Doe v. Kootenai Hospital District, et al.
MEMORANDUM DECISION AND ORDER. IT IS HEREBY ORDERED that Idaho's peer review privilege does not apply to the claims asserted in this case. Plaintiff's Motion to Compel (Dkt. 22 ) is GRANTED in this respect. Defendants' Motion for Pr otective Order (Dkt. 28 ) is GRANTED in part, and DENIED in part. Any supplemental document production shall take place on or before October 15, 2021, unless otherwise agreed upon by the parties. To the extent otherwise responsive information has been, or will be, withheld from production on the basis of any applicable privilege, the parties shall produce a privilege log addressing that withheld information. Signed by US Magistrate Judge Raymond Edward Patricco, Jr. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (kt)
UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
JANE DOE, on behalf of herself and her minor
daughter: K.N.H. (DOB 2010),
Case No.: 2:20-cv-00423-REP
MEMORANDUM DECISION AND
KOOTENAI HOSPITAL DISTRICT, a county
hospital district, d/b/a KOOTENAI HEALTH and
as KOOTENAI BEHAVIORAL HEALTH;
LEONARD FITZSIMMONS, in his individual and
employee capacity; and JOHN DOES 1
THROUGH V and CORPORATE DOES 1
PLAINTIFF’S MOTION TO
DEFENDANTS’ MOTION FOR
Before the Court are (i) Plaintiff’s Motion to Compel (Dkt. 22) and (ii) Defendants’
Motion for Protective Order (Dkt. 28). All parties have consented to the exercise of jurisdiction
by a United States Magistrate Judge. (Dkt. 9). Because Idaho’s peer review privilege does not
apply to the as-asserted claims, Plaintiff’s Motion to Compel is granted. However, certain of
Plaintiff’s discovery requests remain overbroad and, to this extent only, Defendants’ Motion for
Protective Order is granted.
On November 7, 2019, eight-year-old KNH was admitted to Defendant Kootenai
Behavioral Health (“Kootenai Behavioral”) for psychiatric evaluation. According to Plaintiff
(KNH’s mother), Kootenai Behavioral repeatedly placed KNH in locked seclusion and on
several occasions subjected her to physical constraints. On November 14, 2019, while KNH was
locked in seclusion due to behavioral concerns, Defendant Leonard Fitzsimmons (a Kootenai
Behavioral employee) entered KNH’s room, cornered her, and forcibly removed a crayon from
MEMORANDUM DECISION AND ORDER - 1
her right hand. An x-ray two days later revealed a fracture in KNH’s wrist. This action relates
to the circumstances surrounding that incident and KNH’s injury.
Plaintiff asserts the following claims against Defendants: (i) child abuse; (ii) negligence
and gross negligence (medical malpractice); (iii) violation of 42 U.S.C. § 1983 and denial of
substantive and procedural due process; (iv) Monell liability against Kootenai Behavioral; (v)
intentional and/or negligent infliction of emotional distress; and (vi) grossly negligent hiring,
training, supervision, and/or retention. To support these claims, Plaintiff seeks various internal
documents from Defendants via discovery. These documents relate to KNH’s brief
hospitalization and include medical records, incident reports, personnel files, treatment logs,
interviews, and hospital policy. Defendants object to the production of such information based
on Idaho’s peer review privilege, codified at Idaho Code § 39-1392. Defendants separately
contend that some of Plaintiff’s requests are not proportional to the needs of the case in violation
of Federal Rule of Civil Procedure 26. These issues frame the parties’ pending motions.
II. LEGAL STANDARD
Under Rule 26(b)(1), a party “may obtain discovery regarding any nonprivileged matter
that is relevant to any party’s claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in controversy, the
parties’ relative access to relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1). Relevant information includes “any
matter that bears on, or that reasonably could lead to other matter that could bear on, any issue
that is or may be in the case.” Oppenheimer Fun Inc. v. Sanders, 437 U.S. 340, 351 (1978).
