Johnson v. Federal Bureau of Prisons

Filing 54

ORDER granting in part and denying in part as moot 47 ; denying 50 . The Court grants in part 47 plaintiffs motion for protective order, but denies as moot the request to define the parameters of the IME. The parties are ORDERED to meet and con fer no later than 11/15/2017 to agree to the terms of a proposed protective order. An attorney for the defendant with authority to negotiate the terms of a protective order shall attend the meet-and-confer. The parties shall submit their pro posed protective order to the Court no later than 11/17/2017 as an attachment to a joint status letter of no more than three pages explaining each partys position with respect to any portion of the order on which the parties cannot agree. The Court denies 50 plaintiffs motion to compel production of the NAPHCare agreement, but plaintiff may submit a letter to the Court as provided herein. The defendant shall provide plaintiff with a copy of Dr. Garrays report by 11/30/2017. The parties shall endeavor to complete depositions by 12/11/2017. A status conference is scheduled for 12/13/2017 at 4:30 p.m. So Ordered by Magistrate Judge Cheryl L. Pollak on 11/9/2017. (Blase, Brendan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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LAYNE W. JOHNSON,
Plaintiff,
MEMORANDUM AND ORDER
16 CV 3919 (AMD) (CLP)

-againstFEDERAL BUREAU OF PRISONS,
Defendant.
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POLLAK, United States Magistrate Judge:

Plaintiff Layne W. Johnson (“plaintiff”) filed this action pro se on April 23, 2015 against
the Federal Bureau of Prisons (“BOP” or “defendant”). He brings his claim under the Federal
Tort Claims Act, 28 U.S.C. §§ 1346, 2671–80, to recover for injuries he sustained by virtue of
alleged negligent medical treatment he received from October 2012 through January 2014 while
he was incarcerated in the Metropolitan Detention Center (“MDC”) in Brooklyn. Plaintiff
proceeded pro se until February 2, 2017, at which time he became represented by pro bono
counsel.
On October 18, 2017, the Court held a status conference to discuss the progress of this
case and to address plaintiff’s outstanding motions.

DISCUSSION
A. Plaintiff’s Motion for Protective Order Regarding Confidential Records
1. The Parties’ Positions
On July 13, 2017, plaintiff, now represented by counsel, filed a motion seeking a

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protective order to ensure that any confidential and sensitive information shared during the
course of the litigation, such as his medical records, will be treated confidentially. (Pl.’s MPO,
July 13, 2017, ECF No. 47).
In opposition, the defendant argues that the motion for protective order should be denied
because the plaintiff “waived any privilege pertaining to these records” by bringing suit, and
because plaintiff, while proceeding pro se, already signed releases for the production of his
medical records absent a protective order. (See Def.’s Opp’n at 1-2, July 20, 2017, ECF No. 48).
Defendant argues that requiring the defendant to file confidential medical records under seal
would be “prejudicial to the defendant and against sound public policy favoring public access to
the claims and defenses set forth by the parties.” (See id. at 2).
Plaintiff offers three arguments in reply. (See Pl.’s Reply, July 24, 2017, ECF No. 49).
Plaintiff first argues that defendant confuses privilege with privacy. (Id. at 1). He is not
withholding any records from the defendant, but instead seeks to guard such records against
public dissemination. (Id.) Second, plaintiff explains that a protective order does not govern
what will end up being sealed if used in connection with the proceedings, but instead “sets forth
a procedure to help the parties identify what documents or information may be subject to a
sealing request.” (Id. at 2). Finally, plaintiff argues that “[w]hen Mr. Johnson signed releases
for the production of his medical records, he was pro se and not aware of the need for a
protective order to guard his privacy interests. Given his pro se status at the time, his failure to
request a protective order should not serve as an ‘inadvertent forfeiture’ of his right to privacy in
his medical records.” (Id. at 3). That is particularly so, he argues, in light of the “special
solicitude” afforded to pro se litigants. (Id.)
At the status conference, defendant’s counsel from the United States Attorney’s Office

