Opinion
1584CV02372
03-23-2018
Kimberly Kirkwood-Boulter[1] et al.[2] v. Carrie A. Coleman, M.D. et al.[3]
File Date: March 26, 2018
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT MASSACHUSETTS GENERAL HOSPITAL’S MOTION FOR RECONSIDERATION OF THE COURT’S ORDER OF FEBRUARY 6, 2018
Anthony M. Campo, Justice of the Superior Court
The court now gives full reconsideration to its February 6, 2018 order (Campo, J.) denying Massachusetts General Hospital’s (" MGH" ) motion for a protective order. A discovery dispute in this case raises the important questions of: (1) peer review privilege; and (2) the difference between expert testimony and a hospital’s obligation to designate officers, directors, or managing agents, or other persons to testify on its behalf under Massachusetts Rule of Civil Procedure 30(b)(6). The plaintiffs brought this medical malpractice action against MGH, its employees who provided the care, and a staffing agency for injuries sustained during Kimberly Kirkwood-Boulter’s labor and delivery of her son, Aiden Boulter. The plaintiffs noticed a Rule 30(b)(6) deposition for MGH to testify about its internal policies (" Topic 7" ):
Topic 7: Whether, how and why the rules, regulations, customs, policies, practices, guidelines, and procedures referenced in paragraphs 1-5 were or were not followed with respect to the labor of Kimberly Boulter and the delivery of Aiden Boulter.
MGH filed this response:
Response No. 7: Objection: The defendant objects to this topic as it seeks information that is overly broad in scope, has no reasonable time limitation, is unduly burdensome, seeks information not relevant to the case at bar, and is not reasonably calculated to lead to the discovery of admissible evidence. The burden is on the plaintiffs to affirmatively establish negligence, not on the defendant to affirmatively establish that it, and its agents and employees, were not negligent. The defendant further objects to this topic to the extent that it improperly seeks to obtain expert testimony from the defendant.
The plaintiffs thereafter moved to compel several discovery disputes. The court granted the plaintiffs’ motion but permitted MGH to submit a brief regarding Topic 7, which they did. MGH moved for a protective order under Mass.R.Civ.P. 26(c) to preclude any discovery related to Topic 7. After a hearing, the court (Campo, J.) denied MGH’s motion on February 6, 2018. MGH now moves for reconsideration under Superior Court Rule 9D, seeking an order precluding discovery on Topic 7. The court held another hearing on March 16. After additional review and full reconsideration. MGH’s motion is DENIED .
DISCUSSION
I. Massachusetts Rule of Civil Procedure 30(b)(6)
At issue is whether MGH must comply with Mass.R.Civ.P. 30(b)(6). Case law pertaining to hospital designees under Mass.R.Civ.P. 30(b)(6) is sparse. Therefore, it is instructive to refer to the Federal Rules of Civil Procedure. Reporters’ Notes to Mass.R.Civ.P. 1 (1973); see Strom v. American Honda Motor Co., 423 Mass. 334, 335 (1996) (" ° ’Because the Massachusetts Rules of Civil Procedure are patterned after the Federal rules, we interpret our rules consistently with the construction given their Federal counterparts,’ Solimene v. B. Grauel & Co., KG, 399 Mass. 790, 800 (1987), ‘absent compelling reasons to the contrary or significant differences in content.’ Rollins Envtl. Servs., Inc. v. Superior Court, 368 Mass. 174, 180 (1975)" ). The Federal rules were amended in 1970 to include Rule 30(b)(6) as a method to curb organizations from using their size and complexity to their advantage by " bandying" their opponents with a series of organizational employees who are " deposed in turn but each disclaims knowledge of facts that are clearly known to the persons in the organization and thereby to it." Committee’s Note to Fed.R.Civ.P. 30(b)(6) (1970).
Mass.R.Civ.P. 30(b)(6) provides, in relevant part: " A party may in his notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and describe with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which he will testify ... The persons so designated shall testify as to matters known or reasonably available to the organization."
Fed.R.Civ.P. 30(b)(6) provides, in relevant part: " In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify ... The persons designated must testify about information known or reasonably available to the organization."
II. Peer Review Privilege
In its motion for protective order, MGH asserted that it did not employ anyone it could designate to discuss Topic 7. MGH takes the position on reconsideration that it does have a Rule 30(b)(6) witness it could designate, but doing so would violate medical peer review privilege. Specifically, MGH contends that the court cannot compel: (1) testimony from a MGH official who participated in any medical peer review process regarding the care and treatment of Kimberly Kirkwood-Boulter; and (2) MGH to designate an individual who did not participate in its medical peer review process to offer comparable testimony to information protected by the peer review privilege.
