Soni v. Wespiser

DEEPA SONI, M.D., Plaintiff, v. ROBERT P. WESPISER, M.D., et al. Defendants.

CIVIL ACTION NO. 16-10630-TSH

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

December 20, 2017

ORDER

Hennessy, M.J.

By Order of Reference dated November 20, 2017, pursuant to 28 U.S.C. § 636(b)(1)(A) (Docket #69), this matter was referred to me for a ruling on Plaintiff Deepa Soni's Motion to Compel third party Catholic Medical Center ("CMC") to disclose and deliver to Dr. Soni the documents described in a Subpoena Duces Tecum served on CMC on September 15, 2017. (Docket #52). An opposition to that motion has been filed (Docket #59) as well as a reply (Docket #64) and a sur-reply (Docket #67), and the matter is now ripe for adjudication. By the same order of reference (Docket #69), this matter was also referred to me for a ruling on the parties' Joint Motion to Amend the Discovery Schedule. (Docket #54). For the reasons that follow, the Motion to Compel is ALLOWED and the Joint Motion to Amend is ALLOWED.

I. BACKGROUND

Dr. Soni is a Harvard-trained neurosurgeon of Indian descent. (Docket #1 at ¶ 9). Dr. Soni began working at Defendant Berkshire Medical Center, Inc. ("BMC") under contract with Defendant Berkshire Faculty Services, Inc. ("BFS") in November 2008. (Id. at ¶ 16). Dr. Soni's direct supervisor was Defendant Timothy Counihan, BMC's Chairperson of Surgery and acting Division Chief. (Id. at ¶ 23). Dr. Soni was also supervised by Defendant Robert Wespiser, BMC's Chief of Staff. (Id. at ¶ 26). Dr. Soni left BMC on May 9, 2010. (Id. at ¶ 39).

Dr. Soni alleges that Dr. Counihan displayed discriminatory and retaliatory behavior towards her throughout her employment due to the fact that she was a minority woman who had achieved greater stature than he, because she raised concerns to him about unsafe practices in the Neurosurgery Department, and because she had sued other male doctors for gender discrimination. (Id. at ¶ 24). Dr. Soni openly and repeatedly told the BMC administration that Dr. Counihan lacked leadership, was not supportive of her or the other surgeons, and was not providing clinical support to her as the Chief of Surgery. (Id. at ¶ 25). Dr. Soni alleges that Dr. Wespiser was passive and deferred to Dr. Counihan's wishes, including participating in discrimination and retaliation against Dr. Soni. (Id. at ¶ 28).

In the spring of 2013, Dr. Soni accepted a position at New Hampshire NeuroSpine Institute. (Id. at ¶ 44). Because she was to provide care for patients at Elliot Medical Center, Concord Hospital, and CMC, she sought privileges at those three hospitals. (Id.). Dr. Soni was granted privileges at both Elliot Medical Center and Concord Hospital. (Id. at ¶ 45). However, in July 2013, Dr. Soni was contacted by the Director of Medical Staff Support Services at CMC and advised that CMC would not be granting Dr. Soni privileges.¹ (Id. at ¶ 46).

Applicants for privileges at CMC must first provide references from other qualified practitioners attesting to their education, training, clinical abilities, and competence. (Docket #59-4 at ¶ 5). These references are provided to CMC on a confidential basis in order to promote candor, and are verified through direct personal communication with the referring professional. (Id.). In addition to contacting references, CMC will also solicit additional information about agiven applicant from other professionals with whom the applicant has trained and worked. (Id. at ¶ 6). Individuals and institutions who provide input to the credentialing committees are given assurances that the information they provide will be kept in confidence. (Id.). All of the actions and recommendations taken by the CMC credentialing committees, and all of the information gathered and generated in the course of the credentialing process are treated as confidential by CMC. (Id. at ¶ 9).

After significant inquiry, Dr. Soni came to understand that she had been denied privileges at CMC based on information contained in a letter sent to the Credentialing Committee at CMC by Dr. Counihan, and a subsequent conversation that Dr. Counihan had with Dr. Patrick Mahon, the Chairperson of the Credentialing Committee. (Docket #1 at ¶ 47). Dr. Soni had not given Dr. Counihan's name as a reference for credentialing. (Id. at ¶ 48).

