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

United States District Court, D. Colorado

July 26, 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,
BOARD OF COUNTY COMMISSIONERS OF ARAPAHOE COUNTY; TYLER S. BROWN, in his official capacity as Arapahoe County Sheriff, and RUTH KYAMBADDE, RN, individually; Defendants.




         This matter is before the Court on Plaintiffs' Motion for Order to Show Cause Why Defense Counsel Should Not Be Sanctioned (the “Motion”) [#138], in which Plaintiffs seek sanctions against Defendants' counsel pursuant to Fed.R.Civ.P. 30(d) and 28 U.S.C.§ 1927. Defendants filed a Response [#151] in opposition to the Motion, and Plaintiffs filed a Reply [#159]. The Court held a hearing on the Motion on April 9, 2019. The Court has reviewed the briefing on the Motion, the entire docket, the applicable law, and is sufficiently advised in the premises. For the following reasons, the Motion [#138] is GRANTED.

         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 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].

         On January 29, 2019, defense counsel Writer Mott (“Mott”) deposed Michael J. Hart (“Hart”), an inmate and third-party witness to Lillis' death. Motion [#138]; Defs.' Ex. A-2, Dep. of Michael J. Hart [#151-2] (the “Deposition”). During the Deposition, Attorney Mott used Mr. Hart's medical records to contradict statements made by Mr. Hart in his sworn declaration (the “Declaration”). Response [#151] at 4-8; see Defs.' Ex. A-1, Decl. of Michael Hart [#151-1]. It is unclear when the medical records were first obtained, but they were allegedly retained by ACDF. Motion [#138] at 2. Plaintiffs contend, and Attorney Mott does not contest, that Attorney Mott acquired the medical records without Mr. Hart's knowledge or consent, or permission from the Court, and that the first time they were used in this case was during the Deposition. Id. at 2-3.

         Plaintiffs now move for sanctions against Attorney Mott on the grounds that he willfully and knowingly procured, and used, Mr. Hart's medical records in violation of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”). Id. at 1-3. The Motion [#138] is brought pursuant to Fed.R.Civ.P. 30(d) and 28 U.S.C. § 1927. Id. at 6.

         II. Analysis

         “The decision to impose sanctions for discovery violations and any determination as to what sanctions are appropriate are matters generally entrusted to the discretion of the district court.” Bowers v. Nat'l Collegiate Athletics Ass'n, 475 F.3d 524, 538 (3d Cir. 2007). Pursuant to Fed.R.Civ.P. 30(d)(2), “[t]he Court may impose an appropriate sanction-including the reasonable expenses and attorneys' fees incurred by any party-on a person who impedes, delays, or frustrates the fair examination of the deponent.” See, e.g., Deville v. Givaudan Fragrances Corp., 419 Fed.Appx. 201, 209 (3d Cir. 2011) (affirming magistrate judge's imposition of sanctions pursuant to Fed.R.Civ.P. 30(d)(2) on finding that attorney “testified on behalf of her witness by way of suggestive speaking objections”). Further, according to the Advisory Committee's Note to the 1993 Amendments to Fed.R.Civ.P. 30(d), sanctions may be authorized “not only when a deposition is unreasonably prolonged, but also when an attorney engages in other practices that improperly frustrate the fair examination of the deponent . . . .”

         Sanctions under 28 U.S.C. § 1927 are appropriate when an attorney acts “recklessly or with indifference to the law.” Dominion Video Satellite, Inc. v. Echostar Satellite LLC, 430 F.3d 1269, 1278 (10th Cir. 2005). However, sanctions sought pursuant to section 1927 can be awarded even in the absence of a finding of bad faith. Hamilton v. Boise Cascade Exp., 519 F.3d 1197, 1202 (10th Cir. 2008). Moreover, section 1927 “is penal in nature, [and] the award should be made only in instances evidencing serious and [studied] disregard for the orderly process of justice.” Miera v. Dairyland Ins. Co., 143 F.3d 1337, 1342 (10th Cir. 1998) (quotation marks and citations omitted).

