Morgan v. Wesley Medical Center, LLC et al

Filing 377

MEMORANDUM AND ORDER denying 365 Motion to Compel. Signed by Magistrate Judge Kenneth G. Gale on 9/19/19. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
D.M., a minor, by and through
)
his next friend and natural guardian, )
KELLI MORGAN,
)
)
Plaintiff,
)
)
v.
) Case No.: 2:18-CV-02158-KHV-KGG
)
WESLEY MEDICAL CENTER LLC )
d/b/a WESLEY MEDICAL
)
CENTER-WOODLAWN, et al.,
)
)
Defendants. )
_______________________________)
MEMORANDUM & ORDER DENYING
PLAINTIFF’S MOTION TO COMPEL
Now before the Court is Plaintiff’s Motion to Compel (Doc. 365), seeking
production by non-party CarePoint, P.C. of certain documents shared with the
insurer and attorneys for Defendants Dr. Faimon and P.A. Grover, both of whom
are employed by CarePoint. Having reviewed the submissions of the parties,
Plaintiff’s motion is DENIED for the reasons set forth below.
BACKGROUND
Plaintiff, through his natural guardian and next friend, filed his federal court
Complaint on April 9, 2018, alleging claims under Kansas medical malpractice
laws and under the Federal Emergency Medical Treatment and Active Labor Act.

1 

The claims result from the medical care he received on March 5 and 6, 2017.
Plaintiff alleges that on March 6, 2017, he “suffered a catastrophic and medicallypreventable stroke that left him with right-side paralysis, neurological damage and
other debilitating physical injuries that permanently changed his and his parents’
lives.” (Doc. 1, at 5.)
Plaintiff earlier subpoenaed non-party CarePoint, seeking documents
relating to correspondence between the non-party and Defendants Dr. Faimon and
P.A. Grover, their attorney and/or their insurer. (Doc. 365, at 2.) Plaintiff does not
dispute that Faimon and Grover are employed by CarePoint.
In addition, CarePoint does not dispute that it possesses information
responsive to Plaintiff’s requests. (Doc. 365, at 3.) Rather, CarePoint claims that
the attorney for Defendants Faimon and Grover “requested that CarePoint not
produce the documents on grounds that it is the work-product of or attorney-client
privilege between Dr. Faimon and P.A. Grover, their attorney, or their insurer.”
(Id., at 1.)
CarePoint served its responses and objections to Plaintiff’s subpoena on July
20, 2019, objecting to Requests for Production Nos. 13, 23, 27, 29, 30, 32, 40, 42,
and 47 on the basis of work-product or attorney-client privilege. (Doc. 365, at 23.) The objections to the Requests all indicate that CarePoint
has copies of communications between it and the
attorneys and insurers for defendant Faimon and
2 

defendant Grover. These confidential communications
constitute work product of parties, their counsel and
insurers, pursuant to Fed. R. Civ. P26(b)(3). CarePoint
has been requested to protect these communications from
discovery.
(Doc. 365-1, at 5, 8, 9, 10, 12, & 13.)
CarePoint subsequently produced a Privilege Log for its objections to
Plaintiff’s requests. (Doc. 365, at 3.) Plaintiff now seeks production of the
documents listed in rows 1 through 28 of the Privilege Log. (Doc. 365, at 3.)
Plaintiff contends that “ because Dr. Faimon and P.A. Grover’s attorney and
insurer disclosed the correspondence to third-party CarePoint, any privilege was
waived.” (Id., at 1.)
ANALYSIS
I.

Legal Standard for Motion 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 and proportional to the needs of the case,
considering the importance of the issues at state 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 within this
scope of discovery need not be admissible in evidence to
be discoverable.

3 

As such, the requested information must be nonprivileged, relevant, and
proportional to the needs of the case to be discoverable. Holick v. Burkhart, No.
16-1188-JTM-KGG, 2018 WL 372440, at *2 (D. Kan. Jan. 11, 2018).
II.

