Tucker v. U.S.

• Decision Date: 06 April 2001
• Docket Number: No. Civ.A. 5:00-0495.,Civ.A. 5:00-0495.
• Citation: 143 F.Supp.2d 619
• Parties: Theresa L. (Derringer) TUCKER, Plaintiff, v. UNITED STATES of America and Raleigh General Hospital, d/b/a Columbia Raleigh General Hospital, Defendants.
• Court: U.S. District Court — Southern District of West Virginia

143 F.Supp.2d 619

Theresa L. (Derringer) TUCKER, Plaintiff, v. UNITED STATES of America and Raleigh General Hospital, d/b/a Columbia Raleigh General Hospital, Defendants.

No. Civ.A. 5:00-0495.

United States District Court, S.D. West Virginia, Beckley Division.

April 6, 2001.

Edward G. Atkins, Douglas V. Atkins, ATKINS & ATKINS, Charleston, WV, for Theresa L. (Derringer) Tucker.

Stephen M. Horn, Assistant U.S. Attorney, Charleston, WV, for U.S.

Paul T. Farrell, Farrell, Farrell & Farrell, Huntington, WV, for Raleigh Gen. Hosp.

MEMORANDUM OPINION AND ORDER

FEINBERG, United States Magistrate Judge.

This action arises out of the alleged negligence of John H. Pellegrini, D.O., in performing an hysterectomy on Plaintiff, and of defendant Raleigh General Hospital ("Raleigh General") in granting and continuing staff privileges to Dr. Pellegrini. At the time of the surgery, Dr. Pellegrini was an agent and employee of an entity covered by the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq.

Count One of Plaintiff's Amended Complaint is brought pursuant to the FTCA and alleges Dr. Pellegrini's negligence. This claim against the United States under the FTCA confers federal question jurisdiction on the court pursuant to 28 U.S.C. § 1331. Count Two alleges that defendant Raleigh General was negligent in selecting, retaining and supervising Dr. Pellegrini as a member of its medical staff in the specialty of obstetrics and gynecology. Jurisdiction is founded upon 28 U.S.C. § 1367, supplemental jurisdiction of a state law claim related to the claim in Count One.

Pending before the court are "Plaintiff, Theresa L. (Derringer) Tucker's Motion for an Order Compelling Answers to Interrogatories # 3 - # 23 Inclusive, of Plaintiff's First Set of Interrogatories to Defendant, Raleigh General Hospital, Served on October 3, 2000" (Document # 35), and "Plaintiff, Theresa L. (Derringer) Tucker's Motion for Order Compelling Defendant, Raleigh General Hospital, to Produce the Documents Requested in Requests # 1 - # 9, Inclusive and # 12 - # 14, Inclusive of Plaintiff's First Request for Production of Documents to Defendant, Raleigh General Hospital, Served on October 3, 2000" (Document # 36), both filed November 13, 2000. In her motions, Plaintiff seeks an order compelling Raleigh General to respond to a number of interrogatories and document requests, all of which, according to Plaintiff, relate to what information Raleigh General had when it decided to offer staff privileges to Dr. Pellegrini.

On November 22, 2000, Defendant Raleigh General responded and moved for a protective order. (Document # 38.) Raleigh General asserted a good faith belief that the information and documents sought to be compelled by Plaintiff are protected by West Virginia's peer review privilege found at West Virginia Code § 30-3-1 et seq.

The court will not limit its consideration to Count Two only. It is unlikely that information relating to Raleigh General's knowledge of Dr. Pellegrini's abilities would not be used by the parties with respect to Count One. See Robertson v. Neuromedical Center, 169 F.R.D. 80, 82 (M.D.La.1996) (the court cannot segregate the discovery into what would be relevant to the federal claim versus the state law claims).

On December 6, 2000, this court entered an order indicating that it would undertake in camera review of the documents asserted by Raleigh General to be privileged and protected by West Virginia Code § 30-3C-3 and that Raleigh General should provide the court with an index/privilege log by a certain date. (Document # 40.) On December 12, 2000, Raleigh General filed a supplemental disclosure of documents that were not protected by West Virginia Code § 30-3C-3. (Document # 42.) In addition, on December 26, 2000, Raleigh General filed a "Response to Plaintiff's Motion to Compel and Production of Privilege Log Regarding Credentialing Information Regarding Dr. John Pellegrini." (Document # 43.)

