United States District Court, D. Nebraska
N.M.S., a minor, by and through her natural guardians and Next Friends; AMBER SHORT, and SCOTT SHORT, Plaintiffs,
v.
HEATHER RAMSEY, APRN-CNM; THE MIDWIFE'S PLACE LLC, and BELLEVUE MEDICAL CENTER, L.L.C., Defendants.
ORDER
SUSAN
M. BAZIS UNITED STATES MAGISTRATE JUDGE
This
matter is before the Court on Plaintiffs' Motion to
Compel (Filing No. 84) and Defendant Bellevue
Medical Center, LLC's (“Defendant”) Motion
for Protective Order (Filing No. 90). For the
reasons set forth below, each motion will be granted, in
part.
DISCUSSION
Plaintiffs
seek to compel Defendant to produce complete copies of four
insurance policies, namely (1) Nebraska Medicine's Health
Care Facility Medical Professional & General Liability
Policy with COPIC Insurance Company (“COPIC CGL
Policy”); (2) Bellevue Medical Center, LLC's Health
Care Liability Policy with Zurich American Insurance Company
(“Bellevue Zurich Policy”); (3) Nebraska
Medicine's Policy of Excess Coverage with Zurich American
Insurance Company (“Zurich Excess Policy”); and
(4) Nebraska Medicine's Umbrella Liability Policy with
COPIC Insurance Company (“COPIC Umbrella
Policy”). (Filing No. 84.) Plaintiffs contend
that Defendant has an obligation to produce these documents
under Federal Rule of Civil Procedure 26(a)(1)(A)(iv). This
Rule provides that “[e]xcept as exempted by Rule
26(a)(1)(B) or as otherwise stipulated or ordered by the
court, a party must, without awaiting a discovery request,
provide to the other parties . . . any insurance agreement
under which an insurance business may be liable to satisfy
all or part of a possible judgment in the action or to
indemnify or reimburse for payments made to satisfy the
judgment.” Fed. R. Civ. P. 26(a)(1)(A)(iv).
Plaintiffs
further maintain that Defendant should have produced these
policies in response to a request for production which sought
a “complete copy of each insurance agreement, whether
primary or excess or other, under which any person carrying
on an insurance business may be liable to satisfy part of all
of a judgment which may be entered in the action or to
indemnify or reimburse for payments made to satisfy the
judgment, including but not limited to the declarations page
and all endorsements, modifications, exhibits, addenda,
etc.” (Filing No. 86.)
Through
its Motion for Protective Order, Defendant seeks to preclude
the production of the entirety of the Zurich Excess Policy
and COPIC Umbrella Policy. Defendant also seeks to preclude
the disclosure of additional portions of the Bellevue Zurich
Policy. Defendant maintains that it has no obligation to
produce these policies under Rule 26(a)(1)(A)(iv) and that
the policies are not responsive to Plaintiffs' request
for production. Defendant also seeks protection from the
production of portions of the COPIC CGL Policy. Defendant
argues that the COPIC CGL Policy contains irrelevant and
confidential information which, if disclosed, could prejudice
individuals not involved in this litigation.
Pursuant
to Federal Rule of Civil Procedure 26(b)(1), as amended,
“[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's
claim or defense and proportional to the needs of the
case.” Fed. R. Civ. P. 26(b)(1). Rule 26
“is to be construed broadly and encompasses any matter
that bears on, or that reasonably could lead to other matter
that could bear on, any issue that is or may be in the
case.” Hodges v. Pfizer, Inc., Civ. No.
14-4855-ADM/TNL, 2016 WL 1222229, *2 (D. Minn. March
28, 2016) (internal quotation omitted). Still, the scope of
discovery is not unlimited. Courts must limit the frequency
or extent of discovery if it determines that “the
discovery sought is unreasonably cumulative or duplicative,
or can be obtained from some other source that is more
convenient, less burdensome, or less expensive.” may,
for good cause, issue an order to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or
expense.” Id.
1.
