Owusu v. Michigan Department of Corrections Pain Management Committee et al

Filing 99

ORDER Granting 52 Motion for Protective Order; and 71 and 83 Motions to Compel - Signed by Magistrate Judge Mona K. Majzoub. (LBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

NATHANIEL K. OWUSU,
Plaintiff,
v.

CIVIL ACTION NO. 16-cv-12490
DISTRICT JUDGE JUDITH E. LEVY

MICHIGAN DEPARTMENT OF
MAGISTRATE JUDGE MONA K. MAJZOUB
CORRECTIONS PAIN
MANAGEMENT COMMITTEE, et al.,
Defendants.
__________________________________/

OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR PROTECTIVE
ORDER [52] AND MOTIONS TO COMPEL DISCOVERY FROM PLAINTIFF [71] [83]
Plaintiff Nathaniel K. Owusu, a state inmate in the custody of the Michigan Department
of Corrections (MDOC), filed this pro se prisoner civil rights action against Defendants
Michigan Department of Corrections Pain Management Committee (PMC), Corizon Health, Inc.,
Gary R. Kerstein, William C. Borgerding, Keith Papendick, M.D., Craig Hutchinson, M.D.,
Timothy Kangas, Teri Byrne, Corey Grahn, N.P., Bryan D. Buller, M.D., Teresa Merling,
Michael A. Millette, Susan N. Wilson, N.P., Danielle M. Paquette, P.A., Michael Brown,
Heather Haapala, Oliver L. Johnston, and Connie D. Lester on June 30, 2016, pursuant to 42
U.S.C. § 1983, alleging violations of his First, Eighth, and Fourteenth Amendment rights.
(Docket no. 1; docket no. 1-1.)1 Generally, Plaintiff alleges that while he was incarcerated at the
Michigan Reformatory (RMI) in Ionia, Michigan, the Chippewa Correctional Facility (URF) in
Kincheloe, Michigan, and the Lakeland Correctional Facility (LCF) in Coldwater, Michigan

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Defendant Kerstein has not yet been served despite numerous attempts by this Court and the United States
Marshals Service.

from 2011 to 2016, Defendants denied him adequate medical treatment for his pain and liver
disease. (See id.)
This matter comes before the Court on three motions filed by Defendants Corizon,
Papendick, Hutchinson, Buller, Grahn, Wilson, Paquette, Millette, and Johnston (the Corizon
Defendants): a Motion for HIPAA Disclosure Order and/or Qualified Protective Order (docket
no. 52), and two Motions to Compel Discovery from Plaintiff (docket nos. 71 and 83). Plaintiff
did not respond to Defendants’ Motion for Protective Order. Plaintiff did respond, however, to
both of Defendants’ Motions to Compel (docket nos. 73 and 86), and Defendants replied to
Plaintiff’s Responses (docket nos. 74 and 92). This action has been referred to the undersigned
for all pretrial purposes. (Docket no. 8.) The Court has reviewed the pleadings and dispenses
with oral argument pursuant to Eastern District of Michigan Local Rule 7.1(f). The Court is now
ready to rule pursuant to 28 U.S.C. § 636(b)(1)(A).
I.

Motion for HIPAA Disclosure Order and/or Qualified Protective Order [52]
Through their Motion, the Corizon Defendants argue that to proceed properly in this

matter, where Plaintiff alleges that he did not receive timely and/or appropriate treatment for his
neck, back, and shoulder pain, “it is necessary for Defendants herein to discuss Plaintiff’s
medical conditions/treatment and the anticipated testimony with Plaintiff’s health care
providers.” (Docket no. 52 at 13, 18-19.) Defendants therefore seek the entry of a qualified
protective order allowing them to engage in ex parte communications with Plaintiff’s health care
providers.2 Notably, Defendants point out that qualified protective orders permitting ex parte
communications with health care providers are contemplated by HIPAA and are regularly

