Wis. Province of the Soc’y of Jesus v. Cassem

• Decision Date: 25 June 2020
• Docket Number: No. 3:19-mc-00130 (VLB),3:19-mc-00130 (VLB)
• Citation: 468 F.Supp.3d 482
• Court: U.S. District Court — District of Connecticut
• Parties: WISCONSIN PROVINCE OF the SOCIETY OF JESUS, Plaintiff, v. Audrey V. CASSEM, et al., Defendants.

468 F.Supp.3d 482

WISCONSIN PROVINCE OF the SOCIETY OF JESUS, Plaintiff,

v.Audrey V. CASSEM, et al., Defendants.

No. 3:19-mc-00130 (VLB)

United States District Court, D. Connecticut.

Signed June 25, 2020

Gregory J. Bennici, Robinson & Cole LLP, Stamford, Stamford, CT, for Plaintiff.

Kevin J. Greene, Halloran & Sage LLP, Hartford, CT, Peter S. Gersten, Gersten Law Offices, LLC, West Hartford, CT, for Defendants Audrey V. Cassem, Thomas Owens, II.

Charles Donald Neville, Kroll McNamara Evans & Delahanty, West Hartford, CT, for Defendant Neil Kraner.

MEMORANDUM OF DECISION ON WISCONSIN PROVINCE OF THE SOCIETY OF JESUS'S MOTION TO COMPEL NON-PARTY GREGORY L. FRICCHIONE, MD TO PRODUCE A DOCUMENT AND PROVIDE DEPOSITION TESTIMONY

Vanessa L. Bryant, United States District Judge

Before the Court is Plaintiff Wisconsin Province of the Society of Jesus's (the "Province") motion to compel non-party Gregory L. Fricchione, M.D. to produce a document and deposition testimony withheld on the basis of medical peer review privilege. [Dkt. 2 (Pl. Mem in Supp. Mot. to Compel) ]; [Dkt. 15 (Non-Party Mem. in Opp'n) ]. For reasons set forth herein, the Court GRANTS the Province's motion to compel.

Background

In the underlying action, Wisconsin Province for the Society of Jesus v. Audrey Cassem, et al. , case no. 3:17-cv-01477, the Province seeks a declaratory judgment that it is entitled to two retirement accounts held by the late Fr. Edwin H. "Ned" Cassem, S.J., M.D. ("Fr. Cassem"). According to the Amended Complaint in the underlying action, Fr. Cassem earned the two retirement accounts while practicing psychiatry for several decades at Massachusetts General Hospital ("MGH") and Harvard Medical School. 3:17-cv-01477, Dkt. 44 (Am. Compl.) ¶ 16. In 1976, Fr. Cassem executed beneficiary designation forms designating the Province as the beneficiary of these accounts. Id. ¶ 16.

Upon Fr. Cassem's death in July of 2015, the Province learned that Fr. Cassem changed the beneficiary election to designate his late brother's widow, Audrey Cassem, and her son in January of 2011. Id. ¶ 22. The Province alleges that Fr. Cassem began showing signs of dementia in December 2010 when he moved into Audrey Cassem's home. Id. ¶¶ 24-25. The Province alleges that the subsequent beneficiary designation is invalid due to lack of capacity and/or undue influence. Id. ¶¶ 39-48.¹

In late August 2019, the Province served document and deposition subpoenas on non-party Gregory L. Fricchione, M.D. ("Dr. Fricchione"), who practiced with Fr. Cassem in the Department of Psychiatry at MGH prior to Fr. Cassem's retirement. [Dkt. 15 at 2-3]. During his deposition, Dr. Fricchione testified that in 2008 or 2009, he witnessed Fr. Cassem become intoxicated at a work-related dinner and act inappropriately. [Dkt. 2 at 3]. Dr. Fricchione's concern over Fr. Cassem's "poor judgment" caused him to initiate a peer review investigation into Fr. Cassem's fitness to continue to enjoy full clinical privileges. [Id. at 3-4]. Dr. Fricchione testified that before MGH terminates a physician's privileges the physician may voluntarily relinquish them. [Id. at 4]. In October 2010, Fr. Cassem's privileges were voluntarily reduced to "Honorary Staff" or "Courtesy Staff," meaning he could no longer admit or care for patients. [Dkt. 16 (Pl. Rep. Br.) at 6] (citing (Dkt. 15, Ex. 1), MGH Medical Staff Bylaws 2.03.9).

Dr. Fricchione withheld a document that was created during the peer review process and declined to answer questions regarding the internal proceedings pursuant to Massachusetts's medical peer review statute. M.G.L. ch. 111 §§ 204 and 205. [Dkt. 15 at 3-4]. The Province then filed a motion to compel Dr. Fricchione to produce the withheld document and submit to deposition questioning about the peer review process in U.S. District Court for the District of Massachusetts. [Dkt. 1]. U.S. District Court Judge Dennis F. Saylor, IV transferred the case to this District pursuant to Fed. R. Civ. P. 45(f). [Dkt. 5].

