United States District Court, E.D. Michigan, Southern Division
RUSSELL HUBBLE, as Personal Representative of the ESTATE OF JENNIFER LYNN MYERS, Deceased, Plaintiff,
COUNTY OF MACOMB, et al., Defendants.
R. Grand United States Magistrate Judge.
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
D. Borman United States District Judge.
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.
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.
STANDARD OF REVIEW
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)).
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).
‘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)).
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.
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).
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).
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); ...