There was a problem locating the requested document.
Page 1 IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 04-cv-1859-WYD-OES
ERIKA SMIDDY,
Plaintiff,
Vv.
ASPEN VALLEY HOSPITAL DISTRICT,
Defendant.
PLAINTIFF’S REPLY IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL
COMES NOW the Plaintiff, Erika Smiddy, by and through her attorneys,
Leavenworth & Karp, P.C., and replies as follows:
1. Plaintiff has already addressed many of the issues raised by Defendant in
its Response.
2. Defendant argues that the requested information and documents have been
fully responded to by Defendant. Plaintiff here references the Court to the Motion.
3. The Defendant argues that the materials requested are protected by the
“peer review” privilege. The records and information sought do not deal with the practice
of medicine but relate to employment actions by AVH and Dr. Gerson. They are not
privileged. See the recent decision of Judge Krieger in another employment case, Bramlet
v. AVH, D. Colo. 01-MK-2089 (CBS), attached as Exhibits 1 and 2. Exhibit 1 is submittedPage 2 Case 1:04-cv-01859-WYD-OES Document 32 _ Filed 07/08/2005 Page 2of16
to give context to the subsequent Order of Judge Krieger, Exhibit 2, wherein she discusses
the privilege. Although the issue before the Court was whether to seal certain documents,
the discussion of the peer review privilege is helpful.
4. We are not here seeking information about patient care, nor about Gerson’s
“professional conduct.” Therefore, even if the Court were to recognize such a general
privilege, it would not cover the information and documents sought by Plaintiff. Those
documents relate to the actions of Dr. Gerson as a “supervisor” of the Plaintiff and in an
employment context. Defendant should not be allowed to shield the materials by referring
the matter to the MEC.
5. The “deliberative process privilege” is inapplicable. In civil rights actions, like
this case, courts have consistently held that the public policy expressed in those statutes
outweighs this privilege. Memorial Hospital v. Shabur, 664 F.2d 1058 ( 7" Cir. 1981)(
Confidential medical disciplinary proceedings required to be disclosed in federal anti-trust
action alleging conspiracy); Hinsdale v. City of Liberal, Ks., 1997 WL 537314, *1 (D.
Kan.)(Privilege is outweighed by interest in disclosure where case based on federal civil
rights acts). In addition, the privilege, which is merely a qualified one, should only be
invoked where communications are designed to directly contribute to the formulation of
important public policy. Sofo v. City of Concord, 162 FRD 603, 612-13 (ND Cal. 1995).
“Rountine operating decisions cannot be transformed into public policy at higher levels of
government just because they are made at public institutions.”Page 3 Case 1:04-cv-01859-WYD-OES Document 32 _ Filed 07/08/2005 Page 3of 16
Scott v. Bd. of City of East Orange, 219 FRD 333, 339 (D.N.J. 2004). Nothing requested
by Plaintiff goes to the creation of public policy of the Defendant.
LEAVENWORTH & KARP, P.C.
Attorneys for Plaintiff
By /S/* Sander N. Karp
Sander N. Karp, 1088
201 14" Street, Suite 200
PO Drawer 2030
Glenwood Springs, CO 81602
(970) 945-2261
snk@lklawfirm.com
CERTIFICATE OF SERVICE
| hereby certify that on this 8" day of July, 2005, | electronically served the forgoing
PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO COMPEL with the Clerk of the
Court through CM-ECF system which will send notification to the following e-mail
address:
Catherine A. Tallerico, Esq.
Fowler Schimberg & Flanagan, P.C.
1640 Grant Street, Suite 150
Denver, CO 80203
c_tallerico@fsf-law.com
/S/* Erika WatkinsPage 4 Case 1:04-cv-01859-WYD-OES Document 32 _ Filed 07/08/2005 Page4of16
- RECEIVED
IN THE UNITED STATES DISTRICT COURT APR 08 2005
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger LEAVENWORTH & KARP PC
: y hime
Case No. 01-MK-2089 (CBS)
DEAN A. BRAMLET, M.D., FILED
UNITED STATES DISTRICT COURT
DENVER, COLORADO
Plaintiff, a
APR O7 2005
¥.
GREGORY C. LANGHAM
ASPEN VALLEY HOSPITAL DISTRICT, MAL CLERK
Defendant.
ORDER TO SHOW CAUSE WHY DOCUMENTS SHOULD NOT BE UNSEALED
THIS MATTER comes before the Court on Defendant's Motion for Summary Judgment
filed April 4, 2005. Numerous exhibits to stich motion were filed under seal pursuant to a
protective order. The Court
FINDS and CONCLUDES that:
The Supreme Court acknowledged a common-law right of access to judicial records in
Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978). This right is premised upon
the recognition that public monitoring of the courts fosters important values such as respect for
the legal system. See Jn re Providence Journal Co., 293 F.3d 1, 9 (Ist Cir. 2002). Judges have a
responsibility to avoid secrecy in court proceedings because "secret court proceedings are
anathema to a free society.” M.M. v. Zavaras, 939 F. Supp. 799, 801 (D. Colo. 1996) (J. Kane).
