Preview
Superior Court of California
ROBERT H. ZIMMERMAN, Bar No. 84345 County of Butte
SCHUERING ZIMMERMAN & DOYLE, LLP
400 University Avenue 10/15/2020
Sacramento, California 95825-6502
(916) 567-0400
FAX: 568-0400 Kimi er,
By Deputy
Electronically FILED
Attorneys for ENLOE MEDICAL CENTER
SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE
10 PATSY NEWTON, individually, HAROLD NO. 20CV01091
NEWTON, individually; SUZANNE
11 BOLDEN, individually, ASSIGNED TO THE HONORABLE
JUDGE TAMARA L. MOSBARGER FOR
12 Plaintiffs, ALL PURPOSES
13 vs. DEFENDANT ENLOE MEDICAL
CENTER’S RESPONSE TO PLAINTIFF
14 ENLOE MEDICAL CENTER; and DOES 1 - PATSY NEWTON'S SEPARATE
50, et al., STATEMENT IN SUPPORT OF MOTION
15 TO COMPEL
Defendants.
16 Date: October 28, 2020
Time: 9:00 a.m
17 Dept.: 1
18 Defendant ENLOE MEDICAL CENTER hereby responds to plaintiff PATSY
19 NEWTON’s Separate Statement in Support of Motion to Compel as follows:
20 SEPARATE STATEMENT
21 DOCUMENT REQUEST No. 4
22 4. All policy and procedure manuals in effect at YOUR FACILITY or YOUR
23 HOSPITAL (for purposes of this PMQ notice and the request for documents sought herein,
24 the terms "YOU," "YOUR" and "YOUR FACILITY" or "YOUR HOSPITAL" shall mean Enloe
25 Medical Center including its agents and employees and investigators and/or anyone
26 working on your behalf) during the residency of Patsy Newton that address any of the
27 following topics: (1) pressure sore protocols; (2) monitoring of patients for pressure sores;
28 (3) prevention of pressure sores; (4) assessment of pressure sores; (5) staging of pressure
01293013.WPD 1
S
DEFENDANT ENLOE MEDICAL CENTER'S RESPONSE TO PLAINTIFF PATSY NEWTON'
SEPARATE STATEME NT IN SUPPORT OF MOTION TO COMPEL
sores; (6) identification of pressure sores; (7) monitoring of patients for infection; (8)
treatment of infection; (9) administration of medication; (10) pain assessment, (11) pain
management; (12) documentation of care; (13) notification of family members and/or
n
surrogate decision makers of change in patient condition; (14) notification of physicia
of change in patient condition; (15) hydration/dehydration; and (16) nutrition/malnutrition
(17) bladder output / urine output monitoring and assessment. (1 8) initial nursing
assessments / weekly assessments / skin assessments.
DEFENDANT'S OBJECTION /RESPONSE:
Responding Party will comply with this request.
10 P LAINTIF F'S GOOD
GOOD CAUSE ———eoTING
FY ORDER
CAUSE FOR eeeereCTION
eEOerePRODU :
eoranee
PLAINT IFF'S
Manuals that
11 There was no objection. Moreover, these requests seek Policy & Procedure
manuals
12 govern various employees. Request No. 4 seeks all policy and procedure
place during
13 regarding a number of patient care issues relevant to this case that were in
procedure
14 plaintiff's residency. Request No. 5 seeks a copy of any nursing policy and
a copy of all
15 manuals in effect during plaintiff's residency. Similarly, Request No. 19 seeks
in effect during
16 nursing management care policies, procedures and manuals that were
s policy and
17 the residency of plaintiff. Good cause for the documents exist, as the facility'
manuals
18 procedure manuals are extremely probative to the issues in this case. These
know about
19 reflect the facility's own policies that personnel are not only expected to
to residents.
20 certain patient care issues, but are also required to follow in providing care
the facility's
21 Itis plaintiffs' position that the care provided to plaintiff grossly failed to meet
policies and
22 own policies and procedures on numerous occasions. Failure to follow
policies and
23 procedures and failure to insure that the nursing staff is familiar with the
that there was
24 procedures constitutes recklessness, in that the individuals involved knew
rded this
25 a high probability that this conduct would cause harm and knowingly disrega
26 risk. Laird Decl., 4.
27 //
28 Ml
01293013.WPD 2
PATSY NEWTON‘
DEFENDANT ENLOE MEDICAL CENTER'S RESPONSE TO PLAINTIFF
SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
Reason for Not Compelling a Further Response to Request for Production No. 4:
Defendant intends to produce documents responsive to this request by Monday,
of policies in
October 19, 2020. Production has been delayed because the sheer number
existence, and page length of each policy, make production a burdensome task.
DOCUMENT REQUEST No. 5
5 Any Nursing Policy and Procedure Manuals pertaining to the operation of
YOUR FACILITY in effect during the residency of Patsy Newton, for the unit or units
wherein Ms. Newton resided.
DEFENDANT'S OBJECTION/RESPONSE:
10 Responding Party will comply with this request.
ll PLAINTIFF'S GOOD CAUSE FOR ORDERING PRODUCTION:
ure Manuals that
12 There was no objection. Moreover, these requests seek Policy & Proced
procedure manuals
13 govern various employees. Request No. 4 seeks all policy and
were in place during
14 regarding a number of patient care issues relevant to this case that
g policy and procedure
15 plaintiff's residency. Request No. 5 seeks a copy of any nursin
No. 19 seeks a copy of all
16 manuals in effect during plaintiff's residency. Similarly, Request
that were in effect during
17 nursing management care policies, procedures and manuals
facility's policy and
18 the residency of plaintiff. Good cause for the documents exist, as the
case. These manuals
19 procedure manuals are extremely probative to the issues in this
ed to know about
20 reflect the facility's own policies that personnel are not only expect
ing care to residents.
21 certain patient care issues, but are also required to follow in provid
to meet the facility's
22 Itis plaintiffs' position that the care provided to plaintiff grossly failed
to follow policies and
23 own policies and procedures on numerous occasions. Failure
with the policies and
24 procedures and failure to insure that the nursing staff is familiar
there was
25 procedures constitut ‘es recklessness, in that the individuals involved knew that
ngly disregarded this
26 a high probability that this conduct would cause harm and knowi
27 risk. Laird Decl., 4.
28 Ml
01293013.WPD- 3
FF PATSY NEWTON'S
DEFENDANT ENLOE MEDICAL CENTER'S RESPONSE TO PLAINTI
L
SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPE
No. 5:
Reason for Not Compelling a Further Response to Request for Production
Defendant intends to produce documents responsive to this request by Monday,
of policies in
October 19, 2020. Production has been delayed because the sheer number
task.
existence, and page length of each policy, make production a burdensome
DOCUMENT REQUEST No. 6
the
6. Any Hospital Administration Policy and Procedure Manuals pertaining to
.
operation of YOUR FACILITY in effect during the residency of Patsy Newton
DEFENDANT'S OBJECTION/RESPONSE:
t by Monday, October
Defendant intends to produce documents responsive to this reques
policies in existence,
10 19, 2020. Production has been delayed because the sheer number of
nsome task.
