UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

WILLIAM BEAUMONT HOSPITAL and SOUTH

OAKLAND ANESTHESIA ASSOCIATES, P.C.,

Plaintiffs,

v. Case No. 09-CV-11941

MEDTRONIC, INC., 

Defendant.

 /

OPINION AND ORDER DENYING IN PART DEFENDANT’S “MOTION TO COMPEL

PRODUCTION OF DOCUMENTS” AND DIRECTING PLAINTIFFS TO UPDATE

THEIR PRIVILEGE LOG AND FILE ADDITIONAL DOCUMENTATION

Before the court is Defendant Medtronic, Inc.’s “Motion to Compel Production of

Documents,” filed on February 23, 2010. A hearing on this motion is unnecessary. See

E.D. Mich. LR 7.1(e)(2). For the reasons stated below, the court will deny in part

Defendant’s motion.

I. BACKGROUND

On April 15, 2005, an anesthesiologist from Defendant South Oakland

Anesthesia Associates, P.C. (“SOAA”) attempted to perform a procedure to refill Kathy

Cober’s Medtronic pain pump at Defendant William Beaumont Hospital (“Beaumont”). 

(Pls.’ Am. Compl. ¶ 12.) The procedure required the use of a “refill kit;” however, a

Beaumont nurse retrieved a “catheter access kit” instead. (Id. ¶¶ 11, 13.) As a result of

the use of the “catheter access kit,” the medication was delivered directly into Ms.

Cober’s intrathecal space causing an overdose (“Cober Incident”). (Id. ¶ 12.)
2

The family of Ms. Cober (“Cober Plaintiffs”) sued Beaumont, SOAA, and others in

Oakland County Circuit Court claiming damages arising out of the incident (“Cober

Litigation”). (Id. ¶ 14.) Medtronic was made aware of the incident and the lawsuit and

participated in discovery. (Id. ¶¶ 15, 17.) Counsel for Beaumont and SOAA invited

Medtronic to participate in discussions to settle the Cober Litigation, but Medtronic

refused. (Id. ¶ 22.) On May 29, 2008, Beaumont and SOAA settled the case with the

Cober Plaintiffs. (Id. ¶ 23.) The settlement included a release of the Cober Plaintiffs’

rights against Medtronic. (Id.) 

On May 21, 2009, Plaintiffs initiated the present action seeking contribution from

Medtronic for “Medtronic’s allocable share of fault in causing the injury to Ms. Cober.” 

(Id. ¶ 28.) Plaintiffs allege that approximately two to three weeks before the Cober

Incident, a representative of Medtronic offered to provide free samples of “pain pump

refill kits” for use in refilling Medtronic’s implanted pain pumps. (Id. ¶ 8.) Medtronic then

delivered three free samples to Beaumont. (Id.) Only two, however, were “refill kits,”

while one was a “catheter access kit.” (Id. ¶ 10.) A representative of Medtronic,

Provvidenza Cucchiara, later admitted that a “catheter access kit” should not have been

delivered to the Beaumont Department of Anesthesia because “such kits were used

primarily for diagnostic procedures, not for pain management.” (Id. ¶ 13.) Plaintiffs

allege that Medtronic was negligent in delivering a diagnostic kit to the anesthesiology

department and also for stating that the kit could be used for refill procedures. (Id. ¶

24.)

During discovery, Medtronic served Plaintiffs with requests for admissions,

interrogatories, and document requests. (Def.’s Mot. at 8.) In response to certain
3

document requests, Plaintiffs “objected on the grounds of statutory privileges protecting

peer review and other similar matters from disclosure.” (Id.) On January 22, 2010,

Plaintiffs produced a peer review privilege log comprising: (1) Variance Reports and

accompanying investigative notes and communications, (2) a Sentinel Event Report and

accompanying materials, (3) an Anestheisa Department Quality Assurance Review and

accompanying materials, (4) a Summary FDA Site Visit, (5) a Beaumont Services

Company Report of a Variance Report and accompanying investigative notes and

communications, and (6) Physician Credential Files. (Id., Ex. B.) On February 23,

2010, Defendant filed a motion to compel the documents withheld by Plaintiffs on the

basis of a peer review privilege.