There is a presumption that documents essential to the judicial process are to be available
to the public, but they may be sealed when the public's right of access is outweighed by interests
1Page 5 Case 1:04-cv-01859-WYD-OES Document 32 Filed 07/08/2005 Page5of16
which favor nondisclosure. See United States v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997). It
is within the district court's discretion to determine whether a particular court document should
be sealed. See Nixon, 435 U.S at 599. Only in the rarest of cases is the sealing of documents
appropriate — for example, cases involving intensely personal issues such as abortion or birth
control, or cases pertaining to the welfare of abandoned or illegitimate children. See Doe v.
F.B.1., 218 F.R.D. 256, 259 (D. Colo. 2003).
In furtherance of the common law right of access to court records, the United States
District Court for the District of Colorado promulgated D.C.COLO.LCivR 7.2, which provides in
relevant part:
A. Scope. Upon motion and a showing of compelling reasons, a judicial
officer may order that:
1. all or a portion of papers and documents filed in a case shall be
sealed; or
2. all or a portion of court proceedings shall be closed to the public.
Such a showing is required to ensure public confidence in the judicial process. It is critical that
the public be able to review the factual basis of this Court's decisions and evaluate the Court's
rationale so that it may be confident that the Court is functioning as a neutral arbiter. Cf
McVeigh, 119 F.3d at 814.
In this analysis, the parties' agreement that a particular document is confidential is
irrelevant, as is the fact that a document was subject to a protective order during discovery.
Documents subject to discovery are not customarily filed with the Court and thus are not
available to the public. As to those documents which are filed with the Court, the parties are not
in a position to finally determine whether the public has an interest in them. Documents filedPage 6 Case 1:04-cv-01859-WYD-OES Document 32 Filed 07/08/2005 Page6of16
with the Court are presumptively public, and absent a showing of compelling reasons, the Court
will not seal them.
Here, several of the exhibits attached to Defendant's summary judgment motion were
filed under seal pursuant to a protective order. Defendant filed these documents under seal
without an accompanying motion to seal as required by D.C.COLO.LCivR 7.2. No compelling
reasons have been shown to file such documents under seal.
IT IS THEREFORE ORDERED that Defendant shall SHOW CAUSE on or before
April 15, 2005 why the seal should not be lifted on the exhibits attached to the summary
judgment motion. If no cause is shown, the seal on such documents will be lifted without further
notice.
Dated this Sth day of April, 2005.
BY THE COURT:
A fi ides A Kkéa Lt
Marcia S. Krieger
United States District JudgePage 7 Case 1:04-cv-01859-WYD-OES Document 32 Filed 07/08/2005 Page/7 of 16
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Case No. 01-MK-2089 (CBS)
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing Order to Show Cause why
Documents Should not be Unsealed was served on April / , 2005, by:
(X) delivery to:
Magistrate Judge Craig B. Shaffer
() e-mail to:
() facsimile to:
(X) depositing the same in the United States mail, postage prepaid, addressed to:
Sander N. Karp
Leavenworth & Karp
1011 Grand Ave.
PO Box 2030
Glenwood Springs, CO 81602
Colleen M. Rea
Stromberg Cleveland Crawford & Schmidt
4600 S. Ulster Street, Suite 300
Denver, CO 80237
GREGORY C. LANGHAM, Clerk
eputy ClerkPage 8 Case 1:04-cv-01859-WYD-OES Document 32 _ Filed 07/08/2005 Page 8of16
| ea,
IN THE UNITED STATES DISTRICT COURT UNTED stares pista? coun
FOR THE DISTRICT OF COLORADO DENVER, COLORADO
Honorable Marcia S. Krieger MAY 19 2005
SREGORY c. LANG
Case No. 01-MK-2089 (CBS) din ANGHAM
DEAN A. BRAMLET, M.D., . -
Plaintiff, RECE! fc
v. MAY 16 2005
LEAVENWORTH & KARPPC,
ASPEN VALLEY HOSPITAL DISTRICT,
Defendant.
ORDER REGARDING SEALED EXHIBITS
THIS MATTER comes before the Court on the parties' responses (#177, #179) to the
Court's Order (#175) directing the Defendant to show cause why several exhibits attached to its
summary judgment brief should not be unsealed. Having considered both responses, the Court
FINDS and CONCLUDES that:
The Defendant filed a motion for summary judgment on April 4, 2005. Pursuant to
a protective order, the Defendant filed under seal numerous exhibits attached to its summary
judgment brief (Exhibits A-5, A-7, A-10, A-11, A-12, A-35, A-36, A-37, A-38 and A-39).
Based thereon, the Court issued an Order (#175) directing the Defendant to show cause why the
documents should not be unsealed. Both parties have responded to the Order to Show Cause.
A. Standard of Review
The Supreme Court acknowledged a common-law right of access to judicial records in
Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978). This right is premised uponPage 9 Case 1:04-cv-01859-WYD-OES Document 32 _ Filed 07/08/2005 Page9of16
the recognition that public monitoring of the courts fosters important values such as respect for
the legal system. See In re Providence Journal Co., 293 F.3d 1, 9 (1st Cir. 2002). Judges have a
responsibility to avoid secrecy in court proceedings because "secret court proceedings are
anathema to a free society." M.M. v. Zavaras, 939 F. Supp. 799, 801 (D. Colo. 1996) (J. Kane).