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Defendants make clear in their Motion that they seek entry of a protective order solely for the purpose of engaging
in ex parte communications with Plaintiff’s health care providers, not for the purpose of obtaining Plaintiff’s
medical records from his health care providers. (Docket no. 52 at 18.) They assert that the normal discovery
process “works perfectly fine” for obtaining medical records. (Id.)
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allowed by federal courts. (Id. at 13-19 (citing 45 C.F.R. §164.512; Croskey v. BMW of N. Am.,
No. 02-73747, 2005 WL 4704767 (E.D. Mich. Nov. 10, 2005); Shropshire v. Laidlaw Transit,
Inc., No. 06-10682, 2006 WL 6323288 (E.D. Mich. Aug. 1, 2006); Brigham v. Colyer, No. 092210-JWL-DJW, 2010 WL 2131967 (D. Kan. May 27, 2010)).)
By failing to respond to Defendants’ Motion, Plaintiff has waived any objection.
Moreover, the Court agrees with Defendants that entry of a qualified protective order is
appropriate and that Defendants’ proposed protective order aligns with the requirements of
HIPAA and applicable case law. Therefore, the Court will grant Defendants’ Motion.
II.

Motions to Compel Discovery from Plaintiff [71] [83]
The Corizon Defendants served their First Set of Interrogatories and Requests for

Production (RFPs) on Plaintiff on October 25, 2016. (Docket no. 71 at 10; docket no. 71-1.)
They served their Second Set of Requests for Production on Plaintiff on December 5, 2016. (Id.;
docket no. 71-2.) The Second Set consisted of one RFP for a signed authorization of the release
of Plaintiff’s medical records from the MDOC, which Defendants subsequently amended and reserved upon Plaintiff on December 9, 2016. (Id.; docket no. 71-3.) On January 12, 2017, having
not received responses from Plaintiff, the Corizon Defendants filed the instant (and their first)
Motion to Compel Discovery from Plaintiff, seeking Plaintiff’s full and complete responses to
the aforementioned discovery requests. (Docket no. 71.)
In response, Plaintiff sent Defendants’ counsel a letter on January 18, 2017, in which he
advised that he was working on their interrogatories and claimed that his delay in responding
was due to the fact that he is “a pro se prisoner laboring under the heavy burden of illness,
infirmity, and severe, debilitating pain.” (Docket no. 73 at 11.) Plaintiff further advised that he
would have appreciated it if Defendants had concurred with him directly before filing the

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Motion, in accordance with Federal Rule of Civil Procedure 37(a)(1). (Id.) Additionally,
Plaintiff enclosed with his letter the signed authorization for the release of his medical records
from the MDOC, and he asked Defendants for an additional thirty days to fully respond to their
other pending requests. (Id.)
Plaintiff also filed a formal response to Defendants’ Motion with the Court on February
7, 2017. (Docket no. 73.) In his Response, Plaintiff asserts that the Motion should be denied
because Defendants failed to seek concurrence from Plaintiff before filing the Motion in
accordance with Federal Rule of Civil Procedure 37(a)(1) and Eastern District of Michigan Local
Rule 7.1. (Id.) Plaintiff claims that had Defendants properly sought concurrence, he would have
informed them that his delay was not dilatory and that he was endeavoring in good faith to
comply with their requests. (Id. at 8.) Defendants replied to Plaintiff’s Response on February
14, 2017, arguing that it had been more than 113 days since they served their First Set of
Interrogatories and Requests for Production upon Plaintiff, and they had still not received
Plaintiff’s responses, which demonstrated Plaintiff’s unwillingness to engage in a good faith
effort to comply with their requests. (Docket no. 74.)
On February 13, 2017, Plaintiff sent another letter to Defendants’ counsel, in which he
informed that he would not sign the Minute Man Services, Inc. authorization forms for the
release of his medical, employment, or educational information (see RFP no. 1 of Defendants’
First Set of Requests for Production) because he was concerned about the re-disclosure clause
printed on the forms. (Docket no. 86 at 22-23.) The re-disclosure clause states, “Information
obtained with this release may be subject to re-disclosure by the recipient and will no longer be
protected by rule 164.508(c) of the HIPAA regulations.” (See, e.g., docket no. 71-1 at 21.) In
his letter, Plaintiff claimed that he was “loathe to authorize such a release that waives [his]

