Rotter v. Elk Grove Village et al
Filing
77
MEMORANDUM OPINION AND ORDER Signed by the Honorable Robert M. Dow, Jr. on 4/19/2018. Mailed notice(cdh, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROGER ROTTER,
Plaintiff,
v.
ELK GROVE VILLAGE, an Illinois
municipal entity, OFFICER JOHN
WILLIAMS, and OFFICER RUSSELL
SULLIVAN,
Defendants.
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Case No. 14-cv-7583
Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff’s motion [70] for entry of a HIPAA-qualified
protective order. For the following reasons, Plaintiff’s motion [70] is granted. The Court directs
the parties to email the HIPAA-qualified order attached as Exhibit A to Plaintiff’s motion in
Word format to the Court’s Proposed Order box, Proposed_Order_Dow@ilnd.uscourts.gov, by
no later than April 26, 2018.
I.
Background
Plaintiff brings Section 1983 claims against Defendants Sullivan and Williams, both Elk
Grove Village police officers, for excessive force based on an encounter that occurred on
September 30, 2012. [See 33.] Defendant Elk Grove Village has filed a counterclaim against
Plaintiff for battery against Officer Sullivan based on the same encounter. [See 26.] Elk Grove
Village brings its counterclaim pursuant to the Illinois Workers’ Compensation Act (the “Act”),
820 ILCS 305/1 et seq. After Sullivan filed a worker’s compensation claim, Elk Grove Village
paid Sullivan in compliance with the Act for his necessary medical expenses in order to
compensate him for his injuries sustained during this encounter. In its counterclaim, the Village
seeks to recover from Plaintiff the sum that it paid to Sullivan. [See 26.] The Court already has
granted summary judgment in favor of Elk Grove Village on the liability portion of the battery
claim, with damages to be determined at a later date. [55, at 14.]
In the instant motion [70], Plaintiff requests a HIPAA-qualified protective order to obtain
certain medical records and health information relating to Defendant Sullivan. Plaintiff seeks
records from various medical providers that relate to treatment of Sullivan’s bodily injuries—
specifically, prior injuries to his left arm—from 2007 to 2012. [75, at 3.] Plaintiff argues that
Elk Grove’s counterclaim put the nature and extent of Officer Sullivan’s injuries directly at issue
in this case, and he is therefore entitled to explore the extent of any of Officer Sullivan’s past
injuries in order to see if they are relevant to Officer Sullivan’s current injuries. [75, at 2–3.]
Defendants object on the basis that the medical records Plaintiff seeks are not relevant
because they relate only to Sullivan’s treatment for completely unrelated injuries. According to
Defendants, the relevant physical injury that Sullivan suffered as a result of the September 30,
2012 encounter is an injury to his spine, which resulted in nerve impingement that caused
radiating pain down his left arm. [See 74, at 1.] Defendants argue that the records Plaintiff
seeks relating to Sullivan’s two previous left-arm injuries in 2007 and 2012 are not causally
connected to the spinal injury at issue here and thus are not discoverable. Defendants further
contend that the requested records are not relevant to the Village’s counterclaim because the
Village is entitled to recover the full amount it paid for Sullivan’s workers’ compensation claim
without regard to whether that amount is excessive or unreasonable. According to Defendants,
the requested records could only be used for the prohibited purpose of reducing the amount of
Elk Grove Village’s recovery. [See id., at 3.]
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II.
Legal Standard
Under Federal Rule of Civil Procedure (“Rule”) 26(b), the scope of discovery in civil
cases encompasses “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.” Information that is within the
scope of discovery does not need to be admissible in evidence to be discoverable. Fed. R. Civ.
P. 26(b)(1).1 District courts have broad discretion to manage the discovery process, including
through the entry of protective orders. See Geiger v. Aetna Life Ins. Co., 845 F.3d 357, 365 (7th
Cir. 2017).
III.
Analysis
The Court concludes that entry of Plaintiff’s requested protective order is warranted
because the records Plaintiff seeks pursuant to that order are discoverable under Rule 26(b). The
2012 encounter between Plaintiff and Defendant Officers Sullivan and Williams that forms the
basis of this action resulted in an excessive force claim by Plaintiff against Sullivan and a battery
counterclaim by Elk Grove Village (as subrogee of Sullivan) against Plaintiff. Sullivan claims a
spinal injury resulting in left arm pain as a result of the battery. The extent of any preexisting
injury that Defendant Sullivan may have sustained to his left arm prior to this encounter certainly
may be relevant to the damages that Elk Grove Village could recover on the battery
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In his reply brief, Plaintiff cites to Rule 26’s previous language that information sought in discovery
need not be admissible at trial, so long as it appears “reasonably calculated to lead to the discovery of
admissible evidence.” [75, at 2.] Rule 26’s language was amended effective December 1, 2015,
however, to reflect the language quoted above.
