PUGH et al v. COMMUNITY HEALTH SYSTEMS, INC. et al
MEMORANDUM AND OPINION. SIGNED BY MAGISTRATE JUDGE TIMOTHY R. RICE ON 1/8/21. 1/8/21 ENTERED & E-MAILED.(fdc)
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ASHLEY PUGH AND DAVID PUGH,
INDIVIDUALLY, AND AS PARENTS
AND NATURAL GUARDIANS OF SEAN :
PUGH, A MINOR,
COMMUNITY HEALTH SYSTEMS,
INC., et al.,
Civil No. 5:20-cv-00630
Timothy R. Rice
U.S. Magistrate Judge
January 8, 2021
This case provides a classic example of how discovery gamesmanship can backfire.
Plaintiffs Ashley and David Pugh seek sanctions against Defendants Northampton
Hospital Company and Northampton Clinic Company for failing to produce critical records
relating to an alleged delay in delivering their son. Mot. for Sanctions (doc. 43). After the Pughs
first requested hospital records in April 2020, the Northampton Defendants stonewalled,
blanketly asserting that the straightforward interrogatories were somehow “vague, ambiguous,
overly broad and unduly burdensome.” Hosp. Resp. to Mot. to Comp. (doc. 41), Exs. A-B, Resp.
to Discovery (doc. 41-1). In so doing, Defendants missed a critical opportunity to secure key
documents concerning Plaintiffs’ theory of liability. By July 2020, ownership of the hospital had
transferred, and Defendants claim that with the sale, they lost access to the documents. 1
Defendants claim that the hospital where the alleged negligence occurred was transferred
to Steward Heath Care Systems and Network in May 2017. See Hosp. Resp. to Mot. for
Sanctions (doc. 46) ¶ 6. Plaintiffs initially sued Steward but the parties later stipulated to
Steward’s dismissal because it did not own the hospital at the time of the alleged negligence.
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Defendants then ignored an order compelling them to produce or at least account for the
requested discovery. See 9/17/20 Order (doc. 42). They now blame uncooperative third parties
for this predicament. Nothing could be further from the truth.
The Pughs argue the Northampton Defendants are responsible for the lost documents and
seek the following sanctions: 1) a direction that their allegations of undue delay in delivering
their son have been established for the purposes of litigation; 2) a direction that the undue delay
was a proximate cause of their son’s injuries for the purposes of litigation; and 3) $500.00 for
attorneys’ fees and costs related to litigating this motion. Mot. for Sanctions at 7.
I grant the Pughs’ motion in part by directing that their allegations of undue delay in the
delivery of their son are established as to the Northampton Defendants. 2 I also award Plaintiffs
$500.00 for attorneys’ fees and costs for litigating this motion. The issue of causation is
unrelated to the absence of records and shall be decided by the jury.
I have “sound discretion” to sanction a party under Federal Rule of Civil Procedure
37(b)(2) for failing to comply with a discovery order. 3 DiGregorio v. First Rediscount Corp.,
506 F.2d 781, 788 (3d Cir. 1974). I may: 1) direct “that the matters embraced in the order or
See id. n.1. On July 1, 2020, Steward ceased operation of the hospital and transferred ownership
to St. Luke’s University Hospital Network. Id. at 3. Defendants claim that the hospital’s risk
manager was not retained during this sale, impeding its efforts to obtain documents from St.
My Order does not apply to Defendant Dr. Douha Sabouni and there is no finding that
Dr. Sabouni was responsible for any undue delay in medical treatment.
I need not determine whether the missing information was stored in electronic or other
form because Defendants’ failure would be treated similarly under long-standing spoliation case
law and Rule 37(e), which was designed to codify the standard for electronically-stored
information. See Bistrian v. Levi, 448 F. Supp. 3d 454, 474 (E.D. Pa. 2020); see also Clientron
Corp. v. Devon IT, Inc., 894 F.3d 568, 577 (3d Cir. 2018).
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other designated facts be taken as established for purposes of the action”; 2) prohibit “the
disobedient party from supporting or opposing the claims or defense, or from introducing
designated matters in evidence”; or 3) order the disobedient party “to pay reasonable expenses,
including attorney’s fees, caused by the failure, unless the failure was substantially justified or
other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2); see also Toner
v. Wilson, 102 F.R.D. 275, 276 (M.D. Pa. 1984) (Rule 37 is meant “to penalize a party who
violates a discovery order and to deter future violations of discovery orders”). In determining
whether sanctions are appropriate, I consider: 1) the prejudice to Plaintiffs; 2) the ability to cure
the prejudice; 3) the extent to which the evidence would disrupt the orderly and efficient trial of
the case or other cases in the court; and 4) the defendants’ bad faith or willfulness in violating the
court’s order. Wachtel v. Health Net, Inc., 239 F.R.D. 81, 105 (D. N.J. 2006).
The Northampton Defendants were put on notice of their obligation to identify and hold
any relevant documentation no later than February 2020, when the Pughs’ lawsuit was filed. See
McDevitt v. Verizon Servs. Corp., No. CV 14-4125, 2016 WL 1072903, at *2 (E.D. Pa. Feb. 22,
2016), report and recommendation adopted, No. CV 14-4125, 2016 WL 1056702 (E.D. Pa. Mar.