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privilege subject to further unauthorized release.” (Docket no. 86 at 22.) He also claimed that
Defendants were already in possession of some of the information they sought to obtain through
the Minute Man authorizations because it was part of his MDOC medical records, and with
regard to the remaining information, he was willing to provide it through means other than the
Minute Man Services authorization forms. (Id.) Plaintiff then reiterated that he would not agree
to any disclaimer that authorized the re-disclosure of his medical information. (Id.) According
to Plaintiff, Defendants never responded to his concerns regarding the re-disclosure clause, and
he therefore did not provide the requested signed authorizations. (Docket no. 86 at 9.)
While Defendants’ first Motion to Compel was pending, they served their Third Set of
Requests for Production of Documents on Plaintiff on June 5, 2017. (Docket no. 83 at 11;
docket no. 83-1.) The Third Set consists of one RFP for a signed authorization form for the
release of Plaintiff’s medical records from War Memorial Hospital in Chippewa County,
Michigan. (Id.) The authorization form is a Minute Man Services, Inc., form, substantially
similar to the forms at issue with regard to Defendants’ First Set of Requests for Production, and
it contains the same re-disclosure clause.

(Docket no. 83-1 at 4.)

Plaintiff responded to

Defendants’ Third Set of Requests for Production in a June 21, 2017 letter, again stating that he
would not authorize the release of any records that are subject to re-disclosure by the recipient.
(Docket no. 83-2 at 1.) He also informed that the only contact that he ever had with War
Memorial Hospital was for an EMG performed by Dr. Robert Spitzer on March 31, 2014, the
records of which were included in his MDOC medical records and are already in Defendants’
possession. (Id.)

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Defendants then filed their second Motion to Compel on June 28, 2017, with regard to
their Third Set of Requests for Production.3 (Docket no. 83.) Plaintiff filed a Response (1)
opposing Defendants’ Motion again on the basis that they failed to seek concurrence; and (2)
seeking a protective order against Defendants’ “attempt to force [P]laintiff to authorize the
release of certain medical records subject to redisclosure by a third party, Minute Man Services,
Inc., in violation of the Health Information Portability and Accountability Act (HIPAA), which
records the defendants already possess via a previously authorized release.” (Docket no. 86 at
1.) Defendants replied to Plaintiff’s Response, but did not directly address Plaintiff’s concerns
about authorizing the re-disclosure of his medical information. (Docket no. 92.) Instead,
Defendants assert that “Plaintiff’s continued refusal to provide access to his medical records
based on the ‘redisclosure’ provision underscores that Plaintiff will only provide a signed release
if ordered to do so.” (Id. at 4 (citation omitted).)
According to Plaintiff, he served his responses to Defendants’ First Set of Interrogatories
and Requests for Production upon Defendants on February 23, 2017 (except for the signed
Minute Man Services, Inc. authorization forms). (Docket no. 86 at 9, 24-40.) And as noted
above, Plaintiff has signed and produced to Defendants the authorization for the release of his
medical records from the MDOC, which was the subject of Defendants’ Second Set of Requests
for Production. (See docket no. 73 at 11.) Thus, it appears that the only remaining issue is
whether Plaintiff should be compelled to sign the Minute Man Services, Inc. authorization forms
for the release of his medical, employment, and educational information, which are the subject of
Defendants’ RFP no. 1 in their First Set of Requests for Production and the sole RFP in their
Third Set of Requests for Production.
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Interestingly, the Legal Argument portion of Defendants’ brief in support of their second Motion to Compel is a
mirror image of the argument made in their first Motion to Compel, and it does not in any way relate to Defendants’
Third Set of Requests for Production. (Compare docket no. 83 at 13 with docket no. 71 at 12.)
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Defendants’ RFP no. 1 of their First Set of Requests for Production asks Plaintiff to
complete the Minute Man Services, Inc. authorization forms so that Defendants may obtain
copies of Plaintiff’s medical, employment, and educational records from each of the health care
providers, employers, and educational institutions that Plaintiff identified in his responses to
Defendants’ Interrogatory nos. 1-4. (Docket no. 71-1 at 15.) The RFP contained in Defendants’
Third Set of Requests for Production asks Plaintiff to produce a signed Minute Man Services,
Inc. authorization form for the release of his medical records from Chippewa County War
Memorial Hospital. (Docket no. 83-1.) The Court has reviewed Defendants’ Interrogatory nos.
1-4 in conjunction with the aforementioned RFPs and finds that the records sought by
Defendants are relevant to Plaintiff’s Eighth Amendment claims and Defendants’ defenses
thereto and that they are proportional to the needs of this case. The Court is therefore inclined to
grant Defendants’ Motions to Compel and order Plaintiff to produce the signed Minute Man
Services, Inc. authorization forms for the release of his medical, employment, and educational
records in accordance with Defendants’ Requests for Production.
Plaintiff argues that he should not be compelled to produce the signed authorizations
because Defendants’ counsel failed to confer with him before filing the instant Motions.
Pursuant to Eastern District of Michigan Local Rule 7.1(a)(2)(C), however, Defendants’ counsel
was not required to seek concurrence because Plaintiff is an incarcerated prisoner proceeding pro
se. Plaintiff also argues that some of the records Defendants seek through the Minute Man
Services forms are already in Defendants’ possession because they are also part of his MDOC
medical records. Plaintiff’s argument in this regard is unconvincing, especially where Plaintiff
asserted at one point that the only existing records from War Memorial Hospital related to an

