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Estate of Swayzer v. Clarke

United States District Court, E.D. Wisconsin

October 30, 2017

ESTATE OF LALIAH SWAYZER, et al., Plaintiffs,
DAVID A. CLARKE, JR., et al., Defendants.


          PAMELA PEPPER United States District Judge

         On July 25, 2017, defendant Armor Correctional Health Services, Inc. filed a motion for a protective order, asking the court to forbid the disclosure or discovery of Armor's post-incident investigation and review. Dkt. No. 45. The plaintiffs responded on August 15, 2017, dkt. no. 50, and Armor replied on August 21, 2017, dkt. no. 52. The court will deny the motion.

         I. Background

         A. Underlying Facts

         Armor Correctional Health Services, Inc. “provides health care services to inmates at the Milwaukee County Jail under a contract between it and Milwaukee County.” Dkt No. 46 at 2. According to the plaintiffs' second amended complaint, defendant Milwaukee County Jail housed plaintiff Shadé Swayzer in July of 2016. Dkt. No. 54 at 2. At the time of her incarceration, Shadé was almost nine months pregnant with a daughter, Laliah. Id. While in her cell at the Milwaukee County Jail, Shadé gave birth to Laliah. Dkt. No. 50 at 1. Laliah died shortly after birth. Dkt. No. 54. In its brief in support of its motion for a protective order, Armor indicates that it later conducted a post-incident review of the care that Armor provided to Shadé, with the goal of the review being “continuous quality improvement.” Dkt. No. 46 at 2.

         On December 23, 2016, the plaintiffs filed a five-count complaint, alleging (a) Fifth, Eighth and Fourteenth Amendment claims under 42 U.S.C §1983; (b) Monell claims against Defendants Milwaukee County and Armor for failure to train and adequately supervise employees and for various allegedly deficient polices; (c) common-law negligence claims; and (d) a wrongful death claim under Wis.Stat. §895.03. Dkt. No. 1, at 22-42. The plaintiffs filed an amended complaint on April 10, 2017 that removed one count of common-law negligence. Dkt. No. 19. They filed a second amended complaint on August 28, 2017, naming previously unknown defendants. Dkt. No. 54.

         B. The Parties' Arguments

         The parties are in the process of conducting discovery, and the plaintiffs seek the post-incident investigation review and report that Armor performed in the aftermath of the July 2016 events. Dkt. No. 45. Armor has filed this motion, asking the court to relieve it from the obligation of complying with the plaintiffs' request. Id. In support of the motion, Armor's chief executive officer, Bruce Teal, and its chief medical director, Dr. John May, submitted declarations in which they averred that if Armor's investigations and reviews are disclosed, Armor will have no incentive to perform or document such investigations or reviews in the future. Dkt. Nos. 48, 49.

         Armor asserts that because “‘a strong policy of comity between state and federal sovereignties impels federal courts to recognize state privileges where this can be accomplished at no substantial cost to federal substantive and procedural policy[, ]'” the court should recognize Wisconsin's peer review privilege, provided in Wis.Stat. §146.38. Dkt. No. 45 at 2 (quoting Doe v. Hudgins, 175 F.R.D. 511, 513 (N.D. Ill. 1997)). In support of this argument, Armor identified several federal courts which have recognized a peer review privilege in cases that involve federal law claims. In addition, Armor asserts two bases for this court to recognize the peer review privilege: (a) the plaintiffs can obtain the information they seek through other means; and (b) if the court does not recognize the privilege here, Armor “has no incentive to conduct such investigations and reviews.” Dkt. No. 46 at 8.

         The plaintiffs responded that the court should not implement Wisconsin's peer review privilege. They argued that Federal Rule of Evidence 501 limits the application of state privilege law to situations where state law supplies the rule of decision for a claim or defense. Dkt. No. 50 at 4. Citing Mem'l Hosp. for McHenry Cnty. v. Shadur., 664 F.2d 1058, 1059 (7th Cir. 1981), they argued that the Seventh Circuit requires courts to weigh the “need for truth” against the importance of any relationship or policy that the state evidentiary privilege might further, id., and claim that under the circumstances of this case, the need for truth outweighs the policies behind Wisconsin's peer review privilege.

         The plaintiffs also argue that the “vast majority of Courts” have determined that state peer review does not apply in §1983 cases. Id. at 6. In support of this argument, they cite one case-Johnson v. Sprung, et al., Case No. 14-cv-1408-LA, Dkt. No. 47 (E.D. Wis., May 19, 2016).

         II. Analysis

         A. Standard for Issuance of a Protective Order

         Under Federal Rule of Civil Procedure 26(c)(1)(A), a court may issue a protective order forbidding the disclosure or discovery of litigation material if it finds good cause to do so. Armor argues that good cause exists for the court to issue the protective order ...

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