There is a presumption that documents essential to the judicial process are to be available
to the public, but they may be sealed when the public's right of access is outweighed by interests
which favor nondisclosure. See United States v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997). It
is within the district court's discretion to determine whether a particular court document should
be sealed. See Nixon, 435 U.S at 599. Only in the rarest of cases is the sealing of documents
appropriate — for example, cases involving intensely personal issues such as abortion or birth
control, or cases pertaining to the welfare of abandoned or illegitimate children. See Doe v.
FBI, 218 F.R.D. 256, 259 (D. Colo. 2003).
In furtherance of the common law right of access to court records, the United States
District Court for the District of Colorado promulgated D.C.COLO.LCivR 7.2, which provides in
relevant part:
A. Scope. Upon motion and a showing of compelling reasons, a judicial
officer may order that:
1. all or a portion of papers and documents filed in a case shall be
sealed; or
2. all or a portion of court proceedings shall be closed to the public.
Such a showing is required to ensure public confidence in the judicial process. It is critical that
the public be able to review the factual basis of this Court's decisions and evaluate the Court's
rationale so that it may be confident that the Court is functioning as a neutral arbiter. CfPage 10 McVeigh, 119 F.3d at 814.
B. Exhibits A-5, A-10 and A-39
The Defendant does not oppose the unsealing of Exhibits A-5 and A-39. No party has
proffered reasons why Exhibit A-10 should remain under seal. Therefore, the Court will unseal
these three exhibits.
C. Exhibits A-7, A-11, A-35, A-36, A-37 and A-38
The Defendant contends that Exhibits A-7, A-11, A-35, A-36, A-37 and A-38 should
remain under seal because they consist of credentialing and peer review documents that are
confidential under the peer review privilege. In support of this contention, the Defendant relies
upon federal and state statutes pertaining to the confidentiality of peer review documents.
Federal Peer Review Privilege
To encourage peer review of physicians' performance, Congress enacted the Health Care
Quality Improvement Act ("the HCQIA").' Subchapter II of the HCQIA requires that certain
information be reported to the Secretary of Health and Human Services, in particular, reports on
medical malpractice payments, reports of sanctions imposed by Boards of Medical Examiners,
and reports of professional review actions taken by health care entities. See 42 U.S.C. §§ 11131
through 11134. Pursuant to 42 U.S.C. § 11137(a)(1), information reported under Subchapter II
of the HCQTA
is considered confidential and shall not be disclosed (other than to
the physician or practitioner involved) except with respect to
professional review activity, as necessary to carry out subsections
(b) and (c) of section 11135 of this title (as specified in regulations
by the Secretary), or in accordance with regulations of the
142 U.S.C. §§ 11101, er seg.Page 11 Secretary promulgated pursuant to subsection (a) of this section.
Nothing in this subsection shall prevent the disclosure of such
information by a party which is otherwise authorized, under
applicable State law, to make such disclosure. Information
reported under this subchapter that is in a form that does not permit
the identification of any particular health care entity, physician,
other health care practitioner, or patient shall not be considered
confidential... .
The confidentiality provided for in § 11137(b)(1) is referred to as the "peer review privilege."
See Wei v. Bodner, 127 F.R.D. 91, 99 (D.N.J. 1989). Such privilege applies only to information
which is actually reported to the Secretary of Health and Human Services under $§ 11131
through 11134. See id.; see also Nilavar v. Mercy Health System-Western Ohio, 210 F.R.D. 597,
602 (S.D. Ohio 2002); Marshall v. Spectrum Medical Group, 198 F.R.D. 1, 3 (D. Me. 2000).
The federal peer review privilege does not apply to Exhibit A-7. This exhibit is
deposition testimony from J. Steven Ayers, M.D. His testimony pertains to a questionnaire
which the Medical Staff Office asked him to complete about the Plaintiffs performance and a
conversation he had with someone at the Palms of Pasadena Hospital. Nothing in his testimony
indicates that such information was reported to the Secretary of Health and Human Services.
The federal peer review privilege also does not apply to Exhibits A-11, A-35, A-36, A-
37, or A-38. Exhibit A-11 is a letter from a hospital administrator to the Plaintiff. Exhibit A-35
consists of three written communications between various individuals. Exhibit A-36 is a release
statement signed by the Plaintiff in connection with his application for appointment to the
Medical Staff of Aspen Valley Hospital. Exhibit A-37 consists of correspondence pertaining to
the Plaintiffs application for admission to the Medical Staff of Palms of Pasadena Hospital, a
consent form signed by the Plaintiff pertaining to such application, and an uncompleted referencePage 12 request form. Exhibit A-38 is a completed version of the reference request form in Exhibit A-37.
None of these exhibits make any reference to information reported to the Secretary of Health and
Human Services in accordance with the HCQIA.
State Peer Review Privilege
Like the HCQIA, the Colorado Peer Review Act? ("the CPRA") promotes peer review of
physicians' performance. To further this goal, it authorizes the Board of Medical Examiners to
use professional review committees and governing boards to evaluate physicians' professional
conduct and the quality and appropriateness of patient care provided by any licensed physician.
See §§ 12-36.5-102(3) & 12-36.5-103(1), C.R.S. "All proceedings, recommendations, records,
and reports involving professional review committees or governing boards shall be confidential."
