Case 3:18-cv-00066-CDL Document 113 Filed 10/16/20 Page 1 of 9
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF GEORGIA
`ATHENS DIVISION
`
`Plaintiffs,
`
`
`STEPHEN R. COLLETT and FELICITY
`COLLETT,
`
`
`
`vs.
`
`OLYMPUS MEDICAL SYSTEMS CORP.
`and OLYMPUS AMERICA INC.,
`
`
`
`Defendants.
`
`*
`
`*
`
`*
`
`*
`
`*
`
`*
`
`
`CASE NO. 3:18-CV-66 (CDL)
`
`
`
`O R D E R
`
`The parties seek a court order compelling two third-party
`
`entities to disclose information that could lead them to
`
`additional information that is privileged under Georgia law. The
`
`information the parties presently seek is not, standing alone,
`
`probative of any issue in this case, and the additional
`
`information the parties may ultimately seek based upon the
`
`initial information they presently seek is clearly privileged.
`
`Therefore, the Court denies the parties’ motions to compel the
`
`third parties to produce the information.
`
`BACKGROUND
`
`Plaintiffs allege that Stephen Collett contracted human
`
`immunodeficiency virus (HIV) from a defective colonoscope at
`
`Athens Gastroenterology Endoscopy Center (the “Center”). The
`
`parties have a list of approximately forty-five patients who
`
`underwent colonoscopies with the colonoscope that was used on Dr.
`
`
`
`

`

`Case 3:18-cv-00066-CDL Document 113 Filed 10/16/20 Page 2 of 9
`
`
`
`Collett at around the same time. The parties want to know the
`
`HIV status of these other patients, arguing that this information
`
`may be relevant as to whether the colonoscope in question was
`
`contaminated with the HIV virus prior to Dr. Collett’s procedure.
`
`Specifically, Defendants have moved to compel the Center to
`
`respond to a subpoena requiring the Center to state whether any
`
`of the patients on the Center’s list reported HIV positive status
`
`to the Center. And Plaintiffs have moved for an order permitting
`
`them to present the Center’s list of patients to the Georgia
`
`Department of Public Health and ask it to determine whether
`
`anyone on the list has ever tested positive for HIV. Standing
`
`alone, the information sought by the parties in their two pending
`
`requests is not probative of whether the colonoscope in question
`
`was contaminated with HIV. But the information the parties now
`
`seek could lead to relevant information if they are later
`
`permitted to identify whether a specific prior patient was HIV
`
`positive. The parties seem to understand that without this
`
`follow-up step, the information that they now seek is useless.
`
`Rather than acquiesce to the parties’ suggestion that the second
`
`step be addressed later, the Court finds it appropriate to decide
`
`now whether this identity-specific HIV evidence will ever be
`
`discoverable because if it is not, the first step is a waste of
`
`time and resources even if the information sought in this first
`
`step is not privileged. Because the necessary follow-up step
`
`2
`
`

`

`Case 3:18-cv-00066-CDL Document 113 Filed 10/16/20 Page 3 of 9
`
`
`
`would require the disclosure of privileged information, the Court
`
`denies Defendants’ motion to compel (ECF No. 102) and Plaintiffs’
`
`motion for permission to disclose (ECF No. 108).
`
`DISCUSSION
`
`The central issue for the Court to decide is whether Georgia
`
`law permits disclosure of the information the parties now seek
`
`and will seek under the circumstances presented here. Federal
`
`Rule of Civil Procedure 26(b)(1) only permits discovery of
`
`nonprivileged matter. This is a diversity action, and the
`
`Eleventh Circuit has observed that “[s]tate privilege defenses
`
`have full force and effect in federal court in diversity
`
`jurisdiction cases by virtue of” Rule 501. Price v. Time, Inc.,
`
`416 F.3d 1327, 1335. Therefore, the Court must determine whether
`
`the information that the parties currently seek and the
`
`information that they intend to ultimately seek is privileged
`
`under Georgia law.
`
`In Georgia, “AIDS confidential information” is “confidential
`
`and shall not be disclosed except as” permitted by statute.
`
`O.C.G.A. § 24-12-20. “No person or legal entity which receives
`
`AIDS confidential information . . . or which is responsible for
`
`recording,
`
`reporting,
`
`or
`
`maintaining
`
`AIDS
`
`confidential
`
`information shall: (A) Intentionally or knowingly disclose that
`
`information to another person or legal entity; or (B) Be
`
`compelled by subpoena, court order, or other judicial process to
`
`3
`
`

