# McNeil v. Trinity Health Corporation

> District Court, S.D. Ohio · February 8, 2021

URL: https://www.frixlaw.com/law-library/cases/10377242

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** February 8, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10377242

## How later opinions describe it (automated extraction)

- noting that “the relative importance of the information in the documents to the party’s case” matters to the showing of “substantial need”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

REBECCA MCNEIL, et al.,
Case No. 2:20-cv-258
Plaintiffs, Judge Edmund A. Sargus
Magistrate Judge Kimberly A. Jolson
v.

MOUNT CARMEL HEALTH SYSTEM,
et al.,

Defendants.

OPINION AND ORDER

This matter is before the Court on Plaintiffs’ Motion to Compel Discovery. (Doc. 26). For
the reasons that follow, Plaintiffs’ Motion is DENIED without prejudice. Defendants are
ORDERED to produce a privilege log, consistent with the findings below, within fourteen (14)
days of the date of this Opinion and Order.
I. BACKGROUND
This is a defamation case arising from the alleged actions of former Mount Carmel Health
System (“Mount Carmel”) physician, Dr. William Husel. In January 2019, Mount Carmel released
a public statement that one of its former ICU physicians had administered “excessive and
potentially fatal” doses of Fentanyl to 27 patients. (Doc. 8, ¶ 32). According to the statement, this
physician did not act alone—ICU nurses and pharmacists also “made bad decisions” and
“ignor[ed] policies,” placing “patients’ safety at risk.” (Id.). Mount Carmel terminated the
allegedly complicit ICU employees, and in June 2019, Dr. Husel was indicted for 25 counts of
murder. (Id., ¶¶ 41, 43).
Plaintiffs, ten former Mount Carmel ICU employees, say they were made to be scapegoats.
According to them, Mount Carmel and its Michigan-based parent company, Defendant Trinity
Health Corporation (“Trinity”), “panicked” about the rise of criminal and administrative actions
against healthcare providers associated with the nationwide opioid epidemic. (Id., ¶ 21).
Specifically, they feared the public or regulators would learn that Mount Carmel ICU patients
sometimes received high doses of Fentanyl. (Id., ¶ 28). Plaintiffs acknowledge that, in some cases,
they did. (See id., ¶¶ 2–5, 18–26). But according to them, nothing improper, let alone criminal,

occurred. (See id.). Rather, they say medical literature recommends high doses of certain opioids
to ease a patient’s suffering between the removal of life support and death. (See id.). And Mount
Carmel physicians and nurses had discretion in these circumstances based upon the individual
needs of their patients. (Id., ¶¶ 17–19).
Nevertheless, Defendants were concerned about optics. (Id., ¶ 27). Following several
internal complaints regarding Dr. Husel’s use of opioids, the veracity of which Plaintiffs question,
Defendants allegedly spun a “rogue doctor” narrative to “explain” any perceived wrongdoings
associated with the use of opioids. (Id., ¶ 28). Mount Carmel abruptly changed its opioid policies
and publicly blamed Dr. Husel and dozens of ICU employees for the deaths of 27 patients. (Id.,

¶¶ 27–28). Plaintiffs say that their personal and professional lives were left in tatters. (Id., ¶¶ 43–
47).
Procedurally speaking, the parties are in the midst of written discovery. (See Doc. 25).
Plaintiffs requested documents concerning the care they provided Dr. Husel’s alleged victims, as
well as information from Defendants’ investigation of the alleged wrongdoings. (See generally
Doc. 26). Defendants objected broadly, asserting attorney-client privilege and work product
protection. (See generally Doc. 29). They represent they are finalizing a privilege log but contend
that any documents from their investigation were created in the anticipation of litigation and are
immune from discovery. (Doc. 26). Plaintiffs move to compel those documents.
Following a status conference with the Court, Defendants withdrew their objections based
upon Ohio’s peer-review privilege. (See Doc. 32; see also Doc. 29 at 2). Yet they still object to
producing these documents, citing work product protection or attorney-client privilege. (See
generally Doc. 29). Because, however, Defendants do not substantively address their claims of
attorney-client privilege and because they have not yet produced a privilege log describing the

documents, the Court addresses Defendants’ broader claims of work product protection. Plaintiffs’
Motion is fully briefed and ripe for resolution.
II. STANDARD
Two standards matter here, Rule 37 of the Federal Rules of Civil Procedure and the federal
work product doctrine.
A. Motion to Compel Standard
Determining the proper scope of discovery falls within the broad discretion of the trial
court. Lewis v. ACB Bus. Servs., Inc., 135 F.3d 389, 402 (6th Cir.1998). A party may move to
compel discovery under Rule 37 of the Federal Rules of Civil procedure when the opposing party

