Pacific Radiation Oncology, LLC et al v. The Queen's Medical Center et al

Filing 462

ORDER GRANTING MOTION TO INTERVENE BY 14 PATIENTS ON THEIR OWN BEHALF AND ALTERNATIVELY AS CLASS REPRESENTATIVES FOR THE LIMITED PURPOSE OF FILING THE ATTACHED BRIEF ON THE ISSUE OF THE APPEAL FROM THE MAGISTRATE JUDGE'S ORDER REGARDING THE DISC LOSURE OF CONFIDENTIAL MEDICAL RECORDS re 403 - Signed by JUDGE LESLIE E. KOBAYASHI on 12/24/2014. "This Court ORDERS the Patients to file their memorandum regarding Plaintiffs' October 17, 2014 appeal from the magistrate judge's discovery order, dated October 7, 2014 - in the form attached to the Motion to Intervene - by January 6, 2015." "The Court orders Defendants to file a memorandum responding to the Patients' memorandum b y January 16, 2015. In particular, Defendants shall address the Patients' argument that de-identification of their medical records is not sufficient to protect their confidential medical information because of the prior disclosure of the List. Plaintiffs may file an optional response to the Patients' memorandum by January 16, 2015, and the Patients may file their optional reply by January 21, 2015. The Court will take Plaintiffs appeal under advisement thereafter." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
PACIFIC RADIATION ONCOLOGY,
LLC, a Hawai`i Limited
Liability Corporation, et
al.,

)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
THE QUEEN’S MEDICAL CENTER, a )
)
Hawai`i Non-Profit
)
Corporation, et al.,
)
)
Defendants.
_____________________________ )

CIVIL NO. 12-00064 LEK-KSC

ORDER GRANTING MOTION TO INTERVENE BY 14 PATIENTS
ON THEIR OWN BEHALF AND ALTERNATIVELY AS CLASS REPRESENTATIVES
FOR THE LIMITED PURPOSE OF FILING THE ATTACHED BRIEF
ON THE ISSUE OF THE APPEAL FROM THE MAGISTRATE JUDGE’S
ORDER REGARDING THE DISCLOSURE OF CONFIDENTIAL MEDICAL RECORDS
Before the Court is the Motion to Intervene by 14
Patients on Their Own Behalf and Alternatively as Class
Representatives for the Limited Purpose of Filing the Attached
Brief on the Issue of the Appeal from the Magistrate Judge’s
Order Regarding the Disclosure of Confidential Medical Records
(“Motion to Intervene”), filed on November 6, 2014.
403.]

[Dkt. no.

On November 20, 2014, Defendants/Counter Claimants Queen’s

Medical Center, a Hawai`i Non-Profit Corporation (“Queen’s”),
Queen’s Development Corp., a Hawai`i for Profit Corporation,
Noreen D.S.W. Mokuau, William G. Obana, M.D., Arthur A. Ushijima,
Mark H. Yamakawa, Paula Yoshioka, Sharlene K. Tsuda,

Richard C. Keene, Clinton Yee, Naleen N. Andrade, M.D.,
Ernest H. Fukeda, Jr., Robb Ohtani, M.D., Neil J. Hannahs,
Christine M. Gayagas, Peter K. Hanashiro, Robert K. Nobriga,
Eric K. Yeaman, Julia C. Wo, Caroline Ward Oda, Peter Halford,
M.D., Barry Weinman, each individually and in his or her capacity
as Officer and Trustee of Queen’s Medical Center (all
collectively “Defendants”) filed their memorandum in opposition;
and Plaintiffs/Counterclaim Defendants Pacific Radiation
Oncology, LLC, a Hawai`i Limited Liability Corporation, PRO
Associates, LLC, a Hawai`i Limited Liability Corporation,
John Lederer, M.D., Laeton Pang, M.D., Eva Bieniek, M.D.,
Vincent Brown, M.D., Paul DeMare, M.D., and Thanh Huynh, M.D.
(collectively “Plaintiffs”), filed a memorandum in support of the
Motion to Intervene.

[Dkt. nos. 425, 426.]

The proposed

intervenors filed their reply on December 4, 2014.

[Dkt. no.

444.]
The Court finds this matter suitable for disposition
without a hearing pursuant to Rule LR7.2(d) of the Local Rules of
Practice of the United States District Court for the District of
Hawai`i (“Local Rules”).

After careful consideration of the

motion, supporting and opposing memoranda, and the relevant legal
authority, the Motion to Intervene is HEREBY GRANTED for the
reasons set forth below.

