Pitkin et al v. Corizon Health, Inc. et al
Filing
57
OPINION AND ORDER: Plaintiff's Motion to Compel 40 is GRANTED IN PART and DENIED IN PART. Signed on 12/18/2017 by Judge Ann L. Aiken. (ck)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
RUSSELL PITKIN and MARY PITKIN,
co-personal representatives of the Estate of
MADALINE PITKIN, deceased,
Case No. 3:16-cv-02235-AA
OPINION AND ORDER
Plaintiffs,
vs.
CORIZON HEALTH, INC., a Delaware
Corporation; CORIZON HEALTH, INC., a
Tennessee Corporation, WASHINGTON
COUNTY, a government body in the State of
Oregon; JOSEPH MCCARTHY, MD, an
Individual; COLIN STORZ, an individual;
LESLIE ONEIL, an individual; CJ
BUCHANAN, an individual; LOUISA DURU,
an individual; MOLLY JOHNSON, an
individual; COURTNEY NYMAN; an
individual; PAT GARRETT, in his capacity
as Sheriff for Washington County; JOHN
DOES 1-10; and JANE DOES 1-10,
Defendants.
AIKEN, District Judge:
The subject of this dispute is the death of Madaline Pitkin while she was in custody at
the Washington County Jail; defendant Corizon Health, Inc. was a contractor for Washington
Page 1 - OPINION AND ORDER
County, providing inmate health services in the jail while Ms. Pitkin was incarcerated there.
Before me is a discovery dispute between plaintiffs (the parents and representatives of the
deceased) and defendant Corizon Health, Inc. ("Corizon"). The parties disagree on the relevance
of documents plaintiffs have requested as well as on the applicability of certain privileges which
would bar production of those documents.
As explained in further detail below, plaintiffs'
Motion to Compel is granted in part and denied in part.
BACKGROUND
The case sits in the following procedural posture. On November 30, 2016, plaintiffs filed
suit against defendant Corizon and others, alleging violations of the Fourteenth Amendment to
the United States Constitution as well as the common law torts of wrongful death, negligence,
and gross negligence. With respect to the common law claims, plaintiffs seek to hold Corizon
liable for the torts of its employees under the theory of respondeat superior. Discovery began in
January 2017. I ordered an extension of the discovery period on September 8, 2017. On October
20, 2017, plaintiffs filed this motion. Plaintiffs request production of
1) Copies of any and all documents relating to Corizon's [S]entinel Event 1
Review Committee and the Sentinel Event investigation, its findings and
recommendations compiled in the aftermath of Madaline Pitkin's death;
2) Copies of any and all documents relating to Corizon's "Procedure In the Event
of an Inmate Death" process as required by the National Commission on
Correctional Healthcare Standard J-A-10, including but not limited to: any
administrative review or clinical mortality review performed in the aftermath of
the death of Madaline Pitkin; and
3) Copies of any and all complaints, settlements and judgments regarding actions
filed against Corizon for the ten (I 0) year period preceding the death of Madaline
Pitkin alleging death caused by Corizon's negligence or violations of 42 U.S.C.
Section 1983 involving withdrawal from opiate or other drug use.
1
"A Sentinel Event is defined as an event involving death or serious physical or
psychological illness/injury or risk thereof.
Corizon sentinel events include: ... [a]ll
[m]ortalities age less than 60[.]" Jones Deel. Ex.Cat 1Oct.20, 2017 (doc. 41).
Page 2 - OPINION AND ORDER
4) Copies of all depositions and related exhibits taken in the case of Johnson v.
Corizon Health Care, Inc., No. 6:13-CV-01855-TC (D. Oregon).
5) Copies of any and all documents within Corizon's possession relating to the
investigation by the Oregon State Board of Nursing (BON) into Cheryl Buchanan,
Molly Johnson, and other Corizon employees, relating to the death of Madaline
Pitkin, including, but not limited to, all correspondence from the defendants to the
BON, including any complaints filed by the defendants with the BON as well as
any correspondence from the BON or the Corizon employees under investigation.
