Case 3:19-cv-00053-LLK Document 62 Filed 02/04/21 Page 1 of 11 PageID #: 483
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF KENTUCKY
`LOUISVILLE DIVISION
`CASE NO. 3:19-CV-00053 -LLK
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`NICOLE STUMPH
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`v.
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`SPRING VIEW PHYSICIAN PRACTICES, LLC., et al.
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` PLAINTIFFS
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` DEFENDANTS
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`MEMORANDUM OPINION AND ORDER
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`The parties consented, pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, to have the
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`undersigned Magistrate Judge determine all dispositive and non-dispositive matters in this case,
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`with any appeal lying before the Sixth Circuit Court of Appeals. [DN 14].
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`This matter is currently before the Court on Plaintiff Nicole Stumph’s Motion to Compel
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`to supplement responses to Plaintiff’s First Set of Interrogatories and Requests for Production of
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`Documents, [DN 48], and on the Motion for Protective Order brought by Spring View Physician
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`Practices, LLC, (“Spring View”), [DN 49, 50]. Plaintiff filed her Motion to Compel on July 24,
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`2020. [DN 48]. On August 21, 2020, Defendant responded and filed their Motion for Protective
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`Order. [DN 49, 50]. On August 28, 2020, Plaintiff filed both a reply to Defendant’s response and
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`a response to Defendant’s Motion for Protective Order. [DN 51]. The Defendant then filed a reply
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`in support of its Motion for Protective Order on September 4, 2020. [DN 52]. Further, the Court
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`ordered additional briefing on several discrete issues on September 29, 2020. [DN 57]. Having
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`received the Plaintiff’s and Defendant’s briefing on these issues, [DN 60, 61], the motion is now
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`fully briefed and ripe for adjudication.
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`For the reasons set forth herein, both the Plaintiff’s Motion to Compel, [DN 48], and
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`Defendant’s Motion for Protective Order, [DN 50], are GRANTED IN PART and DENIED IN
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`PART.
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`Relevant Background
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`This matter arose from two alleged incidents of sexual misconduct by Defendant Dr.
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`Samuel Kriegler, an employee of Spring View, at Spring View’s offices. Plaintiff
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`Nicole Stumph alleges that she was the victim of unwanted sexual touching from Defendant
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`Kriegler during her patient visits. [DN 1-2 at 2]. Plaintiff alleges
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`that Defendant Kriegler “touched the private areas, buttocks, and breasts of the Plaintiff” during
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`her patient visits on January 18, 2018 and January 24, 2018 and that “such touching was offensive
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`and unwarranted.” Id. Plaintiff brings claims against Defendant Spring View for
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`negligent selection, retention, supervision, and training of Defendant Kriegler, resulting in
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`Defendant Kriegler’s actions while functioning as its agent/employee. Id. at 3. Plaintiff brings
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`claims of battery (Counts I & II), outrage (Count III), negligence (Count IV), and for punitive
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`damages (Count V) against Defendant Kriegler. Id. On January 18, 2019, Defendant Kriegler
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`removed the case from the Marion Circuit Court. [DN 1].
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`Since
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`then
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`the parties have proceeded with discovery,
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`including depositions,
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`interrogatories, and document production. Plaintiff filed her Motion to Compel on July 24, 2020.
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`[DN 48]. Therein, Plaintiff argues that the Court should compel Spring View to supplement its
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`responses to Plaintiff’s First Set of Interrogatories and Requests for Production of Documents. Id.
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`On August 21, 2020, Defendant responded and filed a Motion for Protective Order. [DN 49, 50].
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`Defendants argued that the requested documents and information were privileged and confidential,
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`based on KRE 311.377, KRE 503, FRE 407, FRE 404 and HIPPA. Id. Though not argued in their
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`briefing, Defendants also asserted that a confidentiality agreement between Spring View and Dr.
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`Kriegler protected documents. [DN 48-4]. Further briefing on this issue consisted of Plaintiff’s
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`reply to Defendant’s response and response to Defendant’s Motion for Protective Order filed
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`August 28, 2020, [DN 51]; followed by Defendants reply in support of its Motion for Protective
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`Order on September 4, 2020, [DN 52].
