Hubble et al v. Macomb, County of et al

Filing 63

AMENDED OPINION and ORDER re 62 OPINION and ORDER Overruling 40 Objection Signed by District Judge Paul D. Borman. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RUSSELL HUBBLE, as Personal Representative
of the ESTATE OF JENNIFER LYNN MYERS,
Deceased,
Plaintiff,

Case No. 16-cv-13504

v.

Paul D. Borman
United States District Judge
David R. Grand
United States Magistrate Judge

COUNTY OF MACOMB, et al.,
Defendants.
____________________________/

AMENDED1 OPINION AND ORDER (1) OVERRULING DEFENDANTS’
OBJECTION TO MAGISTRATE JUDGE GRAND’S AUGUST 23, 2017
ORDER; AND (2) ORDERING PRODUCTION OF THE CARE TEAM
AND MORTALITY REVIEW DOCUMENTS
This civil rights action is brought under 42 U.S.C. § 1983 by Russell Hubble
(“Hubble”), as Personal Representative of the Estate of Jennifer Lynn Myers
(“Myers”), who died on July 7, 2013, while incarcerated at the Macomb County Jail
in Mt. Clemens, Michigan serving a thirty (30) day sentence on an outstanding bench
warrant. Plaintiff sues (1) Macomb County, and Sheriff Anthony Wickersham in his

1

The only change to this Order appears at page 9, correcting the reference to the
briefs filed in Loyd to “Defendants’” briefs.
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individual and official capacities, along with several individual Macomb County jail
personnel, some of whom are named and some of whom are John/Jane Does pending
discovery of their identities (collectively “the Macomb County Defendants”); and (2)
Correct Care Solutions, LLC (“CCS”), the entity providing managed healthcare,
medical care, and/or mental health care to inmates at the Macomb County Jail, along
with several individual CCS medical providers (collectively “the CCS Defendants”),
some of whom are named and some of whom are John/Jane Does pending discovery
of their identities. Plaintiff claims that Defendants were deliberately indifferent to
Myers’ medical needs, and that the Defendants had in place official customs, policies,
and practices for screening and managing the care of individuals suffering from
serious medical conditions that were constitutionally deficient. The Complaint alleges
three separate Counts under 42 U.S.C. § 1983 and includes no state law claims.
I.

BACKGROUND
On July 13, 2017, Hubble filed a motion to compel the County and CCS

Defendants to produce certain documents, including Mortality Review and Care Team
Meeting Records kept by the CCS Defendants. (ECF No. 28, Motion to Compel.)
The CCS Defendants opposed production of the Mortality Review and Care Team
Meeting Records on the grounds that they were protected by Michigan’s Peer Review
Privilege, Mich. Comp. Laws § 333.21515. In an August 23, 2017 Order, Magistrate
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Judge David Grand ruled that Michigan’s peer review privilege does not apply in this
§ 1983 action, and ordered the CCS Defendants to produce the Mortality Review and
Care Team Meeting Records. (ECF No. 39, 8/23/17 Order.) The CCS Defendants
now object to the Magistrate Judge’s 8/23/17 Order requiring production of Mortality
Review and Care Team Reports. (ECF No. 40, Objection.) Plaintiff has filed a
Response to the Objections. (ECF No. 53.) For the reasons that follow, the Court
concludes that the Magistrate Judge’s Order is neither clearly erroneous nor contrary
to law and therefore OVERRULES the Objections and ORDERS CCS to produce the
requested documents within fourteen (14) days of the date of this Opinion and Order.
II.

STANDARD OF REVIEW
28 U.S.C. § 636(b)(1)(A) and Federal Rule of Civil Procedure 72(a) both

