Bennett v. SSC Palisade Operating Company, LLC

Filing 24

ORDER by Magistrate Judge Kristen L. Mix on 08/01/14, granting Plaintiff's oral Motion to Compel a Response To Request for Production No. 1, on which a hearing was held 7/30/14. Defendant shall produce the document Bates-stampedBennett 007075" and Bennett 007076" to Plaintiff no later than August 6, 2014. (Attachments: # 1 Exhibit A) (nmarb, )

EXHIBIT A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-CV-923-WJM-KLM
DON BENNETT
Plaintiff,
v.
SSC PALISADE OPERATING COMPANY, LLC, a Delaware Limited
Liability Company;
Defendant.
________________________________________________________________________
DEFENDANT SSC PALISADE OPERATING COMPANY, LLC’S
RESPONSE TO PLAINTIFF’S FIRST SET OF DISCOVERY REQUESTS
________________________________________________________________________
SSC Palisade Operating Company, LLC (“Palisades”), through its counsel
Gordon & Rees LLP, responds to Plaintiff’s First Set of Discovery Requests as follows:
PRELIMINARY STATEMENT
1.

Palisades’ investigation and development of all facts and circumstances

relating to this case are ongoing. These responses and objections are made without
prejudice to, and are not a waiver of, Palisades’ right to rely on other facts or documents
at the time of any hearing, trial, settlement or any form of alternate dispute resolution.
2.

By making the accompanying responses and objections to Plaintiff’s

interrogatories, Palisades does not waive, and expressly reserves, its rights to assert any
and all objections as to the admissibility of the responses into evidence in this case, or in
any other proceeding. Further, Palisades makes its responses and objections without
implying that it considers the interrogatories to be relevant or material to this case.

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3.

Palisades expressly reserves the right to supplement, clarify, revise or

correct any or all of the responses and objections herein, and to assert additional
objections or privileges, in one or more subsequent supplement response(s).
4.

Palisades reserves the right at the time of trial or in other proceedings in

this case to rely upon documents and evidence in addition to those provided in responsive
document requests regardless of whether any such documents in evidence are newly
discovered or currently in existence.
GENERAL OBJECTIONS AND DENIALS
1.

Palisades generally objects to Plaintiff’s interrogatories to the extent that

they seek information protected by the attorney-client privilege; the attorney work
product doctrine; the psychotherapist-patient privilege, as interpreted by the courts; the
physician-patient privilege; the nurse-patient privilege; the accountant-client privilege, as
codified at C.R.S. § 13-90-107; the Colorado Quality Management statute, as codified at
C.R.S. § 25-3-109; the common law self-evaluative privilege; the common law selfcritical analysis privilege; the federal quality assurance privilege codified at 42 U.S.C. §§
1395i-3(b)(1)(B) and 1396r(b)(1)(B); corporate or other records subject to a privacy or
confidentiality right; documents prepared in anticipation of litigation or trial; documents
containing information made confidential by the federal Health Insurance Portability and
Accountability Act (“HIPAA”); and any other applicable constitutional, statutory, or
common law privilege recognized by law.
2.

It is Palisades’ intent to assert all applicable privileges and exemptions

from discovery and otherwise fully protect privileged or exempt information. Any

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disclosure of privileged or exempt information is inadvertent, involuntary, and
unintentional, and is not intended to be a waiver of any privileges or exemptions.
3.

Investigation as to the matters that are the subject of Plaintiff’s

interrogatories is continuing and therefore its responses may not be exhaustive. Palisades
reserves its right to revise, correct, supplement, or clarify any responses or objections to
the Plaintiff’s interrogatories; to recall any inadvertent responses to which privilege is
attached or an objection has been lodged; and to introduce at the time of hearing, trial,
settlement, or other form of alternate dispute resolution any additional information or
documents of which Palisades becomes aware as a result of continuing investigation or
discovery.
4.

Palisades objects to Plaintiff’s interrogatories to the extent they seek

information that exists in the plaintiff’s own records, is in the custody of the plaintiff,
and/or is cumulative or duplicative.
5.

Palisades objects to Plaintiff’s interrogatories to the extent that they seek

information that violates privacy rights or confidentiality agreements, reveals trade
secrets or other proprietary information, or otherwise violates any arrangements between
Palisades and any entity or individual not a party to this lawsuit.
6.