11 and page length of each policy, had made production a burde
P LAINT IFF'SS GOOD CAUSE FOR
CAUSE ORDERING PRODUCTI ON:
12 P
PLAIN TIFF' y
GOOD e
ure Manuals that
13 There was no objection. Moreover, these requests seek Policy & Proced
and procedure manuals
14 govern various employees. Request No. 4 seeks all policy
that were in place during
15 regarding a number of patient care issues relevant to this case
g policy and procedure
16 plaintiffs residency. Request No. 5 seeks a copy of any nursin
No. 19 seeks a copy of all
17 manuals in effect during plaintiff's residency. Similarly, Request
that were in effect during
18 nursing management care policies, procedures and manuals
as the facility's policy and
19 the residency of plaintiff. Good cause for the documents exist,
this case. These manuals
20 procedure manuals are extremely probative to the issues in
expected to know about
21 reflect the facility's own policies that personnel are not only
ing care to residents.
22 certain patient care issues, but are also required to follow in provid
failed to meet the facility's
23 Itis plaintiffs’ position that the care provided to plaintiff grossly
to follow policies and
24 own policies and procedures on numerous occasions. Failure
familiar with the policies and
25 procedures and fail lure to insure that the nursing staff is
ed knew that there was
26 procedures constitutes reckle: ssness, in that the individuals involv
knowingly disregarded this
27 a high probability that this conduct would cause harm and
28 risk. Laird Decl, 4.
4
01293013.WPD
IFF PATSY NEWTON'S
DEFENDANT ENLOE MEDICAL CENTER'S RESPONSE TO PLAINT
L
SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPE
Reason for Not Compelling a Further Response to Request for Production No. 6:
Defendant intends to produce documents responsive to this request by Monday,
October 19, 2020, Production has been delayed because the sheer number of policies in
existence, and page length of each policy, make production a burdensome task.
DOCUMENT REQUEST No.15
15. Please provide YOUR 2017 Nursing Department budget for each unit in
which PLAINTIFF stayed at the HOSPITAL during her admissions in August 2019 -
December 2019.
DEFENDANT'S OBJECTION/RESPONSE:
10 Objection. This request violates the right to privacy. Further, this request is irrelevant and
11 not reasonably calculated to lead to the discovery of admissible evidence.
12 P LAINTIF F'S
IFFS GOOD ER ORDER
CAUSE FOR
GOOD CAUSE ——E—E CTION:
PRODUeevom
ING e__Ee
PLAINT
plaintiff
13 Requests 15-18; 49 requested nursing department budgets for the units in which
the following
14 stayed, between the years 2017-2020. Defendants served objections on
15 grounds: Right to Privacy, relevance. No other grounds. The relevancy of the documents
al information
16 are unquestionable. To begin, the request is not seeking any financi
d-looking plan
17 because of the nature of what the documentis. A budget is simplya forwar
ial condition" ie.
18 regarding expenses and spending. It tells you nothing about the "financ
Enloe Medical Center.
19 - relative wealth, economic strength, profits, losses and so on of
controlling California case law, plaintiffs may use evidence of a
20 Even so, under
when such
21 defendant's profits or financial condition in the liability phase of a trial
App. 3d 86
22 evidence is relevant to liability. See, e.g., Rawnsley v. Superior Court, 183 Cal.
Further,
23 (1986); Notrica v. State Compensation Ins. Fund, 70 Cal. App. 4th 911, 939 (1999).
int. Plaintiffs
24 the documents are entirely relevant given the allegations of plaintiffs’ compla
as plaintiffs
25 allegation that defendant was insufficiently staffed is relevant to liability
of plaintiffand
26 believe insufficient staffing of the facility contributed to the reckless neglect
failures in patent
27 that managing agents purposefully underfunded the units, causing the
because plaintiffs’
28 care that let to Mrs. Newton's neglect. The facility's budget is relevant
01293013.WPD 5
PATSY NEWTON'S
DEFENDANT ENLOE MEDICAL CENTER'S RESPONSE TO PLAINTIFF
SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPE L
expert will use and rely upon the budget to assess whether the facility had sufficient
staffing. Specifically, the facility's budget will show how much defendants budgeted to
the nursing.department and to each level of nursing personnel licensed, unlicensed, and
supervisory charges in particular). If defendants inadequately budgeted from the outset,
such evidence will powerfully support plaintiffs’ contention that the reckless neglect
plaintiff suffered was authorized, participated in, or ratified by a managing agent. To
pursue this theory of liability, plaintiffs are entitled to gather records regarding defendant's
of
budgeting practices for the time frame requested to show a pattern and practice
insufficient staffing on the part of the facility. Accordingly, these requests are not
10 "irrelevant." (See Laird Decl., 5.)
11 As to defendant's privacy objection, this objection lacks merit. First, as a business
Gulf Oil
12 entity, Enloe itself does not have a per se right to privacy. See, e.g., Roberts v.
d against
13 Corp., 147 Cal. App. 3d 770, 796-97 (1983). The right to privacy must be balance
it can be
14 the plaintiff's rights in this lawsuit to relevant information, especially when
to the
15 protected from widespread disclosure. Given that the request is narrowly tailored
that will show a
16 units/departments where plaintiff resided, in a reasonable time frame,
given that
17 pattern and practice of under-budgeting (and corresponding understaffing) and
ng agent
18 plaintiffs have an heightened burden of proof to show recklessness by a managi
the kind that
19 through clear and convincing evidence, this type of documentation is exactly
to be
20 can empirically support plaintiffs position and that trial courts have allowed
ness to
21 examined in the past. Any privacy concern can be obviated by plaintiff's willing
5.)
22 enter into a protective order, which we are willing to do. (See Laird Decl.,
No. 15
23 Reason for Not Compelling a Further Response to Request for Production
24 Plaintiffs assert the responsive documents are relevant to liability, as they prove
resulted in “insufficient staffing” and consequent “reckless
25 “inadequate budgeting”
ation for
26 neglect of plaintiff.” (Motion to Compel at 6.) However, Plaintiffs’ asserted justific
compelling their
27 production of the documents is insufficient to warrant an order
nts that
28 production because: (1) Defendant has already produced thousands of docume
01293013.WPD 6
PATSY NEWTON'S
DEFENDANT ENLOE MEDICAL CENTER'S RESPONSE TO PLAINTIFF
SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPE L
directly address the issue of adequate staffing and; (2) Plaintiffs have failed to set forth
specific facts showing good cause justifying the discovery sought by the demand.
