The Estate of Laliah Swayzer et al v. Clarke et al

Filing 85

ORDER signed by Judge Pamela Pepper on 10/30/2017 DENYING 45 defendant Armor Correctional Health Services' motion for protective order. (cc: all counsel) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

ESTATE OF LALIAH SWAYZER, et al.,
Plaintiffs,
v.

Case No. 16-cv-1703-pp

DAVID A. CLARKE, JR., et al.,
Defendants.

ORDER DENYING DEFENDANT ARMOR CORRECTIONAL HEALTH
SERVICES’ MOTION FOR PROTECTIVE ORDER (DKT. NO. 45)

On July 25, 2017, defendant Armor Correctional Health Services, Inc.
filed a motion for a protective order, asking the court to forbid the disclosure or
discovery of Armor’s post-incident investigation and review. Dkt. No. 45. The
plaintiffs responded on August 15, 2017, dkt. no. 50, and Armor replied on
August 21, 2017, dkt. no. 52. The court will deny the motion.
I.

Background
A.

Underlying Facts

Armor Correctional Health Services, Inc. “provides health care services to
inmates at the Milwaukee County Jail under a contract between it and
Milwaukee County.” Dkt No. 46 at 2. According to the plaintiffs’ second
amended complaint, defendant Milwaukee County Jail housed plaintiff Shadé
Swayzer in July of 2016. Dkt. No. 54 at 2. At the time of her incarceration,
Shadé was almost nine months pregnant with a daughter, Laliah. Id. While in
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her cell at the Milwaukee County Jail, Shadé gave birth to Laliah. Dkt. No. 50
at 1. Laliah died shortly after birth. Dkt. No. 54. In its brief in support of its
motion for a protective order, Armor indicates that it later conducted a postincident review of the care that Armor provided to Shadé, with the goal of the
review being “continuous quality improvement.” Dkt. No. 46 at 2.
On December 23, 2016, the plaintiffs filed a five-count complaint,
alleging (a) Fifth, Eighth and Fourteenth Amendment claims under 42 U.S.C
§1983; (b) Monell claims against Defendants Milwaukee County and Armor for
failure to train and adequately supervise employees and for various allegedly
deficient polices; (c) common-law negligence claims; and (d) a wrongful death
claim under Wis. Stat. §895.03. Dkt. No. 1, at 22-42. The plaintiffs filed an
amended complaint on April 10, 2017 that removed one count of common-law
negligence. Dkt. No. 19. They filed a second amended complaint on August 28,
2017, naming previously unknown defendants. Dkt. No. 54.
B.

The Parties’ Arguments

The parties are in the process of conducting discovery, and the plaintiffs
seek the post-incident investigation review and report that Armor performed in
the aftermath of the July 2016 events. Dkt. No. 45. Armor has filed this
motion, asking the court to relieve it from the obligation of complying with the
plaintiffs’ request. Id. In support of the motion, Armor’s chief executive officer,
Bruce Teal, and its chief medical director, Dr. John May, submitted
declarations in which they averred that if Armor’s investigations and reviews

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are disclosed, Armor will have no incentive to perform or document such
investigations or reviews in the future. Dkt. Nos. 48, 49.
Armor asserts that because “‘a strong policy of comity between state and
federal sovereignties impels federal courts to recognize state privileges where
this can be accomplished at no substantial cost to federal substantive and
procedural policy[,]’” the court should recognize Wisconsin’s peer review
privilege, provided in Wis. Stat. §146.38. Dkt. No. 45 at 2 (quoting Doe v.
Hudgins, 175 F.R.D. 511, 513 (N.D. Ill. 1997)). In support of this argument,
Armor identified several federal courts which have recognized a peer review
privilege in cases that involve federal law claims. In addition, Armor asserts two
bases for this court to recognize the peer review privilege: (a) the plaintiffs can
obtain the information they seek through other means; and (b) if the court does
not recognize the privilege here, Armor “has no incentive to conduct such
investigations and reviews.” Dkt. No. 46 at 8.
The plaintiffs responded that the court should not implement
Wisconsin’s peer review privilege. They argued that Federal Rule of Evidence
501 limits the application of state privilege law to situations where state law
supplies the rule of decision for a claim or defense. Dkt. No. 50 at 4. Citing
Mem’l Hosp. for McHenry Cnty. v. Shadur., 664 F.2d 1058, 1059 (7th Cir.
1981), they argued that the Seventh Circuit requires courts to weigh the “need
for truth” against the importance of any relationship or policy that the state
evidentiary privilege might further, id., and claim that under the circumstances

