Sellers v. Wesley Medical Center, L.L.C. et al

Filing 103

MEMORANDUM AND ORDER granting in part and denying in part 78 Motion to Compel. The documents to be produced by Defendant Wesley in compliance with this Order shall be provided to Plaintiff's counsel on or before November 21, 2012. Signed by Magistrate Judge Kenneth G. Gale on 10/31/2012. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TASHA SELLERS, Individually,
and as a Representative Heir of
MICHAEL D. SELLERS, Deceased,
and as Special Administrator of the Estate
of MICHAEL D. SELLERS, Deceased,

)
)
)
)
)
)
Plaintiff,
)
)
vs.
)
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WESLEY MEDICAL CENTER, L.L.C.;
)
KATHY FORRED, M.D.;
)
VALERIE AOUAD, P.A.; and
)
EMERGENCY SERVICES, P.A.
)
)
Defendants.
)
___________________________________ )

Case No. 11-1340-JAR-KGG

MEMORANDUM & ORDER
Now before the Court is Plaintiff’s “Motion to Compel Defendant Wesley
Medical Center, L.L.C. to Respond to Rule 34 Discovery.” (Doc. 78.) Having
reviewed the submissions of the parties and after a hearing at which both parties
made oral argument, the Court GRANTS in part and DENIES in part Plaintiff’s
motion.

BACKGROUND
Plaintiff alleges that the deceased, Michael Sellers, presented at Wesley
Medical Center on November 27, 2009, complaining of chest pain. (See Doc. 1.)
Plaintiff further alleges that following examination and various tests, the deceased
was released approximately 3 ½ hours later with a prescription for Pepcid. (Id.)
Plaintiff continues that the deceased collapsed in his home on December 5, 2009,
and died on December 14, 2009, following bypass surgery. (Id.)
Plaintiff brings the above-captioned matter seeking damages based on
Defendant Wesley Medical Center’s alleged violations of the Emergency Medical
Treatment and Active Labor Act (“EMTALA”), 42 U.S.C.A. § 1395dd. (See, Doc.
1, at 5-6.) EMTALA requires that a hospital with an emergency department “must
provide for an appropriate medical screening examination within the capability of
the hospital’s emergency department . . . to determine whether or not an emergency
medical condition . . . exists” as to any individual requesting examination. 42
U.S.C.A. § 1395dd(a). Plaintiff also brings pendant state law medical malpractice
claims against all of the Defendants. (Id., at 7-9.)
The Requests for Production at issue seek certain categories of documents
from Wesley Medical center. Following the parties’ efforts at conferring – as well
as a recent hearing before the Court and resulting communications between the
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parties – Requests Nos. 15, 20, 30, 31, 41, 50, and 59 remain at issue.
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.
1.

Relevance.

“‘Discovery relevance is minimal relevance,’ which means it is possible and
reasonably calculated that the request will lead to the discovery of admissible
evidence.” Teichgraeber v. Memorial Union Corp. of Emporia State University,
932 F.Supp. 1263, 1265 (D. Kan. 1996) (internal citation omitted). “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.” Smith v. MCI
Telecommunications Corp., 137 F.R.D. 25, 27 (D.Kan.1991). Stated another way,
“discovery should ordinarily be allowed unless it is clear that the information
sought can have no possible bearing on the subject matter of the action.” Snowden
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By and Through Victor v. Connaught Lab., 137 F.R.D. 325, 341 (D.Kan.1991),
appeal denied, 1991 WL 60514 (D.Kan. Mar. 29, 1991).
Discovery requests must be relevant on their face. Williams v. Bd. of
County Comm’rs, 192 F.R.D. 698, 705 (D. Kan. 2000). Once this low burden of
relevance is established, the legal burden regarding the defense of a motion to
compel resides with the party opposing the discovery request. See Swackhammer
v. Sprint Corp. PCS, 225 F.R.D. 658, 661, 662, 666 (D. Kan. 2004) (stating that
the party resisting a discovery request based on overbreadth, vagueness, ambiguity,
or undue burden/expense objections bears the burden to support the objections).
Although the scope of discovery is broad, it is not unlimited. If the
proponent has failed to specify how the information is relevant, the Court will not
require the respondent to produce the evidence. Gheesling v. Chater, 162 F.R.D.
649 (D.Kan.1995). Even so, courts look “with disfavor on conclusory or
boilerplate objections that discovery requests are irrelevant, immaterial, unduly
burdensome, or overly broad.” Id., 650.
“Unless a request is overly broad, irrelevant, or unduly burdensome on its
face, the party asserting the objection has the duty to support its objections.”
Sonnino v. University of Kansas Hosp. Authority, 221 F.R.D. 661, n. 36
(D.Kan.2004) (citing Hammond v. Lowe's Home Ctrs., Inc., 216 F.R.D. 666, 670
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(D.Kan. 2003)); Cont’l Ill. Nat’l Bank & Trust Co. of Chicago v. Caton, 136
F.R.D. 682, 685 (D. Kan. 1991) (stating that a party resisting a discovery request
based on relevancy grounds bears the burden of explaining how “each discovery
request is irrelevant, not reasonably calculated to the discovery of admissible
evidence, or burdensome”). Thus, “the objecting party must specifically show in
its response to the motion to compel, despite the broad and liberal construction
afforded by the federal discovery rules, how each request for production or
interrogatory is objectionable.” Sonnino, 221 F.R.D. at 670–71 (internal citation
omitted).
2.

