In LEWIS v. BURL CAIN, ET AL., Civil No. 15-318-SDD-RLB (M.D. Louisiana, April 2022), before the Court was Plaintiffs’ Motion for Discovery Sanctions.
The basis for Plaintiffs’ motion was their request for production of “complete medical records” of 67 class members. Plaintiffs moved for Sanctions for two reasons: “(1) the failure of the Defendants to include Electronic Medication Administration Records (“eMARS”) in the initial production of the medical records of 37 patients; (2) tardiness and incomplete production of the medical records of the remaining 30 patients.”
Given that Plaintiffs were able to reach a compromise with Defendants regarding the other 30 medical records the Court ordered Defendants to produce, the Court addressed the issue of Defendants’ recalcitrance and delay in producing the eMARS.
Plaintiffs submitted that Defendants “initially produced the 37 records of deceased patients on a rolling basis between February 16 and February 28.” In response to Plaintiffs’ counsel’s inquiry as to the completeness of the 37 patient records produced, on March 4, 2022, defense counsel advised that the medical records provided included all records in each patient’s medical chart during the relevant period.
Defense counsel also advised that “We cannot confirm or deny that the medical charts include all medical administration records. There may be additional MARs records [sic] that would not necessarily be included in the charts provided.”
After back and forth between the parties, Defendants advised that eMARS were not included in the medical records production because eMARS “[were] maintained separately.” Defendants committed to production of the eMARS for the subset of 37 Class members by March 23, 2022.
Plaintiffs subsequently moved the Court to order Defendants to pay Plaintiffs’ experts’ fees for the time spent re-reviewing charts after learning that the medical records were incomplete. Plaintiffs further sought an extension of 2 weeks to supplement their medical expert reports with findings from reviewing late produced records.
Defendants took the position that “eMARs [were] not part of an offender’s physical medical record (unless portions of them happen to be printed out and placed into the physical record) nor were they ever requested by Plaintiffs in their written discovery.”
The Court found Defendants’ position to be disingenuous. Despite Defendants’ argument that Plaintiffs did not define the terms “medical records” in their discovery requests and did not specifically request eMARs, the Court found that it defied logic to suggest that a patient’s medical record did not include the patient’s medication record. According to the Court, such a claim was simply “an argument of convenience to avoid sanctions.”
Defendants also claimed that LSP was shorthanded, the medical records were voluminous, and even complained that Plaintiffs’ offer to help them find a scanner and/or a vendor who could assist with scanning and copying medical records amounted to “no meaningful assistance” from Plaintiffs. That argument was also rejected: “It is axiomatic that the party seeking discovery has utterly no obligation to assist their opponent in the task. Reliance on what may have been a well-intentioned offer of assistance is no defense.”
Parties are obliged to supplement their discovery responses upon learning that the disclosure or response is incomplete. Fed. Rule Civ. P. 26(e). On March 4, 2022, Defendants revealed that eMARS had gone substantially unproduced. Yet, as of the date they filed their Opposition, the production of the eMARS was still incomplete. It was undisputed that Defendants were considerably untimely in their production and Defendants conceded as much in their representations.
Plaintiffs argued that “Rule 37’s discovery sanctions [was] mandatory unless the failure to disclose [was] harmless or without substantial justification.” However, given that Defendants ultimately agreed to produce the eMARS, the mandatory sanction provision was not triggered. Instead, since the case was not a failure to disclose case, the imposition of sanctions was discretionary.
The Court found that Defendants’ argument that they were unable to provide complete medical records fell flat and was incongruent with Defendants’ steadfast argument that eMARS were not within the scope of Plaintiffs’ request for “complete medical records.”
It was clear to the Court that LSP either overlooked the eMARS or took the troubling position that a patient’s medication records were not part of the patient’s medical record. If the eMARS were overlooked because they were stored electronically and not part of the physical patient record, once the oversight was discovered, supplementation was required, according to the Court.
However, since Defendants “doubled down” on the position that the eMARS did not compromise part of the medical record instead of acknowledging non-production was an oversight, such conduct warranted the imposition of sanctions.
The Court also found that the delayed production of the eMARS created a hardship on Plaintiffs’ experts’ ability to prepare opinions and reports. In fact, Defendants conceded that Plaintiffs’ experts may not have had complete medical records at any time during the litigation.
Accordingly, Plaintiffs’ request for extension of time to produce expert reports was granted but was denied as to their request for Defendants to cover the costs of Plaintiffs’ experts’ review of the supplemental eMARs.