Bellevue Zurich Policy, Zurich Excess Policy, and COPIC
Umbrella Policy
Defendant
argues that the Bellevue Zurich Policy, Zurich Excess Policy,
and COPIC Umbrella Policy are outside the scope of Rule
26(a)(1)(A)(iv), as well as Plaintiffs' discovery request
seeking copies of policies that could be used to satisfy a
judgment, because it is a qualified healthcare provider under
the Nebraska Hospital Medical-Liability Act
(“NHMLA”). NHMLA governs medical malpractice
actions for qualified healthcare providers. See Neb. Rev.
Stat. § 44-2821. Defendant maintains that under
NHMLA, Plaintiffs' potential recovery is capped at $1.75
million and, thus, there is no possibility that the Zurich
Excess Policy or COPIC Umbrella Policy would be utilized to
pay any verdict or settlement in this case. SeeNeb. Rev.
Stat. § 44-2825. Despite this argument, Defendant
recognizes that it identified the Zurich Excess Policy and
COPIC Umbrella Policy in its initial disclosures. Also,
Defendant acknowledges that it previously produced portions
of the Bellevue Zurich Policy in response to a request for
production, [1] but claims it only did so to demonstrate
that it was qualified under NHMLA.
The
Court finds that the Bellevue Zurich Policy, Zurich Excess
Policy, and COPIC Umbrella Policy are relevant and should be
produced. Defendant acknowledges that Plaintiffs have made an
allegation that Defendant did not comply with NHMLA.
(Filing No. 91 at CM/ECF at p. 10.) Although
Defendant argues that Plaintiffs cannot possibly succeed on
this claim in light of a statement from the Department of
Insurance indicating that Defendant was qualified under
NHMLA, Plaintiffs are still entitled to discovery on this
issue. Plaintiffs should not have to blindly accept
Defendant's representations.
However,
in light of Defendant's concerns regarding
confidentiality, the Court is persuaded that a protective
order limiting disclosure of the policies is appropriate.
Therefore, Plaintiffs, their counsel, and anyone working with
or for them, shall be prohibited from disclosing the policies
to anyone outside this litigation. These policies may solely
be used for the purpose of this litigation and may not be
used by Plaintiffs or their counsel in connection with any
other lawsuit or litigation.
2.
COPIC CGL Policy
There
is no dispute that the COPIC CGL Policy would provide
coverage in the event of any judgment or settlement in this
case. Defendant claims that it has produced all agreements
within the COPIC CGL Policy that establish the Policy's
obligation to satisfy a judgment or settlement. Defendant
asserts that the Policy should not be produced in its
entirety because it includes numerous riders which detail
coverage/non-coverage for individual physicians and other
medical professionals not involved in this case. Thus,
Defendant seeks to protect these riders, which amount to
290-pages of the COPIC CGL Policy, from production. Moreover,
according to Defendant, the Policy details general liability
coverage for Nebraska Medicine. These coverages are for
liabilities not involved in this case, such as those for
property damage and employee related issues. Defendant argues
that this information is irrelevant, and that its disclosure
would be unduly prejudicial because it exposes Nebraska
Medicine to legal risk if individuals are aware of its
coverage limits.
Plaintiffs
maintain that the entire COPIC CGL Policy must be disclosed
because it falls within the scope of Rule 26(a)(1)(A)(iv).
Plaintiffs point out that several courts have concluded that
insurance policies required to be disclosed under Rule
26(a)(1)(A)(iv) must be produced in their entirety, without
redaction. See Capazzi v. Atwood Oceanics, Inc., No. Civ.
A. 08-776, 2009 WL 3055321 (W.D. La. Sept. 20, 2009);
Robin v. Weeks Marine, Inc., Civ. Act. No. 17-1537,
2017 WL 3311243 (E.D. La. Aug. 3, 2017). In so holding,
courts have noted that Rule 26(a)(1)(A)(iv) is absolute, and
that no finding of relevance is necessary. See First
Horizon Nat'l Corp. v. Houston Cas. Co., No.
2:15-cv-2235, 2016 WL 5869580 (W.D. Tenn. Oct. 5, 2016).
Still, Rule 26(a)(1)(A)(iv) ...