A party may move for an order compelling production by a party who has failed to
answer an interrogatory or produce requested documents. Fed. R. Civ. P. 37(a)(3). While the
MEMORANDUM DECISION AND ORDER - 2
moving party must make a threshold showing of relevance, the non-moving party has the burden
of showing why the discovery request is irrelevant, unduly burdensome, disproportional to the
needs of the case, or otherwise improper. Nugget Hydroelectric, L.P. v. Pac. Gas & Elec. Co.,
981 F.2d 429, 438-39 (9th Cir. 1992); Superior Commc’ns v. Earhugger, Inc., 257 F.R.D. 215,
217, (C.D. Cal. 2009).
Idaho’s Peer Review Privilege Does Not Apply
Defendants argue that Idaho Code § 39-1392’s protections should apply and protect all
peer review information from disclosure in discovery. Defs.’ Opp. to MTC at 4-8 (Dkt. 27).
Section 1392 is a state law that shields from discovery the proceedings and records involved in a
medical peer review evaluation. It provides in relevant part:
[A]ll peer review records shall be confidential and privileged, and shall not be
directly or indirectly subject to subpoena or discovery proceedings or be admitted
as evidence, nor shall testimony relating thereto be admitted in evidence, or in any
action of any kind in any court or before any administrative body, agency or person
for any purpose whatsoever. . . .
I.C. § 39-1392b.1 The objective of the privilege is “[t]o encourage research, discipline, and
medical study . . . for the purposes of reducing morbidity and mortality, [while] enforcing and
improving the standards of medical practice in the state of Idaho.” Id. at § 1392.
“Peer review” means “the collection, interpretation and analysis of data by a health care
organization for the purpose of bettering the system of delivery of health care or to improve the
provision of health care or to otherwise reduce patient morbidity and mortality and improve the
quality of patient care.” I.C. § 39-1392a(11). “Peer review records” include “all evidence of
interviews, reports, statements, minutes, memoranda, notes, investigative graphs and
compilations and the contents thereof, and all physical materials relating to peer review of any
health care organization.” Id. at § 39-1392a(12). For the purposes of Plaintiff’s Motion to
Compel, there is no dispute that the information sought represents peer review records generated
by a health care organization under section 1392. In other words, this Decision speaks only to
whether Idaho’s peer review privilege can be asserted in this particular action (a federal court
case that has both federal and state claims), not whether the information sought is encapsulated
within the privilege itself.
MEMORANDUM DECISION AND ORDER - 3
In response, Plaintiff correctly points out that federal privilege law generally applies in
federal question cases like this one. Pl.’s Mem. ISO MTC at 7 (Dkt. 23); see also Fed. R. Evid.
501, Adv. Comm. Notes (“In nondiversity jurisdiction civil cases, federal privilege law will
generally apply.”). To that end, federal law does not recognize a peer review privilege. Agster v.
Maricopa Cnty., 422 F.3d 836, 839 (9th Cir. 2005) (“No case in this circuit has recognized the
[peer review] privilege,” declining to find or create such a privilege when “Congress has twice
had occasion and opportunity to consider the privilege and not granted it either explicitly or by
implication”). Even so, “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; but see Agster, 422 F.3d at
839-40 (“Where there are federal question claims and pendent state claims present, the federal
law of privilege applies.”).2 This legal backdrop augurs against a one-size-fits-all approach to
applying privileges across federal and state fora – especially when mixed claims are at play.
Instead, a closer examination of the claims asserted, cross-referenced against the applicable
discovery requests, is required.
Here, two of Plaintiff’s six claims against Defendants are premised upon federal law:
Plaintiff’s (i) Section 1983 claim, and (ii) Monell claim. These claims do not arise out of
The parties’ briefing references Wilson v. St. Luke’s Regional Med. Ctr., Ltd., 2014 WL
7186811 (D. Idaho 2014), a decision from this Court touching on “Idaho’s peer review statutes.”
Compare Defs.’ Opp. to MTC at 4-5 (Dkt. 27), with Pl.’s Reply ISO MTC at 2-3 (Dkt. 29).