Defendant has already produced tens-of-thousands of documents that indisputably
audit
and directly address the issue of “insufficient staffing.” Defendant has produced
trails, detailed medical records, documents recording acuity levels, assignment
(Hogan
sheets, employee charts, and documents that record staff to patient ratios.
staff employed,
Declaration 19.) These documents thoroughly detail the number of
to Ms. Newton,
the hours they worked, when they worked, when the provided care
Plaintiffs have
and the specific care provided received. (Hogan Declaration { 10.)
on these issues.
10 also deposed more than ten individuals who provided testimony
sion of direct evidence
11 (Hogan Declaration 11 1.) As such, Plaintiffs are already in posses
financial documents
12 related to the quality and quantity of care. Production of the sensitive
fs’ argument of
13 requested would constitute circumstantial evidence regarding Plaintif
14 “insufficient staffing” and would be duplicative.
15 Further, Plaintiffs are “working backwards” in this request, as the bounty of
icient staffing” theory as
16 documents Defendant has produced exposes Plaintiffs’ “insuff
Defendant maintained a
17 completely baseless. Documents already produced show
tment of Public Health
18 favorable staff to patient ratio that was above the California Depar
turned once every
19 guidelines. (Hogan Declaration 1112.) They also show Ms. Newton was
11 13.) Finally, they
20 two hours, in accordance with CDPH guidelines. (Hogan Declaration
during the period
21 show staff provided Ms. Newton with substantial care on a daily basis
mountain of evidence
22 of alleged negligence. (Hogan Declaration 1114.) In short, there is a
staffing” isa baseless
23 that clearly demonstrates that Plaintiffs’ argument of “insufficient
fishing expedition
24 theory unsupported by fact. Plaintiffs’ mere allegations and attemptata
financial documents
25 should not, without more, justify disclosure of the sensitive
26 requested.
good cause justifying
27 Further, Plaintiffs have not set forth specific facts showing
n 2031.310(b) requires
28 discovery sought by the demand, as Code of Civil Procedure sectio
01293013.WPD 7
FF PATSY NEWTON‘
DEFENDANT ENLOE MEDICAL CENTER'S RESPONSE TO PLAINTI
SEPARATE STATEMENT IN SUPPORT OF MOTIO N TO COMPEL
them to do. The law is clear that motions to compel further responses to requests for
y
production “shall set forth specific facts showing good cause justifying the discover
failed to
sought by the demand.” (Code Civ. Proc., § 2031 .310(b).) Here, Plaintiffs have
assert any specific facts, supported by evidence, to establish good cause to justify
e
disclosure of the documents requested. No documents, testimony, or other evidenc
Court
have been presented to support Plaintiffs’ theory of “insufficient staffing.” This
ory
should require Plaintiffs to do more than merely file a complaint and make conclus
e sensitive
allegations before ordering Defendant, a non-profit medical facility, to produc
financial documents. (See Code Civ. Proc., § 2031.310(b).)
ey
10 Itis worth noting that, in support of their motion to compel, Plaintiffs cite Rawnsl
Ins. Fund
11 v. Superior Court (1986) 183 Cal.App.3d 86, and Notrica v. State Compensation
use evidence of a
12 (1999) 70 Cal.App.4th 911, 939, for the proposition that “plaintiffs may
trial when such
13 defendant’s profits or financial condition in the liability phase of a
fs’ assertion may
14 evidence is relevant to liability.” (Motion to Compel at 5-6.) While Plaintif
e and thus not
15 be true in the general sense, both cases are clearly distinguishabl
16 applicable here.
te entity
17 In Rawnsley, the plaintiff filed various causes of action against a corpora
ley, supra, 183
18 allegin g fraudulent practices with regard to distribution of funds. (Rawns
t for production of
19 Cal.App.3d at 89.) The plaintiff served on the defendant a reques
detailed financial information, corporate records and
20 documents, seeking
items. (Jd. at 89-90.) The
21 correspondence, written agreements or contracts, and other
plaintiff's motion to
22 Court of Appeal overturned the trial court decision denying the
plaintiff's case. (Id.
23 compel because the documents sought were “fundamental” to the
f alleged individual
24 at91.) The documents sought were “fundamental” because the plaintif
only way the plaintiff
25 defendants or corporations had converted and diverted assets. The
. (Id.) Itis only where
26 could prove his case was to obtain the defendants’ financial records
that a litigant should
27 the financial information goes to the heart of the cause ofaction itself
28 not be denied access. (Id.)
01293013.WPD
8
FF PATSY NEWTON'S
DEFENDANT ENLOE MEDICAL CENTER'S RESPONSE TO PLAINTI
SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL
Rawnsley is distinguishable from the case at hand because Defendant's financial
records are not “fundamental” to the causes of action Plaintiffs assert. The “heart” of
Plaintiffs’ complaint is not the financials of Defendant, a non-profit facility, but elder abuse
based on an alleged deficiency in quantity and quality of care provided. Plaintiffs have at
their disposal a bounty of discovery, including detailed medical records, assignment
sheets, acuity levels, staff to patient ratio records, and more, all of which provide a wealth
of information regarding the care at issue. The detailed financial records Plaintiffs request
are thus not “fundamental” because Plaintiffs have substantial evidence at their disposal
regarding the issues in this matter.
action
10 Notrica also seems to have no relevance here, as it relates to a cause of
The
11 alleging tortious breach of the implied covenant of good faith and fair dealing.
“[evidence of
12 relevant portion of the case for the purposes of Plaintiffs’ argument states,
the
13 adefendant’s wealth and profits] is not to be excluded on the basis of prejudice when
in Notrica is
14 information is relevant to liability.” (Id. at 939.) However, plaintiff's analysis
are objecting
15 off-base because we are not objecting based on prejudice. Instead, we
privacy
16 because the documents are not relevant, and they violate the right to
17 DOCUMENT REQUEST No.16
18 16. Please provide YOUR 2018 Nursing Department budget for each unit in
-
19 which PLAINTIFF stayed at the HOSPITAL during her admissions in August 2019
20 December 2019.
21 DEFENDANT'S OBJECTION/RESPONSE:
nt and
22 Objection. This request violates the right to privacy. Further, this request is irreleva
ce.
23 not reasonably calculated to lead to the discovery of admissible eviden
24 P LAINTIIFE
FF'S S GOOD TUR ORDER
CAUSE FOR
GOOD CAUSE ING
eeeeeeeeeee PRODU
eeEeEeaeame CTION
moeermvomeu :
wmww—=”»
PLAINT
plaintiff
25 Requests 15-18; 49 requested nursing department budgets for the units in which
the following
26 stayed, between the years 2017-2020. Defendants served objections on
documents
27 grounds: Right to Privacy, relevance. No other grounds. The relevancy of the
To begin, the request is not seeking any financial information
28 are unquestionable.