2

BACKGROUND
The parties and this Court are familiar with the
factual and procedural background of this case, and this Court
will only repeat the events that are relevant to the Motion to
Intervene.
As noted in this Court’s September 18, 2014 Amended
Order Granting in Part and Denying in Part Plaintiffs’ Motion for
Temporary Restraining Order or in the Alternative for Preliminary
Injunction (“9/18/14 TRO Order”):
Randy Talavera, the manager of Queen’s
radiation therapy department reviewed the records
of 133 patients “who had a consultation with a PRO
physician but then did show up at [Queen’s] again
for radiation therapy during the time frame
January 2011 through June of 2011.” A list of 132
such patients was compiled showing each patient’s
name, patient number, and the name of his or her
physician (“the List”). Defendants’ counsel
attached the List as an exhibit to: 1) a subpoena
to [The Cancer Center of Hawaii’s] custodian of
records, signed by the Clerk of Court on
July 10, 2014 (“the Subpoena”); and 2) Defendants’
Second Request for Production of Documents and
Things to Plaintiffs Pacific Radiation Oncology,
LLC and PRO Associates, LLC, dated July 9, 2013
(“the RPD”). On July 10, 2014, Defendants’
counsel publicly filed the complete, unredacted
Subpoena with its return of service. Defendants’
counsel contacted the magistrate judge through an
email on July 12, 2014 and stated that they had
inadvertently filed the unredacted List as an
exhibit to the Subpoena. Counsel stated that, as
soon as possible, Defendants would file an ex
parte motion to delete the exhibit from the public
record, but counsel asked the magistrate judge if
the district court could remove the Subpoena from
the publicly available website and allow
Defendants to replace the exhibit with a redacted
version, pending the filing and ruling on the ex
3

parte motion. On July 14, 2014, the Clerk’s
Office restricted access to the Subpoena, and
Defendants filed their ex parte motion to seal the
exhibit. The magistrate judge granted the ex
parte motion on July 15, 2014.
2014 WL 4682688, at *4 (some alterations in original) (footnotes
and citations omitted).
In the 9/18/14 TRO Order, this Court ruled that it
could not address Plaintiffs’ argument that the review and
compilation of patient records and the disclosure of the List
were improper in the context of a TRO because the Amended
Complaint for Declaratory and Injunctive Relief and for Damages,
[filed 2/23/12 (dkt. no. 44),] does not contain a claim alleging
improper review and use of confidential patient information.
2014 WL 4682688, at *6.

This Court, however, found that the

public disclosure of the List was a violation of the Amended
Stipulated Protective Order, [filed 11/8/13 (dkt. no. 134),] and
imposed sanctions on Defendants.

Id. at *9-10.

To the extent

that Plaintiffs sought to prevent Defendants from obtaining or
using patient information - which Defendants contended was
relevant in this case - in a manner that violates the Health
Insurance Portability and Accountability Act of 1996, 42 U.S.C.
§ 1320d, et seq., its implementing regulations, and/or the
Hawai`i State Constitution, the Court directed the parties to
schedule a discovery conference with the magistrate judge to

4

address these issues through the normal discovery process.

2014

WL 4682688, at *11.
The magistrate judge held a status conference on
September 26, 2014, and issued his Order Regarding Discovery
Issues on October 7, 2014 (“10/7/14 Discovery Order”).
nos. 355 (minutes), 363.]

[Dkt.

The magistrate judge ruled, inter

alia, that the protected health information at issue in this case
“is discoverable if de-identified.

Accordingly, the 132 patient

medical records shall be de-identified.

Upon de-identification,

the medical records will be discoverable and shall be produced.”
[10/7/14 Discovery Order at 5.]
On October 17, 2014, Plaintiffs filed a statement of
appeal from the portion of the 10/7/14 Discovery Order “denying
Plaintiffs’ motion to enjoin Defendants from making any further
disclosure and use in this litigation of the protected health
information of 133 of Plaintiffs’ patients identified by
[Queen’s] through a review of its medical records.”

[Dkt. no.

380 at 1.]
“John and Mary Does No. 1 through 14” (“the
Patients”),1 on behalf of “themselves and alternatively on behalf
of the class of 133 patients who are similarly situated,” seek to
intervene in this action for the limited purpose of “address[ing]

1

The Patients represent that there are now five more
patients who seek to intervene. [Reply at 1 n.1, Decl. of Jerry
Hiatt at ¶ 1.]
5

issues of confidentiality pending before the Court” in
Plaintiffs’ appeal from the 10/7/14 Discovery Order.
Intervene at 2.]
R. Civ. P. 24(b).