Wilson addressed whether these peer review statutes immunized defendants from plaintiff’s state
law claims, including wrongful termination in violation of public policy, tortious interference
with contract, tortious interference with prospective economic advantage, and defamation. Id. at
*6. Significantly, Wilson did not confront the contours of Idaho’s peer review privilege in
federal court cases involving both federal and state claims. Id. (“The act provides two separate
protections related to the peer review process. First, peer review materials are protected from
discovery in legal proceedings. See § 39-1392b. Second, those who participate in the peer
review process are immunized from civil liability. See § 1392c. Defendants focus on the civil
immunity provision set forth in § 39-1392c . . . .”) (emphasis added). Therefore, Wilson is not
particularly helpful to the privilege-related issues presented here, except to acknowledge that the
Court in that case looked to state law to help resolve state law claims. This is not new.
MEMORANDUM DECISION AND ORDER - 4
Kootenai Behavioral’s peer review proceedings themselves; had they, the peer review privilege
would not apply. See, e.g., Toranto v. Jaffurs, 2017 WL 11420584, at *7-8 (S.D. Cal. 2017)
(“Here, the peer review process is expressly tied to Dr. Toranto’s antitrust claims. . . . The peer
review proceedings themselves are under attack, and without that peer review information, Dr.
Toranto will be prevented from bringing his antitrust claims.”).
Nor do these claims exist independently from the remaining four state law claims; had
they, it may be possible to surgically apply the peer review privilege only to the state law – and
not the federal law – claims. See, e.g., Guzman-Ibarguen v. Sunrise Hosp. and Med. Ctr., 2011
WL 2149542, at *12-14 (D. Nev. 2011) (applying Nevada’s medical peer review privilege to
quality reports of the hospital’s quality and safety board because that evidence was relevant only
to state law medical malpractice claims and not to the federal Emergency Medical Treatment and
Active Labor Act claim); but see Love v. Permanente Med. Grp., 2013 WL 4428806, at *3 (N.D.
Cal. 2012) (finding piecemeal application of state privilege law to information relevant only to
state law claims “unworkable” because “it would require the producing party to determine to
which of the receiving party’s claims a particular piece of evidence is relevant” and inevitably
lead to repeated judicial intervention).
Rather, these claims are aligned with the state law claims, fused together by common
allegations critical of Defendants’ conduct in the moments surrounding KNH’s injury. These
overlapping and coordinated claims cut against a segregated approach and warrant uniform
application of federal privilege law. See, e.g., Leon v. Cnty. of San Diego, 202 F.R.D. 631, 633
(S.D. Cal. 2001) (federal civil rights action alongside a pendent claim for medical malpractice
warranted application of federal privilege law because “it would make no sense to permit state
law to determine what evidence is discoverable in cases brought pursuant to federal statutes
MEMORANDUM DECISION AND ORDER - 5
whose central purpose is to protect citizens from abuses of power by state or local authorities.”)
(internal quotation marks and citation omitted).
Defendants do not seriously disagree with the interplay between Plaintiff’s claims. To be
sure, they argue that this action is fundamentally about medical malpractice, premised upon state
law, to which the Idaho peer review privilege should apply. Defs.’ Opp. to MTC at 4-5 (Dkt.
27). This approach is too simplistic and fundamentally flawed.
First, it ignores the fact that Plaintiff’s Section 1983-related arguments exists as a standalone claim beside the state law claims, including the claim for medical malpractice. The
Section 1983 claim has never been challenged as failing to state a claim, frivolous, or pretextual,
and importantly, operates as a basis for this Court’s jurisdiction. See Compl. at ¶¶ 6-7 (Dkt. 1).
Moreover, despite Defendants’ subjective belief that Plaintiff’s Section 1983 claim is without
merit because of the voluntary nature of KNH’s commitment, Plaintiff counters that KNH was
constitutionally entitled to be free from undue bodily restraints, abuse, and excessive force
regardless. Compare Defs.’ Opp. to MTC at 5-6 (Dkt. 27), with Pl.’s Reply ISO MTC at 4 (Dkt.