01293013.WPD 9
NEWTON‘:
DEFENDANT ENLOE MEDICAL CENTER'S RESPONSE TO PLAINTIFF PATSY
SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPE L
because of the nature of what the document is. A budget is simplya forward-looking plan
regarding expenses and spending. It tells you nothing about the "financial condition" ie.
- relative wealth, economic strength, profits, losses and so on of Enloe Medical Center.
Even so, under controlling California case law, plaintiffs may use evidence of a
defendant's profits or financial condition in the liability phase of a trial when such
evidence is relevant to liability. See, e.g., Rawnsley v. Superior Court, 183 Cal. App. 3d 86
(1986); Notrica v. State Compensation Ins. Fi ‘und, 70 Cal. App. 4th 911, 939 (1999). Further,
s
the documents are entirely relevant given the allegations of plaintiffs' complaint. Plaintiff'
s
allegation that defendant was insufficiently staffed is relevant to liability as plaintiff
fand
10 believe insufficient staffing of the facility contributed to the reckless neglect of plaintif
patent
i that managing agents purposefully underfunded the units, causing the failures in
'
12 care that let to Mrs. Newton's neglect. The facility's budget is relevant because plaintiffs
t
13 expert will use and rely upon the budget to assess whether the facility had sufficien
budgeted to
14 staffing. Specifically, the facility's budget will show how much defendants
unlicensed, and
15 the nursing department and to each level of nursing personnel licensed,
from the outset,
16 supervisory charges in particular). If defendants inadequately budgeted
such evidence will powerfully support plaintiffs’ contention that the reckless neglect
17
agent. To
18 plaintiff suffered was authorized, participated in, or ratified by a managing
defendant's
19 pursue this theory of liability, plaintiffs are entitled to gather records regarding
20 budgeting practices for the time frame requested to show a pattern and practice of
21 insufficient staffing on the part of the facility. Accordingly, these requests are not
22 "irrelevant." (See Laird Decl., 5.)
s
23 As to defendant's privacy objection, this objection lacks merit. First, as a busines
Gulf Oil
24 entity, Enloe itself does not have a per se right to privacy. See, e.g., Roberts v.
d against
25 Corp., 147 Cal. App. 3d 770, 796-97 (1983). The right to privacy must be balance
when it can be
26 the plaintiff's rights in this lawsuit to relevant information, especially
ly tailored to the
27 protected from widespread disclosure. Given that the request is narrow
frame, that will show a
28 units/departments where plaintiff resided, in a reasonable time
01293013.WPD 10
PATSY NEWTON'S
DEFENDANT ENLOE MEDICAL CENTER'S RESPONSE TO PLAINTIFF
SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPE L
pattern and practice of under-budgeting (and corresponding understaffing) and given that
plaintiffs have an heightened burden of proof to show recklessness by a managing agent
through clear and convincing evidence, this type of documentation is exactly the kind that
can empirically support plaintiff's position and that trial courts have allowed to be
to
examined in the past. Any privacy concern can be obviated by plaintiff's willingness
enter into a protective order, which we are willing to do. (See Laird Decl., 5.)
No. 16
Reason for Not Compelling a Further Response to Request for Production
Plaintiffs assert the responsive documents are relevant to liability, as they prove
“inadequate budgeting” resulted in “insufficient staffing” and consequent “reckless
ation for
10 neglect of plaintiff.” (Motion to Compel at 6.) However, Plaintiffs’ asserted justific
ing their
11 production of the documents is insufficient to warrant an order compell
nts that
12 production because: (1) Defendant has already produced thousands of docume
to set forth
13 directly address the issue of adequate staffing and; (2) Plaintiffs have failed
demand.
14 specific facts showing good cause justifying the discovery sought by the
tably
15 Defendanthas already produced tens-of-thousands of documents that indispu
produced audit
16 and directly address the issue of “insufficient staffing.” Defendant has
trails, detailed medical records, documents recording acuity levels, assignment
17
ratios. (Hogan
18 sheets, employee charts, and documents that record staff to patient
staff employed,
19 Declaration 19.) These documents thoroughly detail the number of
Ms. Newton,
20 the hours they worked, when they worked, when the provided care to
fs have
21 and the specific care provided received. (Hogan Declaration {| 10.) Plaintif
these issues.
22 also deposed more than ten individuals who provided testimony on
of direct evidence
23 (Hogan Declaration 111 .) As such, Plaintiffs are already in possession
l documents
24 related to the quality and quantity of care. Production of the sensitive financia
Plaintiffs’ argument of
25 requested would constitute circumstantial evidence regarding
26 “insufficient staffing” and would be duplicative.
27 Further, Plaintiffs are “working backwards” in this request, as the bounty of
staffing” theory as
28 documents Defendant has produced exposes Plaintiffs’ “insufficient
01293013.WPD 1
PATSY NEWTON'S
DEFENDANT ENLOE MEDICAL CENTER'S RESPONSE TO PLAINTIFF
SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPE L
completely baseless. Documents already produced show Defendant maintained a
favorable staff to patient ratio that was above the California Department of Public Health
guidelines. (Hogan Declaration 1 12.) They also show Ms. Newton was turned once every
two hours, in accordance with CDPH guidelines. (Hogan Declaration {1 13.) Finally, they
show staff provided Ms. Newton with substantial care on a daily basis during the period
of alleged negligence. (Hogan Declaration 1 14.) In short, there is a mountain of evidence
that clearly demonstrates that Plaintiffs’ argument of “insufficient staffing” is a baseless
ion
theory unsupported by fact. Plaintiffs’ mere allegations and attemptata fishing expedit
should not, without more, justify disclosure of the sensitive financial documents
10 requested.
1 Further, Plaintiffs have not set forth specific facts showing good cause justifying
requires
12 discovery sought by the demand, as Code of Civil Procedure section 2031.310(b)
requests for
13 them to do. The law is clear that motions to compel further responses to
discovery
14 production “shall set forth specific facts showing good cause justifying the
have failed to
15 sought by the demand.” (Code Civ. Proc., § 2031.310(b).) Here, Plaintiffs
cause to justify
16 assert any specific facts, supported by evidence, to establish good
ony, or other evidence
17 disclosure of the documents requested. No documents, testim
g.” This Court
18 have been presented to support Plaintiffs’ theory of “insufficient staffin
make conclusory
19 should require Plaintiffs to do more than merely file a complaint and
produce sensitive
20 allegations before ordering Defendant, a non-profit medical facility, to
21 financial documents. (See Code Civ. Proc., § 2031.310(b).)
