*1 This matter now comes before the Court on the following: (1) the Praxair Defendants’ appeal from the decision of the Special Master dated March 19, 2020, which found that virtually all of the documents submitted for in camera review by Third Party Defendant University Medical Center of Princeton at Plainsboro (“UMCPP”) were protected from discovery under the New Jersey Patient Safety Act (“NJPSA”), N.J.S.A. 26:2H-12.23 to -12.25c; and (2) UMCPP's partial appeal from that same decision objecting to the Special Master's finding that the single-page document bates-stamped UMCPP-E-07894 does not fall within the protection of the NJPSA. The Court decides the matter without oral argument pursuant to Local Civil Rule 78.1. For the reasons below, the decision of the Special Master is affirmed in part and reversed in part.

I. BACKGROUND

The Court writes for the parties and counsel all of whom are familiar with the facts and background of the case, and as such, only facts pertinent to the instant appeals are summarized here. Plaintiff Agnes Lawson brought this action seeking damages for injuries sustained when a portable oxygen cylinder exploded at the hospital where Plaintiff worked as a nurse. According to the Complaint, Plaintiff was working in a patient room in which the oxygen cylinder was upright on the floor. It is alleged that the cylinder was knocked over and exploded, leaving Plaintiff seriously injured. ECF No. 1.

Third-Party Plaintiffs Praxair Distribution Mid Atlantic and Praxair Distribution Inc. (together, “Praxair”) commenced a third-party action against UMCPP for breach of contract and contractual indemnification based on a Product Supply Agreement executed by UMCPP with respect to the distribution of the oxygen cylinder product to the hospital. The instant appeals arise from a dispute between Praxair and UMCPP related to documents UMCPP withheld from discovery based on the NJPSA. Praxair first raised the issue by way of a letter to the Special Master on September 23, 2019, in which Praxair requested that the Special Master “conduct an in camera review of the documents UMCPP claims are privileged pursuant to the Patient Safety Act to determine whether the privilege is being properly asserted under the Act.” ECF No. 225.

On November 5, 2019, after the matter was fully briefed before the Special Master, the Special Master ordered UMCPP to produce the “disputed documents” withheld pursuant to the NJPSA for in camera review. A disagreement arose between the parties as to the scope of the “disputed documents”. It was Praxair's contention that all of the documents being withheld pursuant to the NJPSA should be produced for in camera review, while UMCPP argued that this phrase in the Special Master's Order referred to a subset of the documents. When the Special Master clarified that it was his intent to review all documents over which UMCPP asserted a privilege under the NJPSA, UMCPP appealed, arguing such a review would involve thousands of pages of documents.

*2 By Order dated January 16, 2020, this Court affirmed the Special Master's decision that UMCPP produce for in camera review all documents withheld from discovery pursuant to the NJPSA. ECF No. 283. The Court further ordered the parties “to meet and confer to attempt to minimize the number of documents for the Special Master to review.” Id. at 3. In addition, the Court ordered that the parties would “bear the cost of the in camera review in proportion to the ultimate findings of the Special Master.” Id. at 3-4. Thereafter, consistent with the intent of the Court's Order that the parties minimize the number of documents reviewed, UMCPP withdrew its privilege designation as to a number of documents. After reviewing over 2,000 pages of documents, the Special Master found that 2,009 pages were protected by the PSA and that 33 pages should be produced. ECF No. 300 at 2-3. As a result, the Special Master ordered Praxair to bear 98% of the cost associated with the in camera review. These appeals followed.

II. ANALYSIS

In relevant part, Federal Rule of Civil Procedure 53 states:

Fed. R. Civ. P. 53(f). The Court reviews the findings and conclusions of the Special Master accordingly.

Under the NJPSA, 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:

Brugaletta v. Garcia, 234 N.J. 225, 243 (2018) (quoting N.J.S.A. 26:2H-12.25(g)(1)). Courts apply the privilege only where the proponent of the privilege strictly complied with statutory requirements such as “developing a patient safety plan, which must include a patient safety committee, ongoing patient safety training for facility personnel, and processes for conducting ongoing analysis of ‘evidence-based patient safety practices’ and ‘near misses [or] serious preventable adverse events and adverse events.’ ” C.A. ex rel. Applegrad v. Bentolila, 219 N.J. 449, 463 (2014) (quoting N.J.S.A.. § 26:2h-12:25(b)).