Defendant argues that the peer review privilege does not apply to the documents

withheld by Plaintiffs, and even if it did, Plaintiffs have waived the privilege by placing

the Cober Incident at issue in this litigation and by involving Defendant in the peer

review process. Plaintiffs argue that the withheld documents are privileged because

they are “inextricably linked” to the peer review process and that their contribution claim

does not waive their right to assert the peer review privilege.

II. STANDARD

A. Peer Review Privilege

Under the Rules of Civil Procedure, a party “may obtain discovery regarding any

nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P.

26(b)(1). The Federal Rules of Evidence govern the discoverability of privileged

materials. Fed. R. Evid. 1101; Fed. R. Civ. P 26(b). Pursuant to Federal Rule of

Evidence 501, the state law of privileges applies to evidence relevant to establishing an
4

element of any claim or defense based in state law. Fed. R. Evid. 501. The present

case is a contribution action under Michigan law. Accordingly, Michigan law governs

the determination of a privilege.

Michigan’s Public Health Code requires hospitals “to review their professional

practices and procedures to improve the quality of patient care and reduce morbidity

and mortality.” Gallagher v. Detroit-Macomb Hosp. Ass’n, 431 N.W.2d 90, 94 (Mich. Ct.

App. 1988). To facilitate this review, hospitals must establish peer review committees. 

Dorris v. Detroit Osteopathic Hosp. Corp., 594 N.W.2d 455, 463 (Mich. 1999). 

Specifically, hospitals must:

assure that physicians and dentists admitted to practice in the hospital are

organized into a medical staff to enable an effective review of the

professional practices in the hospital for the purpose of reducing morbidity

and mortality and improving the care provided in the hospital for patients.

The review shall include the quality and necessity of the care provided and

the preventability of complications and deaths occurring in the hospital.

Mich. Comp. Laws § 333.21513(d).

To maximize the effectiveness of this review, Michigan has enacted two statutes

that create a peer review privilege for records collected at the direction of a peer review

committee. Under Mich. Comp. Laws § 333.20175(8),

[t]he records, data, and knowledge collected for or by individuals or

committees assigned a professional review function in a health facility or

agency, or an institution of higher education in this state that has colleges

of osteopathic and human medicine, are confidential, shall be used only

for the purposes provided in this article, are not public records, and are not

subject to court subpoena.

Mich. Comp. Laws § 333.20175(8). Similarly, Mich. Comp. Laws § 333.21515 provides

that “[t]he records, data, and knowledge collected for or by individuals or committees

assigned a review function described in this article are confidential and shall be used
5

only for the purposes provided in this article, shall not be public records, and shall not

be available for court subpoena.” Mich. Comp. Laws § 333.21515.

To determine whether a record is privileged, “the court should consider the

hospital’s bylaws, internal rules and regulations and whether the committee’s function is

that of retrospective review for purposes of improvement and self-analysis and thereby

protected, or part of current patient care.” Gallagher, 431 N.W.2d at 94. However, the

records must have been collected for or by the peer review committee. Marchand v.

Henry Ford Hosp., 247 N.W.2d 280, 282 (Mich. 1976). The fact that information is

submitted to a peer review committee does not mean that it satisfies the collection

requirement so as to make it privileged. Monty v. Warren Hosp. Corp., 366 N.W.2d

198, 202 (Mich. 1985). Also, the protection afforded quality assurance and peer review

reports does not depend on the type of claim asserted by the proponent of the

subpoena. Ligouri v. Wyandotte Hosp. & Med. Ctr., 655 N.W.2d 592, 595 (Mich. Ct.

App. 2003).

Although privileges are to be narrowly construed, Centennial Healthcare Mgmt.

Corp. v. Mich. Dep’t of Consumer & Indus. Servs., 657 N.W.2d 746, 754 (Mich. Ct. App.

2003), the “Legislature protected peer review documents in broad terms.” In re

Lieberman, 646 N.W.2d 199, 202-03 (Mich. Ct. App. 2002) (stating that the peer review

privilege statute “demonstrates that the Legislature has imposed a comprehensive ban

on the disclosure” of peer review material). Indeed, peer review documents

are not subject to disclosure in a criminal investigation pursuant to a

search warrant, In re Investigation of Lieberman, 250 Mich. App. 381, 646

N.W.2d 199 (2002), a civil suit concerning an assault on a hospital patient,

Dorris, supra, a medical malpractice claim, Gallagher v. Detroit-Macomb

Hosp. Ass’n, 171 Mich. App. 761, 431 N.W.2d 90 (1988), or an
6

investigation by the Board of Medicine, Attorney General v. Bruce, 422

Mich. 157, 369 N.W.2d 826 (1985). 

