Thomas et al v. Nationwide Children's Hospital, Inc. et al

Filing 76

OPINION AND ORDER denying 50 MOTION to Compel the Burley Plaintiffs to Produce Executed Authorizations for Release of Child Abuse and Neglect Investigation Files. Signed by Magistrate Judge Terence P. Kemp on 3/7/2016. (agm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Daniel Thomas, et al.,

:

Plaintiffs,

:

v.

:

:
Nationwide Children’s Hospital,
Inc., et al.,
:
Defendants.

Case No. 2:14-cv-1236
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

:
OPINION AND ORDER
I.

Introduction

In their second amended complaint, the three sets of
Plaintiffs - Anna and Daniel Thomas, Chad and Lori Burley, and
Jessica Rose and Russell Moore, together with their children allege that the Defendants, including Nationwide Children’s
Hospital and its employees, conspired to violate the rights of
parents and children who sought medical treatment at the
hospital.

More specifically, they claim that, in their

respective cases, after they sought treatment for their children,
hospital employees ordered additional medical tests not for the
purpose of diagnosis and treatment, but in order to gather
evidence for possible criminal prosecution for child abuse.

In

some instances, that involved bringing other children into the
hospital for testing.

All of the parents assert that they did

not give informed consent to these procedures, and that medical
information was provided to third parties, such as the Columbus
Division of Police or Franklin County Children’s Services,
without their consent as well.

The complaint includes claims

sounding in assault, false imprisonment, violation of the
physician-patient privilege, negligent or reckless infliction of
emotional distress (asserted only by Anna Thomas), and violations

of the First, Fourth, Fifth, and Fourteenth Amendments to the
United States Constitution.
The case is currently before the Court to consider a motion
to compel, filed by Defendants and directed only to the Burley
Plaintiffs.

As described in more detail below, the motion raises

an issue about the relevance of child abuse and neglect
investigation files maintained by the North Carolina Division of
Social Services and Franklin County Children Services.

For the

following reasons, the motion will be denied.
II.

The Discovery Dispute

A.

The Parties’ Arguments

On July 6, 2015, Nationwide Children’s Hospital and other
Defendants filed a motion titled “Motion to Compel Executed
Authorizations for Release of Mental Health Records” (Doc. 50).
The motion seeks “an Order compelling Plaintiffs Chad and Lori
Burley to produce executed authorizations directed to the North
Carolina Division of Social Services and Franklin County Children
Services for the release of child abuse and neglect investigation
files.”

Id. at 1.

As support for their request, Defendants note that, as it
relates to the current case, one of the Burleys’ children was
taken to Nationwide Children’s Hospital when only 19 days old,
and was subsequently diagnosed with a depressed skull fracture.
At some point during the treatment of that child, Ms. Burley told
a hospital employee that she (Ms. Burley) had lost custody of
three older children, who were then residing with their maternal
grandmother.

The change of custody occurred while Ms. Burley was

living in North Carolina, and allegedly was related to an
accusation of abuse against Ms. Burley’s then-husband.

According

to Defendants, that information was part of the reason they
suspected and investigated the possibility that the child whom
they were treating might have been a victim of abuse.

Defendants

assert that the details of any prior investigations of child

abuse are therefore relevant to the issue of the reasonableness
of their actions, and also might show that Ms. Burley was not
completely truthful about what she told hospital employees,
raising an issue as to her credibility.

Finally, they assert

that these records would show that Ms. Burley was familiar with
investigations of child abuse and would undercut her claim that
she believed she was not free to leave the hospital while her
child’s injury was being diagnosed.
The Burley Plaintiffs’ response begins by noting that this
case is primarily about the reasonableness or legality of the
actions taken by the Defendants when the Burleys’ child was taken
to the hospital for treatment, and not about the Burleys’ past
conduct.

At the time Defendants acted, they were unaware of the

contents of the records they now seek except for the information
which Ms. Burley gave to them.

As a result, according to the

Burleys, nothing in those records could have influenced
Defendants’ actions and, as a result, they are not relevant to
any claim or defense pleaded in this case.

The Burleys also

dispute that these records, even if they are not consistent with
what Ms. Burley told Nationwide Children’s Hospital personnel,
would be admissible on the issue of credibility, pointing out
that impeachment through such evidence is not permitted under
Fed.R.Evid. 608(b).
In reply, Defendants, after observing that the scope of
discovery is necessarily broad, offer five reasons why the
Burleys’ relevance argument is unpersuasive: (1) Ms. Burley
herself thought that information about past child abuse was
relevant to the Defendants’ actions because she volunteered it;
(2) any claim which turns on the Burleys’ state of mind, such as
the false imprisonment claim, must be judged in light of their
past contact with child abuse investigations; (3) the records,
while themselves perhaps inadmissible on the issue of
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credibility, may still provide information which could be used to
cross-examine Ms. Burley; (4) the same is true if Ms. Burley
testifies at trial that she was not familiar with child abuse
investigation protocols; and (5) the one case relied on in the
Burleys’ memorandum, Doran v. Priddy, 534 F.Supp. 30 (D. Kan.
1981), arose out of a medical malpractice case and is not
pertinent to the issues raised by Defendants’ motion to compel.
B.