Pis.' Mot. to Compel 2. Corizon opposes plaintiffs motion, offering different rationales for each
document, but generally raising concerns about irrelevance and overbreadth and asserting the
peer review and attorney-client privileges as well as the attorney work product doctrine.
LEGAL STANDARD
Rule 26 of the Federal Rules of Civil Procedure permits discovery "regarding any
nonprivileged matter that is relevant to any party's claim or defense[.]" Fed. R. Civ. P. 26(b)(l).
That sweeping mandate is meant to be broadly construed. Oppenheimer Fund, Inc. v. Sanders,
437 U.S. 340, 351 (1978) (Rule 26 "encompass[es] any matter that bears on, or that reasonably
could lead to other matter[s] that could bear on, any issue that is or may be in the case.").
However,
[s]uch a broad scope of discovery ... must be balanced against the burden or
expense of the particular discovery sought, considering its likely benefit, "the
needs of the case, the amount in controversy, the patiies' resources, the
impo1iance of the issues at stake in the action, and the importance of the
discovery in resolving the issues."
Roberts v. Legacy Meridian Park Hosp. Inc., 299 F.R.D. 669, 672 (D. Or. 2014) (quoting Fed. R.
Civ. P. 26(b)(2)(C)(iii) (2014)). 2 If a party fails to provide discovery materials covered by the
2
In 2015, Rule 26 was amended and the "propo1iionality factors" formerly located in
Rule 26(b)(2)(C)(iii) were moved to Rule 26(b)(1 ), reordered, and slightly revised. Fed. R. Civ.
P. 26 advisory committee's note. Thus, the present version of the rule differs slightly from the
rule quoted in Roberts, and states that proportionality to the needs of a case is evaluated
according to "the importance of the issues at stake in the action, the amount in controversy, the
parties' relative access to relevant information, the parties' resources, the importance of the
Page 3 - OPINION AND ORDER
broad scope of Rule 26, the patty requesting those materials may move under Rule 37 "for an
order compelling [their] disclosure or discovery." Fed. R. Civ. P. 37(a)(l). The party opposing
disclosure bears the burden of showing why the motion to compel should be denied.
Blankenship v. Hearst Corp., 519 F.2d 418, 429 (9th Cir. 1975).
DISCUSSION
I.
Corizon is Not Required to Produce the Sentinel Event Documents.
Plaintiffs seek production of an internal investigation report generated by Corizon in the
aftermath of Ms. Pitkin's death. Corizon opposes that request, asserting a peer review privilege
under Oregon state law as well as the attorney-client privilege. Because I find that the attorneyclient privilege does apply, plaintiffs' request must be denied.
A.
The Peer-Review Privilege Does Not Apply.
Privileges in federal court are governed by the federal common law of privileges as
determined by the federal courts in that circuit. Fed. R. Evid. 501. That is true even in mixed
cases involving both state and federal claims. Agster v. Maricopa Cty., 422 F.3d 836, 839 (9th
Cir. 2005) ("Where there are federal question claims and pendent state law claims present, the
federal law of privileges applies."). "The Ninth Circuit [Court of Appeals] does not recognize a
federal peer review privilege and expressly has declined to create one." Roberts, 299 F.R.D. at
672 (citing Agster, 422 F.3d at 839)). Accordingly, "[d]istrict courts in the Ninth Circuit have
consistently followed [that court's holding in] Agster." Id at 673 (noting that "[t]he Ninth
Circuit's holding in Agster is consistent with Supreme Coutt dicta" on the subject).
discovery in resolving the issues, and whether the burden or expense of the proposed discovery
outweighs its likely benefit." Fed. R. Civ. P. 26(b)(l). The revision does not change the
substance of the law that was applicable at the time this Court issued the decision in Roberts
because "[r]estoring the proportionality calculation to Rule 26(b)(l) d[id] not change the existing
responsibilities of the court and the parties to consider propo1tionality" in ruling on or making
discovery requests. Fed. R. Civ. P. 26 advisory committee's note.
Page 4 - OPINION AND ORDER
The parties are in federal court, and plaintiffs' case involves both federal claims
(Fom1eenth Amendment asserted via 42 U.S.C. § 1983) and state claims (common law
negligence, gross negligence, and wrongful death). I am bound by the law of the Ninth Circuit.