Manzo v. Petrella, 683 N.W.2d 699, 705 (Mich. Ct. App. 2004). The Michigan

Legislature intended to “fully protect quality assurance/peer review records from

discovery.” Ligouri, 655 N.W.2d at 594 (emphasis in original).

The rationale for this strong protection of peer review material is that:

“[c]onfidentiality is essential to effective functioning of these staff

meetings; and these meetings are essential to the continued improvement

in the care and treatment of patients. Candid and conscientious

evaluation of clinical practices is a sine qua non of adequate hospital care. 

To subject the discussions and deliberations to the discovery process,

without a showing of exceptional necessity, would result in terminating

such deliberations.”

Attorney General v. Bruce, 369 N.W.2d 826 (Mich. 1985) (quoting Bredice v. Doctors

Hosp., Inc., 50 F.R.D. 249, 250 (D.D.C. 1970)). Without confidentiality, “the willingness

of hospital staff to provide their candid assessment will be greatly diminished,” which

“will have a direct effect on the hospital’s ability to monitor, investigate, and respond to

trends and incidents that affect patient care, morbidity, and mortality.” Dorris, 594

N.W.2d at 463. “By insuring that the proceedings remain confidential, the Legislature

has provided strong incentive for hospitals to carry out their statutory duties in a

meaningful fashion.” Attorney General v. Bruce, 335 N.W.2d 697, 702 (Mich. Ct. App.

1983).

III. DISCUSSION

A. Variance Reports and Sentinel Event Report

Plaintiffs assert that Variance Report #232655, a Beaumont Services Company

Report of Variance Report #232655, and Variance Report #332782, as well as
1

Defendant notes that “Plaintiffs have not submitted any sworn witness affidavit

or testimony to support their assertion of privilege.” (Def.’s Reply at 2.) Because the

court is to consider “the hospital’s bylaws, internal rules and regulations,” the

Management Manual provides a sufficient basis for the court to determine the existence

of the peer review privilege with respect to the Variance Reports and Sentinel Event

Reports. Gallagher, 431 N.W.2d at 94.

7

associated investigative notes and communications are protected by the peer review

privilege. (Pls.’ Privilege Log, Def.’s Mot., Ex. B.) The two variance reports were

prepared by staff nurses on April 15, 2005, and were given to Nursing Administration,

Anesthesia Process Owner, and Medical Quality Program Management. (Id.) The

Beaumont Services Company Report of Variance Report #2322655 was issued on

November 3, 2005, by Beaumont Services Company and the Clinical Engineering

Manager and staff. It was provided to the Patient Safety Officer, the Director of Medical

Quality Program Management, the Director of Anesthesia Quality Assurance, and

others. (Id.) Plaintiffs also assert that the root cause analysis, progress reports, notes,

minutes, memos, and communications concerning Sentinel Event 05-03 are protected

by the peer review privilege. (Id.)

Plaintiffs have attached policies from a Management Manual prepared by

Beaumont’s Medical Quality Program Management and Quality Management describing

the process for preparation and review of Variance Reports.1

 (Pls.’ Resp., Ex. B.) 

Policy Number 153 defines a Variance as “any process/occurrence inconsistent with the

routine operation of the hospital or the routine care of patients” and states that

“Variances shall be reported, analyzed, trended, and utilized through Intensive

Assessment or other review processes to continually improve systems, processes,

education and training to reduce/avoid their occurrence.” (Id.) 
8

Pursuant to Policy Number 153-1, the first person (including a nurse) who

discovers a Variance is required to initiate a Variance Report. (Id.) The Report is then

given to the department manager or supervisor of the department, who is required to

review the Variance Report for completeness and accuracy based on the impact on the

patient’s care/outcome and actions taken regarding correction and prevention. (Id.) 