[Motion to

The Patients seek to intervene pursuant to Fed.
[Id.]
STANDARD

Rule 24(b) governs permissive intervention, and it
states, in pertinent part:
(1) In General. On timely motion, the court may
permit anyone to intervene who:
(A) is given a conditional right to intervene
by a federal statute; or
(B) has a claim or defense that shares with
the main action a common question of law or
fact.
“Generally, permissive intervention under Rule 24(b) requires
(1) an independent ground for jurisdiction; (2) a timely motion;
and (3) a common question of law and fact between the movant’s
claim or defense and the main action.”

Blum v. Merrill Lynch

Pierce Fenner & Smith Inc., 712 F.3d 1349, 1353 (9th Cir. 2013)
(citation and internal quotation marks omitted).
DISCUSSION
I.

Scope of the Order
Although the Patients seek permissive intervention in

the Motion to Intervene, in their reply, they also argue that
intervention is warranted pursuant to Rule 24(a) - which governs
intervention of right - because Plaintiffs do not adequately
6

represent the Patients’ interests in this matter.

[Reply at 4.]

Local Rule 7.4 states: “Any argument raised for the first time in
the reply shall be disregarded.”

This Court therefore will not

consider the Patients’ Rule 24(a) argument, raised for the first
time in their reply.
As stated, supra note 1, the reply also indicates that,
since the filing of the Motion to Intervene, the Patients’
counsel has been retained by five other similarly situated
persons who wish to intervene.

The Court will also consider the

Motion to Intervene as to those five persons because it was not
possible for the Patients’ counsel to seek intervention on their
behalf at the time counsel filed the Motion to Intervene.

All

subsequent references to “the Patients” in this Order refer to
all nineteen persons seeking intervention.
This Court now turns to the issue of whether the
Patients satisfy the requirements for intervention pursuant to
Rule 24(b), as set forth in Blum.
II.

Blum Requirements
A.

Independent Ground for Jurisdiction
To the extent that the Patients seek to protect their

interests in the personal medical information at issue in this
case, their arguments are similar to those raised in the writ of
mandamus proceedings before the Hawai`i Supreme Court in Cohan v.
Ayabe, 132 Hawai`i 408, 322 P.3d 948 (2014), Naipo v. Border, 125
7

Hawai`i 31, 251 P.3d 594 (2011) (per curiam), and Brende v. Hara,
113 Hawai`i 424, 153 P.3d 1109 (2007) (per curiam).

This

district court has recognized that “[t]he writ of mandamus no
longer exists in federal court procedure.”

Yellen v. U.S. Postal

Serv., Civil No. 12–00519 SOM–KSC, 2012 WL 5386903, at *2 (D.
Hawai`i Oct. 31, 2012) (citing Finley v. Chandler, 377 F.2d 548
(9th Cir. 1967); Fed. R. Civ. P. 81(b) (“The writs of scire
facias and mandamus are abolished.

Relief previously available

through them may be obtained by appropriate action or motion
under these rules.”)).

However, “courts may issue writs

necessary or appropriate in aid of their respective
jurisdictions, including writs in the nature of mandamus,”
pursuant to 28 U.S.C. § 1651.

Id. (citing Finley, 377 F.2d at

548).
This Court finds that the resolution of the issues that
the Patients raise will aid this Court in the exercise of
jurisdiction over Plaintiffs’ and Defendants’ claims and defenses
in this action.

This Court therefore finds that there is an

independent ground for jurisdiction, pursuant to § 1651, over the
issues that the Patients raise in the Motion to Intervene.
B.

Timeliness of the Patients’ Motion
“Timeliness is determined with reference to three

factors: (1) the stage of the proceeding at which an applicant
seeks to intervene; (2) the prejudice to other parties; and

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(3) the reason for and length of the delay.”

Peruta v. Cnty. of

San Diego, 771 F.3d 570, 572 (9th Cir. 2014) (citations and
internal quotation marks omitted).
The Patients acknowledge that they “have no interest in
the outcome of the litigation,” [Mem. in Supp. of Motion to
Intervene at 2,] and they only seek to intervene as to
Plaintiffs’ appeal of the 10/7/14 Discovery Order.

The Patients

filed their motion on November 6, 2014, less than a month after
Plaintiffs filed their appeal and before the briefing on the
appeal was complete.

