allowed until August 17, 2016, to file a
request for reimbursement pursuant to this paragraph.
(3) By no later than August 3, 2016, the parties
and non-party Corizon are to confer and arrange a date
and time prior to August 12, 2016, on which defendants
or

Corizon

plaintiffs’

are

to

counsel

make
and

available

their

for

experts

review

the

by

mortality

reviews for the three formerly named plaintiffs who are
now

deceased,

contingent

on

payment

by

plaintiffs’

counsel of the attorneys’ fees and costs of litigating
the

portion

reviews.

of

this

motion

pertaining

to

mortality

Defendants are allowed until August 17, 2016,

to file a request for reimbursement pursuant to this
paragraph.
DONE, this the 2nd day of August, 2016.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE