Arsberry v. Wexford Health Sources, Inc.

• Decision Date: 10 November 2021
• Docket Number: 3:17-cv-50044
• Parties: Lonnie Arsberry, Plaintiff, v. Wexford Health Sources, Inc., et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

Lonnie Arsberry, Plaintiff,
v.
Wexford Health Sources, Inc., et al., Defendants.

No. 3:17-cv-50044

United States District Court, N.D. Illinois, Western Division

November 10, 2021

MEMORANDUM OPINION AND ORDER

Lisa A. Jensen United States Magistrate Judge

For the reasons stated below, Plaintiff's motion to compel discovery responses [144] is granted in part and denied in part.

I. Background

Plaintiff Lonnie Arsberry brings claims under 42 U.S.C. § 1983 against Defendants Wexford Health Sources, Inc., a medical contractor for the Illinois Department of Corrections (“IDOC”), and Warden Donald Enloe, Amber Allen, Dr. Bessie Dominguez, Dr. Catalino Bautista, and Dr. Arthur Davida, alleging that they were deliberately indifferent to his serious medical needs and caused intentional infliction of emotional distress while he was an inmate at Dixon Correctional Center (“Dixon”) from 2012 to 2018. Specifically, Plaintiff, who is 76 years old and suffers from numerous medical conditions, alleges that the individual medical Defendants were deliberately indifferent to his back, abdominal, and chronic skin conditions between 2012 and 2015 when they refused to treat those conditions or recommend him to outside specialists. Pl.'s Compl., Dkt. 121. Plaintiff essentially alleges the IDOC Defendants, Enloe and Allen, were deliberately indifferent because they failed to intervene in Plaintiff's medical care to ensure he was provided with timely and adequate medical treatment.

As to Defendant Wexford, Plaintiff alleges that from 2012 to the present^[1] Wexford's unconstitutional policies, standards, and practices subjected Plaintiff to ongoing and continuous acts of deliberate indifference by initially failing to refer him for offsite specialty treatment and later providing delayed or inadequate offsite specialty treatment and related follow-up care. Pl.'s Compl. at 6-8, Dkt. 121. In support of this claim against Wexford, Plaintiff cites to the findings in Lippert, et al. v. Ghosh, et al., No. 1:10-CV-04603 (N.D. Ill.). In Lippert, a class-action lawsuit,

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the court appointed two separate experts to assess the allegedly inadequate medical care that was being provided to IDOC inmates and to issue reports with their findings and recommendations. The first report was issued in 2014, and a follow-up report was issued in 2018. Both the 2014 and 2018 reports included facility-specific findings relating to Dixon and identified numerous systemic failures in the prison healthcare system, including delays for offsite services, referrals for specialty care, and related follow-up visits with inmates. See Ex. G-H, Dkts. 144-7, 144-8.

With respect to scheduled offsite specialty services, the Lippert reports identified deficiencies relating to Wexford's use of the collegial review process. According to the reports, the collegial review process begins when a clinician determines that there is a need for an offsite service. This recommendation is reviewed by the site Medical Director, who either concurs and presents the request to the weekly collegial review discussion or suggests an alternative plan of care. During collegial review, an offsite Wexford physician either approves the service or suggests an alternate plan. If the reviewing physician approves the service, an authorization number is provided to the University of Illinois at Chicago hospital (“UIC”). The correctional facility then works with UIC to schedule the offsite service. The Lippert reports found “breakdowns in almost every area, starting with delays in identification of the need for the offsite services, delays in obtaining an authorization number, delays in being able to schedule an appointment timely, delays in obtaining offsite paperwork and delays or the absence of any follow-up visit with the patient.” Dec. 2014 Lippert Report (Ex. G) at 10, Dkt. 144-7.

In February 2021, Plaintiff served interrogatories and documents requests on Wexford and the IDOC Defendants.^[2] Many of these requests seek documents concerning or underlying the Lippert reports. Wexford and the IDOC raised numerous objections to the requests, and the parties were unable to resolve their disputes. Accordingly, on July 19, 2021, Plaintiff filed the instant motion seeking to compel Wexford and the IDOC to produce documents and for Wexford to answer certain interrogatories. Dkt. 144. The parties submitted briefing on the motion, see Dkts. 150-52, and this Court also heard oral arguments on September 9, 2021. Following the motion hearing, the Court ordered the parties to participate in an additional meet and confer to attempt to resolve their disputes.^[3] On September 24, 2021, the parties filed a joint status report informing the Court that they were unable to resolve most of the outstanding discovery disputes. Dkt. 155. The Court will address the discovery requests that remain in dispute.

II. Standard of Review

Federal Rule of Civil Procedure 26(b)(1) provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional

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to the needs of the case.” Fed.R.Civ.P. 26(b)(1). “A party seeking such discovery should point to something that demonstrates that the requested documents are both relevant and proportional to the needs of the case, as Rule 26 dictates.” Allstate Ins. Co. v. Electrolux Home Prod., Inc., No. 16-CV-4161, 2017 WL 5478297, at *4 (N.D. Ill. Nov. 15, 2017); see also Autotech Techs. Ltd. Partnership v. Automationdirect.com, Inc., 235 F.R.D. 435, 440 (N.D. Ill. 2006) (“The initial inquiry in enforcement of any discovery request is one of relevance.”). “If discovery appears relevant, the burden is on the party objecting to a discovery request to establish the request is improper.” Doe v. Loyola Univ. Chicago, No. 18 CV 7335, 2020 WL 406771, at *2 (N.D. Ill. Jan. 24, 2020).

Under Rule 26, “[t]he parties and the court have a collective responsibility to consider the proportionality of all discovery and consider it in resolving discovery disputes.” Fed.R.Civ.P. 26, advisory committee notes to 2015 amendment. Yet, proportionality “is not self-defining; it requires a common sense and experiential assessment.” Generation Brands, LLC v. Decor Selections, LLC, 19 C 6185, 2021 WL 780485, at *2 (N.D. Ill. Mar. 1, 2021). “[T]he key . . . is careful and realistic assessment of actual need” that may “require the active involvement of . . . the federal judge to guide decisions respecting the scope of discovery.” United States ex rel. Customs Fraud Investigations, LLC. v. Victaulic Co., 839 F.3d 242, 259 (3rd Cir. 2016). However, courts are not required to re-write discovery requests, and frequently decline to do so. See Elwyn Robinson v. PPG Industries, Inc. et al., CV1904033ODWRAOX, 2021 WL 4497222, at *6 (C.D. Cal. July 23, 2021); Settlemyer v. Borg-Warner Morse TEC, LLC, 1:19 CV 344 MR WCM, 2021 WL 66411, at *3 (W.D. N.C. Jan. 7, 2021); Ye v. Cliff Veissman, Inc., 14-CV-01531, 2016 WL 950948, at *4 (N.D. Ill. Mar. 7, 2016); Annex Books, Inc. v. City of Indianapolis, 103CV00918SEBTAB, 2011 WL 13305341, at *3 (S.D. Ind. Feb. 18, 2011).

III. Discussion

A. Lippert Materials

Plaintiff seeks to compel Wexford and the IDOC to produce documents relating to any investigation, audit, monitoring, or review of the medical care and treatment of inmates at Dixon, including documents relating to and underlying the 2014 and 2018 Lippert reports.

At the outset, this Court notes that both Wexford and the IDOC make an overarching proportionality argument in response to Plaintiff's request for documents underlying the Lippert reports. Throughout their briefs, both parties generally argue that this request is not proportional to the needs of this case considering the broad scope of Plaintiff's request and the undue burden imposed in searching for and producing such discovery. This Court will discuss below the scope of the requests and the burden that Wexford and the IDOC allege their response will impose.

However, one of the parties' arguments lodged under the guise of proportionality deserves mention at the outset. Wexford generally alleges that the strength of Plaintiff's case does not warrant the scope of discovery requested. Specifically, Wexford argues that Plaintiff cannot prove an unconstitutional policy of delay in approving offsite treatment considering the “insurmountable amount of timely, adequate and responsive medical treatment” he received both on-site at Dixon and off-site at UIC and elsewhere “for his myriad of medical issues.” Def.'s Resp. at 5, Dkt. 150.

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But that is Wexford's view of this case and it is starkly different than the facts as alleged in Plaintiff's complaint. As the district judge stated when denying Wexford's motion to dismiss Plaintiff's Monell claim, “[t]he fact that a prisoner received some medical care does not, by itself, defeat a claim of deliberate indifference.” Dkt. 89 at 7.^[4] Moreover, Wexford's challenge to the sufficiency of Plaintiff's Monell claim is without merit where the district judge already determined that Plaintiff sufficiently alleged a policy or custom that caused the denial of treatment or its undue delay. Id. at 6. It is not for this Court to reexamine the sufficiency of Plaintiff's claim on a motion to compel. Instead, this Court must determine if the requested discovery is reasonably tailored to the claim as alleged in the complaint. See Prince v. Kato, No. 18 C 2952, 2020 WL 1874099, at *2 (N.D. Ill. Apr. 15, 2020) (declining to “make findings about whether certain facts have been established or not established to justify Monell-related discovery”); Smith v. Portwood, No. 19 C 5329, 2021 WL 4318076, at *2 (N.D. Ill. Sept. 23, 2021) (“In general, parties are permitted discovery to investigate and develop their claims so long as the request is reasonably tailored to produce information that bears on their allegations.”).

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