Lawson v. Praxair, Inc.
Lawson v. Praxair, Inc.
2020 WL 7227253 (D.N.J. 2020)
January 16, 2020
Arpert, Douglas E., United States Magistrate Judge
Summary
The Special Master ordered an in camera review of documents withheld by the University Medical Center under the Patient Safety Act, after Praxair challenged their relevance. The Court affirmed the Special Master's decision, but ordered the parties to minimize the number of documents to be reviewed and apportioned the costs based on the findings of the Special Master. UMC was directed to submit the documents for review by a certain date.
Additional Decisions
AGNES LAWSON, Plaintiff(s),
v.
PRAXAIR, INC., et al. Defendant(s)
v.
PRAXAIR, INC., et al. Defendant(s)
Civil Action No. 16-2435(BRM)(DEA)
United States District Court, D. New Jersey
Signed January 16, 2020
Counsel
Christopher D. Hinderliter, Thomas W. Sheridan, Francesco Mangiaracina, Sheridan & Murray, LLC, Fort Washington, PA, for Plaintiff(s).Georgette Castner, Paul H. Zoubek, Montgomery Mccracken Walker & Rhoads LLP, Cherry Hill, NJ, for Defendant(s).
Arpert, Douglas E., United States Magistrate Judge
ORDER
*1 This matter comes before the Court by way of an appeal by Third Party Defendant University Medical Center of Princeton at Plainsboro (“UMC”) from that part of the November 5, 2019 Order of the Special Master requiring UMC to submit certain documents to the Special Master for in camera review. See ECF No. 252. At issue is paragraph 6 of the Special Master's Order, which relates to an application by Defendants Praxair, Inc., Praxair Distribution, Inc., and Praxair Distribution Mid-Atlantic, LLC (collectively, “Praxair”) challenging documents that UMC has withheld from discovery pursuant to the Patient Safety Act, N.J.S.A. §§ 26:2H-12.23 to 26:2H-12.25c (the “Act”). The Special Master granted Praxair's application in part and ordered UMC to submit for in camera review all documents withheld pursuant to the Act in order “to determine whether said privilege applies in whole or in part.” ECF No. 252 at ¶ 6. UMC does not appear to object to the Special Master's conclusion that an in camera review of at least some of the withheld documents is appropriate,[1] rather, UMC objects to the Special Master's determination that all documents withheld under the Act (618 in total) must be submitted for review. Pursuant to the Order appointing the Special Master, the Court reviews the decision of the Special Master de novo. See ECF No. 199 (“Review of any recommendations of the Special Master shall be de novo by the District Court Judge or Magistrate Judge assigned to this action.”).
Under the Act, when a health care facility suffers a “serious preventable adverse event,” New Jersey law provides statutory protection against the disclosure of documents generated as a part of a subsequent self-critical analysis:
[a]ny documents, materials, or information developed by a health care facility as part of a process of self-critical analysis conducted pursuant to subsection b. of this section [(codified as N.J.S.A. 26:2H-12.25(b))] concerning preventable events, near-misses and adverse events, including serious preventable adverse events, and any document or oral statement that constitutes the disclosure provided to a patient or the patient's family member or guardian pursuant to subsection d. of this section [(codified as N.J.S.A. 26:2H-12.25(d))], shall not be: subject to discovery or admissible as evidence or otherwise disclosed in any civil, criminal, or administrative action or proceeding.
Brugaletta v. Garcia, 234 N.J. 225, 243 (2018) (quoting N.J.S.A. 26:2H-12.25(g)(1)). As set forth in its privilege log, UMC has withheld documents from discovery based on the Act. In its application to the Special Master, Praxair argued that UMC “is asserting the privilege impermissibly” over “a number of documents” and was “withhold[ing] information that is not and was not intended to be protected by the Act.” ECF No. 225 at 7. By way of example, Praxair pointed to a ledger prepared by Turner Construction, an email authored by an outside consultant, and several handwritten notes. Praxair requested that the Special Master review in camera the documents over which UMC has asserted a privilege under the Act “to determine whether the privilege is being properly asserted.” Id. The Special Master granted that request.
*2 As noted above, UMC does not object to the Special Master's decision to conduct an in camera review. Rather, UMC argues that the scope of the review ordered by the Special Master is overbroad. UMC maintains that the Special Master erred in ordering a review of all documents withheld pursuant to the Act, arguing that Praxair did not establish a factual basis to justify such a review. At most, UMC contends that the Special Master should review only the example documents Praxair pointed to in its application to the Special Master. UMC also argues that the Special Master's Order should be reversed because the documents as to which it has claimed a privilege are irrelevant to Praxair's claims. Finally, UMC contends that if the Special Master conducts the review at issue, Praxair should bear the cost.
The Court finds that Praxair has identified certain documents and facts sufficient to justify an in camera review of the withheld documents. It is not unreasonable, based on the example documents identified by Praxair, for the Special Master to review all documents being withheld under the Act to determine whether UMC is appropriately applying the privilege with respect to the rest of the documents withheld. The Court therefore affirms the Special Master's Order in that respect. Furthermore, the Court is not persuaded by UMC's relevance argument, as these documents have been identified in a privilege log as being otherwise subject to production in discovery.
The Court is mindful that there is a cost associated with the in camera review. It will, therefore, order the parties to meet and confer to attempt to minimize the number of documents for the Special Master to review. Further, the Court notes that while the Order appointing the Special Master directs that the costs be apportioned “equally among the parties,” the Court retained the right “to shift all or part of the charges to one party” for good cause. ECF No. 199. The Court finds good cause here for the parties to bear the cost of the in camera review in proportion to the ultimate findings of the Special Master. That is, if the Special Master finds that 100% of the documents reviewed have been properly withheld as privileged, then Praxair will bear 100% of the cost of the review. To the extent that the Special Master finds any documents have been improperly withheld, UMC will bear the cost of the review in proportion to the percentage of materials deemed improperly withheld.[2] Accordingly,
IT IS on this 15th day of January 2020
ORDERED that that portion of the November 5, 2019 Order of the Special Master appealed from is hereby AFFIRMED; and it is further
ORDERED that UMC is to submit the appropriate documents to the Special Master for review no later than January 27, 2020; and it is further
ORDERED that the parties are directed to meet and confer prior to January 27th and attempt to narrow the scope of the documents to be submitted for review; and it is further
ORDERED that the Special Master is to apportion the cost of the in camera review between the parties as described above; and it is further
ORDERED that the Clerk is to terminate the motion at ECF No. 260.
Footnotes
Before the Special Master clarified the scope of his ruling, UMC advised the Court that it was preserving its right to appeal only in the event the “Special Master conclude[d] that all documents withheld pursuant to the Patient Safety Act be submitted for an in camera review.” ECF No. 260-1 at 2 (emphasis supplied).
The relevant percentage is to be page-based; i.e., the total number of pages comprising the documents deemed improperly withheld as compared to the total number of pages reviewed.