ey
22 Itis worth noting that, in support of their motion to compel, Plaintiffs cite Rawnsl
Ins. Fund
23 v. Superior Court (1986) 183 Cal.App.3d 86, and Notrica v. State Compensation
use evidence ofa
24 (1999) 70 Cal.App.4th 911, 939, for the proposition that “plaintiffs may
trial when such
25 defendant's profits or financial condition in the liability phase of a
fs’ assertion may
26 evidence is relevant to liability.” (Motion to Compelat 5-6.) While Plaintif
e and thus not
27 be true in the general sense, both cases are clearly distinguishabl
28 applicable here
Preview
Superior Court of California ROBERT H. ZIMMERMAN, Bar No. 84345 County of Butte SCHUERING ZIMMERMAN & DOYLE, LLP 400 University Avenue 10/15/2020 Sacramento, California 95825-6502 (916) 567-0400 FAX: 568-0400 Kimi er, By Deputy Electronically FILED Attorneys for ENLOE MEDICAL CENTER SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE 10 PATSY NEWTON, individually, HAROLD NO. 20CV01091 NEWTON, individually; SUZANNE 11 BOLDEN, individually, ASSIGNED TO THE HONORABLE JUDGE TAMARA L. MOSBARGER FOR 12 Plaintiffs, ALL PURPOSES 13 vs. DEFENDANT ENLOE MEDICAL CENTER’S RESPONSE TO PLAINTIFF 14 ENLOE MEDICAL CENTER; and DOES 1 - PATSY NEWTON'S SEPARATE 50, et al., STATEMENT IN SUPPORT OF MOTION 15 TO COMPEL Defendants. 16 Date: October 28, 2020 Time: 9:00 a.m 17 Dept.: 1 18 Defendant ENLOE MEDICAL CENTER hereby responds to plaintiff PATSY 19 NEWTON’s Separate Statement in Support of Motion to Compel as follows: 20 SEPARATE STATEMENT 21 DOCUMENT REQUEST No. 4 22 4. All policy and procedure manuals in effect at YOUR FACILITY or YOUR 23 HOSPITAL (for purposes of this PMQ notice and the request for documents sought herein, 24 the terms "YOU," "YOUR" and "YOUR FACILITY" or "YOUR HOSPITAL" shall mean Enloe 25 Medical Center including its agents and employees and investigators and/or anyone 26 working on your behalf) during the residency of Patsy Newton that address any of the 27 following topics: (1) pressure sore protocols; (2) monitoring of patients for pressure sores; 28 (3) prevention of pressure sores; (4) assessment of pressure sores; (5) staging of pressure 01293013.WPD 1 S DEFENDANT ENLOE MEDICAL CENTER'S RESPONSE TO PLAINTIFF PATSY NEWTON' SEPARATE STATEME NT IN SUPPORT OF MOTION TO COMPEL sores; (6) identification of pressure sores; (7) monitoring of patients for infection; (8) treatment of infection; (9) administration of medication; (10) pain assessment, (11) pain management; (12) documentation of care; (13) notification of family members and/or n surrogate decision makers of change in patient condition; (14) notification of physicia of change in patient condition; (15) hydration/dehydration; and (16) nutrition/malnutrition (17) bladder output / urine output monitoring and assessment. (1 8) initial nursing assessments / weekly assessments / skin assessments. DEFENDANT'S OBJECTION /RESPONSE: Responding Party will comply with this request. 10 P LAINTIF F'S GOOD GOOD CAUSE ———eoTING FY ORDER CAUSE FOR eeeereCTION eEOerePRODU : eoranee PLAINT IFF'S Manuals that 11 There was no objection. Moreover, these requests seek Policy & Procedure manuals 12 govern various employees. Request No. 4 seeks all policy and procedure place during 13 regarding a number of patient care issues relevant to this case that were in procedure 14 plaintiff's residency. Request No. 5 seeks a copy of any nursing policy and a copy of all 15 manuals in effect during plaintiff's residency. Similarly, Request No. 19 seeks in effect during 16 nursing management care policies, procedures and manuals that were s policy and 17 the residency of plaintiff. Good cause for the documents exist, as the facility' manuals 18 procedure manuals are extremely probative to the issues in this case. These know about 19 reflect the facility's own policies that personnel are not only expected to to residents. 20 certain patient care issues, but are also required to follow in providing care the facility's 21 Itis plaintiffs' position that the care provided to plaintiff grossly failed to meet policies and 22 own policies and procedures on numerous occasions. Failure to follow policies and 23 procedures and failure to insure that the nursing staff is familiar with the that there was 24 procedures constitutes recklessness, in that the individuals involved knew rded this 25 a high probability that this conduct would cause harm and knowingly disrega 26 risk. Laird Decl., 4. 27 // 28 Ml 01293013.WPD 2 PATSY NEWTON‘ DEFENDANT ENLOE MEDICAL CENTER'S RESPONSE TO PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL Reason for Not Compelling a Further Response to Request for Production No. 4: Defendant intends to produce documents responsive to this request by Monday, of policies in October 19, 2020. Production has been delayed because the sheer number existence, and page length of each policy, make production a burdensome task. DOCUMENT REQUEST No. 5 5 Any Nursing Policy and Procedure Manuals pertaining to the operation of YOUR FACILITY in effect during the residency of Patsy Newton, for the unit or units wherein Ms. Newton resided. DEFENDANT'S OBJECTION/RESPONSE: 10 Responding Party will comply with this request. ll PLAINTIFF'S GOOD CAUSE FOR ORDERING PRODUCTION: ure Manuals that 12 There was no objection. Moreover, these requests seek Policy & Proced procedure manuals 13 govern various employees. Request No. 4 seeks all policy and were in place during 14 regarding a number of patient care issues relevant to this case that g policy and procedure 15 plaintiff's residency. Request No. 5 seeks a copy of any nursin No. 19 seeks a copy of all 16 manuals in effect during plaintiff's residency. Similarly, Request that were in effect during 17 nursing management care policies, procedures and manuals facility's policy and 18 the residency of plaintiff. Good cause for the documents exist, as the case. These manuals 19 procedure manuals are extremely probative to the issues in this ed to know about 20 reflect the facility's own policies that personnel are not only expect ing care to residents. 21 certain patient care issues, but are also required to follow in provid to meet the facility's 22 Itis plaintiffs' position that the care provided to plaintiff grossly failed to follow policies and 23 own policies and procedures on numerous occasions. Failure with the policies and 24 procedures and failure to insure that the nursing staff is familiar there was 25 procedures constitut ‘es recklessness, in that the individuals involved knew that ngly disregarded this 26 a high probability that this conduct would cause harm and knowi 27 risk. Laird Decl., 4. 