Arc of the Pikes Peak Region, The et al v. National Mentor Holdings, Inc. et al

Filing 177

ORDER: granting 156 Plaintiffs Motion to Enforce the Courts March 23 Order.Production of all documents as specified in the order compelling discovery and based on mistreatment as that term is defined in section 27-10.5-115, C.R.S. The parties competing requests for attorneys fees are DENIED, by Magistrate Judge Boyd N. Boland on 5/25/11.(bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 10-cv-01144-REB-BNB
THE ARC OF THE PIKES PEAK REGION, as legal guardian for Angela Bream,
Greg Catlett, Gordon Cummins, Vera Guion, Mary Rodgers and Tino Valencia, and
SHARON HARRISON and MICHELLE BOWER, as legal guardians for Randy Bower,
Plaintiffs,
v.
NATIONAL MENTOR HOLDINGS, INC., d/b/a/ The Mentor Network, its successor and its
assignees,
REM COLORADO, INC., its successors and assignees; and
JAN BLOSSER,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on Plaintiffs’ Motion to Enforce the Court’s March 23 Order [Doc.
# 156, filed 4/29/2011] (the “Motion to Compel”), which is GRANTED as specified.
Previously, the plaintiffs sought to compel the production of “any document relating to
any allegation or complaint that REM/Mentor mistreated any developmentally disabled person,
including the Wards.” Motion to Compel [Doc. # 115] at p. 9. REM/Mentor objected to the
discovery request on numerous grounds, including undue burden. In support of the burden
argument, REM/Mentor provided the Declaration of Robert Longo [Doc. # 139-4]. Mr. Longo
estimated that responding to the request as posed would require 260 hours to identify the
responsive files and an additional 1,000 hours or more to identify responsive documents within
those files. Id. at ¶6.

“Mistreat” and “mistreatment” were defined in the plaintiffs’s discovery requests as
follows:
“Mistreat” and “mistreatment” refer to any tort committed against
and any act causing injury to a developmentally disabled person.
The terms include any act or omission that is inconsistent with the
developmentally disabled person’s best interests or inconsistent
with the human rights of a developmentally disabled person as set
forth in Title 27, Article 10.5, of the Colorado Revised Statutes.
Plaintiffs’ First Set of Discovery Requests [Doc. # 156] at p. 3. Section 27-10.5-115, C.R.S.,
provides a long and detailed list of treatment which is not permitted with respect to the
developmentally disabled, including corporal punishment, mistreatment, exploitation, neglect,
abuse, failure to provide sufficient qualified staffing, seclusion, “time out” procedures except as
expressly provided, use of aversive or noxious stimuli, and physical and mechanical restraint
except as expressly provided.
I addressed the issue of burden with plaintiffs’ counsel at the hearing on the previous
motion to compel, resulting in the following colloquy:
THE COURT: The request is for any document relating to any
allegation or complaint of mistreatment. What do you mean by
allegation or complaint? Do you mean that there has to be a--a
formal complaint with an administrative agency or a complaint
filed with the home office, or do you mean that just a note in the
patient file that a guardian came to visit and complained about
conditions?
MR. PAGLIUCA: Certainly, the first two categories that the
Court articulated would be within, I think, a common meaning of
the word “complaint.” And I understand that this is a problem.
How do we define when someone is complaining about the
treatment of someone else, and how are we supposed to find out
about it. And, you know, I mean, some of this I think comes down
to what folks would commonly understand that to mean. I would
think that if there is an isolated, unsubstantiated complaint by a
guardian in one instance, that is certainly not something that I
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think would rise to the level of me needing to know about it or
them needing to go look for it and find out about it. But there’s a
lot of area in between.
And to me, um, “complaint” means an issue--well, I think the
easiest way to deal with it is if it is something where--if it is an
allegation that should have resulted in an incident report being
written, that would be something that everyone would understand
what it was, and it’s something that they were supposed to do as
part of their care of these developmentally disabled people. So I
think that’s probably the simplest way to define it. If it is an
allegation that should have resulted in the drafting of or the
recording of an incident report.