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`Following this, the Court ordered additional briefing on several discrete issues on
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`September 29, 2020. [DN 57]. The parties briefed the requirements of KRS 311.377 and whether
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`Spring View met those requirements, the application of KRS 311.377 on the evidence in question,
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`the bearing of recent amendments to KRS 311.377 to its application, and the application of HIPPA
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`to the evidence. [Id., 60, 61].
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`Standard
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`A party may obtain discovery of any non-privileged matter that is relevant to any issue in
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`the case, or reasonably calculated to lead to matter relevant to any issue in the case. Federal Rule
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`of Civil Procedure 26(b)(1) states:
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`Unless otherwise limited by court order, the scope of discovery is as follows:
`Parties may obtain discovery regarding any nonprivileged matter that is relevant to
`any party's claim or defense and proportional to the needs of the case, considering
`the importance of the issues at stake in the action, the amount in controversy, the
`parties' relative access to relevant information, the parties' resources, the
`importance of the discovery in resolving the issues, and whether the burden or
`expense of the proposed discovery outweighs its likely benefit. Information within
`this scope of discovery need not be admissible in evidence to be discoverable.
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`A party “resisting discovery bears the burden to establish that the material either does not
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`come within the scope of relevance or is of such marginal relevance that the potential harm
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`resulting from production outweighs the presumption in favor of broad disclosure." Invesco Int'l
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`(N.A.), Inc. v. Paas, 244 F.R.D. 374, 380 (W.D. Ky. 2007). To resist Plaintiff’s discovery that
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`appears relevant, “Defendant bears a heavy burden of demonstrating that disclosure will work a
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`clearly defined and very serious injury." Id. (citing Empire of Carolina, Inc. v. Mackle, 108 F.R.D.
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`323, 326 (S.D.Fla.1985).
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`Relevance is to be “construed broadly to encompass any matter that bears on, or that
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`reasonably could lead to other matter that could bear on” any party's claim or defense. Albritton
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`v. CVS Caremark Corp., No. 5:13-CV-00218-GNS-LLK, 2016 WL 3580790, at *3 (W.D. Ky.
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`June 28, 2016) (citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978)). However,
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`the scope of discovery is not unlimited. “On motion or on its own, the court must limit the
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`frequency or extent of discovery . . . if it determines that . . . the burden or expense of the proposed
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`discovery outweighs its likely benefit, considering the needs of the case, the amount in
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`controversy, the parties’ resources, the importance of the issues at stake in the action, and the
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`importance of the discovery in resolving the issues.” Id. (quoting FED. R. CIV. P. 26(b)(2)(C)(iii)).
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`The determination of “the scope of discovery is within the sound discretion of the trial court.”
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`Cooper v. Bower, No. 5:15-CV-249-TBR, 2018 WL 663002, at *1 (W.D. Ky. Jan. 29, 2018),
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`reconsideration denied, 2018 WL 1456940 (W.D. Ky. Mar. 22, 2018) (quoting Chrysler Corp. v.
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`Fedders Corp., 643 F.2d 1229, 1240 (6th Cir. 1981)).
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`Discussion
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`Plaintiff’s Motion to Compel requests that the Court compel Spring View to supplement
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`its answer to Interrogatory No. 17 with a full explanation of all prior complaints and that it provide
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`full, unredacted copies of: SVU 000112-000114, SVU 000115, SVU 000116-000117, SVU
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`000118-119, SVU 000201, SVU 000194-200, SVU 000202, SVU 000203, SVU 000204, and SVU
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`000205-206. Defendant’s Motion for Protective Order, likewise, seeks protection of these same
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`materials under KRS 311.377, a confidentiality agreement between Defendants, FRE 404 and 407,
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`KRE 503, Work Product, and HIPPA.
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`Case 3:19-cv-00053-LLK Document 62 Filed 02/04/21 Page 5 of 11 PageID #: 487
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`A. KRS 311.377
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`The parties do not dispute that Kentucky law applies to the claims before the court, and the
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`Court agrees that Kentucky law is appropriate. This suit is in federal court based on diversity
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`jurisdiction. [DN 1]. Thus, the substantive law of the state in which the court sits will apply.