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(“USAO”) presented additional arguments in opposition to the issuance of a protective order.
Specifically, the defendant argued that the USAO has never entered into a protective order
regarding a plaintiff’s medical records in a personal injury or medical negligence case such as
this. According to counsel, such an order is unnecessary given the USAO’s promise not to
misuse the records. Counsel also raised concerns that plaintiff, who is now represented by a firm
that defendant contends is “highly litigious,” would use the protective order as the basis for a
motion to hold the defendant and its counsel in contempt. In response, plaintiff explains that he
seeks only to ensure prospectively that his confidential information is not shared outside of this
litigation to the extent possible in light of the time that has passed without a protective order in
place. Plaintiff further argues that a protective order should be unobjectionable given that the
defendant has already pledged to keep the medical records confidential.
2. Good Cause for Protective Order
Rule 26 of the Federal Rules of Civil Procedure empowers the Court to issue a protective
order upon a showing of “good cause” to “protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.” Fed. R. Civ. P. 26(c)(1). The
regulations promulgated to implement the Health Insurance Portability and Accountability Act of
1996 (“HIPAA”), Pub. L. No. 104–191, 110 Stat. 1936 (1996), explicitly contemplate that both
state and federal courts will issue protective orders in the form of a “HIPAA-Qualified Protective
Order” to allow covered health providers to disclose a patient’s medical information. See 45
C.F.R. §§ 164.512(e)(i)-(ii). To enable a covered entity to release such information, the
protective order must specifically provide that: (1) the parties are prohibited from using or
disclosing protected health information for a purpose other than that for which it was requested,

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and (2) any information provided in response to such an order must be returned to the provider or
destroyed at the end of the litigation. See 45 C.F.R. § 164.512(e)(v)(A)-(B).
Thus, federal courts routinely issue protective orders to ensure the confidentiality of
medical records. That is so even in proceedings such as this, where the plaintiff has put his
medical condition at issue. The Court has carefully reviewed each of the cases cited by the
defendant and concludes that plaintiff is correct: each of the cases cited by the defendant arose
when a party sought a protective order to prevent the other party from obtaining discovery of
certain medical records—sometimes even when a confidentiality order was already in place.
These cases are entirely different from the situation before this Court, where the plaintiff is not
resisting disclosure of the records to the defendant, but seeks only to limit how such confidential
medical records may be used. See, e.g., Magee v. Paul Revere Life Ins. Co., 172 F.R.D. 627,
635 (E.D.N.Y. 1997) (explaining that plaintiff sought to place medical records “outside the reach
of discovery” altogether); see also Romano v. SLS Residential Inc., 298 F.R.D. 103, 112–14
(S.D.N.Y. 2014) (explaining that individuals who did not opt out of a class action suit were
“deemed to have waived any privilege” in their medical records, thereby ensuring that
defendants are “given the right to access pertinent documents in order to defend themselves” by
way of a HIPAA-qualified protective order); Floyd v. SunTrust Banks, Inc., 878 F. Supp. 2d
1316, 1327 (N.D. Ga. 2012) (observing that medical records become subject to discovery “when
a litigant alleges matters that put her medical status at issue). (See Def.’s Opp’n at 1).
The most recent case defendant relies on, Romano v. SLS Residential, Inc., recognizes
that although a plaintiff waives his privilege in medical records by putting his medical condition
at issue, such a waiver simply subjects the records to disclosure in discovery but does not deprive
the records of all protection. See Romano v. SLS Residential Inc., 298 F.R.D. at 113. (See