29). The pond is not settled on these critical issues. It is therefore incorrect to describe
Plaintiff’s Section 1983 claim as a “secondary” or “tertiary” federal claim (as Defendants do) to
self-servingly elevate the importance of Plaintiff’s state law claims over all others. Plaintiff’s
Section 1983 claim is not to be minimized in this way. It unequivocally exists as a component
part of Plaintiff’s claims against Defendants.
Second, Defendants’ argument forgets that Plaintiff’s Complaint also alleges Monell
liability, which requires Plaintiff to prove that Defendants failed to train or adequately supervise
its employees (like Defendant Fitzsimmons) or that KNH’s injury resulted from Defendants’
policies or practices. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). The requested
reports and policies are highly relevant to whether Monell liability can be established. It also
MEMORANDUM DECISION AND ORDER - 6
seems unlikely that Plaintiff will be able to acquire information on Defendants’ policies and
practices outside of internal documents such as those requested through discovery. This added
context distinguishes this case from a run-of-the-mill medical malpractice action and further
justifies the disclosure of the information.3
These realities reveal that the instant action is not so state law-centric as Defendants
make it out to be. While it is true that state law is involved for several, if not many, aspects of
the case, Plaintiff’s interrelated Section 1983 and Monell claims are equally important (both
substantively and procedurally). Accordingly, consistent with case law in this circuit (see
supra), state privilege law should not apply to preclude the production of information relevant to
Plaintiff’s federal claims.
This tracks with federal policy favoring broad disclosure over privilege. The Supreme
Court has found that “[t]estimonial exclusionary rules and privileges contravene the fundamental
principle that the public . . . has a right to every man’s evidence” and “must be strictly construed
and accepted only to the very limited extent that permitting a refusal to testify or excluding
relevant evidence has a public good transcending the normally predominant principle of utilizing
all rational means for ascertaining truth.” Trammel v. United States, 445 U.S. 40, 50-51 (1980)
(internal quotation marks omitted).4 Such privileges “are not lightly created or expansively
Defendants acknowledge that Plaintiff has “the ability to discover any of Kootenai
Behavioral’s policies, procedures, or training materials used both before and after the event at
issue.” Defs.’ Opp. to MTC at 8 (Dkt. 27). Whether this has actually happened is not important.
The point of discussing Plaintiff’s Monell claim is to question Defendants’ position that Idaho’s
peer review privilege should apply because the action rises and falls with the state malpractice
The Court recognizes that the Idaho peer review privilege exists to encourage frank
discussions with the expectation of confidentiality, all for the purpose of improving the quality of
medical care. But health care providers already have professional and economic incentives to
improve the quality of care they provide (reducing malpractice insurance rates and improving
profitability) independent of the availability of strict confidentiality via state peer review statutes.
MEMORANDUM DECISION AND ORDER - 7
construed, for they are in derogation of the search for truth.” U.S. v. Nixon, 418 U.S. 683, 710
(1974). Further, “[t]he Supreme Court has been especially reluctant to recognize a privilege in
an area where it appears that Congress has considered the relevant competing concerns but has
not provided the privilege itself” because “the balancing of conflicting interests is a legislative
function.” Univ. of Penn. v. E.E.O.C., 493 U.S. 182, 189 (1990); see also Agster, 422 F.3d at
839 (noting Congress’s failure to recognize a peer review privilege after having two
opportunities to do so). In short, Idaho’s peer review privilege conflicts with the liberal policy of
discovery inherent in the federal rules, and this Court declines to recognize and create a new
privilege in this action.
Because the Court applies federal privilege law, Defendants’ objections to Plaintiff’s
discovery requests based upon Idaho’s peer review privilege are overruled. Plaintiff’s Motion to
Compel is granted in this respect.
