United States District Court, E.D. North Carolina, Eastern Division
ROBERTA SPILKER, Individually and as Executrix of the Estate of FRANKLIN J. SPILKER, JR., deceased, Plaintiffs,
MEDTRONIC, INC., and MEDTRONIC CRYOCATH LP, Defendants.
ROBERT B. JONES, Jr., Magistrate Judge.
The instant matter is before the court on Plaintiffs motion to quash and/or modify Defendants' subpoena duces tecum to Pitt County Memorial Hospital (d/b/a Vidant Medical Center) ("Vidant") [DE-48], a non-party to the present action. Defendants have responded in opposition [DE-51] to the motion and the matter is ripe for ruling. For the reasons that follow, the motion to quash is DENIED.
Plaintiff Roberta Spilker ("Plaintiff') filed this action individually and as Executrix of the Estate of Franklin J. Spilker, Jr., ("Decedent"), against Defendants alleging claims of negligence, breach of warranty, unfair trade practices, consortium and wrongful death.The complaint was initially filed in state court then removed to federal court on the basis of this court's diversity jurisdiction. The allegations of the complaint arise from Decedent's death, following a cardiac cryoablation, a medical procedure performed by medical personnel at Vidant using a medical device manufactured and marketed by Defendants. [DE-22].
According to Plaintiffs motion, prior to the commencement of the instant lawsuit, Plaintiff and Vidant entered into a confidential settlement agreement releasing Vidant from liability resulting from Decedent's death. [DE-49] at 1. While Defendants are aware of the fact of a settlement between Plaintiff and Vidant, Defendants are not aware of the settlement amount or the particular terms and conditions of the settlement. According to the motion, Plaintiffs settlement agreement with Vidant contains a confidentiality provision stipulating that the settlement sum as well as the terms and conditions of the settlement and of Vidant's subsequent release are confidential. [DE-49] at 2. Plaintiff states further that the settlement negotiations between Plaintiff and Vidant occurred primarily through counsels' written correspondence discussing the terms and conditions and the settlement amount, in which Plaintiffs counsel shared his mental impressions and other opinions regarding Plaintiffs pursuit of claims against Defendants. Id. at 1-2. Plaintiff states that after settlement had been consummated between Plaintiff and Vidant, Plaintiffs counsel continued to correspond with Vidant in its investigation of the case. Id. at 2.
On May 7, 2013, after the commencement of the instant lawsuit, Defendants served upon Vidant a subpoena duces tecum seeking various documents related to Decedent. [DE-49-1]. Relevant to the instant motion, Defendants seek the following documents from Vidant:
Request No. 2: All documents and communications relating to the Decedent's cryoablation procedure.
Request No. 3: All documents and communications relating to any investigation, inquiry, or study into the Decedent's cryoablation procedure and death, including but not limited to any video or audio recordings of any such investigation.
Request No. 4: All documents and communications relating to any discussions that any person associated with you, including your attorneys, has had with Plaintiff Roberta Spilker and/or anyone associated with her, including her attorneys.
Request No. 5: All documents and communications relating to any discussions that any person associated with you, including your attorneys, has had regarding the Decedent and/or the Plaintiff with anyone representing Plaintiff Roberta Spilker or the Decedent, including but not limited to Wayne Grant, Kimberly Grant, Jonathan Parrish, J. Michael Malone, any other attorney at the Law Offices of Wayne Grant, P.C., or any other attorney at Hendren & Malone, PLLC.
Request No. 6: All documents and communications relating to, or exchanged during, any settlement discussions you or anyone associated with you has had regarding the Decedent's cryoablation procedure and/or death.
Request No. 7: All documents reflecting any agreements you reached with Plaintiff and/or anyone associated with her, including her attorneys.
[DE-49-1] at 10-11.
On June 6, 2014, Plaintiff filed the instant motion seeking to quash or modify Defendants' subpoena duces tecum to Vidant on the grounds that the disputed requests seek certain information that is privileged and confidential. In particular, Plaintiff claims that correspondence between Plaintiff and Vidant, including the settlement agreement itself, are privileged because they were made in furtherance of reaching settlement, and that some settlement correspondence may be shielded further from disclosure as attorney work product. /d. at 3. Plaintiff contends that correspondence between Plaintiff and Vidant related to Plaintiff counsel's investigation of Decedent's death is work product and should not be discoverable. Id. For its part, Vidant has not sought court action related to the subpoena duces tecum, and while it appears from the parties' ...