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Davidson v. City of Elizabethtown

United States District Court, W.D. Kentucky, Louisville Division

October 26, 2017

ELISE DAVIDSON, Successor Administratrix of Estate of Joshua Steven Blough, et al., Plaintiffs,
CITY OF ELIZABETHTOWN, et al., Defendants.


          Colin Lindsay, Magistrate Judge

         Defendants City of Elizabethtown, Matthew McMillen, and Scot Richardson (collectively “Defendants”) have filed a motion for entry of an order permitting them, by counsel, to conduct informal, ex parte interviews with medical providers of decedent Joshua Blough (“Blough”) and Plaintiff Amanda Reich (“Reich”) (DN 31). For the following reasons, the motion is granted.


         The Plaintiffs in this case, Reich, and the administrator of Blough's estate (collectively “Plaintiffs”), filed a complaint in this court on July 5, 2016 (DN 1). They allege that on or about July 7, 2015, Reich called 911 to alert authorities that she was trying to locate her then-fiancé, Blough, who had exited Reich's vehicle and was armed with a 2.5-inch pocket knife. (Id. at ¶ 14.) Defendant McMillen, an officer of the Elizabethtown (Kentucky) Police Department, met with Reich in response to the 911 call. (Id.) Plaintiffs allege that Reich informed the authorities that Blough “was in the throes of his mental illness . . . that he was afraid of the police, ” and that despite his possession of the pocket knife, he “was not threatening harm to her or anyone else[.]” (Id.) Plaintiffs allege that McMillen “assured her that the police would not hurt Mr. Blough.” (Id.) Shortly thereafter, Reich, McMillen, and Defendant Richardson (also an Elizabethtown Police Department officer), located Blough and approached him on foot. (Id. at ¶ 15.) In short, Plaintiffs allege that Blough did not threaten the officers in any way, but that when Blough did not drop his pocket knife upon being instructed to do so by the officers, McMillen and Richardson shot Blough three times, leading to his death. (Id. at ¶¶ 15-16.) Plaintiffs assert the following causes of action: (1) unnecessary and unwarranted use of lethal force leading to Blough's death, in violation of the Fourth Amendment and 42 U.S.C. § 1983; (2) negligence and/or gross negligence; (3) vicarious liability as to the City of Elizabethtown[1]; (4) common law battery and intentional and/or negligent infliction of emotional distress; (5) common law tort of outrage; and (6) wrongful death under KRS 411.130. (Id. at ¶¶ 19-31.)

         In the motion now before the Court, Defendants request that the Court enter an order permitting their counsel to conduct informal, ex parte interviews with healthcare providers for Blough and Reich. (DN 31.) The Court notes that at the outset of the motion, defense counsel certifies that he conferred with opposing counsel in an effort to resolve the dispute without court action, but that his effort was unsuccessful. (See Id. at 1; DN 31-1 (email of Plaintiffs' counsel stating, “I object to any ex parte communication with my clients' treating physicians.”); Fed.R.Civ.P. 26(c)(1) (A motion for protective order “must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action.”).) Notwithstanding Plaintiffs' counsel's statement by email, Plaintiffs did not file a response in opposition to Defendants' motion, and, in a telephonic conference conducted on October 19, 2017, Plaintiffs' counsel stated that he did not object to the motion. See LR 7.1(c) (“Failure to timely respond to a motion may be grounds for granting the motion.”). Despite the fact that Defendants' motion now appears to be unopposed, the Court finds that it is a good use of the Court resources to explain the reasoning behind its ruling on the motion. Specifically, as Defendants' motion (DN 31) raises little-discussed issues in this district, or, for that matter, in other jurisdictions, it appears to the Court to be advisable to discuss the reasoning supporting its conclusion. Moreover, as will be clear from the discussion below, federal statute requires a court order authorizing the type of discovery now sought by Defendants before they may lawfully seek such discovery.


         Defendants argue that an order permitting them to engage in informal, ex parte communications with Blough and Reich's medical providers is relevant and necessary to this action. They argue that the healthcare providers with whom they wish to speak, including physicians, nurses, EMS personnel, and other providers, “are likely to be key witnesses for Plaintiffs at trial” and possess relevant, discoverable information regarding Blough and Reich's medical conditions. (DN 31 at 4-5.) They further argue that Plaintiffs have placed Blough and Reich's medical conditions in issue in this case based on the allegations and causes of action set forth in the complaint. (Id. at 5-6.) Defendants contend that neither Kentucky law nor federal law prohibits the issuance of an order authorizing them to communicate with Blough and Reich's medical providers. (Id. at 6-8.) Finally, they argue that taking their requested approach will streamline discovery and further judicial economy in this case. (Id. at 8-9.)

