Penman v. Correct Care Solutions, LLC

ALICE PENMAN, Administrator of Estate of Marcus Penman, Deceased PLAINTIFF v. CORRECT CARE SOLUTIONS, LLC, et al. DEFENDANTS

No. 5:18-cv-00058-TBR-LLK

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

July 23, 2021

MEMORANDUM OPINION AND ORDER

Lanny King, Magistrate Judge United States District Court.

Senior Judge Thomas B. Russell referred this case to the undersigned Magistrate Judge for ruling on all discovery motions. [Docket Number (“DN”) 73]. Plaintiff is administrator of the estate of Marcus Penman, who died on April 25, 2017 while an inmate at Kentucky Statement Penitentiary (“KSP”). Defendant Correct Care Solution (“CCS”) is a private entity that contracted with Kentucky Department of Corrections to perform the traditional state function of providing medical services to inmates. CCS seeks a judicial order quashing certain of Plaintiff's thirty (30) proposed Rule 30(b)(6) topics as “unduly burdensome, ” “overly broad and/or not reasonably calculated to lead to discovery of admissible evidence ” [DN 135 at 5, 7], and Plaintiff has responded in opposition, [DN 138].

For the reasons below, Defendant CCS's motion to quash certain topics, [DN 135], is DENIED and CCS SHALL designate and prepare a Rule 30(b)(6) witness on all thirty (30) proposed topics except Topic 26. In lieu of Topic 26, CCS SHALL produce, for the current year, and the year immediately prior, state and federal income tax returns (as they become available), balance sheets, income statements, and all attached schedules.

Plaintiff's complaint

In his Second Amended Complaint, Plaintiff alleges, among other things, that Marcus Penman died in Kentucky Statement Penitentiary (“KSP”) on April 25, 2017, as a result of deliberate indifference to his serious medical needs (on the part of CCS employee Bruce Bauer, R.N.) in violation of the Eighth Amendment prohibition against cruel and unusual punishment. [DN 79 at ¶ 27]. Plaintiff further alleges that the deliberate indifference reflects a custom or policy on the part of CCS, and she seeks punitive damages. Id.

Plaintiff asserts seven claims: (1) excessive use of force; (2) deliberate indifference to a serious medical and/or mental health need; (3) failure to intervene / failure to protect (4) supervisory liability; (5) municipal liability; (6) negligence/wrongful death; and (7) intentional infliction of emotional distress/outrage. [DN 79].

Standards governing Plaintiff's claims

In Phillips v. PTS of America, LLC, et al. another recent case, CCS was a defendant, and the allegations against the nurse were similar to those against Nurse Bauer in this case. In Phillips, this Court granted CCS's motion for summary judgment because the plaintiff failed to establish a constitutional violation:

A private entity may be held liable under § 1983 when that entity contracts with the state to perform a traditional state function, such as providing medical services to prison inmates. West v. Atkins, 487 U.S. 42, 54 (1988). When considering a § 1983 claim against a private entity, a court should undertake the same analysis outlined above for § 1983 claims against municipalities. See … Street v. Corr. Corp. of Am., 102 F.3d 810, 818 (6th Cir. 1996) (citation omitted). As noted above, a municipality generally cannot be held liable under § 1983 “[i]f no constitutional violation by the individual defendants is established.” [Watkins v. City of Battle Creek, 273 F.3d 682, 687 (6th Cir. 2001)] (citation omitted). Under the holding in Watkins, because the evidence does not support Plaintiffs' § 1983 claim against Nurse McKinney, Correct Care cannot be held liable under § 1983.

Phillips v. PTS of Am., LLC, No. 3:17-CV-603-CHB, 2021 WL 1220997, at *22 (W.D. Ky. Mar. 31, 2021).

More recently, the Sixth Circuit reaffirmed the above principles in a case that affirmed a district court's dismissal of an inmate's claim against Aramark Correctional Services, LLC, which were similar to Plaintiff's claims against CSS in this case, for failure to state a claim:

That leaves Vartinelli's claim against Aramark. Aramark, of course, is a private entity, not a public body. But because Aramark contracted with the prison to provide basic necessities for inmates in place of the state of Michigan, it plausibly acted under color of state law for purposes of § 1983. See West v. Atkins, 487 U.S. 42, 54 … (1988). Yet even then, Vartinelli fails to plausibly allege, or allege at all for that matter, that Aramark maintained a policy or custom that disregarded inmates' medical needs, as he needed to do to state a claim against the company. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 … (1978).

Vartinelli v. Aramark Corr. Servs., LLC, 796 Fed.Appx. 867, 871-72 (6th Cir. 2019).

