Smith et al v. Pierce County et al

Filing 45

ORDER granting 36 Motion to Compel signed by Judge Benjamin H. Settle.(TG)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 8 9 BEN SMITH as the Personal Representative for the ESTATE OF MATTHEW S. SMITH, et al., CASE NO. C16-5667 BHS ORDER GRANTING MOTION TO COMPEL Plaintiffs, 10 11 v. PIERCE COUNTY, et al., Defendants. 12 13 14 15 16 17 This matter comes before the Court on Plaintiffs the Estate of Matthew Smith, Ben Smith, and Nona Smith’s (“Plaintiffs”) motion to compel (Dkt. 36). The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants the motion for the reasons stated herein. I. 18 19 20 21 22 PROCEDURAL AND FACTUAL BACKGROUND On July 29, 2016, Plaintiff filed a complaint against Defendant Pierce County (“County”), NaphCare, Inc. (“NaphCare”), Nandi Brumidge, and Tae Kim asserting numerous claims, including a claim against NaphCare for violation of Plaintiffs’ Fourteenth Amendment rights. Dkt. 1. The claims are based on the death of Matthew ORDER - 1 1 Smith who died as a pretrial detainee in the County’s custody and under the medical care 2 of NaphCare. Id. 3 Relevant to the instant motion, NaphCare conducted a mortality review 4 approximately two weeks after Matthew Smith passed. NaphCare’s employee, Dr. Emily 5 Feely, led the review and NaphCare has produced the minutes of the review committee’s 6 meeting. NaphCare, however, has objected to Plaintiffs’ request to depose Dr. Feely. 7 On October 5, 2017, Plaintiffs filed a motion to compel the deposition. Dkt. 36. 8 On October 12, 2017, NaphCare responded. Dkt. 39. On October 19, 2017, Plaintiffs 9 replied. Dkt. 42. 10 11 II. DISCUSSION NaphCare objects to the deposition because Dr. Feely’s testimony is irrelevant, the 12 content is protected, and Plaintiffs should not decide which NaphCare employee may be 13 deposed. Dkt. 39. NaphCare’s objections are without merit. Dr. Feely’s testimony may 14 be relevant to the circumstances surrounding Matthew Smith’s death. Binding Ninth 15 Circuit precedent holds that mortality reviews are not privileged. Agster v. Maricopa 16 Cty., 422 F.3d 836, 839 (9th Cir. 2005). Finally, there is no precedent for the position 17 that Plaintiffs are only entitled to depose the person most knowledgeable with the 18 mortality review. Even if this were true, NaphCare has failed to show that Dr. Feely, the 19 individual who led the mortality review, is not the person most knowledgeable with the 20 review. Therefore, the Court concludes that NaphCare shall produce Dr. Feely for a 21 deposition. 22 The Court finds that fees are not warranted. ORDER - 2 1 2 3 4 III. ORDER Therefore, it is hereby ORDERED that Plaintiffs’ motion to compel (Dkt. 36) is GRANTED. Dated this 9th day of November, 2017. A 5 6 BENJAMIN H. SETTLE United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 3

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