Lopez-Aguirre v. Board of County Commissioners of Shawnee County, Kansas et al
Filing
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MEMORANDUM AND ORDER granting 156 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 12/20/2013. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LAURA V. LOPEZ-AGUIRRE,
Individually, as Administrator of the Estate
of Julio C. Aguirre, deceased, and as
Next Friend for her Minor Children
Em. A. and El. Al,
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Plaintiffs,
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vs.
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BOARD OF COUNTY
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COMMISSIONERS, et al.,
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Defendants.
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___________________________________ )
Case No. 12-2752-JWL-KGG
MEMORANDUM AND ORDER
Now before the Court is Plaintiff’s “Motion to Compel Responses to
Plaintiff’s First Set of Requests for Production of Documents to Defendant Corizon
Health, Inc., F/K/A Prison Health Services, Inc.” (Doc. 156.) Having reviewed
the submissions of the parties, the Court GRANTS Plaintiff’s motion.
BACKGROUND
In the present action, Plaintiff brings various state law, federal law, and
federal Constitutional claims against Defendants resulting from the death of her
husband following his arrest in December 2010. The factual background of this
case was summarized in the District Court's Order granting in part and denying in
part Defendants' Motion to Dismiss. (See Doc. 75, at 2-4.) That summary is
incorporated herein by reference.
Following this Order from the District Court, Plaintiff filed her Second
Amended Complaint on May 5, 2013. (Doc. 76.) A revised Scheduling Order was
entered on June 7, 2013. (Doc. 94, at 6.)
Following the parties’ efforts at conferring – as well as a recent hearing
before the Court and resulting communications between the parties – Requests
Nos.5, 6, 7, 48, and 49 remain at issue. The Requests for Production at issue seek
certain categories of documents from Defendant Corizon Health relating to
Plaintiff’s care and/or other inmates who died or committed suicide.
DISCUSSION
A.
Standards for Motions to Compel.
Fed.R.Civ.P. 26(b) states that “[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party’s claim or defense . . . . Relevant
information need not be admissible at the trial if the discovery appears reasonably
calculated to lead to the discovery of admissible evidence.” As such, the requested
information must be both relevant and nonprivileged to be discoverable.
Defendant does not raise the issue of relevance. Rather, it’s first category of
objections focus on the issue of privilege.
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B.
Claim of Privilege.
Federal Rule of Evidence 501 governs the application of privilege in federal
courts, and states that
[t]he common law – as interpreted by United States
courts in the light of reason and experience – governs a
claim of privilege unless any of the following provides
otherwise:
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the United States Constitution;
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a federal statute;
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or rules prescribed by the Supreme Court.
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Plaintiff filed the present lawsuit in federal court alleging violations of Plaintiff’s
civil rights pursuant to the Constitution and 42 U.S.C. § 1983, as well as various
pendant state law causes of action, including the tort of outrage, and negligence.
Neither the United States Constitution nor Section 1983 contains a privilege
provision nor is there a federal law peer review privilege. Sonnino v. University of
Kansas Hosp. Auth., 220 F.R.D. 633, 644 (D. Kan. 2004) (holding that “[n]either
the Supreme Court nor the Tenth Circuit has recognized a medical peer review or
medical risk management privilege under federal common law”).
As stated above, however, Plaintiff also brings a pendant state law causes of
action against all Defendants. In response to certain discovery requests at issue,
Defendant has asserted the peer review and risk management privileges, which
have been codified by the Kansas legislature at K.S.A. § 65-4915, et seq. and § 653
4925, et seq. Section 65-4915 provides, in relevant part:
the reports, statements, memoranda, proceedings,
findings and other records submitted to or generated by
peer review committees or officers shall be privileged
and shall not be subject to discovery, subpoena or other
means of legal compulsion for their release to any person
or entity or be admissible in evidence in any judicial or
administrative proceeding. Information contained in
such records shall not be discoverable or admissible at
trial in the form of testimony by an individual who
participated in the peer review process.
K.S.A. § 65-4915(b). Section 65-4925 states that records created
pursuant to K.S.A. §65-4923 or §65-4924, and
amendments thereto, shall be confidential and privileged,
including: (1) Reports and records of executive or review
committees of medical care facilities or of a professional
society or organization; (2) Reports and records of the
chief of the medical staff, chief administrative officer or
risk manager of a medical care facility; (3) Reports and
records of any state licensing agency or impaired
provider committee of a professional society or
organization; and (4) Reports made pursuant to this act to
or by a medical care facility risk manager, any
committee, the board of directors, administrative officer
or any consultant. Such reports and records shall not be
subject to discovery, subpoena or other means of legal
compulsion for their release to any person or entity and
shall not be admissible in any civil or administrative
action other than a disciplinary proceeding by the
appropriate state licensing agency.
K.S.A. § 65-4925(a).
The issue thus before the Court is whether and/or how these Kansas
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statutory privileges apply to Plaintiff’s federal and pendant state law claims in
federal court. “It is well settled that in federal question cases with pendent state
law claims, the federal court must look to the federal common law regarding the
existence of privileges.” Reliastar Life Ins. Co. v. Warrior, No. 06-2486-CMDJW, 2007 WL 2669558 (D.Kan. Sept. 7, 2007) (citing Ledbetter v. City of
Topeka, Kan., No 99-2489-CM, 2001 WL 311196, at *2 (D. Kan. Mar. 7, 2001);
Ali v. Douglas Cable Commc’ns Ltd. P’ship, 890 F.Supp. 993, 994 (D. Kan.