Discussion

A. Federal Privilege Law Governs the Issues in this Case

As a general rule, federal law governs the existence of a privilege in a civil action in which federal law supplies the rules of decision, and state law governs the existence of a privilege where state law supplies the rule of decision. See Fed. R. Evid. 501. Federal question subject matter jurisdiction exists over the underlying action under 28 U.S.C. § 1331 because the action arises under the Employee Retirement Income Security Act of 1974, as amended, 28 U.S.C. § 1001, et seq. Thus, federal common law supplies the rules of decision and governs the existence of a privilege. Fed. R. Evid. 501 ; von Bulow v. von Bulow , 811 F.2d 136, 141 (2d Cir. 1987).

At base, the existence of an evidentiary privilege is in tension with "the fundamental principle that the public ... has a right to every man's evidence." Univ. of Pennsylvania v. E.E.O.C. , 493 U.S. 182, 189, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990) (citations omitted)(alteration in original). Consequently, in federal court, "[p]rivileges should be narrowly construed and expansions cautiously extended." United States v. Weissman , 195 F.3d 96, 100 (2d Cir. 1999).

Rule 501 of the Federal Rules of Evidence affords district courts "flexibility to develop rules of privilege on a case-by-case basis." Univ. of Pa. v. EEOC , 493 U.S. at 189, 110 S.Ct. 577.

B. Medical Peer Review Privilege

Nearly all states have adopted some form of medical peer review privilege, which shields disclosure of internal reports prepared by medical staff quality assurance committees at hospitals and other healthcare organizations. Wigmore on Evidence § 7.8.2, Privilege for Medical Peer Review. Ordinarily, a peer review report is a retrospective exercise to identify errors in patient care and opportunities to prevent them in the future. See Grenier v. Stamford Hosp. , Inc., No. 3:14-CV-0970 (VLB), 2016 WL 3951045, at *4 (D. Conn. July 20, 2016). As this Court observed in Grenier :

The professional and financial ramifications of medical malpractice claims are severe and trigger the natural human instinct of self-preservation, the impulse to withhold information which could conceivably be perceived as a wrongful act or omission. The peer review process is designed to give physicians a safe place to fully disclose their conduct and analyze it together with their peers, with the benefit of 20/20 hindsight, in a constructive setting. Its purpose is to improve the medical standard of care, and in so doing, patient care and outcomes. The confidentiality of the peer review process would relieve physicians from the fear of reprisals and the self-preserving instinct to withhold information necessary to achieve the goals of peer review. It would engender candid and probing reflection and collaborative critical evaluation of not only the attending physicians’ actions, but of the hospital's policies and procedures as well.

Ibid.

Despite wide codification of the privilege among states, there is broad consensus that medical peer review privilege is not recognized under federal common law. Id. at 7; Wigmore on Evidence § 7.8.2, Privilege for Medical Peer Review.

C. Whether the Court should recognize medical peer review privilege in this case.

Here, the parties agree that the First Circuit has not recognized medical peer review privilege under federal common law. [Dkt. 2 at 5]; [Dkt. 15 at 4]; see In re Admin. Subpoena Blue Cross Blue Shield of Mass., Inc. , 400 F. Supp. 2d 386, 389 (D. Mass. 2005) ("No court in the First Circuit or District of Massachusetts has yet done so under federal law, but Massachusetts state law does recognize the privilege."). The Court agrees. See also Gargiulo v. Baystate Health, Inc. , 826 F. Supp. 2d 323, 328 (D. Mass. 2011), objections overruled , 279 F.R.D. 62 (D. Mass. 2012) (declining to recognize medical peer review privilege); Krolikowski v. Univ. of Massachusetts , 150 F. Supp. 2d 246, 249 (D. Mass. 2001) (same).

When considering whether to recognize a state-law privilege under Fed. R. Evid. 501, courts in the First Circuit apply the two-part test from In re Hampers , 651 F.2d 19, 22 (1st Cir. 1981), which first considers whether the state privilege would in fact apply, and then considers whether it is "intrinsically meritorious." To determine whether the privilege is "intrinsically meritorious," the First Circuit employs Wigmore's four-factor balancing test:

(i) whether the communications "originate in a confidence that they will not be disclosed";

(ii) whether this element of confidentiality is "essential to the full and satisfactory maintenance of the relations between the parties";

(iii) whether the relationship is a vital one that "ought to be sedulously fostered"; and

(iv) whether "the injury that would inure to the relation by the disclosure of the communications [would be] greater than the benefit thereby gained for the correct disposal of litigation."

Hampers , 651 F.2d at 22-24.

Here, the Province argues that Dr. Fricchione failed to establish that the withheld information and materials are "necessary to the work product" of the peer review process and subject to the ambit of Mass. Gen. Laws ch. 111 § 205. [Dkt. 2 (Pl. Mem in Supp. Mot. to Compel) 7-8]. In response, Dr. Fricchione argues that the withheld document is an incident report and "integral" to the peer review process that he initiated and performed in accordance with Massachusetts hospital regulations requiring facilities to analyze "professional performance, judgment, and skills" and "mental and physical status." [Dkt. 15 (Non-Party Mem. in Opp'n) at 10-13](citing Carr v. Howard , 426 Mass. 514, 524, 689 N.E.2d 1304 (1998) ) and 243 Mass. Code Regs. 3.05(d)(1)-(2). Dr. Fricchione, who was the psychiatry department chair, further argues that his actions were in response to his obligations under MGH's medical staff bylaws, relative to the "evaluation and assistance of providers impaired or allegedly impaired by reason of...