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Billups v. Penn State Milton S. Hershey Medical Center

United States District Court, M.D. Pennsylvania

April 2, 2014

JAMEL BILLUPS, et al. Plaintiffs
v.
PENN STATE MILTON S. HERSHEY MEDICAL CENTER, et al. Defendants.

MEMORANDUM

THOMAS M. BLEWITT, Magistrate Judge.

I. Background

On September 27, 2011, Plaintiffs Jamel Billups, Jacqueline Rosario, T.R., a minor, and L.B., a minor (collectively "Plaintiffs") brought this action pursuant to 42 U.S.C. § 1983, against three groups of Defendants. (Doc. 1). The first group of Defendants (the Hershey Defendants) included the Milton S. Hershey Medical Center ("HMC"), and four of its employees: Dr. Mark S. Dias, a neurosurgeon and co-director of the Medical Center's Child Safety Team; Dr. Kathryn R. Crowell, who is a co-director of the Medical Center Child Safety Team; Dr. Arabinda K. Choudhary, the directory of the pediatric neuroradiology department and a member of the Medical Center Child Safety Team; and, Dr. Kathleen D. Eggli, the chair of the radiology department. The second group of Defendants (the Franklin County Defendants) included Franklin County and several county officials and employees: Matthew Fogel, Franklin County District Attorney; Lauren Sulcove, Franklin County Assistant District Attorney; and, Tammie Lay. Dawn Watson, Kari Coccagna, and Minnie Turner, employees of the Franklin County Office of Children, Youth, and Families ("CYF"). The third group of Defendants (the "Chambersburg Defendants") included the Chambersburg Borough and its employee, Detective William C. Frisby, Jr.

Plaintiffs' complaint arose from a series of events which began when his infant daughter, L.B., was presented to HMC with difficulty breathing, an intracranial hemorrhage, and sixteen rib fractures. Criminal charges were brought against Mr. Billups based on allegations of suspected child abuse. Defendant Crowell testified for the prosecution at Mr. Billups preliminary hearing. Dr. Dias prepared a report for the prosecution at the trial. Drs. Dias, Crowell, and Choudhary testified for the prosecution at trial. This civil action was initiated by the Plaintiffs after dependency was terminated, and Mr. Billups was acquitted of all criminal charges (Doc. 1, ¶ 77).

On May 13, 2012, the Plaintiffs filed an amended complaint. (Doc. 59). Plaintiffs claims in the amended complaint relate to the circumstances surrounding the temporary removal of minors L.B. and T.R. from the custody of Mr. Billups and Ms. Rosario, and alleges that the HMC Defendants, and the Franklin County Defendants violated the Plaintiff's constitutional rights.

During the pendency of this action several Defendants and claims were dismissed, such that the only remaining Defendants are: Franklin County, Kari Coccagna, and Minnie Tuner ("Franklin County Defendants"); and Doctors Mark S. Dias, Kathryn R. Crowell, and Arabinda K. Choudhary ("Hershey Defendants"). The only remaining claim against the Hershey Defendants is that Plaintiffs were denied substantive due process when the doctors allegedly misrepresented that all potential non-traumatic causes for L.B.'s injuries had been investigated and were ruled out (Count IA).

On January 17, 2013, Plaintiffs served a request for the production of documents on the Hershey Defendants. On March 11, 2013, Defendants responded by objecting to some requests, and by producing in excess of 1, 000 pages of documents they believed to be responsive to Plaintiffs' request. Defendants' response contained only medical records, and not a single email or other communication by Defendants about L.B. When made aware of this deficiency, the Defendants produced several email communications on March 21, 2013, and provided a privilege log on April 1, 2013.

On April 2, 2013, Plaintiffs filed a Motion to Compel and attached exhibits, Exs. A-1, together with their supporting brief. (Docs. 91, 92). On April 17, 2013, Defendants filed their brief in opposition. (Doc. 99). On April 29, 2013, a telephonic discovery conference was held before the undersigned magistrate judge to address several outstanding issues of discovery, including the motion to compel. ( See Doc. 102). Defendants were granted the opportunity to submit a supplemental brief in opposition, which was filed on May 9, 2013. (Doc. 105). On August 7, 2013, we issued a Memorandum and Order granting in part and denying in part the motion to compel. (Docs. 106 & 107). The Order provided as follows:

1. Plaintiffs' motion to compel is denied with respect to Bates Nos. 1115-1120, 1149-1150, and 1172-1223.
2. Plaintiffs' motion to compel with respect to Bates Nos. 1121-1134, 1140-1148, and 1151-1171 is granted, the Defendants shall either come forward with a federally recognized privilege, move for a protective order, or produce the above-mentioned documents not later than fourteen (14) days from the date of this Order.
3. To the extent that they are not addressed above, Plaintiffs' requests for production one through thirteen identified in their proposed order (Doc. 91) are denied without prejudice. (Doc. 107).

On August 21, 2013, the Hershey Defendants filed a supplemental brief pursuant to the August 7, 2013 Order of this Court. (Doc. 108). On that same date, the Hershey Defendants filed a motion for a protective order and brief in support of same. (Docs. 109 & 110). On September 1, 2013, Plaintiffs filed a brief in opposition to the Hershey Defendants motion for a protective order and on September 16, 2013, the Hershey Defendants filed a reply brief (Docs. 111 & 115).

On September 4, 2013, Plaintiffs filed a motion to compel the Hershey Defendants documents withheld and identified in Defendants' privilege log dated July 10, 2013 and brief in support of same. (Docs. 112, 113). On September 18, 2013, the Hershey Defendants filed a brief in opposition to Plaintiffs' motion. (Doc. 116). On September 20, 2013, Plaintiffs filed a reply brief. (Doc. 117). On October 7, 2013, after a telephone conference was held, we granted the Hershey Defendants motion for a protective order in part. ( See Doc. 121).

After correspondence and conference with the Court regarding the parties attempt to resolve any remaining issues regarding the documents identified on Defendants' July 10, 2013 privilege log as well as documents identified on Defendants' April 1, 2013 privilege log, an additional telephone conference was held on December 16, 2013. (Docs. 124-126). We ordered the Plaintiffs to provide a brief to the Court outlining the remaining discovery issues and Defendants to file a response thereto. (Doc. 128). On December 21, 2013, Plaintiffs outlined the remaining discovery issue regarding the Defendants' privilege log and on December 30, 2013, Defendants responded. (Docs. 129, 131).

Thus, Plaintiffs' motion to compel the remaining discovery issues regarding Defendants July 10, 2013 privilege log has been fully briefed, and is now ripe for disposition. (Doc. 112).

II. Discussion.

Plaintiffs' motion (Doc. 112) is filed under Rule 37(a) of the Federal Rules of Civil Procedure. In their motion, Plaintiffs request that the court compel the Hershey Defendants to produce specific email communications between the Hershey Defendants and some individuals who are not parties to this litigation. Their request seeks the production of emails identified in the Hershey Defendants' July 10, 2013 privilege log.

On January 17, 2013, Plaintiffs served a request for production on the Hershey Defendants. Plaintiffs January 2013 request sought four broad categories of documents from the Defendants:

1. Every document in the possession of Defendants including but not limited to emails, notes, reports, records, medical records, interoffice communication of any type, relevant to Leiana Billups, Jamel Billups and Jacqueline Rosario
2. All documents relevant to training of any Defendant who was/is a part of the Penn State Hershey Medical Center Child Safety Team for performance of duties related to the Penn State Hershey Medical Center Child Safety Team.
3. All documents relevant to the employment of Defendants with Penn State Hershey Medical Center including employment contract, employee file and any complaints ...

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