United States District Court, District of Wyoming
ORDER ON PLAINTIFF'S MOTION TO COMPEL
L. Carman United States Magistrate Judge.
matter comes before this Court upon Plaintiff's
Motion to Compel [Doc. 119]. Plaintiff Homeland
Insurance Company of New York ("Homeland") brought
the underlying case seeking a declaratory judgment as to its
obligations under the insurance policy it issued to Defendant
Powell Valley Healthcare ("Powell") [Doc. 1 p. 2].
During the period in which Homeland insured Powell, Powell
was sued multiple times for negligent care provided by its
Hansen ("Dr. Hansen"). Id. Homeland claims
that it has no duty to defend or indemnify Powell because
Powell was aware of Dr. Hansen's poor treatment prior to
the insurance policy's inception [Doc. 120 pp. 2-3].
now moves to compel the production of documents detailing
Powell's awareness of any problems related to Dr.
Hansen's care prior to the issuance of Homeland's
insurance policy, and to compel Powell to supplement and
expand their discovery responses [Doc. 119]. Powell has
refused to produce these documents and supplement their
discovery, arguing the requested information is protected
under various privileges and are disproportionate to the
needs of the case [Doc. 124].
Standard of Review
Federal Rules of Civil Procedure allow parties to
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.
Court has "broad discretion to control and limit
discovery." Teton Mill Work Sales v.
Schlossberg, 2007 WL 9657995, at *2 (D. Wyo. June 22,
2007). The party resisting disclosure bears the burden of
proving privilege. Greenwood v. Wierdsma, 741 P.2d
1079, 1089 (Wyo. 1987). The party seeking disclosure has the
burden to demonstrate entitlement to the records when
disclosure withheld pursuant to W.S. § 35-2-610(a)(ix).
This motion addresses the application of statutory privileges
and disclosure restrictions as enacted by Wyoming. Federal
Rules of Evidence 501 addresses the application of privileges
in Federal Courts. That rule reads:
501. Privilege in General
common law-as interpreted by the United States courts in the
light of reason and experience-governs a claim of privilege
unless and of the following provided otherwise:
• The United States Constitution;
• A federal statute; or
• Rules prescribed by the Supreme Court.
a civil case, state law governs privilege regarding a claim
or defense for which state law supplies the rule of decision.
1974 advisory committee notes recognize that state privilege
law applies in diversity jurisdiction cases, but that federal
privilege law controls in cases or claims arising under
federal law. This Court's jurisdiction in this matter is
based upon diversity of citizenship and as such Wyoming
privilege law controls. Wyoming has enacted a series of
statutes addressing hospital and physician quality assurance
and improvement which limits disclosure of records.
Plaintiffs have invoked these provisions herein and each must
Peer Review Privilege
has withheld some documents on the basis they are protected
by peer review privilege [Doc. 124 pp. 4-8]. Wyoming law
All reports, findings, proceedings and data of the
professional standard review organizations is confidential
and privileged, and is not subject to discovery or
introduction into evidence in any civil action, and no person
who is in attendance at a meeting of the organization shall
be permitted or required to testify in any civil action as to
any evidence or other matters produced or presented during
the proceedings of the organization or as to any findings,
recommendations, evaluations, opinions or other actions of
the organization or any members thereof. However,
information, documents or other records otherwise available
from original sources are not to be construed as immune from
discovery or use in any civil action merely because they were
presented during proceedings of the organization, nor should
any person who testifies before the organization or who is a
member of the organization be prevented from testifying as to
matters within his knowledge, but that witness cannot be
asked about his testimony before the organization or opinions
formed by him as a result of proceedings of the organization.
Wyoming peer review statute was passed in March 1981. Laws
1981, ch. 107, § 1. Its passage came amidst a nationwide
push to strengthen protections for peer review materials in
hospitals, culminating with The Health Care Quality
Improvement Act of 1986 (42 U.S.C.A. §§
11111(a)(1)), which granted "immunity to professional
review committees" and their members. George E. Newton
II, Maintaining the Balance: Reconciling the Social and
Judicial Costs of Medical Peer Review Protection, 52
Ala.L.Rev. 723, 732 (2001). Among the goals of the HCQIA was
to combat the "increasing occurrence of medical
malpractice" and "improve the quality of medical
care" while addressing the "national need to
restrict the ability of incompetent physicians to move from
State to State without disclosure or discovery of the
physician's previous damaging or incompetent
performance." Susan O. Scheutzow, State Medical Peer
Review: High Cost but No Benefit-Is It Time for A
Change?, 25 Am. J.L. & Med. 7, 18 (1999).
nearly every state has a peer review privilege, reflecting a
nationwide desire to curtail medical malpractice. Daniel M.
III Mulholland; Phil Zarone, Waiver of the Peer Review
Privilege: A Survey of the Law, 49 S.D. L.Rev. 424, 426
(2004). Medical peer review allows doctors to evaluate their
colleague's work for compliance with industry standards.
Christopher S. Morter, Note, The Health Care Quality
Improvement Act of 1986: Will Physicians Find Peer Review
More Inviting?, 74 Va.L.Rev. 1115, 1117 (1988). Having
doctors evaluate their peer's performance is sensible
given they are already familiar with the standards and
regularly observe their colleagues in action. Newton II,
supra at 723-25; Michael D. ...