§ 12-36.5-104(13), C.R.S. Pursuant to § 12-36.5-102(4), C.R.S., "records" are defined as:
any and all written or verbal communications by any person,
any member of an investigative body, or any professional review
committee or governing board, or the staff thereof, arising from
any activities of a professional review committee authorized by
this article, including the complaint, response, correspondence
related thereto, recordings or transcripts of proceedings, minutes,
formal recommendations, decisions, exhibits, and other similar
items or documents typically constituting the records of
administrative proceedings.
Therefore, the CPRA renders more documents and communications to be confidential than the
HCQIA. For purposes of this Order, the Court will refer to this confidentiality requirement as the
state peer review privilege.
The state peer review privilege applies to Exhibit A-7. It consists of Dr. Ayers' verbal
communications which arise from his peer review activities in evaluating the Plaintiff's
2 §§ 12-36.5-101, CRS., et seg.Page 13 professional conduct. Therefore, under Colorado law, Dr. Ayers' testimony is confidential.
The state peer review privilege does not apply to Exhibit A-11. There is nothing in this
letter which indicates that it arises from any activities of a professional review committee. It
does not pertain to the Plaintiffs professional conduct or the quality and appropriateness of
patient care he provided. Instead, the letter pertains only to residency requirements of the Aspen
Valley Hospital.
The state peer review privilege does not apply to Exhibit A-35. There is no indication
that the three communications comprising this exhibit arise from the activities of a professional
review committee. The first communication consists of a request for information needed to
complete the Plaintiffs medical staff application which he submitted to the East Pasco Medical
Center. The second communication is a letter from the Pasco Regional Medical Center
requesting further information in connection with the Plaintiff's application for membership and
privileges. The third communication is a letter from Wuesthoff Health Systems declining to
offer the Plaintiff a postition because his qualifications did not match the position. None of these
communications address the Plaintiff's professional conduct or the quality of health care he has
provided.
The state peer review privilege does not apply to Exhibit A-36. It is nothing more than a
release statement signed by the Plaintiff. Nothing in this statement indicates that it arises from
any activities of a professional review committee.
The state peer review privilege does not apply to Exhibit A-37, but it does apply to
Exhibit A-38. Exhibit A-37 is simply a request for information made by the Palms Hospital of
Pasadena to the Aspen Valley Hospital which is accompanied by a release form signed by thePage 14 Plaintiff and a blank questionnaire. However, Exhibit A-38 is the same questionnaire completed
by Dr. Ayers' in connection with his review of Plaintiff's professional conduct and medical
capabilities. Therefore, Exhibit A-38 is confidential under Colorado law.
The Court's determination that Exhibits A-7 and A-38 are confidential under Colorado
law is not binding on this Court. However, the fact that Colorado treats these exhibits as
confidential persuades the Court that there are compelling reasons to maintain the seal on both
exhibits.
D. Exhibit A-12
The Plaintiff contends that Exhibit A-12, which consists of his and his wife's joint tax
returns for 1998 through 2000, should remain under seal because it includes information
regarding his wife's earnings and finances. He requests, in the alternative, that he be allowed to
redact his wife's financial information from the tax returns.
Because the Plaintiff's wife is not a party to this action, her financial information is not
relevant. Therefore, the Court will allow the Plaintiff to substitute redacted tax returns for those
in Exhibit A-12, following which the Court will unseal Exhibit A-12. Because Exhibit A-12 is
an exhibit to a motion filed by the Defendant, the Plaintiff shall confer with the Defendant prior
to filing redacted tax returns with the Court.
IT IS THEREFORE ORDERED that:
(1) The Order to Show Cause (#175) is DISCHARGED.
(2) The Clerk of Court shall promptly lift the seal on Exhibits A-5, A-10, A-11, A-35,
A-36, A-37 and A-39 to the Defendant's summary judgment brief (#172).
(3) Exhibits A-7 and A-38 shall remain under seal.Page 15 (4)
(5)
(6)
On or before May 25, 2005, the Plaintiff may substitute a redacted version of
Exhibit A-12 which omits reference to his wife's financial information. If the
Plaintiff files such redacted exhibit, he shall also file with the Court a separate
pleading which certifies that he has conferred with the Defendant regarding the
redactions and that the Defendant agrees that the only information which has been
redacted is the Plaintiffs wife's fmancial information.
If the Plaintiff files a redacted Exhibit A-12, the Clerk of Court shall substitute
such redacted Exhibit A-12 for the original Exhibit A-12 filed by the Defendant
with its summary judgment brief (#172) and shall remove the original Exhibit A-
from the Court file and provide it to the Plaintiff.
On June 1, 2005, the Clerk of Court shall lift the seal on Exhibit A-12 to the
Defendant's summary judgment brief (#172).
Dated this // 3,5 of May, 2005.
BY THE COURT:
“Aleta. A Kies,
i
Marcia S. Krieger
United States District JudgePage 16 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Case No. 01-MK-2089 (CBS)
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing Order Regarding Sealed Exhibits
was served on May_/| #, 2005, by:
(X) delivery to:
Magistrate Judge Craig B. Shaffer
() e-mail to:
() facsimile to:
(X) - depositing the same in the United States mail, postage prepaid, addressed to:
Sander N. Karp
Leavenworth & Karp
1011 Grand Ave.
PO Box 2030
Glenwood Springs, CO 81602
Colleen M. Rea
Ford & Harrison LLP
1675 Broadway, Suite 2150
Denver, CO 80202
GREGORY C. LANGHAM, Clerk
LA
f Deputy Clerk
PDF Page 1
PlainSite Cover Page
PDF Page 2
Case 1:04-cv-01859-WYD-OES Document 32 _ Filed 07/08/2005 Page 1 of 16
IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLORADO
Civil Action No. 04-cv-1859-WYD-OES
ERIKA SMIDDY,
Plaintiff,
Vv.