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Def.’s Opp’n at 1-2). Indeed, as the Romano court observed, notwithstanding the waiver
subjecting the records to discovery, “it is plainly appropriate to shield [the plaintiff’s] identit[y]
and course of treatment from the public by requiring that these documents be treated on an
‘attorney’s eyes only’ basis—that is, limited in their disclosure to counsel, designated experts,
attorneys’ staff, and court staff—for present purposes.” Romano v. SLS Residential Inc., 298
F.R.D. at 113. That is precisely what plaintiff proposes the Court should order in this case.
In opposing any protective order, the defendant suggests that entering a protective order
will result in a veritable parade of horribles: plaintiff’s allegations would appear in the public
record while defendant is forced “to place its entire defense under seal;” the defendant “must file
under seal medical records documenting the very care plaintiff critiques” in his filings; all of
defendant’s expert and deposition testimony will have to be placed under seal because it deals
with medical care; and the public will be deprived of its right of access to this litigation. (See
Def.’s Opp’n at 2).
The defendant’s concerns about the issue of sealed filings in these types of cases have
been addressed in the cases the defendant cites in opposition. Thus, although it is true that a
protective order may provide guidance to the parties regarding what documents it might be
appropriate to seal and how such documents should be presented to the Court, the decision to
allow documents to be filed under seal in connection with motions and court proceedings is a
wholly separate inquiry governed by a different standard than whether to maintain documents
disclosed in discovery in confidence. In determining whether documents should be filed under
seal, courts engage in a two-part inquiry.
First, the court decides how strong a presumption of access a document deserves with
reference to its role in the judicial process. Next, the court will “balance the weight of that

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presumption, if any, with competing interests, namely, the private interests and concerns of
judicial efficiency and law enforcement, to determine whether or not to seal a document.”
Cumberland Packing Corp. v. Monsanto Co., 184 F.R.D. 504, 506 (E.D.N.Y. 1999).
A “judicial document” is one that is presented to the Court and “relevant to the
performance of the judicial function and useful in the judicial process.” United States v.
Amodeo (“Amodeo I”), 44 F.3d 141, 145 (2d Cir. 1995). Such documents are presumptively
subject to public inspection and thus not properly sealed. See id. at 146. The presumption of
access that attends judicial documents stems both from the common law tradition and from the
Constitution: “[a]s the exercise of Article III [judicial] powers is a formal act of government, it
should be subject to public scrutiny absent exceptional circumstances.” Cumberland Packing
Corp. v. Monsanto Co., 184 F.R.D. at 505.
In contrast to judicial documents, “[d]ocuments that play no role in the performance of
Article III functions, such as those passed between the parties in discovery, lie entirely beyond
the presumption’s reach . . . and stand on a different footing than a motion filed by a party
seeking action by the court or . . . any other document which is presented to the court to invoke
its powers or affect its decisions.” United States v. Amodeo (“Amodeo II”), 71 F.3d 1044, 1050
(2d Cir. 1995) (emphasis added) (citations and quotation marks omitted). It is these documents
the proposed protective order will govern.
A protective order of the type discussed above and proposed by the plaintiff does not, as
defendant argues, require that all documents or testimony related to the plaintiff’s medical
condition be sealed. Rather, the protective order governs how and to whom the parties may
disclose confidential information, and what must be done with such information at the

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conclusion of litigation. It therefore primarily governs documents that have not been presented
to the Court and which will not be considered in exercising the judicial function.
As the Court in Romano v. SLS Residential Inc. observed, it is up to the Court, once the
parties have engaged in discovery and seek to present documents for the Court’s substantive
consideration, to determine whether the documents should be sealed. That inquiry, however, is
properly postponed until the issues crystallizes over the course of litigation and is presented to
the Court in connection with a motion or trial. See Romano v. SLS Residential Inc., 298 F.R.D.
at 113 (observing that “[w]hether this regime [established by a protective order] needs to be
altered for trial may be addressed at a later stage”).
The Court is not persuaded by the defendant’s arguments that a protective order should
not issue. Even if the Court were to credit counsel’s assertion that the USAO never enters into
protective orders to ensure the confidentiality of medical records, such historical happenstance
does not alter the fact that Rule 26 empowers the Court to enter such an order and the HIPAA
implementing regulations promulgated by the executive branch explicitly contemplate that such
orders will issue. The defendant’s concerns about the potential for a contempt citation are
similarly unfounded, especially given counsel’s representation to the Court that the USAO is
committed to ensuring the confidentiality of medical records. Any concerns about past failure to
adhere strictly to any confidentiality order are adequately handled by the protective order’s
prospective-only application. The protective order may not be used to punish the defendant, its
counsel, or it experts retroactively.
The Court therefore grants plaintiff’s motion for a protective order. The parties are
Ordered to meet and confer no later than November 15, 2017 to agree to the terms of a proposed