The Report is then sent to Management Quality Program Management or Quality

Management and the Process Owner. (Id.) The Process Owner documents additional

findings and follow-up actions, inputs the information into a database, and determines

the extent of necessary review. (Id.) The necessary review may entail Sentinel Event

review (discussed infra), organizational review, departmental review, track and trend

only, or Intensive Assessment, defined as “a complete, thorough, in-depth analysis

which focuses primarily on processes and systems to discover causal factors leading up

to a Variance and to develop and implement risk reduction action plans to prevent

recurrences of the Variance.” (Id.) The Process Owner is directed to “[a]nalyze, track

and trend, and make process improvement recommendations on a on-going basis.” 

(Id.) The Medical Quality Program Management and Quality Management receive all of

the Variance Reports, collect aggregate data, and distribute quarterly reports to the

hospital administration as appropriate. (Id.) 

Regarding Confidentiality, Policy Statement 153 provides that “[a]ny records,

data, and information collected for or by individuals involved with a Variance and the

subsequent review and analysis are part of a professional, peer review function,

performance improvement effort or other quality initiative and are confidential and

protected from discovery.” (Id.) Similarly, at the bottom of the Variance Report, it
9

states, “This report is CONFIDENTIAL and protected from discovery . . . . Its primary

use is for professional review purposes in the interest of reducing morbidity and

mortality, and improving the care provided patients.” (Id., Ex. C.)

A Variance that involves “death or serious physical or psychological injury” is

deemed a Sentinel Event. (Id., Ex. D.) For all Sentinel Events, a root cause analysis

must be performed, pursuant to Policy Number 174. (Id.) The root cause analysis “is a

process for identifying the basic reason or causal factor(s) for the Variance, which, if

eliminated or corrected, would have prevented the Sentinel Event from occurring.” (Id.) 

The analysis is performed by a task force, consisting of “the organization’s leadership

and appropriate individuals involved in the processes and systems under review.” (Id.) 

Policy Number 174 states that “[a]ny records, data, and information collected for or by

individuals involved with a Sentinel Event and the subsequent review and analysis are

part of a professional, peer review function, performance improvement effort or other

quality initiative and are confidential and protected from discovery.” (Id.)

Michigan courts have addressed the applicability of the peer review privilege to

“incident reports” or “occurrence reports” similar to the reports at issue in this case. 

See, e.g., Lindsey v. St. John Health System, Inc., Nos. 268296, 270042, 2007 WL

397075 (Mich. Ct. App. Feb. 6, 2007) (upholding the trial court’s denial of plaintiff’s

motion to compel production of an “occurrence report” because it “necessarily related to

a document that concerned the review of professional practices and the quality of care

provided by the hospital”). For instance, in Gregory v. Heritage Hospital (a companion

case to Dorris), a patient alleged that she was assaulted while staying at a hospital. 

Dorris, 594 N.W.2d at 458. The trial court ordered the hospital to produce an incident
10

report, “any investigative reports relative to the incident report,” and “any notes,

memoranda, records, and reports related to the incident.” Id. at 458-59. The Michigan

Supreme Court held that this was error because the hospital offered an affidavit stating

that the information “was collected for the purpose of retrospective peer review by the

peer review committee.” Id. at 463-64. The court then remanded the case to the trial

court to allow the plaintiff “to test the veracity of the hospital’s procedures,” i.e. whether

the information “was actually collected for the purpose of retrospective review by the

peer committee.” Id.

The Gregory court relied on the Michigan Court of Appeals’ decision in

Gallagher, in which the Michigan Court of Appeals affirmed the trial court’s decision to

not admit a hospital incident report at trial. 431 N.W.2d at 94. The court determined

that the hospital incident report was prepared for purposes consistent with Mich. Comp.

Laws § 333.20175(5) and Mich. Comp. Laws § 333.21515 based on a hospital

employee’s testimony concerning the hospital’s practices regarding incident reports. Id.