28 Ml 01293013.WPD- 3 FF PATSY NEWTON'S DEFENDANT ENLOE MEDICAL CENTER'S RESPONSE TO PLAINTI L SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPE No. 5: Reason for Not Compelling a Further Response to Request for Production Defendant intends to produce documents responsive to this request by Monday, of policies in October 19, 2020. Production has been delayed because the sheer number task. existence, and page length of each policy, make production a burdensome DOCUMENT REQUEST No. 6 the 6. Any Hospital Administration Policy and Procedure Manuals pertaining to . operation of YOUR FACILITY in effect during the residency of Patsy Newton DEFENDANT'S OBJECTION/RESPONSE: t by Monday, October Defendant intends to produce documents responsive to this reques policies in existence, 10 19, 2020. Production has been delayed because the sheer number of nsome task. 11 and page length of each policy, had made production a burde P LAINT IFF'SS GOOD CAUSE FOR CAUSE ORDERING PRODUCTI ON: 12 P PLAIN TIFF' y GOOD e ure Manuals that 13 There was no objection. Moreover, these requests seek Policy & Proced and procedure manuals 14 govern various employees. Request No. 4 seeks all policy that were in place during 15 regarding a number of patient care issues relevant to this case g policy and procedure 16 plaintiffs residency. Request No. 5 seeks a copy of any nursin No. 19 seeks a copy of all 17 manuals in effect during plaintiff's residency. Similarly, Request that were in effect during 18 nursing management care policies, procedures and manuals as the facility's policy and 19 the residency of plaintiff. Good cause for the documents exist, this case. These manuals 20 procedure manuals are extremely probative to the issues in expected to know about 21 reflect the facility's own policies that personnel are not only ing care to residents. 22 certain patient care issues, but are also required to follow in provid failed to meet the facility's 23 Itis plaintiffs’ position that the care provided to plaintiff grossly to follow policies and 24 own policies and procedures on numerous occasions. Failure familiar with the policies and 25 procedures and fail lure to insure that the nursing staff is ed knew that there was 26 procedures constitutes reckle: ssness, in that the individuals involv knowingly disregarded this 27 a high probability that this conduct would cause harm and 28 risk. Laird Decl, 4. 4 01293013.WPD IFF PATSY NEWTON'S DEFENDANT ENLOE MEDICAL CENTER'S RESPONSE TO PLAINT L SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPE Reason for Not Compelling a Further Response to Request for Production No. 6: Defendant intends to produce documents responsive to this request by Monday, October 19, 2020, Production has been delayed because the sheer number of policies in existence, and page length of each policy, make production a burdensome task. DOCUMENT REQUEST No.15 15. Please provide YOUR 2017 Nursing Department budget for each unit in which PLAINTIFF stayed at the HOSPITAL during her admissions in August 2019 - December 2019. DEFENDANT'S OBJECTION/RESPONSE: 10 Objection. This request violates the right to privacy. Further, this request is irrelevant and 11 not reasonably calculated to lead to the discovery of admissible evidence. 12 P LAINTIF F'S IFFS GOOD ER ORDER CAUSE FOR GOOD CAUSE ——E—E CTION: PRODUeevom ING e__Ee PLAINT plaintiff 13 Requests 15-18; 49 requested nursing department budgets for the units in which the following 14 stayed, between the years 2017-2020. Defendants served objections on 15 grounds: Right to Privacy, relevance. No other grounds. The relevancy of the documents al information 16 are unquestionable. To begin, the request is not seeking any financi d-looking plan 17 because of the nature of what the documentis. A budget is simplya forwar ial condition" ie. 18 regarding expenses and spending. It tells you nothing about the "financ Enloe Medical Center. 19 - relative wealth, economic strength, profits, losses and so on of controlling California case law, plaintiffs may use evidence of a 20 Even so, under when such 21 defendant's profits or financial condition in the liability phase of a trial App. 3d 86 22 evidence is relevant to liability. See, e.g., Rawnsley v. Superior Court, 183 Cal. Further, 23 (1986); Notrica v. State Compensation Ins. Fund, 70 Cal. App. 4th 911, 939 (1999). int. Plaintiffs 24 the documents are entirely relevant given the allegations of plaintiffs’ compla as plaintiffs 25 allegation that defendant was insufficiently staffed is relevant to liability of plaintiffand 26 believe insufficient staffing of the facility contributed to the reckless neglect failures in patent 27 that managing agents purposefully underfunded the units, causing the because plaintiffs’ 28 care that let to Mrs. Newton's neglect. The facility's budget is relevant 01293013.WPD 5 PATSY NEWTON'S DEFENDANT ENLOE MEDICAL CENTER'S RESPONSE TO PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPE L expert will use and rely upon the budget to assess whether the facility had sufficient staffing. Specifically, the facility's budget will show how much defendants budgeted to the nursing.department and to each level of nursing personnel licensed, unlicensed, and supervisory charges in particular). If defendants inadequately budgeted from the outset, such evidence will powerfully support plaintiffs’ contention that the reckless neglect plaintiff suffered was authorized, participated in, or ratified by a managing agent. To pursue this theory of liability, plaintiffs are entitled to gather records regarding defendant's of budgeting practices for the time frame requested to show a pattern and practice insufficient staffing on the part of the facility. Accordingly, these requests are not 10 "irrelevant." (See Laird Decl., 5.) 11 As to defendant's privacy objection, this objection lacks merit. First, as a business Gulf Oil 12 entity, Enloe itself does not have a per se right to privacy. See, e.g., Roberts v. d against 13 Corp., 147 Cal. App. 3d 770, 796-97 (1983). The right to privacy must be balance it can be 14 the plaintiff's rights in this lawsuit to relevant information, especially when to the 15 protected from widespread disclosure. Given that the request is narrowly tailored that will show a 16 units/departments where plaintiff resided, in a reasonable time frame, given that 17 pattern and practice of under-budgeting (and corresponding understaffing) and ng agent 18 plaintiffs have an heightened burden of proof to show recklessness by a managi the kind that 19 through clear and convincing evidence, this type of documentation is exactly to be 20 can empirically support plaintiffs position and that trial courts have allowed ness to 21 examined in the past. Any privacy concern can be obviated by plaintiff's willing 5.) 22 enter into a protective order, which we are willing to do. (See Laird Decl., No. 15 23 Reason for Not Compelling a Further Response to Request for Production 24 Plaintiffs assert the responsive documents are relevant to liability, as they prove resulted in “insufficient staffing” and consequent “reckless 25 “inadequate budgeting” ation for 26 neglect of plaintiff.” (Motion to Compel at 6.) However, Plaintiffs’ asserted justific compelling their 27 production of the documents is insufficient to warrant an order nts that 28 production because: (1) Defendant has already produced thousands of docume 01293013.WPD 6 PATSY NEWTON'S DEFENDANT ENLOE MEDICAL CENTER'S RESPONSE TO PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPE L directly address the issue of adequate staffing and; (2) Plaintiffs have failed to set forth specific facts showing good cause justifying the discovery sought by the demand. Defendant has already produced tens-of-thousands of documents that indisputably audit and directly address the issue of “insufficient staffing.” Defendant has produced trails, detailed medical records, documents recording acuity levels, assignment (Hogan sheets, employee charts, and documents that record staff to patient ratios. staff employed, Declaration 19.) These documents thoroughly detail the number of to Ms. Newton, the hours they worked, when they worked, when the provided care Plaintiffs have and the specific care provided received. (Hogan Declaration { 10.) on these issues. 