The court determined that it was necessary to hold a hearing on the pending discovery motions, particularly in light of conflicting case law on the issue of whether federal common law or West Virginia law governs the assertion of privilege as to each count in the Amended Complaint. (Document # 48.) Following a hearing on March 6, 2001, the parties were permitted to submit legal memoranda regarding this issue. The United States, Raleigh General and Plaintiff each filed a brief on March 13, 2001, March 16, 2001, and March 16, 2001, respectively. (Document ## 53, 54, 55.) On March 23, 2001, Raleigh General and Plaintiff responded. (Document ## 57, 58.)

Rule 501 of the Federal Rules of Evidence provides as follows:

Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness ... shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness ... shall be determined in accordance with State law.

Pursuant to the second sentence of Rule 501, the court must determine whether state law supplies the rule of decision as to Counts I and II of Amended Complaint. If it does, Rule 501 requires that state privilege law applies. In that instance, the court must determine whether West Virginia Code § 30-3C-3 precludes production of the documents in question. If state law does not supply the rule of decision, federal privilege law applies, and the court must determine whether a federal privilege exists as to medical peer review records or if not, whether one should be recognized.

Count I of the Amended Complaint alleges a claim against the government pursuant to the Federal Tort Claims Act ("FTCA"). Under the FTCA, the United States waives its sovereign immunity and allows suit to be brought against it. The FTCA provides that "[t]he United States shall be liable ... in the same manner and to the same extent as a private individual under like circumstances...." 28 U.S.C. § 2674. In addition, 28 U.S.C. § 1346(b)(1), the statute conferring jurisdiction on District Courts for FTCA claims, provides that

the district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, ... for injury ... caused by the negligence or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

On its face, it would seem that the obvious result in applying Rule 501 in the context of the FTCA would be that state law supplies the rule of decision. Congress did explicitly indicate in the FTCA that state law is to be used in determining whether the United States is liable under the FTCA. However, such a literal application of Rule 501 is inconsistent with the legislative history of Rule 501, which supports a finding that Congress intended federal privilege law to apply in FTCA cases.

In Young v. United States, 149 F.R.D. 199, 202-04 (S.D.Cal.1993), the court examined the legislative history of Rule 501 in finding that federal, not state, privilege law applies in determining the discovery of evidence in a FTCA case. In Young, the court explained that the House Judiciary Committee drafted the proposed Rule 501 in essentially the same form as it was enacted. With respect to the second sentence of Rule 501, the House Judiciary Committee intended to require the application of state privilege law in civil actions and proceedings governed by Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and explained that " `[t]he Committee believes that in civil cases in the federal courts where an element of a claim or defense is not grounded upon a federal question, there is no federal interest strong enough to justify departure from State policy.'" Young, 149 F.R.D. at 202 (quoting H.R.Rep. No. 650, 93d Cong., 2d Sess. (1974), reprinted in 1974 U.S.C.C.A.N. 7075, 7082-83).

When the House Committee circulated its version of Rule 501 for national review and comment, the Department of Justice raised the issue of the applicability of state privilege law in FTCA cases. The Department of Justice pointed out that as worded, the Rule did not limit dependence on state law solely to diversity actions. The Department of Justice wrote that

[t]his poses a real problem. There are thus statutes which make state law determinative in cases in which the United States may be a party (e.g., Federal Tort Claims Act). There is generally no reason in those instances to apply state law in matters regarding the admissibility of evidence and claims of privilege. Before a blanket rule applicable to all such cases is adopted, Congress should examine each of the instances in which state law is applicable to actions involving the United States and determine whether the policy considerations favoring uniformity of procedure in actions involving the United States should prevail. The last sentence of the rule should be amended to reflect these views.

Young, 149 F.R.D. at 203 (emphasis added) (quoting Department of Justice Analysis and Recommendations Regarding Draft of Proposed Rules of Evidence of the Subcommittee on Criminal Justice, House Committee on the Judiciary, H.R. 5463, 93d Cong., 1st Sess. 347 (1973) (statement of William D. Ruckelshaus, Acting Deputy Attorney General)).

Although the Senate then proposed a bill that might have addressed these concerns, the Senate-House Conference ultimately adopted the House version of Rule 501. According to the court in Young, although...