17, 2016) (“the duty to preserve material evidence arises not only during litigation but also
extends to that period before litigation ‘when a party should have known that the evidence may
be relevant to future litigation’”) (citing Major Tours, Inc. v. Colorel, 2009 U.S. Dist. LEXIS
68128 at *8 (D. N.J. Aug. 4, 2009)). They had an express obligation to provide documents upon
receiving the Pughs’ discovery requests in April 2020. Mot. ¶ 4; Hosp. Resp. ¶ 4. Defendants,
however, responded with multiple objections and only some of the requested documents in June
2020. See Resp to Discovery (doc. 41-1).
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Upon finding that information was missing from Defendants’ responses, the Pughs sent a
deficiency letter and additional discovery requests on July 30, 2020. Mot. ¶ 6, Exs. 1, 2. After
receiving no response, the Pughs filed a motion to compel on September 9, 2020. See Mot. to
Compel (doc. 40). On September 17, 2020, I granted the motion to compel and ordered
Northampton Defendants to either produce the requested documents or certify that they do not
exist, by November 2, 2020. See 9/17/2020 Order. Northampton Defendants never produced
documents or certifications to the Pughs, violating my Order. Further, upon finally
corresponding with the Pughs in late December 2020, they asserted that the new owner of the
hospital claimed to be unable to access the requested documents. See Mot., Ex. 4, 12/23/2020
Had Defendants begun to collect documents after the lawsuit was filed in February 2020
or responded in good faith to Plaintiffs’ discovery requests in spring 2020, they likely could have
accessed the requested documents before the July 2020 sale of the hospital. Moreover,
Defendants’ conduct prejudiced the Pughs, who seek to prove that Defendants’ failure to provide
a timely caesarian section caused their son’s birth injuries. Compl. (doc. 1) ¶¶ 73-82.
According to the Pughs, they requested a caesarian section but did not have one because
no staff appeared to perform it. Id. ¶¶ 66, 77. Thus, the Pughs’ case will be significantly
prejudiced without access to hospital documents identifying staff who worked during this time
period, information about potential staff shortages or delay, timesheets, policies and procedures,
and documents showing the assembly of staff who delivered their son. Mot., Ex. 1, Plaintiffs’
Second Set of Interrogatories and Request for Production of Documents. These documents have
the potential to show whether the delay was due to inadequate staffing or another factor, essential
evidence in this matter.
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Northampton Defendants argue the Pughs can cure this prejudice by deposing relevant
medical providers. Supp. Resp. to Mot. (doc. 52) at 4. I disagree. Depositions are an expensive
alternative to producing documents, and witness testimony regarding the exact times they
worked in 2014 are likely to be far less reliable than the requested documents. See Scarborough
v. Eubanks, 747 F.2d 871, 876 (3d Cir. 1984) (a failure to timely respond to discovery can cause
prejudice including “the inevitable dimming of witness’ memories, or the excessive and possibly
irremediable burdens or costs imposed on the opposing party”). Defendants rely only on Weller
v. Dollar Gen. Corp., No. 17-2292, 2019 WL 1045960 (E.D. Pa. Mar. 4, 2019) to bolster this
argument. In Weller, I sanctioned the defendants for ex parte communications with putative
class members. Id. at *4. The depositions in that case remedied the prejudice suffered by
plaintiffs by giving them access to the employees, who had signed affidavits without being
subject to cross examination or interview. Id. In contrast, Northampton Defendants request
depositions as a substitution for gathering information it was obligated to preserve, far different
circumstances than those in Weller. Here, depositions would not cure the prejudice caused by
Defendants’ failure to preserve and produce the requested documents.
3. Willful or Bad Faith Conduct.
A party acts in bad faith “by delaying or disrupting the litigation or by hampering
enforcement of a court order.” Chambers v. NASCO, Inc., 501 U.S. 32, 33 (1991). Although
the Northampton Defendants demonstrated an unwillingness to seriously conduct discovery, I do
not find that they or their counsel acted in bad faith. Nevertheless, I also find sanctions are
warranted because of the severe prejudice to the Pughs and the lack of a fair cure. See Estate of
Spear v. C.I.R., 41 F.3d 103, 116 (3d Cir. 1994) (imposing sanctions without bad faith requires a
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strong showing of prejudice); Wachtel, 239 F.R.D. at 103 (although bad faith enhances the need
for sanctions, it is not a prerequisite).
After weighing the determinative factors, I find that sanctions are warranted against
Defendants due to their failure to timely obtain the documents and the prejudice to the Pughs,
who should not bear the burden of their loss. I can remedy this imbalance of access to pertinent
discovery by finding that the allegation of undue delay that the documents might have supported
has been established. Fed. R. Civ. P. 37(b)(2)(A)(i-ii). I also order Northampton Defendants to
pay $500.00 for the costs associated with litigating this motion. Fed. R. Civ. P. 37(b)(2)(C). 4
BY THE COURT:
/s/ Timothy R. Rice
TIMOTHY R. RICE
U.S. MAGISTRATE JUDGE
On January 6, 2020, Plaintiffs filed a letter requesting I postpone deciding this motion for
thirty days while they work with Community Health System Inc.’s counsel to obtain the
requested documents. 1/6/2020 Letter (doc. 51). If Defendants produce the outstanding
discovery within thirty days of this Order, I will vacate my direction establishing the undue
delay, but Northampton Defendants shall still pay $500.00 for the costs associated with litigating
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