         This Court recently addressed this issue in another case, and it encourages the parties to this action to review the other opinion for a detailed discussion of the reasoning that underlies the instant memorandum opinion and order. See Colston v. Regency Nursing, LLC, Civil Action No. 3:16-cv-50-GNS-CHL, DN 49 (Oct. 24, 2017). As in Colston, in this case, the Court concludes that good cause exists to enter a qualified protective order permitting Defendants to undertake the discovery they seek. See Fed. R. Civ. P. 26(c) (permitting the Court to issue protective orders for good cause shown); Peterson v. Outback Steakhouse, 2016 U.S. Dist. LEXIS 129596, *3 (E.D. Mich. Sept. 22, 2016) (stating that the party seeking the protective order bears the burden of showing that good cause exists for issuance of the order) (citing Nix v. Sword, 11 F. App'x 498, 500 (6th Cir. 2001)). Additionally, before moving on, the Court notes that litigants have historically been permitted to conduct ex parte interviews with fact witnesses for several reasons, but primarily in order to investigate facts and curtail litigation costs by allowing litigants to assess the usefulness of a witness's potential testimony by interviewing the witness before conducting a deposition. Caldwell v. Chauvin, 464 S.W.3d 139, 142-43 (Ky. 2015); see also Hopper v. Ruta, 2013 Colo. Dist. LEXIS 274, *6 (Colo. Dist. June 18, 2013) (“Informal methods of discovery not only effectuate the goals of the discovery process but tend to reduce litigation costs and simplify the flow of information [. . . and p]ersonal interviews are an accepted informal method of discovery.”) (quoting Samms v. District Court, 908 P.2d 520, 526 (Colo. 1995) (internal citation omitted)).

         Again, as in Colston, the Court's conclusion is informed by the Supreme Court of Kentucky's 2015 decision in Caldwell. Consistent with Caldwell, this Court concludes that the Health Information Portability and Accountability Act of 1996 (“HIPAA”) does not prohibit ex parte interviews with treating physicians, but it does regulate the protected information that may be disclosed in such interviews. “Among the permissible disclosures authorized by HIPAA, is the ‘litigation exception, ' which permits disclosure of protected health information ‘in the course of any judicial or administrative proceeding' either ‘[i]n response to an order of a court of administrative tribunal' or ‘[i]n response to a subpoena, discovery request, or other lawful process, ' so long as additional safeguards are met.”[2] Caldwell, 464 S.W.3d at 149 (quoting 45 C.F.R. § 164.512(e)(1)(i)-(ii)); see Colston, Civil Action No. 3:16-cv-50-GNS-CHL, DN 49 (Oct. 24, 2017) for a more detailed discussion of this portion of the Caldwell decision.

         In accordance with the HIPAA litigation exception, prior to seeking ex parte disclosure of protected health information from a medical provider, a party must first seek authorization from the trial court. Id. at 153 (holding that “HIPAA's procedural prerequisites to disclosure of protected health information may only be satisfied by order of a court or administrative tribunal . . . .”). Defendants have done so here; their motion (DN 31) seeks an order of this Court authorizing, but not requiring, Blough and Reich's medical providers to produce protected health information in the context of this case. The Caldwell court did not explicitly dictate the permissible scope and required level of specificity for a qualified protective order like the one requested by Defendants and entered herein. The order set forth below is informed by Caldwell, the terms of HIPAA's litigation exception, and the scope of the proposed order filed by Defendants (DN 31-3). Specifically, the Court limits the scope of the information obtainable by Defendants to such information as is relevant to the claims and defenses asserted by the parties in this action. Additionally, while the Court deems such information discoverable in this action, it makes no ruling as to the admissibility of any communications or materials that Defendants may obtain as a result of the qualified protective order.

         Finally, the Court notes that Kentucky law does not compel a different conclusion. This is so because, as is discussed in Caldwell, HIPAA preempts state-law privacy protections absent a state law that is more stringent than HIPAA; Kentucky does not recognize a physician-patient privilege; the American Medical Association's Code of Medical Ethics does not have the force of law such that it would render ex parte contacts with physicians impermissible; and Kentucky case law does not preclude litigants from conducting ex parte interviews of treating physicians. Caldwell, 464 S.W.3d at 154-58.[3]

         Based on the foregoing, the Court will grant Defendants' motion and enter the qualified protective order set forth below.


         IT IS HEREBY ORDERED that Defendants' motion for an order authorizing them to communicate ex parte with Blough and Reich's healthcare providers (DN 31) is GRANTED. However, the Court DECLINES to enter the proposed order filed by Defendants (DN ...

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