fails to provide proper responses to interrogatories or requests for production. The movant bears
the initial burden to show that the information sought is relevant. Gruenbaum v. Werner Enter.,
Inc., 270 F.R.D. 298, 302 (S.D. Ohio 2010).
B. Work Product Doctrine Standard
The work product doctrine “is ‘not a privilege but a qualified immunity protecting from
discovery documents and tangible things prepared by a party or his representative in anticipation
of litigation.’” Carr v. Lake Cumberland Reg’l Hosp., No. CV 15-138-DLB-HAI, 2017 WL
5490916, at *2 (E.D. Ky. Nov. 15, 2017) (quoting In re Perrigo Co., 128 F.3d 430, 437 (6th Cir.
1997)). The doctrine “permit[s] an attorney to ‘assemble information, sift what he considers to be
the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue
and needless interference . . . to promote justice and to protect [his] clients’ interests.’” Carr, 2017
WL 5490916, at *2 (quoting Hickman v. Taylor, 329 U.S. 495, 510 (1947)). Importantly, “[t]he
work product doctrine . . . does not protect the discovery of underlying facts, including facts
concerning the creation of work product or the facts contained within that work product.” Bobalik

v. BJ’s Rest., Inc., No. 3:19-CV-0661-RGJ-LLK, 2020 WL 7241060, at *5 (W.D. Ky. Dec. 9,
2020) (citation omitted).
Pertinent here, Defendants, as the ones claiming work product protection, bear the burden
of establishing that each withheld document was prepared in anticipation of litigation.
Gruenbaum, 270 F.R.D. at 303 (citing U.S. v. Roxworthy, 457 F.3d 590, 593 (6th Cir. 2006)).
Defendants may carry their burden “‘in any of the traditional ways in which proof is produced in
pretrial proceedings such as affidavits made on personal knowledge, depositions, or answers to
interrogatories.’” Gruenbaum, 270 F.R.D. at 304 (quoting Roxworthy, 457 F.3d at 597). An
“‘affidavit containing conclusory statement[s],’” however, is not enough. Gruenbaum, 270 F.R.D.

at 305 (quoting Roxworthy, 457 F.3d at 597).
Yet even if Defendants carry their burden as to certain documents, Plaintiffs still have
another shot at them. Plaintiffs may access factual work product upon a “‘demonstration of
substantial need or inability to obtain the equivalent without undue hardship.’” Carr, 2017 WL
5490916, at *2 (quoting In re Perrigo Co., 128 F.3d at 437).
III. DISCUSSION
Defendants investigated Mount Carmel’s administration of opioids to critical care patients.
(See Doc. 29 at 4). Plaintiffs want documents from that investigation. (See generally Doc. 26).
Yet Defendants respond that such documents are immune from discovery because the
“investigation was prompted by specific complaints made within [Mount Carmel] and was
conducted in anticipation of litigation, with the involvement of [their] counsel.” (Doc. 29 at 4).
Indeed, they say, they “were correct to anticipate that litigation, as they have been sued not just
here, but in a second defamation case . . . and in dozens of medical malpractice cases, as well as
the criminal case against Dr. Husel.” (Id.).

Defendants’ argument is flawed in two ways. Beginning with the most important—the
work product doctrine is not that broad. Defendants assert that, because lawsuits followed the
investigation, documents from the investigation were necessarily created in anticipation of
litigation. (See, e.g., Doc. 29 at 7–8 (asserting, as “evidence[],” patient families’ medical
malpractice actions against Dr. Husel and Defendants)). That is not the law. Rather, “the Sixth
Circuit has adopted the ‘because of’ test, which asks whether the documents at issue were prepared
or obtained because of the prospect of litigation.” Bobalik, 2020 WL 7241060, at *5 (emphasis in
original) (citing Roxworthy, 457 F.3d at 590). To satisfy that test, Defendants must show: (1) the
“‘document was created because of [their] subjective anticipation of litigation, as contrasted with

an ordinary business purpose’”; and (2) “‘that subjective anticipation of litigation was objectively
reasonable’” at the time the document was created. Bobalik, 2020 WL 7241060, at *5 (quoting
Roxworthy, 457 F.3d at 594).
Of course, the answers to these questions depend on the specific document at issue and
when it was created. See Gruenbaum, 270 F.R.D. at 304 (quoting In re Prof’l Direct Ins. Co., 578
F.3d 432, 439 (6th Cir. 2009)) (“The party asserting work product protection therefore bears the
burden of showing that ‘anticipated litigation was the driving force behind the preparation of each
requested document.’”). For example, the internal reports regarding Dr. Husel potentially raised
red flags or prompted an investigation. But until “the possibility of litigation [] changed from a
theoretical possibility to a real possibility,” work product protection is not triggered. Young v.
Chapman, No. 3:14-CV-666-JHM-CHL, 2016 WL 1717226, at *7 (W.D. Ky. Apr. 28, 2016)
(quotation marks and citation omitted).
So Defendants cannot rely simply on the fact that litigation ultimately ensued. See, e.g.,
Bobalik, 2020 WL 724160, at *6 (finding “position that any incident could result in litigation” as