Accordingly, no peer review privilege applies, regardless of any Oregon state statute to the
contrary. Corizon's citations to out-of-circuit authority are unavailing.
B.
The Attorney-Client Privilege Does Apply.
Within the Ninth Circuit,
(1) [w]here legal advice of any kind is sought (2) from a professional legal
advisor in his capacity as such, (3) the communications relating to that purpose,
(4) made in confidence (5) by the client, (6) are at [the client's] insistence
permanently protected (7) from disclosure by [the client] or by the legal advisor,
(8) unless the protection be waived.
United States v. Graf, 610 F.3d 1148, 1156 (9th Cir. 2010). "The attorney-client privilege
applies to communications between lawyers and their clients when the lawyers act in a
counseling and planning role, as well as when lawyers represent their clients in litigation."
United States v. Chen, 99 F.3d 1495, 1501 (9th Cir. 1996).
The privilege extends "to
communications between corporate employees and counsel, made at the direction of corporate
superiors in order to secure legal advice." Id at 1502 (citing Upjohn Co. v. United States, 449
U.S. 383, 390-94 (1981)). That lawyers may be involved in "business decision-making ... is
irrelevant. What matters is whether the lawyer was employed with or without reference to his
knowledge and discretion in the law to give the advice." Id at 1502 (internal quotation marks
and citations omitted).
While application of the attorney-client privilege to corporations' internal investigations
is clear after the Supreme Court's holding Upjohn, it is less clear whether the privilege still
applies when the corporation's purpose for the investigation was not solely-or even mostly-to
Page 5 - OPINION AND ORDER
seek legal advice. While the Ninth Circuit Court of Appeals has not spoken directly on the issue,
many courts within the Ninth Circuit have applied the "primary purpose" test to communications
providing both business and legal advice. See Phillips v. C.R. Bard, Inc., 290 F.R.D. 615, 628
(D. Nev. 2013) (cataloguing cases and noting that "the Ninth Circuit has not expressly ruled" on
a single methodology in this context). The primary purpose test simply requires the party
asserting the privilege to "demonstrate that the 'primary purpose' of the communication was to
obtain or provide legal advice." Id (first emphasis provided). However, the test falls short in
circumstances where a communication serves many overlapping purposes, and none of them can
reasonably be considered "primary" over any other.
On this issue, Corizon's citation to the out-of-circuit case In re Kellogg Brown & Root,
Inc., 756 F.3d 754 (D.C. Cir. 2014), is instructive. In Kellogg, the D.C. Circuit Court of Appeals
overturned a district court ruling that the attorney-client privilege did not apply because "KBR
had not shown that the communication would not have been made 'but for' the fact that legal
advice was sought. KBR's internal investigation, the [district] court concluded, was undertaken
pursuant to regulatory law and corporate policy rather than for the purpose of obtaining legal
advice."
Id. at 756 (internal quotation marks and citations omitted).
The appellate court
explained that the district court "began its analysis by reciting the 'primary purpose' test, which
many comis ... have used to resolve privilege disputes" when an investigation has both a legal
and a business purpose. Id. at 759. "But in a key move, the District Comi then said that the
primary purpose of a communication is to obtain or provide legal advice only if the
communication would not have been made 'but for' the fact that legal advice was sought." Id
(internal quotation marks omitted). The circuit court then reasoned that the "but for" miiculation
of the "primary purpose" test
Page 6 - OPINION AND ORDER
is not appropriate for attorney-client privilege analysis. Under the District Comi's
approach, the attorney-client privilege apparently would not apply unless the sole
purpose of the communication was to obtain or provide legal advice. That is not
the law. We are aware of no Supreme Comi or court of appeals decision that has
adopted a test of this kind in this context. The District Court's novel approach to
the attorney-client privilege would eliminate the attorney-client privilege for
numerous communications that are made for both legal and business purposes and
. . . would eradicate the attorney-client privilege for internal investigations
conducted by the businesses that are required by law to maintain compliance
programs, which is now the case in a significant swath of American industry....