Palisades objects to each interrogatory to the extent it calls for speculation,

conjecture, opinion, expert opinion, or a legal conclusion.
7.

Palisades objects to providing information relating to non-parties to this

lawsuit, as well as any information that violates the privacy or confidentiality rights of
non-parties to this lawsuit.

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8.

Palisades objects to Plaintiff’s interrogatories to the extent that they are

compound and do not constitute a single request for admission.
9.

Each and every response to any of the following inquiries set forth in the

Plaintiff’s requests includes the general objections and denials. Additional specific
objections made in response to a particular request do not limit the general objections.
RESPONSE TO INTERROGATORIES
INTERROGATORY NO. 1:
Please state the names, addresses, phone numbers, job position and current
employee status with Defendant of the person(s) who spoke to Sue Matthews,
EMT/Paramedic on 6/17/2013 and who is quoted (see Complaint paragraph 38) as stating
that the 6/17/2013 “fall was not witnessed”, that it was “not known how long she was
down”, that she “was in the wheelchair and later found on the floor” and that there was “a
possibility she may have fallen from a standing position.” Please also be sure to explain
the bases for these statements and produce any documents that support or in any way
related to or discuss these reportedly made statements to the paramedics by the staff
person(s) you identify as talking to Sue Matthews or any other paramedics or EMT
personnel on 6/17/2013.
RESPONSE TO INTERROGATORY NO. 1:
Palisades objects to Interrogatory No. 1 as compound and as impermissibly
constituting two separate interrogatories under Fed.R.Civ.P 33(a)(1) and a request for
production under Fed.R.Civ.P. 34. Palisades further objects on the grounds that
Interrogatory No. 1 assumes a fact (that EMT Sue Matthews was quoting a member of
Palisades’ staff in her report of the incident) not admitted by Palisades or otherwise
properly established. Palisades also objects to the extent that Interrogatory No. 1 calls for
information protected by the quality assurance privilege including information protected
by the privileges codified at C.R.S. § 25-3-109, 42 U.S.C. § 1395i-3(b)(1)(B), and 42

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U.S.C. § 1396r(b)(1)(B) and the common law self-evaluative privilege and self-critical
analysis privilege. See, e.g., Bredice v. Doctors Hospital, Inc., 50 F.R.D. 249 (D.D.C.
1970). Palisades also objects to Interrogatory No. 1 to the extent that it calls for
speculation by seeking information outside of the personal knowledge of Palisades’
employees when it asks Palisades to explain the basis for statements its employees did
not make, in a report they did not write. Deutsche Bank Nat'l Trust Co. v. Miller, 2012
Bankr. LEXIS 3461, 56, 2012 WL 2953111 (Bankr. D. Colo. July 18, 2012) (sustaining
an objection to an interrogatory calling for information about the conduct of third parties
as impermissibly speculative).
Nevertheless, without waiving or in any way limiting any of these objections, and
in an effort to avoid the need for Plaintiff to prepare additional discovery requests,
Palisades states that it has investigated the subject matter of this interrogatory but has not
identified any person who is quoted in Sue Matthew’s report of the incident as stating
that “the ‘fall was not witnessed’, [sic] that it was ‘not known how long she was down’,
[sic] that she ‘was in the wheelchair and later found on the floor’ and that there was a
possibility she may have fallen from a standing position.’” Palisades is not aware of any
staff who were present for the communications with the paramedics after the incident and
who recall anyone telling the paramedics that no one from the facility witnessed Ms.
Bennett’s fall, or that no one from the facility knew how long Ms. Bennett had been
down on the ground after the fall. Furthermore, Palisades understands that none of the
individuals present for these communications believe the staff was trying to “cover up”
the fact that the fall was witnessed and some staff knew approximately when it occurred.
Palisades further states that, to the best of its knowledge, the following employees
were present for some of the communications with the paramedics after the incident:

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NAME

ADDRESS

PHONE

POSITION

STATUS

Elizabeth Landon

P.O. Box 725, Clifton, CO 81520

[phone]

