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Estate of English v. Curry

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

January 11, 2019

ESTATE OF HAROLD WAYMON ENGLISH, JR.; HAROLD ENGLISH, Administrator; and SARA ENGLISH, on behalf of D.E. PLAINTIFFS
v.
MARK CURRY, et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          H. BRENT BRENNENSTUHL UNITED STATES MAGISTRATE JUDGE

         PLAINTIFFs move the Court, pursuant to Fed.R.Civ.P. 37, for an order compelling Defendants, Owensboro Health, Inc. (OHI) and OH Muhlenberg, LLC d/b/a Owensboro Health Muhlenberg Community Hospital (MCH) (collectively OHI/MCH), to produce documents they have requested through discovery (DN 44 Motion and DN 44-23 Proposed Order). Additionally, Plaintiffs seek an award of attorney's fees incurred in bringing the motion (Id.). Defendants have filed a response (DN 49), and Plaintiffs have filed a reply (DN 50). For the reasons set forth below, the Court grants the motion to compel and directs Plaintiffs to file for the Court's consideration an itemized statement of the fees they seek.

         Background

         Harold Waymon English, Jr. died on June 7, 2017, while detoxing from alcohol after being booked into the Muhlenberg County Detention Center (“MCDC”) (DN 44 PageID # 398; DN 38 PageID # 312, Second Amended Complaint). Plaintiffs' civil action, brought pursuant to 42 U.S.C. § 1983, asserts damage claims for violations of English's civil rights, battery, negligence, negligence per se, medical negligence, wrongful death, and loss of parental consortium (DN 38 PageID # 312-37). Plaintiffs have sued Muhlenberg County, Kentucky; the MCDC jailor (in his individual and official capacity); the MCDC's medical officer (in his individual and official capacity); numerous guards at the MCDC (in their individual and official capacities) who purportedly failed to properly supervise English while he was in the detox cell; two nurses (in their individual and official capacities) who were on duty during the relevant time frame; OHI and/or Owensboro Medical Health Systems, Inc. (OMHS); and MCH (DN 38 PageID # 309-13).

         Apparently, OHI purchased MCH on June 1, 2015 (DN 49). Plaintiffs assert that MCH was under a contract with MCDC to provide on-site medical services for inmates (DN 44 PageID # 399). Plaintiffs indicate that MCH employed the two nurses, Angie Orange (Groves), LPN, and Melonie Bingham, RN, who were stationed at the MCDC and on duty while English was detoxing from alcohol after being booked into the MCDC (DN 44 PageID # 399). PLAINTIFFs, through written discovery[1], formally requested production of the internal rules and policies that Nurses Bingham and Orange, as employees of MCH, are required to follow in connection with patient/inmate care at the MCDC (DN 44 PageID # 398-420). Additionally, during the depositions of Nurses Bingham and Orange, Plaintiffs orally requested production of (1) Nurse Bingham's sworn statement in a related proceeding before the Kentucky Board of Nursing; and (2) a photograph that Nurse Orange took of a sign[2] hanging on a towel rack at the jail that allegedly authored the nurses to administer prescription medication to inmates without prior approval of or supervision by a physician (Id.).

         The memoranda and supporting exhibits submitted by Plaintiffs' counsel depict an ever-evolving position taken by OHI/MCH regarding documents formally requested in Plaintiffs' Interrogatory No. 26 and Document Request No. 2. Initially, OHI/MCH declined to produce the requested material because it indicated that Nurses Bingham and Orange followed MCDC's policy and procedure manual (DN 44 PageID # 402-03 and DN 44-6, 11/02/18 email). However, OHI/MCH's position changed when Nurse Bingham's deposition testimony revealed that OHI gave her an employee book, and that she and the other nurses were required to follow MCH's policies and procedures in connection with the care of inmates at MCDC (DN 44 PageID # 404). At that point, OHI/MCH orally agreed to provide MCH's policies and procedures as well as the employee handbook (Id. PageID # 405).

         OHI/MCH subsequently produced an employee handbook but it declined to produce the policies and procedures manuals (DN 44 PageID # 405-06; DN 44-11, 11/09/18 email; DN 44-14, 11/09/18 email; DN 44-17, 11/21/18 email). Instead, OHI/MCH provided Plaintiffs with indexes to policy and procedures and directed Plaintiffs to select what sections they wanted produced (Id.). However, OHI/MCH indicated only material that it deemed discoverable would be produced and insisted on entry of a protective order before producing any material (Id.). Plaintiffs have observed that the index OHI/MCH provided for MCH's Nursing Policies and Procedures indicates some of the material was enacted or updated after English's death (DN 44 PageID # 410).

         PLAINTIFF's filed their motion to compel on November 28, 2018 (DN 44). On December 12, 2018, the undersigned conducted a telephonic conference with counsel for Plaintiffs and OHI/MCH (DN 48 Order). The Court and counsel discussed Plaintiffs' Motion to Compel and the Court indicated how it would rule regarding the production of MCH's nursing policies and procedures (Id.). Subsequently, OHI/MCH filed a response to the motion to compel (DN 49). Plaintiffs then filed a reply (DN 50).

         PLAINTIFFs' Argument for Production

         PLAINTIFFs' argue the policies and procedures of MCH, which the nurses are bound to follow at the MCDC, are not only discoverable but go to the very heart of the claims at issue in this case (DN 44 PageID # 412-19). Plaintiffs reason that if Nurses Bingham and Orange violated MCH's policies related to patient care this is evidence showing they were negligent (Id.). Plaintiffs argue there is no legal basis for OHI/MCH's demand for a protective order because MCH's policies and procedures are not trade secrets or confidential commercial information (Id.). Therefore, argue Plaintiffs, the Court should order OHI/MCH to immediately produce: (1) all of MCH's policies and procedures sought in discovery; (2) the sworn statement that Nurse Bingham provided to the Kentucky Board of Nursing; and (3) any other documents of any kind that MCH has so far failed to produce or otherwise failed to disclose (Id.).

         Additionally, Plaintiffs request the Court conduct a hearing and then order OHI/MCH to pay Plaintiffs' reasonable expenses incurred in making this motion, including attorney fees (Id. PageID # 420).

         DEFENDANTs' Response

         OHI/MCH disagrees with Plaintiffs regarding the relevancy of MCH's policies and procedures to this action (DN 49 PageID # 507). Specifically, OHI/MCH disputes that the nurses are required to follow MCH's policies and procedures because they are employed by MCH pursuant to a contract with the MCDC and they physically work at MCDC, not the hospital (Id.).

         Notwithstanding, OHI/MCH reports that Plaintiffs' counsel has reviewed the index of MCH's Nursing Policies and Procedures and identified the specific policies they want produced (Id.). OHI/MCH indicates the willingness to provide the identified policies and procedures or, if Plaintiffs' counsel wishes, produce all of the ...


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