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

Filing 724

ORDER DENYING DEFENDANTS' MOTION FOR RECONSIDERATION OF [693-1] ORDER RULING ON REMAINING ISSUES IN PENDING APPEALS FROM THE MAGISTRATE JUDGE'S ORDERS reg 702 Motion for Reconsideration. Signed by JUDGE LESLIE E. KOBAYASHI on 01/1 0/2017. (eps, )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).

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 DENYING DEFENDANTS’ MOTION FOR RECONSIDERATION
OF [693-1] ORDER RULING ON REMAINING ISSUES IN
PENDING APPEALS FROM THE MAGISTRATE JUDGE’S ORDERS
Before the Court is Defendants/Counter Claimants The
Queen’s Medical Center (“Queen’s” or “QMC”) and Queen’s
Development Corporation’s (collectively “Defendants”) Motion for
Reconsideration of [693-1] Order Ruling on Remaining Issues in
Pending Appeals from the Magistrate Judge’s Orders (“Motion for
Reconsideration”), filed on December 7, 2016.

[Dkt. no. 702.]

On December 21, 2016, Plaintiffs Pacific Radiation Oncology, LLC,
a Hawai`i Limited Liability Corporation (“PRO LLC”); 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.
(all collectively “Plaintiffs”) filed their memorandum in
opposition; Counterclaim Defendants Drs. Lederer, Pang, Brown,

DeMare, and Huynh (“Counterclaim Defendants”) filed their
memorandum in opposition; and the Patient-Intervenors filed their
memorandum in opposition.

[Dkt. nos. 704, 705, 706.]

On

January 4, 2017, Defendants filed one reply to Plaintiffs’
memorandum in opposition and the Counterclaim Defendants’
memorandum in opposition, and another reply to the PatientIntervenors’ memorandum in opposition.

[Dkt. nos. 713, 714.]

The Court has considered this matter as a non-hearing
motion pursuant to Rule LR7.2(e) 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, Defendants’ Motion for Reconsideration is HEREBY
DENIED because, as set forth more fully below, the Hawai`i
Supreme Court has ruled the medical information cannot be used or
compelled to be produced, Defendants have not shown any
reasonable basis to believe that other patients diverted from
Queen’s exist, and Defendants merely to seek to rehash their
objections to this Court’s prior ruling.
DISCUSSION
The relevant background is set forth in the orders
cited in this Court’s November 23, 2016 Order Ruling on Remaining
Issues in Pending Appeals from the Magistrate Judge’s Orders

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(“11/23/16 Order”).

[Dkt. no. 693.1]

The legal standards

applicable to a motion for reconsideration are set forth in this
Court’s January 21, 2015 Order Denying Plaintiffs’ Motion for
Reconsideration of [Dkt. 431] Order Granting in Part and Denying
in Part Plaintiffs’ Motion for Summary Judgment on the
Counterclaim, or in the Alternative, to Sever Defendants’
Counterclaim [Dkt No. 175-1] Filed February 25, 2014 (“1/21/15
Reconsideration Order”).

[Dkt. no. 485.2]

The instant Motion for Reconsideration argues that the
11/23/16 Order is incomplete because the order does not address
the following discovery which the magistrate judge ordered the
production of in the 12/11/14 Discovery Order:3 1) documents

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The 11/23/16 Order is also available at 2016 WL 6996982.

2

The 1/21/15 Reconsideration Order is also available at
2015 WL 274131.
3

The 12/11/14 Discovery Order is the magistrate judge’s
Order: (1) Granting in Part and Denying in Part Defendants’
Motion to Compel Discovery; (2) Denying Defendants’ Motion for an
Order Compelling Production of Documents by Non-parties Pursuant
to Subpoenas; and (3) Granting Defendants’ Motion to Amend the
Amended Rule 16 Scheduling Order Filed September 15, 2014.
[Filed 12/11/14, dkt. no. 449.] Plaintiffs filed an appeal from
the 12/11/14 Discovery Order on December 22, 2014, and Interested
Party The Cancer Center of Hawaii, LLC (“TCCH”) filed its appeal
on December 24, 2014 (collectively, “12/11/14 Discovery
Appeals”). [Dkt. nos. 460, 463.] On April 20, 2015, this Court
issued its Order Regarding Plaintiffs’ Appeal and the Cancer
Center of Hawaii, LLC’s Appeal from the Magistrate Judge’s
December 11, 2014 Order (“12/11/14 Discovery Appeals Order”).
2015 WL 1778364.
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regarding the List Patients4 other than their medical records;
and 2) documents regarding patients that were not among the List
Patients (“the Non-List Patients”).

