Estate of Joseph Murphy v. State of Alaska, Department of Corrections et al, No. 1:2017cv00010 - Document 77 (D. Alaska 2018)
Court Description: ORDER granting 53 Motion for Discovery. Signed by Judge John W. Sedwick on 12/19/18. (GMM, CHAMBERS STAFF)
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Estate of Joseph Murphy v. State of Alaska, Department of Corrections et al Doc. 77 1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF ALASKA 5 6 7 ESTATE OF JOSEPH MURPHY, 8 Plaintiff, 9 vs. 10 11 STATE OF ALASKA, DEPARTMENT OF CORRECTIONS, et al., 12 Defendants. ) ) ) ) ) ) ) ) ) ) ) ) 1:17-CV-00010 JWS ORDER AND OPINION [Re: Motion at docket 53] 13 14 I. MOTION PRESENTED 15 At docket 53 plaintiff Estate of Joseph Murphy (“Plaintiff”) asks the court to 16 conduct an in camera review of certain personnel and disciplinary records of defendant 17 Jill Robinson (“Robinson”). Robinson responded at docket 68. Plaintiff replies at 18 docket 74. Oral argument was not requested and would not be of assistance to the 19 court. 20 21 II. BACKGROUND Joseph Murphy (“Murphy”) was sent to the Lemon Creek Correctional Center 22 (“Lemon Creek”) from Bartlett Regional Hospital on August 13, 2015, to be temporarily 23 detained for alcohol detoxification and suicide monitoring pursuant to AS 47.37.170. 24 Early the next morning he complained to Robinson, a nurse at Lemon Creek, of chest 25 pains and requested his medication. Plaintiff alleges that Robinson did not obtain 26 Murphy’s medication and did not follow-up or monitor his condition. Plaintiff alleges that 27 Murphy made two subsequent requests for medication to other Lemon Creek staff 28 members but his requests went unheeded. According to Plaintiff, a Lemon Creek video shows Murphy collapsing in his cell twenty-six minutes after he first requested his Dockets.Justia.com 1 medications from Robinson. He was declared dead about an hour later, after 2 resuscitation efforts failed. 3 4 5 III. DISCUSSION As part of Plaintiff’s 42 U.S.C. § 1983 claim against Robinson, Plaintiff served various requests for production, including the following: 6 1) RFP No.1 – production of Robinson’s state employee personnel file; 7 2) RFP No. 4 – production of any written or recorded statements or 8 communications regarding Joseph Murphy, the death of Joseph Murphy, 9 investigations into the death of Joseph Murphy, or the Department of 10 Corrections’s November 13, 2015 Administrative Review by Dean Williams 11 and Joe Hanlon; 12 3) RFP No. 7 – production of any writing received or sent by Robinson in 13 which she discusses Joseph Murphy and/or her care and treatment of 14 him. 15 Robinson objected to the three requests based on her right to privacy under 16 AS 39.25.080 and Article I § 22 of the Alaska Constitution and based on medical peer 17 review privilege. After the court’s issuance of an order at docket 48 regarding the 18 applicability of AS 39.25.080 to Defendant Corcoran’s personnel file, Robinson 19 narrowed the basis of her objection to medical peer review privilege, set forth at 20 AS 18.23.030. 21 The medical peer review privilege statute protects the proceedings of and 22 records generated by a medical peer review organization and protects the investigative 23 process used by the organization.1 The statute states as follows: 24 25 26 (a) Except as provided in (b) of this section, all data and information acquired by a review organization in the exercise of its duties and functions shall be held in confidence and may not be disclosed to anyone except to the extent necessary to carry out the purposes of the review organization and is not subject to subpoena or discovery. Except as provided in (b) of this section, a 27 28 1 See Mat-Su Valley Med. Ctr., LLC v. Bolinder, 427 P.3d 754, 763-64 (Alaska 2018). -2- 1 2 3 4 5 6 7 person described in AS 18.23.020 may not disclose what transpired at a meeting of a review organization except to the extent necessary to carry out the purposes of a review organization, and the proceedings and records of a review organization are not subject to discovery or introduction into evidence in a civil action against a health care provider arising out of the matter that I the subject of consideration by the review organization. Information, documents, or records otherwise available from original sources are not immune from discovery or use in a civil action merely because they were presented during proceedings of a review organization, nor may a person who testified before a review organization or who is a member of it be prevented from testifying as to matters within the person's knowledge, but a witness may not be asked about the witness's testimony before a review organization or opinions formed by the witness as a result of its hearings, except as provided in (b) of this section.2 8 Disclosure of information and details deemed confidential under the statute constitutes 9 10 a misdemeanor.3 The parties agree that the Department of Corrections’ peer review committee qualifies as a “review organization” for purposes of the statute.4 11 In her response to Plaintiff’s motion, Robinson drops her objection to turning over 12 her personnel file for an in camera view after confirming that her file does not contain 13 any peer review committee materials. She agrees to produce her personnel file for in 14 camera review “according to the procedure . . . followed by this Court in regards to 15 Defendant Corcoran’s personnel records.”5 16 She maintains her objection to Plaintiff’s RFP No. 4 and RFP No. 7, arguing the 17 medical peer review privilege statute prevents her from fully complying with these two 18 requests, which ask for statements, communications, or writings related to Joseph 19 Murphy, his care, his death, and investigations into his death. She asserts that “[a]ll 20 non-privileged materials responsive to Plaintiff’s discovery requests Nos. 4 and 7 that 21 are in Ms. Robinson’s care, custody or control, including Mr. Murphy’s medical records 22 23 24 25 2 AS 18.23.030(a). 