Estate of Joseph Murphy v. State of Alaska, Department of Corrections et al

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UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
ESTATE OF JOSEPH MURPHY, )
)
Plaintiff, ) 1:17-CV-00010 JWS
)
vs. ) ORDER AND OPINION
)
) [Re: Motion at docket 53]
STATE OF ALASKA, DEPARTMENT OF )
CORRECTIONS, et al., )
)
Defendants. )
)
I. MOTION PRESENTED
At docket 53 plaintiff Estate of Joseph Murphy (“Plaintiff”) asks the court to
conduct an in camera review of certain personnel and disciplinary records of defendant
Jill Robinson (“Robinson”). Robinson responded at docket 68. Plaintiff replies at
docket 74. Oral argument was not requested and would not be of assistance to the
court.
II. BACKGROUND
Joseph Murphy (“Murphy”) was sent to the Lemon Creek Correctional Center
(“Lemon Creek”) from Bartlett Regional Hospital on August 13, 2015, to be temporarily
detained for alcohol detoxification and suicide monitoring pursuant to AS 47.37.170.
Early the next morning he complained to Robinson, a nurse at Lemon Creek, of chest
pains and requested his medication. Plaintiff alleges that Robinson did not obtain
Murphy’s medication and did not follow-up or monitor his condition. Plaintiff alleges that
Murphy made two subsequent requests for medication to other Lemon Creek staff
members but his requests went unheeded. According to Plaintiff, a Lemon Creek video
shows Murphy collapsing in his cell twenty-six minutes after he first requested his
Case 1:17-cv-00010-JWS Document 77 Filed 12/19/18 Page 1 of 6

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medications from Robinson. He was declared dead about an hour later, after
resuscitation efforts failed.
III. DISCUSSION
As part of Plaintiff’s 42 U.S.C. § 1983 claim against Robinson, Plaintiff served
various requests for production, including the following:
1) RFP No.1 – production of Robinson’s state employee personnel file;
2) RFP No. 4 – production of any written or recorded statements or
communications regarding Joseph Murphy, the death of Joseph Murphy,
investigations into the death of Joseph Murphy, or the Department of
Corrections’s November 13, 2015 Administrative Review by Dean Williams
and Joe Hanlon;
3) RFP No. 7 – production of any writing received or sent by Robinson in
which she discusses Joseph Murphy and/or her care and treatment of
him.
Robinson objected to the three requests based on her right to privacy under
AS 39.25.080 and Article I § 22 of the Alaska Constitution and based on medical peer
review privilege. After the court’s issuance of an order at docket 48 regarding the
applicability of AS 39.25.080 to Defendant Corcoran’s personnel file, Robinson
narrowed the basis of her objection to medical peer review privilege, set forth at
AS 18.23.030.
The medical peer review privilege statute protects the proceedings of and
records generated by a medical peer review organization and protects the investigative
process used by the organization.1 The statute states as follows:
(a) Except as provided in (b) of this section, all data and information acquired
by a review organization in the exercise of its duties and functions shall be
held in confidence and may not be disclosed to anyone except to the extent
necessary to carry out the purposes of the review organization and is not
subject to subpoena or discovery. Except as provided in (b) of this section, a
1See Mat-Su Valley Med. Ctr., LLC v. Bolinder, 427 P.3d 754, 763-64 (Alaska 2018).
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person described in AS 18.23.020 may not disclose what transpired at a
meeting of a review organization except to the extent necessary to carry out
the purposes of a review organization, and the proceedings and records of a
review organization are not subject to discovery or introduction into evidence
in a civil action against a health care provider arising out of the matter that I
the subject of consideration by the review organization. Information,
documents, or records otherwise available from original sources are not
immune from discovery or use in a civil action merely because they were
presented during proceedings of a review organization, nor may a person who
testified before a review organization or who is a member of it be prevented
from testifying as to matters within the person's knowledge, but a witness may
not be asked about the witness's testimony before a review organization or
opinions formed by the witness as a result of its hearings, except as provided
in (b) of this section.2
Disclosure of information and details deemed confidential under the statute constitutes
a misdemeanor.3 The parties agree that the Department of Corrections’ peer review
committee qualifies as a “review organization” for purposes of the statute.4
In her response to Plaintiff’s motion, Robinson drops her objection to turning over
her personnel file for an in camera view after confirming that her file does not contain
any peer review committee materials. She agrees to produce her personnel file for in
camera review “according to the procedure . . . followed by this Court in regards to
Defendant Corcoran’s personnel records.”5
She maintains her objection to Plaintiff’s RFP No. 4 and RFP No. 7, arguing the
medical peer review privilege statute prevents her from fully complying with these two
requests, which ask for statements, communications, or writings related to Joseph
Murphy, his care, his death, and investigations into his death. She asserts that “[a]ll
non-privileged materials responsive to Plaintiff’s discovery requests Nos. 4 and 7 that
are in Ms. Robinson’s care, custody or control, including Mr. Murphy’s medical records
2AS 18.23.030(a).