RCS

Former employee

Kaitlyn Wiman

C/O Gordon & Rees LLP

[phone]

RCS

Current employee

Louise Gullikson

2663 Eagle Ridge Drive, GJ, CO 81503

[phone]

Unit Nurse

Former employee

Amanda Slogar

3096 Silver Court, GJ, CO 81504

[phone]

Unit Nurse

Former employee

Malinda Cyphers

C/O Gordon & Rees LLP

[phone]

RCS

Current employee

INTERROGATORY NO. 2:
State the names, addresses, phone numbers and current employee status with
Defendant of the 5 persons you believe have the most knowledge about the facts related
to the 6/17/2013 fall of Mrs. Bennett complained of in this lawsuit and the statements
related thereto contained in the IDT quoted in paragraphs 34 and 35 of the Complaint
together with any incident or accident report(s) related to this fall event and describe in
reasonable detail the knowledge each of these persons has about this event.
RESPONSE TO INTERROGATORY NO. 2:
Palisades objects to Interrogatory No. 2 as compound and as impermissibly
constituting two separate interrogatories under Fed.R.Civ.P 33(a)(1). Palisades further
objects to Interrogatory No. 2 to the extent that it calls for speculation by seeking
Palisades’ belief regarding which of its current and former employees have the most
knowledge of the fall, the IDT Post Fall Review report, and the incident report without
providing criteria to weigh which facts and which of these topics are most important.
Palisades also objects to this interrogatory to the extent that it calls for attorney work
product. And Palisades objects to the extent that the Paragraphs of the Amended
Complaint referenced in the interrogatory do not quote sections of the IDT report as the
interrogatory purports. Additionally, to the extent that this interrogatory calls for
information from an incident report and reports of other internal investigations, Palisades

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objects to production of information protected by the quality assurance privilege
including information protected by the privileges codified at C.R.S. § 25-3-109, 42
U.S.C. § 1395i-3(b)(1)(B), and 42 U.S.C. § 1396r(b)(1)(B) and the common law selfevaluative privilege and self-critical analysis privilege. See, e.g., Bredice v. Doctors
Hospital, Inc., 50 F.R.D. 249 (D.D.C. 1970). Finally, to the extent that Interrogatory No.
2 calls for Palisades to interview individuals who may have knowledge of the incident
(some of whom are former employees and a number of whom are currently scheduled to
be deposed by Plaintiff’s counsel) and to describe the information gained in those
interviews, this interrogatory improperly calls for Palisades to generate information that
may not be in its possession, custody, or control and to produce information that is
equally available to both parties.
Nevertheless, without waiving or in any way limiting any of these objections, and
in an effort to avoid the need for Plaintiff to prepare additional discovery requests,
Palisades states that the following employees were working at the time of the incident or
were involved in the review and investigation of the incident:

NAME

ADDRESS

PHONE

POSITION

STATUS

Elizabeth Landon

P.O. Box 725, Clifton, CO 81520

[phone]

RCS

Former employee

Kaitlyn Wiman

C/O Gordon & Rees LLP

[phone]

RCS

Current employee

Louise Gullikson

2663 Eagle Ridge Drive, GJ, CO 81503

[phone]

Unit Nurse

Former employee

Amanda Slogar

3096 Silver Court, GJ, CO 81504

[phone]

Unit Nurse

Former employee

Malinda Cyphers

C/O Gordon & Rees LLP

[phone]

RCS

Current employee

Katherine Johnston

2828 Orchard Ave., Unit # 34, GJ 81501

[phone]

RCS

Former employee

Snow Losh

647 35 ½ Road, Palisade, CO 81526

[phone]

RCS

Former employee

Shelly Strahan

3171 Sheyl Ct., GJ, CO 81503

[phone]

RCS

Former employee

Kelly Bautista

2983 Yew Leaf Willow Ave, GJ 81504

[phone]

Unit Nurse

Former employee

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Vincent Langella

820 Iowa Ave., Palisade , CO 81526

[phone]

RCS

Former employee

Dennis Tofano

4305 S. Poplar St., Casper, WY 82601

[phone]

NHA

Former employee

Danielle Aravanis

2911 Junction St., Durango, CO 81301

[phone]

