Boparai v. Shinseki et al

Filing 61

ORDER Denying Plaintiff's Motion for Reconsideration 57 signed by Magistrate Judge Jennifer L. Thurston on 12/15/2010. (Leon-Guerrero, A)

Boparai v. Shinseki et al

Doc. 61

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 ROSIE BOPARAI, M.D., ) ) Plaintiff, ) ) v. ) ) ) ERIC K. SHINSEKI, et. al, ) ) Defendants. ) _______________________________________ ) I. Background Dr. Rosie Boparai, a medical doctor, alleges that she was subject to retaliation for filing an EEOC complaint, in violation of Title VII. (Doc. 1) She asserts that her treatment of a patient was subject to a peer review, at the conclusion of which the reviewers determined that "most experienced, competent practitioners might have managed the case differently." On November 12, 2010, the Court issued an order granting in part and denying in part Plaintiff's motion to compel responses to document production requests. (Doc. 55) In that order, the Court denied Plaintiff's request that Defendant be ordered to produced the confidential documents developed during the peer review process. Id. In addition, on November 16, 2010, the Court denied Dr. Boparai's request for an extension of the discovery deadline. (Doc. 56) The Court refused Dr. Boparai's request because she failed to demonstrate good cause to do so in that she did not show that she had acted diligently in Case No.: 1:09-cv-01164 AWI JLT ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION (Doc. 57) IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

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completing discovery. II. Motion to Reconsider In her current motion (Doc. 57), Dr. Boparai requests the Court reconsider its November 12 and November 16, 2010, orders. Though the Court has the power to reconsider its own orders at any time prior to entry of judgment and is not precluded from doing so by the law of the case doctrine, United States v. Smith, 389 F.3d 944, 949 (9th Cir. 2004) (citing City of Los Angeles v. Santa Monica Baykeeper, 254 F.3d 882, 888-89 (9th Cir. 2001)), Federal Rule of Civil Procedure 60(b)(6), which allows the Court to relieve a party from an order for any reason that justifies relief, "is to be used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances . . ." exist. Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (internal quotations marks and citation omitted). "[R]econsideration should not be granted, absent highly unusual circumstances, unless the district court is presented with newly discovered evidence, committed clear error, or if there is an intervening change in the controlling law." Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009) (internal quotations marks and citations omitted). It "may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." Id. (emphasis in the original). In her motion for reconsideration, Dr. Boparai challenges the Court's determination denying her discovery of the peer review documents and the Court's refusal to extend the discovery deadline. A. Peer Review Documents

In her motion for reconsideration, Dr. Boparai again requests the Court order disclosure of the peer review documents. In support, Dr. Boparai cites to the fact that as the treating physician she was entitled to have "access" to the records. The Court agrees and analyzed the impact of this right to access in footnote 3 of the Court's order. (Doc. 55 at 4, n. 3) The Court determined that the fact that she is entitled to have access to the documents does not vest Dr. Boparai with the authority to receive copies of the documents or to use them in this litigation. Id. On the other hand, Dr. Boparai argues that Defendant failed to comply with the requirements of the peer review process and by doing so, failed to fulfill the goal of the program which is to improve the

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quality of medical care provided by the VA. (Doc. 57) Toward this end, Dr. Boparai notes that she was not given access to the confidential quality improvement documents, she was not given feedback about how she could have improved the medical care she provided to the patient at issue, she was denied an appeal from the peer review determinations and her request for peer reviewers to be selected from outside the GLA facility was denied. Id. at 3-5. Each of these alleged failures, if proven, go to the merits of Dr. Boparai's claim that the peer review process was taken as retaliation for her earlier EEOC complaint. However, none justify the invasion into the confidentiality of the peer review process. Dr. Boparai argues that these deficiencies, most notably using the peer review process in a punitive manner, means that "Title 38 § 5705 is no longer applicable and GLA cannot claim the Title 38 § 5705 privilege." Id. at 3-4. However, Dr. Boparai cites no authority for this proposition and fails to appreciate that 38 U.S.C. § 5705 is not only an evidentiary privilege; it is also a dictate that the documents are confidential. ("Records and documents created by the Department as part of a medical quality-assurance program . . . are confidential and privileged and may not be disclosed to any person or entity except as provided in subsection (b) of this section." 38 U.S.C. § 5705, emphasis added.) Notably, there is no discretion vested in the Secretary of Veterans' Affairs to choose to disclose records in a manner that is inconsistent with the statute. Instead, all disclosures that are inconsistent with the section subjects the person making the wrongful disclosure to punishment. ("Any person who . . . willfully discloses such record or document except . . . shall be fined not more than $ 5,000 in the case of a first offense and not more than $ 20,000 in the case of a subsequent offense.") 38 U.S.C. § 5705(e). Thus, the Court finds no basis to presume that the confidentiality cloaked upon these records by 38 U.S.C. § 5705 has been waived or could be. Moreover, Dr. Boparai's arguments about the failure of Defendant to allow her to appeal the peer review decision, to appoint "outside" peer reviewers and to provide her feedback about the patient's care are mere repeats of those raised in her motion to compel. (Docs. 48 at 2-3; 49 at 2-3) As to the other arguments raised here, these were addressed by the Court in its order despite that Dr. Boparai could have raised them in her motion but did not. In essence, Dr. Boparai is asking the Court to rethink what it has already spent considerable time thinking through, without providing any proper grounds for the motion for reconsideration. Thus, the 3

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Court DENIES the motion for reconsideration as to the peer review documents. B. Extension of the Discovery Deadline

In her motion for reconsideration, Dr. Boparai argues that it was Defendant's failures that has caused her to be unable to complete discovery. (Doc. 57 at 6) She argues that Defendant failed to provide the documents that she needed and, instead, objected to her requests based upon privileges. Id. She claims that Defendant engaged in "delay tactics" to preclude her from taking depositions with the documents in hand.1 These are the same arguments that Dr. Boparai advanced in her motion to compel. In re-arguing these same positions, Dr. Boparai ignores completely the Court's analysis and the underlying legal authority for its decision to deny her additional discovery time. (Doc. 56 at 3-4) In its order, the Court made clear that it was Plaintiff's failure to conduct discovery in a timely fashion that placed her in the position she finds herself. The Court observed that Dr. Boparai knew that the patient's records were confidential so that she should have known that they would not be disclosed without a court order. Given that she knew that she needed the records to conduct depositions, she has failed to explain in any fashion why she chose to wait five months before requesting that they be produced. This is not diligence. Thus, Plaintiff failed to demonstrate good cause to modify the scheduling order. In her current motion, Dr. Boparai has failed to provide any new argument or legal authority for her request for reconsideration related to the discovery deadline. Thus, the Court DENIES the motion for reconsideration in this regard. III. Conclusion For the reasons set forth, the motion for reconsideration is DENIED.

IT IS SO ORDERED. Dated: December 14, 2010 9j7khi /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE

W h e n Defendant responded to the production request on September 1, 2010, this left only 15 days until the d is c o v e r y cut-off. W h ile theoretically possible, it is improbable that this left Dr. Boparai sufficient time to issue deposition n o tic e s and/or subpoenas and have them served in time to take the depositions before the deadline.

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