Tanner v. McMurray

405 F.Supp.3d 1115

Shawna TANNER, individually and as personal representative of Jay Hinton, Jr., Plaintiff,

v.Timothy I. MCMURRAY, M.D.; Adriana Luna, R.N.; Audrey Leber, R.N.; Taileigh Sanchez, R.N.; Elisa Manquero, R.N.; Correct Care Solutions, LLC; Board of County Commissioners of Bernalillo County, New Mexico; Thomas J. Ruiz ; John and Jane Does 1-10; Christopher Mercer ; Ed Kossman; Claudia Rodriguez-Nunez; Martina Sanchez-Filfred, and Tina M. Munoz, Defendants.

No. CIV 17-0876 JB\KBM

United States District Court, D. New Mexico.

Filed May 7, 2019

Nicole Moss, The Law Office of Nicole W. Moss, Albuquerque, New Mexico and Paul J. Kennedy, Jessica M. Hernandez, Arne Leonard, Elizabeth Harrison, Kennedy, Hernandez & Associates, P.C., Albuquerque, New Mexico, Attorneys for the Plaintiff.

Alfred A. Park, Geoffrey D. White, Park & Associates, L.L.C., Albuquerque, New Mexico, Attorneys for Defendants Timothy I. McMurray, Adriana Luna, Audrey Leber, Taileigh Sanchez, Elisa Manquero, Correct Care Solutions, LLC, Christopher Mercer, and Ed Kossman.

Jonlyn M. Martinez, Law Firm of Jonlyn M. Martinez, Albuquerque, New Mexico, Attorney for Defendants Board of County Commissioners of Bernalillo County, Thomas J. Ruiz, Claudia Rodriguez-Nuñez, Martina Sanchez-Filfred, and Tina M. Muñoz.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) the Plaintiff's Motion to Compel Defendant Bernalillo County's Response to Request for Production No. 5, filed April 9, 2018 (Doc. 38)("Motion to Compel RFP No. 5"); (ii) the Plaintiff's Motion to Compel Defendant Correct Care Solution [sic], LLC's Response to Plaintiff's Request for Production No. 12, filed June 4, 2018 (Doc. 52)("Motion to Compel RFP No. 12"); (iii) the Plaintiff's Motion to Compel Defendant Correct Care Solution [sic], LLC's Answers and Responses to Plaintiff's First Set of Interrogatories and Requests for Production, and for Sanctions Under Rules 16(F)(1)(C), 26(G)(3), 37(C), and 37(A)(5), filed June 4, 2018 (Doc. 53)("Motion to Compel Ans. and Resp."); (iv) the Plaintiffs' Rule 72(A) Objections to Magistrate Judge's Memorandum Opinion and Order on Plaintiff's Motion to Compel Defendant Correct Care Solutions, LLC's Answers and Responses to Plaintiff's First Set of Interrogatories and Requests for Production, and for Sanctions Under Rules 16(F)(1)(C), 26(G)(3), 37(C), and 37(A)(5), filed September 4, 2018 (Doc. 83)("Tanner's Obj. to Aug. 20, 2018 KBM MOO"); (v) the Opposed Motion for Protective Order, filed September 5, 2018 (Doc. 84)("Protective Order Motion"); (vi) the Plaintiffs' Rule 72(a) Objections to Magistrate Judge's Memorandum Opinion and Order on Plaintiffs' Motions to Compel Defendant Bernalillo County's Response to Request for Production No. 5 and Defendant Correct Care Solutions, LLC's Response to Request for Production No. 12, filed September 19, 2018 (Doc. 88)("Tanner's Obj. to Sept. 5, 2018 KBM MOO"); (vii) Correct Care Solutions, LLC's Partial Objections to Memorandum Opinion and Order, filed September 19, 2018 (Doc. 89)("CCS' Obj. to Sept. 5, 2018 KBM MOO"); and (viii) Correct Care Solutions, LLC's Notice of Objections to Production of McClendon Documents, filed March 12, 2019 (Doc. 159)("CCS' Obj. to Prod. McClendon Docs."). The Court will, in this Memorandum Opinion and Order ("MOO"), address the following discovery issues: (i) whether the continuous quality improvement ("CQI"), quality improvement ("QI"), and quality assurance ("QA") records which Correct Care produced pursuant to its contract with Bernalillo County to provide health care services at Metropolitan Detention, in 2015 and 2016, (the "QI/QA Records"), are relevant to the present litigation and subject to discovery; (ii) whether the documents provided to Dr. Robert Greifinger, the court-appointed medical expert in the McClendon v. City of Albuquerque, Case No. 95-CV-0024 JAP/ACT ("McClendon") litigation, during his April, 2016, and November, 2016, site visits to the Metropolitan Detention Center in the County of Bernalillo, New Mexico ("Metropolitan Detention"), (the "Dr. Greifinger Documents"), are subject to discovery and relevant to the present litigation, which involves Plaintiff Shawna Tanner's claims for violations of her civil rights under the Eighth and Fourteenth Amendments to the Constitution of the United States of America, claims for professional negligence and gross negligence under State of New Mexico law, and claims for statutory violations of New Mexico's Inspection of Public Records Act, N.M. Stat. Ann. §§ 14-2-1 to -12 ("IPRA"), all of which allegedly occurred while she was incarcerated at Metropolitan Detention in October, 2016; (iii) whether the QI/QA Records or the Dr. Greifinger Documents are subject to a viable common-law self-critical analysis privilege claim; (iv) whether the QI/QA Records or the Dr. Greifinger Documents are subject to a viable Patient Safety and Quality Improvement Act, 42 U.S.C. §§ 299b-21 to - 26 ("PSQIA"), privilege; and (v) whether the QI/QA Records or the Dr. Greifinger Documents are subject to a viable New Mexico Review Organization Immunity Act, N.M. Stat. Ann. §§ 41-9-1 to -7 ("ROIA"), privilege.