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`Novolex Holdings, LLC v. Wurzburger, No. 2:19-CV-145-DLB-CJS, 2020 WL 4758360, at *3
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`(E.D. Ky. Aug. 17, 2020) (citing Hanna v. Plumer, 380 U.S. 460, 465 (1965)). Specifically, this
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`applies to privilege issues such as this one. FED. R. EVID. 501; See In re Powerhouse Licensing,
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`LLC, 441 F.3d 467, 472 (6th Cir. 2006).
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`The Court must determine whether Spring View is protected under the statute, and whether
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`the statute protects these specific documents. First, KRS 311.377 applies to employees performing
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`a designated professional review function as part of a patient safety and quality improvement
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`initiative. Here, Defendants attest that this is precisely what Heather Lamkin was engaged in when
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`conducting her interviews and preparing her report, [DN 60], which is all the law requires.
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`Therefore, where a Spring View employee was properly engaged in a designated professional
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`review function as part of a patient safety and quality improvement initiative, KRS 311.377 will
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`apply to that work product.
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`Second, KRS 311.377 applies to the documents in dispute. The Court notes that this is a
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`novel issue, as the Kentucky Legislature has recently changed the language of the law. Beginning
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`with Sweasy, itself the third occasion on which the Kentucky Supreme Court revisited this issue,
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`the Court found that the statute either excluded malpractice claims or violates Section fifty-one of
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`the Kentucky Constitution. Sweasy v. King's Daughters Mem'l Hosp., 771 S.W.2d 812, 816 (Ky.
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`1989). Section fifty-one would have been violated where the reenactment title was insufficiently
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`related to a medical malpractice claim. Id. At that time, the title of the act was “AN ACT relating
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`to the establishment of certificate of need, licensing and regulation of health facilities and health
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`services.” So, KRS 311.377 discovery protections were held to apply to “any civil action;”
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`interpreted not to include a patient’s malpractice action—therefore, the constitutional issue was
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`not faced.
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`This reasoning has been upheld by the Kentucky Supreme Court on multiple occasions.
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`See Appalachian Reg'l Health Care, Inc. v. Johnson, 862 S.W.2d 868, 870 (Ky. 1993); Sisters of
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`Charity Health Sys., Inc. v. Raikes, 984 S.W.2d 464, 470 (Ky. 1998), as amended (Mar. 3, 1999);
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`McFall v. Peace, Inc., 15 S.W.3d 724, 726 (Ky. 2000). In the most recent case, the Court specified
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`that: “if Kentucky's legislature found that this Court's decision in Sisters of Charity Health Systems,
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`supra, truly frustrated the purpose of KRS 311.377(2), the legislature has had over ten years to
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`amend that statute to include a clear, unmistakable prohibition against discovery of peer review
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`documents in malpractice suits against healthcare providers.” Saleba, 300 S.W.3d at 183–84.
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`Following this decision, the legislature reenacted KRS 311.377 in 2018; adding the words:
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`“including but not limited to medical malpractice actions[.]” KRS 311.377. And the prior
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`constitutional issues are not faced in this case, where the title of H.B. 4 was "AN ACT relating to
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`the privileging of peer review activities in health care." Therefore, the protections of KRS 311.377
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`now extend to medical malpractice suits.
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`However, since the privilege only exists during the performance of a designated
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`professional review function, it is narrowly applied. KRS 311.377(3) specifically provides that
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`items used in these proceedings are not privileged if they are subject to discovery independently
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`of the professional review function. Thus, as applied to the disputed items, the privilege extends
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`only to the committee report and investigative interviews conducted. Information and documents
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`that are clearly discoverable are not entitled to the protection of KRS 311.377(2) merely because
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`they are placed in the file. Leanhart v. Humana Inc., 933 S.W.2d 820, 820–21 (Ky. 1996)
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`Defendants assert that Leanhart has been abrogated. This is not so. The relevant language
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`of section three is unchanged and states: “Nothing in subsection (2) of this section shall be
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`construed to restrict or limit the right to discover or use in any civil action or other administrative
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`proceeding any evidence, document, or record which is subject to discovery independently of the
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`proceedings of the entity to which subsection (1) of this section refers.” KRS 311.377(3).