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of this case, the need for truth outweighs the policies behind Wisconsin’s peer
review privilege.
The plaintiffs also argue that the “vast majority of Courts” have
determined that state peer review does not apply in §1983 cases. Id. at 6. In
support of this argument, they cite one case—Johnson v. Sprung, et al., Case
No. 14-cv-1408-LA, Dkt. No. 47 (E.D. Wis., May 19, 2016).
II.

Analysis
A.

Standard for Issuance of a Protective Order

Under Federal Rule of Civil Procedure 26(c)(1)(A), a court may issue a
protective order forbidding the disclosure or discovery of litigation material if it
finds good cause to do so. Armor argues that good cause exists for the court to
issue the protective order because the post-investigation review and report fall
under Wis. Stat. §146.38.
B.

Application of Fed. R. Evid. 501

In determining whether to apply a state law privilege to litigation material
sought in a federal case, the court starts with Federal Rule of Evidence 501.
That rule provides:
The common law – as interpreted by United States courts in the
light of reason and experience – governs a claim of privilege
unless any of the following provides otherwise: the United
States Constitution; a federal statute; or rules prescribed by the
Supreme Court. But in a civil case, state law governs privilege
regarding a claim or defense for which state law supplies the
rule of decision.
Fed. R. Evid. 501. In other words, “[f]ederal courts . . . will apply state laws
regarding privilege only when state law supplies the rule of decision, as in
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diversity actions.” Patt v. Family Health Systems, Inc., 189 F.R.D. 518, 523
(E.D. Wis. 1999).
This is not a diversity suit, and so state law does not supply the rule of
decision. The plaintiffs have sued under 42 U.S.C. §1983, a federal statute, and
so the question of whether this court should recognize that the Wisconsin peer
review privilege is “governed by the principles of the common law as they may
have been interpreted by the courts of the United States in the light of reason
and experience.” Shadur, 664 F.2d at 1061. Nonetheless, the Seventh Circuit
has held that “[a] strong policy of comity between state and federal
sovereignties impels federal courts to recognize state privileges where this can
be accomplished at no substantial cost to federal substantive and procedural
policy.” Id. In Shadur, the Seventh Circuit explained that the rationale for this
policy of comity is that where a state holds out an expectation of protection to
its citizens, the citizens “should not be disappointed by a mechanical and
unnecessary application of the federal rule.” Id. at 1061-62.
In deciding whether a federal court should recognize a state privilege, the
Seventh Circuit noted that the court should first keep in mind that such
privileges, “where recognized, must be narrowly construed.” Id. at 1061 (citing
United States v. Nixon, 418 U.S. 683, 710 (1974). Second, the Seventh Circuit
instructed the court should consider the “particular factual circumstances of
the case in which the issue arises.” Id. To that end, the Seventh Circuit
instructed lower courts to “weigh the need for truth against the importance of
the relationship or policy sought to be furthered by the privilege, and the
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likelihood that recognition of the privilege will in fact protect that relationship
in the factual setting of the case.” Id. at 1061-62 (quoting Ryan v. Comm’r of
Internal Revenue, 568 F.2d 531, 543 (7th Cir. 1977).
C.