10 also deposed more than ten individuals who provided testimony sion of direct evidence 11 (Hogan Declaration 11 1.) As such, Plaintiffs are already in posses financial documents 12 related to the quality and quantity of care. Production of the sensitive fs’ argument of 13 requested would constitute circumstantial evidence regarding Plaintif 14 “insufficient staffing” and would be duplicative. 15 Further, Plaintiffs are “working backwards” in this request, as the bounty of icient staffing” theory as 16 documents Defendant has produced exposes Plaintiffs’ “insuff Defendant maintained a 17 completely baseless. Documents already produced show tment of Public Health 18 favorable staff to patient ratio that was above the California Depar turned once every 19 guidelines. (Hogan Declaration 1112.) They also show Ms. Newton was 11 13.) Finally, they 20 two hours, in accordance with CDPH guidelines. (Hogan Declaration during the period 21 show staff provided Ms. Newton with substantial care on a daily basis mountain of evidence 22 of alleged negligence. (Hogan Declaration 1114.) In short, there is a staffing” isa baseless 23 that clearly demonstrates that Plaintiffs’ argument of “insufficient fishing expedition 24 theory unsupported by fact. Plaintiffs’ mere allegations and attemptata financial documents 25 should not, without more, justify disclosure of the sensitive 26 requested. good cause justifying 27 Further, Plaintiffs have not set forth specific facts showing n 2031.310(b) requires 28 discovery sought by the demand, as Code of Civil Procedure sectio 01293013.WPD 7 FF PATSY NEWTON‘ DEFENDANT ENLOE MEDICAL CENTER'S RESPONSE TO PLAINTI SEPARATE STATEMENT IN SUPPORT OF MOTIO N TO COMPEL them to do. The law is clear that motions to compel further responses to requests for y production “shall set forth specific facts showing good cause justifying the discover failed to sought by the demand.” (Code Civ. Proc., § 2031 .310(b).) Here, Plaintiffs have assert any specific facts, supported by evidence, to establish good cause to justify e disclosure of the documents requested. No documents, testimony, or other evidenc Court have been presented to support Plaintiffs’ theory of “insufficient staffing.” This ory should require Plaintiffs to do more than merely file a complaint and make conclus e sensitive allegations before ordering Defendant, a non-profit medical facility, to produc financial documents. (See Code Civ. Proc., § 2031.310(b).) ey 10 Itis worth noting that, in support of their motion to compel, Plaintiffs cite Rawnsl Ins. Fund 11 v. Superior Court (1986) 183 Cal.App.3d 86, and Notrica v. State Compensation use evidence of a 12 (1999) 70 Cal.App.4th 911, 939, for the proposition that “plaintiffs may trial when such 13 defendant’s profits or financial condition in the liability phase of a fs’ assertion may 14 evidence is relevant to liability.” (Motion to Compel at 5-6.) While Plaintif e and thus not 15 be true in the general sense, both cases are clearly distinguishabl 16 applicable here. te entity 17 In Rawnsley, the plaintiff filed various causes of action against a corpora ley, supra, 183 18 allegin g fraudulent practices with regard to distribution of funds. (Rawns t for production of 19 Cal.App.3d at 89.) The plaintiff served on the defendant a reques detailed financial information, corporate records and 20 documents, seeking items. (Jd. at 89-90.) The 21 correspondence, written agreements or contracts, and other plaintiff's motion to 22 Court of Appeal overturned the trial court decision denying the plaintiff's case. (Id. 23 compel because the documents sought were “fundamental” to the f alleged individual 24 at91.) The documents sought were “fundamental” because the plaintif only way the plaintiff 25 defendants or corporations had converted and diverted assets. The . (Id.) Itis only where 26 could prove his case was to obtain the defendants’ financial records that a litigant should 27 the financial information goes to the heart of the cause ofaction itself 28 not be denied access. (Id.) 01293013.WPD 8 FF PATSY NEWTON'S DEFENDANT ENLOE MEDICAL CENTER'S RESPONSE TO PLAINTI SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPEL Rawnsley is distinguishable from the case at hand because Defendant's financial records are not “fundamental” to the causes of action Plaintiffs assert. The “heart” of Plaintiffs’ complaint is not the financials of Defendant, a non-profit facility, but elder abuse based on an alleged deficiency in quantity and quality of care provided. Plaintiffs have at their disposal a bounty of discovery, including detailed medical records, assignment sheets, acuity levels, staff to patient ratio records, and more, all of which provide a wealth of information regarding the care at issue. The detailed financial records Plaintiffs request are thus not “fundamental” because Plaintiffs have substantial evidence at their disposal regarding the issues in this matter. action 10 Notrica also seems to have no relevance here, as it relates to a cause of The 11 alleging tortious breach of the implied covenant of good faith and fair dealing. “[evidence of 12 relevant portion of the case for the purposes of Plaintiffs’ argument states, the 13 adefendant’s wealth and profits] is not to be excluded on the basis of prejudice when in Notrica is 14 information is relevant to liability.” (Id. at 939.) However, plaintiff's analysis are objecting 15 off-base because we are not objecting based on prejudice. Instead, we privacy 16 because the documents are not relevant, and they violate the right to 17 DOCUMENT REQUEST No.16 18 16. Please provide YOUR 2018 Nursing Department budget for each unit in - 19 which PLAINTIFF stayed at the HOSPITAL during her admissions in August 2019 20 December 2019. 21 DEFENDANT'S OBJECTION/RESPONSE: nt and 22 Objection. This request violates the right to privacy. Further, this request is irreleva ce. 23 not reasonably calculated to lead to the discovery of admissible eviden 24 P LAINTIIFE FF'S S GOOD TUR ORDER CAUSE FOR GOOD CAUSE ING eeeeeeeeeee PRODU eeEeEeaeame CTION moeermvomeu : wmww—=”» PLAINT plaintiff 25 Requests 15-18; 49 requested nursing department budgets for the units in which the following 26 stayed, between the years 2017-2020. Defendants served objections on documents 27 grounds: Right to Privacy, relevance. No other grounds. The relevancy of the To begin, the request is not seeking any financial information 28 are unquestionable. 