`

`Case 3:18-cv-00066-CDL Document 113 Filed 10/16/20 Page 4 of 9
`
`
`
`disclose that information to another person or legal entity[.]”
`
`O.C.G.A. § 24-12-21(b)(1). There are some exceptions. See
`
`O.C.G.A.
`
`§
`
`24-12-21(c)-(i)
`
`(permitting,
`
`under
`
`specified
`
`circumstances, disclosure to certain government agencies; to the
`
`patient’s spouse, sexual partner, or child; and to the patient’s
`
`health care provider). None of these exceptions would permit
`
`disclosure of a person’s AIDS confidential information to third
`
`parties who are private litigants in a civil action.
`
`“AIDS confidential information” that is privileged under
`
`O.C.G.A. § 24-12-21 means information which discloses that a
`
`person:
`
`(A) Has been diagnosed as having AIDS;
`
`(B) Has been or is being treated for AIDS;
`
`(C) Has been determined to be infected with HIV;
`
`(D) Has submitted to an HIV test;
`
`(E) Has had a positive or negative result from an HIV
`test;
`
`(F) Has sought and received counseling regarding AIDS;
`or
`
`(G) Has been determined to be a person at risk of being
`infected with AIDS,
`
`and which permits the identification of that person.
`
`O.C.G.A. § 31-22-9.1(a)(2). Based on the plain language of the
`
`statute, it appears that the legislature intended to prevent
`
`disclosure that a person tested positive for HIV, was suspected
`
`of being exposed to or infected with the virus such that it was
`
`4
`
`

`

`Case 3:18-cv-00066-CDL Document 113 Filed 10/16/20 Page 5 of 9
`
`
`
`advisable for the person to submit to an HIV test, or was
`
`determined to be at risk of becoming infected with the virus.
`
`The parties presently want to know whether any patient who
`
`was treated with the colonoscope shortly before October 10, 2011
`
`was infected with HIV at the time. If the Court were to grant
`
`either of the parties’ pending motions, then the Center or the
`
`health department would have to review the Center’s list of
`
`forty-five patients and determine if any of them had been
`
`reported as HIV positive. If neither the Center nor the health
`
`department has a record of any patient on the list testing
`
`positive for HIV, then it would not be a disclosure of “AIDS
`
`confidential information” to say so. This answer would not
`
`reveal any AIDS or HIV diagnosis and would not disclose whether
`
`anyone on the list had submitted to an HIV test or was determined
`
`to be at risk of becoming infected with the virus.1
`
`The more complicated issue is what would happen if one or
`
`more patients on the list was reported to be infected with HIV.
`
`
`1 Plaintiffs argue that even if the Center responded that it has no
`record of any of its patients being HIV positive, it is possible that a
`patient was infected with HIV before October 2011 but had not yet
`tested positive. So, Plaintiffs want to know if any of the patients on
`the list were ever reported as HIV positive to the health department.
`Defendants assert that even if the health department received a report
`that one of the patients tested positive for HIV, that does not mean
`that the patient was HIV positive before October 2011 and therefore
`would not establish a potential causal connection. More discovery
`would be needed. And it is that discovery that would involve
`potentially privileged information. Absent compelling circumstances, it
`would be unjust to allow the admission of evidence sought in step one
`but prevent the opposing party from discovering the privileged
`information necessary to refute it.
`
`5
`
`

`

`Case 3:18-cv-00066-CDL Document 113 Filed 10/16/20 Page 6 of 9
`
`
`
`The parties’ requests, as currently framed, would require
`
`disclosure that someone on the patient list has been reported as
`
`infected with HIV, though the requests would not require the
`
`Center or the health department to say who on the list of forty -
`
`five patients was reported as HIV positive. But the litigants in
`
`this civil action would know that at least one person on a small
`
`list of patients was reported as HIV positive.2 And it seems
`
`inevitable that if at least one of the patients was reported as
`
`HIV positive, then the parties will want additional discovery to
`
`learn when the person was infected and when the person tested
`
`positive for HIV. Without those crucial additional facts, the
`
`“step one” information would either not be relevant to any issue
`
`in the case (because the simple fact that someone on the list may
`
`be HIV positive is not enough standing alone to be probative of
`
`whether that person contaminated the colonoscope with the virus),
`
`or allowing the circumstantial evidence discovered in step one
`
`while denying the discovery of evidence that could refute it
`
`would be unjust. Such a process would prevent the opportunity
`
`for telling the proverbial other side of the story. Thus, the
`
`next step would need to be taken. The parties have not provided
`
`
`2 Plaintiffs point out that if someone on the list was reported as HIV
`positive, the law would permit the health department to tell the Center
`because the health department may disclose a patient’s AIDS
`confidential information to a health care provider whom the patient
`consulted for medical treatment. But that exception would not permit
`the health department to disclose a person’s private health information
`to the Court or to the lawyers in this case.
`
`6
`
`