[T]he primary purpose test, sensibly and properly applied, cannot and does not
draw a rigid distinction between a legal purpose on the one hand and a business
purpose on the other. After all, trying to find the one primary purpose for a
communication motivated by two sometimes overlapping purposes (one legal and
one business, for example) can be an inherently impossible task.
Id. (emphasis in original).
I am persuaded by the Kellogg court's reasoning, and I adopt it here. Because the Ninth
Circuit has not adopted a characterization of the "primary purpose" test that aids in categorizing
the kinds of mixed-motive investigations specifically at issue here, I will apply the gloss
provided by the D.C. Circuit Court of Appeals in Kellogg.
Accordingly, the attorney-client privilege protects the results of the Sentinel Event
investigation undertaken by Corizon in the aftermath of Ms. Pitkin's untimely and unfortunate
death. Corizon has satisfied each element of the attorney-client privilege standard, showing that
it sought factfinding and advice at the direction of Corizon's in-house legal team. Moreover, it
showed that at least one primary purpose of the investigation was to "assess the situation from a
legal perspective, provide legal guidance, and prepare for possible litigation and/or
administrative proceedings."
King Deel.
~
4 (doc. 46).
That Corizon was fulfilling its
obligations under its own corporate policies or its contract with Washington County-or bothis of no moment. As the Kellogg comi explained, "[i]t is often not useful or even feasible to try
to determine whether the purpose was A or B when the purpose was A and B." In re Kellogg
Page 7 - OPINION AND ORDER
Brown & Root, Inc., 756 F.3d at 759 (emphasis added). Common sense suggests that the death
of an inmate would trigger numerous obligations for the organization charged with her care, not
the least of which would be an assessment of liability. Accordingly, the attorney-client privilege
applies to the Sentinel Event investigation, and Corizon is not required to produce it.
II.
Corizon Is Not Required to Produce the J-A-10 Investigation Documents.
Next, plaintiffs request an order compelling production of investigative documents
resulting from the mandatory J-A-10 Procedure in the Event of an Inmate Death investigation
required by the National Commission on Correctional Health Care (NCCHC). Creation of that
document was mandatory pursuant to Corizon's contract with Washington County. While the JA-10 investigation is required by Corizon's contract with Washington County, it is
indistinguishable from the Sentinel Event investigation required by Corizon's internal policies
and procedures. In fact, the two documents are one and the same. Accordingly, Corizon objects
to producing the two reports on similar grounds. Corizon asse1is the same peer review privilege
shown to be inapplicable to the Sentinel Event investigation; it is likewise inapplicable here.
Corizon also asserts the attorney-client privilege. Because the documents were created pursuant
to the same internal process, and because that internal process satisfies the Ninth Circuit standard
for application of the attorney-client privilege, I hold that the privilege applies to both the
Sentinel Event investigation and the J-A-10 investigation.
Because the J-A-10 investigation is shielded by privilege, it is unnecessary to determine
whether it is protected by the work product doctrine or by Federal Rule of Evidence 407, which
governs the admissibility of subsequent remedial measures. I reach no decision on those issues.
Page 8 - OPINION AND ORDER
III.
Corizon Must Produce the Requested Litigation Documents fi·om the Last Ten Years.
Plaintiffs requested that Corizon produce evidence of "lawsuits and judgments against
Corizon and related entities alleging negligence and Section 1983 violations or an award of
punitive damages for the ten years prior to Ms. Pitkin's death."3 Pis.' Mot. to Compel 11.
According to plaintiffs, "Corizon objected on the basis of relevance, overbreadth,
proportionality, and undue burden." Id
However, in its Response to Plaintiffs' Motion to
Compel, Corizon only raises arguments concerning relevance and overbreadth.
I find the
documents to be sufficiently relevant to plaintiffs' lawsuit to warrant discovery; in the absence of
any evidence of an undue burden on Corizon to produce those documents, I will compel their
production.
As explained above, Rule 26 permits broad discovery of "any nonprivileged matter that is
relevant to any party's claim or defense[.]" Fed. R. Civ. P. 26(b)(l). "Relevant information for
the purposes of discovery is information reasonably calculated to lead to the discovery of
admissible evidence." Survivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 635 (9th Cir.