provide that a district judge must modify or set aside any portion of a magistrate
judge’s non-dispositive pretrial order found to be “clearly erroneous or contrary to
law.” 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a). The United States Supreme
Court and the Sixth Circuit Court of Appeals have stated that “a finding is ‘clearly
erroneous’ when although there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction that a mistake has been
committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948) (explaining
the clearly erroneous standard under Rule 52(a)); Hagaman v. Comm'r of Internal
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Revenue, 958 F.2d 684, 690 (6th Cir. 1992) (quoting U.S. Gypsum Co.). See also
United States v. Mandycz, 200 F.R.D. 353, 356 (E.D. Mich. 2001) (explaining the
standard under Rule 72(a)).
This standard does not empower a reviewing court to reverse the Magistrate
Judge’s finding because it would have decided the matter differently. Anderson v.
City of Bessemer City, N.C., 470 U.S. 564, 573 (1985) (interpreting the clearly
erroneous standard in Rule 52(a)). The Sixth Circuit has noted that: “[t]he question
is not whether the finding is the best or only conclusion that can be drawn from the
evidence, or whether it is the one which the reviewing court would draw. Rather, the
test is whether there is evidence in the record to support the lower court’s finding, and
whether its construction of that evidence is a reasonable one.” Heights Cmty. Cong.
v. Hilltop Realty, Inc., 774 F.2d 135, 140 (6th Cir. 1985).
“The ‘clearly erroneous’ standard applies only to the magistrate judge’s factual
findings; his legal conclusions are reviewed under the plenary ‘contrary to law’
standard. . . . Therefore, [the reviewing court] must exercise independent judgment
with respect to the magistrate judge’s conclusions of law.” Haworth, Inc. v. Herman
Miller, Inc., 162 F.R.D. 289, 291 (W.D. Mich.1995) (citing Gandee v. Glaser, 785 F.
Supp. 684, 686 (S.D. Ohio 1992)). “‘An order is contrary to law when it fails to apply
or misapplies relevant statutes, case law, or rules of procedure.’” Mattox v. Edelman,
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No. 12-13762, 2014 WL 4829583, at *2 (E.D. Mich. Sept. 29, 2014) (quoting Ford
Motor Co. v. United States, No. 08–12960, 2009 WL 2922875, at *1 (E.D. Mich.
Sept. 9, 2009)).
III.

ANALYSIS
CCS contends in its Objection that Magistrate Judge Grand committed legal

