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Carmody v. Mikesell

United States District Court, D. Colorado

November 9, 2017

SHERIFF JASON MIKESELL, in his official capacity; CORPORAL FRANK SCOFIELD, in his individual capacity; and NURSE SUSAN CAMPBELL, in her individual capacity, Defendants.


          Nina Y. Wang United States Magistrate Judge.

         This matter comes before the court Defendant's Motion for Leave to Conduct Ex Parte Interviews (“Motion for Ex Parte Interviews”) [#76, filed on October 20, 2017] filed by Defendant Susan Campbell (“Defendant Campbell”) pursuant to 28 U.S.C. § 636(b)(1); the Order Referring Case dated October 25, 2016 [#14], and the Memorandum dated October 20, 2017 [#77]. Having reviewed the Parties' briefing, the applicable case law, and entertained oral argument on these issues during the November 8, 2017 hearing, the court hereby GRANTS IN PART and DENIES IN PART Defendant Campbell's Motion for Ex Parte Interviews.


         This case arises from an alleged “painful and debilitating back injury” sustained by Plaintiff Cathleen Carmody (“Plaintiff” or “Ms. Carmody”) while detained at the Teller County Detention Center [#1; #38]. Ms. Carmody alleges in 1999, she sustained a hip injury while working as a nurse. [#38 at ¶ 24]. For fifteen years, she dealt with pain in her hip until she had a total hip replacement surgery in September 2014. [Id.]. As part of her post-operative treatment plan, Ms. Carmody's health care providers instructed her to continue to use a walker until she no longer needed it for walking or balance. [Id. at ¶ 25].

         Ms. Carmody was arrested On October 23, 2014, and detained at the Teller County Detention Center. [Id. at ¶ 26]. After she arrived at the detention center, Defendant Frank Scofield (“Defendant Scofield” or “Corporal Scofield”) processed her for intake, but then confiscated her walker and told her that she was “going to have to do without [it].” [Id. at ¶¶ 27- 31]. For the duration of her detention, Ms. Carmody was deprived the use of her walker, except during court appearances and attorney visits. [Id. at ¶ 33]. Otherwise, she was forced to hop on one leg to move around the facility. [Id. at ¶ 34].

         On October 27, 2014, Ms. Carmody attempted to watch television in the dayroom of the detention center, but while attempting to sit down on a stool, lost her balance and landed on her back. [Id. at ¶¶ 36-37]. Ms. Carmody reported that she was having shooting pains in her back and needed an ambulance, but Defendant Campbell denied her request. [Id. at ¶¶ 39-40]. Plaintiff alleges that she was never taken for any medical examination and the Teller County Detention Center never provided any medical treatment of her back injury, except Tylenol. [Id. at ¶¶ 42-44].

         After her release in November 2014, Ms. Carmody sought medical treatment, which has failed to relieve ongoing pain. Plaintiff alleges that, “[a]fter the unsuccessful steroid injection, [she] needed to take morphine to obtain any relief from her pain.” [Id. at ¶ 52]. She further alleges that she “now needs to take morphine every day to obtain any relief from her back pain, ” but “[s]he would like to stop taking morphine because of its side effects.” [Id. at ¶ 54]. She also alleges, “[d]ue to the constant, sever pain and the effect the pain has had on her life, [she] is depressed all the time. Her daily life consists of trying to manage the pain or manage the side effects of the pain medication. She cannot sleep without pain medication but she hates the way the medication makes her feel.” [Id. at ¶ 57]. She seeks actual economic losses, including consequential, compensatory, and punitive damages. [#52].

         The Parties have proceeded through discovery and, as noted by Plaintiff, this court has considered a number of issues related to Ms. Carmody's medical records. [#67; #72]. The Parties have also sought, and received, extensions of time due to the collection and production of Ms. Carmody's medical records. See e.g., [#60]. Discovery is set to close on December 29, 2017. [#65].

         In the instant Motion, Defendant Campbell seeks to conduct ex parte interviews of three categories of health care providers. First, Defendant Campbell seeks to conduct ex parte interviews of Leslie O'Neal, LPN; Joe Moore, LPN; Chi Krantz, RN; and Linda Hewett, NP, who all worked at the Teller County Jail during Ms. Carmody's detention in October 2014. [#76 at 2]. All were medical staff and employees of Correctional Healthcare Companies, Inc.-a previous Defendant in this action. The second category of health care providers is Plaintiff's orthopaedic providers, David S. Matthews M.D. (“Dr. Matthews”) and Robert Peterson, Jr. PA-C (“Mr. Peterson”). [Id. at 3]. Last, Defendants seek to conduct an ex parte interview of Dr. Francis Joseph, Ms. Carmody's primary care physician from December 2014 to October 2016. [Id.]. Plaintiff objects, arguing that the requests are overly broad and likely implicate confidential and irrelevant information; that three of the health care providers will be deposed and, therefore, ex parte interviews are not necessary; and that Defendants have failed to establish a “compelling need” for the ex parte interviews. [#83]. Plaintiff further contends that she should be given adequate notice of any interviews with her health care providers, and an opportunity for her, or her counsel, to attend. [Id. at 6].


         Rule 26(b)(1) of the Federal Rules of Civil Procedure defines the scope of permissible discovery in this action. Fed.R.Civ.P. 26(b)(1). The Rule permits discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case. Id. In considering whether the discovery sought is proportional, the court weighs the importance of the discovery to the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Id.

         This scope for discovery does not include all information “reasonably calculated to lead to admissible evidence.” The amendments to Rule 26 effective December 1, 2015, purposefully removed that phrase. See In re Bard Filters Products Liability Litig., 317 F.R.D. 562, 564 (D. Ariz. 2016). As explained by the Bard court, the Advisory Committee on the Federal Rules of Civil Procedure was concerned that the phrase had been used incorrectly by parties and courts to define the scope of discovery, which “might swallow any other limitation on the scope of discovery.” Id. (citing Fed.R.Civ.P. 26 advisory committee's notes to 2015 amendment). The applicable test is whether the evidence sought is relevant to any party's claim or defense, and proportional to the needs of the case. Id. Rule 401 of the Federal Rules of Evidence defines relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Fed.R.Evid. 401.

         The Federal Rules of Civil Procedure contemplate that parties are not limited to one method of discovery to ascertain relevant information. Fed.R.Civ.P. 26(d)(3). Nor do the Federal Rules of Civil Procedure specifically govern informal discovery. See Matzke v. Merck & Co., 161 F.R.D. 106, 107 (D. Kan. 1994). Nevertheless, courts retain the discretion to enter protective orders where the court determines that there is good cause to prevent a party or person from annoyance, ...

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