Transcript of Proceedings (March 24, 2011) [Doc. # 168-1] at p. 26 line 5 through p. 27 line 12
(emphasis added).
In view of the enormous burden which REM/Mentor had asserted would result from
reviewing the documents to find allegations that “should have resulted in . . . an incident
report,” I rejected the plaintiffs’ proposal and required REM/Mentor to produce “any incident
report relating to a complaint that REM/Mentor mistreated a developmentally disabled person
who resided in any of the four group homes . . . with a plaintiff ward during the period 2003
through 2007.” Id. at p. 46 lines 18-25 (emphasis added). I explained the reason for this
limitation as follows:
Although the defendants have made a showing of great burden,
that showing relates to a much greater scope of inquiry, and this
more limited inquiry I believe should ameliorate that burden.
Id. at p. 47 lines 6-9.
Having limited the documents that REM/Mentor was required to identify and review to
actual incident reports for four distinct group homes during a limited period of time, I did not
find it necessary to alter the definition of “mistreat” or “mistreatment.” The statutory language
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specified by the plaintiffs is appropriate and does not create any special burden on REM/Mentor.
In fact, it is the statutorily specified treatment or, more properly mistreatment, about which
REM/Mentor must prepare incident reports. See section 27-10.5-115(1), C.R.S. (requiring that
“[a] record shall be maintained of . . . all incidents of mistreatment, exploitation, neglect, or
abuse, and all uses of physical or mechanical restraint”).
REM/Mentor did not follow the definition of mistreatment in their supplemental
discovery response required by my order compelling discovery. Instead, REM/Mentor adopted a
dictionary definition of the term mistreatment--“to treat badly, cruelly, or unfairly (synonymous
with abuse).” Motion to Compel [Doc. # 156] at p. 5. However, in their Response [Doc. # 168],
REM/Mentor state:
Significantly, defense counsel understand this [the plain English
definition of mistreatment] to encompass incidents of alleged
abuse, neglect, and exploitation, as well as treatment that is bad,
cruel, or unfair.
* * *
Defendants have produced many more documents to Plaintiffs than
required under such a definition. Defendants have produced
Incident Reports not only where someone affirmatively made an
oral or written allegation or complaint to REM that a nonparty had
been mistreated (and there are very few such Incident Reports), but
also included Incident Reports that might be subject to some
interpretation of unfair, cruel, abusive, neglectful, exploitative, or
bad treatment of a nonparty.
* * *
Defendants’ understanding of the common meaning of
mistreatment includes any allegation or complaint of abuse,
neglect, or exploitation as contemplated by the laws cited in
Plaintiffs’ Motion. Abuse that is physical, sexual, or psychological
falls within the commonly understood meaning of the term
“mistreatment” which Defendants have used. Defendants’
understanding of the term is consistent with the definition of
mistreatment established within the statutory and regulatory

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framework Plaintiffs cited related to the care of developmentally
disabled individuals (i.e., C.R.S. § 27-10-115(2) and (1); and
2CCR 503-1 §16.120).
Response [Doc. # 168] at pp. 5, 7, and 8.
REM/Mentor’s arguments to the contrary notwithstanding, I assume the decision to
define the term mistreatment pursuant to a dictionary rather than pursuant to the statute, as
specified by the plaintiffs, was for a purpose. Consequently, to the extent that any document
subject to the order compelling discovery and based on mistreatment as that term is defined in
section 27-10.5-115, C.R.S., has not been produced, the Motion to Compel is GRANTED.
IT IS ORDERED:
1.

The Motion to Compel [Doc. # 156] is GRANTED to require production of all

documents as specified in the order compelling discovery and based on mistreatment as that term
is defined in section 27-10.5-115, C.R.S.; and
2.

The parties’ competing requests for attorneys fees are DENIED.

Dated May 25, 2011.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

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