Taylor v. Hy-Vee, Inc.
ORDER granting in part and denying in part 48 Motion to Compel. Signed by Magistrate Judge James P. O'Hara on 12/22/2016. (ah)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KATHRYN A. TAYLOR,
Case No. 15-9718-JTM
This is an employment-discrimination case in which the plaintiff, Kathryn A. Taylor,
alleges the defendant, Hy-Vee, Inc., terminated her employment as a pharmacy manager
because of her age and gender. Plaintiff has filed a motion (ECF No. 48) asking the court
to compel defendant to produce two types of documents: (1) so-called “incident reports” that
defendant is withholding under an assertion of privilege created by the federal Patient Safety
and Quality Improvement Act (“PSQIA”), 42 U.S.C. §§ 299b-21, et seq., and/or the Kansas
Pharmacy Act’s Continuous Quality Improvement Program (“CQI”), K.S.A. § 65-1695; and
(2) documents reflecting the return of prescription medications which defendant is
withholding as unduly burdensome to identify. For the reasons stated below, the motion is
denied with respect to the incident reports and granted with respect to the prescription return
Plaintiff began working for defendant as a pharmacist in 1997, and was the pharmacy
manager at defendant’s store in Olathe, Kansas, from 2006 until her termination in
November 2014. Defendant asserts that it terminated plaintiff for non-discriminatory,
business reasons. Defendant states, for example, that plaintiff accepted the return of
prescription drugs in violation of store policy and/or the law. Defendant further contends
that plaintiff made medication errors—releasing prescription drugs to wrong
patients—because she did not use defendant’s prescription verification process. Plaintiff
alleges that the reasons given by defendant for her termination are a pretext for age and/or
Four document requests are at issue in the instant discovery motion. In Request No.
15, plaintiff asked defendant to produce defendant’s internal “incident reports,” which
defendant maintained in “error log books,” documenting medication errors at the Olathe store
where plaintiff was employed. Similarly, in Request No. 16, plaintiff sought the error log
books (including incident reports) for each pharmacy supervised by the regional pharmacy
manager who participated in defendant’s investigation of plaintiff’s work performance.
Request No. 17 sought documents reflecting the return of prescription drugs at the Olathe
store. Finally, Request No. 18 sought documents reflecting prescription drug returns at each
of defendant’s pharmacies in the Kansas City metropolitan area. Plaintiff asserts that the
information sought through these document requests is highly relevant to demonstrate the
pretextual nature of defendant’s reasons for terminating plaintiff because they could show
that younger pharmacists were not investigated or disciplined for making the same mistakes
purportedly made by plaintiff.
Request Nos. 15 and 16: Incident Reports/Error Log Books
In its original responses to Request Nos. 15 and 16 seeking error log books containing
incident reports, defendant asserted the statutory privilege for patient safety work product
created by the PSQIA. Later, on the day it filed its opposition to the instant motion,
defendant served a supplemental response further asserting privilege under the CQI. As the
party asserting privilege, defendant bears the burden of demonstrating privilege applies.1
In 2005, Congress enacted the PSQIA in an attempt to limit the medical-malpractice
exposure of healthcare providers who attempt to learn from their mistakes as part of a
patient-safety-evaluation system.2 The PSQIA creates a privilege for all documents,
communications, and other information that meet the statutory definition of “patient safety
work product.”3 The statute provides, in relevant part:
Notwithstanding any other provision of Federal, State, or local law, . . . patient
safety work product shall be privileged and shall not be ––
(1) Subject to a Federal, State, or local civil, criminal, or administrative
subpoena or order, including in a Federal, State, or local civil or administrative
disciplinary proceeding against a provider; [or]
See Barclaysamerican Corp. v. Kane, 746 F.2d 653, 656 (10th Cir. 1984).
See Tinal v. Norton Healthcare, Inc., No. 3:11-cv-596-S, 2014 WL 12581760, at *5
(W.D. Ky. July 14, 2014) (citing S.R. No. 108-196 (2003) and H.R. No. 108-28 (2003)).
42 U.S.C. § 299b–22(a).
(2) Subject to discovery in connection with a Federal, State, or local civil,
criminal, or administrative proceeding, including in a Federal, State, or local
civil or administrative disciplinary proceeding against a provider.4
Information that does not meet the definition of “patient safety work product” is not
privileged under the PSQIA, and the parties do not dispute that point. Instead, the parties
disagree as to whether the incident reports are the type of document that may be considered
“patient safety work product” under the statute. Resolution of the parties’ dispute, then, turns
on what qualifies as patient safety work product.