Applicability of Work-Product or Attorney-Client Privilege
Fed.R.Civ.P. 26(b)(3) describes the general limitations on the discovery of

work product, providing that, with limited exceptions, “documents and tangible
things” prepared by a party or its agents “in anticipation of litigation or for trial”
are not discoverable.
To establish the applicability of work product privilege,
[the withholding party] must show the following
elements: ‘(1) the materials sought to be protected are
documents or tangible things; (2) they were prepared in
anticipation of litigation or for trial; and (3) they were
prepared by or for a party or a representative of that
party.’
U.S. Fire Ins. Co. v. Bunge North America, Inc., 247 F.R.D. 656, 657 (D. Kan.
2008) (quoting Johnson v. Gmeinder, 191 F.R.D. 638, 643 (D. Kan. 2000)
(citations omitted)).
A party’s disclosure to a third-party of communications that would
otherwise be protected by privilege acts as a waiver of privilege. In re Qwest
Communications Intern. Inc., 450 F.3d 1179, 1185 (10th Cir. 2006) (“The
attorney-client privilege is lost if the client discloses the substance of an otherwise
privileged communication to a third party.”) (quoting United States v. Ryans, 903

4 

F.2d 731, 741 n. 13 (10th Cir. 1990); Burton v. R.J. Reynolds Tobacco Co., 167
F.R.D. 134, 140 (D. Kan. 1996) (“Intentional disclosure to third parties of
privileged information is a waiver of any privilege.”). The party claiming the
benefit of privilege carries the burden of showing that the privilege has not been
waived. New Jersey v. Sprint Corp., 258 F.R.D. 421, 426 (D. Kan. 2009).
Plaintiff argues that because CarePoint is a third-party, the disclosure of the
requested communications from Dr. Faimon and P.A. Grover’s defense counsel or
liability insurer to CarePoint and its general counsel act as a waiver of attorneyclient privilege. (Doc. 365, at 5.) Plaintiff further contends that any work-product
privilege objections are similarly waived, as “neither CarePoint nor its general
counsel are Dr. Faimon or P.A. Grover’s attorney, consultant, surety, indemnitor,
insurer, or agent.” (Doc. 365, at 5.)
III.

Applicability of Common Interest Doctrine.

While the attorney-client privilege and work product protection afforded to
Defendants would normally be waived by sharing such documents with a third
party such as CarePoint, “[t]he common interest doctrine … affords two parties
with a common legal interest a safe harbor in which they can openly share
privileged information without risking the wider dissemination of that
information.” U.S. Fire Ins. Co. v. Bunge North America, Inc., No. 05–2192
JWL–DJW, 2006 WL 3715927, at *1 (D. Kan., Dec. 12, 2006).
5 

For the common interest doctrine to attach, ‘most courts
... insist that the two parties have in common an interest
in securing legal advice related to the same matter – and
that the communications be made to advance their shared
interest in securing legal advice on that common matter.’
‘The key consideration is that the nature of the interest be
identical, not similar, and be legal, not solely
commercial.’
Sawyer v. Southwest Airlines, Nos. 01–2385–KHV, 01–2386–KHV, 2002 WL
31928442 (D. Kan., Dec. 23, 2002) (citations omitted).
Plaintiff argues in its motion that CarePoint “shares no identical legal
interests with Dr. Faimon and P.A. Grover in this lawsuit,” and therefore the
common interest doctrine is inapplicable. (Doc. 356, at 6.) Defendants Faimon
and Grover contend that
[i]n the original Complaint, Plaintiff asserted defendants
Faimon and Grover were employed by Wesley. This
assertion was denied in both Faimon’s and Grover’s
Answer. There was a real concern CarePoint would be
added as a party once Plaintiff appreciated defendants
Faimon and Grover were not employed by Wesley but by
CarePoint.
Given the nature of the Complaint, the claims
alleged and the expectation that Plaintiff intended to
name every possible party that may have some arguable
liability, counsel believed it likely CarePoint would be
added to the suit. Advice and counsel was provided to
CarePoint in that regard.
(Doc. 369, at 3.)

6 

Defendants further contend that although Plaintiff has not (yet) added
CarePoint as a party, Plaintiff has added the employer of co-Defendant Daney.1
(Id., at 4.) Additionally, as of the filing of Defendant’s response brief, the statute
of limitations on a claim against CarePoint had not expired. (Doc. 370, at 7.)
Even so, according to Defendants,
Plaintiff’s strategic decision [not to sue CarePoint] does
not change the fact that CarePoint and defendants
Faimon and Grover have a joint interest in defending the
claims. Each has a common interest in defending the
claims asserted and those that could be asserted. The
facts of the claims are clearly intertwined and dependent
and the legal interests of CarePoint, Dr. Faimon and PA
Grover are shared and aligned.
(Id.)
Defendants argue that the information at issue “was not carelessly disclosed”
to CarePoint, but rather that “[a]ll communications between counsel, the insurer
and CarePoint occurred after the suit was filed and in anticipation that CarePoint
would be named as a defendant.” (Id., at 5, 6.) CarePoint contends that the
documents were provided to it “because it shared and continues to share the same
legal interest as Bridget Grover and Dr. Faimon, with the understanding and

1

Defendants contend that CarePoint has not been added as a party because doing so
would destroy diversity jurisdiction as CarePoint is a Colorado company and Plaintiff
resides in Colorado.