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`B. Confidentiality Agreement
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`Defendant asserts a confidentiality agreement between Defendants Spring View and
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`Kriegler protect his letter of resignation. Other Federal Courts in the Sixth Circuit have found that
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`confidentiality agreements should not protect otherwise discoverable documents. See Long v. Am.
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`Red Cross, 145 F.R.D. 658, 667 (S.D. Ohio 1993) (“[T]he fact that such an agreement exists would
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`appear to carry little weight in terms of whether the Court should order disclosure of the
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`information.”); I.E.E. Int'l Elecs. & Eng'g, S.A. v. TK Holdings Inc., No. 10-13487, 2013 WL
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`12183637, at *1 (E.D. Mich. June 24, 2013) (“To conclude that confidentiality agreements bar
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`such discovery ‘would clearly impede the truth-seeking function of discovery in federal litigation
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`as all individuals and corporations could use confidentiality agreements to avoid discovery.’”)
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`(quoting In re Subpoeana Duces Tecum Served on Bell Communications Research, Inc., 1997 WL
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`10919 (S.D.N.Y. 1997)). Confidentiality agreements between co-defendants do not protect these
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`relevant and unprivileged documents and thus the document must be produced.
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`C. Federal Rule of Evidence 404 and 407
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`The Court rejects the position of Defendants, that discovery requests related to evidence of
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`Dr. Kriegler’s prior bad acts is irrelevant or inadmissible. As this Court previously ruled,
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`“information tending to show a pattern of similar behavior by Defendant Kriegler” and
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`“information tending to show past similar actions by Kriegler, while he was
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`employed by Defendant Spring View, could be relevant to Plaintiff’s claims.” [DN 39]. Further,
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`“[r]elevant information may be obtained even if such information is not itself admissible at trial.
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`Migliore & Assocs., LLC v. Kentuckiana Reporters, LLC, No. 3:13-CV-315-H, 2014 WL
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`12725945, at *5 (W.D. Ky. June 4, 2014). And as stated previously, while this Court will not
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`make a judgment on further proceedings, this evidence could very well be admissible at trial. [DN
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`39].
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`Similarly, Spring View assert that documents related to Dr. Kriegler’s administrative leave
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`and resignation are not admissible. But this is not the relevant inquiry, since Plaintiff is moving
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`to compel the documents for discovery purposes and it is too early to predict how they will use the
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`materials. As this court has found before, Rule 407 “governs the admissibility of evidence,” not
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`“pretrial discovery,” consequently is has no bearing in determining the discoverability of the
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`documents at issue. Merriweather v. United Parcel Serv., Inc., No. 3:17-CV-349-CRS-LLK, 2018
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`WL 3572527, at *11 (W.D. Ky. July 25, 2018) (quoting Laws v. Stevens Transp., Inc., 2013 WL
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`941435, at * 3 (S.D. Ohio Mar. 8, 2013)), it has no bearing in determining the discoverability of
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`the documents at issue. Additionally, Defendant’s authority relies on the Kentucky Rules of
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`Evidence which are inapplicable to this issue. FED. R. EVID. 1101.
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`Discoverability is a question of whether the sought material is “reasonably calculated to
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`lead to the discovery of admissible evidence.” FED. R. CIV. P. 26(b)(1). Here the documents and
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`interrogatory on Dr. Kriegler’s leave and resignation could confirm a similar set of facts, as alleged
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`by Plaintiff. Thus, the documents and supplementation of interrogatory are relevant.
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`D. Kentucky Rule of Evidence 503
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`Kentucky Rules of Evidence, like KRS 311.377, will be analyzed under state law. FED. R.
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`EVID. 501; See In re Powerhouse Licensing, LLC, 441 F.3d at 472. Spring View asserts that
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`attorney client privilege protects the investigation of third-party complaints.
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`Under the Kentucky rule “[a] communication is ‘confidential’ if not intended to be
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`disclosed to third persons other than those to whom disclosure is made in furtherance of the
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`rendition of professional legal services to the client or those reasonably necessary for the
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`transmission of the communication.” KRE 503(a)(5). It is true that the Rule extends beyond
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`merely the client and lawyer, to include representatives of the client and lawyer who are considered
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`essential to the rendition of legal services. KRE 503(a)(2)-(4) and (b)(1)-(5).
