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Hubble v. County of Macomb

United States District Court, E.D. Michigan, Southern Division

November 30, 2017

RUSSELL HUBBLE, as Personal Representative of the ESTATE OF JENNIFER LYNN MYERS, Deceased, Plaintiff,
v.
COUNTY OF MACOMB, et al., Defendants.

          David R. Grand United States Magistrate Judge

          OPINION AND ORDER (1) OVERRULING DEFENDANTS' OBJECTION TO MAGISTRATE JUDGE GRAND'S AUGUST 23, 2017 ORDER; AND (2) ORDERING PRODUCTION OF THE CARE TEAM AND MORTALITY REVIEW DOCUMENTS

          Paul D. Borman United States District Judge.

         This civil rights action is brought under 42 U.S.C. § 1983 by Russell Hubble (“Hubble”), as Personal Representative of the Estate of Jennifer Lynn Myers (“Myers”), who died on July 7, 2013, while incarcerated at the Macomb County Jail in Mt. Clemens, Michigan serving a thirty (30) day sentence on an outstanding bench warrant. Plaintiff sues (1) Macomb County, and Sheriff Anthony Wickersham in his individual and official capacities, along with several individual Macomb County jail personnel, some of whom are named and some of whom are John/Jane Does pending discovery of their identities (collectively “the Macomb County Defendants”); and (2) Correct Care Solutions, LLC (“CCS”), the entity providing managed healthcare, medical care, and/or mental health care to inmates at the Macomb County Jail, along with several individual CCS medical providers (collectively “the CCS Defendants”), some of whom are named and some of whom are John/Jane Does pending discovery of their identities. Plaintiff claims that Defendants were deliberately indifferent to Myers' medical needs, and that the Defendants had in place official customs, policies, and practices for screening and managing the care of individuals suffering from serious medical conditions that were constitutionally deficient. The Complaint alleges three separate Counts under 42 U.S.C. § 1983 and includes no state law claims.

         I. BACKGROUND

         On July 13, 2017, Hubble filed a motion to compel the County and CCS Defendants to produce certain documents, including Mortality Review and Care Team Meeting Records kept by the CCS Defendants. (ECF No. 28, Motion to Compel.) The CCS Defendants opposed production of the Mortality Review and Care Team Meeting Records on the grounds that they were protected by Michigan's Peer Review Privilege, Mich. Comp. Laws § 333.21515. In an August 23, 2017 Order, Magistrate Judge David Grand ruled that Michigan's peer review privilege does not apply in this § 1983 action, and ordered the CCS Defendants to produce the Mortality Review and Care Team Meeting Records. (ECF No. 39, 8/23/17 Order.) The CCS Defendants now object to the Magistrate Judge's 8/23/17 Order requiring production of Mortality Review and Care Team Reports. (ECF No. 40, Objection.) Plaintiff has filed a Response to the Objections. (ECF No. 53.) For the reasons that follow, the Court concludes that the Magistrate Judge's Order is neither clearly erroneous nor contrary to law and therefore OVERRULES the Objections and ORDERS CCS to produce the requested documents within fourteen (14) days of the date of this Opinion and Order.

         II. STANDARD OF REVIEW

         28 U.S.C. § 636(b)(1)(A) and Federal Rule of Civil Procedure 72(a) both provide that a district judge must modify or set aside any portion of a magistrate judge's non-dispositive pretrial order found to be “clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). The United States Supreme Court and the Sixth Circuit Court of Appeals have stated that “a finding is ‘clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948) (explaining the clearly erroneous standard under Rule 52(a)); Hagaman v. Comm'r of Internal Revenue, 958 F.2d 684, 690 (6th Cir. 1992) (quoting U.S. Gypsum Co.). See also United States v. Mandycz, 200 F.R.D. 353, 356 (E.D. Mich. 2001) (explaining the standard under Rule 72(a)).

         This standard does not empower a reviewing court to reverse the Magistrate Judge's finding because it would have decided the matter differently. Anderson v. City of Bessemer City, N.C. , 470 U.S. 564, 573 (1985) (interpreting the clearly erroneous standard in Rule 52(a)). The Sixth Circuit has noted that: “[t]he question is not whether the finding is the best or only conclusion that can be drawn from the evidence, or whether it is the one which the reviewing court would draw. Rather, the test is whether there is evidence in the record to support the lower court's finding, and whether its construction of that evidence is a reasonable one.” Heights Cmty. Cong. v. Hilltop Realty, Inc., 774 F.2d 135, 140 (6th Cir. 1985).