The employee testified that the hospital incident reports were “completed for all unusual

occurrences at the hospital” and that their purpose “was to assist the hospital in

monitoring its own activities to reduce accidents, injuries, morbidity and mortality at the

hospital.” Id. The report was routed to the unit supervisor, department head, legal

affairs department, and then to the hospital’s Safety Committee or Quality Assurance

Committee. Id. These committees were “assigned the responsibility of identifying

trends or problems at the hospital,” and the court found that “the quality and safety

committees appear to fulfill the protected review functions.” Id. 
2

Defendant argues that the reports were created pursuant to the Safe Medical

Devices Act and not for peer review purposes. (Def.’s Reply at 2.) Policy Number 153-

2 sets out Beaumont’s policies regarding the preparation and processing of Variance

Reports effected by the Safe Medical Devices Act. (Pls.’ Resp., Ex. B.) It requires the

creation of two reports: a Medical Device Adverse Event Report and an Annual

Summary. (Id.) These documents would arguably not be protected by the peer review

11

In this case, Plaintiffs have demonstrated that the Variance Reports, Sentinel

Event Report, and accompanying materials are “records, data, and knowledge collected

for or by individuals or committees assigned a professional review function in a health

facility or agency.” Mich. Comp. Laws § 333.20175(8). The primary use of the Reports

was for “professional review purposes in the interest of reducing morbidity and mortality,

and improving the care provided patients.” (Pls.’ Resp., Ex. C.) Similar to the report in

Gallagher which was “completed for all unusual occurrences at the hospital,” a Variance

Report is completed for occurrences that are “inconsistent with the routine operation of

the hospital or the routine care of patients.” (Id., Ex. B.) Like the report in Gallagher

that was routed to various levels of hospital management, the Variance Report is sent to

the department supervisor, Management Quality Program or Quality Management and

the Process Owner. (Id.) Similar to the Gallagher committee that was “assigned the

responsibility of identifying trends or problems at the hospital,” the Process Owner is

directed to “[a]nalyze, track and trend, and make process improvement

recommendations on a on-going basis.” (Id.) In addition, for all Sentinel Events, a task

force is formed to conduct a root cause analysis to identify the cause of the Variance,

which if corrected would have prevented it from occurring. (Id., Ex. D.) These

procedures demonstrate that the data and reports were collected for a professional

review committee.2

 The purpose of this review was to reduce morbidity and mortality
privilege. However, there is no evidence that they were withheld by Plaintiffs on the

basis of the peer review privilege as they are not included on their peer review privilege

log.

12

and improve patient care, consistent with the statutory directives of the State of

Michigan. See Mich. Comp. Laws § 333.21513(d). Accordingly, these materials are

protected from discovery by the peer review privilege.

B. Anesthesia Department Quality Assurance Review, Summary FDA Site Visit,

Physician Credential Files

Plaintiffs assert that documents entitled “Summary FDA site visit,” “Anesthesia

Department Quality Assurance Review,” and “Physician Credential Files” are protected

by the peer review privilege. (Pls.’ Privilege Log, Def.’s Mot., Ex. B.) Unlike the

Variance Reports and Sentinel Event Report, Plaintiffs have not provided any

documentation showing why these documents were prepared and whether they were

collected for or by a peer review committee. Nor do Plaintiffs provide any argument in

their brief regarding these documents. With the exception of the Summary FDA Site

Visit document, the other documents appear, at least nominally, to be privileged. See

Dye v. St. John Hosp. & Medical Center, 584 N.W.2d 747, 749-51 (Mich. Ct. App. 1998)

(rejecting “plaintiff’s conclusion that materials relating to the provision of staff privileges

are outside the purview of the statutes” and holding that the “confidentiality provisions of

the statutes apply”). The court will therefore direct Plaintiffs to file documentation

sufficient for the court to determine whether these documents are protected by the peer

review privilege.

C. The Privilege Log
3

Thus, it was improper for Plaintiffs’ counsel to direct Dr. Michael Sikorsky at his

deposition to not answer the question about the names of the persons involved in the

quality-assurance process. (Def.’s Reply, Ex. A.)

13

Defendant argues that the claim of privilege must be rejected because Plaintiffs

have failed to provide an adequate privilege log. (Def.’s Mot. Br. at 18.) Under Federal

Rule of Civil Procedure 26(b)(5), when parties assert a privilege, they must describe the

nature of the withheld documents in a manner that permits the other parties to assess

the validity of the privilege claim. Fed. R. Civ. P. 26(b)(5). In addition, this court’s

standing order regarding discovery practices and expectations states that “[d]ocuments

withheld on the basis of privilege must be listed on a privilege log with sufficient

information to enable the requesting party to understand the nature of the documents

and the basis of the privilege claim.” The court concludes that Plaintiffs’ privilege log

sufficiently meets these standards. It would not be practicable for a privilege log to

contain a detailed description of the hospital’s rules, regulations, and policies

concerning peer review records. Nonetheless, when a claim of privilege is challenged,

as in this case, the party withholding the records must come forward with sufficient

evidence to enable the court to conclusively determine that the privilege applies. 