The Language of the Privilege

Following those dictates, this court first looks at the privilege that the
Seventh Circuit says it must narrowly construe. The Wisconsin statute, in
relevant part, provides that:
All persons, organizations, or evaluators . . . who review or
evaluate the services of health care providers in order to help
improve the quality of health care, to avoid improper utilization
of the services of health care providers, or to determine the
reasonable charges for such services shall keep a record of
their investigations, inquiries, proceedings and conclusions. No
such record may be released to any person under § 804.10(4)
or otherwise except as provided in sub. (3) or (3m). No such
record may be used in any civil or criminal action against the
health care provider or any other health care provider;
however, except for incident or occurrence reports or records
from other persons, organizations, or evaluators reviewing or
evaluating health care providers, information, documents or
records presented during the review or evaluation may not be
construed as immune from discovery under §804.10(4) or use
in any civil or criminal action merely because they were so
presented.
Wis. Stat. §146.38. As the Northern District of Ohio court has noted, “all fifty
states have recognized the privilege at issue.” Veith v. Portage Cnty., Ohio, Bd.
of Comm’rs, et al., No. 5:11CV2542, 2012 WL 4850197, at *3 (N.D. Ohio Oct.
11, 2012).
D.

Federal Common Law

Rule 501 says that federal common law, “as interpreted by United States
courts in the light of reason and experience,” governs this court’s
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determination. In considering whether to apply the Wisconsin peer review
privilege in a case before him, Judge Adelman noted that federal “[c]ourts have
come to various conclusions about the applicability of state peer review
privilege to federal claims.” Sprung, dkt. no. 47 at 3 (E.D. Wis. May 19, 2016).
He listed eleven federal cases, four of which had recognized the privilege, seven
of which had not. Id.
This court also found a few unpublished cases. In Tiarnan Rumble v.
Fairview Health Serv’s, 2016 WL 3509221 (D. Minn. May 18, 2016), rev’d on
other grounds, 2016 WL 4515922 (D. Minn. August 29, 2016), the court
declined to apply the Minnesota peer review privilege in a case involving claims
under the Patient Protection and Affordable Care Act. In Bost v. Wexford Health
Serv’s, Inc., 2017 WL 3084953 (D. Maryland June 19, 2017), the court declined
create a federal peer review privilege in a §1983 case involving an inmate’s
death. In Grenier v. Stamford Hospital Stamford Health System, Inc., 2016 WL
3951045 (D. Conn. July 20, 2016), the court applied the Connecticut medical
peer review privilege in a case alleging causes of action under the Emergency
Medical Treatment and Active Labor Act (“EMTALA”), 42 U.S.C. §1395dd, et
seq.
Thus, the federal common law as interpreted by United States courts in
light of reason and experience is split.
E.

The Circumstances of this Case

The court now turns to the Seventh Circuit’s instruction to take into
account the particular factual circumstances of this case. In doing so, the
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court returns to the Seventh Circuit’s decision in Shadur. In declining to apply
a peer review privilege in the context of a Lanham Act claim, the Seventh
Circuit distinguished a case from the District of Columbia in which the court
had upheld a peer review privilege in a medical malpractice case. Shadur, 664
F. 2d at 1062. In so doing, the court reasoned:
This case differs . . . in that it is not a medical malpractice
action. To recognize hospital review or disciplinary
proceedings as privileged in the context of a malpractice action
will generally have little impact upon the plaintiff’s ability to
prove a meritorious claim. For the crucial issue in that type of
case is not what occurred at the review proceeding, but
whether the defendant was in fact negligent in his care and
treatment of the plaintiff. . . . [T]he exclusion of that
information will not prevent the plaintiff from otherwise
establishing a valid claim.
The same cannot be said, however, in a case such as this
where the plaintiff’s claim arises out of the disciplinary
proceedings themselves and not some event or occurrence
that exists independently of those proceedings.
Id.
The court finds that language instructive in looking at the particular
circumstances of this case. The plaintiffs have brought suit under 42 U.S.C.
§1983, alleging that the defendants were deliberately indifferent to plaintiff
Swayzer’s serious medical needs. They also have brought failure to hire, train,
discipline and supervise claims against the County and Armor under Monell v.
Dep’t of Soc. Serv’s., 436 U.S. 658 (1978). The quality of care provided to the
plaintiff, the practices that the County Defendants and Armor had in place to
care for inmates—these are the crucial issues in the case.

