Woodworth v. United States

• Decision Date: 27 December 2017
• Docket Number: 1:14–cv–00674–RJA–JJM
• Citation: 287 F.Supp.3d 345
• Parties: Rory S. WOODWORTH, as Administrator of the Estate of Jill A. Woodworth, Plaintiff, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — Western District of New York

287 F.Supp.3d 345

Rory S. WOODWORTH, as Administrator of the Estate of Jill A. Woodworth, Plaintiff,

v.UNITED STATES of America, et al., Defendants.

1:14–cv–00674–RJA–JJM

United States District Court, W.D. New York.

Signed December 27, 2017

Michele A. Braun, Lipsitz, Green, Scime, Cambria, LLP, Buffalo, NY, James M. Mucklewee, Rosanne M. Gugino, Brown Chiari LLP, Lancaster, NY, for Plaintiff.

Mary K. Roach, U.S. Attorney's Office, Jason T. Britt, Harris Beach LLP, Buffalo, NY, for Defendants.

DECISION AND ORDER

JEREMIAH J. MCCARTHY, United States Magistrate Judge This is an action pursuant to the Federal Tort Claims Act ("FTCA", 28 U.S.C. §§ 1346(b), 2671 et seq. ) and state law for medical malpractice resulting in the death of plaintiff's wife Jill and their unborn child on July 28, 2012. Amended Complaint [52].¹ Before the court is plaintiff's motion to compel production of "peer review" documents [72], which was orally argued before me on November 9, 2017 [75]. Having considered the parties' submissions [72–74, 78–83], the motion is granted in part and denied in part.²

BACKGROUND

Familiarity with the relevant procedural history is presumed. Although plaintiff's motion seeks various forms of relief, at oral argument the parties stipulated that the only issue remaining in dispute is the failure by defendants Jodi Ball, M.D., Sisters of Charity Hospital and Catholic Health System to comply with plaintiff's March 10, 2017 demand for production of "[a]ll Peer Review and Quality Assurance reports, statements, memoranda, communications, materials, attendance logs concerning care and treatment of patient JILL A. WOODWORTH on July 27, 2012". [72–3], p. 7 of 9, Request 4. Although that demand required production by April 11, 2017, defendants did not respond until September 13, 2017, objecting that the requested documents "would be privileged pursuant to New York Education Law § 6527 and Public Health Law §§ 2805–j through 2805–m as any responsive document would have been created in the course of the hospital's quality assurance and/or peer review programs". [72–6], p. 3 of 5.

In moving to compel production of these documents, plaintiff argues that defendants' untimely objection to the demand is ineffective, and that in any event the privilege does not apply. Braun Affirmation [72–1], ¶¶ 31, 32.

DISCUSSION

A. Waiver

It has been said that the "failure to respond or object to a discovery request in a timely manner waives any objection which may have been available". Cohalan v. Genie Industries, Inc., 276 F.R.D. 161, 163 (S.D.N.Y. 2011). However, "a finding of waiver is not mandatory", 7 Moore's Federal Practice, § 34.13[2][c] (Matthew Bender 3d ed.), and "it is within the court's discretion to decline to compel the production of requested documents even if a timely objection is not made". Brenford Environmental System, L.P. v. Pipeliners of Puerto Rico, Inc., 269 F.R.D. 143, 146 (D.P.R. 2010).

While defendants offer no legitimate excuse for their failure to timely object to plaintiff's March 10, 2017 demand for production, they point out that in response to an earlier document request, they advised plaintiff of the existence of the peer review documents and claimed privilege based upon the same statutory provisions which they now cite. [73–2], p. 4 of 11, ¶ 4. For that reason, and without condoning defendants' failure to timely object to plaintiff's March 10, 2017 demand, I conclude that the harsh sanction of waiver is not warranted in this case.

B. Applicability of the Privilege

Fed. R. Evid. 501 states that "[t]he 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". " Rule 501 manifests a congressional desire not to freeze the law of privilege but rather to provide the courts with flexibility to develop rules of privilege on a case-by-case basis." University of Pennsylvania v. E.E.O.C., 493 U.S. 182, 189, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990).

In resisting defendants' claim of privilege, plaintiff relies upon Syposs v. United States, 179 F.R.D. 406, 411 (W.D.N.Y. 1998), adhered to on reconsideration, 63 F.Supp.2d 301 (W.D.N.Y. 1999) (Foschio, M.J.). Braun Affirmation [72–1], ¶ 31. In Syposs, Judge Foschio rejected a claim of peer review privilege under the FTCA, holding that "as federal courts only adopt state law under the FTCA, federal law still supplies the rule of decision under Rule 501 and state privilege law does not apply to Federal Tort Claims Act cases." 179 F.R.D. at 411 (quoting Menses v. U.S. Postal Service, 942 F.Supp. 1320, 1323–24 (D. Nev. 1996) ).

