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Avila v. Mohave County

United States District Court, D. Arizona

October 30, 2015

MARIA AVILA, an individual and on behalf of the Estate of GILBERTO AVILA, Plaintiff,
MOHAVE COUNTY, et al., Defendants.


H. Russel Holland United States District Judge

Discovery Motions

Plaintiff requests that the stay in this case be lifted and that the pending discovery motions be resolved.[1] Plaintiff’s request is granted. This case is no longer stayed and the discovery motions are resolved herein.

Defendant Corizon Health moves for entry of a protective order.[2] This motion is opposed and plaintiff cross-moves to compel production of Corizon’s mortality reviews and financial records.[3] Plaintiff’s cross-motion is opposed.[4] Plaintiff also moves to compel answers to some of its interrogatories.[5] This motion is opposed.[6] Oral argument has been requested on Corizon’s motion for entry of a protective order but is not deemed necessary.


Plaintiff is Maria Avila. Defendants are Mohave County; Sheriff Tom Sheahan; Tommy Sides; Peter Taylor; Corizon Health, Inc., f/k/a Prison Health Services, Inc.; Sheila Schoff; Jeff Hein; Mary Susan Cagle Short; Donovan Schmidt, D.O.; and Kingman Medical Association, Inc.

Plaintiff’s son, Gilbert Avila, Jr., was incarcerated at the Mohave County Detention Facility on May 13, 2013. On May 16, 2013, Mr. Avila complained to a correctional officer that his ribs were hurting and that he was having trouble breathing. Mr. Avila was unable to get into his top bunk without help from other inmates. L.P.N. Jeff Hein was summoned and he observed normal respirations and took Mr. Avila’s blood pressure and pulse, which were within normal limits. Hein reported his observations to Charge Nurse Susie Cagle Short.

On May 17, 2013, Cagle Short responded to a call that Mr. Avila was hyperventilating. Cagle Short brought Mr. Avila to the medical unit and conducted an assessment. Mr. Avila complained of rib pain, back pain, and abdominal pain. Cagle Short tested Mr. Avila’s blood sugar, which was high although he reported no history of diabetes.

Cagle Short called Dr. Donovan Schmidt to report her findings. Dr. Schmidt prescribed Bactrim, Motrin, and insulin and gave an order for a straight catheter to determine if Mr. Avila had residual urine in his bladder. Mr. Avila was kept in the medical unit for observation. At approximately 3:00 a.m. on May 18, 2013, L.P.N. Sheila Schoff tested Mr. Avila’s blood sugar which was high. Mr. Avila agreed to take the ordered dose of insulin but declined to take his other medications. Mr. Avila also vomited a small amount of liquid at this time. At some point in time, Mr. Avila returned to his cell. At approximately 5:03 a.m. on May 18, 2013, he was found unresponsive. CPR efforts were unsuccessful and Mr. Avila died. An autopsy was performed and the cause of death was determined to be purulent peritonitus due to a perforated gastric ulcer.

Plaintiff commenced this action on May 8, 2014 in state court. The case was subsequently removed to this court. In her amended complaint, plaintiff asserts negligence, gross negligence, medical malpractice, and § 1983 claims.

During discovery, plaintiff sought to depose a Corizon representative regarding 1) the “financial considerations” between Corizon and Dr. Schmidt and/or Kingman Medical Association and between Corizon and Mohave County, 2) the mortality review of Mr. Avila’s death, [7] and 3) Corizon’s performance evaluations of Dr. Schmidt, Schoff, Hein, and Cagle Short. Plaintiff also requested production of Corizon’s annual and quarterly financial reports from January 1, 2010 through December 31, 2014, the morality reviews, and the performance evaluations.

Corizon now moves for a protective order precluding plaintiff from taking any of this discovery. Plaintiff cross-moves to compel production of any peer or mortality reviews and Corizon’s annual and quarterly reports from January 1, 2010 through December 31, 2014. Plaintiff also cross-moves to compel Corizon to produce its most knowledgeable person to testify about the financial terms of the contract between Corizon and Mohave County and the contract between Corizon and Dr. Schmidt. And, plaintiff moves to compel certain defendants to answer certain interrogatories.


Rule 26(c), Federal Rules of Civil Procedure, governs the entry of protective orders. Rule 26(c)(1) provides in pertinent part that

A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending.... The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:
(A) forbidding the disclosure or discovery;
* * *
(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;
* * *
(G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way[.]

“For good cause to exist, the party seeking protection bears the burden of showing specific prejudice or harm will result if no protective order is granted.” Phillips ex rel. Estates of Byrd v. General Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002). “If a court finds particularized harm will result from disclosure of information to the public, then it balances the public and private interests to decide whether a protective order is necessary.” Id. The factors the court considers are:

“(1) whether disclosure will violate any privacy interests; (2) whether the information is being sought for a legitimate purpose or for an improper purpose; (3) whether disclosure of the information will cause a party embarrassment; (4) whether confidentiality is being sought over information important to public health and safety; (5) whether the sharing of information among litigants will promote fairness and efficiency; (6) whether a party benefitting from the order of confidentiality is a public entity or official; and (7) whether the case involves issues important to the public.”

In re Roman Catholic Archbishop of Portland in Oregon, 661 F.3d 417, 424-25 n.5 (9th Cir. 2011) (quoting Glenmede Trust Co. v. Thompson, ...

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