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`However, in this case, the assertion of privilege is in the complete absence of any
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`communication with attorneys—indeed, Spring View seeks protection for information completely
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`independent of anything that might be considered legal services. Defendants cite to Collins v.
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`Braden to support their theory that all information collected might be privileged, however, the
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`decision makes clear: “It protects only the communication to the attorney. It does not protect any
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`facts or claims reported to the attorney in those communications from all discovery.” 384 S.W.3d
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`154, 159 (Ky. 2012).
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`E. Work Product
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`Rule 26(b)(3) protects “(1) ‘documents and tangible things’; (2) ‘prepared in anticipation
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`of litigation or for trial’; (3) ‘by or for another party or its representative’. Migliore, 2014 WL
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`12725945, at *5 (quoting In re Professionals Direct Ins. Co., 578 F.3d 432 (6th Cir. 2009))
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`Importantly, the burden is on the party claiming protection to show that anticipated
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`litigation was the “driving force behind the preparation of each requested document.” Id. And
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`here, Spring View has not met this burden. The driving force behind these documents, created in
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`its designated professional review function, is not the defense of litigation, but, instead, to protect
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`patients and restrict incompetent behavior. Thus, documents evidencing other complaints and
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`claims against Defendants are not protected by work product doctrine.
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`F. HIPPA
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`The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) protects
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`patient privacy by preventing healthcare providers from disclosing protected healthcare
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`information. Defendants assert that the disclosure of prior complaints and correspondence
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`regarding prior complaints would violate HIPAA. [DN 51]. There are two issues in the disclosure
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`of these documents and information: whether they are sufficiently relevant and whether HIPPA
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`permits the disclosure.
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`First, as this Court has previously cautioned, when dealing with a non-party, “the Court
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`should be particularly sensitive to weighing the probative value of the information sought against
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`the burden of production on the non-party.” [DN at 4] (citing Medical Ctr. at Elizabeth Place,
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`LLC v. Premier Health Partners, 294 F.R.D. 87, 92 (S.D. Ohio 2013). Even with heightened
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`caution, the information and documents regarding these prior bad acts goes to the heart of the
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`complaint. “Clearly, [Plaintiff] is entitled to discover the names and other identifying information
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`of the complaining parties as a part of the discovery process.” Leanhart, 933 S.W.2d at 821 (citing
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`CR 26.02).
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`Second, HIPPA allows a covered entity, such as Spring View, to disclose protected
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`healthcare information “[i]n response to an order of a court or administrative tribunal, provided
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`that the covered entity discloses only the protected health information expressly authorized by
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`such order.” 45 C.F.R. § 164.512(e)(1)(i). Therefore, HIPPA does not prevent disclosure in this
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`instance.
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`The Court, having reviewed the parties’ briefing in this matter, arguments from counsel,
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`the record, and being otherwise sufficiently advised, IT IS HEREBY ORDERED:
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`1. Defendant shall supplement their responses to Interrogatory No. 17 and produce the
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`following documents: SVU 000112-000114, SVU 000115, SVU 000116-000117, SVU
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`000118-119, SVU 000201, SVU 000194-200.
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`2. Defendant Spring View shall produce prior patients’ complaints, subject to the
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`following conditions:
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`a. The parties are permitted to use the documents for the purposes of prosecuting
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`or defending this action and any resulting appeals, which includes disclosing
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`the documents to the parties’ attorneys, expert witnesses, consultants, court
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`personnel, court reports, copy services, trial consultants, and other entities or
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`persons involved in the litigation process;
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`b. The parties and their attorneys are prohibited from using or disclosing these
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`documents for any purpose other than this litigation; and
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`c. The parties and their attorneys are required to either return all copies of these
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`documents to Defendant Spring View or destroy them at the conclusion of this
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`litigation.
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`d. The Parties are Ordered to redact all names or any personal identifiers of non-
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`party complainants in all public filings.
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`IT IS SO ORDERED
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`c:
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`Counsel of Record
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`February 4, 2021
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