Defendants also argue that

this Court should reconsider the 11/23/16 Order because,
according to Defendants, “the mere possibility of reidentification cannot bar discovery of documents that go to the
heart of QMC’s defenses and counterclaims.”

[Mem. in Supp. of

Motion for Reconsideration at 12-13.]
First, Defendants’ assertion that the Hawai`i Supreme
Court’s Response Opinion5 “was limited to the discovery of
non-party List Patients’ de-identified medical records in
litigation,” [id. at 10,] is not supported by and misstates the
Response Opinion.

The certified questions – as posed by this

Court and as reformulated by the Hawai`i Supreme Court – refer to
confidential medical records.
15-16, 375 P.3d at 1253-54.

Response Opinion, 138 Hawai`i at

In addition, the supreme court

4

The “List Patients” are 132 patients “who had a
consultation with a PRO physician but then did [not] show up at
[Queen’s] again for radiation therapy during the time frame
January 2011 through June of 2011.” Order Reserving Ruling on
Plaintiffs’ Appeal from Magistrate Judge’s Order Regarding
Discovery Issues [Dkt. 363], 2015 WL 419654, at *1 & n.5 (D.
Hawai`i Jan. 30, 2015) (“10/7/14 Discovery Appeal Order”)
(alterations in original).
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The “Response Opinion” is the Hawai`i Supreme Court’s
June 13, 2016 opinion responding to the certified questions from
this Court. 138 Hawai`i 14, 375 P.3d 1252 (2016),
reconsideration denied, 138 Hawai`i 50, 375 P.3d 1288 (July 1,
2016).
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stated:
We hold that, pursuant to article I, section 6 of
the Hawai`i Constitution, and under the facts of
this case, the parties cannot use, or be compelled
to produce, confidential patient medical records
in litigation where the patient is not a party,
where no compelling state interest has been shown.
Id. at 20, 375 P.3d at 1258 (emphasis added).
However, reading the Response Opinion as a whole, it is
clear that the legal principles the supreme court articulated
protect patients’ medical information, not just their actual
medical records.

In particular, the supreme court stated:

our express holding in Cohan [v. Ayabe] was, “To
allow [a party’s medical] information to be used
outside the litigation, regardless of whether it
is de-identified or not, would reach beyond what
the Hawai`i Constitution permits in the absence of
a showing of a compelling state interest.” 132
Hawai`i [408,] 419, 322 P.3d [948,] 959 [(2014)].
Extending Cohan to cases in which parties seek to
use and produce the medical records of nonparties, we hold that to allow an individual’s
medical information, even if de-identified, to be
used in litigation to which that individual is not
a party, would reach beyond what the Hawai`i
Constitution permits in the absence of a showing
of a compelling state interest. . . .
Id. at 22, 375 P.3d at 1260 (some alterations in Response
Opinion) (emphases added).

The Hawai`i Supreme Court held that

the parties’ disputes in the instant case do not present a
compelling interest.

Id.

This Court therefore rejects Defendants’ argument that
the Response Opinion is limited to patient medical records.

To

the extent that the Motion for Reconsideration argues this Court
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should only have set aside the portion of the magistrate judge’s
orders requiring Plaintiffs and – where necessary TCCH – to
produce the List Patients’ medical records, the Motion for
Reconsideration is DENIED.
The Motion for Reconsideration also argues that the
Response Opinion does not prohibit the production of responsive
documents that were not specific to any specific patients,
including forms, policies and procedures, and communications
describing business practices.
Reconsideration at 10-11.

See Mem. in Supp. of Motion for

Defendants may have requested such

general documents from Plaintiff and/or TCCH, but this Court does
not construe the discovery requests that remained in dispute
after the 12/11/14 Discovery Appeals Order (“Remaining Requests”)
as requesting such documents.

See 11/23/16 Order, 2016 WL

6996982, at *2-3 (quoting the Remaining Requests).

This Court

therefore DENIES the Motion for Reconsideration as to Defendants’
argument regarding general documents that are not patientspecific.
As to Defendants’ argument that the 11/23/16 Order is
incomplete because it does not address the production of deidentified documents related to the Non-List Patients, it is
questionable whether such an issue is even properly before this
Court at this time.