2005) (internal quotation marks omitted). "District courts have broad discretion in determining
relevancy for discovery purposes." Id. (citing Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir.
2002)). The party opposing discovery on relevance grounds must show why the requested
infonnation is not relevant. Blankenship, 519 F.2d at 429.
3
The exact parameters of plaintiffs' request are not clear from the briefing on this
motion. According to Corizon, it is unsure whether plaintiffs have limited their request to only
those cases involving withdrawal from opiate or other drug use or whether they seek documents
on all inmate deaths. Defs.' Resp. to Pis.' Mot. to Compel 7 & n.13. Because plaintiffs most
recently restated their request in their Motion to Compel, and they elected for the narrower
parameters, I limit the scope of this order to the narrower formulation. See Pis.' Mot. to Compel
11 ("Defendant should be required to produce actual documents (complaints, settlements, and
judgments), for the full ten years (from 2004-2014), for cases involving similar claims as raised
here-deaths involving withdrawal from opiate or other drug use.'').
Page 9 - OPINION AND ORDER
Plaintiffs seek relief according to a Monell theory of liability under 42 U.S.C. § 1983.
Under Monell, municipalities and local governments can be held liable for deprivations of
constitutional rights visited pursuant to an official government policy or a longstanding
governmental custom. Monell v. Dep't a/Soc. Servs. a/City o/N.Y., 436 U.S. 658, 690 (1978).
However, establishing such a custom requires a showing that the behavior is so "persistent and
widespread" that it can be considered a "permanent and well settled city policy." Trevino v.
Gates, 99 F.3d 911, 918 (9th Cir. 1996) (quoting Monell, 436 U.S. at 691). Indeed, a custom
"must be founded upon practices of sufficient duration, frequency and consistency that the
conduct has become a traditional method of carrying out policy." Id
Thus, in order to achieve
the relief they desire, plaintiffs must succeed in showing that Corizon had a "longstanding",
"persistent'', "widespread", "permanent", and "well settled" [sic] custom of depriving inmates of
their constitutional rights, and that the custom is of sufficient "duration, frequency and
consistency" to give rise to Monell liability. Id.; see also Oyenik v. Corizon Health Inc., 696 F.
App'x 792, 794 (9th Cir. 2017).
With that in mind, I find that plaintiffs' requested documents are relevant. In evaluating
plaintiffs' motion to compel, I considered several potential limitations on plaintiffs' request:
temporal, geographical, content-based, and otherwise. Yet in view of plaintiffs' decision to limit
their request to a ten-year time period, I am unable to find a further limitation that is principled
and rational. Corizon is a massive corporation that "administers healthcare in half of the states in
this country, including jails and prisons of numerous sizes, with varying conditions and security
levels." Defs.' Resp. to Pis.' Mot. to Compel 8. While Corizon took pains to explain that its
"clinical staff is separate and distinct at each location'', it has not addressed the fact that policies,
customs, or other aspects of the corporate "culture" may manifest in local offices. Id.
Page 10- OPINION AND ORDER
By
analogy, while it is true that Wal-Mart maintains a separate and distinct retail staff at each
location, decisions made at the corporate headquarters in Bentonville, Arkansas can and likely do
impact employee behavior at a local store in Salem, Oregon. Moreover, large corporations with
locations around the country have been known to employ district, area, or regional managers to
oversee operations in multiple cities, counties, or even states-and those managers are capable of
establishing policies or customs that could be relative to plaintiffs' claims. So an incident that
occurs in Kuna, Idaho or Florence, Arizona might bear a strong connection to one occuning in
Hillsboro, Oregon because it occurred under the same regional policy.
As the party opposing discovery, Corizon bore the burden of showing that something less
than plaintiffs' full request might satisfy plaintiffs' needs and rights under Rule 26. More than
that, Corizon has all of the information to provide such a nuanced response: it knows its own
organization and management structure better than anyone, and it is better positioned to asse1t
that ce1tain regions might be hermetically sealed from others-such that evidence of an incident
in Manatee County, Florida, for example, might actually have little relevance to operations in
Washington County, Oregon.