The PSQIA defines “patient safety work product,” in relevant part, as
any data, reports, records, memoranda, analyses (such as root cause analyses),
or written or oral statements—
(I) are assembled or developed by a provider for reporting to a patient
safety organization [“PSO”]5 and are reported to a [PSO]; . . .
and which could result in improved patient safety, healthcare quality, or healthcare
(ii) which identify or constitute the deliberations or analysis of, or identify the
fact of reporting pursuant to, a patient safety evaluation system.6
A PSO is a private or public entity or component thereof that is listed by the
Secretary of Health and Human Services as a qualifying entity. 42 U.S.C. § 299b–21(4).
42 U.S.C. § 299b–21(7)(A). A “patient safety evaluation system” is “the collection,
management, or analysis of information for reporting to or by a [PSO].” 42 U.S.C. §
“While the PSQIA announces broad evidentiary protections for patient safety work
product, its drafters made clear that the statue was not intended to provide a blanket
protection for all information and communications generated for quality control purposes.”7
The text of the PSQIA emphasizes that only information specifically made or gathered for
a PSO or a patient safety evaluation system is patient safety work product.8 The statute
elaborates that patient safety work product “does not include information that is collected,
maintained, or developed separately, or exists separately, from a patient safety evaluation
system. Such separate information or a copy thereof reported to a [PSO] shall not by reason
of its reporting be considered patient safety work product.”9 In other words, “Information
generated or assembled for some other purpose, even if the information relates to quality
improvement measures, is not considered patient safety work product.”10
Defendant states that it “has contracted with the Alliance for Patient Medication
Safety (“APMS”) to be [defendant’s] [PSO].”11
According to defendant, pharmacy
Johnson v. Cook Cty., No. 15 C 742, 2015 WL 5144365, at *6 (N.D. Ill. Aug. 31,
2015) (citing S.R. No. 108–196, at 2 (2003) (explaining the protections apply only to “certain
categories of documents and communications termed ‘patient safety work product’ that are
developed in connection with newly created patient safety organizations”)).
42 U.S.C. § 299b–21(7)(A).
42 U.S.C. § 299b–21(7)(B)(ii).
Johnson, 2015 WL 5144365, at *7 (citing 42 U.S.C. § 299–b21(7)(B)).
ECF No. 51 at 2. Plaintiff does not dispute that defendant uses APMS or that APMS
is a certified PSO.
employees complete “forms” that identify “errors.”12 Then a designated pharmacy employee
“enters the data from [the] forms” into a software program provided by APMS called
Pharmacy Quality Commitment (“PQC”).13 In addition, because the Kansas CQI law
requires pharmacies to maintain a record of medication errors, the Olathe pharmacy location
where plaintiff was employed records errors “on incident reports that are maintained in a 3ring binder (“Error Log Book”).”14 Defendant states that the Error Log Book “was created
for the express purpose of complying with” the CQI,15 but that the errors listed on the
incident reports therein “are also reported on PQC” to APMS.16 In addition, the errors listed
on the incident reports are reported on defendant’s internal record-keeping website called Hy-
Vee Connect.17 Defendant takes the position that “data entered into PQC,” which would
include data on the incident reports kept in error log books, “is data assembled for reporting
ECF No. 51 at 3.
The court is unable to determine whether the “forms” defendant first referenced are
separate and distinct from the “incident reports” defendant later discussed. The deposition
transcript of Karey Newton implies that they are one in the same. See ECF No. 51-3 at 3.
On the other hand, the declaration of Matt Vogt states that the forms and incident reports are
separate, and that while all errors are reported on forms, only certain types of errors are also
reported on incident reports. ECF No. 51-5 at 1. Ultimately, the court need not resolve this
ECF No. 51 at 4.
Id. at 3. See also Declaration of Marshall Sanders, ECF No. 51-2 at 2 (“Hy-Vee’s
retail pharmacies are required to log all errors that occur in the Pharmacy into a program
ECF No. 51 at 3.
to a PSO and in fact reported [sic] to a PSO,” such that it is privileged “patient safety work
Plaintiff argues that, for two reasons, defendant has failed to satisfy its burden of
establishing the incident reports are privileged under the PSQIA.19 First, plaintiff argues
defendant has not demonstrated that information in the log books/incident reports sought in
Request Nos. 15 and 16 for years 2011–201520 was reported to a PSO because defendant’s
response discusses PSO reporting in “present tense language.”21 The court easily rejects this
hypertechnical grammar argument. Defendant has submitted the deposition testimony of
Karey Newton, in which Ms. Newton stated that it has been her responsibility (given to her
by plaintiff, incidently) since “late 2008 or early 2009” to input data from incident forms into
the PQC database.22
Plaintiff’s second argument warrants more consideration. Plaintiff asserts that “even
if the PSQIA protects specific entries into the PQC system, it does not protect the underlying
incident reports or similar information that is maintained in defendant’s error logs,
Id. at 6.