This case, unlike Phillips and Vartinelli, is still in the discovery phase, and the parties have until December 1, 2021, to file dispositive motions. [DN 136, 139].

The Sixth Circuit concurs with the Fifth, Seventh, Ninth, and Eleventh Circuits that employees of private corporations in the business of administering correctional health care services are not entitled to assert qualified immunity. Sanchez v. Oliver, 995 F.3d 461, 467 (5th Cir. 2021) (citing, among other cases, McCullum v. Tepe, 693 F.3d 696, 704 (6th Cir. 2012)). Such private corporations and their “employees have known for some time now that they could be subject to liability without the benefit of qualified immunity [and] [f]ive circuit courts have said as much. Id. at 471 (citing McCullum).

Standards governing Rule 30(b)(6) “topics” disputes

Rule 30(b)(6) of the Rules of Civil Procedure states, in pertinent part, that:

In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination [i.e., topics] (emphasis added). … The persons designated must testify about information known or reasonably available to the organization.

Fed. R. Civ. P. 30. In this case, Plaintiff notified CCS of thirty (30) proposed Rule 30(b)(6) topics, which she intends to discuss at the Rule 30(b)(6) deposition. [DN 135-1].

The testimony of a Rule 30(b)(6) witness represents the knowledge of the corporation, not the individual witness, and thus the testimony of a Rule 30(b)(6) witness is different from that of a “mere corporate employee.” Dawkins v. Knight Specialty Ins. Co., No. 1:20-cv-00091-GNS-HBB, 2021 WL 2346016, at *2 (W.D. Ky. June 8, 2021). The Rule 30(b)(6) witness does not give his or her own personal opinion but instead presents the corporation's position on a topic. Id.

When a corporation is served with a notice of a Rule 30(b)(6) deposition, it must produce a witness knowledgeable about the subject described in the notice and prepare that witness to testify, not simply to his or her own knowledge, but that of the corporation. Id. Thus, such a designee has a duty to obtain information from corporate documents, current or prior corporate employees, or any other source reasonably available to the corporation. Id.

Regardless of the form a discovery request may take (be it by deposition or in written form), Rule 26 governs the scope of discoverable information. Id. Rule 26(b) provides that “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Id. (quoting Fed.R.Civ.P. 26(b)(1)).

Generally, a Rule 30(b)(6) topic is not deemed duplicative (and, hence, not proportional to the needs of the case) simply because it pertains to past discovery from regular fact witnesses. White v. City of Cleveland, 417 F.Supp.3d 896, 909 (N.D. Ohio 2019) (collecting authorities). Unlike fact witnesses, Rule 30(b)(6) witnesses “bind the entity that they are representing and are responsible for providing all of the relevant information known or reasonably available to the entity.” Id.

A topic is not deemed overbroad simply because it enquires into the factual basis of a claim or defense. Id. In a Section 1983 context (as in White and the present case), a topic is not overbroad when it seeks information from a municipality regarding its custom or policy in effect at the time of the incident in question. Id.

Generally, past or future document production “is not a substitute for providing a thoroughly educated Rule 30(b)(6) deponent.” Ronnoco Coffee, LLC v. Castagna, No. 4:21-CV-00071 JAR, 2021 WL 2105000, at *2 (E.D. Mo. May 25, 2021).

Analysis

As noted above, Plaintiff proposes thirty (30) Rule 30(b)(6) topics. [DN 135-1]. CCS argues that certain of the proposed topics, which CCS characterizes and places into seven (7) categories, are “unduly burdensome, ” “overly broad and/or not reasonably calculated to lead to discovery of admissible evidence.” [DN 135 at 5, 7].

Organizationally this Opinion, like Plaintiff's response, accepts CCS's categorization.

1. Topics pertaining to CCS's contract with Kentucky Department of Corrections (Topics 10 - 13)

Plaintiff seeks to discuss the following topics, which CSS characterizes as pertaining to its contract with Kentucky Department of Corrections (“KYDOC”):

10. The bidding process for the contract between CCS/Wellpath and the Commonwealth/KYDOC.

11. The negotiation of the contract between CCS/Wellpath and the Commonwealth/KYDOC.

12. The execution of the contract between CCS/Wellpath and the Commonwealth/KYDOC.

13. Any modifications, suspensions, or terminations of the contract between CCS/Wellpath and the Commonwealth/KYDOC.

[DN 135-1]. For the reasons below, CCS must designate and prepare a Rule 30(b)(6) witness on Topics 10 through 13.

The above type of information is generally admissible...