01293013.WPD 9 NEWTON‘: DEFENDANT ENLOE MEDICAL CENTER'S RESPONSE TO PLAINTIFF PATSY SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPE L because of the nature of what the document is. A budget is simplya forward-looking plan regarding expenses and spending. It tells you nothing about the "financial condition" ie. - relative wealth, economic strength, profits, losses and so on of Enloe Medical Center. Even so, under controlling California case law, plaintiffs may use evidence of a defendant's profits or financial condition in the liability phase of a trial when such evidence is relevant to liability. See, e.g., Rawnsley v. Superior Court, 183 Cal. App. 3d 86 (1986); Notrica v. State Compensation Ins. Fi ‘und, 70 Cal. App. 4th 911, 939 (1999). Further, s the documents are entirely relevant given the allegations of plaintiffs' complaint. Plaintiff' s allegation that defendant was insufficiently staffed is relevant to liability as plaintiff fand 10 believe insufficient staffing of the facility contributed to the reckless neglect of plaintif patent i that managing agents purposefully underfunded the units, causing the failures in ' 12 care that let to Mrs. Newton's neglect. The facility's budget is relevant because plaintiffs t 13 expert will use and rely upon the budget to assess whether the facility had sufficien budgeted to 14 staffing. Specifically, the facility's budget will show how much defendants unlicensed, and 15 the nursing department and to each level of nursing personnel licensed, from the outset, 16 supervisory charges in particular). If defendants inadequately budgeted such evidence will powerfully support plaintiffs’ contention that the reckless neglect 17 agent. To 18 plaintiff suffered was authorized, participated in, or ratified by a managing defendant's 19 pursue this theory of liability, plaintiffs are entitled to gather records regarding 20 budgeting practices for the time frame requested to show a pattern and practice of 21 insufficient staffing on the part of the facility. Accordingly, these requests are not 22 "irrelevant." (See Laird Decl., 5.) s 23 As to defendant's privacy objection, this objection lacks merit. First, as a busines Gulf Oil 24 entity, Enloe itself does not have a per se right to privacy. See, e.g., Roberts v. d against 25 Corp., 147 Cal. App. 3d 770, 796-97 (1983). The right to privacy must be balance when it can be 26 the plaintiff's rights in this lawsuit to relevant information, especially ly tailored to the 27 protected from widespread disclosure. Given that the request is narrow frame, that will show a 28 units/departments where plaintiff resided, in a reasonable time 01293013.WPD 10 PATSY NEWTON'S DEFENDANT ENLOE MEDICAL CENTER'S RESPONSE TO PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPE L pattern and practice of under-budgeting (and corresponding understaffing) and given that plaintiffs have an heightened burden of proof to show recklessness by a managing agent through clear and convincing evidence, this type of documentation is exactly the kind that can empirically support plaintiff's position and that trial courts have allowed to be to examined in the past. Any privacy concern can be obviated by plaintiff's willingness enter into a protective order, which we are willing to do. (See Laird Decl., 5.) No. 16 Reason for Not Compelling a Further Response to Request for Production Plaintiffs assert the responsive documents are relevant to liability, as they prove “inadequate budgeting” resulted in “insufficient staffing” and consequent “reckless ation for 10 neglect of plaintiff.” (Motion to Compel at 6.) However, Plaintiffs’ asserted justific ing their 11 production of the documents is insufficient to warrant an order compell nts that 12 production because: (1) Defendant has already produced thousands of docume to set forth 13 directly address the issue of adequate staffing and; (2) Plaintiffs have failed demand. 14 specific facts showing good cause justifying the discovery sought by the tably 15 Defendanthas already produced tens-of-thousands of documents that indispu produced audit 16 and directly address the issue of “insufficient staffing.” Defendant has trails, detailed medical records, documents recording acuity levels, assignment 17 ratios. (Hogan 18 sheets, employee charts, and documents that record staff to patient staff employed, 19 Declaration 19.) These documents thoroughly detail the number of Ms. Newton, 20 the hours they worked, when they worked, when the provided care to fs have 21 and the specific care provided received. (Hogan Declaration {| 10.) Plaintif these issues. 22 also deposed more than ten individuals who provided testimony on of direct evidence 23 (Hogan Declaration 111 .) As such, Plaintiffs are already in possession l documents 24 related to the quality and quantity of care. Production of the sensitive financia Plaintiffs’ argument of 25 requested would constitute circumstantial evidence regarding 26 “insufficient staffing” and would be duplicative. 27 Further, Plaintiffs are “working backwards” in this request, as the bounty of staffing” theory as 28 documents Defendant has produced exposes Plaintiffs’ “insufficient 01293013.WPD 1 PATSY NEWTON'S DEFENDANT ENLOE MEDICAL CENTER'S RESPONSE TO PLAINTIFF SEPARATE STATEMENT IN SUPPORT OF MOTION TO COMPE L completely baseless. Documents already produced show Defendant maintained a favorable staff to patient ratio that was above the California Department of Public Health guidelines. (Hogan Declaration 1 12.) They also show Ms. Newton was turned once every two hours, in accordance with CDPH guidelines. (Hogan Declaration {1 13.) Finally, they show staff provided Ms. Newton with substantial care on a daily basis during the period of alleged negligence. (Hogan Declaration 1 14.) In short, there is a mountain of evidence that clearly demonstrates that Plaintiffs’ argument of “insufficient staffing” is a baseless ion theory unsupported by fact. Plaintiffs’ mere allegations and attemptata fishing expedit should not, without more, justify disclosure of the sensitive financial documents 10 requested. 1 Further, Plaintiffs have not set forth specific facts showing good cause justifying requires 12 discovery sought by the demand, as Code of Civil Procedure section 2031.310(b) requests for 13 them to do. The law is clear that motions to compel further responses to discovery 14 production “shall set forth specific facts showing good cause justifying the have failed to 15 sought by the demand.” (Code Civ. Proc., § 2031.310(b).) Here, Plaintiffs cause to justify 16 assert any specific facts, supported by evidence, to establish good ony, or other evidence 17 disclosure of the documents requested. No documents, testim g.” This Court 18 have been presented to support Plaintiffs’ theory of “insufficient staffin make conclusory 19 should require Plaintiffs to do more than merely file a complaint and produce sensitive 20 allegations before ordering Defendant, a non-profit medical facility, to 21 financial documents. (See Code Civ. Proc., § 2031.310(b).) ey 22 Itis worth noting that, in support of their motion to compel, Plaintiffs cite Rawnsl Ins. Fund 23 v. Superior Court (1986) 183 Cal.App.3d 86, and Notrica v. State Compensation use evidence ofa 24 (1999) 70 Cal.App.4th 911, 939, for the proposition that “plaintiffs may trial when such 25 defendant's profits or financial condition in the liability phase of a fs’ assertion may 26 evidence is relevant to liability.” (Motion to Compelat 5-6.) While Plaintif e and thus not 27 be true in the general sense, both cases are clearly distinguishabl 28 applicable here