DON

Former employee

Teresa Spears

2110 Yosemite Road, GJ, CO 81570

[phone]

ADON

Former employee

Heather Dillon

34647 Moran Trail, Elizabeth, CO 80107

[phone]

SDC

Former employee

Kim Garrett

3245 White Ave. #1, Clifton, CO 81520

[phone]

AD

Former employee

Palisades further states that Louise Gullikson, Elizabeth Landon, Katherine
Johnston, and Kaitlyn Wiman were present for communications between them about who
would watch Ms. Bennett while she was at the north nurse’s station waiting to shower.
Louise Gullikson, Elizabeth Landon, Katherine Johnston, and Kaitlyn Wiman either
observed Ms. Bennett fall or observed her shortly after she fell. Louise Gullikson,
Elizabeth Landon, Katherine Johnston, Kaitlyn Wiman, Amanda Slogar, and Malinda
Cypers assessed Ms. Bennett for injuries and/or provided care and comfort to her after
the fall. Louise Gullikson, Elizabeth Landon, Kaitlyn Wiman, Amanda Slogar and
Malinda Cypers were present for portions of the communications with the paramedics.
Louise Gullikson, Elizabeth Landon, Amanda Slogar, Danielle Aravanis, and Dennis
Tofano were involved in parts of the investigation. Danielle Aravanis, Heather Dillon,
Teresa Spears, Kim Garrett, and Amanda Slogar were involved in the IDT post fall
review.
For further descriptions of knowledge the individuals in the chart above have
about the incident, the information known to Palisades may be determined from Palisades
chart for Ms. Bennett. Per Fed.R.Civ.P. 33(d), Palisades directs Plaintiff to the following
portions of the chart to determine the information sought:
Bennett 1717 – 1718;
Bennett 1697 – 1698;
Bennett 1404 – 1406;

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Bennett 413.
INTERROGATORY NO. 3:
Please describe how Mrs. Bennett was dressed at the time she was left at the north
nurses station and at the time of her fall on 6/17/2013.
RESPONSE TO INTERROGATORY NO. 3
Palisades understands Ms. Bennett was wearing inter alia a long sleeve t-shirt,
pajama pants, briefs, and non-slip footwear when she was at the north nurse’s station
waiting for the shower the evening of June 17, 2013, at the time of the fall, and until she
was transported to St. Mary’s Hospital when she was transferred out of Palisades’ care.
RESPONSE TO REQUEST FOR PRODUCTION
REQUEST FOR PRODUCTION NO. 1:
Please produce the personnel files of agents and or employees of Defendants
involved in Mrs. Bennett’s complained of fall injury, including, but not limited to,
records or documents in any way discussing or involving termination or discipline or
other facility action taken with respect to any involved employees and/or the reasons for
the same. These employees include, but are not limited to, the two involved CNAs
mentioned in the IDT and the Complaint, the involved nurse at the north station
mentioned in the IDT and in the Complaint by whom Mrs. Bennett was to be watched
and any staff who talked to Sue Matthews as reported by her in the report quoted in the
complaint in paragraph 38. This request includes any reports to licensing boards like the
Nursing Board for the State of Colorado or any other DORA agencies or divisions.
RESPONSE TO REQUEST NO. 1:
Palisades objects to Request No. 1 to the extent that the term “involved” is vague
and ambiguous and potentially overly broad and unduly burdensome. Palisades also
objects to this request to the extent that it seeks the complete personnel file in each
instance and is thus “facially overbroad” and impermissible. Bottoms v. Liberty Life
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Assur. Co., 2011 U.S. Dist. Lexis 143251, 14 2011 WL 618423 (D. Colo. Dec. 13, 2011)
(holding that a request for production of “complete personnel files” was “facially” and
“strikingly” overbroad). Palisades further objects to the production of personnel files on
the basis that they are subject to each respective staff member’s constitutional rights to
privacy and confidentiality as recognized in Martinelli v. District Court of Denver, 612
P.2d 1083, 1089 (Colo. 1980), and its progeny and Plaintiff has not demonstrated that he
has a compelling need for the files themselves or that production of the personnel files is
the least intrusive means to obtain the information he seeks. Both Colorado and the Tenth
Circuit have adopted Martinelli as the test to govern discovery of personnel files. Id.;
Martin v. Wegener, 2014 U.S. Dist. LEXIS 21320, 3 (D. Colo. Feb. 20, 2014) (“[T]he
Tenth Circuit adopted the Martinelli test for determining whether information contained
in personnel files is of such a highly personal or sensitive nature that it falls within the
zone of constitutionally recognized confidentiality.”) The information in the personnel
files can be sought in a less intrusive manner though either or both more targeted
discovery or depositions. Bottoms, 2011 U.S. Dist. Lexis 143251 at 14 (citing with
approval a 9th Circuit case for the proposition relevant information contained in
personnel files should be developed by interrogatories where possible rather than
producing the files). Notably, a number of the individuals whose personnel files are
subject to this request are scheduled to be deposed or are included on Plaintiff’s list of
deponents in the June 26, 2014 Scheduling Order. Palisades further objects to this
request to the extent that it seeks information that is not reasonably calculated to lead to
the discovery of admissible evidence as much of the personnel files contain financial
information, tax information, outdated contact information, and copies of facility policies