Discussion

The Court begins by noting that neither side has cited any
cases directly on point.

Defendants cite a number of cases which

contain general pronouncements about discovery, but none of them
involve the type of claims presented here.

The case cited by the

Burleys is, as Defendants observe, a medical malpractice case,
and there are no such claims in the Burleys’ complaint.

The

claims presented in this case are, although they fall into wellrecognized categories like false imprisonment and rendering of
medical treatment without consent, based on a set of facts which
is not typical of such claims.

It is hard to conceive of other

situations where it might be argued that a nine-year-old record
of suspected child abuse is relevant to a false imprisonment
claim.

Further, most cases which involve a discovery request

directed to records of a child abuse investigation involve an
assertion - usually made by the agency which conducted the
investigation - that the records are confidential or privileged
and not subject to disclosure, and it is usually the plaintiff
who has asked for them.

See, e.g., Wenk v. O’Reilly, 2012 WL

4089892 (S.D. Ohio Sept. 17, 2012).

The current motion presents

practically the opposite scenario, and the Court’s research has
not turned up any other cases in which an issue like this one has
been presented.

The Court is therefore required to begin with

more general principles and to deduce its conclusions
accordingly.
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The first general principle of significance here - apart
from the fact that the scope of discovery is broad, a principle
that helps the Court resolve doubtful cases in favor of
permitting discovery but which has little use in this case beyond
that - is that the more directly relevant information is, the
more likely it is that its production will be ordered, even if
there are good arguments as to why it should not be disclosed.
The converse is also true, however.

The records here - at least

the North Carolina records, which appear to be the only ones at
issue since the Burleys have agreed to sign a release as to
investigative records from Franklin County arising out of the
incident which gave rise to the lawsuit - do not pertain to the
child who was brought in for treatment in July, 2014.
was only nineteen days old at the time.

That child

As the Court understands

the statement given by Ms. Burley, the three children taken away
from her by North Carolina authorities were all ten years old or
older in 2014, and the investigation centered around the alleged
abuse of the oldest child by Ms. Burley’s then-husband when that
child was three.

The Court infers from this information that the

records predate the July, 2014 incident by approximately nine
years.

Further, Ms. Burley did not say that she was suspected of

abuse of those children, and Defendants have presented nothing to
suggest that she was.

At a minimum, therefore, it is fair to say

that nine-year-old records of an abuse investigation involving
different children and a different alleged perpetrator are not
going to contain the most important information in this case.
They certainly have nothing to do with the state of mind, or the
reasonableness of the actions, of any of the Defendants, who were
clearly unaware of the contents of those records when they
decided to pursue the course of action which resulted in the
Burleys’ suit against them.

And they almost certainly contain

information, even if it simply confirms the gist of Ms. Burley’s
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statements, which is both sensitive and potentially prejudicial.
With those general considerations in mind - all of which
suggest that the records might not be a proper subject of
discovery - the Court turns to the two substantive reasons which
Defendants advance as to why the records are relevant.

Briefly

stated, Defendants’ argument is that the records would shed light
on Ms. Burley’s state of mind at the time she was allegedly
falsely imprisoned, and that they could be used in various ways
to impeach her testimony.
The state of mind argument relates to the false imprisonment
claim.

That claims appears to have been asserted under Ohio law,

which provides that “[f]alse imprisonment entails intentionally
confining a person without lawful privilege and against her
consent within a limited area for any appreciable time, however
short.”

Bennett v. Ohio Dept. of Rehab. & Corrections, 60 Ohio

St.3d 107, 109 (1991).

As far as what constitutes confinement,

Ohio courts have cited with approval this language from Corpus
Juris Secundum:
Submission to the mere verbal direction of another,
unaccompanied by force or by threats of any character,
cannot constitute a false imprisonment... [F]alse
imprisonment may not be predicated on a person's
unfounded belief that he was restrained.
See, e.g., Lester v. Albers Super Markets, Inc., 94 Ohio App.
313, 317 (Hamilton Co. App. 1952).

Stated another way, Ohio law

recognizes that an “imprisonment” occurs when “a reasonable
person would [not] have felt ‘free to leave’ under the
circumstances.”

Cf. State v. Rutherford, 93 Ohio App. 3d 586,

597 (Montgomery Co. App. 1994).