ASPEN VALLEY HOSPITAL DISTRICT,
Defendant.
PLAINTIFF’S REPLY IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL
COMES NOW the Plaintiff, Erika Smiddy, by and through her attorneys,
Leavenworth & Karp, P.C., and replies as follows:
1. Plaintiff has already addressed many of the issues raised by Defendant in
its Response.
2. Defendant argues that the requested information and documents have been
fully responded to by Defendant. Plaintiff here references the Court to the Motion.
3. The Defendant argues that the materials requested are protected by the
“peer review” privilege. The records and information sought do not deal with the practice
of medicine but relate to employment actions by AVH and Dr. Gerson. They are not
privileged. See the recent decision of Judge Krieger in another employment case, Bramlet
v. AVH, D. Colo. 01-MK-2089 (CBS), attached as Exhibits 1 and 2. Exhibit 1 is submitted
PDF Page 3
Case 1:04-cv-01859-WYD-OES Document 32 _ Filed 07/08/2005 Page 2of16
to give context to the subsequent Order of Judge Krieger, Exhibit 2, wherein she discusses
the privilege. Although the issue before the Court was whether to seal certain documents,
the discussion of the peer review privilege is helpful.
4. We are not here seeking information about patient care, nor about Gerson’s
“professional conduct.” Therefore, even if the Court were to recognize such a general
privilege, it would not cover the information and documents sought by Plaintiff. Those
documents relate to the actions of Dr. Gerson as a “supervisor” of the Plaintiff and in an
employment context. Defendant should not be allowed to shield the materials by referring
the matter to the MEC.
5. The “deliberative process privilege” is inapplicable. In civil rights actions, like
this case, courts have consistently held that the public policy expressed in those statutes
outweighs this privilege. Memorial Hospital v. Shabur, 664 F.2d 1058 ( 7" Cir. 1981)(
Confidential medical disciplinary proceedings required to be disclosed in federal anti-trust
action alleging conspiracy); Hinsdale v. City of Liberal, Ks., 1997 WL 537314, *1 (D.
Kan.)(Privilege is outweighed by interest in disclosure where case based on federal civil
rights acts). In addition, the privilege, which is merely a qualified one, should only be
invoked where communications are designed to directly contribute to the formulation of
important public policy. Sofo v. City of Concord, 162 FRD 603, 612-13 (ND Cal. 1995).
“Rountine operating decisions cannot be transformed into public policy at higher levels of
government just because they are made at public institutions.”
PDF Page 4
Case 1:04-cv-01859-WYD-OES Document 32 _ Filed 07/08/2005 Page 3of 16
Scott v. Bd. of City of East Orange, 219 FRD 333, 339 (D.N.J. 2004). Nothing requested
by Plaintiff goes to the creation of public policy of the Defendant.
LEAVENWORTH & KARP, P.C.
Attorneys for Plaintiff
By /S/* Sander N. Karp
Sander N. Karp, 1088
201 14" Street, Suite 200
PO Drawer 2030
Glenwood Springs, CO 81602
(970) 945-2261
snk@lklawfirm.com
CERTIFICATE OF SERVICE
| hereby certify that on this 8" day of July, 2005, | electronically served the forgoing
PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO COMPEL with the Clerk of the
Court through CM-ECF system which will send notification to the following e-mail
address:
Catherine A. Tallerico, Esq.
Fowler Schimberg & Flanagan, P.C.
1640 Grant Street, Suite 150
Denver, CO 80203
c_tallerico@fsf-law.com
/S/* Erika Watkins
PDF Page 5
Case 1:04-cv-01859-WYD-OES Document 32 _ Filed 07/08/2005 Page4of16
- RECEIVED
IN THE UNITED STATES DISTRICT COURT APR 08 2005
FOR THE DISTRICT OF COLORADO
Honorable Marcia S. Krieger LEAVENWORTH & KARP PC
: y hime
Case No. 01-MK-2089 (CBS)
DEAN A. BRAMLET, M.D., FILED
UNITED STATES DISTRICT COURT
DENVER, COLORADO
Plaintiff, a
APR O7 2005
¥.
GREGORY C. LANGHAM
ASPEN VALLEY HOSPITAL DISTRICT, MAL CLERK
Defendant.
ORDER TO SHOW CAUSE WHY DOCUMENTS SHOULD NOT BE UNSEALED
THIS MATTER comes before the Court on Defendant's Motion for Summary Judgment
filed April 4, 2005. Numerous exhibits to stich motion were filed under seal pursuant to a
protective order. The Court
FINDS and CONCLUDES that:
The Supreme Court acknowledged a common-law right of access to judicial records in
Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978). This right is premised upon
the recognition that public monitoring of the courts fosters important values such as respect for
the legal system. See Jn re Providence Journal Co., 293 F.3d 1, 9 (Ist Cir. 2002). Judges have a
responsibility to avoid secrecy in court proceedings because "secret court proceedings are
anathema to a free society.” M.M. v. Zavaras, 939 F. Supp. 799, 801 (D. Colo. 1996) (J. Kane).