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acknowledged by the employee for dress code, drug use, and other topics that are simply
irrelevant to this case. Finally, Palisades objects to this request to the extent that it seeks
public available information, such as reports to any state agency regulated by the
Department of Regulatory Agencies, that is equally available to both parties.
The parties conferred on the scope of Request for Production No. 1 on July 10,
2014 at which time Plaintiff’s counsel agreed to limit the scope of this request to (1) all
documents that address termination of employment, facility discipline, or other facility
action prior to or arising out of the incident in the personnel files of the three employees
whose care was directly at issue in the incident (Elizabeth Landon, Katherine Johnston,
and Louise Gullikson); and (2) all documents that address termination of employment,
facility discipline, or other facility action arising out of the representations made by staff
to any of the paramedics who responded to the incident in the personnel files of those
present for any such communications (Louise Gullikson, Elizabeth Landon, Kaitlyn
Wiman, Amanda Slogar and Malinda Cypers).
In response to this reduced scope, Palisades maintains its objections. Even with
the narrower scope Plaintiff has proposed, the request still calls for records that are
subject to the privacy rights of Palisades’ current and former employees. Palisades has
attempted on numerous occasions and through numerous means of communication to
contact the current and former employee(s) whose personnel file(s) is/are subject to this
request to discuss with the employee(s) whether the employee(s) would like to assert a
privacy right(s) and resist production of the requested part of the personnel file(s).
Palisades has been unable to reach the employee(s) for comment. Palisades will continue

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its efforts to contact the employee(s) and, if necessary, it will update its response to this
request once it has had an opportunity to discuss the issue with the employee(s).
REQUEST FOR PRODUCTION NO. 2:
Produce all internal investigation, incident, accident and occurrence reports
concerning Mrs. Bennett during her stay at your facility. This includes all records
pertaining to all falls by Mrs. Bennett while in your facility at any time.
RESPONSE TO REQUEST NO. 2:
Palisades objects to this request on the grounds that its reports of internal
investigations of incidents, accidents, and occurrences are subject to the quality assurance
privilege including the privileges codified at C.R.S. § 25-3-109, 42 U.S.C. § 1395i3(b)(1)(B), and 42 U.S.C. § 1396r(b)(1)(B) and the common law self-evaluative privilege
and self-critical analysis privilege. See, e.g., Bredice v. Doctors Hospital, Inc., 50 F.R.D.
249 (D.D.C. 1970). Palisades further objects to this request as overly broad and unduly
burdensome as Palisades organizes its incident reports chronologically (not by resident)
and only keeps reports from the current calendar year on site so this request calls for
Palisades to review every incident report generated by the facility over a five year period
with almost all of those reports in storage. Palisades also objects to this request as seeking
information not reasonably likely to lead to the discovery of admissible evidence to the
extent that the request seeks incident reports for non-falls and incident reports for falls
not at issue in this case.
REQUEST FOR PRODUCTION NO. 3:
Produce photos or videos of the type of hipster padded brief, the type of “hard
sole shoes with/soft upper” Mrs. Bennett was to wear daily, the type of “lap buddy”
typically used on the wheelchair for Mrs. Bennett, the type of wheelchair on which such
lap buddy was typically used with Mrs. Bennett, the type of pressure alarms that
Mrs. Bennett was supposed to have when seated at all times because of her dementia and