Plaintiffs have provided sufficient evidence regarding the Variance Reports and Sentinel

Event Report but have not done so with respect to the other documents.

The court has identified one deficiency in the privilege log. Plaintiffs have not

identified the names of the authors of the documents. Information concerning the date

and author of peer review documents is not protected by the peer review privilege.3

See Monty, 366 N.W.2d at 201. Plaintiffs will therefore be directed to supplement their
14

peer review privilege log with this information and provide an updated version of their

peer review privilege log to Defendant.

D. Waiver

According to Defendant, the “central issue” in its motion to compel is its claim

that Plaintiffs have waived the peer review privilege. (Def.’s Reply at 3.) Defendant

argues that Plaintiffs waived the peer review privilege by affirmatively bringing a

contribution action and by involving Defendant in the peer review process. (Def.’s Mot.

Br. at 11-18.) Plaintiffs argue that Beaumont has not waived the peer review privilege

and that Defendant “fails to cite any Michigan case law in support of its argument that a

claim for contribution somehow puts protected peer review material ‘at issue’ such that

one could find a waiver of the peer review privilege.” (Pls.’ Resp. at 8.)

Whether the peer review privilege can be waived is a matter of first impression in

Michigan. In some states, there is a statutory provision for waiver of the peer review

privilege. See Susan O. Scheutzow & Sylvia Lynn Gillis, Confidentiality and Privilege of

Peer Review Information: More Imagined Than Real, 7 J.L & Health 169, 190-92 (1993)

(noting that “[m]ost of the states that provide a privilege for peer review information do

not provide any way in which the privilege may be waived,” but that six states do have a

statutory waiver provision). In states without a statutory waiver provision, courts are

split on whether the peer review privilege can be waived. Compare Ayash v. DanaFarber Cancer Inst., 822 N.E.2d 667, 692 n.28 (Mass. 2005) (“In our view, applying

waiver principles to peer review communications would significantly undermine the

effectiveness of the statute.”), and Emory Clinic v. Houston Emory Univ., 369 S.E.2d

913 (Ga. 1988) (“[T]he General Assembly has placed an absolute embargo upon the
15

discovery and use of all proceedings, records, findings and recommendations of peer

review groups and medical review committees in civil litigation.”), with In re Missouri ex

rel. St. John’s Reg’l Med. Ctr. v. Dally, 90 S.W.3d 209, 217 (Mo. Ct. App. 2002) (per

curiam) (“[D]espite the public and other interests that underlie the peer review privilege,

it is not an absolute privilege and can be waived . . . .”). 

A strong argument can be made that the peer review privilege is not waivable in

Michigan. The statute specifically lists permissible reasons for the release of peer

review material, but use in private civil litigation is not one of them. See Mich. Comp.

Laws § 331.532 (allowing release of peer review material to, among other things,

advance health care research and education, maintain health care profession

standards, and protect the financial integrity of governmentally funded programs); In re

Lieberman, 646 N.W.2d at 202 (“Underscoring the high level of confidentiality attendant

to peer review documents is the statutory admonishment that such information is to be

used only for the reasons set forth in the legislative article including that privilege.”

(emphasis in original)). Moreover, with respect to other statutorily-created privileges,

like the physician-patient privilege, the Michigan Legislature explicitly included a waiver

provision in the statute; however, no waiver provision was included in the peer review

privilege statute. See id. § 600.2157 (“If the patient brings an action against any

defendant to recover for any personal injuries, or for any malpractice, and the patient

produces a [treating] physician as a witness . . ., the patient shall be considered to have

waived the [physician-patient] privilege . . . .”). Nonetheless, the court need not decide

whether the peer review privilege is absolute, because even if it could be waived,