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protective order. 1 At the conference, counsel for defendant suggested that he is not authorized to
negotiate the terms of a protective order, but instead will require approval from a supervisor. If
that is the case, counsel shall attend the meet-and-confer with his supervisor by the appointed
date. The parties shall then submit their proposed protective order to the Court no later than
November 17, 2017 and shall attach a joint letter of no more than three pages explaining each
party’s position with respect to any disagreements.
B. Motion to Compel Parameters of Medical Examination
1. The Parties’ Positions Regarding the Examination
In plaintiff’s same July 13, 2017 motion, he also seeks to compel the defendant to specify
the parameters of the proposed medical examination as required by Rule 35 of the Federal Rules
of Civil Procedure. (See Pl.’s MPO at 2-3). Plaintiff acknowledges that he has agreed in
principle to the examination, but seeks to require the defendant to specify the “time, place,
manner, conditions, and scope” of the examination. (Id. at 2). Plaintiff argues that if the parties
do not agree to the examination and its parameters, the defendant will be unable to proceed with
the examination absent intervention by the Court.
Defendant’s entire opposition reads as follows:
Plaintiff, at the request of defendant has reached out to Jonathan
Garay, D.O., to schedule an independent medical exam. Dr. Garay
is a New York licensed physician specializing in rehabilitation
medicine with decades of practice. He keeps an office in Manhattan
and will, of course, examine plaintiff in his office.

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At the status conference, counsel for defendant stated he will not agree to any protective
order. As the Court explained at the conference, the Court will enter a protective order, but is
ordering the parties to attempt to agree on what the terms of that order should be.

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There is no reason to issue a protective order regarding Dr. Garay’s
examination of plaintiff and, therefore, plaintiff’s application should
be denied as without merit.
(Def.’s Opp’n at 3-4).
2. The Examination
Rule 35 empowers the Court to order a physical examination of a party “only on motion
for good cause” and with notice to all parties. Fed. R. Civ. P. 35(a)(2)(A). Should the Court
decide to require an examination, the order “must specify the time, place, manner, conditions,
and scope of the examination, as well as the person or persons who will perform it.” Fed. R. Civ.
P. 35(a)(2)(B) (emphasis added); see Schlagenhauf v. Holder, 379 U.S. 104, 117–18 (1964).
While trial courts regularly decide whether good cause exists to permit discovery, they do not
have the requisite medical expertise to enable them to set forth with specificity the manner,
conditions, and scope of physical or mental examinations. Such determinations are best left,
whenever possible, to the parties in consultation with their respective medical professionals
rather than judges. That is particularly true given that Rule 35 is a blunt instrument that requires
courts, ab initio, to establish parameters that ideally would be capable of change in response to
the examiner’s findings during the course of the examination. It is perhaps for this reason that
“physical and mental examinations are usually arranged by stipulation of the attorneys, with
[Rule 35] standing as a compulsory sanction that helps to produce stipulations.” Herrera v.
Lufkin Industries, Inc., 474 F.3d 675, 689 (10th Cir. 2007) (quoting Wright & Miller, Federal
Practice & Procedure § 2234 (2d ed. 1994)).
That is precisely what happened in this case. At the conference, the Court reviewed with
the parties, in broad terms, what would be appropriate for any such medical examination, but did