While Syposs merits careful consideration, it is not binding authority. See Camreta v. Greene, 563 U.S. 692, 709 n. 7, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) ("[a] decision of a federal district court judge is not binding precedent in either a different judicial district, the same judicial district, or even upon the same judge in a different case"). Although I agree with Judge Foschio that federal law supplies the rule of decision in this case,³ for the following reasons I conclude that in an FTCA action, application of New York's peer review privilege (when invoked)⁴ is not merely permitted, but required.

In Syposs, Judge Foschio recognized that although "the federal common law of privilege is applicable, and not state statutory privilege", in applying federal common law the court "should bear in mind the interests protected by a state-recognized privilege and may incorporate the privilege to the extent consistent with the federal policies implicated in a case". 179 F.R.D. at 409. Therefore, in deciding this motion I must first consider the State's interests underlying the peer review privilege, and then decide whether those interests are compatible with the federal policies implicated by the FTCA.

1. State Interests Underlying the Privilege

The purpose of New York's peer review privilege "is to enhance the objectivity of the review process and to assure that medical review committees may frankly and objectively analyze the quality of health services rendered by hospitals .... By guaranteeing confidentiality to quality review and malpractice prevention procedures, this provision is designed to encourage thorough and candid peer review of physicians, and thereby improve the quality of medical care". Logue v. Velez, 92 N.Y.2d 13, 17, 677 N.Y.S.2d 6, 699 N.E.2d 365 (1998). See also Francis v. United States, 2011 WL 2224509, *6 (S.D.N.Y. 2011) ("the primary purpose of such a privilege [is] to encourage candor among medical staff by shielding the information from disclosure in medical malpractice suits").

Such interests "are as substantial as any that can be imagined: Candid and conscientious evaluation of clinical practices is a sine qua non of adequate hospital care. To subject these discussions and deliberations to the discovery process, without a showing of exceptional necessity, would result in terminating such deliberations .... The only consequence in not recognizing the privilege is to require the plaintiff in this case to do what plaintiffs in medical malpractice cases are routinely required to do in all other cases, namely adduce proof independent of what occurred in the peer review process." Sevilla v. United States, 852 F.Supp.2d 1057, 1068–69 (N.D. Ill. 2012).

2. Federal Policies Implicated by the FTCA

In concluding that the peer review privilege should not be applied in FTCA cases, Judge Foschio cited federal "employment discrimination and antitrust cases" which refused to apply the privilege. Syposs, 179 F.R.D. at 410–11. However, there is a fundamental difference between the federal interests at stake in employment discrimination or antitrust cases and those arising under the FTCA. For example, "Title VII creates a cause of action against an employer who has engaged in certain discriminatory conduct" ( Thanning v. Gulotta, 898 F.Supp. 134, 138 (E.D.N.Y. 1995), emphasis added), in order to effectuate "the purpose of Congress to assure equality of employment opportunities and to eliminate ... discriminatory practices". McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Thus, in University of Pennsylvania, involving the investigation of a professor's Title VII charge of discrimination on the basis of race, sex, and national origin ( 42 U.S.C. § 2000e–2(a) ), the Court rejected the University's assertion of peer review privilege as a basis for refusing to produce tenure evaluations of the professor and others, reasoning that while "confidentiality is important to the proper functioning of the peer review process under which many academic institutions operate ... the costs associated with racial and sexual discrimination in institutions of higher learning are very substantial. Few would deny that ferreting out this kind of invidious discrimination is a great, if not compelling, governmental interest. Often ... disclosure of peer review materials will be necessary in order for the Commission to determine whether illegal discrimination has taken place". 493 U.S. at 193, 110 S.Ct. 577.

Similarly, in rejecting a claim of peer review privilege in the antitrust context, the court in Memorial Hospital for McHenry County v. Shadur, 664 F.2d 1058, 1062, 1063 (7th Cir. 1981) cited the "strong public interest in open and fair competition which is embodied in the Sherman Act under which the case arises", concluding that "[t]he public interest in private enforcement of federal antitrust law in this context is simply too strong to permit the exclusion of relevant and possibly crucial evidence by application of the Hospital's privilege".

Unlike federal discrimination and antitrust statutes, the FTCA "does...