Lewis et al v. Cain et al

Filing 679

RULING: Granting in part and denying in part 661 Motion for Sanctions. To the extent the motion calls for procedural sanctions, Plaintiffs motionfor an extension of time to produce expert reports in and through May 3, 2022 is GRANTED. Plaintiffs motion that the Court order the Defendants to cover the costs of Plaintiffs experts review of the supplemental eMARs is DENIED. Signed by Chief Judge Shelly D. Dick on 4/4/2022. (ELW)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

JOSEPH LEWIS, JR., ET AL.

CIVIL DOCKET

VERSUS

15-318-SDD-RLB

BURL CAIN, ET AL.

RULING
This matter is before the Court on Plaintiffs’ Motion for Discovery Sanctions.1 The
Defendants have filed an Opposition,2 to which Plaintiffs filed a Reply,3 and Defendants
filed a Sur-Reply.4 For the following reasons, Plaintiffs’ Motion is GRANTED in part and
DENIED in part.
I.

BACKGROUND5
The remedy phase of this matter is set for trial on 6/6/2022 through 6/17/2022.

Following a Status Conference held on 12/15/2021, the Court entered a scheduling order
with various discovery and filing deadlines.6 The Court set February 18, 2022 as the
deadline for the completion of fact discovery.
II.

ISSUES PRESENTED
The basis of the present Motion for Sanctions is the Plaintiffs’ request for

1

Rec. Doc. 661.
Rec. Doc. 668.
3
Rec. Doc. 678.
4
Rec. Doc. 676.
5
The Court provided a synopsis of the prior proceedings in its Ruling Denying Defendants’ Motion for
Protective Order. See Rec Doc. 645.
6
Id.
2

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production of the “complete medical records” of 67 class members.7 Plaintiffs allege
discovery violations and move for Sanctions for two reasons: 1) the failure of the
Defendants to include Electronic Medication Administration Records (“eMARS”) in the
initial production of the medical records of 37 patients; 2) tardiness and incomplete
production of the medical records of the remaining 30 patients. “Regarding the other
30 medical records the Court ordered Defendants to produce, Plaintiffs were able to
reach a compromise with Defendants.”8 Thus, while it undisputed that the Defendants
were significantly late in producing the requested medical records,9 the Court will take
up only the issue of the Defendants’ recalcitrance and delay in producing the eMARS.
A.

eMARS

Plaintiffs submit that the Defendants “initially produced the 37 records of deceased
patients on a rolling basis between February 16 and February 28.”10 In response to
Plaintiffs’ counsel’s inquiry as to the completeness of the 37 patient records produced, on
March 4, 2022, defense counsel advised that
The medical records provided include all records in each patient’s medical
chart during the relevant period. We cannot confirm or deny that the medical
charts include all medical administration records. There may be additional
MARs records [sic] that would not necessarily be included in the charts
provided.11
After more back and forth between the parties, the Defendants advised that
eMARS were not included in the medical records production because eMARS “are

7

Plaintiffs’ Third Set of Requests for Remedy Phase Production of Documents, Rec. Doc. No. 661-2.
The Defendants moved for a Protective Order regarding the scope and breadth of discovery aimed at 67
Class members. The Motion was Denied. Rec Doc. 645. At the Defendants’ request, the Court extended
the discovery deadline to February 25, 2022.
8
Rec. Doc. 661-1.
9
According to the Defendants’ brief, “By the Court’s deadline of February 25, 2022, Defendants had
produced twenty-nine (29) of the sixty-seven records requested.” Rec Doc. 668.
10
Rec Doc 661-1.
11
Rec. Doc. 661-3.

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maintained separately.” Defendants committed to production of the eMARS for this
subset of 37 Class members by March 23, 2022.12
Plaintiffs move the Court to order Defendants to pay Plaintiffs’ experts’ fees for the
time spent re-reviewing charts after learning that the medical records were incomplete.
Plaintiffs further seek an extension of 2 weeks (until May 3, 2022) to supplement their
medical expert reports with findings from reviewing late produced records.
Defendants respond that “eMARs are not part of an offender’s physical medical
record (unless portions of them happen to be printed out and placed into the physical
record) nor were they ever requested by Plaintiffs in their written discovery.”13 The Court
finds the argument disingenuous. Defendants anemically argue that Plaintiffs did not
define the terms “medical records” in their discovery requests and did not specifically
request eMARs.14 It defies logic to suggest that a patient’s medical record does not
include the patient’s medication record. The Court construes this as an argument of
convenience to avoid sanctions.
B. Timeliness
Defendants respond that LSP is shorthanded and the medical records are
voluminous. Ultimately, Defendants hired a vendor to “assist LSP’s Medical Records
Department”, and Defendants submit that they “completed production of the requested
medical records on March 16, 2022.”15
Defendants bemoan that the Plaintiffs offered to help them find a scanner and/or
a vendor who could assist with scanning and copying medical records but that they