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not enter an order to that effect setting forth with specificity each element required by Rule 35.
The examination was scheduled to take place on October 31, 2017. Given that neither party has
sought the Court’s intervention, the Court assumes that the examination went forward on the
stipulation of the parties and that motions seeking the Court’s intervention with respect to the
examination are therefore moot.
C. Motion to Compel Production of NAPHCare Payment Agreement
On October 2, 2017, plaintiff filed a motion seeking to compel the defendant to produce
the agreement in effect between the Bureau of Prisons and NAPHCare during the time that
plaintiff was injured, which governed payment of outside providers of medical services to
inmates at MDC. (See Pl. Mot. to Compel, Oct. 2, 2017, ECF No. 50). The defendant
references NAPHCare and the payment agreement in several interrogatory responses, but refuses
to produce it. (Id. at 2). The basis for the refusal, according to plaintiff’s letter, is that “it would
be too burdensome for [defendant] to produce the NAPHCare agreement itself.” (Id.) Plaintiff
argues the agreement is relevant to show “potential bias” and “the standard of care or the
allocation of responsibilities between [d]efendant and any external care providers.” (Id.)
The defendant opposes the motion to compel by arguing that the agreement is not
relevant. (Def.’s Opp’n to Mot. to Compel, Oct. 3, 2017, ECF No. 51). Even if the agreement
were relevant to the issue of bias, the defendant explains that it has offered to stipulate that
defendant paid for the care plaintiff received and that “the mere fact of payment should allow
plaintiff to make [his] argument [about bias] at trial.” (Id. at 2). The defendant also argues that
the payment agreement is not at all relevant to the standard of care because it is universally

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acknowledged that “[t]he details of payment are irrelevant to the allocation of duties among
medical practitioners.” (Id.)
The Court discussed the issue with the parties at the October 18, 2017 conference. Based
on the parties’ arguments, it was unclear to the Court whether this NAPHCare agreement applied
in any way to the doctors employed by the MDC, or would have any bearing on the relevant
standard of care for the doctors who are alleged to have been negligent in treating the plaintiff.
Although the plaintiff argued the agreement might reveal payments or incentives to outside
doctors, it is not clear how such payments to third parties would affect the MDC doctors whose
care is at issue. Plaintiff also argues that the agreement is relevant to the issues of allocation of
the standard of care and bias, but was unable to elaborate those arguments with any specificity.
Thus, the Court denies plaintiff’s motion to compel production of the NAPHCare
agreement. Plaintiff may, however, articulate the potential relevance of the NAPHCare
agreement with particularity in a letter to the Court, setting forth specific topics he believes the
agreement may address and why they are relevant to his claim that defendant’s doctors at the
MDC were negligent in rendering care to him. If the plaintiff is able to articulate the relevance
of such topics, the Court will reconsider its decision denying the request for production.

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CONCLUSION

For the reasons set forth above, plaintiffs motion for protective order is granted. The

parties are ORDERED to meet and confer no later than November 15. 2017 in order to agree to
the terms of a proposed protective order. An attorney for the defendant with authority to

negotiate the terms of a protective order shall attend the meet-and-confer. The parties shall
submit their proposed protective order to the Court no later than November 17, 2017 as an
attachment to a joint letter of no more than three pages explaining each party's position with
respect to any portion ofthe order on which the parties cannot agree.
Plaintiffs motion to compel the defendant to define the parameters for the October 31,
2017 medical examination of the plaintiff is denied as moot.

Finally, plaintiffs motion to compel production ofthe NAPHCare agreement is denied,
but plaintiff may submit a letter to the Court as provided above.

The defendant shall provide plaintiff with a copy of Dr. Garray's report by November 30,

2017. The parties shall endeavor to complete depositions by December 1L2017. A status
conference is scheduled for December 13,2017 at 4:30 p.m.

The Clerk is directed to send copies of this Order to the parties either electronically
through the Electronic Case Filing(ECF)system or by mail.
SO ORDERED.

Dated: Brooklyn, New York

/s/ Cheryl Pollak

November 9,2017

Cheryl L.P^ak
United Stat!^ Magistrate Judge
Eastern District of New York

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