In her reply, plaintiff also briefly mentioned that defendant has failed to provide a
privilege log for the withheld documents. Given that this argument was raised for the first
time in the reply brief and has not been developed by plaintiff, the court does not consider
Request No. 16 covered years 2011–2015, but plaintiff’s motion limited the request
to years 2014–2015. ECF No. 48 at 11.
ECF No. 52 at 8.
ECF No. 51-3 at 3.
notebooks, or Hy-Vee Connect.”23 Plaintiff contends that because the error log books and
incident reports “exist separately from the PQC” they are not privileged under the PSQIA.
Plaintiff notes that the Error Log Book kept at the Olathe pharmacy is kept, according to
defendant, to comply with the Kansas CQI law.
Although this argument presents a close question, it must be denied. The evidence
in the record makes clear that all the data on the incident reports is gathered for reporting to
a PSO and that it then was reported to a PSO when Ms. Newton entered it into PQC. It is
true that the incident reports were then saved by defendant in the Error Log Book to comply
with Kansas law requiring pharmacies to maintain records of medication errors. It is also
true that at least some of the information was logged into Hy-Vee Connect. But what a
pharmacy ultimately does with data collected and reported to a PSO is not relevant. Such
data is designated “patient safety work product” by 42 U.S.C. § 299b–21(7)(A), and there
is nothing in the PSQIA to suggest that data can lose that designation. Of course, data that
exists or that a pharmacy collects or maintains “separately . . . from a patient safety
evaluation system,” i.e., separately from a system for the collection and management of data
for reporting to a PSO,24 is not “patient safety work product” in the first instance.25 But here,
unlike in the Johnson case upon which plaintiff relies, the data in the incident reports was not
ECF No. 52 at 8.
42 U.S.C. § 299b–21(6) (defining “patient safety evaluation system”).
42 U.S.C. § 299b–21(7)(B)(ii).
“generated or assembled for some other purpose.”26 The data exists as part of defendant’s
system for reporting it to APMS. Although it also is used as part of defendant’s internal and
state-mandated quality improvement system, the court is satisfied that defendant has met its
burden of demonstrating that the data was developed for reporting to a PSO. Thus, the court
finds the information protected by the PSQIA privilege and properly withheld on that basis.27
As mentioned above, defendant served supplemental responses to Request Nos. 15
and 16 on December 5, 2016 (the day on which it filed its response to the instant motion),
objecting to the requests as seeking information privileged under the CQI. Because the court
has found the incident reports privileged under the PSQIA, it need not determine the
applicability of the CQI privilege. The court notes, however, that it does not take a favorable
view of this new objection. Setting aside the fact that the objection appears to be
significantly late,28 the court would hold that state privilege law does not govern discovery
in this case involving federal causes of action.29
Johnson, 2015 WL 5144365, at *7.
As a side note, plaintiff has not argued that the PSQIA privilege does not apply
outside of the medical-malpractice context, nor does she take issue with cases cited by
defendant holding otherwise. See, e.g., Tinal, 2014 WL 12581760, at *9–10 (“In the absence
of any explicit exception to the plain language of subsection (a) and (b) [of 42 U.S.C. § 299b22] for federal civil rights actions, it is clear to the Court that the privilege created for patient
safety work product is intended to apply across-the-board to all other types of claims.”).
See ECF No. 34 (Certificate of Service of Plaintiff’s Second Requests for Production
dated September 14, 2016).
See Lopez-Aguirre v. Bd. of Cty. Comm’rs, No. 12-2752, 2013 WL 6796459, at *2–3
(D. Kan. Dec. 20, 2013) (“[T]he Court holds that evidence relating only to Plaintiff’s federal
claims will not be subject to assertions of the Kansas statutory peer review privilege, . . . as
Request Nos. 17 and 18: Prescription Drug Returns30
As noted above, Request No. 17 sought documents reflecting the return of prescription
drugs at the Olathe store. In her motion, plaintiff agreed to limit this request to “return
transactions with a dollar value of $25 [or more] or that were documented in an Incident
Report or otherwise documented via Connect or PQC or error notebook.”31 Request No. 18
sought documents reflecting prescription drug returns at each of defendant’s pharmacies in
the Kansas City metropolitan area. In her motion, plaintiff agreed to limit this requests to
return transactions with “a threshold of $100 or that were documented in an Incident Report
or otherwise documented via Connect or PQC or an error notebook.”32 Both requests are
temporally limited to the years 2014 and 2015.