Plaintiffs have not waived it in this case.
16

In support of its argument that Plaintiffs waived the peer review privilege by

bringing a contribution claim, Defendant relies on the test set forth in Howe v. Detroit

Free Press, Inc., 487 N.W.2d 374 (Mich. 1992). In Howe, the Michigan Supreme Court

held that the plaintiffs, who brought a defamation claim, waived the statutory probation

report privilege when the defendant’s truth defense was seriously undermined without

the report. 487 N.W.2d at 384. The Howe court adopted the First Circuit’s balancing

test, articulated in Greater Newburyport Clamshell Alliance v. Pub. Serv. Co. of N.H.,

838 F.2d 13 (1st Cir. 1988), which provides that:

a court should begin its analysis with a presumption in favor of preserving

the privilege. In a civil damages action, however, fairness requires that

the privilege holder surrender the privilege to the extent that it will weaken,

in a meaningful way, the defendant’s ability to defend. That is, the

privilege ends at the point where the defendant can show that the

plaintiff’s civil claim, and the probable defenses thereto, are enmeshed in

important evidence that will be unavailable to the defendant if the privilege

prevails. The burden on the defendant is proportional to the importance of

the privilege. The court should develop the parameters of its discovery

order by carefully weighing the interests involved, balancing the

importance of the privilege asserted against the defending party’s need for

the information to construct its most effective defense.

Howe, 487 N.W.2d at 380 (quoting Clamshell, 838 F.2d at 20). The Howe court then

quoted the First Circuit’s guidelines:

First, defendants should demonstrate that the material to be discovered is

relevant to their case. This showing should include an articulation of how

the material could assist the preparation of their defense in a meaningful

way. . . . Secondly, defendants should demonstrate why it would be

unreasonably difficult for them to obtain the information elsewhere or that

redundant evidence will be helpful to their case. They do not have to

prove that it is absolutely unavailable from other sources. Of course, the

more the requested discovery would intrude into the privilege, the greater

should be the showing of need and lack of reasonable alternative sources.

Id. at 382-83 (quoting Clamshell, 838 F.2d at 22).
4

Plaintiffs question the applicability of the Howe test to this case, noting that the

Howe court underscored the “special standing of truth as a defense in a defamation

action” and that Howe involved the probation officer-probationer privilege, which the

court stated “bears little or no relationship to its protective purpose.” (Pls.’ Resp. at 8-9

(quoting Howe, 487 N.W.2d at 384).) In its reply, Defendant points out that “Plaintiffs’

own counsel has recognized in his treatise on Michigan civil practice, the Howe at issue

waiver standard applies to other evidentiary privileges, not just the probation officer

privilege.” (Def.’s Reply at 3 (citing Corrigan, et al., Mich. Prac. Guides: Civil Proc.

Before Trial § 6.49 (2006).) Even though Howe is not controlling on the issue of waiver

in the context of the peer review privilege, the Michigan Supreme Court would likely

apply the Howe test if it were to find that the peer review privilege could be waived by

placing the material “at issue.”

17

Applying the Howe balancing test,4

 the court concludes that Defendant has not

overcome the presumption in favor of preserving the privilege. Defendant has not

demonstrated that its ability to defend will be meaningfully weakened or that it would be

unreasonably difficult to obtain the evidence elsewhere. (See Pls.’ Resp. at 4

(“Defendant Medtronic has been provided 100% of the medical records pertaining to the

care and treatment of Ms. Cober; 100% of the discovery materials, depositions, etc.

generated in the underlying Cober litigation; and 100% access to depose each and

every person involved in the underlying incident.”). To the extent the peer review

protected information is relevant, it is the facts concerning the Cober Incident contained

in those reports that are relevant. The facts themselves are not privileged, even if they

were gathered and evaluated by a peer review committee. Defendant is free to depose

the persons involved in the incident to ascertain those facts. Indeed, a written record of

Beaumont’s investigation and assessment of the causes and factors leading to the

Cober Incident may not even exist if it were not for the statutory directive for hospitals to

review its practices and the concomitant protection afforded to this review. Defendant

can mount a full defense without the peer review material—its defense does not hinge
18

on Plaintiffs’ investigation of the Cober Incident, and there is no evidence that Plaintiffs

are using the peer review material as “a shield and a dagger at one and the same time.” 

Dally, 90 S.W.3d at 217.

