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Estate of Lillis v. Board of County Commissioners of Arapahoe County

United States District Court, D. Colorado

July 12, 2019

THE ESTATE OF JEFFREY SCOTT LILLIS, by and through its co-personal representatives Meghan Lillis and Michele Driscoll, MEGHAN LILLIS, individually, C.A.L., individually, a minor, by and through Michele Driscoll as guardian, C.S.L., individually, a minor, by and through Michele Driscoll as guardian, A.L., individually, a minor, by and through Robin Booth as next friend and mother, JORDAN LILLIS, individually, and ASHLEY PERRY, individually, Plaintiffs,
v.
BOARD OF COUNTY COMMISSIONERS OF ARAPAHOE COUNTY; TYLER S. BROWN, in his official capacity as Arapahoe County Sheriff, and RUTH KYAMBADDE, RN, individually; Defendants.

          ORDER

          KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Plaintiffs' Motion to Compel Production [#144][1](the “Motion to Compel”) and Non-Party Nurses' (the “Nurses”) Motion for a Protective Order and to Quash the Subpoena [#169] (the “Motion to Quash”). Non-party Colorado State Board of Nursing (the “Board”) appeared as an interested party and timely filed a Response [#168] to Plaintiffs' Motion to Compel, and Plaintiffs filed a combined Reply [#178] to both the Nurses' Motion to Quash [#169] and the Board's Response [#168]. The Court has reviewed the Motions [#144, #169], the Response [#168], the Reply [#178], the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Motion to Compel [#144] is GRANTED in part, DENIED as moot in part, and taken under advisement in part, and the Motion to Quash [#169] is DENIED.

         I. Background

         This case involves the death of an inmate, Jeffrey Scott Lillis (“Lillis”), while he was detained in the Arapahoe County Detention Facility (“ACDF”) in Arapahoe County, Colorado. Compl. [#1] ¶¶ 1, 40. The remaining claims in this case are (1) a claim under the Fourteenth Amendment for deliberate indifference to medical needs against Defendant Ruth Kyambadde (“Kyambadde”) in her individual capacity and (2) a Monell claim against the Board of County Commissioners of Arapahoe County and Arapahoe County Sheriff Tyler Brown (collectively, the “County Defendants”). Plaintiffs formerly asserted a wrongful death claim and a Fourteenth Amendment claim against other nurses at ACDF and other defendants, but that claim has since been dismissed. See Order [#87]; Stipulation of Dismissal [#133]; Stipulation of Dismissal [#134].

         After the tragic death of Mr. Lillis at ACDF, the Colorado State Board of Nursing (the “Board”), an administrative agency within the Department of Regulatory Agencies (“DORA”), conducted an investigation into the care and treatment provided to Mr. Lillis in the days leading up to his death. Motion to Compel [#144] at 2. The investigation commenced after the filing of the present lawsuit was reported in the press. Motion to Quash [#169] at 4, n.1. Plaintiffs subsequently sought production by Defendant Kyambadde and former defendant nurses Robly Evans, Denise Elwell, Jason Frank, Anita Brown, and Nancy Winegar of “all records . . . relating to any and all proceedings by the . . . [Board] . . . regarding the death of Jeffrey Lillis on December 14, 2014” (hereinafter the “Board Records”). See Motion to Compel [#106] at 1-2. The Court granted Plaintiffs' prior motion to compel with respect to Defendant Kyambadde and denied the motion as moot to the extent it was asserted against the former defendant nurses. See Order [#135]. The only argument asserted by the current and former defendants in opposition to the prior motion to compel was that the Court should recognize and apply the Colorado statutory peer review privilege, which the Court declined to do after determining that creation of a federal peer review privilege was inappropriate in the given circumstances. Id. at 10-11.

         Pursuant to that Order [#135], Plaintiffs served subpoenas on the Board “requesting the production of the complete case files related to the Board's inquiries into the medical care and treatment given to Mr. Lillis” by the Nurses. Motion to Compel [#144] at 2. The Board “responded to the subpoenas with a number of objections and a refusal to produce any documents covered by the subpoenas.” Id. at 3. In its Response [#168], the Board asserts that the Board Records are protected from disclosure on several grounds: (1) relevance; (2) confidentiality; (3) deliberative process privilege; (4) confidentiality of settlement communications; and (5) law enforcement privilege. The Board also submitted a privilege log attached to their Response. See Ex. 1 to Response [#168-1]. The Nurses filed their Motion to Quash [#169] in response to the present Motion to Compel [#144], likewise arguing that (1) the Board Records are not relevant to Plaintiffs' claims; (2) the Nurses have an expectation of privacy with respect to the Records; (3) settlement communications are privileged; and (4) the Court erred in its previous Order [#135] in determining that the Records are not protected by the peer review privilege. See Motion to Quash [#169]. As the Board's and Nurses' arguments with respect to relevance, the expectation of confidentiality, and the settlement privilege are duplicative, the Court addresses both parties' arguments collectively in its analysis to the extent that they overlap.