Corizon, however, has not posited any such geographical
limitations. Accordingly, I find that the complaints, settlements, and judgments of all lawsuits
filed against Corizon concerning inmate deaths resulting from withdrawal of opiates or other
drugs within the last ten years are relevant to establishing a policy or custom of depriving
inmates of their constitutional rights and must be produced.
A brief note about undue burden: when considering the relevance of sought discovery,
Rule 26 cautions courts to consider as well "the parties' relative access to relevant information,
the parties' resources, the impo1tance of the discovery in resolving the issue, and whether the
burden or expense of the proposed discovery outweighs its likely benefit." Fed. R. Civ. P.
Page 11 - OPINION AND ORDER
26(b)(1 ). Corizon could have presented evidence or argument showing that complying with
plaintiffs' request would be unduly burdensome; had they done so, I would have had to balance
Corizon's potential burden against the likely utility of the information sought in the request. But
Corizon presented no such evidence.
A company of Corizon's admitted size and scope
presumably has the resources to generate a prompt answer to plaintiffs' request. I must assume,
in the absence of evidence or argument to the contrary, that producing these documents will be
minimally burdensome. Plaintiffs' motion with respect to these litigation documents is granted.
IV.
Corizon Must Produce the Deposition Transcripts and Exhibits from Johnson v. Corizon
Health, Inc., No. 6:13-cv-01855-TC.
Plaintiffs also seek depositions and exhibits from a recent District of Oregon case,
Johnson v. Corizon Health, Inc. Plaintiffs aver that the material is relevant because it contains
"information regarding Corizon's policies and practices regarding jail safety and medical care of
inmates[.]" Pis.' Mot. to Compel 13. As explained above, establishing the existence of a
longstanding and persistent policy or custom is critical to plaintiffs' success in this lawsuit.
Corizon opposes the request on the grounds that it is irrelevant or overbroad because the inmate
in Johnson died from an allegedly undiagnosed head trauma in a Lane County Jail and Ms.
Pitkin died from symptoms of withdrawal in the Washington County Jail. Corizon contends that
plaintiffs' request is like "requesting records from a case concerning failure to diagnose a spinal
injury at Kaiser Sunnyside in Clackamas be produced in a case concerning inadequate treatment
for detoxification at Kaiser Permanente Downtown Eugene." Defs.' Resp. to Pis.' Mot. to
Compel 10.
I find Corizon's analogy instructive, but I reach a different conclusion. If the lawsuit in
Corizon's example were charging Kaiser Permanente with providing deficient care on a scale
equivalent to that alleged by plaintiffs here, I would think that court records from a failure to
Page 12 - OPINION AND ORDER
diagnose claim at a Kaiser facility just two hours away would be highly relevant. The two
facilities might share common corporate policies on patient intake, patient screening, diagnosis
protocols, employee training, employee reporting, or myriad other subjects affecting the quality
of care of both decedents. Frankly, I find this legally indistinguishable from plaintiffs' request
for other related litigation documents in section III, supra. Both are relevant to plaintiffs' theory
of the case, and Corizon has not introduced any evidence that production would be unduly
burdensome. Accordingly, plaintiffs' motion as to the Johnson transcripts is granted.
V.
Corizon Must Produce Documents in ifs Possession Relating to the Oregon Board of
Nursing Investigations ofCorizon Personnel.
Finally, plaintiffs seek disclosure of any documents in Corizon's possession related to
investigations conducted by the Oregon State Board of Nursing (BON) into Cheryl Buchanan,
Molly Johnson, and any other Corizon employees after Madaline Pitkin's death. Plaintiffs argue
that the documents are plainly relevant and that any state laws concerning the confidentiality of
such documents only restrict the BON and not the subjects of or participants in the investigation.
Corizon objects on the grounds that Or. Rev. Stat. § 676.175 prevents disclosure of any materials
related to a BON investigation and that, in any case, Or. Rev. Stat. § 678.126 guarantees
immunity from civil suit to any person or organization that provides information to a BON
investigation.