`

`Case 3:18-cv-00066-CDL Document 113 Filed 10/16/20 Page 7 of 9
`
`
`
`a complete, clear path for this second step in the process, and
`
`the Court can conceive of no path that does not include
`
`identification of the HIV positive patient.
`
`Defendants’ suggested process begins with O.C.G.A. § 24-12-
`
`21(t), which permits a superior court to order disclosure of AIDS
`
`confidential information to a party in a civil proceeding under
`
`certain circumstances. Defendants assert that the health
`
`department should be required to answer whether any of the
`
`patients on the Center’s list is HIV positive. Then, if the
`
`answer is yes, Defendants acknowledge that the Court and the
`
`parties would have to figure out the next steps. Based on the
`
`Court’s review of the statute, the next steps would require the
`
`Court to determine whether “the petitioner for disclosure
`
`demonstrate[d] by clear and convincing evidence a compelling need
`
`for the information which cannot be accommodated by other means.”
`
`O.C.G.A. § 24-12-21(t)(2). And, the statute requires that the
`
`person whose private information is sought will receive notice
`
`from the Court and an opportunity to be heard before any
`
`disclosure. The statute, however, does not seem to contemplate a
`
`situation like the present one, where none of the parties knows
`
`the “true name of the person concerning whom the information is
`
`sought,” id. § 24-12-21(t)(3), and the true name would somehow
`
`7
`
`

`

`Case 3:18-cv-00066-CDL Document 113 Filed 10/16/20 Page 8 of 9
`
`
`
`have to be obtained from the health department before the
`
`required notice and opportunity to be heard can be given.3
`
`Based on the present record, the Court is not persuaded that
`
`the parties have a compelling need for obtaining AIDS
`
`confidential information about the Center’s patients. This is
`
`not a case where a person whose AIDS confidential information is
`
`sought is already known to the parties and is accused of
`
`committing a crime or a tort related to that person’s HIV status.
`
`In this case, the parties’ private need for disclosure of AIDS
`
`confidential information in this product liability action is far
`
`outweighed by the privacy interest of any person whose private
`
`information is sought and by the public interest that would be
`
`“disserved by disclosures which may deter voluntary HIV tests.”
`
`O.C.G.A. § 24-12-21(t)(2). Accordingly, the information sought
`
`is not discoverable via a court order pursuant to O.C.G.A. § 24-
`
`12-21(t). And given this finding, the information the parties
`
`presently seek in order to lay the foundation for obtaining this
`
`privileged information is either irrelevant or its probative
`
`
`3 Imagine the notice. “You had a colonoscopy with Dr. Jeffrey Williams
`almost ten years ago. Another patient claims that the colonoscope was
`defectively designed and that they contracted HIV from it. They
`brought a product liability action in this Court. Dr. Williams was
`required to produce a list of the patients who used the colonoscope
`during the same timeframe, and that list is being kept confidential by
`the Court and the lawyers. Your name was on the list. The parties
`want to know if you have HIV and, if so, when you became infected. Is
`it all right with you if the public health department shares that
`information, including your name, with the Court, confidentially? And
`is it okay if the Court shares that information with the lawyers in the
`product liability action?”
`
`8
`
`

`

`Case 3:18-cv-00066-CDL Document 113 Filed 10/16/20 Page 9 of 9
`
`
`
`value is substantially outweighed by the risk of unfair
`
`prejudice. Thus, the Court will not order its production.
`
`CONCLUSION
`
`For the reasons set forth above, the Court denies
`
`Defendants’ motion to compel (ECF No. 102) and Plaintiffs’ motion
`
`for permission to disclose (ECF No. 108).
`
`
`
`IT IS SO ORDERED, this 16th day of October, 2020.
`
`S/Clay D. Land
`
`CLAY D. LAND
`U.S. DISTRICT COURT JUDGE
`MIDDLE DISTRICT OF GEORGIA
`
`9
`
`