Claim of privilege.

Even assuming the Court finds the discovery requests at issue to be relevant,
the requested documents must also not be privileged to be discoverable. 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:
•

the United States Constitution;

•

a federal statute;

•

or rules prescribed by the Supreme Court.
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Plaintiff filed the present lawsuit in federal court based on the alleged violation by
Defendant Wesley Medical Center of a federal statute, EMTALA. The Act does
not contain 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 medical
malpractice cause of action against all Defendants. In response to certain
discovery requests at issue, Defendant has asserted the peer review/risk
management privilege, which has been codified by the Kansas legislature at K.S.A.
§ 65-4915, et seq. That statutory scheme 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).
The issue thus before the Court is whether and/or how the Kansas state court
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statutory peer review privilege applies 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. 062486-CM-DJW, 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 the recent decision of 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 EMTALA, a federal statute. A pendant state court
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cause of action is also alleged. The parties briefs do not necessarily discuss
whether certain evidence at issue relates to Plaintiff’s EMTALA claim or the state
court medical malpractice claim, or both. Thus, the Court will attempt to make the
determination. In so doing, the Court holds that evidence relating only to
Plaintiff’s federal claim 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. Sonnino, 220 F.R.D. at 644. On the other hand, evidence
relating only to Plaintiff’s pendant state law cause of action will be subject to the
privilege to the extent it was adequately asserted by Defendant. 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.
B.

Requests for Production at Issue.
1.

Request No. 15.

Request No. 15 seeks the “Emergency Department medical staff section
committee meeting minutes from 2008 to present.” (Doc. 78-3, at 4.) Defendant
objects that these minutes “are part of Wesley’s Peer Review and Risk
Management Program, thus are protected by K.S.A. 65-4915 and K.S.A. 65-4925.”
(Id.) Defendant also raises a relevance objection “as neither Michael Sellers, or his
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care, are mentioned in any of the notes.” (Id.) Finally, Defendant objects to the
relevance of any notes created after November 27, 2009 (the date the deceased was
seen in the emergency room). (Id.)
The Court finds that Plaintiff’s request, as written, is not relevant on its face
because of the sheer overbreadth of the request. A request for production of
documents is “overbroad” if the description of the subject matter sought is so
general (or nonexistent) that the request, if honored literarily, would result in the
production of irrelevant documents, and if the request unfairly shifts the burden to
the respondent to determine what is relevant within the request or to guess what the
requestor is actually seeking (e.g., a request that a defendant produce copies of all
his e-mails).
An overly broad request may be, but is not necessarily, vague – the intent of
the request may be clear from its verbiage. Also, an overly broad request may be,
but is not necessarily, unduly burdensome. For example, a respondent may be able
to comply with a request to provide a disk copy of all documents on his computer
hard drive with little effort – yet such a request remains patently overly broad in its
scope. A requestor is not permitted to simply ask for all documents in a parties’
possession, then thumb through and to determine for himself what might be
relevant or, through a motion to compel and request for in camera inspection,
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expect a court to do so. A request must be devised in such a way that fairly targets
documents “relevant to any party’s claim or defense.” Fed. R. Civ. Proc. 26(b)(1).
The open-ended nature of Request No. 15 implicates too many potential
subjects and Plaintiff has failed to provide the Court with a compelling argument to
the contrary. Defendant’s objection is sustained and the portion of Plaintiff’s
motion relating to Request No. 15 is DENIED.
2.