The arguments on this subject are nuanced, to be sure, and Corizon is correct that there is
no published case law discussing the scope of Or. Rev. Stat. § 678.126. Accordingly, the pmiies
raise a first-impression question of statutory interpretation. When a federal court is asked to
interpret a state statute, it must "begin by looking to the decisions of the [state] courts. If those
decisions are unavailing and the question is one of first impression, [it] must identify the result
[it thinks] the [state's highest comi) would reach if it were presented with the same question."
Page 13 - OPINION AND ORDER
Midbrook Flowerbulbs Holland B. V. v. Holland Am. Bulb Farms, Inc., 874 F.3d 604, 614 (9th
Cir. 2017) (citing Brunozzi v. Cable Commc'ns, Inc., 851F.3d990, 998 (9th Cir. 2017)). When
attempting to "determine what meaning the state's highest comi would give to the law[,]" a
federal court "must follow the state's rules of statutory interpretation." Brunozzi, 851 F.3d at
998.
"Under Oregon law, the first step involves an examination of the text and context." Id.
(internal quotation marks omitted and alterations normalized). "In the second step, the comt will
consult proffered legislative hist01y[.]" Id (internal quotation marks omitted and alterations
normalized). Because the parties have not proffered any legislative history, I will cabin my
analysis to the first step, exploring only the statute's text and context in order to determine the
Oregon legislature's intent. See Or. Rev. Stat. § 174.020(3) ("A comi may limit its consideration
of legislative history to the information that the parties provided to the court.").
A.
Or. Rev. Stat.§ 676.175 Does Not Prevent Disclosure by Non-State Actors.
Corizon first argues that information obtained by the BON pursuant to an investigation is
confidential under Or. Rev. Stat. § 676.175. Defendant's argument actually depends on two
statutory provisions.
Or. Rev. Stat. § 678.126(1) explains that "[a]ny information that the
Oregon State Board of Nursing obtains" pursuant to laws concerning licensure, discipline, and
revocation "is confidential as provided under [Or. Rev. Stat.] § 676.175." Put another way, those
documents are confidential only to the extent that such confidentiality is defined by Or. Rev. Stat.
§ 676.175. That provision states, in relevant part, that "[a] health professional regulatory board
shall keep confidential and not disclose to the public any information obtained by the board as
patt of an investigation of a licensee or applicant[.]" Or. Rev. Stat. § 676.175(1 ).
Page 14 - OPINION AND ORDER
Plaintiffs argue that the plain text of the statute does not prohibit Corizon from disclosing
information related to the BON investigation because Corizon is not a "health professional
regulatory board." I am persuaded by plaintiffs' reasoning. The text of the statute does not
appear to contemplate individuals at all. In addition, the context of the provision supports this
reading: the statute exists within a larger statutory section broadly addressing the duties of public
bodies and the public employees that comprise them. See, e.g., Or. Rev. Stat. §§ 676.I 65,
676.177, 676.180. None of those provisions discuss the duties of subjects of or participants in
any regulatory board investigation. Therefore, § 676.175 does not bar Corizon from producing
the documentation plaintiffs request.
B.
Or. Rev. Stal.§ 678.126 Does Not Prevent Information Providers From
Disclosing Information in a Civil Suit.
Next, Corizon argues that it is protected from disclosure by subsection (3) of Or. Rev.
Stat. § 678.126, which provides that "[a]ny person, facility, licensee, or association that reports
or provides information to the board under [laws concerning licensure, discipline, and
revocation] in good faith shall not be subject to an action for civil damages as a result thereof."
Corizon argues that because disclosure of the BON's investigatory records could lead to the
imposition of damages in this civil action, discovery of those records is expressly prohibited by
the language of Or. Rev. Stat. § 678.126(3).