26 3 27 4 28 5 AS 18.23.040. The term “review organization” is defined in AS 18.23.070. Doc. 68 at p. 4. -3- 1 and Ms. Robinson’s incident report, have been disclosed by Ms. Robinson,”6 but she 2 argues that she cannot turn over other unspecified materials because of the peer review 3 privilege statute. 4 Much of Robinson’s briefing is devoted to arguing that Alaska’s peer review 5 privilege is applicable in this federal case. She argues that because Alaska criminalizes 6 a violation of the privilege, the issue presented here is different from Agster v. Maricopa 7 County,7 where the Ninth Circuit emphasized that federal common law preempts state 8 law on questions of privilege and declined to create a federal common law privilege for 9 materials related to a peer review conducted by a correctional facility. Even assuming 10 Agster is distinguishable and the state statute applies to this case, Robinson has not 11 met her burden to show that her objection to producing the requested materials on the 12 basis of peer review privilege is proper.8 13 Despite the protections afforded a medical peer review committee and evidence 14 acquired by a committee, a litigant may nonetheless seek “[i]nformation, documents, or 15 records otherwise available from original sources” or information on matters within an 16 individual’s “person[al] knowledge.”9 However, as the Alaska Supreme Court recently 17 clarified, the litigant must seek such outside evidence from another source and not the 18 committee or a committee member.10 That is, the committee and its members cannot 19 be forced to turn over evidence in its possession even if the evidence originated outside 20 of the review process; the litigant must instead obtain the evidence elsewhere. Here, 21 Plaintiff is not asking the review committee or any of its members for evidence obtained 22 23 6 24 7 25 8 26 Doc. 68 at pp. 9-10. 422 F.3d 836 (9th Cir. 2005). Indeed, in its reply brief Plaintiff withdraws the preemption argument from the motion and asserts that it need not be decided at this time. 27 9 28 10 AS 18.23.030(a). Mat-Su Valley Medical Center, LLC v. Bolinder, 427 P.3d 754 (Alaska 2018). -4- 1 for or used in its proceedings, nor is Plaintiff asking Robinson to obtain anything from 2 the committee. Rather, Plaintiff is asking Robinson for any relevant communications 3 that are in her possession, custody, and control. 4 Robinson has not provided any information about the nature of specific materials 5 in her possession which she believes are protected under the statute, and therefore the 6 court cannot craft any specific directive. Instead, the court can only stress that under 7 the statute “[i]nformation, documents, or records otherwise available from original 8 sources are not immune from discovery or use in a civil action merely because they 9 were presented during proceedings of a review organization.”11 Indeed, cases 10 construing similar state statutes explain that information “available from a source other 11 than the committee does not become privileged simply by being acquired by the review 12 committee.”12 Here, the review committee’s evidence generally consisted of 13 documents, videos, and interviews.13 In RFP No. 4 and No. 7 Plaintiff is not asking for 14 videos or information about what Robinson said in her interview; he asks only for written 15 communications. The fact that Robinson may have provided existing communications 16 in her possession to the committee as part of its review does not make them privileged. 17 Robinson has not indicated she has in her possession written testimony or statements 18 she or others prepared specifically for the committee. 19 The statute also prevents disclosure of information about what transpired at a 20 committee meeting or disclosure of committee records and findings. Given that 21 disclosure of confidential information is a misdemeanor, it is unlikely that Robinson has 22 in her possession, custody, or control any materials about the committee meetings or 23 any committee records generated as a result of the review process. Indeed, the 24 25 26 27 28 11 AS 18.23.030(a). 12 McGee v. Bruce Hosp. Sys., 439 S.E.2d 257, 260 (S.C. 1993), quoted in Mat-Su Valley Med. Cent., 427 P.3d at 767. 13 Doc. 69 at p. 2, ¶ 2. -5- 1 affidavit from the Deputy Director of Health and Rehabilitation Services for the 2 Department of Corrections at the time of the peer review states that “[a]ll documents 3 related to the event were stored in the DOC executive Office.”14 There is nothing to 4 suggest that Robinson has or had any access to these stored materials. 5 6 IV. CONCLUSION For the reasons above, the motion at docket 53 is granted as follows: (1) The 7 court will conduct an in camera review of Robinson’s personnel file on the same 8 conditions and terms set out in its order at docket 48 addressing Defendant Corcoran’s 9 personnel records. (2) Robinson is directed to produce any materials in her possession, 10 custody, or control that are responsive to RFP No. 4 and RFP No. 7 in accordance with 11 the guidance provided herein. In the event Robinson has communications in her 12 custody that she believes are responsive to Plaintiff’s requests but subject to the 13 privilege, she is directed to provide general details about the nature of the 14 communication—what type of communication it is; when it was generated; to whom the 15 communication or statement was provided and when—to Plaintiff and confer with 16 Plaintiff regarding the withheld material. If the parties are unable to reach an agreement 17 on any withheld item, Plaintiff may file a subsequent motion seeking the court’s 18 guidance. 19 Robinson shall deliver the materials for in camera review within 14 days. 20 Materials provided on a disk must be accompanied by a paper index describing each 21 item in the manner used by defendant Corcoran. 22 DATED this 19th day of December 2018. 23 /s/ JOHN W. SEDWICK SENIOR JUDGE, UNITED STATES DISTRICT COURT 24 25 26 27 28 14 Doc. 69 at p. 2, ¶ 6. -6-
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