Request No. 20.

This request seeks “[a]ll emergency department or committee records,
meeting minutes, and documents that discuss EMTALA compliance, 2002 to
present.” (Doc. 78-3, at 6.) Defendant Wesley objected in response on grounds of
overbreadth, burdensomeness, and irrelevance. (Id.) Defendant also objects “to
providing any Ethics and Compliance Committee meeting records or minutes as
violating peer review and risk management privilege.” (Id.)
The Court finds that any implicated documents referring to EMTALA or
discussing “legal compliance” regarding patient emergency room screening
procedures, as to any medical condition, are discoverable. Such documents would
clearly relate to Plaintiff’s federal EMTALA claim and, therefore, not be protected
by the state peer review/risk management statute. The Court does not limit this
holding to documents relating only to patients exhibiting chest pain. Other
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conditions could provide relevant evidence as to how screening procedures are
developed by Defendant.
The Court further overrules Defendant’s blanket objection to documents
created after November 27, 2009 – the date Plaintiff presented at Wesley’s
emergency room. Even so, the Court acknowledges that any relevance to policies
existing/created, and events that occurred, in 2009 diminishes as time extends
beyond that date. As such, the Court will order the production of all such
documents created on or before December 31, 2011. Plaintiff’s motion is
GRANTED in part and DENIED in part as to Request No. 20.
3.

Requests Nos. 30 and 31.

These requests relate to files maintained by Defendant regarding Defendant
Kathy Forred, M.D. and Defendant Valerie Aouad, P.A., including documentation
regarding staffing privileges, credentialing, investigations, complaints, and
contracts. (Doc. 78-3, at 9-10.) Defendant objects based on overbreadth and
relevance as to documents created after November 27, 2009. (Id.) For the reasons
set forth above, this objection is overruled regarding documents created on or
before December 31, 2011.
Defendant further objects that documents related to patient complaints are
irrelevant and continues that “portions of credentialing files and entire Quality file”
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are protected by the peer review/risk management privilege. Even so, Defendant
has produced various credentialing documents, as well as information regarding
training and the contracts at issue.
The Court finds that Plaintiff has not rebutted that the privilege applies to the
remaining documents and has not shown how the remaining documents are related
to the EMTALA claim. To the contrary, the documents at issue appear to be
relevant only to Plaintiff’s negligence claims and, therefore, subject to protection
from discovery under the state statutory privilege. However, to the extent a
document discusses screening procedures on patient(s) presenting with chest pain,
regardless of whether the screening procedure was followed, any such documents
currently being withheld by Defendant under a claim of privilege are to be
produced. Plaintiff’s motion is GRANTED in part and DENIED in part as to
Requests No. 30 and 31.
4.

Request No. 38.

Request No. 37, which is not at issue in this motion, sought all EMTALA
policies and procedures applicable on November 27, 2009. (Doc. 78-3, at 11.)
Request No. 38, which is at issue, ask for copies of policies and procedures
“demonstrat[ing] any changes, edits, additions, or modifications of the items
produced in response to” Request No. 37. (Id.) Defendant objects on the bases of
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overbreadth, burdensomeness, and irrelevance “to Michael Sellers’ care given on
November 27, 2009 . . . .” (Id.)
The Court overrules Defendant’s objection and orders the production of any
edits to the documents produced in response to Request No. 37 that occurred up to
and including December 31, 2011. Evidence of changes to these policies and
procedures is relevant to the policies themselves. Also, any edits raise the issue of
whether Defendant wanted to change the procedure followed by medical staff
versus whether it changed its policy to conform to what the medical staff was
already doing. Both are relevant to Defendant’s underlying policies. Plaintiff’s
motion is GRANTED as to Request No. 38.
5.

Request No. 41.

