Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Morshed v. St. Barnabas Hospital

United States District Court, S.D. New York

February 10, 2017

MONZUR MORSHED, Plaintiff,
v.
ST. BARNABAS HOSPITAL,, Defendants.

          OPINION AND ORDER

          Lorna G. Schofield United States District Judge

         In April 2016, Plaintiff Monzur Morshed filed this action against St. Barnabas Hospital and nine individual Defendants, alleging that he was subjected to sexual harassment, a hostile work environment and discrimination in violation of federal, state and local law. Currently before the Court are Defendants' assertions of privilege as to ten representative documents that the Court has reviewed in camera. Defendants argue that the documents are privileged under the self-critical analysis privilege, peer review privilege and quality assurance privileges. For the reasons discussed below, Defendants' assertions of privilege as to the ten representative documents are overruled.

         I. BACKGROUND

         On September 30, 2016, Defendants were directed to produce a privilege log and Plaintiff was ordered to identify ten entries for the Court to adjudicate. The intention was that rulings on these ten documents will allow the parties to extrapolate which documents are privileged and which are not, and for discovery to proceed. Following a second conference regarding the selection of the ten documents, Plaintiff identified documents and Defendants filed a letter and memorandum of law, and submitted a privilege log and the documents ex parte for in camera review. By Order dated December 21, 2016, Defendants were directed to supplement their memorandum of law and Plaintiff was ordered to file a memorandum of law in response to Defendants' memorandum. Defendants filed a supplemental memorandum of law on January 3, 2017. Plaintiff did not submit a memorandum of law.

         The ten documents identified include emails between and among physicians who supervised and evaluated Plaintiff during his residency, discussing Plaintiff's performance in the residency program; hospital preceptor evaluations of Plaintiff; an evaluation of Plaintiff's performance in one of his rotations; a New York College of Osteopathic Medicine Educational Consortium Annual Trainee Assessment for Plaintiff; and an email from a medical placement company requesting a reference from the St. Barnabas hospital for Plaintiff. Defendants assert that the all of the documents are protected from discovery on the same grounds: Rule 501 of the Federal Rules of Evidence; Rule 26 of the Federal Rules of Civil Procedure; the peer review privilege and quality assurance privilege; N.Y. Public Health Law § 2805-m; N.Y. Education Law § 6527; the Health Care Quality Improvement Act (“HCQIA”), 42 U.S.C. § 1111; the Patient Safety and Quality Improvement Act (“PSQIA”), 42 U.S.C. § 299b-21 to b-26; the critical self-analysis privilege; and N.Y. Comp. Codes R. & Regs. tit. 10, § 405.4.

         II. DISCUSSION

         The ten documents submitted for review in camera are subject to disclosure and not privileged on the grounds asserted. Federal Rule of Civil Procedure 26(b)(1) permits “discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportionatal to the needs of the case.”

         A. New York Education Law § 6527 and Public Health Law § 2805-m

         Defendants' argument that the ten documents at issue are privileged and protected from disclosure pursuant to New York Education Law §6527 and Public Health Law § 2805-m fails as these laws are inapplicable. This action is brought pursuant to both federal civil rights laws and state and city human rights laws. “[C]ourts consistently have held that the asserted privileges are governed by the principles of federal law” where the action is in federal court and the evidence sought is relevant to both federal and state law claims. von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 141 (2d Cir. 1987); accord Steinberg v. Mount Sinai Med. Ctr., Inc., No. 12 Civ. 51, 2014 WL 1311572, at * 2 (S.D.N.Y. Mar. 31, 2014).

         B. Federal Rule of Evidence 501, Federal Common Law and Federal Rule of Civil Procedure 26

         Defendants appear to argue for recognition of a peer review privilege, quality assurance privilege and self-critical analysis privilege recognized by state law, invoking Federal Rule of Evidence 501 and “the strong policy of comity between federal and state courts.” This argument is unavailing.

         Rule 501 provides that “[t]he common law -- as interpreted by United States courts in the light of reason and experience -- governs a claim of privilege unless any of the following provides otherwise: the United States Constitution; a federal statue; or rules prescribed by the Supreme Court.” Fed.R.Evid. 501. In determining federal privilege law, Defendants argue that Rule 501 affords a district court “flexibility to develop rules of privilege on a case-by-case basis.”

         “The policy decisions of the States bear on the question whether federal courts should recognize a new privilege or amend the coverage of an existing one.” Jaffee v. Redmond, 518 U.S. 1, 12-13 (1996). However, the strong policy of comity is not dispositive. “While as a matter of comity federal courts accord deference to state-created privileges, such privileges are construed narrowly, and must yield when outweighed by a federal interest in presenting relevant information to a trier of fact.” United States v. 31-33 York St., 930 F.2d 139, 141 (2d Cir. 1991). Although Rule 501 “manifests a congressional desire not to freeze the law of privilege but rather to provide the courts with flexibility to develop rules of privilege on a case-by-case basis, ” the Supreme Court has cautioned against recognizing a privilege “in an area where it appears that Congress ha[d] considered the relevant competing concerns but has not provided the privilege itself.” Univ. of Pennsylvania v. EEOC, 493 U.S. 182, 189 (1990).

         In weighing the relevant factors, some courts have used a balancing test to determine claims of privilege based on state laws and where no federal rule governs the privilege asserted. Courts in the Eastern ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.