12

Id.
Rec. Doc. 668.
14
Id.
15
Id.
13

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received “no meaningful assistance” from the Plaintiffs. It is axiomatic that the party
seeking discovery has utterly no obligation to assist their opponent in the task. Reliance
on what may have been a well-intentioned offer of assistance is no defense.
LAW AND ANALYSIS
Parties are obliged to supplement their discovery responses upon learning that the
disclosure or response is incomplete. Fed. Rule Civ. P. 26(e). On March 4, 2022,
Defendants revealed that eMARS had gone substantially unproduced. Yet, as of the date
of filing their Opposition to the instant Motion, the production of the eMars was still
incomplete.16
It is undisputed that Defendants were considerably untimely in their production.
The Defendants concede as much:


“production was essentially completed by March 16, 2022”17



“by March 16, 2022, they had satisfied Plaintiffs’ request for ‘complete
medical records’ because eMARs are not maintained as part of the medical
record at LSP”18



“Plaintiffs have now [March 28, 2022] received most of the eMARs”19

Defendants argue they were unable to provide complete medical records by
February 25, 2022, and their incomplete and tardy production “was substantially justified,
[thus] an award of expenses is not warranted.”20 Plaintiffs argue that “Rule 37’s discovery
sanction is mandatory unless the failure to disclose is harmless or without substantial

16

Note 17, infra.
Rec. Doc. 668, p. 5.
18
Id. at p. 6.
19
Id. at p. 9, This statement in Defendants’ Opposition to the Motion for Sanctions is an acknowledgment
that as of March 28, 2022, production of medical records is still incomplete.
20
Id.
17

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justification.”21 This is not a case presenting a failure to disclose; thus, the Court finds the
imposition of sanctions is discretionary. The Defendants ultimately agreed to produce the
eMARS; thus, the mandatory exclusion provision of Rule 37(c)(1) is not triggered.22
The Defendants’ argument that they were unable to provide complete medical
records falls flat and is incongruent with the Defendants’ steadfast argument that eMARS
were not within the scope of the Plaintiffs request for “complete medical records.” It is
clear to the Court that LSP either overlooked the eMARS or took the troubling position
that a patient’s medication records are not part of the patient’s medical record. If the
eMARS were overlooked because they were stored electronically and not part of the
physical patient record, once the oversight was discovered, supplementation was
required. Instead of acknowledging non-production as an oversight, Defendants doubled
down on the position that the eMARS did not comprise part of the medical record. That
untenable position warrants the imposition of sanctions.
Additionally, the Court finds the delayed production of the eMARS, which was still
incomplete as of March 28,23 created a hardship on the Plaintiffs’ experts’ ability to
prepare opinions and reports. In fact, the Defendants concede that the Plaintiffs’ experts
may not have had complete medical records at any time during this protracted litigation.
“Defendants cannot definitively say that complete eMARs were or were not produced to
Plaintiffs during the liability phase of trial.”24

21

Rec. Doc. 661-1 (citing Quanta Servs., Inc. v. Am. Admin. Grp., Inc., 384 F. App’x 291, 295 n.2 (5th Cir.
2008); see also Caskey v. Man Roland, Inc., 1996 U.S. App. LEXIS 45287, at *15-16 (5th Cir. Mar. 18,
1996)).
22
If a party fails to provide information as required by Rule 26(e), the party “is not allowed to use that
information … to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially
justified or is harmless.” Fed. R. Civ. P. 37(c)(1).
23
Note 17, supra.
24
Rec. Doc. 668, p. 7.

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Accordingly, Plaintiffs’ Motion for Discovery Sanctions25 is GRANTED in part and
DENIED in part. To the extent the motion calls for procedural sanctions, Plaintiffs’ motion
for an extension of time to produce expert reports in and through May 3, 2022 is
GRANTED. Plaintiffs’ motion that the Court order the Defendants to cover the costs of
Plaintiffs’ experts’ review of the supplemental eMARs is DENIED.
IT IS SO ORDERED.
Baton Rouge, Louisiana, this 4th day of April, 2022.

S

________________________________
SHELLY D. DICK
CHIEF DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA

25

Rec. Doc. 661.