         II. Legal Standard

         The Federal Rules of Civil Procedure allow for the discovery of “any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed.R.Civ.P. 26(b)(1). The party resisting discovery based on a privilege has the burden of establishing that the privilege applies. Zander v. Craig Hosp., 743 F.Supp.2d 1225, 1231-32 (D. Colo. 2010) (citation omitted). In establishing the applicability of the privilege, the resisting party must expressly assert it and describe the nature of the purportedly-privileged documents, ordinarily by tendering a privilege log. Id. As noted above, the Board tendered a privilege log here.

         III. Analysis

         The Court first addresses the Nurses' argument revisiting the issue of whether the Court should recognize a federal peer review privilege. The Court then addresses the Board's and Nurses' arguments regarding relevance and the expectation of confidentiality. Finally, the Court examines whether the Board Records may be protected from disclosure under any other asserted privileges.

         A. Peer Review Privilege - Federal Common Law

         In its February 7, 2019 Order [#135], the Court declined to apply the Colorado statutory “peer review” privilege to this federal action, noting that “any public or private benefit from keeping the peer review information or documents confidential in this case is outweighed by the public benefit that flows from full disclosure of all relevant information needed to ascertain the truth of what occurred.” [#135] at 10-11. In their Motion to Quash [#169], the Nurses urge the Court to reevaluate certain aspects of its prior Order [#135]. [#169] at 16-19. However, the arguments raised by the Nurses in suggesting that the Court reevaluate its Order [#135] have already been fully briefed in response to Plaintiffs' September 24, 2018 Motion to Compel [#106] and addressed in the previous Order [#135]. See Response [#113]; Response [#116]; Order [#135] at 8-10 . Simply stated, the Nurses have not provided the Court with any new reason to revisit its previous analysis. Thus, to the extent the Nurses argue that the Court should reconsider its ruling in its prior Order [#135] and recognize Colorado's statutory peer review privilege, the Court declines to do so, especially in light of the fact that there are no remaining state law claims in this action.

         B. Relevance of Materials Sought

         The Nurses argue that the Board Records are not relevant to any of the remaining claims against either Nurse Kyambadde or the County Defendants because “Plaintiffs do not and cannot plausibly assert that the materials from the DORA files of [the non-party nurses] relate at all to the care provided by Nurse Kyambadde, ” and “[t]he Board does not have the authority to opine on the global conduct of the County, since the County itself is not a licensed nurse.” Motion to Quash [#169] at 9, 11. Plaintiffs counter that “if the Board did find that all or most of the Non-Party Nurses . . . violated the Nurse Practice Act Standards, the fact that Arapahoe County . . . found [that] the nurses who treated Mr. Lillis did nothing wrong shows a custom of, at the very least, tolerating reckless conduct by its nurses.” Reply [#178] at 7.

         Because the pertinent question regarding the County Defendants' liability under Monell is whether Arapahoe County had a custom, policy, or practice of allowing nurses to practice outside the scope of their licenses, the Board Records with respect to the non-party nurses are clearly relevant. It is well-settled that relevance is a broad concept. Fed.R.Civ.P. 26(b)(1) permits discovery “regarding any matter, not privileged, that is relevant to the claim or defense of any party.” See Williams v. Bd. of Cty. Comm'rs, 192 F.R.D. 698, 702 (D. Kan. 2000) (request for discovery should be considered relevant if there is any possibility the information sought may be relevant to a claim or defense). Here, Plaintiffs have asserted that the Board Records of the Nurses, “all of whom treated Jeff Lillis at Arapahoe County Jail immediately before his death from treatable pneumonia, are relevant to show that to the extent the Nurses all failed to provide adequate care to Mr. Lillis in the exact same way, Arapahoe County had a custom, policy, or practice that caused this type of failure.” Reply [#178] at 5. While the Court does not comment on the ultimate admissibility or weight of the evidence sought, the Court finds that Plaintiffs have demonstrated that the Board Records might reveal facts relevant to Plaintiffs' Monell claim against the County Defendants.

         With respect to the Board's privilege log, entries ## 10-24 and 27-30 are withheld solely on grounds of relevance. Because the Board Records might reveal facts relevant to Plaintiffs' claim, the Court determines that entries ## 10-24 and 27-30 are not protected from disclosure under ...


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