OPINION AND ORDER DENYING IN PART DEFENDANT'S "MOTION TO COMPEL PRODUCTION OF DOCUMENTS" AND DIRECTING PLAINTIFFS TO UPDATE THEIR PRIVILEGE LOG AND FILE ADDITIONAL DOCUMENTATION
Before the court is Defendant Medtronic, Inc.'s "Motion to Compel Production of Documents," filed on February 23, 2010. A hearing on this motion is unnecessary. See E.D. Mich. LR 7.1(e)(2). For the reasons stated below, the court will deny in part Defendant's motion.
On April 15, 2005, an anesthesiologist from Defendant South Oakland Anesthesia Associates, P.C. ("SOAA") attempted to perform a procedure to refill Kathy Cober's Medtronic pain pump at Defendant William Beaumont Hospital ("Beaumont"). (Pls.' Am. Compl. ¶ 12.) The procedure required the use of a "refill kit;" however, a Beaumont nurse retrieved a "catheter access kit" instead. (Id. ¶¶ 11, 13.) As a result of the use of the "catheter access kit," the medication was delivered directly into Ms. Cober's intrathecal space causing an overdose ("Cober Incident"). (Id. ¶ 12.)
The family of Ms. Cober ("Cober Plaintiffs") sued Beaumont, SOAA, and others in Oakland County Circuit Court claiming damages arising out of the incident ("Cober Litigation"). (Id. ¶ 14.) Medtronic was made aware of the incident and the lawsuit and participated in discovery. (Id. ¶¶ 15, 17.) Counsel for Beaumont and SOAA invited Medtronic to participate in discussions to settle the Cober Litigation, but Medtronic refused. (Id. ¶ 22.) On May 29, 2008, Beaumont and SOAA settled the case with the Cober Plaintiffs. (Id. ¶ 23.) The settlement included a release of the Cober Plaintiffs' rights against Medtronic. (Id.)
On May 21, 2009, Plaintiffs initiated the present action seeking contribution from Medtronic for "Medtronic's allocable share of fault in causing the injury to Ms. Cober." (Id. ¶ 28.) Plaintiffs allege that approximately two to three weeks before the Cober Incident, a representative of Medtronic offered to provide free samples of "pain pump refill kits" for use in refilling Medtronic's implanted pain pumps. (Id. ¶ 8.) Medtronic then delivered three free samples to Beaumont. (Id.) Only two, however, were "refill kits," while one was a "catheter access kit." (Id. ¶ 10.) A representative of Medtronic, Provvidenza Cucchiara, later admitted that a "catheter access kit" should not have been delivered to the Beaumont Department of Anesthesia because "such kits were used primarily for diagnostic procedures, not for pain management." (Id. ¶ 13.) Plaintiffs allege that Medtronic was negligent in delivering a diagnostic kit to the anesthesiology department and also for stating that the kit could be used for refill procedures. (Id. ¶ 24.)
During discovery, Medtronic served Plaintiffs with requests for admissions, interrogatories, and document requests. (Def.'s Mot. at 8.) In response to certain document requests, Plaintiffs "objected on the grounds of statutory privileges protecting peer review and other similar matters from disclosure." (Id.) On January 22, 2010, Plaintiffs produced a peer review privilege log comprising: (1) Variance Reports and accompanying investigative notes and communications, (2) a Sentinel Event Report and accompanying materials, (3) an Anestheisa Department Quality Assurance Review and accompanying materials, (4) a Summary FDA Site Visit, (5) a Beaumont Services Company Report of a Variance Report and accompanying investigative notes and communications, and (6) Physician Credential Files. (Id., Ex. B.) On February 23, 2010, Defendant filed a motion to compel the documents withheld by Plaintiffs on the basis of a peer review privilege.
Defendant argues that the peer review privilege does not apply to the documents withheld by Plaintiffs, and even if it did, Plaintiffs have waived the privilege by placing the Cober Incident at issue in this litigation and by involving Defendant in the peer review process. Plaintiffs argue that the withheld documents are privileged because they are "inextricably linked" to the peer review process and that their contribution claim does not waive their right to assert the peer review privilege.
Under the Rules of Civil Procedure, a party "may obtain discovery regarding any non-privileged matter that is relevant to any party's claim or defense." Fed. R. Civ. P. 26(b)(1). The Federal Rules of Evidence govern the discoverability of privileged materials. Fed. R. Evid. 1101; Fed. R. Civ. P 26(b). Pursuant to Federal Rule of Evidence 501, the state law of privileges applies to evidence relevant to establishing an element of any claim or defense based in state law. Fed. R. Evid. 501. The present case is a contribution action under Michigan law. Accordingly, Michigan law governs the determination of a privilege.
Michigan's Public Health Code requires hospitals "to review their professional practices and procedures to improve the quality of patient care and reduce morbidity and mortality." Gallagher v. Detroit-Macomb Hosp. Ass'n, 431 N.W.2d 90, 94 (Mich. Ct. App. 1988). To facilitate this review, hospitals must establish peer review committees. Dorris v. Detroit Osteopathic Hosp. Corp., 594 N.W.2d 455, 463 (Mich. 1999). Specifically, hospitals must: assure that physicians and dentists admitted to practice in the hospital are organized into a medical staff to enable an effective review of the professional practices in the hospital for the purpose of reducing morbidity and mortality and improving the care provided in the hospital for patients.
The review shall include the quality and necessity of the care provided and the preventability of complications and deaths occurring in the hospital.
Mich. Comp. Laws § 333.21513(d).
To maximize the effectiveness of this review, Michigan has enacted two statutes that create a peer review privilege for records collected at the direction of a peer review committee. Under Mich. Comp. Laws § 333.20175(8),
[t]he records, data, and knowledge collected for or by individuals or committees assigned a professional review function in a health facility or agency, or an institution of higher education in this state that has colleges of osteopathic and human medicine, are confidential, shall be used only for the purposes provided in this article, are not public records, and are not subject to court subpoena.
Mich. Comp. Laws § 333.20175(8). Similarly, Mich. Comp. Laws § 333.21515 provides that "[t]he records, data, and knowledge collected for or by individuals or committees assigned a review function described in this article are confidential and shall be used only for the purposes provided in this article, shall not be public ...