Peer-Review Reports Must be Disclosed in Philadelphia Jail Conditions Suit

by David Reutter

A Pennsylvania federal district court held on November 4, 2014 that medical care contractor Corizon Health has to produce mortality and sentinel event reviews in a class-action suit filed by prisoners in the Philadelphia Prison System (PPS) seeking equitable relief from unconstitutional conditions of confinement.

The lawsuit alleges that the PPS is overcrowded and triple-celled, and overcrowding results in danger to the health and safety of the prisoner population. Before the court was a discovery request filed by the plaintiffs that sought “mortality and sentinel event reviews for deaths that occurred in custody from January 2012 to December 1, 2013.”

The PPS defendants sought to obtain the discovery information from Corizon, a non-party to the suit, but the company objected, contending that the records were not discoverable because they were protected by Pennsylvania’s peer-review privilege law. The plaintiffs argued that federal courts do not recognize the state peer-review privilege.

The district court explained that where, as here, there are both federal and state law claims in a case, “the federal rule favoring admissibility, rather than any state law privilege, is the controlling rule.” Therefore, “the mere fact that state law claims and federal law claims coexist in this action does not by itself justify application of Pennsylvania’s peer-review privilege.” The privilege must be recognized for it to apply.

Corizon argued that recognition would be proper because the privilege is recognized in all 50 states and there is a “developing trend” in the federal courts to recognize a federal peer-review privilege. The court, however, noted that the “Supreme Court has explicitly declined to introduce a peer-review privilege – sometimes referred to as a ‘self-critical analysis’ privilege – into the federal common law.” It also held that while some federal courts have recognized the privilege, the general policy is not to do so.

Corizon must show the privilege “promotes sufficiently important interests to outweigh the need for probative evidence,” but the district court found it had failed to make such a showing.

The court agreed with the Ninth Circuit that “in the prison context, the safety and efficiency of the prison” make it “peculiarly important that the public have access to the assessment by peers of the care provided.” Further, a protective order to limit dissemination of the records would address the chilling effect cited by other courts that had recognized the peer-review privilege.

Accordingly, the district court ordered Corizon to disclose the peer-review records and told the parties to submit a protective order. The case remains pending. See: Williams v. City of Philadelphia, U.S.D.C. (E.D. Penn.), Case No. 2:08-cv-01979-RBS; 2014 U.S. Dist. LEXIS 156480.

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