3AS 18.23.040.
4The term “review organization” is defined in AS 18.23.070.
5Doc. 68 at p. 4.
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and Ms. Robinson’s incident report, have been disclosed by Ms. Robinson,”6 but she
argues that she cannot turn over other unspecified materials because of the peer review
privilege statute.
Much of Robinson’s briefing is devoted to arguing that Alaska’s peer review
privilege is applicable in this federal case. She argues that because Alaska criminalizes
a violation of the privilege, the issue presented here is different from Agster v. Maricopa
County,7 where the Ninth Circuit emphasized that federal common law preempts state
law on questions of privilege and declined to create a federal common law privilege for
materials related to a peer review conducted by a correctional facility. Even assuming
Agster is distinguishable and the state statute applies to this case, Robinson has not
met her burden to show that her objection to producing the requested materials on the
basis of peer review privilege is proper.8
Despite the protections afforded a medical peer review committee and evidence
acquired by a committee, a litigant may nonetheless seek “[i]nformation, documents, or
records otherwise available from original sources” or information on matters within an
individual’s “person[al] knowledge.”9 However, as the Alaska Supreme Court recently
clarified, the litigant must seek such outside evidence from another source and not the
committee or a committee member.10 That is, the committee and its members cannot
be forced to turn over evidence in its possession even if the evidence originated outside
of the review process; the litigant must instead obtain the evidence elsewhere. Here,
Plaintiff is not asking the review committee or any of its members for evidence obtained
6Doc. 68 at pp. 9-10.
7422 F.3d 836 (9th Cir. 2005).
8Indeed, in its reply brief Plaintiff withdraws the preemption argument from the motion
and asserts that it need not be decided at this time.
9AS 18.23.030(a).
10Mat-Su Valley Medical Center, LLC v. Bolinder, 427 P.3d 754 (Alaska 2018).
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for or used in its proceedings, nor is Plaintiff asking Robinson to obtain anything from
the committee. Rather, Plaintiff is asking Robinson for any relevant communications
that are in her possession, custody, and control.
Robinson has not provided any information about the nature of specific materials
in her possession which she believes are protected under the statute, and therefore the
court cannot craft any specific directive. Instead, the court can only stress that under
the statute “[i]nformation, documents, or records otherwise available from original
sources are not immune from discovery or use in a civil action merely because they
were presented during proceedings of a review organization.”11 Indeed, cases
construing similar state statutes explain that information “available from a source other
than the committee does not become privileged simply by being acquired by the review
committee.”12 Here, the review committee’s evidence generally consisted of
documents, videos, and interviews.13 In RFP No. 4 and No. 7 Plaintiff is not asking for
videos or information about what Robinson said in her interview; he asks only for written
communications. The fact that Robinson may have provided existing communications
in her possession to the committee as part of its review does not make them privileged.
Robinson has not indicated she has in her possession written testimony or statements
she or others prepared specifically for the committee.
The statute also prevents disclosure of information about what transpired at a
committee meeting or disclosure of committee records and findings. Given that
disclosure of confidential information is a misdemeanor, it is unlikely that Robinson has
in her possession, custody, or control any materials about the committee meetings or
any committee records generated as a result of the review process. Indeed, the
11AS 18.23.030(a).
12McGee v. Bruce Hosp. Sys., 439 S.E.2d 257, 260 (S.C. 1993), quoted in Mat-Su Valley
Med. Cent., 427 P.3d at 767.
13Doc. 69 at p. 2, ¶ 2.
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affidavit from the Deputy Director of Health and Rehabilitation Services for the
Department of Corrections at the time of the peer review states that “[a]ll documents
related to the event were stored in the DOC executive Office.”14 There is nothing to
suggest that Robinson has or had any access to these stored materials.
IV. CONCLUSION
For the reasons above, the motion at docket 53 is granted as follows: (1) The
court will conduct an in camera review of Robinson’s personnel file on the same
conditions and terms set out in its order at docket 48 addressing Defendant Corcoran’s
personnel records. (2) Robinson is directed to produce any materials in her possession,
custody, or control that are responsive to RFP No. 4 and RFP No. 7 in accordance with
the guidance provided herein. In the event Robinson has communications in her
custody that she believes are responsive to Plaintiff’s requests but subject to the
privilege, she is directed to provide general details about the nature of the
communication—what type of communication it is; when it was generated; to whom the
communication or statement was provided and when—to Plaintiff and confer with
Plaintiff regarding the withheld material. If the parties are unable to reach an agreement
on any withheld item, Plaintiff may file a subsequent motion seeking the court’s
guidance.
Robinson shall deliver the materials for in camera review within 14 days.
Materials provided on a disk must be accompanied by a paper index describing each
item in the manner used by defendant Corcoran.
DATED this 19th day of December 2018.
/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT
14Doc. 69 at p. 2, ¶ 6.
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