The fact that an unfounded, even

if sincerely held, belief is not enough to support a false
imprisonment claim, and that the focus is on what a reasonable
person would have concluded from the circumstances, illustrates
that inquiry about whether someone was actually restrained is an
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objective one.

See also Kalbfell v. Marc Glassman, Inc., 2003 WL

21505264, *5 (Columbiana Co. App. June 26, 2003), where the court
held “that ordering plaintiff to follow, in such a manner and
under such circumstances that plaintiff reasonably believes she
must so follow, is sufficient to establish confinement” (emphasis
supplied); cf. Michigan v. Chesternut, 486 U.S. 567, 574
(1988)(describing the “free to leave” test as an “objective
standard...”).
Given that legal backdrop, Ms. Burley’s subjective belief
about whether she was “imprisoned” is irrelevant.

The Court and

the jury (if the case gets to that point) will have to determine
what a reasonable person in her position would have believed
about being free to leave, not what she believed.

Additionally,

the records in question may well not contain anything pertinent
to

her subjective perception of the situation at Children’s

Hospital in July, 2014.

For example, it is not clear that, as

part of the North Carolina proceedings, the child in question was
ever taken to a hospital, nor is it clear that Ms.Burley was
present if and when that happened, nor that the personnel of that
hospital may have said something to her about her freedom to
leave during an examination of the child (especially if she was
not the one suspected of abuse).

For all of these reasons, the

Court concludes that it is not reasonably likely that production
of those records would lead Defendants to some piece of evidence
which would be either relevant or admissible on the issue of
false imprisonment.
Defendants’ only other substantial argument is that the
records might have some impeachment value.

There is no question

that discovery of impeachment evidence is permissible because
such evidence can be both relevant and admissible at trial.
However, there are limits on the scope of impeachment discovery
as well; otherwise, the discovery rules would permit a party to
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search for evidence that, at any time and in any situation, an
adverse party or a witness may have been less than truthful.

The

Court does not believe that, for example, an interrogatory asking
a party to state if “he has ever lied to anyone in the past; and,
if so, please provide details and identify documents about each
such instance” would be a proper discovery inquiry.
As the Burleys point out, under Rule 608, specific instances
of prevarication are not admissible to prove that a witness is
generally untruthful.

Rather, Rule 608(a) allows only reputation

or opinion evidence to be introduced on that subject, and Rule
608(b) prohibits the introduction of extrinsic evidence that a
witness has, in the past, told lies.

See, e.g., Gale v. City of

Tecumseh, 156 Fed.Appx. 801 (6th Cir. Dec. 15, 2005)(holding that
the trial court acted properly in excluding evidence designed
solely to show that a witness had lied at some other time about
something other than his trial testimony).

While trial

admissibility is not the touchstone of discovery relevance, it is
certainly a factor to be considered.
Here, Defendants are not contending that the truth or
falsity of the statements Ms. Burley made to them in July, 2014
is, of itself, important.

Even though the statements in question

involved a prior instance where Ms. Burley had children taken
from her, the fact that she made those particular statements to
Defendants does not appear to be any more significant than the
fact that she may have said other things as well.

Suppose she

had also said that she bought a new Cadillac the day before;
would Defendants now be entitled to compel her to produce the
documents relating to that transaction on the theory that those
documents (or the lack of them) showed that she lied?

It would

be hard to argue that the admittedly broad scope of discovery
reaches that far, and no such evidence could be presented at
trial to show that Ms. Burley was generally not a truthful
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person.

Defendants’ argument here fares no better.

And their

related argument that she might testify at trial to something
inconsistent with the North Carolina records, which rests on the
assumption that testimony about the North Carolina abuse
investigation will be permitted at trial, is too speculative at
this point to justify an order compelling her to authorize the
release of those records.

If she does give such testimony and

thereby opens the door to cross-examination about what happened
in North Carolina, Defendants may then be entitled to the
records, but since none of that has occurred, any order
compelling disclosure would be premature.

The Court therefore

concludes that Defendants have not made a showing of relevance
sufficient to support their request for these particular records,
and it will deny their motion to compel.
III.

Conclusion

For the foregoing reasons, the motion to compel the Burley
Plaintiffs to execute a release (Doc. 50) is denied.
IV.

Motion to Reconsider

Any party may, within fourteen days after this Order is
filed, file and serve on the opposing party a motion for
reconsideration by a District Judge.

28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,
pt. IV(C)(3)(a).

The motion must specifically designate the

order or part in question and the basis for any objection.
Responses to objections are due fourteen days after objections
are filed and replies by the objecting party are due seven days
thereafter.

The District Judge, upon consideration of the

motion, shall set aside any part of this Order found to be
clearly erroneous or contrary to law.
This order is in full force and effect even if a motion for
reconsideration has been filed unless it is stayed by either the
Magistrate Judge or District Judge.
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S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp
United States Magistrate Judge

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