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high fall risk and of the exact chair she was in at the time Mrs. Bennett was taken to the
north nursing station near the shower on 6/17/13 and any lap buddy which fit such chair.
RESPONSE TO REQUEST NO. 3:
Palisades objects on the grounds that Request for Production No. 3 assumes facts
(that the items listed were fall interventions, that those interventions were to be in place at
the time of the incident, and that the pressure alarm and lap buddy should have been
added to the shower chair) not admitted by Palisades or otherwise properly established.
Palisades further objects to this request to the extent that it calls for Palisades to create
new photographs that do not already exist in its files and therefore impermissibly calls for
Palisades to produce documents, data, or tangible things not in its possession, custody, or
control in violation of Fed.R.Civ.P. 34(a)(1).
Subject to and without waiving these objections and without limitation:
See Bennett 2958 – 2974.
REQUEST FOR PRODUCTION NO. 4:
Please produce all 24-hour reports or shift reports, doctor notifications or check
notes or other daily, weekly or monthly records and any other documents not contained
in the previously disclosed facility records. This includes all records of falls by her for
falls at any time at the facility or to her fall risk and fall care planning needs at any time
during her stay as well as including all CareTracker records pertaining to Mrs. Bennett.
RESPONSE TO REQUEST NO. 4:
Palisades objects to this request on the grounds that its 24-hour reports are subject
to the quality assurance privilege including the privileges codified at C.R.S. § 25-3-109,
42 U.S.C. § 1395i-3(b)(1)(B), and 42 U.S.C. § 1396r(b)(1)(B) and the common law selfevaluative privilege and self-critical analysis privilege. See, e.g., Bredice v. Doctors
Hospital, Inc., 50 F.R.D. 249 (D.D.C. 1970). Palisades further objects to this request as
overly broad and unduly burdensome to the extent that, in asking for Palisades to
“produce . . . any other document not contained in the previously disclosed facility
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records,” it literally seeks every document in Palisades possession, custody, or control
other than what has already been produced in this case, without limitation to date/time,
resident, or subject matter. Palisades also objects to this request to the extent that it calls
for the facilities’ medical records for other residents and thereby calls for information
protected by physician-patient privilege. Palisades also objects to this request as seeking
information not reasonably likely to lead to the discovery of admissible evidence to the
extent that it seeks information totally unrelated to the care provided Ms. Bennett.
Subject to and without waiving these objections and without limitation: Palisades
is producing its CareTracker records for Ms. Bennett at Bennett 2975 – 3405.
Disregarding the overly broad and unduly burdensome “any other document” portion of
this request, Palisades is not aware of any other responsive documents at this time but
will supplement if it becomes aware of any.
REQUEST FOR PRODUCTION NO. 5:
Please produce for the period of Mrs. Bennett’s stay, all fall safety procedures,
protocols or other training documents employed by the Defendant nursing home relevant
to issues in this case including but by no means limited to such documents regarding
accident prevention, fall care planning, fall safety procedures, protocols or training of
staff regarding falls, fall precautions, available fall prevention and mitigation equipment
to prevent falls or mitigate harm from falls, care planning and resident assessment
generally, revision of care plans based on changes in patient condition, admission and
retention of patients whose needs the facility cannot meet within the services and
resources and staffing it offers, care, treatment and protection of dementia patients, the
special needs of dementia patients, the inability of dementia patients to protect or attend
to their own safety, follow or remember instructions or use call lights, regarding accuracy
and truthfulness by staff in record keeping and reporting of events happening at the
facility to outside care givers like EMTs, paramedics or doctors, accident and incident
reports, internal investigations, accident reporting and all standing orders on any of these
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listed topics.
RESPONSE TO REQUEST NO. 5:
Palisades objects to Request No. 5 as compound and as impermissibly
constituting at least five separate requests for production under Fed.R.Civ.P 34.
Palisades further objects to this request because Palisades’ safety procedures, protocols,
or other training documents for care related to falls are trade secrets and/or confidential.
Palisades further objects to the extent that this request is vague and ambiguous to the
extent that it employs undefined terms that are confusing to Palisades. This request is also
overly broad and unduly burdensome to the extent that it calls for Palisades to produce
very iteration of procedures, protocol, and training documents during Ms. Bennett’s five
year stay at Palisades including superseded policies, protocol, and training documents
were not in effect during the incident. Finally, Palisades objects to the extent that this