7 

expectation they would not be revealed to others involved in the litigation.” (Doc.
370, at 3.)
From the beginning of the lawsuit, the pleadings have
contained claims that the Wesley Woodlawn ER was
inadequately staffed. It requires no leap of logic to
conclude that CarePoint faces potential liability since it
has a contract to provide the staff to that ER. This fact
alone is enough for this Court to conclude that the
interest of CarePoint is identical to that of Faimon or
Grover, since they are the persons who were assigned to
that emergency Department when DM presented for care
and treatment.
(Doc. 369, at 6.)
CarePoint argues that the liability it potentially faces “would of necessity be
specifically related to, and dependent upon, the acts or omissions of Faimon and
Grover.” (Id., at 4.) Therefore, Defendants’ “sharing of information … with
CarePoint was directly related to the potential that CarePoint could be legally
responsible for the actions of” Faimon and Grover. (Id.) CarePoint thus contends
that its “interests are perfectly aligned with those of its employees, except and only
to the extent that it might argue the employees were outside the scope of their
employment at the time of the incidents in question.” (Id., at 4-5.)
Defendants Grover and Faimon point out that while CarePoint has yet to be
named a party, it has nonetheless become part of the litigation. (Doc. 369, at 5.)
For instance, CarePoint was subpoenaed and “during the preceding months
inquiries were made of counsel regarding a CarePoint corporate representative for
8 

deposition, insurance coverage and other discovery requests.” (Id.) According to
Defendants, the documents at issue withheld by CarePoint do not include “prelitigation interviews, reports, summaries, statements, notes, or memos.” (Id.)
Instead, “the communications between counsel and CarePoint all occurred after the
suit was filed and involve the mental impressions, analysis, conclusions and
thought processes of counsel formed in anticipating litigation against CarePoint
and in preparation for trial on the claims asserted.” (Id.)
Plaintiff replies that the common interest doctrine is “inapplicable between a
defendant-employee and third-party employer when the employer is immune from
the acts of its employee.” (Doc. 373, at 2 (citations omitted).) Plaintiff states, and
CarePoint acknowledges, that a “healthcare provider qualified for coverage from
the Fund” under K.S.A. 40-3403(h) is immune from vicarious liability. (Id.; Doc.
370, at 4.)
CarePoint contends, however, that “[P]laintiff has not established whether
CarePoint is or isn’t a healthcare provider qualified for coverage under the Fund.”
(Doc. 370, at 4.) According to CarePoint, if it is not a healthcare provider qualified
for coverage, “then even though it was not directly involved in the provision of
services to D.M., CarePoint faces the potential for having vicarious liability for the
alleged negligence of two defendants in this lawsuit.” (Id.) Plaintiff replies,
however, that this burden is on CarePoint, not Plaintiff. (Doc. 373, at 3.)
9 

Regardless of who has the burden of establishing CarePoint’s status as a
healthcare provider qualified for coverage – and thus immune from vicarious
liability – the Court agrees with CarePoint that “there was a potential for CarePoint
to be sued for its independent liability in staffing decisions,” and such staffing
decisions would relate to Defendants Grover and Faimon. (Doc. 370, at 6.) As
argued by CarePoint, this basis for liability could be “asserted even if K.S.A. 403403(h) would prohibit vicarious liability for the acts or conduct of other health
care providers.” (Id.) The Court is, therefore, satisfied that the common interest
doctrine applies and that the attorney-client privilege/work product protection has
not been waived as to the documents at issue. Plaintiff’s motion (Doc. 365) is
DENIED.

IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel (Doc.
365) is DENIED as set forth more fully herein.
IT IS SO ORDERED.
Dated this 19th day of September, 2019, at Wichita, Kansas.
S/ KENNETH G. GALE

HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE

10