Praxair's primary argument on this appeal is that UMCPP cannot withhold any documents from discovery pursuant to the NJPSA because the NJPSA does not apply in this products liability case as a matter of law. Praxair argues, for example, that the statute was enacted to enhance “patient” safety and improve “patient” care through the identification, analysis, and reduction of risks that could cause or have caused preventable patient injury or impairment. According to Praxair, because Lawson was an employee when the incident occurred and not a patient, and this is a products liability action and not one for medical malpractice, no basis exists for application of the NJPSA.

In response, UMCPP correctly notes that Praxair has not asked the Court to conduct an in camera review of any or all the documents reviewed and ruled on by the Special Master. Rather, although styled as an appeal, UMCPP argues that Praxair is actually asking the Court to undo the in camera review that Praxair itself requested based on a newly raised legal argument. UMCPP contends that Praxair should not be permitted to seek such relief now when it had not properly raised such arguments previously before the Special Master.

*3 In reply, Praxair states that “Praxair squarely raised this issue with the Discovery Master on February 3, 2020”, noting that this was “seven days after UMCPP submitted its documents for the in camera review.” ECF No. 321 at 12 (emphasis supplied). Put differently, after requesting that the Special Master conduct an in camera review, after the parties briefed that issue to the Special Master, after a ruling on that issue by the Special Master, after engaging in a dispute with UMCPP regarding the scope of the Special Master's ruling, after receiving clarification from the Special Master as to that scope, after opposing UMCPP's appeal to this Court regarding the decision to conduct an in camera review, after this Court ruled on that appeal, after the meet and confer ordered by this Court intended to narrow the scope of the review, and a full week after UMCPP produced over 2,000 pages of documents to the Special Master, Praxair then argued to the Special Master that the NJPSA is inapplicable as a matter of law and “the withheld documents should be produced because there is no applicable privilege over them.” DiSomma Decl., Ex. F at 3. The Court agrees with UMCPP that “not only was this issue never properly before the Special Master, should the Court accept Praxair's argument, it would render the entire dispute before the Special Master, UMCPP's de-designation effort, and the in camera review completely meaningless.” ECF No. 320 at 1. Indeed, if the NJPSA is inapplicable in this case as a matter of law, there would have been no point in conducting the very in camera review that Praxair argued was necessary. Praxair's argument that its position about the applicability of the NJPSA “has been consistent and continuous” flies in the face of the facts. As Praxair's contention that the NJPSA is simply inapplicable was not timely presented to the Special Master, the Court declines to entertain it here.

However, were the Court inclined to address the argument directly, it would reject Praxair's contention. Examining the plain language of the statute leads the Court to that result. See C.A. ex rel. Applegrad v. Bentolila, 219 N.J. 449, 459 (2014) (“[T]he best indicator of [the legislature's] intent is the statutory language.... Accordingly, [t]he plain language of the statute is our starting point.”).

Praxair's inapplicability argument centers on the fact that at the time of the explosion Plaintiff was an employee of UMCPP, not a patient. As noted above, the statute protects from disclosure documents relating to a self-critical analysis “concerning preventable events, near-misses and adverse events, including serious preventable adverse events...”. Brugaletta, 234 N.J. at 243. The NJPSA defines “adverse event” as “an event that is a negative consequence of care that results in unintended injury or illness, which may or may not have been preventable.” N.J.S.A. 26:2H12.25(a). The NJPSA defines “near-miss” as “an occurrence that could have resulted in an adverse event but the adverse event was prevented.” Id. Because the explosion of the oxygen cylinder was the type of event that “could have resulted” in serious injury to patients as well as personnel in the hospital, it is the type of “near-miss” contemplated by the statute. First, the oxygen cylinder was one that would be used for the care of a patient, as it was intended for use by individuals needing portable oxygen. Further, when the explosion that injured Plaintiff occurred, the oxygen cylinder was located in a patient room and presumably in a portion of the hospital where other patient rooms were located. The cylinder did not, for example, explode in a storage garage and injure a maintenance employee. This was not a mere workplace accident unrelated to the care of patients. This was an explosion of a medical device used for patient care that occurred in a patient room. This is the type of event contemplated by the NJPSA.