Defendant objected to these requests as unduly burdensome, asserting that the effort
involved in complying with the requests “is highly disproportionate to the needs of the
no such privilege has been recognized by the Tenth Circuit or U.S. Supreme Court.”); Dunn
v. Dunn, 163 F. Supp. 3d 1196 (N.D. Ala. 2016) (ruling that privilege created by state
quality-assurance law “has no direct bearing” because the claims were brought under federal
law); Johnson, 2015 WL 5144365, at *3 (ruling the court was not obligated to apply a
privilege created by state statute because the case was based on a federal cause of action).
In her reply brief, plaintiff asked the court to “defer ruling with respect to Document
Request Nos. 17 and 18 pending an opportunity for [plaintiff’s counsel] to receive and
analyze the documents requested in Document Request Nos. 15 and 16.” ECF No. 52 at
13–14. Because the court has denied plaintiff’s motion to compel with respect to Request
Nos. 15 and 16, the court moves on to deciding the discovery dispute involving Document
Request Nos. 17 and 18.
ECF No. 48 at 14 (emphasis in original).
Id. at 16 (emphasis in original).
case.”33 Fed. R. Civ. P. 26(b)(1) allows parties to “obtain discovery regarding any
non-privileged matter that is relevant to any party’s claim or defense and proportional to the
needs of the case.” Whether any particular discovery request is proportional is to be
determined by considering, to the extent applicable, the following six factors: (1) the
importance of the issues at stake in the action, (2) the amount in controversy, (3) the parties’
relative access to relevant information, (4) the parties’ resources, (5) the importance of the
discovery in resolving the issues, and (6) whether the burden or expense of the proposed
discovery outweighs its likely benefit.34
Plaintiff asserts that the information regarding prescription drug returns is highly
relevant, and the court agrees. Particularly at the discovery stage, relevance is broadly
construed.35 “[A]ny 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” will be deemed relevant.36 Defendant
has stated that plaintiff’s employment was terminated in large part because she “accepted the
ECF No. 51 at 11.
Fed. R. Civ. P. 26(b)(1).
See Erickson, Kernell, Deruseau, & Kleypas v. Sprint Sols., Inc., No. 16-mc-212JWL-GEB, 2016 WL 3685224, at *4 (D. Kan. July 12, 2016).
Rowan v. Sunflower Electric Power Corp., No. 15-9227-JWL-TJJ, 2016 WL
3745680, at *2 (D. Kan. July 13, 2016) (quoting Oppenheimer Fund, Inc. v. Sanders, 437
U.S. 340, 351 (1978) and ruling the Oppenheimer standard still relevant after the 2015
Amendment to Rule 26(b)(1)). See also Waters v. Union Pac. R.R. Co., No. 15-1287-EFMKGG, 2016 WL 3405173, at *1 (D. Kan. June 21, 2016) (“Relevance is broadly construed
at the discovery stage of the litigation and a request for discovery should be considered
relevant if there is any possibility the information sought may be relevant to the subject
matter of the action.”) (internal quotations and citation omitted).
return of prescription drugs in situations where store procedures and/or the law did not
allow.”37 Plaintiff contends this is a pretext for discrimination and seeks information to show
that other employees allowed prescription returns and they were not “disciplined, much less
terminated.”38 Information about the prescription returns is in defendant’s possession, and
plaintiff does not have access to it. Although plaintiff attempted to gather information about
prescription returns though depositions of pharmacy employees, the testimony from these
witness on the subject has been inconsistent.
On the other side of the scale is the burden that defendant would face in responding
to these document requests as they have been limited by plaintiff. As the party objecting to
discovery, defendant has “the burden to show facts justifying [its] objection by
demonstrating that the time or expense involved in responding to requested discovery is
unduly burdensome.”39 This imposes an obligation on defendant “to provide sufficient detail
and explanation about the nature of the burden in terms of time, money and procedure
required to produce the requested documents.”40 A party asserting undue burden must
present an affidavit or other evidentiary proof of the time or expense involved in responding
ECF No. 51 at 2.
ECF No. 48 at 15.
Horizon Holdings, L.L.C. v. Genmar Holdings, Inc., 209 F.R.D. 208, 213 (D. Kan.
2002) (citing Snowden v. Connaught Labs., Inc., 137 F.R.D. 325, 332 (D. Kan. 1991)).
to the discovery request.41 Discovery will be allowed unless the hardship imposed on the
responding party is unreasonable compared to the benefits to be secured from the discovery.42
Defendant has submitted the declaration of James Harrison, Hy-Vee, Inc.’s Point of
Sale Director, to support its burdensome objection, at least as to Request No. 17.43 Mr.