There is a presumption that documents essential to the judicial process are to be available
to the public, but they may be sealed when the public's right of access is outweighed by interests
1
PDF Page 6
Case 1:04-cv-01859-WYD-OES Document 32 Filed 07/08/2005 Page5of16
which favor nondisclosure. See United States v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997). It
is within the district court's discretion to determine whether a particular court document should
be sealed. See Nixon, 435 U.S at 599. Only in the rarest of cases is the sealing of documents
appropriate — for example, cases involving intensely personal issues such as abortion or birth
control, or cases pertaining to the welfare of abandoned or illegitimate children. See Doe v.
F.B.1., 218 F.R.D. 256, 259 (D. Colo. 2003).
In furtherance of the common law right of access to court records, the United States
District Court for the District of Colorado promulgated D.C.COLO.LCivR 7.2, which provides in
relevant part:
A. Scope. Upon motion and a showing of compelling reasons, a judicial
officer may order that:
1. all or a portion of papers and documents filed in a case shall be
sealed; or
2. all or a portion of court proceedings shall be closed to the public.
Such a showing is required to ensure public confidence in the judicial process. It is critical that
the public be able to review the factual basis of this Court's decisions and evaluate the Court's
rationale so that it may be confident that the Court is functioning as a neutral arbiter. Cf
McVeigh, 119 F.3d at 814.
In this analysis, the parties' agreement that a particular document is confidential is
irrelevant, as is the fact that a document was subject to a protective order during discovery.
Documents subject to discovery are not customarily filed with the Court and thus are not
available to the public. As to those documents which are filed with the Court, the parties are not
in a position to finally determine whether the public has an interest in them. Documents filed
PDF Page 7
Case 1:04-cv-01859-WYD-OES Document 32 Filed 07/08/2005 Page6of16
with the Court are presumptively public, and absent a showing of compelling reasons, the Court
will not seal them.
Here, several of the exhibits attached to Defendant's summary judgment motion were
filed under seal pursuant to a protective order. Defendant filed these documents under seal
without an accompanying motion to seal as required by D.C.COLO.LCivR 7.2. No compelling
reasons have been shown to file such documents under seal.
IT IS THEREFORE ORDERED that Defendant shall SHOW CAUSE on or before
April 15, 2005 why the seal should not be lifted on the exhibits attached to the summary
judgment motion. If no cause is shown, the seal on such documents will be lifted without further
notice.
Dated this Sth day of April, 2005.
BY THE COURT:
A fi ides A Kkéa Lt
Marcia S. Krieger
United States District Judge
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Case No. 01-MK-2089 (CBS)
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing Order to Show Cause why
Documents Should not be Unsealed was served on April / , 2005, by:
(X) delivery to:
Magistrate Judge Craig B. Shaffer
() e-mail to:
() facsimile to:
(X) depositing the same in the United States mail, postage prepaid, addressed to:
Sander N. Karp
Leavenworth & Karp
1011 Grand Ave.
PO Box 2030
Glenwood Springs, CO 81602
Colleen M. Rea
Stromberg Cleveland Crawford & Schmidt
4600 S. Ulster Street, Suite 300
Denver, CO 80237
GREGORY C. LANGHAM, Clerk
eputy Clerk
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| ea,
IN THE UNITED STATES DISTRICT COURT UNTED stares pista? coun
FOR THE DISTRICT OF COLORADO DENVER, COLORADO
Honorable Marcia S. Krieger MAY 19 2005
SREGORY c. LANG
Case No. 01-MK-2089 (CBS) din ANGHAM
DEAN A. BRAMLET, M.D., . -
Plaintiff, RECE! fc
v. MAY 16 2005
LEAVENWORTH & KARPPC,
ASPEN VALLEY HOSPITAL DISTRICT,
Defendant.
ORDER REGARDING SEALED EXHIBITS
THIS MATTER comes before the Court on the parties' responses (#177, #179) to the
Court's Order (#175) directing the Defendant to show cause why several exhibits attached to its
summary judgment brief should not be unsealed. Having considered both responses, the Court
FINDS and CONCLUDES that:
The Defendant filed a motion for summary judgment on April 4, 2005. Pursuant to
a protective order, the Defendant filed under seal numerous exhibits attached to its summary
judgment brief (Exhibits A-5, A-7, A-10, A-11, A-12, A-35, A-36, A-37, A-38 and A-39).
Based thereon, the Court issued an Order (#175) directing the Defendant to show cause why the
documents should not be unsealed. Both parties have responded to the Order to Show Cause.
A. Standard of Review
The Supreme Court acknowledged a common-law right of access to judicial records in
Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978). This right is premised upon
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the recognition that public monitoring of the courts fosters important values such as respect for
the legal system. See In re Providence Journal Co., 293 F.3d 1, 9 (1st Cir. 2002). Judges have a
responsibility to avoid secrecy in court proceedings because "secret court proceedings are
anathema to a free society." M.M. v. Zavaras, 939 F. Supp. 799, 801 (D. Colo. 1996) (J. Kane).