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counterclaim. It could also be relevant to the amount of force that Sullivan should have used in
the encounter with Plaintiff.
Defendants argue that Plaintiff has not presented any medical expert that will testify
about the cause of Sullivan’s spinal injury, and that the previous injuries to Sullivan’s left arm
have no causal connection to the spinal injury that Sullivan suffered. [74, at 2.] The parties may
eventually conclude—or Defendants may convince the Court—that any earlier arm injuries are
not causally related to the spinal injury, but Plaintiff is entitled to at least look into whether there
is any causal connection through the discovery process. The records and health information that
Plaintiff seeks do not have to be admissible to be discoverable. Fed. R. Civ. P. 26(b)(1).
The case on which Defendants rely in their opposition to Plaintiff’s motion, Avina v.
Bohlen, 2015 WL 1756774 (E.D. Wis. Apr. 16, 2015), is distinguishable from the instant case.
Avina involved an excessive force claim against a Milwaukee police officer based on an
encounter that resulted in the plaintiff’s minor son sustaining a broken arm. 2015 WL 1756774,
at *1. Defendants sought an order compelling the plaintiff to sign a broad release for the minor’s
medical records covering the ten years prior to the incident.
The Court held that “the
Defendants’ medical release form [was] overly broad” because “[n]ot all types of the minor’s
medical records sought by the release are relevant to this case * * * [including] speech therapy
and EKG records, which have no apparent relationship to this case.” Id. at *4. Further, “[w]hile
medical records regarding a seemingly unrelated problem may sometimes lead to the discovery
of admissible evidence, the medical release here must be revised to eliminate medical records
without any apparent connection to this case such as those relating to speech therapy or EKG
tests.” Id. at *4. The Defendants were allowed to seek medical records for the ten-year time
period prior to the relevant incident. Id.
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Here, unlike the release at issue in Avina, the records that Plaintiff requests pursuant to
the proposed protective order are connected to the claims in the case. Sullivan claims a spinal
injury leading to pain in his left arm, among other symptoms, as a result of the relevant
encounter. Plaintiff seeks a protective order allowing medical providers to produce records
regarding injuries to Sullivan’s left shoulder and arm that he suffered prior to the encounter
giving rise to this action. This is certainly a relevant topic for Plaintiff to look into. The records
also comport with the proportionality principle in Rule 26. Plaintiff only requests records related
to specific incidents that took place no more than five years prior to the encounter at the heart of
the action, and records that have already been produced indicate that Sullivan did injure his left
arm twice during that time frame. Contrary to Defendants’ assertions, the Court understands
Plaintiff to be seeking records regarding specific treatment of these injuries Sullivan sustained to
his left arm, not records relating to Sullivan’s entire medical history.
Defendants also argue that the medical records Plaintiff seeks pursuant to the proposed
order at issue here are not discoverable because under the Workers’ Compensation Act (which is
the basis for the counterclaim), Elk Grove Village is entitled to the full amount of money it paid
out in relation to Sullivan’s workers’ compensation claim, and Plaintiff is not entitled to
collaterally attack that amount by asserting that payments for medical bills were excessive or
unreasonable in some way.
Under Section 5(b) of the Act, “an injured employee who has received workers’
compensation benefits must reimburse the employer for those benefits from any recovery the
employee receives from a liable third party.” In re Estate of Dierkes, 730 N.E.2d 1101, 1102
(Ill. 2000). Section 5(b) also permits a subrogation action by an employer to recover from a third
party responsible for the injuries the compensation paid to the employee. Knowles v. Mid-West
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Automation Sys., Inc., 570 N.E.2d 484, 485–86 (Ill. App. Ct. 1991).2 Section 5(b) thus grants an
employer two distinct rights: (1) “if the employee files suit within the statute of limitations
period against the tortfeasor that caused his injury, the employer has a lien on any recovery;” and
(2) “if no suit is filed by the employee, then during the last three months before the limitations
period expires, the action is ‘transferred’ to the employer, who may then file the same suit
against the tortfeasor that the employee could have filed.” Woodward v. Pratt, Bradford &
Tobin, P.C., 684 N.E.2d 1028, 1032–33 (Ill. App. Ct. 1997).
The Village here sued Plaintiff directly instead of asserting a lien on a recovery obtained
by Sullivan from Plaintiff. It therefore seems to be exercising the second right listed above.
