United States District Court, W.D. Kentucky, Owensboro Division
ESTATE OF HAROLD WAYMON ENGLISH, JR.; HAROLD ENGLISH, Administrator; and SARA ENGLISH, on behalf of D.E. PLAINTIFFS
MARK CURRY, et al. DEFENDANTS
MEMORANDUM OPINION AND ORDER
BRENT BRENNENSTUHL UNITED STATES MAGISTRATE JUDGE
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.
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).
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, 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
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
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).
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).
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).
Argument for Production
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.).
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).
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
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 ...