1995)). Further guidance is provided in Hermann v. Rain Link, Inc. from this
District.
In Sprague v. Thorn Americas, the Tenth Circuit found
that when both federal law claims and pendent state law
claims were implicated, the court should consider both
bodies of law. [129 F.3d 1355, 1369 (10th Cir. 1997).] In
that case, however, the litigants did not focus on any
distinction between federal and state law. The opinion
also reiterates that when a case involves both federal
claims and pendent state law claims, ‘as to the state
causes of action, a federal court should look to state law
in deciding privilege questions.’ [Id., at 1368 (internal
citation omitted).] Obviously, the court and litigants are
not always able to parse out what discovery or evidence
supports a federal claim as opposed to a state claim.
No. 11-1123-RDR, 2012 WL 1207232, at *8 (D. Kan. April 11, 2012).
As stated previously, the present case comes before the Court because of a
cause of action arising under a federal statute and the federal Constitution. Pendant
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state court causes of action are also alleged. Following it’s recent precedent in this
District, the Court holds that evidence relating only to Plaintiff’s federal claims
will not be subject to assertions of the Kansas statutory peer review privilege, to
the extent Plaintiff has adequately opposed the application of the privilege, as no
such privilege has been recognized by the Tenth Circuit or U.S. Supreme Court.
See Sellers v. Wesley Medical Center, L.L.C., No. 11-1340-JAR-KGG, 2012 WL
5362977, *3 (D.Kan. Oct. 310, 2012) (citing Sonnino, 220 F.R.D. at 644). On the
other hand, evidence relating only to Plaintiff’s pendant state law causes of action
will be subject to the privilege to the extent it was adequately asserted by
Defendant. Id. Finally, to the extent evidence relates to both the federal and state
law causes of action, the privilege will not apply to the extent it was adequately
opposed by Plaintiff. Id.
C.
Requests for Production at Issue.
1.
Requests Nos. 5, 6, and 7.
These requests seek documents (including witness statements, email, and as
well as reports of medical staff review committees) Defendant Corizon has created
regarding decedent and/or the subject matter of Plaintiff’s Complaint. (See Doc.
157, at 3.) Corizon objects, in part, that certain responsive documents are
protected by the Kansas peer review and risk management statutes, discussed
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supra. (Doc. 162, at 5-7.) Corizon argues that “there are no claims against
Corizon sounding in federal law . . . . All of Plaintiff’s claims against Corizon are
based upon Kansas law.” (Id., at 6.) Thus, according to Defendant Corizon, these
privileges protect the requested documents from disclosure.
Although the information is sought from Corizon, against whom only state
law claims exist, Plaintiff replies that the documents sought by these three requests
are “critical to proving both the federal and state-law claims.” (Doc. 165, at 4.)
More specifically, Plaintiff contends that Corizon’s
Mortality Review is highly relevant to Plaintiff’s § 1983
claims against [Defendant] Shawnee County and various
individual Defendants. Plaintiff has asserted under §
1983 that the Shawnee County Defendants were
deliberately indifferent to Decedent Julio Aguirre’s
serious medical needs when they failed to take steps to
prevent his deterioration and failed to provide him
adequate medical treatment.
(Id., at 5.) Plaintiff also argues that the doctor conducting the review “not only
evaluated Corizon’s performance, but Shawnee County’s performance as well.”
(Id.)
The Court finds that, for the purposes of this discovery motion, Plaintiff has
established that the documents at issue relate to both the federal and state law
causes of action. As such, the stated peer review and risk management privileges
will not bar discovery of the requested materials. Sellers, 2012 WL 5362977, at
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*3. Defendant’s objection is overruled and the portion of Plaintiff’s motion
relating to Requests Nos. 5, 6, and 7 is GRANTED.
2.
Requests Nos. 48 and 49.
The remaining group of requests seek information regarding detainees who
committed suicide at, or detainees who “died at or within 72 hours of being
released” from, Defendant Shawnee County Department of Corrections. (Doc.
162, at 10.) Defendant objects that the requests do not describe their subject matter
with “reasonable particularity.” (Id., at 11.) Rather, Defendant argues that they are
akin to “vague and blanket request[s] for all documents which might be material to
issues in the litigation” that have been struck by other federal courts. (Id.)
The Court does not agree. The Court finds that the requests, on their face,
are not “blanket requests.” While they do seek “[a]ny data or documents,” the
requests are limited to the specific subjects of detainees who have died or
committed suicide. The requests are unambiguous and sufficiently specific.
Defendant’s objection is overruled and the portion of Plaintiff’s motion relating to
Requests Nos. 48 and 49 is GRANTED.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel (Doc.
156) is GRANTED as more fully set forth herein. The documents to be produced
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by Defendant in compliance with this Order shall be provided to Plaintiff’s counsel
on or before January 20, 2014.
Dated at Wichita, Kansas, on this 20th day of December, 2013.
S/ KENNETH G. GALE
KENNETH G. GALE
United States Magistrate Judge
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