United States District Court, N.D. Illinois, Eastern Division
W. Gettleman District Judge.
MEMORANDUM OPINION AND ORDER
E. COX MAGISTRATE JUDGE.
case is a death action that arises under the Civil Rights Act
of 1871 (42 U.S.C. §1983). This case, filed by Marilyn
Johnson on behalf of the estate of Norman Johnson, generally
alleges that Norman Johnson died at Cook County Jail on or
about January 7, 2014, as a result of not receiving methadone
treatment, and the related withdrawal symptoms.
course of discovery, Plaintiff requested any and all
“Mortality Review documents or other death
investigation” documents from the Cook County
Defendants (aka “The Medical
Defendants”) (known as “Defendants” for
purposes of the instant motion) [dkt. 115, p. 2]. Defendants
acknowledge that there is a Mortality Review, but contend
that they should not be compelled to produce it because it is
privileged pursuant to the Illinois Medical Studies Act, 735
ILCS 8/8-2101. Defendants filed a Motion for a Protective
Order to this effect [dkt. 115] as requested by the Court
after the discovery hearing of February 21, 2018 [dkt. 108].
The Court ordered Plaintiff to file a response brief,
specifically addressing, inter alia, the particular
factual circumstances that would demonstrate a
“particularized need” or “compelling
necessity” for the Mortality Review [dkt. 118]. The
Court has also ordered an in camera inspection of
the Mortality Report and has conducted the same[dkt. 122]. The
Court is now ready to rule on Defendants' Motion for a
Protective Order [dkt. 115].
Illinois Medical Studies Act provides in pertinent part:
All information, interviews, reports, statements, memoranda
or other data of…allied medical societies…used
in the course of internal quality control or of medical study
for the purpose of reducing morbidity or mortality, or for
improving patient care, shall be privileged, strictly
confidential and shall be used only for medical research, the
evaluation and improvement of quality care, or granting,
limiting or revoking staff privileges….
735 ILCS § 5/8-2101. The Act further provides that such
information “shall not be…discoverable in any
action of any kind in any court or before any tribunal,
board, agency or person.” 735 ILCS § 5/8-2102. The
Illinois Supreme Court has held that legitimate accreditation
associations are “allied medical societies” under
the Illinois Medical Studies Act. See Niven v.
Siqueira, 109 Ill.2d 357, 94 Ill.Dec. 60, 487 N.E.2d
937, 942-43 (Ill.1985).
Illinois Medical Studies Act creates a state law claim of
privilege (commonly known as the peer review privilege). On
the other hand, “Federal Rule of Civil Procedure
26(b)(1) provides that parties may discover any matter not
privileged which is relevant to the subject matter involved
in the pending action. In cases based upon a federal cause of
action, the federal common law governs issues of privilege,
even where the complaint states pendant state law
claims.” Estate of Belbachir v. Cty. of
McHenry, 2007 WL 2128341, at *5 (N.D. Ill. July 25,
2007) (citing Fed.R.Evid. 501; Memorial Hosp. for McHenry
County v. Shadur, 664 F.2d 1058, 1061 n. 3 (7th
Cir.1981)). Therefore, because this matter is based on a
federal cause of action,  the court must look to federal common
law, interpreted in the light of reason and experience, to
determine whether a privilege exists. See
Fed.R.Evid. 501; Accreditation Ass'n for Ambulatory
Health Care, Inc. v. United States, 2004 WL 783106, at
*1 (N.D. Ill. Jan. 8, 2004).
Seventh Circuit has relied on two principles in determining
whether to apply a state privilege in a federal question
First, because evidentiary privileges operate to exclude
relevant evidence and thereby block the judicial fact-finding
function, they are not favored and, where recognized, must be
narrowly construed. Second…it is important to take
into account the particular factual circumstances of the case
in which the issue arises…[by] weigh[ing] the need for
truth against the importance of the relationship or policy
sought to be furthered by the privilege, and the likelihood
that recognition of the privilege will in fact protect that
relationship in the factual setting of the case.”
Shadur, 664 F.2d at 1061-62 (citing Ryan v.
Commissioner of Internal Revenue, 568 F.2d 531, 543 (7th
Cir. 1977)). “Under the criteria announced in
Shadur, we first look to the need for truth.”
United States v. State of Ill., 148 F.R.D.
587, 588 (N.D. Ill. 1993). As is common, the burden of
establishing the privilege falls on the party asserting the
privilege. See Warren v. Sheriff of Cook Cnty. Thomas
Dart, 2013 WL 5835771, at *3 (N.D. Ill. Oct. 30, 2013).
purpose of the Illinois Medical Studies Act is “to
ensure that members of the medical profession will
effectively engage in self-evaluation of their peers in the
interest of advancing the quality of health care.”
Roach v. Springfield Clinic, 157 Ill.2d 29, 191
Ill.Dec. 1, 623 N.E.2d 246, 251 (Ill.1993). This policy is a
substantial one. See Shadur, 664 F.2d at 1062.
However, “federal courts have declined to recognize a
state evidentiary privilege when doing so would impose a
substantial cost to federal substantive and procedural
policy, particularly when a plaintiff would be precluded from
pursuing his federal claims.” Dobbey, 2014 WL
1364428, at *2 (citing Univ. of Penn. v. EEOC, 493
U.S. 182, 193, 202 (1990)).
important to note that the Illinois Medical Studies Act was
never intended to shield medical providers from potential
liability, nor does it protect all information used for
internal quality control purposes. Belbachir, 2007
WL 2128341, at *5 (citing Webb v. Mount Sinai Hosp. &
Med. Ctr. of Chicago, Inc., 347 Ill.App.3d 817, 825
(2004)). In fact, Plaintiff cites many compelling cases where
courts have found the Illinois Medical Studies Act privilege
(or a similar state law medical privilege) inapplicable and
ordered production of information related to post-death
investigations. See e.g., Belbachir, 2007
WL 2128341; Agster v. Maricopa Cnty., 422 F.3d 836
(9th Cir. 2005); Virmani v. Novant Health Inc., 259
F.3d 284 (4th Cir. 2001); Lewis v. Henry Cnty., 2006
WL 1843336 (S.D. Ind. June 29, 2006); Weiss v.
Chester Cnty., 231 F.R.D. 202 (E.D. Pa. 2005);
Leon v. San Diego Cnty., 202 F.R.D. 631 (S.D. Ca.
the Court is persuaded by Plaintiff's argument that
unique considerations dramatically weaken the case for
recognizing the privilege in a post-death investigation
ordered by a jail. See Jenkins v. DeKalb Cnty,
Georgia, 242 F.R.D. 652, 660 (N.D.Ga. 2007).
“Whereas in the ordinary hospital it may be that the
first object of all involved in patient care is the welfare
of the patient, in the prison context the safety and
efficiency of the prison may operate as goals affecting the
care offered.” Agster, 422 F.3d at 839.
Therefore, “[a] review of a deceased inmate is not the
straightforward evaluation of medical care that occurs in the
civilian context.” Jenkins, 242 F.R.D. at 660.
Compared to a civilian mortality review, a mortality review
of a deceased inmate is likely to contain far more
“nonmedical” information such as whether and when
jail officials notified medical officials of a particular
problem, whether there was a reason for nonmedical officials