Praxair further argues that, in the event that the NJPSA applies here, that UMCPP failed to prove that it strictly complied with the NJPSA to invoke the privilege. In response, UMCPP argues that it is plainly evident that the documents relating to UMCPP's investigation and root cause analysis into the underlying incident, conducted by UMCPP's Patient Safety Committee, were exclusively prepared in the setting of a qualifying self-critical analysis process and in accordance with UMCPP's Patient Safety Plan and applicable regulations. Indeed, upon review the Special Master agreed in large part, and found that 98% of the documents reviewed were in fact protected under the Act. Praxair does not ask the Court to conduct a second in camera review, and the Court will leave the Special Master's conclusions undisturbed.

Praxair also maintains that it is entitled to “factual information” contained in the documents at issue. ECF No. 321 at 2, 20. UMCPP acknowledges that raw factual information separate and apart from a hospital's self-critical analysis is discoverable, and UMCPP indicates that it has produced such material in this litigation. However, citing Brugaletta, 234 N.J. at 243, UMCPP contends that any document developed through self-critical analysis is absolutely privileged. In Brugaletta, New Jersey's Supreme Court determined it was error for the trial court to order production of a redacted version of an incident report in an attempt to “honor the self-critical-analysis privilege while revealing the facts” of the incident to the Plaintiff. Id. at 245, 249 (“A court may not order the release of documents prepared during the process of self-critical analysis.”). The Court, therefore, finds no basis for Praxair's argument to the contrary.

*4 Next, Praxair argues that permitting UMCPP to withhold the disputed documents pursuant to the NJPSA violates Praxair's Constitutional guarantee of procedural due process. Praxair states that it “is entitled to know all of the information in UMCPP's possession regarding the cause of the Lawson incident and the steps UMCPP took following the incident to address its failures. ... In this case, Praxair has produced documents reflecting its root cause analyses and UMCPP, in the interest of fairness, should, too.” ECF No. 310-1at 16-17. The Court disagrees. UMCPP states that it has responded to 49 interrogatories, 49 document demands, produced thousands of pages of documents, and will be making available for deposition a 30(b)(6) corporate representative as well as other individuals. Given the scope of discovery that has been and will be conducted, the Court finds no unfairness or due process violation in its application of the NJPSA. This case stands in stark contrast to caselaw cited by Praxair, Complaint of Bankers Tr. Co., 752 F.2d 874, 886 (3d Cir. 1984), in which the Third Circuit determined that rulings by the trial court “effectively blocked all procedural access for [Plaintiff] to put her case before the court, created a procedural void, and thereby deprived her of a fair trial.” Id. This simply is not the case here.

Finally, Praxair requests that the Court reallocate the costs of the Special Master's in camera review entirely to UMCPP. The Court finds no grounds to alter the allocation determined by the Special Master.

Next, the Court turns to UMCPP's appeal. UMCPP objects to the Special Master's Order to the extent it requires UMCPP to produce a single-page document bates stamped UMCPP-E-07894. UMCPP has produced this document to the Court for in camera review. As explained by UMCPP, the document is an email dated May 20, 2014 bearing the subject line “NJ Patient Safety Act - Privileged and Confidential -- Oxygen cylinder incident”, that was prepared by Sharon L. Moon, Patient Safety Analyst and Patient Safety Committee member at UMCPP, and sent to Pamela Bradley, Chairperson of the Patient Safety Committee and Executive Director of UMCPP's Center for Healthcare Quality and Patient Safety. According to UMCPP, Ms. Bradley and Ms. Moon conducted and oversaw UMCPP's root cause analysis of the April 10, 2014 oxygen cylinder explosion. The email consists of Ms. Moon's summary of an interview with an employee of UMCPP, which UMCPP alleges was for the purpose of conducting the root cause analysis and that summary was sent only to Ms. Bradley.

In response, Praxair again argues that the NJPSA does not apply in this case and, even if it did apply, Praxair is entitled to the discovery of the factual information contained in the interview. For the reasons stated above, the Court rejects Praxair's arguments.

Having reviewed the document, the Court agrees that it is protected from discovery under the NJPSA. On its face, it relates to UMCPP's investigation and root cause analysis into the underlying incident, conducted by UMCPP's Patient Safety Committee. The decision of the Special Master is, therefore, reversed as to this document. Accordingly,

IT IS on this 28th day of July 2020

ORDERED that the decision of the Special Master dated March 19, 2020 is affirmed in part and reversed in part as set forth above.