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Lindon v. Kakavand

United States District Court, E.D. Kentucky, Central Division, Lexington

August 15, 2014

TONYA LINDON, as Guardian of M.J.L., Plaintiff,
v.
BAHRAM KAKAVAND, M.D., et al., Defendants.

MEMORANDUM OPINION AND ORDER

DANNY C. REEVES, District Judge.

On April 29, 2014, United States Magistrate Judge Robert E. Wier denied the plaintiff's motion to compel[1] a report generated by Dr. David J. Bradley (the "Bradley Report") from Non-Party University of Kentucky Medical Center ("UKMC").[2] [Record No. 40] Dr. Bradley is an outside consultant from the University of Michigan whom UKMC hired to investigate the alleged negligently performed procedure by Defendant Dr. Bahram Kakavand. In relevant part, the Magistrate Judge determined that Dr. Bradley's report was protected from discovery because it is work product under Rule 26(b)(3)(A) of the Federal Rules of Civil Procedure, as well as the work of a non-testifying expert under Rule 26(b)(4)(D). [ Id. ] The plaintiff disagrees and timely filed objections. [Record No. 41] For the reasons explained below, the plaintiff's objections will be overruled.

I.

Under Rule 72(a), the Court "must consider timely objections and modify or set aside any part of the [Magistrate Judge's non-dispositive] order that is clearly erroneous or is contrary to law." Fed.R.Civ.P. 72(a); see also 28 U.S.C. § 636(b)(1)(A) ("A judge of the court may reconsider any pretrial matter... where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law"); United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001) ("A district court shall apply a clearly erroneous or contrary to law' standard of review for the nondispositive' preliminary measures of § 636(b)(1)(A).") (quoting United States v. Raddatz, 447 U.S. 667, 673 (1980)). This standard of review is a limited one. Massey v. City of Ferndale, 7 F.3d 506, 509 (6th Cir. 1993). Indeed, courts have explained that

[a] judicial finding is deemed to be clearly erroneous when it leaves the reviewing court with a definite and firm conviction that a mistake has been committed. Under the clearly erroneous standard, a court reviewing a magistrate judge's order should not ask whether the finding is the best or the only conclusion that can be drawn from the evidence. Further, this standard does not permit the reviewing court to substitute its own conclusion for that of the magistrate judge. Rather, the clearly erroneous standard only requires the reviewing court to determine if there is any evidence to support the magistrate judge's finding and that the finding was reasonable.

Brownlow v. GMC, No. 3:05CV-414-R, 2007 U.S. Dist. LEXIS 67973, at *8 (W.D. Ky. Sept. 13, 2007) (quotation marks and citations omitted).

II.

The plaintiff argues that: (i) the Bradley Report is discoverable because peer review documents are not privileged under Kentucky law; (ii) the Bradley Report is not work product; (iii) the Bradley Report is not an attorney-client communication; and (iv) UKMC failed to meet its burden of proving privilege and waived privilege by providing a deficient privilege log. Thus, she contends that the Magistrate Judge's order should be set aside and UKMC should be directed to produce a copy of the Bradley Report. [Record No. 41] Conversely, Non-Party UKMC argues that the Magistrate Judge's order should not be set aside or modified. [Record No. 45-2]

A. Attorney-Client Communication

UKMC has not argued that the Bradley Report constituted an attorney-client communication. Likewise, the Magistrate Judge did not rely on an alleged attorney-client privilege as a basis for concluding that the report is not discoverable. Thus, the Court need not address the plaintiff's third objection. [ See Record No. 41, pp. 16-18.]

B. Protected Work Product

The plaintiff's first and second objections are repetitious of prior arguments considered and ultimately rejected by the Magistrate Judge. [Record No. 40] In fact, the entirety of these objections is simply copied-and-pasted from her initial motion and reply brief. [ Compare Record No. 24-1, pp. 5-10, 4-5, 10-14, with Record No. 41, pp. 2-7, 7, 8-11; compare also Record No. 31, pp. 4-7, 2, with Record No. 41, pp. 12-16, 18-19.] The plaintiff provides no new evidence, makes no attempt to distinguish her position, and fails to demonstrate how the Magistrate Judge's conclusions are "clearly erroneous or contrary to law." Curtis, 237 F.3d at 603. Her claims were thoroughly addressed and found to be without merit. The plaintiff's attempt to raise these arguments a second time fairs no better.

The main thrust of the plaintiff's argument is that UKMC's investigation into the circumstances of MJL's procedure were not "in anticipation of litigation, " but rather a business requirement of UKMC. [Record No. 41, pp.2-16; see also Record No. 24.] The plaintiff points to a number of Kentucky hospital licensure rules, administrative regulations, and Joint Commission on Accreditation of Healthcare Organizations ("JCAHO") standards. She contends these rules, regulations and standards require UKMC to undertake an investigation and causal analysis much like the review conducted by Dr. Bradley.

However, the plaintiff's reliance on the cited Kentucky Administrative Regulations is overstated. She again fails to identify any regulation that either: (i) sets forth criteria for the preparation of an incident investigation report and not in the form as the Bradley report and attendant investigation; or (ii) affirmatively requires UKMC to prepare such incident reports for cases like MJL's. [ See 902 KAR 20:016 § 3(3)(a) (stating that administrative reports shall be made and maintained " as necessary "); see also Record No. 40, pp. 7-8.] Thus, the plaintiff's argument that UKMC was required by state law to record the incident and to report the events is not supported by § 3(3)(a). Likewise, the regulations relied upon by the plaintiff do not patently require a specific report in this context and she does not produce any evidence that ...


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