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Section 5(b) reads in pertinent part:
Where the injury or death for which compensation is payable under this
Act was caused under circumstances creating a legal liability for
damages on the part of some person other than his employer to pay
damages, then legal proceedings may be taken against such other person
to recover damages notwithstanding such employer's payment of or
liability to pay compensation under this Act. In such case, however, if
the action against such other person is brought by the injured employee
or his personal representative and judgment is obtained and paid, or
settlement is made with such other person, either with or without suit,
then from the amount received by such employee or personal
representative there shall be paid to the employer the amount of
compensation paid or to be paid by him to such employee or personal
representative including amounts paid or to be paid pursuant to
paragraph (a) of Section 8 of this Act.
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In the event the employee or his personal representative fails to institute
a proceeding against such third person at any time prior to 3 months
before such action would be barred, the employer may in his own name
or in the name of the employee, or his personal representative,
commence a proceeding against such other person for the recovery of
damages on account of such injury or death to the employee, and out of
any amount recovered the employer shall pay over to the injured
employee or his personal representatives all sums collected from such
other person by judgment or otherwise in excess of the amount of such
compensation paid or to be paid under this Act.
820 ILCS 305/5(b).
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Defendants argue that the documents covered by the proposed protective order are not
discoverable because they cannot be used to reduce the amount of the statutory lien.
It is true that the Act “provides numerous protections for the interests of an employer
who has made workers’ compensation payments,” Ins. Co. of N. Am. v. Andrew, 564 N.E.2d 939,
942 (Ill. App. Ct. 1990), one of which is the creation of a statutory lien equal to the amount of
workers’ compensation benefits paid or owed. See Smith v. Louis Joliet Shoppingtown L.P., 877
N.E.2d 789, 792 (Ill. App. Ct. 2007) (“[Section 5(b) of the Act] grants the employer * * * a
statutory lien on any recovery the employee receives from a liable third party equal to the
amount of the workers’ compensation benefits paid or owed to the employee.”) (citing Dierkes,
730 N.E.2d at 1104). But here, Elk Grove Village is suing Plaintiff directly rather than asserting
a lien on a recovery that Sullivan received from Plaintiff and thus is proceeding against Plaintiff
for the recovery of whatever damages Sullivan would have been able to collect. See Beiermann
v. Edwards, 550 N.E.2d 587, 595–96 (Ill. App. Ct. 1990).
In Beiermann, the employer of an injured employee filed a complaint in intervention in
the employee’s personal injury suit and, after the employee abandoned the suit, the employer
substituted in as the plaintiff. The trial court instructed the jury that the measure of damages was
what the original plaintiff (the employee) could have recovered from the defendant. 550 N.E.2d
at 592. After the jury returned a verdict for the defendant, the employer appealed, arguing that as
the employer “it could only recover as damages those amounts it actually paid to or on behalf of
[the employee].” Id. at 595. The Illinois Appellate Court disagreed. The court noted that “[h]ad
[the employee] not abandoned his cause of action and prosecuted it against defendant, the
[employer’s] participation in the suit would have been limited to protecting its lien for the
amount of benefits paid.” Id. at 596.
But, once the employer elected to substitute as the
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plaintiff it became required, “according to section 5(b) of the Act, to proceed against the culpable
third person (the defendant) for the recovery of damages on account of injury to [the employee].”
Id. Therefore, however an employer becomes a plaintiff in an action against a third party
pursuant to the Act, according to the terms of the statute, “[t]he measure of damages would be
those damages which the employee would have been able to collect from the defendant.” Id. As
applied here, Defendants’ argument that medical bills or other records relating to any of
Sullivan’s injuries beyond those directly paid to satisfy the workers’ compensation claim are not
discoverable is unavailing. Because Plaintiff is a counterclaim-defendant on the battery claim,
Plaintiff is entitled to contest the damages claimed by Sullivan on that claim. The requested
documents are relevant to that issue, and thus within the scope of permissible discovery as
explained above.
In sum, the Court grants Plaintiff’s motion for entry of a HIPAA-qualified protective
order. In the exercise of the Court’s obligation to supervise discovery, see BankDirect Capital
Finance, LLC v. Capital Premium Financing, Inc., 2018 WL 946396, at *5–6 (N.D. Ill. Feb. 20,
2018), and to move the case forward, the Court also orders Defendants to facilitate the
production of the information that Plaintiff has previously requested: Officer Sullivan’s medical
records and health information regarding previous injuries sustained to his left arm from 2007 to
the time of the subject incident pursuant to this protective order.
IV.
Conclusion
For these reasons, Plaintiff’s motion [70] is granted. The Court directs the parties to
email the HIPAA-qualified order attached as Exhibit A to Plaintiff’s motion in Word format to
the Court’s Proposed Order box, Proposed_Order_Dow@ilnd.uscourts.gov, by no later than
April 26, 2018.
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Date: April 19, 2018
_____________________________
Robert M. Dow, Jr.
United States District Court Judge
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