request seeks irrelevant information that is not reasonably calculated to lead to the
discovery of admissible evidence.
Subject to and without waiving any objections and without limitation: because its
policies, procedures, training materials and related documents are trade secrets and are
confidential, Palisades insists that an executed and judicially adopted version of the
attached STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER be in
effect before any production. Moreover, because this request calls for all procedures,
protocol, and training documents that are “relevant to issues in this case” and because
Palisades has no way of knowing all issues Plaintiffs deems relevant, Palisades agrees to
produce the tables of contents for its policies and procedures once the protective order is
in place in an attempt to ensure Plaintiff is provided the information he seeks. Those
tables of contents are produced herewith as Bennett 3406 – 3467. Plaintiff may then
indicate in writing the contents he would like produced from the table of contents and, if
Palisades agrees that those sections he requests are in fact relevant to the fall-related care
it provided Ms. Bennett, Palisades will produce the selected sections subject to the
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judicially adopted STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER.
REQUEST FOR PRODUCTION NO. 6:
Produce all deficiency citations and plans of correction and any other related
documents involving level G or higher violations received by the facility from CDPHE
or the Federal government pertaining to accident prevention, quality of care, quality of
life, care planning, resident assessment or which involved immediate jeopardy citations
from 2010 to the present together with all facility plans of correction pertaining to such
deficiency citations.
RESPONSE TO REQUEST NO. 6:
Palisades objects to this request on the grounds that it asks Palisades to produce
publicly available information that is equally available to both parties. To the extent that
this request calls for information not publicly available, Palisades objects to this request
on the grounds that some of the information sought may be subject to the quality
assurance privilege including the privileges codified at C.R.S. § 25-3-109, 42 U.S.C. §
1395i-3(b)(1)(B), and 42 U.S.C. § 1396r(b)(1)(B) and the common law self-evaluative
privilege and self-critical analysis privilege. See, e.g., Bredice v. Doctors Hospital, Inc.,
50 F.R.D. 249 (D.D.C. 1970).
Subject to and without waiving these objections and without limitation, Palisades
understands the information sought by this request is available at the following website:
http://www.hfemsd2.dphe.state.co.us/hfd2003/dtl.aspx?id=021137&ft=ncf
Palisades has investigated whether it has any information responsive to this
request that is not publicly available. It is not aware of any such information at this time
but will supplement if it becomes aware of any.
REQUEST FOR PRODUCTION NO. 7:
Produce any document evidencing employment of pressure alarms, lap buddies,
hipster padded briefs or the wearing of hard sole shoes with/soft uppers by Mrs. Bennett
during the last 4 months of her life.
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RESPONSE TO REQUEST NO. 7:
Palisades objects to this request to the extent it calls for information from
documents already in Plaintiff’s possession and equally ascertainable by both parties.
Subject to and without waiving this objection and without limitation, Palisades
directs Plaintiff to the following (non-exhaustive) sections of the facility chart:
Physician’s Orders: Bennett 223-459
Nurses Notes: Bennett 1348-1719
Care Plans: Bennett 1264-1347
MARS: Bennett 1720-2187
TARS: Bennett 2188-2377
CareTracker: Bennett 2975 – 3405
REQUEST FOR PRODUCTION NO. 8:
Produce staffing materials demonstrating the number of nursing hours provided
at Palisade’s Living Center during Mrs. Bennett’s stay there. These documents include
schedules, payroll documents, daily staff plans, staffing budgets, labor and variance
records and similar documents.
RESPONSE TO REQUEST NO. 8:
Palisades objects to this request as overly broad and unduly burdensome to the
extent that it seeks redundant information from numerous reports when the number of
nursing hours provided at Palisades can be readily determined from Key Factor reports
and PPD-to-Census reports. Palisades objects to production of the information on the
documents sought that does not relate to the number of nursing hours at Palisades. The
request includes, for example, payroll information and staffing budgets that are irrelevant
and not calculated to lead to the discovery of admissible evidence. Palisades further
objects to this request to the extent that it calls for trade secrets and/or confidential
information.
Subject to and without waiving these objections and without limitation, because
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the Key Factor reports and the PPD-to-Census reports include confidential information,
Palisades insists that an executed and judicially adopted version of the attached
STIPULATED CONFIDENTIALITY AGREEMENT AND PROTECTIVE ORDER be in effect before
any production. Once the court adopts the STIPULATED CONFIDENTIALITY AGREEMENT
AND PROTECTIVE ORDER Palisades