In addition, the policy reasons behind the peer review privilege support not

finding a waiver. A hospital will be reluctant to make effective records of its internal

investigations with the knowledge that its confidentiality could be easily waived and then

used against it as evidence in a later civil action. A ready waiver could have a chilling

effect on the “candid assessment” that is necessary for a hospital to effectively “monitor,

investigate, and respond to trends and incidents that affect patient care, morbidity, and

mortality.” Dorris, 594 N.W.2d at 463. This could undermine the “strong incentive for

hospitals to carry out their statutory duties in a meaningful fashion.” Bruce, 335 N.W.2d

at 702.

Michigan’s strong protection of peer review material demonstrates the

importance of this privilege. The Michigan Legislature “has imposed a comprehensive

ban on the disclosure of any information collected by, or records of the proceedings of,

committees assigned a professional review function in hospitals and health facilities.” In

re Lieberman, 646 N.W.2d at 202 (emphasis added). Indeed, the peer review privilege

trumps a search warrant in a criminal investigation, id. at 203, and it trumps an

investigative subpoena from the Michigan Board of Medicine, Bruce, 369 N.W.2d at

832. These cases militate against finding a ready waiver. 

Moreover, a contribution action is not a typical affirmative claim brought by a

plaintiff. As the Michigan Court of Appeals has explained, “The sine qua non of the

contribution statute is that the defendant from whom contribution is sought is a
19

tortfeasor. The contribution act affords a defendant a procedure to gain contribution

from a fellow tortfeasor. It does not establish liability in the first instance.” Zoll v.

Brinkerhoff, 427 N.W.2d 610, 612 (Mich. Ct. App. 1988). The theory is that the injured

party could have sued both the plaintiff now seeking contribution and the defendant, and

liability would have been apportioned between these two in the underlying suit brought

by the injured party. Because only the plaintiff was sued, however, the plaintiff is now

seeking this apportionment in a contribution action. In the underlying Cober Litigation,

the peer review material would not have been discoverable and had Defendant been a

party, it would have had to defend the suit without this material. It would be a strange

result to require the disclosure of this material when Plaintiffs are now seeking the same

apportionment that would have occurred in the Cober Litigation had Defendant been a

party. Thus, the “at issue” waiver argument is particularly weak in the context of a

contribution claim.

Defendant also argues that Plaintiffs waived the peer review privilege by

involving Defendant in the peer review process. (Def.’s Mot. Br. at 17.) In support,

Defendant has attached emails from Beaumont’s Clinical Engineering Manager seeking

to speak with Defendant’s engineers about performing a “human factors analysis.” 

(Def.’s Mot., Ex. D.) Defendant’s legal counsel sought information from Beaumont

regarding the proposed testing protocol, but Beaumont never provided the requested

information. (Def.’s Mot. Br. at 17 n.6.) Defendant does not assert that it was involved

in producing the Variance Reports or Sentinel Event Report. Defendant provides no

authority for the proposition that potential involvement in one aspect of the peer review

process necessarily means that a person has access to the complete peer review
S:\Cleland\JUDGE'S DESK\C1 ORDERS\09-11941.BEAUMONT.Mot.Compel.PeerReview.npk.wpd 20

process. Accordingly, the court concludes that Plaintiffs have not waived the peer

review privilege.

IV. CONCLUSION

 IT IS ORDERED that Defendant’s “Motion to Compel Production of Documents”

[Dkt. # 24] is DENIED IN PART. It is denied as to the first, second, and fifth entries on

Plaintiff’s peer review privilege log, i.e. the Variance Reports, Sentinel Reports, and

accompanying investigative materials.

Plaintiffs are DIRECTED to file by April 29, 2010, documentation sufficient for

the court to determine whether the third, fourth, and sixth entries on their privilege log

are protected by the peer review privilege. Failure to file additional information by this

date will result in Defendant’s motion being granted as to these documents.

Plaintiffs are FURTHER DIRECTED to supplement their peer review privilege log

with the authors of the documents and provide the updated privilege log to Defendant

by April 29, 2010.

 S/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: April 21, 2010

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, April 21, 2010, by electronic and/or ordinary mail.

 S/Lisa G. Wagner 

Case Manager and Deputy Clerk

(313) 234-5522