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EMG performed by Dr. Robert Spitzer, and he then later admitted to having a liver ultrasound
performed at War Memorial Hospital. (Compare docket no. 83-2 at 1 with docket no. 86 at 12.)
Plaintiff further argues against production of the signed authorizations because of the
standard re-disclosure clause printed on the Minute Man Services forms. The Court understands
Plaintiff’s concerns regarding the re-disclosure of his private medical information, and to address
those concerns in granting Defendants’ Motions to Compel, the Court will order that any
information obtained by Minute Man Services, Inc. pursuant to Plaintiff’s signed releases of his
records may be disclosed only to Defendants’ counsel, the employees of Defendants’ counsel, or
experts retained by Defendants; that such records may be used only for the purposes of this
litigation; and that the records must be destroyed upon the conclusion of this litigation.
IT IS THEREFORE ORDERED that Defendants’ Motion for HIPAA Disclosure Order
and/or Qualified Protective Order [52] is GRANTED. Defendants will re-caption their proposed
protective order at docket no. 52-1 as “HIPAA QUALIFIED PROTECTIVE ORDER” and
submit it to the Court via the Utilities function of CM/ECF for entry within seven (7) days of this
Opinion and Order.
IT IS FURTHER ORDERED that the Corizon Defendants’ Motions to Compel
Discovery from Plaintiff [71] and [83] are GRANTED as follows:
a. Plaintiff is ordered to complete a separate Minute Man Services, Inc. authorization
form for the release of his records from each health care provider, employer, and
educational institution that he identified in response to Defendants’ Interrogatory nos.
1-4 (by filling in the “To:” line on the form with the name of the provider, employer,
or institution), sign and date those forms, and produce them to the Corizon
Defendants within thirty (30) days of this Opinion and Order;

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b. Plaintiff is also ordered to sign the Minute Man Services, Inc. authorization form for
the release of his medical records from Chippewa County War Memorial Hospital
and produce it to the Corizon Defendants within thirty (30) days of this Opinion and
Order; and
c. Any information obtained by Minute Man Services, Inc. pursuant to Plaintiff’s signed
releases of his records may be disclosed only to Defendants’ counsel, the employees
of Defendants’ counsel, or experts retained by Defendants; such records may be used
only for the purposes of this litigation; and the records must be destroyed upon the
conclusion of this litigation

NOTICE TO THE PARTIES
Pursuant to Federal Rule of Civil Procedure 72(a), the parties have a period of fourteen
days from the date of this Order within which to file any written appeal to the District Judge as
may be permissible under 28 U.S.C. § 636(b)(1).

Dated: September 7, 2017

s/ Mona K. Majzoub
MONA K. MAJZOUB
UNITED STATES MAGISTRATE JUDGE

PROOF OF SERVICE
I hereby certify that a copy of this Order was served upon Plaintiff and counsel of record
on this date.
Dated: September 7, 2017

s/ Lisa C. Bartlett
Case Manager

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