will produce the Key Factor reports from August 28,

2008 to December 31, 2010 and the PPD-to-Census reports from January 1, 2011 to
August 3, 2013 at Bennett 3468-7074.
REQUEST FOR PRODUCTION NO. 9:
Pursuant to Rule 34, Plaintiff requests that his counsel be allowed to inspect the
premises and photograph/video her room, the area where Mrs. Bennett resided on
6/17/2013, the route taken with her to the shower and the hallway where she fell, the
north nurses station described in the IDT and the shower area where she was going. This
request is for an inspection during the time counsel is in Palisades for the first
depositions.
RESPONSE TO REQUEST NO. 9:
Palisades objects to this request on the basis that it is oppressive and unduly
burdensome during hours when most residents are awake, receiving care and treatment,
and otherwise utilizing the facility including the showers. See O’Connor’s Federal Rules
* Civil Trials, § 3.3(2) (2013) (“A party should object to a request for entry on land . . .
hampers a company’s ability to conduct its business or creates a safety hazard. . .”)
(citing New York Ass’n for Retarded Children, Inc. v. Carey, 706 F.2d 956, 961 (2d Cir.
1983) (finding that a request for inspection of land of a resident care provider for people
with severe mental disabilities was improper as the probative value of the information
was outweighed by the dangers created by the inspection). Plaintiff asks that his counsel
be allowed to inspect areas of the facility where residents with memory impairments,
immobility, and other medical conditions reside who may be agitated by the presence of a
group of unknown people invading their home, taking photographs, and otherwise
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intruding on their privacy and, as such, is a significant impairment on Palisades ability to
conduct its business and creates a safety hazard for the residents and staff. Palisades
further objects to this request to the extent that it contemplates observing residents
receiving medical treatment (and potentially photographing them in the process) without
their consent in violation of the Health Information Portability Protection Act.
Subject to and without waiving these objections and without limitation, Palisades
will consent to the requested inspection with a limited group of attendees (one
representative from Plaintiff and one from Defendant). Palisades objects to Plaintiff
taking any photographs during the inspection but Plaintiff can communicate the areas it
would like photographed and Palisades will arrange to have the photographs taken while
the memory care unit residents are asleep. Palisades objects to inspections and
photographs of Ms. Bennett’s room at the time of the incident as it is currently occupied.
REQUEST FOR PRODUCTION NO. 10:
Produce your OSCAR data/records regarding falls by residents at this facility for
the period 2012 to the present.
RESPONSE TO REQUEST NO. 10:
Palisades objects to this request on the grounds that it asks Palisades to produce
publicly available information that is equally available to both parties.
Subject to and without waiving these objections and without limitation, Palisades
understands the information sought by this request is available at the following website:
http://www.ahcancal.org/research_data/oscar_data/Pages/default.aspx

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Palisades has investigated whether is has any information responsive to this
request that is not publicly available. It is not aware of any such information at this time
but will supplement if it becomes aware of any.

GORDON & REES LLP
/s/ David M. Clarke
Thomas B. Quinn, Esq.
David M. Clarke, Esq.
555 Seventeenth St., Suite 3400
Denver, CO 80202
Attorneys for Defendant

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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true copy of the above and foregoing was
served electronically on the counsel below this 23 day of July, 2014:
John R. Holland
Anna Holland Edwards
Erica T. Grossman
Holland, Holland Edwards & Grossman, P.C.
1437 High Street
Denver, Colorado 80218

/s/ David M. Clarke

1092736/20210645v.1

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