         The instant Motion [#138] raises two questions: whether HIPAA was violated when Attorney Mott obtained and used Mr. Hart's medical records in the Deposition, and, if so, what sanctions would be appropriate, if any. HIPAA is designed to restrict the dissemination of a person's protected health information. “[Through] HIPAA, Congress has spoken about the protection that must be extended to patients regarding their health related information.” EEOC v. Boston Mkt. Corp., No. CV 03-4227, 2004 WL 3327264, at *2 (E.D.N.Y. Dec. 16, 2004) (internal quotations omitted). “HIPAA and the standards promulgated by the Secretary of Health and Human Services [“DHHS”] in the Code of Federal Regulations set forth the baseline for the release of health information.” Law v. Zuckerman, 307 F.Supp.2d 705, 708 (D. Md. 2004); see 45 C.F.R. § 160.101 et seq. In certain limited circumstances, such as with a court order, a person's protected health information may be obtainable without that person's knowledge or consent. See 45 C.F.R. § 164.512(e)(1)(I). However, if counsel attempts to collect protected health information without obtaining consent or meeting any of the exceptions in 45 C.F.R. § 162.512, he has violated HIPAA, and sanctions may be appropriate. See Crenshaw v. MONY Life Ins. Co., 318 F.Supp.2d 1015, 1027, 1029-30 (S.D. Cal. 2004); Zuckerman, 307 F.Supp.2d at 712-13. Attorney Mott does not contest that Mr. Hart's medical records are protected health information. He also does not refute the allegation that he failed to inform opposing counsel, the Court, or Mr. Hart that he was seeking Mr. Hart's medical records. Thus, unless an exception applies or there are other mitigating circumstances, sanctions may be appropriate.

         In opposition, Attorney Mott makes the following five arguments in defense of his use of Mr. Hart's medical records: (1) ACDF is not a “covered entity” under HIPAA and thus, has no statutory duty to maintain inmate medical privacy, a position Plaintiffs' counsel once took in an unrelated suit, Response [#151] at 2; (2) Plaintiffs lack standing to impose sanctions because they do not represent Mr. Hart, a third party, id. at 13; (3) there is no private right of action under HIPAA and Plaintiffs cannot circumvent that fact by asking for sanctions pursuant to the Court's supervisory power, id. at 11; (4) assuming ACDF is a covered entity, it “may disclose protected health information in response to lawful process without notifying the party whose records are sought, ” when there is a protective order in place, id. at 9, and; (5) Mr. Hart effectively waived his HIPAA protections by placing his health at issue in his Declaration [#151-1], id. at 12.

         A. Whether Attorney Mott Violated HIPAA

         As a threshold matter, the Court addresses (1) whether ACDF is a covered entity and (2) whether Plaintiffs are able to request sanctions when third-party rights are violated. The parties have provided the Court with minimal authority addressing whether a prison is or is not a covered entity under HIPAA. Attorney Mott directs the Court to two cases in support of his position, however neither one is controlling nor persuasive. See Response [#151] at 8-9 (citing Winfree v. S. Cent. Reg'l Jail, No. 2:16-cv-06332, 2018 WL 737429 (S.D. W.Va. Jan. 16, 2018) (deciding in dicta that the jail defendant was not a covered entity while determining that HIPAA did not create a private right of action) and McElyea v. Wallace, No. 3:11-0914, 2011 WL 5444100 (M.D. Tenn. Nov. 9, 2011) (deciding that a judge and an attorney were not covered entities under HIPAA)). Nevertheless, few courts have tackled the question before the Court now. Generally, prisoners have, at least in a limited respect, a right to privacy in their medical records. See U.S. v. Deleon, 323 F.Supp.3d 1273, 1281 n. 5 (D.N.M. 2018); Howard v. Douglas County Jail, 2009 WL 1504733, *4, n.5 (D. Kan. May 28, 2009) (discussing privacy in a prison context); accord 45 C.F.R. § 164.512(k)(5)(I) (limiting correctional facilities' access to a prisoner's protected health information). Moreover, when a prison is providing health care to a prisoner, it is acting in a way similar to healthcare providers, which are normally considered covered entities under HIPAA. See Fernandez v. Cal. Dept. of Correction & Rehabilitation, No. 2:11-cv-01125 MCE KJN P, 2014 WL 794332, at *5 (E.D. Cal. Feb. 27, 2014) (adopting the defendant's averment that HIPAA protects inmates' medical information regarding treatment at defendant's facility); 45 C.F.R. ยง 164.512(k)(5)(ii) ...

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