Cf. Wereb v. Maui Cty., 830 F. Supp. 2d

1026, 1031 (D. Hawai`i 2011) (“[R]econsideration may not be based

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on evidence and legal arguments that a movant could have
presented at the time of the challenged decision.” (some
citations omitted) (citing Kona Enter., Inc. v. Estate of Bishop,
229 F.3d 877, 890 (9th Cir. 2000))).

In this Court’s view, until

the Motion for Reconsideration, the focus of the pending
discovery disputes was on the List Patients’ medical information.
For example, the second certified question – as posed and as
reformulated – specifically addressed the inadvertent publication
of patient medical information, i.e. the List.

See Response

Opinion, 138 Hawai`i at 15-16, 375 P.3d at 1253-54.

Further,

Defendants’ September 6, 2016 supplemental memorandum addressing
how the Response Opinion affected the remaining issues in the
pending discovery appeals (“Supplemental Memorandum”) did not
raise the issue of the Non-List Patients’ medical information.
[Dkt. no. 628.]

Although this Court could deny this portion of

the Motion for Reconsideration solely on the ground that it
improperly raises a new argument, this Court will address it on
the merits.
The Non-List Patients are only relevant to the claims
and defenses in this case if they – like the List Patients – may
have been diverted away from Queen’s after an initial
consultation and/or treatment at Queen’s to a TCCH facility for
subsequent care that they could have received at Queen’s.

If

such patients exist, Defendants create a list of such patients –

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using de-identified information – because they were all seen at
Queen’s at some point.

However, Defendants have not shown that

there is a reasonable basis to believe that such patients exist
in the first instance, or that Plaintiffs and/or TCCH have
documents about such patients that are responsive to the
Remaining Requests.

See Fed. R. Civ. P. 26(g)(1)(B)(iii)

(stating that, inter alia, every discovery request must be signed
by at least one attorney of record, certifying that the discovery
request is not “unreasonable . . . considering the needs of the
case, prior discovery in the case, the amount in controversy, and
the importance of the issues at stake in the action”).
Thus, to the extent that the Remaining Requests sought
de-identified medical information about the purported Non-List
Patients, Defendants are not entitled to such discovery because –
although information regarding such patients would be in
Defendants’ possession – Defendants have not established a
reasonable basis for their discovery requests about such
patients.

This Court therefore reaffirms its ruling setting

aside the portions of the 12/11/14 Discovery Order requiring
Plaintiffs and TCCH to respond to the Remaining Requests, in
their entirety.

Defendants’ Motion for Reconsideration is DENIED

as to their argument regarding the purported Non-List Patients.
Finally, this Court rejects Defendants’ argument
regarding whether de-identification of the List Patients’ medical

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information is possible, which would trigger HIPPAA preemption.6
Defendants essentially disagree with this Court’s analysis of the
de-identification/preemption issues in the 11/23/16 Order, and
this alone does not warrant reconsideration of the Court’s order.
See Barnes v. Sea Hawaii Rafting, LLC, 16 F. Supp. 3d 1171, 1183
(D. Hawai`i 2014) (“Mere disagreement with a previous order is an
insufficient basis for reconsideration.” (citation omitted)).
Further, to the extent that Defendants attempt to suggest other
de-identification proposals, those are new arguments which
Defendants could have raised before this Court issued the
11/23/16 Order, and those arguments are not properly before this
Court at this stage.

Defendants made a strategic decision to

request certain information in the de-identification proposal
included within their Supplemental Memorandum.
can be considered at this point.

No new strategies

Defendants’ Motion for

Reconsideration is therefore DENIED as to their challenge to this
Court’s de-identification/preemption analysis.
CONCLUSION
On the basis of the foregoing, Defendants’ Motion for
Reconsideration of [693-1] Order Ruling on Remaining Issues in
Pending Appeals from the Magistrate Judge’s Orders, filed
December 7, 2016, is HEREBY DENIED.

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HIPAA is the Health Insurance Portability and
Accountability Act of 1996, 42 U.S.C. § 1320d, et seq.
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IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, January 10, 2017.

/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 DENYING DEFENDANTS’
MOTION FOR RECONSIDERATION OF [693-1] ORDER RULING ON REMAINING
ISSUES IN PENDING APPEALS FROM THE MAGISTRATE JUDGE’S ORDERS

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