See Minutes, filed 10/22/14 (dkt. no. 385)

(issuing briefing deadlines).

This Court therefore finds that

the first timeliness factor weighs in favor of intervention.
This Court also finds that the second factor weighs in
favor of intervention because Defendants, the only party that
opposes intervention, has not established that they will be
prejudiced if this Court grants the Motion to Intervene.
As to the third factor, the Ninth Circuit has stated
that, “[u]nder our longstanding precedent, [a] party seeking to
intervene must act as soon as he knows or has reason to know that
his interests might be adversely affected by the outcome of the
litigation.”

Peruta, 771 F.3d at 572 (some alterations in

Peruta) (citations and internal quotation marks omitted).

It is

not clear from the Motion to Intervene when the Patients knew or
had reason to know that their interests may be adversely affected

9

by this litigation.

However, in the 9/18/14 TRO Order, this

Court noted that Plaintiffs’ counsel contacted persons on the
List to inform them about the public disclosure.
4682688, at *10.

See 2014 WL

Thus, by July 2014, the Patients knew or had

reason to know that this action may adversely affect their
interests.

The Patients filed the Motion to Intervene

approximately four months later.

Arguably, the Patients did not

move to intervene as soon as they knew or had reason to know that
their interests may be effected.

However, the delay was not

significant, and the other two timeliness factors weigh strongly
in favor of intervention.

This Court therefore finds that the

Patients timely filed their Motion to Intervene.
C.

Common Questions of Law and Fact
Defendants have argued that the medical records of the

patients on the List are relevant to their defenses to
Plaintiffs’ claims and to their claims in the Counterclaim,
[filed 2/25/14 (dkt. no 175–1)].

Plaintiffs have opposed

Defendants’ position because, inter alia, the patients’ rights to
the confidentiality of their health information would be violated
by allowing Defendants to use the patients’ health information in
this case.

Plaintiffs’ arguments are similar to the arguments

that the Patients seek to raise, but the Court recognizes that
the Patients have important interests in their health information
that are distinct from Plaintiffs’ interest.

10

Cf. 9/18/14 TRO

Order,

2014 WL 4682688, at *6 (“The patients on the List,

however, are not parties to this action, nor have any of them
come forward to join in Plaintiffs’ Motion.

This Court notes

that, in each of the Hawai`i Supreme Court’s mandamus rulings
that Plaintiffs cite, it was the patient who was seeking a ruling
protecting his or her medical information.”).

This Court

therefore finds that there are common questions of law and fact
between the Patients’ arguments and the claims and defenses in
the main action.
D.

Summary
This Court has found that the Patients’ Motion to

Intervene satisfies all of the Blum requirements.

This Court

therefore FINDS that the Patients’ intervention in Plaintiffs’
appeal of the 10/7/14 Discovery Order is permissible under Rule
24(b).

Further, this Court FINDS that their intervention is

appropriate and will assist this Court in resolving the issues in
Plaintiffs’ appeal.
CONCLUSION
On the basis of the foregoing, the Motion to Intervene
by 14 Patients on Their Own Behalf and Alternatively as Class
Representatives for the Limited Purpose of Filing the Attached
Brief on the Issue of the Appeal from the Magistrate Judge’s
Order Regarding the Disclosure of Confidential Medical Records,
filed November 6, 2014, is HEREBY GRANTED as to the fourteen
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patients described in the motion and as to the five described in
the reply.

This Court ORDERS the Patients to file their

memorandum regarding Plaintiffs’ October 17, 2014 appeal from the
magistrate judge’s discovery order, dated October 7, 2014 - in
the form attached to the Motion to Intervene - by
January 6, 2015.
The Court orders Defendants to file a memorandum
responding to the Patients’ memorandum by January 16, 2015.

In

particular, Defendants shall address the Patients’ argument that
de-identification of their medical records is not sufficient to
protect their confidential medical information because of the
prior disclosure of the List.

Plaintiffs may file an optional

response to the Patients’ memorandum by January 16, 2015, and the
Patients may file their optional reply by January 21, 2015.

The

Court will take Plaintiffs’ appeal under advisement thereafter.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, December 24, 2014.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

PACIFIC RADIATION ONCOLOGY, LLC, ET AL. VS. THE QUEEN’S MEDICAL
CENTER, ET AL.; CIVIL 12-00064 LEK-KSC; ORDER GRANTING MOTION TO
INTERVENE BY 14 PATIENTS
12