by Douglas Ankney

A review of court records by PLN has found repeated sanctions for discovery violations against private prison healthcare provider Wellpath in suits across the country blaming the firm’s dismal care for prisoner deaths – including four since 2020.

Washington – Benton County Jail

First, the firm was twice sanctioned in a suit alleging that the death of Marc Moreno at Washington’s Benton County Jail was caused by employees of a Wellpath corporate predecessor, Correctional Healthcare Companies (CHC).

Plaintiffs sought discovery in 2018 of documents related to prior complaints about healthcare at the jail, as well as audits of the jail’s medical services and electronically stored information (ESI). The U.S. District Court for the Eastern District of Washington granted a motion to compel discovery on April 9, 2019, giving Wellpath 14 days to comply. But months later, on January 8, 2020, the Court found CHC in contempt of its earlier order, and it levied a sanction for $7,290 in fees to pay Plaintiff’s attorneys from Budge & Heipt PLLC in Seattle and the Law Office of George Trejo in Yakima. CHC was also ordered to execute a search plan to locate the missing ESI, including emails of all CHC employees who worked at the jail. See: Est. of Moreno v. Corr. Healthcare Cos., 2020 U.S. Dist. LEXIS 40680 (E.D. Wash.).

But that wasn’t the end of the matter. On June 1, 2020, the Court took the rare and extraordinary step of ordering dispositive sanctions – a default judgment – against CHC because the firm had earlier failed to disclose that in February 2019 it implemented a new records retention policy that resulted in destruction of all ESI relevant to Plaintiffs’ claims in the suit. The Court found that CHC Chief Information Officer Robert Martin admitted in his deposition that one consideration for the new retention policy was the company had problems that needed whitewashing – by purging “bad emails” that contained information potentially problematic for Wellpath in litigation.

The Court was particularly troubled that CHC employees charged with implementing the new retention policy and causing the purge were the same employees who had received notice of the discovery requests in this litigation. The Court found the destroyed emails included those of “nurses and managers who worked shifts at the jail while Mr. Moreno was confined”; the emails “of the employees who conducted Mr. Moreno’s mortality review”; the emails “of the nurse who discovered Mr. Moreno dead in his cell”; and the emails of one nurse whose employment was terminated after Moreno’s death for failing to follow proper procedure.

The destruction of ESI was so widespread, the Court concluded, that the truth – should the case proceed to trial – could not be determined by a factfinder. In its chastising statement, the Court declared “that dispositive sanctions are appropriate given Defendants’ continued deceptive misconduct throughout this litigation.”

“Defendants repeatedly failed to provide responsive discovery to Plaintiffs, even after being compelled to do so,” the Court noted. “Similarly, Defendants failed to notify Plaintiffs and the Court of the spoliation for approximately eight months while this litigation was ongoing. Rather than telling Plaintiffs or the Court what had occurred, Defendants misled Plaintiffs by promising to provide responsive emails at a later date. Due to the way that Defendants have conducted themselves over the course of this litigation, the Court finds that lesser sanctions are not warranted.” See: Est. of Moreno v. Corr. Healthcare Cos., 2020 U.S. Dist. LEXIS 108370 (E.D. Wash.).

Southeast Arkansas Community Correction Center

In another case against another Wellpath corporate predecessor, Correct Care Solutions (CCS), for the death of Christine Marziale’s newborn daughter at the Southeast Arkansas Community Correction Center, a magistrate judge for the U.S. District Court for the Eastern District of Arkansas found on July 28, 2020, that “CCS repeatedly failed to produce responsive discovery documents; failed to preserve evidence; and failed to faithfully comply with the Court’s discovery orders.” The magistrate further observed that “CCS regularly appears in litigated matters in the Eastern District of Arkansas. In fact, CCS is a named defendant in twenty-eight cases currently pending in this district.”

“Unlike this case, where Plaintiffs are represented by zealous advocates,” the magistrate continued, “in most cases in this district, CCS opposes plaintiffs who are litigating their claims pro se. CCS must be given to understand that this Court will require it to comply with the letter and spirit of discovery rules and court orders.”

Because of “CCS’s multiple abuses of the discovery process,” the magistrate recommended that CCS provide a consolidated financial statement, since the Court could not rule out the possibility of punitive damages in the underlying suit; that CCS provide the audit trail for the medical records of Marziale and two other detainees, Latoya Wren and Christina Strickland, at CCS’s expense; and that Plaintiffs be given an adverse inference instruction regarding CCS’s destruction of emails. See: Marziale v. Correct Care Sols. LLC, 2020 U.S. Dist. LEXIS 143872 (E.D. Ark.).

Largely adopting that Report and Recommendation from the magistrate on August 10, 2020, the Court noted that “Defendants’ many discovery dodges, stumbles, and foot-drags have created the need to do … clean-up discovery.”

“Therefore,” the Court continued, “in addition to paying a reasonable fee and costs for the motions to compel and for sanctions, Defendants must also pay a reasonable attorney’s fee to Plaintiffs’ counsel for having to do this work now,” as provided in Fed. R. Civ. P. 37(b)(2)(C).

“Defendants might fairly respond that this work is not extra, it has just been delayed,” the Court allowed; however, it said “[t]hat’s true but not the whole truth. Plaintiffs’ counsel will necessarily have to revisit many issues, re-do much of the case work-up, and re-think things — all in a sprint.”