" [MGH] simply does not employ such a person with the scope and breath [sic] of personal knowledge across multiple categories to provide testimony in response to Topic 7. As [MGH] does not employ such a person(s), the scope of Topic 7 is outside of matter ‘known or reasonably available to the organization.’ " Def. Memo in Sppt. of Mtn. for protective order, p. 7.
MGH now represents it has a Rule 30(b)(6) witness to produce; the court retracts any references in its prior decision made to MGH’s website and focuses its analysis to the arguments MGH presents on its motion for reconsideration.
MGH also did not raise peer review privilege in its objection to Topic 7.
Privileges are exceptions to the general duty imposed on a person to testify. Chadwick v. Duxbury Pub. Sch., 475 Mass. 645, 653 (2016) (citations omitted). The scope of a privilege is determined by its purpose. The Legislature, recognizing that medical peer review is integral to regulating the practice of medicine, created the peer review privilege, G.L.c. 111, § § 204, 205, to promote uninhibited investigation and exchanges of opinion in the medical peer review context. Carr v. Howard, 426 Mass. 514, 518 (1998). Consistent with that goal, the Legislature enacted G.L.c. 111, § 204 " to foster aggressive critiquing of medical care by the provider’s peers." See Beth Israel Hosp. Ass’n v. Board of Registration in Med., 401 Mass. 172, 182 (1987). The statute provides that " proceedings, reports, findings, and records of a peer review committee are confidential and ... shall not be subject to subpoena, discovery or introduced into evidence ..." G.L.c. 111, § 204(a). But information available from other sources is not privileged simply because the information was submitted to a peer review committee. G.L.c. 111, § 204(b). Even more, " [a] person who testifies before such committee or who is a member of such committee shall not be prevented from testifying as to matters known to such person independent of the committee’s proceedings ..." G.L.c. 111, § 204(c) (emphasis added); See Carr, 426 Mass. at 533 (1988); see also Montejunas v. Sioufi, 2002 WL 1362835 at *1 (Mass.Super. 2002) (reasoning that peer review privilege acts not as a personal privilege, but to exempt certain information from disclosure).
In 1987, the Legislature augmented the scope of peer review privilege to include " [i]nformation and records which are necessary to comply with risk management and quality assurance programs established by the board of registration in medicine and which are necessary to the work product of the medical peer review committees ..." G.L.c. 111, § 205(b). Indeed, to fall within § 205(b), the party asserting peer review privilege must produce evidence demonstrating: (1) that the information sought is " necessary to comply" with a risk management and quality assurance program established by the Board of Registration of Medicine; and (2) that the information is " necessary to the work product" of " medical peer review committees." Carr, 426 Mass. at 522-23.
The Rule 30(b)(6) request in this case compels MGH to identify a witness with knowledge of its rules, regulations, customs, policies, practices, guidelines, and procedures referenced in Topics 1-5. This witness may or may not have attended a medical peer review process. See G.L.c. 111, § 204(c); contra Grande v. Lahey Clinic, 49 Mass.App.Ct. 77 (2000) (holding that an outside medical consultant retained by a hospital to consult with its peer review committee could not be deposed because his opinions were derived from the committee’s work product). If it is MGH’s testimony that its designee participated in the peer review process, the plaintiffs should be able to question what information, if any, the designee has independent of the peer review process. How a person was designated and whether there is someone outside the peer review privilege who could respond is subject to inquiry. It may be the case that the plaintiffs ask questions that are protected by peer review privilege, which MGH may properly object to. It may also be the case that the plaintiffs ask questions that MGH’s designee has knowledge of independent of any peer review process, in which they must answer. G.L.c. 111, § 204(c).
In its original motion for protective order, MGH claimed that it did not have anyone it could designate to discuss MGH’s rules, regulations, customs, policies, practices, guidelines, and procedures referenced in Topics 1-5.
In short, a fair and open discovery process mandates that MGH designate a Rule 30(b)(6) witness and allow MGH to object to questions that would divulge information protected by peer review privilege. Business organizations in science and industry routinely designate witnesses to testify whether it complied with their respective rules, regulations, customs, policies, practices, guidelines, and procedures. MGH is attempting to bypass this standard discovery practice by raising premature objections to questions it anticipates. MGH cannot state that it has rules, regulations, customs, policies, practices, guidelines, and procedures referenced in Topics 1-5 but then not permit inquiry on this subject. Peer review privilege is a defined disqualification triggered by certain necessary components that the plaintiffs should be permitted to inquire and probe during oral examination of a Rule 30(b)(6) witness. See G.L.c. 111, § § 204, 205. Rather than engage in supposition, MGH must instead designate a witness to testify regarding its rules, regulations, customs, policies, practices, guidelines, and procedures referenced in Topics 1-5, and whether they were followed at the time pertinent to this litigation.