error in failing to conclude that the Sixth Circuit’s decision in Loyd v. Saint Joseph
Mercy Oakland, 766 F.3d 580 (6th Cir. 2014), is controlling precedent here and
requires a finding that “Michigan’s peer review privilege applies in the context of a
§ 1983 claim for deliberate indifference resulting in death.” (Objs. 1.) The Court
finds that Loyd is not controlling on the issue of whether Michigan’s peer review
privilege applies in the context of Plaintiff’s § 1983 claims and affirms Magistrate
Judge Grand’s ruling that Michigan’s peer review privilege is inapplicable in this case,
and does not shield production of the Mortality Review and Care Team Reports.
Plaintiff alleges three separate Counts in this civil rights action, each claim
arising under a federal statute, 42 U.S.C. § 1983. Where, as here, federal law supplies
the rule of decision “[t]he common law – as interpreted by United States courts in the
light of reason and experience – governs a claim of privilege unless . . . the United
States Constitution[,] a federal statute[,] or rules prescribed by the Supreme Court”
provide otherwise. Fed. R. Evid. 501. “ Questions of privilege are to be determined
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by federal common law in federal question cases. Fed. R. Evid. 501.” Reed v. Baxter,
134 F.3d 351, 355 (6th Cir. 1998). “Because this is a prisoner civil rights case brought
under § 1983, federal law supplies the rule of decision, and Rule 501 applies.”
Grabow v. County of Macomb, No. 12-cv-10105, 2013 WL 3354505, at *5 (E.D.
Mich. July 3, 2013).
The Supreme Court has recognized that Rule 501 “authorizes federal courts to
define new privileges,” but cautions that any such undertaking must “start with the
fundamental maxim that the public . . . has a right to every man’s evidence.” Jaffee
v. Redmond, 518 U.S. 1, 9 (1996) (internal quotation marks and citations omitted)
(alteration in original). “Exceptions from the general rule disfavoring testimonial
privileges may be justified, however, by a public good transcending the normally
predominant principle of utilizing all rational means for ascertaining truth.” Id. at 9
(internal quotation marks and citations omitted).
Federal courts have nearly uniformly declined to create a federal peer review
privilege. See Grabow, 2013 WL 3354505, at *6 (“The overwhelming majority of
federal courts agree that there is not a federal common law peer review privilege.”);
Dunn v. Dunn, 163 F. Supp. 3d 1196, 1206 (M.D. Ala. 2016) (“[N]early every United
States district court that has addressed the issue in the context of section 1983
litigation brought on behalf of jail or prison inmates has rejected the assertion of
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privilege.”); United States v. Jackson Madison County Gen’l Hosp., No. 12-cv-2226,
2012 WL 12899055, at *3 (W.D. Tenn. Oct. 16, 2012) (“The Respondent concedes
that neither the United States Supreme Court nor the Sixth Circuit has recognized a
federal peer review privilege. District courts in this circuit have declined to find the
existence of such a privilege under federal common law, as have a vast number of
other federal courts.”); Jenkins v. DeKalb County, Georgia, 242 F.R.D. 652, 659
(N.D. Ga. 2007) (“It appears that every United States Court of Appeals that has
addressed the issue of whether there is a federal medical peer review privilege has
rejected the claim. . . . Furthermore, nearly every United States district court that has
addressed the issue in the context of section 1983 litigation brought on behalf of jail
or prison inmates has rejected the assertion of privilege.”) (collecting cases);
Zamorano v. Wayne State Univ., No. 07-cv-12943, 2008 WL 2067005, at *5 (E.D.
Mich. May 15, 2008) (“Notably, every federal court of appeals that has addressed the
issue for purposes of federal common law has determined that there is no “federal”
peer review privilege.”) (Citing Jenkins, 242 F.R.D. at 659). As the district court
noted in Jenkins:
There are unique considerations at play in a post-death investigation
ordered by a county jail that dramatically weaken the case for
recognizing the privilege. A review of a deceased inmate is not the
straightforward evaluation of medical care that occurs in the civilian
context. The generation of post-death reports, including the one at issue
in this case, may include details such as when jail officials notified
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medical officials of a particular problem, and whether there was a reason
for non-medical officials to have monitored a situation more closely. The
report may verify the fact that a jail official failed to notify medical
personnel. Not only is this type of information “nonmedical,” but it is
also may shed light, or at least raise an inference, of jail customs or
policies.
242 F.R.D. at 660.
Despite the heft of case law declining to create a federal peer review privilege,
and despite the rule of law requiring this Court to apply federal privilege law in this
federal question case, CCS argues in its Objection that this Court is nonetheless bound
to apply Michigan’s peer review privilege here because Loyd has already determined
that Michigan’s peer review privilege “applie[s] in all sorts of federal lawsuits . . . .”
(Objs. at 4.) CCS misreads Loyd. As Magistrate Judge Grand correctly observed,
“the Loyd court never had a reason to analyze (and did not analyze) the arguments in
favor of, or against, applying a state privilege to a federal claim . . . [and] certainly did
not hold the Michigan’s peer review privilege applies to any and all ‘claims arising
out of federal law.’” (8/23/17 Order at 6.) Indeed, CCS concedes as much but argues
that this “holding” was implicit in Loyd because “[t]he Sixth Circuit could not reach
the ultimate holding in Loyd (that the privilege protected the report at issue) without
first affirmatively determining that the privilege applied in federal litigation . . .
[leaving] no doubt that Michigan’s peer-review privilege applies in all sorts of federal
lawsuits, including this one.” (Objs. at 4.) But such a holding is not “implicit” in
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Loyd and in fact a review of the briefing in Loyd, in both the District Court and the
Sixth Circuit, reveals that the parties expressly proceeded under the assumption that
the applicability of Michigan’s peer review privilege was only being determined with
respect to plaintiff’s state law claim for intentional infliction of emotional distress.
In Defendants’ briefs in both the District Court and in the Court of Appeals,
Defendants premised their argument with the statement that “[p]ursuant to Federal
Rule of Evidence 501, the state law of privileges applies to evidence relevant to
establishing an element of any claim or defense based on state law. In this case, the
PEERS report is only relevant, if at all, to Plaintiff’s IIED or IICR claims. The
PEERS report has no bearing on Plaintiff’s discrimination claims . . . .” (ECF No. 22
PgID 195, Dist. Ct. Case No. 12-cv-12567; ECF No. 33, Ct. of Appeals Case No. 132335 PgID 69.) Defendants in Loyd never raised the issue of the applicability of
Michigan’s peer review privilege to a federal claim in general, or specifically to one
asserted under § 1983. This certainly explains why neither the District Court nor the
Sixth Circuit discussed the issue that is presented here and dispels any notion that
Loyd stands for the broad proposition urged by CCS here. It is clear that the Sixth
Circuit in Loyd accepted this premise and never reached or was called upon to
consider the issue of whether Michigan’s peer review privilege would apply to a
federal statutory claim, or specifically to a claim under § 1983. Regardless of whether
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it was appropriate for the courts in Loyd to adopt this premise, it is clear that they did
and that the sole issue (as relevant here) briefed and decided in Loyd, as Magistrate
Judge Grand determined, was whether Michigan’s peer review privilege (which the
parties and the courts assumed applied only to plaintiff’s state law IIED claim) applied
to reports involving the actions of a hospital security guard, as opposed to a health
care worker, in the context of a purely state law claim. The “implicit holding” that
CCS seeks to glean from Loyd simply is not there. Notably, apart from one Western
District of Michigan opinion that the Court finds unpersuasive,2 the Court’s research
reveals that Loyd has never been cited for the broad proposition that Michigan’s peer
review privilege applies generally to federal claims brought in federal court. Not only
is Loyd not “binding precedent” as CCS suggests, it is not even persuasive authority
on the important issue presented here – an issue that has been decided contrary to
CCS’s proffered resolution by nearly every federal court in the country that has
confronted the issue.
None of the out-of-district cases cited by CCS in its Objection persuade the