There is a presumption that documents essential to the judicial process are to be available
to the public, but they may be sealed when the public's right of access is outweighed by interests
which favor nondisclosure. See United States v. McVeigh, 119 F.3d 806, 811 (10th Cir. 1997). It
is within the district court's discretion to determine whether a particular court document should
be sealed. See Nixon, 435 U.S at 599. Only in the rarest of cases is the sealing of documents
appropriate — for example, cases involving intensely personal issues such as abortion or birth
control, or cases pertaining to the welfare of abandoned or illegitimate children. See Doe v.
FBI, 218 F.R.D. 256, 259 (D. Colo. 2003).
In furtherance of the common law right of access to court records, the United States
District Court for the District of Colorado promulgated D.C.COLO.LCivR 7.2, which provides in
relevant part:
A. Scope. Upon motion and a showing of compelling reasons, a judicial
officer may order that:
1. all or a portion of papers and documents filed in a case shall be
sealed; or
2. all or a portion of court proceedings shall be closed to the public.
Such a showing is required to ensure public confidence in the judicial process. It is critical that
the public be able to review the factual basis of this Court's decisions and evaluate the Court's
rationale so that it may be confident that the Court is functioning as a neutral arbiter. Cf
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McVeigh, 119 F.3d at 814.
B. Exhibits A-5, A-10 and A-39
The Defendant does not oppose the unsealing of Exhibits A-5 and A-39. No party has
proffered reasons why Exhibit A-10 should remain under seal. Therefore, the Court will unseal
these three exhibits.
C. Exhibits A-7, A-11, A-35, A-36, A-37 and A-38
The Defendant contends that Exhibits A-7, A-11, A-35, A-36, A-37 and A-38 should
remain under seal because they consist of credentialing and peer review documents that are
confidential under the peer review privilege. In support of this contention, the Defendant relies
upon federal and state statutes pertaining to the confidentiality of peer review documents.
Federal Peer Review Privilege
To encourage peer review of physicians' performance, Congress enacted the Health Care
Quality Improvement Act ("the HCQIA").' Subchapter II of the HCQIA requires that certain
information be reported to the Secretary of Health and Human Services, in particular, reports on
medical malpractice payments, reports of sanctions imposed by Boards of Medical Examiners,
and reports of professional review actions taken by health care entities. See 42 U.S.C. §§ 11131
through 11134. Pursuant to 42 U.S.C. § 11137(a)(1), information reported under Subchapter II
of the HCQTA
is considered confidential and shall not be disclosed (other than to
the physician or practitioner involved) except with respect to
professional review activity, as necessary to carry out subsections
(b) and (c) of section 11135 of this title (as specified in regulations
by the Secretary), or in accordance with regulations of the
142 U.S.C. §§ 11101, er seg.
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Secretary promulgated pursuant to subsection (a) of this section.
Nothing in this subsection shall prevent the disclosure of such
information by a party which is otherwise authorized, under
applicable State law, to make such disclosure. Information
reported under this subchapter that is in a form that does not permit
the identification of any particular health care entity, physician,
other health care practitioner, or patient shall not be considered
confidential... .
The confidentiality provided for in § 11137(b)(1) is referred to as the "peer review privilege."
See Wei v. Bodner, 127 F.R.D. 91, 99 (D.N.J. 1989). Such privilege applies only to information
which is actually reported to the Secretary of Health and Human Services under $§ 11131
through 11134. See id.; see also Nilavar v. Mercy Health System-Western Ohio, 210 F.R.D. 597,
602 (S.D. Ohio 2002); Marshall v. Spectrum Medical Group, 198 F.R.D. 1, 3 (D. Me. 2000).
The federal peer review privilege does not apply to Exhibit A-7. This exhibit is
deposition testimony from J. Steven Ayers, M.D. His testimony pertains to a questionnaire
which the Medical Staff Office asked him to complete about the Plaintiffs performance and a
conversation he had with someone at the Palms of Pasadena Hospital. Nothing in his testimony
indicates that such information was reported to the Secretary of Health and Human Services.
The federal peer review privilege also does not apply to Exhibits A-11, A-35, A-36, A-
37, or A-38. Exhibit A-11 is a letter from a hospital administrator to the Plaintiff. Exhibit A-35
consists of three written communications between various individuals. Exhibit A-36 is a release
statement signed by the Plaintiff in connection with his application for appointment to the
Medical Staff of Aspen Valley Hospital. Exhibit A-37 consists of correspondence pertaining to
the Plaintiffs application for admission to the Medical Staff of Palms of Pasadena Hospital, a
consent form signed by the Plaintiff pertaining to such application, and an uncompleted reference
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request form. Exhibit A-38 is a completed version of the reference request form in Exhibit A-37.
None of these exhibits make any reference to information reported to the Secretary of Health and
Human Services in accordance with the HCQIA.
State Peer Review Privilege
Like the HCQIA, the Colorado Peer Review Act? ("the CPRA") promotes peer review of
physicians' performance. To further this goal, it authorizes the Board of Medical Examiners to
use professional review committees and governing boards to evaluate physicians' professional
conduct and the quality and appropriateness of patient care provided by any licensed physician.
See §§ 12-36.5-102(3) & 12-36.5-103(1), C.R.S. "All proceedings, recommendations, records,
and reports involving professional review committees or governing boards shall be confidential."
