by David M. Reutter

A Connecticut federal district court ordered the release of information related to prison health care. The court’s November 3, 2020, order was issued in a civil rights action alleging Connecticut prison officials were deliberately indifferent to a prisoner’s medical needs.

The lawsuit was filed by the estate of William Bennett, who died of throat cancer. Bennett entered the Connecticut Department of Correction (CDOC) in 2010.

He reported coughing frequently at night and having trouble swallowing in 2015. In June 2016 a nurse examined him and asked CDOC’s Utilization Review Committee (URC) to approve referral to an ear, nose, and throat specialist (ENT). That request was denied and over the months that followed Bennett’s condition worsened. Dr. Carey Freston “merely prescribed Claritin and Protonix.”

The URC approved referral to an ENT on December 2, 2017, but the approval sat idle on the desks of Dr. Freston’s and nurse Cynthia L’Heureux. Bennett had “problems breathing” on January 23, 2017 and was sent to a hospital. Doctors there diagnosed a large malignant tumor in Bennett’s throat.

Eleven months later, Bennett died from “complications of invasive squamous cell carcinoma of the larynx.” The civil complaint alleged the “URC’s denial of care” ended up being “effect[ively] a death sentence” for Bennett ‘‘because by the time [his carcinoma] was diagnosed, it was difficult to treat, and his chances of survival had been reduced by its aggressive attack on his systems.”

Along with Freston and two nurses, the lawsuit faulted former CDOC Commissioner Scott Semple for Bennett’s death. The claims against Semple focused on his management of the CDOC’s relationship with its former health care contractor, Correctional Managed Health Care (CMHC), an arm of the University of Connecticut Health Center. PLN has reported on the deficient health care that prevailed within CMHC (See PLN, Aug. 2019, p.34).

The estate claimed Semple knew about CMHC’s failings. First, they claimed Semple was told as much by CDOC’s medical director, Dr. Kathleen Maurer. Second, the estate’s attorney was counsel in another cancer case and discovery in that case revealed Semple’s awareness and understanding that care given to prisoners was substandard. Third, the Office of the State Auditor concluded the CDOC-CMHC agreement “was harming patients” and that Semple was aware of the situation. Fourth, it was alleged Semple was aware of CMHC’s failing from a document referred to as the “CJI Report,” which was created by the Criminal Justice Institute.

Documentation was sought by the estate on November 14, 2019 through discovery to prove those claims. Semple failed to respond to that request by December 16, 2019, as required by Rule 34, Fed.R.Civ.P. He did not produce or object to the request from January through April either. The estate filed a moton to compel. Over the next few months, Semple provided inadequate objection logs and responses. He missed several other deadlines.

In the end, Semple objected to 19 documents and asserted three objections: deliberative process privilege, attorney-client privilege, and the work product doctrine. The court’s order exhaustively detailed the law on each of those objections.

The deliberative process privilege is “a sub-species of work-product privilege that ‘covers documents reflecting advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated.’” To qualify for protection under this privilege, a document must be: “(1) an inter-agency or intra-agency document;
(2) ‘predecisional,’; and (3) deliberative.” This is a qualified privilege, not absolute one. “The public interest in non-disclosure must be balanced against the litigant’s need for access to the privileged information.”

The courts consider five factors: “(i) the relevance of the evidence sought to be protected; (ii) the availability of other evidence; (iii) the seriousness of the litigation and the issues involved; (iv) the role of the government in the litigation; and (v) the possible of future timidity by government employees who will be forced to recognize that their secrets are violable.” That fourth four factors are weighed against the fifth.

The attorney-client privilege “protects confidential communications between client and counsel made for the purpose of obtaining or providing legal assistance.” Finally, the work product privilege protects from disclosure “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.” The court noted a party can waive its protection if it fails to assert its privilege claim within 30 days as required by Rule 34.

The court then reviewed the documents at issue in camera and determined whether they were entitled to protection. As to emails that pertain to an Audit Plan of CDOC’s medical care, the court ordered them to be produced. It then turned to the discoverability of the CJI Report. The court found it was not protected by the deliberative process or work product privileges. However, that report was found to be covered by the attorney-client privilege.

Assistant Attorney General Terrance O’Neill testified that the report was created to have raw data on 25 patient care cases compiled “into an explanation that I could understand and discuss with the Commissioner.” The CJI Report, the court noted, was held to be privileged in another case and it was withheld from the press when they sought it on public records requests.

The court ordered disclosure of the MOA analysis in so far as it did not disclose the CJI Report’s conclusion and six other documents that relate to the CJI Report. Semple’s objections to disclosure of the other documents were sustained. See: Imperati v. Semple, USDC, D. Connecticut, Case No. 3:18-CV-01847. The case remains pending as we go to press. 

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