During a phone call in late July 2013, Dr. Mahon explained to Dr. Soni that Dr. Counihan's remarks were the reason that CMC had decided not to move forward with her credentialing. (Id. at ¶ 49). Dr. Counihan admitted to Dr. Soni that he had provided a letter to CMC in which he claimed that she had certain unspecified difficulties while working at BMC. (Id. at ¶ 51). In August 2013, a member of the CMC Credentialing Committee informed Dr. Soni that Dr. Counihan had made vicious and defamatory statements about her in a letter, and that the letter was followed by a telephone conversation that was even more critical. (Id. at ¶ 57). While the Committee member did not give Dr. Soni the details of all of the statements, he did relate that Dr. Counihan had said, in essence, that Dr. Soni would be trouble for the hospital because she had filed multiple lawsuits against other hospitals. (Id.).

As a result of her failure to obtain privileges at CMC, Dr. Soni was unable to work at a position for which she had otherwise been hired. (Id. at ¶ 60). Dr. Soni filed suit against the defendants on March 31, 2016.

On September 15, 2017, Dr. Soni served a Subpoena Duces Tecum on CMC. (Docket #52-1). In response to the subpoena, CMC supplied a copy of Dr. Soni's communications with CMC and a copy of the application she submitted to CMC for credentialing purposes in 2013. (Docket #59-2). CMC, citing New Hampshire's Quality Assurance Privilege, codified at RSA 151:13-a, declined to produce documents about CMC's credentialing process, including any minutes of internal deliberations or candid assessments of Dr. Soni's fitness received from external sources.² (Id.). Dr. Soni filed the instant motion, seeking production of the disputed documents, on November 8, 2017. (Docket #52).

II. STANDARD

Unless otherwise limited by court order, the scope of discovery is as follows:

Parties 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, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

Fed. R. Civ. P. 26(b)(1). "Information within this scope need not be admissible in evidence to be discoverable." Id. Relevant evidence is defined in Federal Rule of Evidence 401 as evidencehaving "any tendency" to make a fact that is of consequence in determining the action more or less probable than it would be without the evidence.

III. ANALYSIS

CMC argues that the peer review information sought by Dr. Soni is privileged. (Docket #59). Assertions of privilege in federal question cases in federal court, such as the instant case, are governed by federal law. See Fed. R. Evid. 501. This is so even where the court is also hearing state law claims pursuant to supplemental jurisdiction. See Krolikowski v. Univ. of Mass., 150 F. Supp. 2d 246, 248 (D. Mass. 2001). Federal Rule of Evidence 501 explains that unless otherwise governed by the Constitution, a federal statute, or rules prescribed by the Supreme Court, "[t]he common law - as interpreted by the United States courts in the light of reason and experience - governs a claim of privilege[.]" There is no Constitutional provision, federal statute, or rule prescribed by the Supreme Court directly on point with the privilege asserted. See Brown v. St. Mary's Hosp., No. 3:14CV228 (DJS), 2015 U.S. Dist. LEXIS 179597, at *5 (D. Conn. Aug. 26, 2015). Additionally, neither the Supreme Court nor the First Circuit has ruled on the existence of a federal medical peer review privilege in the context of an employment discrimination action. See Gargiulo v. Baystate Health, Inc., 826 F. Supp. 2d 323, 326 (D. Mass. 2011).

"The Federal Rules of Evidence empower the federal courts to 'continue the evolutionary development of evidentiary privileges.'" Adkins v. Christie, 488 F.3d 1324, 1328 (11th Cir. 2007) (quoting Trammel v. United States, 445 U.S. 40, 47 (1980)). "However, these privileges remain disfavored and should not be lightly created." Id. (citing United States v. Nixon, 418 U.S. 683, 710 (1974)). Because "[p]rivileges contravene the fundamental principle that the public has a right to every man's evidence," courts "do not create and apply an evidentiaryprivilege unless it promotes sufficiently important interests to outweigh the need for probative evidence." Univ. of Pa. v. EEOC, 493 U.S. 182, 189 (1990) (internal alterations and quotations omitted).

The First Circuit has articulated a two prong test for determining whether to recognize a state privilege under federal common law. In re Hampers, 651 F.2d 19, 22 (1st Cir. 1981). First the court must determine whether the state court would recognize such a privilege. Id. If so, the court must then determine "whether the state's asserted privilege is 'intrinsically meritorious in [the court's] independent judgment.'" Id. (quoting Am. Civil Liberties Union of Miss. v. Finch, 638 F.2d 1336, 1343 (5th Cir. 1981)). Because the court finds that the state's asserted privilege is not "intrinsically meritorious" in its independent judgment, the court need not address whether the state court would recognize the privilege.

The First Circuit has directed the courts to evaluate four factors to determine whether a privilege is "intrinsically meritorious:"

(1) whether the communications originate in a confidence that they will not be disclosed, (2) whether this element of confidentiality is essential to the full and

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