III. Testimony from a Rule 30(b)(6) Designee
MGH contends that complying with MassR.Civ.P. 30(b)(6) is tantamount to providing expert testimony as to whether its employees were negligent. This misinterprets the rule’s purpose and the plaintiffs’ request. Rule 30(b)(6) requires a party to testify about MGH’s protocols in place when the events leading to this action occurred, and further testimony regarding potential deviations from them, if any. Therefore, when an organization like MGH designates an individual to testify, that designee is testifying on the organization’s behalf. See Gleason v. Source Perrier., S.A., 28 Mass.App.Ct. 561, 569 (1990). The deposition would not, as MGH contends, compel a doctor to offer expert testimony about whether MGH or its employees were negligent Rather, the deposition would concern MGH’s internal practices, protocols, and standards when the plaintiffs received treatment and whether those internal practices, protocols, and standards were followed, or not followed as the case may be. See Wilson v. Lakner, 228 F.R.D. 524, 530 (D.Md. 2005) (" Rule 30(b)(6) means what it says ... [entities] must produce live witnesses who know or can reasonably find out what happened in given circumstances" ). Such practice is part and parcel to the fundamental approach of " deposition practice" under Rule 30(b)(6) of the Massachusetts and federal rules of civil procedure, and the manner in which business organizations testify through designees. See Committee’s Note to Fed.R.Civ.P. 30(b)(6) (1970); Mass.R.Civ.P. 30(b)(6).
It is MGH’s burden to identify a knowledgeable witness and to take reasonable steps to educate that designee. Foster-Miller, Inc. v. Babcock & Wilcox Canada, 210 F.3d 1, 17 (1st Cir. 2000). MGH asserts that designating someone to testify to Topic 7 is difficult. That may be true, but without more, it is also insufficient to overcome MGH’s obligation to comply with Rule 30(b)(6). See Gleason, 28 Mass.App.Ct. at 568, quoting Founding Church of Scientology of Washington, D.C., Inc. v. Webster, 802 F.2d 1448, 1452 (D.C. Cir. 1986) (" The law concerning who may properly be designated as a managing agent is sketchy. Largely because of the vast variety of factual circumstances to which the concept must be applied, the standard, like so many others in the law, remains a functional one to be determined largely on a case-by-case basis" ). MGH’s designee will have the burden to testify on matters known to MGH and matters reasonably available to it. Baker v. St. Paul Travelers Ins. Co., 670 F.3d 119, 124 (1st Cir. 2012), citing Fed.R.Civ.P. 30(b)(6); see Wilson, 228 F.R.D. at 527 (" There can be no question that the rule imposes a duty to prepare the designee [ ] ... [that] goes beyond matters personally known to the designee or to matters in which that designee was personally involved" ) (citations and internal quotations omitted). This is why the notice of deposition must state with reasonable particularity the matters for the examination. Pina v. Children’s Place, 740 F.3d 785, 791 n.6 (1st Cir. 2014); Mass.R.Civ.P. 30(b)(6).
MGH must not only identify its rules, regulations, customs, policies, practices, guidelines, and procedures referenced in Topics 1-5, but also identify whether they: (1) were followed; (2) not followed; (3) followed in part and not in part; or (4) are protected by peer review privilege. Unless the plaintiffs can question MGH’s Rule 30(b)(6) witness about its rules regulations, customs, policies, practices, guidelines, and procedures referenced in Topics 1-5, and whether they were followed in this case, that information will only be known to MGH; allowing MGH’s request will stifle a full and fair inquiry. Business organizations in science and industry face these questions every day in Rule 30(b)(6) depositions; the court cannot find an exception- in case law or rules of procedure- that affords an entity like MGH from complying with Rule 30(b)(6). Without a Rule 30(b)(6) deposition on Topic 7, the true meaning and interpretation of the various categories would be left to MGH only, and not revealed prior to trial. MGH has not demonstrated an entitlement to preferential treatment under Mass.R.Civ.P. 30(b)(6). This is an obligation that is required of all corporate defendants. Accordingly, MGH must comply with the rule and designate officers, directors, or managing agents to testify on its behalf regarding Topic 7.
ORDER
For the foregoing reasons, it is hereby ORDERED that Massachusetts General Health’s motion for reconsideration to preclude any discovery related to Topic 7 is DENIED.