Request for Production No. 41 seeks annual reports for the “Emergency
Department and/or STEMI/ACS Collaborative Team” from 2005 to the present,
“including those that explain the rationale for ACS management based upon
interpretation and local implementation of the medical literature, including all
reports that focus upon ‘risk scores,’ ‘assessment tools’ and ‘risk stratification’ in
the ED ‘chest discomfort’ patient.” (Doc. 78-3, at 12.) Defendant objects that the
time frame of the request is overly broad, seeks irrelevant information and
“invades the peer review and risk management privileges as asserted in the
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Privilege Log herein.” (Id.) Defendant also objects “to production of the Chest
Pain Center Steering Committee and Cardiovascular Team Meeting minutes as
constituting Peer Review and Risk Management Privilege.” (Id.)
The Court finds that the information implicated by this request is closely
enough related to the EMTALA screening claim to potentially result in relevant
information. As such, the state statutory privilege does not apply. Plaintiff’s
motion is GRANTED as to Request No. 41.
6.

Request No. 50.

Request No. 50 seeks all rules and guidelines “received from or authored or
co-authored by defendant Emergency Services, P.A.” (Doc. 78-3, at 15.)
Defendant objects to the temporal and subject matter breadth of the request. (Id.)
Defendant also objects that the request implicates documents protected by the state
statutory peer review and risk management privileges. In response to Defendant’s
objections, Plaintiff has restricted the request “to ‘rules, protocols, standards of
care, guidelines, or other similarly termed documents in the possession, custody, or
control of this defendant and received from or authored or co-authored by
defendant Emergency Services, P.A.’ which address EMTALA and/or a patient
presenting with chest discomfort in the ED.” (Doc. 78, at 34.)
For reasons set forth previously, the Court finds that any such documents
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produced from 2004 through December 31, 2011, are to be produced. Documents
included in Defendant’s privilege log, however, need not be produced because
Plaintiff failed to challenge the privilege in this motion to compel. The motion, as
written, focuses “QUEAS-E updates,” with no discussion of the other types of
documents. (See Doc. 78, at 34-35.) According to Plaintiff, the QUEAS-E
documents are no longer at issue. Therefore, arguments regarding any other types
of documents, such as the annual ER quality book, have been waived by Plaintiff’s
failure to address them in the motion. Plaintiff’s motion is GRANTED in part
and DENIED in part as to Request No. 50.
7.

Request No. 59.

This request seeks documents discussing or referencing “the consideration,
development, or institution of any policy to not have cardiologists over-read EKG
results obtained in the emergency department or elsewhere in the hospital.” (Doc.
78-3, at 17.) Defendant Wesley objects on the basis of relevance, temporal
breadth, and because the request is “not restricted to the Emergency Department
where Michael Sellers received care.” (Id.) Defendant also raises the peer review
and risk management privilege. (Id.) In the motion to compel, Plaintiff expresses
a willingness “to narrow this request to the emergency department” and now
“seeks production of those minutes relating to the cardiology over-reads with other
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topics redacted.” (Doc. 78 at 37.) As such, Defendant’s relevancy objections are
satisfied and the only issue remaining is whether meeting minutes discussing
cardiologist over-reads are covered by the Kansas peer review or risk management
privileges.
At the hearing, Defendant argued that to the extent this topic is relevant, it is
more appropriately raised as a line of deposition questioning as opposed to a Rule
34 document request. Regardless of which discovery method is more
“appropriate,” it is Plaintiff’s prerogative to choose the method of discovery she
prefers.
Parties may choose the manner and method in which they
conduct discovery. The Federal Rules provide several
vehicles for discovery. Parties may choose their preferred
methodology. Courts generally will not interfere in such
choices.
White v. Union Pac. R. Co., No. 09-1407-EFM-KGG, 2011 WL 721550, at *2 (D.
Kan. Feb. 22, 2011) (citing McCloud v. Board of Geary County Com'rs, No.
06–1002–MLB, 2008 WL 3502436, at *2 (D.Kan. Aug. 11, 2008); Audiotext
Communications Network, Inc. v. U.S. Telecom, Inc., No. 9402395–GTV, 1995
WL 625962, at *5 (D.Kan. Oct. 5, 1995)).
Further, the Court finds that, based on the information in the parties’ briefs
and presented by way of oral argument at the hearing, the subject of over-reads
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could potentially be part of the EMTALA screening process. Thus, within
Plaintiff’s self-imposed limitations, the Court GRANTS Plaintiff’s motion as to
Request No. 59.

IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel (Doc.
78) is GRANTED in part and DENIED in part as more fully set forth herein.
The documents to be produced by Defendant Wesley in compliance with this Order
shall be provided to Plaintiff’s counsel on or before November 21, 2012.
Dated at Wichita, Kansas, on this 31st day of October, 2012.

S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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