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The post-incident review and report the plaintiffs seek from Armor
reviewed “the care provided to Ms. Swayzer during her July, 2016 incarceration
at the Milwaukee County Jail.” Dkt. No. 46 at 2. According to Armor
Correctional’s own chief medical officer, “post-incident investigations and
reviews . . . are key in determining what occurred and what changes might be
made.” Dkt. No. 48 at 2, ¶8. The information in the report is information that
directly relates to the plaintiffs’ claims, and excluding it conceivably could
impede the plaintiffs in establishing an otherwise valid claim.
This is particularly true given that the plaintiffs have asserted Monell
liability, alleging that Armor Correctional inadequately supervised and trained
its employees and maintained deficient policies for providing care. Dkt. No. 54
at 23-35, ¶¶109-168. The plaintiffs have challenged the systems and
procedures that Armor correction had in place to treat inmates. See, e.g., Dkt.
No. 54 at 27, ¶128. Unlike a case with federal claims directly analogous to
state medical malpractice claims, this case alleges unspecified, systemic
policies likely to be described in post-incident review reports.
When he considered this question in Sprung, Judge Adelman declined to
apply the privilege in part because “it seems unlikely that plaintiff will be able
to acquire information on defendants’ policies and practices outside of internal
documents such as these reports.” Sprung, dkt. no. 47 at 5 (E.D. Wis. May 19,
2016). In this case, the defendant asserts that “[p]laintiffs can obtain the
information from other sources, conducting their own investigation. They then
can retain their own experts to review the evidence.” Dkt. No. 46 at 8. The
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court disagrees, coming to the same conclusion as Judge Adelman. The
plaintiffs are alleging that certain policies and practices resulted in the
violation of the plaintiffs’ constitutional rights. An important source of the
defendant’s policies and practices—and likely a reliable one—are the
defendant’s own internal documents. As Magistrate Judge Gilbert noted in
Johnson v. Cook Cnty., No. 15-C-741, 2015 WL 5144365 (N.D. Ill. Aug. 31,
2015),
[t[he factual information and conclusions contained in the
[such internal reports] may prove critical to Plaintiff’s Section
1983 claim, which will require Plaintiff to show that
widespread by unofficial Jail practices or policies led to Mr.
Johnson’s death. . . . [T]hat often proves difficult in cases such
as this one, where an institution’s official policies and
procedures are easy to come by, but its de facto practices are
much more difficult to observe.
Johnson v. Cook Cnty., 2015 WL 5144365 at *3.
The defendant places great emphasis on the policies behind the peer
review privilege. The court agrees that post-incident reviews are likely to be
most effective if the individuals who participate in them feel free to be candid
with the internal investigators. The defendant argues that people won’t be
candid if the court requires disclosure of the report in this lawsuit, and it
argues that disclosure will deprive it of any incentive to improve the services it
provides. This argument ignores the defendant’s professional and ethical
obligations to provide the highest quality of service. It also ignores the
economic incentive it has to retain its contracting facilities by ensuring that it
provides adequate health care. See Sprung, dkt. no. 47 at 6 (“‘Physicians and
hospitals have an overriding professional obligation and economic incentive to
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improve the quality of medical care they provide thereby potentially reducing
malpractice insurance rates and improving profitability regardless of the
availability of strict confidentiality.’”) (quoting Syposs v. United States, 63 F.
Supp. 2d 301, 308 (W.D.N.Y. 1999)).
For all of these reasons, the court concludes that under the particular
circumstances of this case, after balancing the need for truth with the policies
that underlie the Wisconsin peer review privilege, it is not appropriate to apply
that privilege in this case.
At the end of its reply brief in support of the motion for a protective
order, the defendant asks that “[i]f any production is required, . . . any
information about individuals’ performance be redacted.” Dkt. No. 52 at 4. The
defendant provides no authority in support of its request that the court redact
information about the performance of individual actors. Nor does it provide the
court with any guidance about how the court would recognize or define
“information about individuals’ performance.” For the court to grant such a
vague, blanket request would in effect result in the court issuing the very
protective order that it declines to issue.

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III.

Conclusion
The court DENIES the defendant’s motion for a protective order. Dkt. No.

45.
Dated in Milwaukee, Wisconsin this 30th day of October, 2017.
BY THE COURT:
_____________________________________
HON. PAMELA PEPPER
United States District Judge

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