The “additional sanction” therefore was designed “to account for the consequences of Defendants’ discombobulation of the case in discovery. Rough justice is the best the Court can do in the circumstances. If the parties are unable to agree on the number, the Court will set the fee (in an amount not to exceed $25,000) on a motion supported by itemized billing” by Plaintiff’s counsel from Sutter & Gillham, PLLC in Benton. See: Marziale v. Correct Care Sols. LLC, 2020 U.S. Dist. LEXIS 144952 (E.D. Ark.).

Michigan – Macomb County Jail

Just weeks later, in a suit alleging CCS was liable in the July 2017 suicide of Dieter Herriges-Love while confined at the Macomb County Jail, the U.S. District Court for the Eastern District of Michigan rejected CCS’ claim that a “death report suicide” and “psychological autopsy” for Vanessa Sexton were privileged under the Federal Patient Safety and Quality Improvement Act (PSQIA), 42 U.S.C. § 299b-21, et. seq.. Sexton was one of 21 other prisoners who had committed suicide in the jail. The Court on August 14, 2020, found the testimony of CCS witness Dr. Bazzel contained an “abundance of errors and discrepancies” that were “troubling and undermine Dr. Bazzel’s and CCS’s credibility.”

It then granted Plaintiff’s motion to compel CCS to produce all documents for each prisoner who committed suicide at the jail since October 1, 2011, when CCS began providing medical care at the jail. The Court also directed that CCS was liable for reimbursement of Plaintiff’s expenses. See: Herriges v. Cty. of Macomb, 2020 U.S. Dist. LEXIS 146663 (E.D. Mich.). The suit ultimately resulted in October 2021 settlements with Herriges-Love’s estate totaling $1.2 million – $100,000 paid by Wellpath and the rest by Macomb County. [See: PLN, Sep. 2022, p.40.]

California – Ventura County Jail

Then, in a suit over the suicide of Scott Hultman at California’s Ventura County Jail, where Wellpath provided medical and mental health care, the U.S. District Court for the Central District of California ordered the firm on May 16, 2022, to provide to Plaintiffs Parts I and III of a Mortality and Morbidity Report and Review and the Psychological Autopsy of Hultman.

In its ruling, the Court rejected Wellpath’s argument that the Report and Autopsy were privileged patient safety work product (PSWP) under PSQIA. Under § 299b-22(a)(2), the Court said, PSWP includes “any data reports, records, memoranda, analyses (such as root cause analyses), or written or oral statement - (i) which are assembled or developed by a provider for reporting to a patient safety organization and are reported to a patient safety organization; or .... (ii) which identify or constitute the deliberations or analysis of, or identify the fact or reporting pursuant to, a patient evaluation system.”

Based on testimony by Wellpath Public Safety Officer and Medical Director for Care Management Judd Bazzel, M.D., however, the Court concluded that neither the Report nor Autopsy was “used in” deliberations or analysis. And the evidence showed that both were prepared for use by the Ventura County Sheriff’s Office and not solely for the purpose of reporting to a patient safety organization (PSO). “[I]nformation prepared for purposes other than reporting to a PSO is not PSWP under the reporting pathway,” the Court declared, citing Department of Health and Human Services Guidance, 81 FR 32655 (2016). See: Est. of Hultman v. Cty. of Ventura, 2022 U.S. Dist. LEXIS 107258 (C.D. Cal.).

The parties then proceeded to reach a $3 million settlement agreement on December 9, 2022. Under its terms, $1 million went to Hultman’s mother, Paula Hutlman, and her attorneys, Sonia Mercado & Assoc. Of the remaining $2 million, $800,000 went to the estate’s attorneys from Pachowicz Goldenring APLC in Ventura, plus $84,417.47 in costs. That left $1,115,528.53 for Hultman’s seven-year-old child, R.H.; $248,708.53 of that went into a minor’s trust, while the remaining $871,874 purchased a structured settlement that will pay out a total of $3 million by 2050. See: Est. of Hultman v. Cty. of Ventura, USDC (C.D. Cal.), Case No. 2:21-cv-06280.

Earlier Sanctions in Pennsylvania and Arizona

In a suit alleging Eighth and Fourteenth Amendment claims against CHC employees for providing substandard care that resulted in the death of Neil Raymond Early – after a beating by other prisoners at the Arizona State Prison Complex in Kingman – the U.S. District Court for the District of Arizona sanctioned CHC for its failure to timely provide requested nursing protocols and training manuals, plus hundreds of pages of clinical policies and procedures.

For months, CHC denied these materials existed. But eventually the company admitted its denials were untrue and provided the requested materials. The Court then ordered CHC on May 22, 2018, to pay reasonable costs and fees associated with seeking production of the documents to Plaintiff’s attorneys with Angelini & Ori LLC in Chicago. See: Early v. Arizona, USDC (D.Ariz.), Case No. 2:16-cv-00031 (2018).

Even earlier, the U.S. District Court for the Western District of Pennsylvania sanctioned CCS $45,180 on May 9, 2017, after finding that the firm failed to fulfill discovery obligations in providing prisoner medical records. The Court also ruled that the failure entitled the jury “to infer that had the medical records been obtained, they would reflect negatively on the supervision provided by supervising physicians to physician assistants” during the time period relevant to the lawsuit. Plaintiffs in that case were represented by attorneys from Jokelson Law Group PC in Philadelphia. See: Brogdon v. Correct Care Solutions, LLC, 2017 U.S. Dist. LEXIS 91950 (W.D. Pa.).

Wellpath founder Gerard Boyle, 68, is currently completing a three-year federal prison term for bribing former Sheriff Robert McCabe to secure the jail healthcare contract in Norfolk, Virginia. McCabe, 65, is serving an 11-year federal prison term for his role in the scheme. [See: PLN, Dec. 2022, p.48.]