“not objectively reasonable”); Futhey v. United Transp. Union Ins. Ass’n, No. 1:14 CV 463, 2015
WL 2446169, at *2 (N.D. Ohio May 20, 2015) (“Although litigation did ensue, there is no reason
to believe [defendant] would have anticipated the current indemnification litigation at the time the
investigation was commissioned.”); Rodriguez v. CHRISTUS Spohn Health Sys., No. C-09-95,
2011 WL 3652189, at *3 (S.D. Tex. Aug. 18, 2011) (finding that work product doctrine did not
apply to hospital’s incident investigation because purpose of the investigation was to determine
what happened and to prevent such an incident from happening again); Mich. First Credit Union
v. Cumis Ins. Soc., Inc., No. 05-74423, 2006 WL 1851018, at *1 (E.D. Mich. July 5, 2006)
(emphasis in original) (holding that “documents generated” during investigation “were made for

ordinary business purposes” because, “[w]hile litigation is always a possibility, it was not a real
possibility” at the time the documents were created).
Next, Defendants have improperly flipped the burden on its head. (See generally Doc. 29
(asserting, throughout, that Plaintiffs fail to support their arguments against work product with
relevant caselaw)). Plaintiffs bear the initial burden to show that the documents are relevant.
Gruenbaum, 270 F.R.D. at 302. Given the subject matter of Plaintiffs’ case and the documents
requested, Plaintiffs have satisfied that burden. But Defendants carry the burden to show that they
properly withheld each document. See Gruenbaum, 270 F.R.D. at 304 (quoting In re Prof’l Direct
Ins. Co., 578 F.3d at 439) (“The party asserting work product protection therefore bears the burden
of showing that ‘anticipated litigation was the driving force behind the preparation of each
requested document.’”). Simply stating in conclusory fashion that the documents were created in
anticipation of litigation, as Defendants do throughout their brief, is not enough. (See, e.g., Doc.
29 at 4 (asserting that the investigation “was prompted by specific complaints made within the
[Mount Carmel] system and was conducted in anticipation of litigation, with the involvement of

Defendants’ counsel”); id. at 6 (contending that Defendants’ review of opioid protocols “naturally
involved lawyers and their opinions of what was or not permitted by the law”)).
Rather, Defendants must provide “[a] specific and detailed affidavit establishing that a
document was prepared in anticipation of litigation[.]” Gruenbaum, 270 F.R.D. at 304–05 (citing
Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 381 (6th Cir. 2009)); see also Gruenbaum, 270
F.R.D. at 304 (quoting Roxworthy, 457 F.3d at 597) (noting that an “‘affidavit containing
conclusory statement[s],’” is insufficient). All told, Defendants have more work to do. Before
producing their privilege log, they must contemplate their burden as to each entry.
One last point. The work product doctrine is not absolute. Even if Defendants prepared

certain documents in anticipation of litigation, Plaintiffs may be able to access them upon a
showing of substantial need. While Plaintiffs may not access an attorney’s “core opinion work
product,” they may be entitled to factual work product, like investigative reports or witness
statements. Linetsky v. City of Solon, No. 1:16-CV-52, 2016 WL 5402615, at *3 (N.D. Ohio Sept.
28, 2016) (citations omitted). And in showing substantial need, the unique nature of Plaintiffs’
claims matter. See Stampley v. State Farm Fire & Cas. Co., 23 F. App’x 467, 471 (6th Cir. 2001)
(noting that “the relative importance of the information in the documents to the party’s case”
matters to the showing of “substantial need”). Plaintiffs say that the “actual investigation was
perfunctory” and its “results” and “related decisions were preordained.” (Doc. 31 at 14). So they
seek to learn, for example, whether anyone reviewed critical medical records before determining
that the care provided to dying patients was improper. (Id.). It appears, therefore, that at least
some of the documents from the investigation, which ultimately resulted in Plaintiffs’ termination
and the alleged defamation, are at the very heart of Plaintiffs’ case.
* * *

As the foregoing shows, a ruling on the privileged nature on the documents at issue would
be premature. Defendants have not completed or produced a privilege log. As they do so, they
must consider the findings set forth above as to each withheld document. Upon review of the
privilege log, Plaintiffs may raise any concerns with Defendants, and the Court expects the parties
to confer meaningfully regarding each disputed document. Only after exhausting those efforts,
may Plaintiffs file a renewed motion to compel.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion (Doc. 26) is DENIED without prejudice.
Defendants are ORDERED to produce a privilege log, consistent with the above findings, within

fourteen (14) days of the date of this Opinion and Order.
IT IS SO ORDERED.
Date: February 8, 2021 s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10377242. Public record. Not legal advice.