§ 12-36.5-104(13), C.R.S. Pursuant to § 12-36.5-102(4), C.R.S., "records" are defined as:
any and all written or verbal communications by any person,
any member of an investigative body, or any professional review
committee or governing board, or the staff thereof, arising from
any activities of a professional review committee authorized by
this article, including the complaint, response, correspondence
related thereto, recordings or transcripts of proceedings, minutes,
formal recommendations, decisions, exhibits, and other similar
items or documents typically constituting the records of
administrative proceedings.
Therefore, the CPRA renders more documents and communications to be confidential than the
HCQIA. For purposes of this Order, the Court will refer to this confidentiality requirement as the
state peer review privilege.
The state peer review privilege applies to Exhibit A-7. It consists of Dr. Ayers' verbal
communications which arise from his peer review activities in evaluating the Plaintiff's
2 §§ 12-36.5-101, CRS., et seg.
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professional conduct. Therefore, under Colorado law, Dr. Ayers' testimony is confidential.
The state peer review privilege does not apply to Exhibit A-11. There is nothing in this
letter which indicates that it arises from any activities of a professional review committee. It
does not pertain to the Plaintiffs professional conduct or the quality and appropriateness of
patient care he provided. Instead, the letter pertains only to residency requirements of the Aspen
Valley Hospital.
The state peer review privilege does not apply to Exhibit A-35. There is no indication
that the three communications comprising this exhibit arise from the activities of a professional
review committee. The first communication consists of a request for information needed to
complete the Plaintiffs medical staff application which he submitted to the East Pasco Medical
Center. The second communication is a letter from the Pasco Regional Medical Center
requesting further information in connection with the Plaintiff's application for membership and
privileges. The third communication is a letter from Wuesthoff Health Systems declining to
offer the Plaintiff a postition because his qualifications did not match the position. None of these
communications address the Plaintiff's professional conduct or the quality of health care he has
provided.
The state peer review privilege does not apply to Exhibit A-36. It is nothing more than a
release statement signed by the Plaintiff. Nothing in this statement indicates that it arises from
any activities of a professional review committee.
The state peer review privilege does not apply to Exhibit A-37, but it does apply to
Exhibit A-38. Exhibit A-37 is simply a request for information made by the Palms Hospital of
Pasadena to the Aspen Valley Hospital which is accompanied by a release form signed by the
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Plaintiff and a blank questionnaire. However, Exhibit A-38 is the same questionnaire completed
by Dr. Ayers' in connection with his review of Plaintiff's professional conduct and medical
capabilities. Therefore, Exhibit A-38 is confidential under Colorado law.
The Court's determination that Exhibits A-7 and A-38 are confidential under Colorado
law is not binding on this Court. However, the fact that Colorado treats these exhibits as
confidential persuades the Court that there are compelling reasons to maintain the seal on both
exhibits.
D. Exhibit A-12
The Plaintiff contends that Exhibit A-12, which consists of his and his wife's joint tax
returns for 1998 through 2000, should remain under seal because it includes information
regarding his wife's earnings and finances. He requests, in the alternative, that he be allowed to
redact his wife's financial information from the tax returns.
Because the Plaintiff's wife is not a party to this action, her financial information is not
relevant. Therefore, the Court will allow the Plaintiff to substitute redacted tax returns for those
in Exhibit A-12, following which the Court will unseal Exhibit A-12. Because Exhibit A-12 is
an exhibit to a motion filed by the Defendant, the Plaintiff shall confer with the Defendant prior
to filing redacted tax returns with the Court.
IT IS THEREFORE ORDERED that:
(1) The Order to Show Cause (#175) is DISCHARGED.
(2) The Clerk of Court shall promptly lift the seal on Exhibits A-5, A-10, A-11, A-35,
A-36, A-37 and A-39 to the Defendant's summary judgment brief (#172).
(3) Exhibits A-7 and A-38 shall remain under seal.
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(4)
(5)
(6)
On or before May 25, 2005, the Plaintiff may substitute a redacted version of
Exhibit A-12 which omits reference to his wife's financial information. If the
Plaintiff files such redacted exhibit, he shall also file with the Court a separate
pleading which certifies that he has conferred with the Defendant regarding the
redactions and that the Defendant agrees that the only information which has been
redacted is the Plaintiffs wife's fmancial information.
If the Plaintiff files a redacted Exhibit A-12, the Clerk of Court shall substitute
such redacted Exhibit A-12 for the original Exhibit A-12 filed by the Defendant
with its summary judgment brief (#172) and shall remove the original Exhibit A-
12 from the Court file and provide it to the Plaintiff.
On June 1, 2005, the Clerk of Court shall lift the seal on Exhibit A-12 to the
Defendant's summary judgment brief (#172).
Dated this // 3,5 of May, 2005.
BY THE COURT:
“Aleta. A Kies,
i
Marcia S. Krieger
United States District Judge
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Case No. 01-MK-2089 (CBS)
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing Order Regarding Sealed Exhibits
was served on May_/| #, 2005, by:
(X) delivery to:
Magistrate Judge Craig B. Shaffer
() e-mail to:
() facsimile to:
(X) - depositing the same in the United States mail, postage prepaid, addressed to:
Sander N. Karp
Leavenworth & Karp
1011 Grand Ave.
PO Box 2030
Glenwood Springs, CO 81602
Colleen M. Rea
Ford & Harrison LLP
1675 Broadway, Suite 2150
Denver, CO 80202
GREGORY C. LANGHAM, Clerk
LA
f Deputy Clerk
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