Certain of Plaintiff’s Discovery Requests Remain Overbroad Despite the
Inapplicability of Idaho’s Peer Review Privilege to Plaintiff’s Claims
In addition to their peer review privilege-related arguments, Defendants separately argue
that the following “three categories” of requested information should be protected from
discovery under Rule 26(c)(1): (i) Kootenai Behavioral’s “Youth Acute Unit” restraint log
during the entirety of Defendant Fitzsimmons’s employ with Kootenai Behavioral; (ii)
information entered into Kootenai Behavioral’s “Midas” software program5 pertaining to KNH
and Plaintiff’s allegations; and (iii) internal policy changes at Kootenai Behavioral following
As a result, disclosure of peer review records in this case is unlikely to chill Defendants’ efforts
to continue to meet and confer on how to improve the care they provide.
According to Defendants, Midas reports are specific investigative reports compiled
after an event – in this particular instance, KNH’s November 14, 2019 injury. Defs.’ Opp. to
MTC at 9 (Dkt. 27).
MEMORANDUM DECISION AND ORDER - 8
KNH’s hospitalization. Defs.’ Opp. to MTC at 8-10 (Dkt. 27); Defs.’ Mot. for Prot. Order (Dkt.
28). Even though pre-trial discovery is ordinarily accorded broad and liberal treatment (see
supra), Rule 26 permits the Court to “issue an order to protect a party or person from annoyance,
embarrassment, oppression, or expense.” In re Roman Catholic Archbishop of Portland, 661
F.3d 417, 424 (9th Cir. 2011) (quoting Fed. R. Civ. P. 26(c)(1)). Each category of information is
Youth Acute Unit Restraint Log
Plaintiff’s Request for Production No. 27 requests a copy of the Kootenai Behavioral
Youth Acute restraint log from the beginning of Defendant Fitzsimmons’s employment with
Kootenai Behavioral (April 1, 2009) to the present. RFP No. 27, attached as Ex. A to Owens
Decl. (Dkt. 24-1). Defendants argue that 12 years’ worth of restraint log data is not only
irrelevant to Plaintiff’s claims, but is overbroad and disproportional to the needs of the case.
Defs.’ Opp. to MTC at 8-9 (Dkt. 27) (discussing further the burden in needing to redact
voluminous identifying information).
The information is relevant to Kootenai Behavioral’s notice and opportunity to correct
deficiencies in operations and practices. It also may reveal inadequate training and improper
methods of seclusion and restraint being used on minor children. Pl.’s Mem. ISO MTC at 5
(Dkt. 23). However, the request’s scope is overbroad, particularly as to its lack of tailored focus
and excessive duration. For example, while RFP No. 27 itself requests a copy of the restraint
log, Plaintiff’s briefing characterizes the request as asking for “a log of those occasions in which
said usage caused a patient serious injury.” Id. (emphasis added); see also Fitzsimmons Dep.
289:6-23, 292:21-293:6, attached as Ex. D to Owens Decl. (Dkt. 24-4) (describing “injury to
patient” as a “metric” on the restraint log). This more-limited request is better because it
properly correlates injuries caused by the use of restraints to Plaintiff’s claims and KNH’s injury.
MEMORANDUM DECISION AND ORDER - 9
And, relatedly, 12 years of restraint log data is simply too long when KNH was only hospitalized
at Kootenai Behavioral for less than one month.
Defendants’ Motion for Protective Order is therefore granted in the following respects
only: Defendants shall produce a copy of the Kootenai Behavioral Youth Acute restraint log that
identifies those occasions where the use of restraint techniques caused serious injury6 to a patient
between November 1, 2012 and November 30, 2019.7
Plaintiff’s Request for Production No. 15 requests any Midas system documentation
relating to any staff assault allegations concerning KNH. RFP No. 15, attached as Ex. A to
Owens Decl. (Dkt. 24-1). Defendants argue that “[t]his information is not important to the
Plaintiff’s claims or the resolution of this matter.” Defs.’ Opp. to MTC at 9 (Dkt. 27). But any
report that “autopsies” an incident is clearly relevant to understanding the incident itself. The
Midas system documentation is an example of such a report and is discoverable here.
Defendants’ Motion for Protective Order is denied in this respect.
