United States District Court, C.D. Illinois, Springfield Division
UNITED STATES OF AMERICA, and The STATES OF CALIFORNIA, COLORADO, DELAWARE, HAWAII, ILLINOIS, ILLINOIS, MARYLAND, MONTANA, NEW JERSEY, NEW MEXICO, NEVADA, VIRGINIA, and The DISTRICT OF COLUMBIA, ex rel. THOMAS PROCTOR, Plaintiffs,
SAFEWAY INC., Defendant.
RICHARD MILLS, UNITED STATES DISTRICT JUDGE
States Magistrate Tom Schanzle-Haskins entered an Opinion and
Order [d/e 147] denying the Defendant's Motion to Compel.
accordance with 28 U.S.C. § 636(b)(1)(A) and Federal
Rule of Civil Procedure 72(a), Defendant Safeway Inc. has
appealed [d/e 149] the magistrate judge's Opinion and
Schanzle-Haskins denied the Defendant's motion to compel
the Centers for Medicare and Medicaid Services (CMS) to
permit the testimony of a former employee, Cynthia Tudor,
Ph.D. Dr. Tudor is a former Director of CMS and former
Director of the Medicare Drug Benefit and C&D Data Group.
Federal regulations require agency authorization before an
employee or former employee of CMS may testify concerning
information acquired in the course of performing official
duties. See 45 C.F.R. §§ 2.1-2.6
(“Touhy regulations”). CMS denied the
Defendant's request. The Defendant sought judicial review
of CMS's decision.
magistrate judge noted that CMS determined that allowing Dr.
Tudor to testify about the deposition topics would not
promote the objectives of the Department of Health and Human
Services (“the Department”) for three reasons:
(1) CMS representatives talked to employees who worked most
closely with Dr. Tudor and determined that she may lack
personal knowledge about the topics on which Safeway wanted
her to testify; (2) the deposition topics seemed calculated
to elicit opinions rather than facts based on personal
knowledge; and (3) testimony on the deposition topics posed a
risk of disclosure of information protected by the
deliberative process privilege or the attorney-client
CMS's first reason, the magistrate judge noted that after
“learning from these employees that Dr. Tudor had
limited knowledge on the Deposition Topics, CMS could
reasonably conclude that Dr. Tudor's proposed testimony
would not promote the objectives of the Department.”
the second reason, the magistrate judge found that “CMS
also reasonably determined that the Deposition Topics posed
the risk that Dr. Tudor would provide opinions in her
deposition, noting that Safeway had already said that Dr.
Tudor had the expertise to “educate the finder of
fact” on complicated issues that were “outside
the scope of knowledge of most juries and judges.” The
magistrate judge observed that this description of Dr.
Tudor's proposed testimony was similar to the language
used in Federal Rule of Evidence 702(a), which discusses the
purpose of expert testimony, and determined that “CMS
could reasonably conclude that allowing a former employee to
opine on such matters would not promote the objectives of the
respect to the third reason, the magistrate judge found that
“CMS also reasonably determined that the testimony
would create a risk that Dr. Tudor would disclose privileged
information, and that creating such a risk would not promote
the objectives of the Department.” Moreover, “CMS
could reasonably conclude that disclosure of decision-making
information concerning the development and implementation of
the Lower Cash Price Policy could put at risk the disclosure
of confidential information protected by these two
on those considerations, the magistrate judge found that
“the decision by CMS that the proposed testimony did
not promote the objectives of the Department [is] rational
and [is] not arbitrary and capricious.” The magistrate
judge noted that the Court's role is not to
“substitute its judgment for CMS, ” but only to
determine “whether CMS provided a reasonable basis for
magistrate judge determined that CMS's decision was not
arbitrary and capricious. Under § 636(b)(1)(A) and Rule
72(a), the Court may reconsider the magistrate judge's
order if it is “clearly erroneous” or
“contrary to law.”
objects to the magistrate judge's order, claiming that
(1) Dr. Tudor has personal knowledge of the Memo she wrote
and for which CMS continues to hold her out as the author on
its website; (2) whether Dr. Tudor provided opinion testimony
rather than fact testimony during her deposition would be a
question of admissibility at trial, and her deposition
testimony would be potentially admissible based on her
background and experience; and (3) CMS has not provided any
reason for why the narrow topics in Safeway's
Touhy request risk eliciting privileged testimony,
especially given that the Government has a right to attend
magistrate judge reasonably determined that CMS had a
legitimate basis for questioning the extent of Dr.
Tudor's personal knowledge of the memorandum, given that
she acknowledged in a filing in the related case that the
memorandum “had been authored by members of Dr.
Tudor's staff.” See United States ex rel.
Schutte et al. v. SuperValu et al., No. 3:11-cv-3290,
Doc. No. 279, at 2.
magistrate judge also reasonably determined that CMS's
concern about eliciting opinion testimony from Dr. Tudor was
legitimate, based on Safeway's description of the
proposed testimony which, in a November 16, 2018 letter from
its counsel, was generally consistent ...