         “The ‘clearly erroneous' standard applies only to the magistrate judge's factual findings; his legal conclusions are reviewed under the plenary ‘contrary to law' standard. . . . Therefore, [the reviewing court] must exercise independent judgment with respect to the magistrate judge's conclusions of law.” Haworth, Inc. v. Herman Miller, Inc., 162 F.R.D. 289, 291 (W.D. Mich.1995) (citing Gandee v. Glaser, 785 F.Supp. 684, 686 (S.D. Ohio 1992)). “‘An order is contrary to law when it fails to apply or misapplies relevant statutes, case law, or rules of procedure.'” Mattox v. Edelman, No. 12-13762, 2014 WL 4829583, at *2 (E.D. Mich. Sept. 29, 2014) (quoting Ford Motor Co. v. United States, No. 08-12960, 2009 WL 2922875, at *1 (E.D. Mich. Sept. 9, 2009)).

         III. ANALYSIS

         CCS contends in its Objection that Magistrate Judge Grand committed legal error in failing to conclude that the Sixth Circuit's decision in Loyd v. Saint Joseph Mercy Oakland, 766 F.3d 580 (6th Cir. 2014), is controlling precedent here and requires a finding that “Michigan's peer review privilege applies in the context of a § 1983 claim for deliberate indifference resulting in death.” (Objs. 1.) The Court finds that Loyd is not controlling on the issue of whether Michigan's peer review privilege applies in the context of Plaintiff's § 1983 claims and affirms Magistrate Judge Grand's ruling that Michigan's peer review privilege is inapplicable in this case, and does not shield production of the Mortality Review and Care Team Reports.

         Plaintiff alleges three separate Counts in this civil rights action, each claim arising under a federal statute, 42 U.S.C. § 1983. Where, as here, federal law supplies the rule of decision “[t]he common law - as interpreted by United States courts in the light of reason and experience - governs a claim of privilege unless . . . the United States Constitution[, ] a federal statute[, ] or rules prescribed by the Supreme Court” provide otherwise. Fed.R.Evid. 501. “ Questions of privilege are to be determined by federal common law in federal question cases. Fed.R.Evid. 501.” Reed v. Baxter, 134 F.3d 351, 355 (6th Cir. 1998). “Because this is a prisoner civil rights case brought under § 1983, federal law supplies the rule of decision, and Rule 501 applies.” Grabow v. County of Macomb, No. 12-cv-10105, 2013 WL 3354505, at *5 (E.D. Mich. July 3, 2013).

         The Supreme Court has recognized that Rule 501 “authorizes federal courts to define new privileges, ” but cautions that any such undertaking must “start with the fundamental maxim that the public . . . has a right to every man's evidence.” Jaffee v. Redmond, 518 U.S. 1, 9 (1996) (internal quotation marks and citations omitted) (alteration in original). “Exceptions from the general rule disfavoring testimonial privileges may be justified, however, by a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Id. at 9 (internal quotation marks and citations omitted).

         Federal courts have nearly uniformly declined to create a federal peer review privilege. See Grabow, 2013 WL 3354505, at *6 (“The overwhelming majority of federal courts agree that there is not a federal common law peer review privilege.”); Dunn v. Dunn, 163 F.Supp.3d 1196, 1206 (M.D. Ala. 2016) (“[N]early every United States district court that has addressed the issue in the context of section 1983 litigation brought on behalf of jail or prison inmates has rejected the assertion of privilege.”); United States v. Jackson Madison County Gen'l Hosp., No. 12-cv-2226, 2012 WL 12899055, at *3 (W.D. Tenn. Oct. 16, 2012) (“The Respondent concedes that neither the United States Supreme Court nor the Sixth Circuit has recognized a federal peer review privilege. District courts in this circuit have declined to find the existence of such a privilege under federal common law, as have a vast number of other federal courts.”); Jenkins v. DeKalb County, Georgia, 242 F.R.D. 652, 659 (N.D.Ga. 2007) (“It appears that every United States Court of Appeals that has addressed the issue of whether there is a federal medical peer review privilege has rejected the claim. . . . Furthermore, nearly every United States district court that has addressed the issue in the context of section 1983 litigation brought on behalf of jail or prison inmates has rejected the assertion of privilege.”) (collecting cases); ...


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