by Douglas Ankney

Private prison and jail medical provider Wellpath, LLC has announced a plan to exit bankruptcy proceedings, as reported elsewhere in this issue. [See: PLN, May 2025, p.56.] The plan offers some relief to prisoners or their survivors who have successfully sued Wellpath for causing their injuries or deaths. However, it does not address serial discovery violations in other suits, which had the disturbing effect of delaying their resolution until the firm’s bankruptcy was in place.

As PLN reported, the firm was sanctioned twice in the past two years by the federal court for the District of Oregon. One sanction followed deletion of Nurse Patricia Sauerbry’s emails, a purge then hidden for two years from the Estate of Rocky Stewart, which was suing Wellpath over his death at the Coos County Jail in December 2017. That prompted an undisclosed settlement of the suit in May 2024. A similar purge of employee emails was also hidden from the Estate of Janelle Marie Butterfield, who committed suicide at the Josephine County Jail when Wellpath staffers allegedly discontinued her psych meds “without explanation.” Wellpath was sanctioned for that with a liability judgment, and the case is proceeding toward a damages trial. [See: PLN, Nov. 2024, p.36.]

On May 13, 2024, Wellpath was also sanctioned by the federal court for the Eastern District of Kentucky for late disclosure of evidence in a suit filed over the May 2021 death of state prisoner Chad Raymond at Eastern Kentucky Correctional Complex (EKCC). Raymond’s sister, Plaintiff Brittany Allen Jones, filed suit on May 31, 2022, alleging that Wellpath and several employees of negligence and deliberately indifference to Raymond’s medical needs, noting that he had exhibited symptoms of his fatal endocarditis “for at least a month before he was taken to a hospital.”

On November 19, 2022, Jones sent Defendants her First Set of Interrogatories and Requests for Production of Documents, including Interrogatory No. 4. That asked Wellpath to “[s]pecify all tests, examinations, and/or medications administered to [Raymond]” while he was incarcerated at the jail, as well as who administered them and their results. As the district court later recalled, Wellpath responded to the request on March 17, 2023, using “boilerplate language to broadly object to nearly all of the interrogatories and requests for production.” Without support, Wellpath repeatedly called Jones’ requests “overly broad, irrelevant, burdensome, confidential, and/or the requested information was not in its possession.” Particularly, in response to Interrogatory No. 4, Wellpath objected that the requested information was actually “in the possession of Kentucky Department of Corrections, not Wellpath.”

Between June 16 and October 25, 2023, Jones served Wellpath her Second, Third and Fourth Set of Discovery Requests seeking “all emails, texts, or documents evidencing communications among or between Defendants concerning Chad Raymond” (Second Set); as well as “documents indicating the income and profitability of Wellpath’s operations” (Third Set); and also “the name of the ‘provider nurse’ discussed during a recent deposition and any ‘after-death’ and/or morality/morbidity forms or reports” concerning Raymond (Fourth Set).

Then, two weeks before the discovery deadline on November 16, 2023, Wellpath’s counsel disclosed to the Court and Jones that “additional records had just been located.” It then produced 135 additional documents, only one of which was new. That new document, titled “Doppler Echicardiogram,” showed that the X-ray was ordered on March 30, 2021; the ordering provider was Betty Noble, at EKCC; the Type of Encounter was a ‘nurse- sick call,’ and the staff name listed [wa]s Barbara Turner; the diagnosis code stated “chronic viral hepatitis C”; and the X-ray results were processed and signed on April 1, 2021, by George N. Welch, M.D., who noted “LV function is normal and therefore no evidence of a cardiac etiology for the as cites.”

On December 1, 2023, Defendants disclosed the 53-page report of their expert, Dr. Thomas Fowlkes, who used the newly found echocardiogram report to support his opinion. On December 9, 2023, Jones moved the district court for an Order to Show Cause why Wellpath “should not be sanctioned for failing to produce such a document in this litigation before now.”

Since the prior documents produced by Wellpath contained nothing to indicate an echocardiogram was ever performed, the lack of an echocardiogram “became the central thrust” of Jones’ case in discovery. The late production of the “critically relevant document” required Jones “to re-conduct depositions and conduct discovery on the authenticity of the echocardiogram report and the information within it.”

Wellpath stated it was “willing to allow Jones additional time for discovery and would ‘follow the Court’s ruling regarding the payment for Plaintiff’s additional and supplemental expenses incurred based on the production of the [electrocardiogram report].”

To recap: Wellpath stonewalled a discovery request for a critical document until the last minute, knowing it would torpedo Plaintiff’s case, but apparently believed it would cost nothing more than a fine.

Court Considers and Grants Sanctions

Taking up the issue of sanctions on February 27, 2024, the Court observed that “[a] party must answer an interrogatory and serve any objections within 30 days,” per Fed. R. Civ. P. 33(b)(2). Each interrogatory “must, to the extent it is not objected to, be answered separately and fully in writing under oath,” according to Fed. R. Civ. P. 33(b)(3). And “the grounds for objecting to an interrogatory must be stated with specificity,” Fed. R. Civ. P. 33(b)(4) says; “a boilerplate objection” will not suffice and “has no legal effect,” according to Davis v. American Highwall Mining, LLC, 570 F.Supp.3d 491 (E.D. Ky. 2020).

Here the district court was troubled by the fact that Wellpath offered “little explanation as to why the [electrocardiogram] document was kept separately” or why the firm “failed to produce documents from all locations where relevant evidence could have been held.” It was also noted that Wellpath buried this “crucial document in a set of over 135 previously produced documents” as well as 100 others.

Most curiously, Wellpath expert Dr. Fowlkes managed to produce an expert report merely two weeks after Wellpath first disclosed the echocardiogram report—and since Fowlkes’ report was undated, it was unclear when he had access to the echocardiogram report.

The Court concluded Jones was prejudiced by the late disclosure and that a sanction of $21,590 in attorney’s fees was appropriate, as provided in Fed. R. Civ. P. 37(c)(1)(A). Noting that a court may, sua sponte, order a party, its attorney, or both to pay reasonable expenses incurred due to any failure to obey a scheduling order under Fed. R. Civ. P. 16(f), the district court ordered the sanction to be paid jointly by Wellpath and its counsel, for the former’s failure to timely disclose vital evidence and the latter’s obstructionist responses to Jones’ Requests for Discovery. See: Jones v. Wellpath, LLC, 2024 U.S. Dist. LEXIS 33240 (E.D. Ky.).  

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