2

The Court is simply not persuaded by Magistrate Judge Kent’s conclusion in Boykin
v. Allen, No. 15-cv-119, ECF No. 151 (W.D. Mich. Dec. 8, 2016), that the court was
bound by Loyd to apply Michigan’s peer review privilege in a somewhat analogous
§ 1983 wrongful death case. The short opinion in Boykin gives no indication that the
court there considered any of the important distinctions between Loyd and the instant
case discussed at length by Magistrate Judge Grand in his 8/23/17 Order and by this
Court here in affirming that Order.
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Court otherwise. In Nelson v. Green, No. 06-cv-70, 2014 WL 2695535, at *2 (W.D.
Va. June 12, 2014), the court explained, citing Fed. R. Evid. 501, that it would apply
Virginia’s peer review privilege only “[b]ecause the remaining claim in this case is a
state law claim before the Court under pendent jurisdiction, Virginia law governs the
determination of whether the documents at issue are protected from production by a
claim of privilege.” Cornejo v. Mercy Hospital and Medical Center, No. 12-cv-1675,
2014 WL 4817806 (N.D. Ill. Sept. 15, 2014), involved a personal injury/medical
malpractice claim and the court applied an Illinois peer review privilege without
analyzing whether or not the privilege should be applied in a federal proceeding. In
the third case, Elkharwily, M.D. v. Mayo Holding Co., No. 12-cv-3062, 2014 WL
3573674 (D. Minn. July 21, 2014), the court premised its discussion of the application
of the peer review privilege with the statement that “[w]here, as here, a plaintiff
alleges claims under both federal and state law, it is within the court’s discretion to
apply the state peer review privilege statute.” Id. at *3. But such discretion, which
apparently authorized the court in Elkharwily to apply the privilege there, was
seemingly foreclosed by the Sixth Circuit in Hancock v. Dodson, 958 F.2d 1367, 1373
(6th Cir. 1992) (“Since the instant case is a federal question case by virtue of the
appellant’s section 1983 claim, we hold that the existence of pendent state law claims
does not relieve us of our obligation to apply the federal law of privilege.”). See also
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Zamorano, 2008 WL 2067005, at *4 (“[T]he Sixth Circuit applies the federal law of
privilege to cases where there are both state and federal claims and where the court’s
jurisdiction is based on a federal question.”). In any event, there are no pendent state
law claims in this action.
Finally, the Court finds unpersuasive and disagrees with Judge Richard
Enslen’s decision to apply the peer review privilege in Hadix v. Caruso, No. 92-cv110, 2006 WL 2925270 (W.D. Mich. Oct. 6, 2006), a decision that has been cited only
to be disregarded by subsequent courts confronted with this issue. The Court is
persuaded by, and elects to follow, the reasoning and conclusion reached by Judge
Avern Cohn in Grabow, supra, and adopted by the vast majority of federal courts that
have squarely addressed this issue and have declined to apply a peer review privilege
in the context of a § 1983 claim.
Finally, the Court finds no basis for certification of this issue to the Sixth
Circuit. The issue presented does not involve a controlling question of law about
which there is substantial ground for difference of opinion and immediate appeal will
not materially advance the ultimate termination of the litigation. Accordingly, the
Court DENIES CCS’s request to certify the issue for immediate appeal to the Sixth
Circuit.
IV.

CONCLUSION
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For the foregoing reasons, the Court OVERRULES CCS’s Objection,
AFFIRMS the Magistrate Judge’s Order, and ORDERS CCS to produce the requested
documents within fourteen days of the date of the Opinion and Order.
IT IS SO ORDERED.

s/Paul D. Borman
Paul D. Borman
United States District Judge
Dated: December 1, 2017
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney
or party of record herein by electronic means or first class U.S. mail on December 1, 2017.
s/Deborah Tofil
Case Manager

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