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WHITE v. LENOX HILL HOSPITAL

United States District Court, S.D. New York


June 20, 2005.

LAURA DODD WHITE, Plaintiff,
v.
LENOX HILL HOSPITAL, Defendant.

The opinion of the court was delivered by: WILLIAM PAULEY, District Judge

ORDER

By Order dated May 12, 2005, Magistrate Judge Frank Maas denied Plaintiff's request for production of consent forms, progress notes and contact information for African-American recipients of non-emergency transfusions at Lenox Hill Hospital ("Lenox Hill") over a five-year period. (Discovery Order, dated May 12, 2005 ("Disc. Order") at 10.) Plaintiff objects to the Discovery Order. For the following reasons, Plaintiff's objections are overruled.

  DISCUSSION

  The Federal Magistrate's Act, 28 U.S.C. §§ 631-639, and Rule 72 of the Federal Rules of Civil Procedure provide the standard for review of a magistrate judge's order. With respect to nondispositive matters, a district judge shall "modify or set aside any portion of the magistrate's order found to be clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a); see also 28 U.S.C. § 636(b)(1)(A). A party seeking to overturn a nondispositive ruling under the "clearly erroneous" standard generally bears a "heavy burden." See Com-Tech Assocs. v. Computer Assocs. Int'l, Inc., 753 F. Supp. 1078, 1099 (E.D.N.Y. 1990). Pretrial discovery issues are nondispositive matters and are reviewable under the "clearly erroneous" standard. See Hora v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990). A finding is "clearly erroneous" if the reviewing court is left with the "definite and firm conviction that a mistake has been committed." Easley v. Cromartie, 532 U.S. 234, 242 (2001) (quoting United States v. United Gypsum Co., 333 U.S. 364, 395 (1948)).

  The Magistrate Judge denied Plaintiff's request because Plaintiff failed to satisfy her burden of showing justification for the Lenox Hill records, especially because production of the records would violate the privacy rights of Lenox Hill patients — non-parties to this litigation. The Magistrate Judge noted that Plaintiff sought the records merely "to `validate' their expert's alleged conclusion that `there is significant evidence directed transfusions were distributed in a racially discriminatory manner and that the distribution of these transfusions in a racially discriminatory manner was not a random occurrence.'" (Disc. Order at 7 (quoting Mitchell Letter, dated Mar. 10, 2005 at 1) (modifications omitted).) Thus, the Magistrate Judge found that Plaintiff's expert had already formed his opinion, and did not need the Lenox Hill records. (Disc. Order at 7.)

  Plaintiff contends that the reliability of her expert's statistical study could be subject to impeachment without the consent records of African-American patients who received transfusions at Lenox Hill during the relevant time frame. (Plaintiff's Objections, dated May 27, 2005 ("Pl. Obj.") at 2.) Plaintiff's application, however, includes no supporting declaration from her expert. Instead, it is wholly based on the unsworn conclusory statements of her counsel. (See also Disc. Order at 7.)

  As the Magistrate Judge noted, the "heaviest burden" imposed by Plaintiff's request is "on the African-American patients whose privacy will be invaded if the records are produced." (Disc. Order at 5.) None of these patients are parties to this litigation and, therefore, it is unfair for this Court to release their medical records without proper justification. Thus, because Plaintiff's expert had already formed his opinion and Plaintiff has not demonstrated the need for the Lenox Hill records, this Court will not invade the privacy rights of non-litigants.

  Plaintiff also invites this Court to refer to a book, "Bad Blood: The Tuskegee Syphilis Experiment," for justification of his production request. (Pl. Obj. at 1.) Because Plaintiff proffers this book for the first time on appeal, this Court declines to consider it. See Dodd-White v. Lenox Hill Hosp., 02 Civ. 5749 (WHP), 2005 WL 1081443, at *1 n. 1 (S.D.N.Y. May 10, 2005); Johnson v. Equifax Risk Mgm't. Servs., No. 00 Civ. 7836 (HB), 2004 WL 540459, at *3 (S.D.N.Y. Mar. 17, 2004).

  Accordingly, the Magistrate Judge's Discovery Order denying Plaintiff's request for production of consent forms, progress notes and contact information for African-American recipients of non-emergency transfusions at Lenox Hill over a five-year period was not "clearly erroneous."*fn1 CONCLUSION

  For the foregoing reasons, the Magistrate Judge's Discovery Order is affirmed and Plaintiff's Rule 72 objections are overruled.

  SO ORDERED.


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