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Countess Clemons v. Corrections Corporation of America, Report & Recommendations Grantings Sanctions against CCA for Discovery Violation 2014

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
at CHATTANOOGA
COUNTESS CLEMONS
Plaintiff,
v.

)
)
)
Case No. 1:11-cv-339
)
Collier/Carter
CORRECTIONS CORPORATION
)
OF AMERICA, et al.
)
Defendants.
)
______________________________________________________________________________
G. MICHAEL LUHOWIAK
Plaintiff,
v.

)
)
)
)
)
)

TERESA SMITH, et al.
Defendants.

Case No. 1:11-cv-340
Collier/Carter

REPORT and RECOMMENDATION
I. Introduction
Plaintiffs’ Second Motion for Sanctions [Doc. 86] is pending before the undersigned
Magistrate Judge for a report and recommendation. This motion concerns a document referred
to as a “Lesson Plan” entitled “Basic Training—First Aid” (the Lesson Plan) which defendant
Corrections Corporations of America (CCA) has submitted in response to the plaintiffs’ motions
for partial summary judgment (Responses) and which CCA intends to use at the trial of these
cases. Because of an unintentional mistake by CCA, plaintiffs were not provided a copy of this
Lesson Plan until the last day of discovery. To properly address the prejudice plaintiffs would
suffer if CCA were allowed to use this Lesson Plan in its Responses or at trial would require
permitting plaintiffs to re-depose all the witnesses, a formidable task which would be expensive
and time consuming. Consequently, the undersigned RECOMMENDS that the Lesson Plan be
STRICKEN from CCA’s Responses and DEEMED INADMISSIBLE for purposes of trial.
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II. Relevant Facts
The nature, issues, and allegations of both cases are described in detail in the
undersigned’s report and recommendation entered on April 10, 2014 and is incorporated herein.
On September 13, 2012, plaintiffs served their first set of interrogatories. Interrogatory
13 and CCA’s response to it was as follows:
INTERROGATORY NO. 13: Please state with specificity all training provided to any
employee, agent or contractor with respect to the treatment and care of inmates who are
pregnant and their unborn children.
ANSWER: CCA objects to this Interrogatory on grounds that it is overbroad, unduly
burdensome, and seeks information that is not relevant and is not reasonably calculated to
lead to the discovery of admissible evidence. Subject to and without waiving these
objections, CCA hires doctors and nurses to provide medical treatment to inmates
incarcerated at Silverdale. CCA does not train doctors or nurses. Doctors and nurses are
educated, trained and licensed before CCA hires them. CCA does provide general
training to all employees. For examples of general training CCA provides all
employees, see the personnel and training files of the following individuals: Corrections
Officer Brenda Badger, Corrections Officer Daniel Garcia, Warden Paul Jennings,
Corrections Officer Juanita Montgomery, and Teresa Smith, L.P.N.
(Page ID # 2124). Plaintiffs’ counsel conferred with defendants’ counsel regarding the
completeness of the answer to Interrogatory 13 and, after reaching an impasse, plaintiffs filed a
motion to compel on April 25, 2013. The undersigned found CCA’s response to the
interrogatory to be inadequate and ordered CCA to answer the interrogatory in full in an order
entered on May 21, 2013. CCA thereafter did further respond by attaching a document, another
lesson plan entitled “Communicable Diseases, Bloodborne Pathogens, Infection Control, HIPPA,
Medical Psychiatric Referral, Special Needs Inmates.” On November 19, 2013, CCA used the
Lesson Plan to cross-examine its expert, Mr. Deland, during his deposition. Plaintiffs’ counsel
objected on the ground that he had not been provided the Lesson Plan. CCA’s counsel thought
the Lesson Plan had been provided. CCA provide a complete copy of the Lesson Plan to