I cannot agree with Corizon's interpretation. I construe the statutory language as creating
a much narrower immunity. The subsection states that an information provider shall not be
subject to an action for civil damages "as a result" of providing that information. I read that as
protecting the information provider from a very narrow type of lawsuit: an action challenging the
provision of information to the BON. However, if a civil action is the result of varied and
multiple acts and behaviors, information on which the information provider also provided to the
Page 15 - OPINION AND ORDER
BON, then the statute does not bar the suit. What kind of lawsuit might be based solely on an
individual's testimony to a regulatory board? One example is a retaliatory action against an
individual who has come fo1ih with evidence of perceived wrongdoing by the organization who
employed her.
Another would be a claim for defamation or intentional interference with
economic relations by the subject of an investigation who is not necessarily an employer, but is
instead a former coworker or peer of the information provider. While it is not express in the
statutory language, the most logical intent of this provision is to encourage and protect
whistleblowers by ensuring they won't be sued by their employers, employees, or colleagues for
providing testimony that may ultimately be beneficial to the public.
That reading is suppo1ied by the statute's context. As Corizon points out, Or. Rev. Stat. §
676.175(7) explains that regulatory board investigative materials are not admissible in a civil
proceeding between private parties. Accordingly, testimony or information provided to the BON
cannot serve as evidence of any allegedly unlawful behavior; if a whistleblower were subject to
suit solely for communicating information to the BON, there would be no documentary evidence
of that communication. The whistleblower might be ipso facto immune from suit. By making
that immunity explicit for BON investigations, the Oregon legislature buttressed its protections
for whistleblowers in nursing and other public health facilities and ensured their immunity.
Additionally, this interpretation finds suppo1t in the sheer nonsensicality of Corizon's
interpretation. Corizon insists that requiring it "to produce these documents may expose the
organization to civil damages, thereby potentially punishing the organization for its good faith
participation in the BON investigation in direct contravention of' Or. Rev. Stat. § 678.126(3).
Thus, under Corizon's reading, any action that might "expose the organization to civil damages"
is prevented under the law. Corizon thereby maintains that it was the intent of the Oregon
Page 16 - OPINION AND ORDER
Legislature to provide massive-scale immunity from tort liability to any medical provider willing
to provide any related information to a BON investigation on a subject incident. Taken to its
logical conclusion, that would mean that a hospital could engage in gross negligence by hiring
unqualified staff, leading to the wrongful deaths of a dozen patients, yet be completely
immunized from the dozen or more survivor actions that would follow simply by providing
information to the BON about those unqualified employees. That outcome is both inational and
unjust, and it violates at least one provision of the Oregon Constitution. See Or. Const. Art. I, §
10 ("[E]very man shall have remedy by due course of law for injury done him in his person,
property, or reputation."). That cannot have been the Oregon Legislature's intent.
Finally, I address Corizon's argument that public policy favors its interpretation of the
statute. Corizon reasons that allowing disclosure of materials provided for BON investigations
would remove an incentive for individuals and facilities to comply with BON requests. While
that argument is sound, it ignores the full suite of state statutes regulating the nursing profession.
First, health care facilities (like Corizon) have a legal duty to report any suspected violations of
nurse licensing laws or other rules adopted by the BON. Or. Rev. Stat. § 678.135. In addition,
all BON investigations are conducted "[i]n the manner prescribed in ORS chapter 183 for a
contested case[,]" meaning the BON has authority to "issue subpoenas on its own motion[.]" Or.
Rev. Stat. §§ 678.111, 183.440. Thus, while Corizon is partially correct that ordering disclosure
of information voluntarily provided to the BON may disincentivize future voluntary disclosures,
it would not leave the BON-and thus the public-without recourse to access the information
needed to ensure thorough and accurate investigations in furtherance of greater public health.
Therefore, I find that Corizon's public policy argument, while logical, cannot ove1Tide the plain
text of the statute. Or. Rev. Stat. § 678.126(3) does not prevent the disclosure of materials
Page 17 - OPINION AND ORDER
provided to the BON pursuant to an investigation even if such disclosure is sought in a pending
civil action for damages.
CONCLUSION
Plaintiffs Motion to Compel (doc. 40) is GRANTED IN PART and DENIED IN PART
as explained in greater detail herein.
IT IS SO ORDERED.
Dated this
/4/ctayofDecem~
aLJ
AnnAiken
United States District Judge
Page 18 - OPINION AND ORDER
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