Harrison states that to determine whether returns at the Olathe pharmacy registers were
returns of prescription drugs, defendant must
(1) Determine the name of the transaction log file; (2) Restore the transaction
log file to the system; (3) Open and review the transaction electronic journal;
(4) Check the raw transaction log for a name associated with a payment card;
(5) If the card was swiped, there is usually a name associated with the card, but
if the card was keyed, then additional research must be done in an attempt to
find a purchase with a card with the same numbers.44
If a cardholder is located, defendant “can look in the EnterpriseRx system to try to tie the
sale/refund to a prescription. If that is possible, then there may be additional documents
illustrating what occurred.”45 Mr. Harrison states that if the refund was given in cash,
Waddell & Reed Fin., Inc. v. Torchmark Corp., 222 F.R.D. 450, 454 (D. Kan. 2004)
(citing Sonnino v. Univ. of Kan. Hosp. Auth., 220 F.R.D. 633, 653 (D. Kan. 2004), Klesch
& Co. Ltd. v. Liberty Media Corp., 217 F.R.D. 517, 524 (D. Colo. 2003) (objecting party
cannot sustain burden with boilerplate claims that requested discovery is burdensome), and
McCoy v. Whirlpool Corp., 214 F.R.D. 642, 646 (D. Kan. 2003) (overruling objection of
undue burden based in part on lack of affidavit or other proof)).
McBride v. Medicalodges, Inc., Nos. 06-2535, 06-2536, 06-2538, 2008 WL
1958350, at *4 (D. Kan. May 2, 2008).
ECF No. 51-7.
Id. at 1-2.
Id. at 2.
defendant does not have the ability to learn more information about the transaction. Mr.
Harrison estimates that “it would take hundreds of hours” to perform these steps and analyze
the 130 return transactions reflecting refunds of $25 or more responsive to Request No. 17.46
When he limited his analysis to refunds of $100 or more, there were 12 return transactions
that took employees 15 hours to analyze (an average of 1.25 hours per transaction).47 Using
1.25 hours as the average analysis time and multiplying that by 130 return transactions, the
court estimates that it would take defendant 162.5 hours to respond to Request No. 17.
The court finds that defendant has not carried its burden of demonstrating that the time
or expense of responding to Request No. 17 outweighs the likely benefit of the information
to plaintiff. Defendant has not provided sufficient detail about the nature of its asserted
burden. For example, defendant has not estimated the costs involved. There is no indication
in Mr. Harrison’s declaration that an employee with a salary on the lower end of the payscale could not perform the analysis at relatively minimal cost to defendant, even if the
employee spent, say, 200 hours on the task. The steps necessary to locate the requested
information, as set forth by Mr. Harrison, do not appear to be difficult. When the court
weighs the limited explanation of burden defendant has provided against the highly relevant
nature of the requested information—information that goes to the heart of this case and is not
available from other sources—the court concludes Rule 26(b)(1) entitles plaintiff to obtain
the information sought in Request No. 17.
With respect to Request No. 18, seeking information about prescription returns
meeting or exceeding $100 at any of defendant’s pharmacies in the Kansas City metropolitan
area, defendant has provided no specific support for its unduly burdensome objection.
Defendant states in its response brief that, given “the amount of time it has taken to review
the transactions at Olathe 2, Hy-Vee estimates that reviewing transactions that involve $100
or more in all 25 Kansas City stores would likely require close to 1000 hours of time.”48 But
defendant has offered no declaration, affidavit, or other evidence or explanation to support
this conclusory allegation. Defendant has not suggested how many return transactions
amounting in refunds of $100 or more were processed by defendant’s pharmacies in the
Kansas City metropolitan area in 2014 and 2015. Nor has defendant explained the type of
employee necessary to analyze such transactions and at what cost. Although return
information from stores where plaintiff did not work is less consequential than the
information sought by Request No. 17, it is nonetheless relevant as bearing on issues in this
case. Given the absence of a record showing defendant would be unduly burdened by
responding to Request No. 18, the court holds the information is discoverable.
IT IS THEREFORE ORDERED: Plaintiff’s motion to compel is denied with respect
to Request Nos. 15 and 16, and is granted with respect to Request Nos. 17 and 18.
Dated December 22, 2016, at Kansas City, Kansas.
s/ James P. O'Hara
James P. O'Hara
ECF No. 51 at 11.
U.S. Magistrate Judge
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