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plaintiffs on November 20, 2013. This was the first-time the plaintiffs were provided a copy of
the Lesson Plan.
According to CCA, it had intended to produce the Lesson Plan to the plaintiffs after the
undersigned granted plaintiffs’ motion to compel, but the attorney who was coordinating
discovery was working from home while on maternity leave and the Lesson Plan was
inadvertently put in the wrong folder where it remained instead of being produced. The
undersigned accepts CCA’s explanation. Much of the Lesson Plan is concerned with the proper
procedures to follow when an inmate is bleeding. The Lesson Plan is not addressed to medical
professionals but to lay people employed by CCA.
III. Discussion
CCA offers several arguments to support its assertion that the inadvertent failure to
produce the Lesson Plan was harmless and prejudiced the plaintiffs in no way. First, CCA
argues that from the time the Court granted plaintiffs’ motion to compel and ordered CCA to
produce the Lesson Plan from the time it was actually produced, plaintiffs deposed only two
witnesses and the Lesson Plan was relevant only to one of those witnesses, Dr. Deland. As to
Dr. Deland, CCA notes plaintiffs’ counsel was given the opportunity to review the Lesson Plan
and question Dr. Deland about it during the deposition.
In response, plaintiffs’ counsel stated he would have questioned each of the defendants
and the witnesses in their depositions about this Lesson Plan had he known it existed. Whether
CCA had an appropriate policy to address a situation when a pregnant inmate is bleeding is a key
issue in both cases. It makes sense to the undersigned that plaintiffs would want to question the
defendants and any other corrections officers involved in the incident with Countess Clemons
about the Lesson Plan. Plaintiffs further argue CCA should have produced the Lesson Plan thirty

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days after it was initially requested which would have been October 12, 2013. The undersigned
did not find CCA’s objections to Interrogatory 13 to be well-taken and granted plaintiffs’ motion
to compel. Furthermore, asserts plaintiffs, had CCA produced the Lesson Plan promptly after
the Court granted the plaintiffs’ motion to compel there would still have been time to re-depose
the individual defendants and other CCA employees who are witnesses, but discovery was closed
before plaintiffs could carefully examine the Lesson Plan.
Second, CCA argues that it produced the education and training records of the individual
defendants and that those training records indicate “each individual Defendant received the
training contained within the Lesson Plan.” (Page ID # 2245). I have examined the training
records and conclude they do not provide the specific content of the training the individual
defendants received, nor can one determine from the records themselves that such a document
entitled “Basic Training—First Aid” exists. (Page ID # 2053 – 2088).
Third, CCA argues that plaintiffs’ counsel questioned Assistant Warden Jennings about
training provided to CCA employees regarding medical emergencies. (Page ID # 2246). While
Jennings testified in his deposition that CCA employees did receive training on what to do in a
medical emergency, there are very few details in his deposition about the substance of the
training – certainly not the same details as are in the Lesson Plan. Moreover, the Lesson Plan
itself, the fact of its existence, is important evidence which plaintiffs needed to know about to
adequately prepare their motions for partial summary judgment and for trial.
IV. Conclusion
The undersigned finds CCA’s failure to timely produce the Lesson Plan was not
intentional, but it was highly prejudicial to the plaintiffs. While the undersigned always prefers
to seek out means to correct any prejudice suffered by a party and therefore permit the evidence

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to be admitted, in this case, absent opening up discovery for a significant period of time,
allowing a new dispositive motions deadline and moving the trial date, it is not possible to
counteract the prejudice to the plaintiffs. Consequently, pursuant to Fed. R. Civ. P. 37(b)(2)(A),
it is RECOMMENDED1 that the Lesson Plan be stricken from CCA’s responses to plaintiffs’
motions for partial summary judgment and that the Lesson Plan be deemed inadmissible in the
trial of these cases.

SBj|ÄÄ|tÅ UA `|àv{xÄÄ VtÜàxÜ
UNITED STATES MAGISTRATE JUDGE

1

Any objections to this Report and Recommendation must be served and filed within fourteen
(14) days after service of a copy of this recommended disposition on the objecting party. Such
objections must conform to the requirements of Rule 72(b) of the Federal Rules of Civil
Procedure. Failure to file objections within the time specified waives the right to appeal the
District Court’s order. Thomas v. Arn, 474 U.S. 140, 88 L.Ed.2d 435, 106 S. Ct. 466 (1985).
The district court need not provide de novo review where objections to this report and
recommendation are frivolous, conclusive or general. Mira v. Marshall, 806 F.2d 636 (6th Cir.
1986). Only specific objections are reserved for appellate review. Smith v. Detroit Federation of
Teachers, 829 F.2d 1370 (6th Cir. 1987).
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