The Court held a hearing on February 4 and 5, 2019. Bernalillo County provided "a copy of documents that were received by counsel for Bernalillo County in the McClendon litigation that were produced to Dr. Greifinger, the Court appointed expert in that matter." Letter from Jonlyn M. Martinez to the Court at 1(dated April 2, 2019), filed April 16, 2019 (Doc. 215)("April 2, 2019 Letter"). Defendant Board of County Commissioners of Bernalillo County ("Bernalillo County"), attaches a log of the Dr. Greifinger Documents and highlights the documents which Bernalillo County already has provided to Tanner -- the Pregnant Woman Studies (dated March 7, 2016, April 7, 2016, and August 16, 2016)(Bates Nos. D000018-20), the Mortality and Morbidity review for Shawna Tanner (dated October 17, 2016)(Bates Nos. D000300-19), and the Report completed by Dr. Kenneth Ray and Dr. Ronald Shansky regarding Shawna Tanner (undated)(Bates Nos. D000341-48) -- as of April 16, 2019. See Log of Documents Provided to Dr. Robert Greifinger, filed April 16, 2019 (Doc. 214-1)("Dr. Greifinger Documents Log"). The Court has carefully reviewed the Court's Copy of Dr. Greifinger Documents. The Dr. Greifinger Documents include: (i) a CQI Calendar (undated)(Bates Nos. D000001-02); (ii) CQI Meeting Minutes (dated July 16, 2016)(Bates Nos. D000003-04); (iii) a Psychiatry Study (dated July 29, 2016)(Bates Nos. D000005-06); (iv) an HIV Study (dated July 21, 2016)(Bates No. D000007); (v) a Receiving Screen and Med. Verification Study (dated June, 2016)(Bates Nos. D000008-09); (vi) an Alcohol/Benzo Withdrawal Study, (dated June, 2016)(Bates Nos. D000010-11); (vii) a Mental Health Evaluation Study (dated February 15, 2016)(Bates Nos. D000012-14); (viii) Health Assessment Studies (dated February 15, 2016, August 25, 2016, and November 10, 2016)(Bates Nos. D000015-17); (ix) Pregnant Women Studies (dated March 7, 2016, April 7, 2016, and August 16, 2016)(Bates Nos. D000018-20); (x) Evaluations of Care prior to ER Visit (dated March 17, 2016, and May 25, 2016)(Bates Nos. D000021-22); (xi) an X-Rays Study (dated February 15, 2016)(Bates No. D000023); (xii) Chronic Disease Studies for Asthma, Diabetes, Seizure, and Hypertension (dated March 7, 2016, March 8, 2016, April 7, 2016, April 20, 2016, August 25, 2016, September 1, 2016, and November 8, 2016)(Bates Nos. D000024-38); (xiii) Anticoagulant Studies (dated April 19, 2016, August 25, 2016, and October 26, 2016)(Bates Nos. D000039-42); (xiv) a Continuity of Care Study (dated August 25, 2016)(Bates No. D000043); (xv) an Access to Dental Care Study (dated August 23, 2016)(Bates No. D000044); (xvi) Sexually-Transmitted Diseases Studies (dated March 7, 2016, April 7, 2016, August 8, 2016, and November 8, 2016)(Bates Nos. D000045-48); (xvii) Continuity of Medication on Intake Studies (dated February 15, 2016, September 12, 2016, and November 14, 2016)(Bates Nos. D000049-51); (xviii) a Medical Refusal Study (dated April 7, 2016)(Bates Nos. D000052-54); (xix) a January-March 2016 Corrective Action Plan (Bates Nos. D000055-59); (xx) Mortality and Morbidity Reviews for B.G., L.D., M.A., J.O., D.T., and Shawna Tanner (dated May 11, 2016, June 22, 2016, June 24, 2016, July 14, 2016, September 20, 2016, October 17, 2016)(Bates Nos. D000060-319); and (xxi) Reports completed by Dr. Kenneth Ray and Dr. Ronald Shansky regarding K.A., M.S.J., Shawna Tanner, and D.T. (undated)(Bates Nos. D000320-48). Dr. Greifinger Documents Log at 1-4. The Court concludes that: (i) the QI/QA Records are relevant and subject to discovery; (ii) the Dr. Greifinger Documents are relevant and subject to discovery; (iii) the QI/QA Records and the Dr. Greifinger Documents are not subject to a viable common-law self-critical analysis privilege claim; (iv) the QI/QA Records and the Dr. Greifinger Documents are not subject to a viable PSQIA privilege claim; and (v) the QI/QA Records and the Dr. Greifinger Documents are not subject to a valid ROIA claim.

FACTUAL BACKGROUND

The Court recited this case's facts and early procedural history in its Memorandum Opinion and Order, 2018 WL 6050675, filed November 19, 2018 (Doc. 115) (" Nov. 19, 2018 MOO"). The Court incorporates that recitation here. The Court includes the Nov. 19, 2018 MOO's footnotes.

Plaintiff Shawna Tanner, on behalf of herself and as personal representative of her deceased minor child, Jay Hinton Jr., (collectively, "Plaintiffs") filed the First Amended Complaint for Civil Rights Violations, Tort Claims, Wrongful Death, Statutory Violations, Damages, and Injunctive Relief, filed May 23, 2018 (Doc. 50)("Amended Complaint"). The Amended Complaint states that the Court "has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1343, with supplemental

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