Beyer Laser Center et al v. Polomsky

Filing 252

ORDER granting in part and denying in part 243 Motion for Ruling, by Magistrate Judge Michael E. Hegarty on 11/26/2019.(tsher, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-03099-MEH
BEYER LASER CENTER, LLC, and
CRAIG F. BEYER,
Plaintiffs,
v.
MATEJ POLOMSKY,
Defendant.
ORDER
Michael E. Hegarty, United States Magistrate Judge.
Before the Court is Defendant’s “Request for Forthwith Ruling Concerning Application of
C.R.S. § 12-30-204(11)(a)” [filed November 18, 2019; ECF 243]. The Court finds that the statutory
privilege applies here and there has been no waiver; however, the documents which Plaintiffs intend
to introduce at trial do not fall under the protection of the statute. Therefore, Defendant’s motion
is granted in part and denied in part.
No party disputes that certain documents exchanged during this case arose from the Colorado
Medical Board’s investigation of complaints filed by Defendant and Dr. Richard Stewart against
Plaintiff Craig Beyer. The issue is whether these documents are inadmissible, or “privileged,”
pursuant to Colo. Rev. Stat. § 12-30-204(11)(a), a subsection of Colorado’s law governing
professional review of health care providers (Colorado Professional Review Act or “CPRA”), which
provides:
Except as specified in subsection (11)(b) of this section, the records of an authorized
entity, its professional review committee, and its governing board are not subject to

subpoena or discovery and are not admissible in any civil suit.
Id., formerly Colo. Rev. Stat. § 12-36.5-104(10)(a). The Colorado Medical Board is a “professional
review committee” under this provision. Colorado Med. Bd. v. Office of Admin. Courts, 333 P.3d
70, 73 (Colo. 2014). The Colorado Supreme Court has recognized the characterization of this
provision as the “professional review privilege” or “peer review privilege.” Id. at 71 (“The Board
objected that the Letters of Concern were confidential records protected by the professional review
privilege, also known as the peer review privilege . . . .”). Rule 501 of the Federal Rules of
Evidence govern the application of privileges in federal court and provides in pertinent part that “in
a civil case, state law governs privilege regarding a claim or defense for which state law supplies
the rule of decision.” Fed. R. Evid. 501. There is no dispute that state law governs the rule of law
for all four claims remaining in this diversity case. Thus, it appears the privilege applies unless
waived.
With respect to any waiver, the Court notes that the statute does not identify the privilege
“holder.” See Clark v. Dist. Court, Second Judicial Dist., City & Cty. of Denver, 668 P.2d 3, 8
(Colo. 1983) (“A waiver must be supported by evidence showing that the privilege holder, by words
or conduct, has expressly or impliedly forsaken his claim of confidentiality with respect to the
information in question.”). However, the Colorado Supreme Court has held that the Colorado
Medical Board is “entitled to the protection of its records pursuant to section [12–30–204(11)(a)].”
Colorado Med. Bd., 333 P.3d at 73. The Court finds the Colorado Medical Board is the privilege
holder and, here, there is no indication that the Board has waived its privilege.
Accordingly, the Court finds the privilege applies in this case to any protected “records,”
which are defined as follows:

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“Records” means any and all written, electronic, or oral communications by any
person arising from any activities of a professional review committee, including a
governing board, established by an authorized entity under this part 2 or by the agent
or staff thereof, including any:
(I)

Letters of reference;

(II)

Complaint, response, or correspondence related to the complaint or response;

(III)

Interviews or statements, reports, memoranda, assessments, and progress
reports developed to assist in professional review activities;

(IV)

Assessments and progress reports to assist in professional review activities,
including reports and assessments developed by independent consultants in
connection with professional review activities; and

(V)

Recordings or transcripts of proceedings, minutes, formal recommendations,
decisions, exhibits, and other similar items or documents related to
professional review activities and typically constituting the records of
administrative proceedings.

Colo. Rev. Stat. § 12-30-202(8)(a). Plaintiffs argue that the exhibits they seeks to introduce at trial
are “original source documents” not subject to the statutory privilege. See Colo. Rev. Stat. § 12-30204. Such documents are defined in the statute as: “any separate written document created or
prepared in the ordinary course of business that is not otherwise privileged or confidential, including
electronic records and electronic communications, containing factual information relating solely to
the individual patient in interest in a civil action that is not created or prepared as part of the
professional review activities or created by or at the direction of a professional review committee.”
Colo. Rev. Stat. § 12-30-202(6.5).
The Court finds the emails and attachment (including any information eventually submitted
to the Colorado Medical Board) that were exchanged between Defendant and Dr. Richard Stewart
are “electronic communications ... not created or prepared as part of the professional review
activities or created by or at the direction of a professional review committee.” See ECF 251-1. The
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relevant communications on November 17, 2012 reflect information exchanged before Defendant
filed his complaint with the Colorado Medical Board and, thus, they cannot constitute a
“[c]omplaint, response, or correspondence related to the complaint or response” as described in Colo
Rev. Stat. § 12-30-202(8)(a). There is no indication that the later communications reflected in
Plaintiffs’ exhibit (November 28, 2012, December 2, 2012, December 13-14, 2012, and January 7,
2013) refer or relate to any activities by or for the Colorado Medical Board, see ECF 251-1; thus,
they are not protected.
The Court concludes that, although the statutory privilege would apply in this case to any
document constituting “records” under the CPRA, no such records are to be introduced by the
Plaintiffs. Accordingly, Defendant’s “Request for Forthwith Ruling Concerning Application of
C.R.S. § 12-30-204(11)(a)” [filed November 18, 2019; ECF 243] is granted in part and denied in
part as set forth herein.
Entered and dated at Denver, Colorado, this 26th day of November, 2019.
BY THE COURT:

Michael E. Hegarty
United States Magistrate Judge

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