Changes at Kootenai Behavioral Since KNH’s Hospitalization
During depositions, Plaintiff’s counsel asked questions about any changes in Kootenai
Behavioral policy and training following KNH’s hospitalization. Pl.’s Mem. ISO MTC at 4
(Dkt. 23) (citing Lawhead Dep. 143:4-25, attached as Ex. B to Owens Decl. (Dkt. 24-2);
Miewald Dep. 161:1-25, attached as Ex. C to Owens Dec. (Dkt. 24-3); Harding Dep. 100:4-8,
attached as Ex. E to Owens Decl. (Dkt. 24-5)). Defendants’ counsel objected to this line of
The parties shall confer and arrive upon an appropriate definition of “serious injury.”
In the event this is not possible, the Court will resolve the issue following input from the parties.
Plaintiff may move for additional, older restraint log entries in the event the to-beproduced restraint log clearly reflects that need. Any such motion shall be accompanied by the
necessary good cause to depart from the limits imposed here.
MEMORANDUM DECISION AND ORDER - 10
questioning because it asked for information pertaining to subsequent remedial measures under
Federal Rule of Evidence 407. Id. (Defendants’ counsel also raised peer review privilege
objections). Still, Defendants’ counsel mostly permitted the deponent to answer these questions.
Id. Additionally, in response to written discovery, Defendants claim to have already produced
the policies, procedures, bylaws, and administrative practices in existence before and after
KNH’s injury. Defs.’ Opp. to MTC at 10 (Dkt. 27) (citing Answers to RFP Nos. 1-12, attached
as Ex. C to Hazel Decl. (Dkt. 27-1)).
In this setting, it is unclear either (i) what Plaintiff seeks to compel, or (ii) what
Defendants seek to protect from discovery. See Dist. Idaho Loc. Civ. R. 37.2 (discussing need
for specific content with Rule 26 and 37 discovery motions). As such, the Court simply confirms
here that such information is discoverable (though perhaps not admissible at trial), even if it
amounts to a subsequent remedial measure under Rule 407. Granberry v. Jet Blue Airways, 228
F.R.D. 647, 651 n.2 (N.D. Cal. 2005) (“Rule 407 governs admissibility. It does not preclude
discovery.”); see also Fed. R. Civ. P. 26(b)(1) (“Information within this scope of discovery need
not be admissible in evidence to be discoverable.”).
Because such information is ultimately discoverable, Defendants’ Motion for Protective
Order is denied in this respect.
Based on the foregoing, IT IS HEREBY ORDERED that:
Idaho’s peer review privilege does not apply to the claims asserted in this case.
Plaintiff’s Motion to Compel (Dkt. 22) is GRANTED in this respect.
Defendants’ Motion for Protective Order (Dkt. 28) is GRANTED in part, and
DENIED in part as follows:
MEMORANDUM DECISION AND ORDER - 11
The Youth Acute restraint log is relevant, however Plaintiff’s formal
request for such information is overly broad in scope and duration. Defendants’ Motion for
Protective Order is GRANTED in this respect. Defendants shall produce a copy of the Kootenai
Behavioral Youth Acute restraint log that identifies those occasions where the use of restraint
techniques caused serious injury to a patient between November 1, 2012 and November 30,
The Midas system documentation is discoverable. Defendants’ Motion for
Protective Order (Dkt. 28) is DENIED in this respect.
Information relating to subsequent remedial measures under Rule 407 is
not per se precluded from discovery. To the extent necessary, Defendants’ Motion for Protective
Order (Dkt. 28) is DENIED in this respect.
Any supplemental document production shall take place on or before October 15,
2021, unless otherwise agreed upon by the parties.
To the extent otherwise responsive information has been, or will be, withheld
from production on the basis of any applicable privilege, the parties shall produce a privilege log
addressing that withheld information. Fed. R. Civ. P. 26(b)(5)(A).
DATED: October 6, 2021
Honorable Raymond E. Patricco
U. S. Magistrate Judge
MEMORANDUM DECISION AND ORDER - 12
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