Napier et al v. Florida Department of Corrections et al

Filing 95

ORDER re 84 Memorandum filed by Florida Department of Corrections, Prison Health Services, Inc., 83 Memorandum in Support filed by MHM Correctional Services, Inc. Signed by Magistrate Judge John J. O'Sullivan on 3/24/2011. (tro)

Napier et al v. Florida Department of Corrections et al

Doc. 95

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 09-61158-SEITZ/O'SULLIVAN ALBERT NAPIER and JANE NAPIER, as the Co-Personal Representatives of the ESTATE OF ALESHIA NAPIER, on behalf of her survivors, Albert and Jane Napier, Plaintiffs, v. FLORIDA DEPARTMENT OF CORRECTIONS, an Agency of the State of Florida, PRISON HEALTH SERVICES, INC., a Tennessee Corporation, registered in and doing business in the State of Florida, MHM CORRECTIONAL SERVICES, INC. a Virginia Corporation, registered in and doing business in the State of Florida, and ALEJANDRO URRUTIA, Defendants. _______________________________ ) ORDER This matter is before the Court on the Memorandum of Law in Support of Objection to Discovery Request Seeking Privileged Documents (DE # 83, 3/4/11) and the Defendants Prison Health Services, Inc. and the Florida Department of Corrections' Memorandum Regarding Mortality Review (DE # 84, 3/4/11). Having reviewed the applicable filings and law, it is ORDERED AND ADJUDGED that the subject document shall be disclosed to the plaintiffs. "Federal law recognizes no privilege of peer review in the context of a case involving the death of a prisoner." Agster v. Maricopa County, 422 F.3d 836, 837 (9th Cir. 2005). Also, "there is no Eleventh Circuit or Supreme Court precedent recognizing a federal medical peer review privilege". Jenkins v. Dekalb County, 242 F.R.D. 652, 658-59 (N.D. GA 2007). Moreover, "[i]t appears that every United States Court of Appeals that has addressed the issue of whether there is a federal medical peer review privilege has rejected the claim." Id. at 659. In the 2007 Eleventh Circuit Court case of Adkins v. Christie, 488 F.3d 1324 (11th Cir. 2007), the

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Court declined "to recognize a privilege for documents relating to medical peer review proceedings in federal discrimination cases." Id, at 1326. In Adkins, the Court found that "[t]he `public good' concerns advanced by the defendants may capably be served in the absence of a medical peer review privilege." Id, at 1329-30. In addition, the subject document does not qualify as work product because it was prepared in the ordinary course of business. There can be no attorney client privilege claim because there is no evidence that the document was made for the purpose of obtaining legal advice. DONE AND ORDERED in Miami, Florida this 24th day of March, 2011.

________________________________ JOHN J. O'SULLIVAN UNITED STATES MAGISTRATE JUDGE

Copies furnished to: The Honorable Judge Seitz All Counsel of Record