United States District Court, D. Arizona
O. Silver, Senior United States District judge.
parties submitted a joint statement regarding the terms of
Dr. Stern's engagement. (Doc. 3111). The parties agree on
some issues but disagree on others. The Court will accept the
portions where the parties agree and this Order addresses
only the disagreements.
Scope of Engagement
not entirely clear where the parties disagree regarding the
general overview of Dr. Stern's engagement and planned
work. The Court appointed Dr. Stern to conduct analysis that
“will include, but is not limited to, ” the
“irregularities and errors in the monitoring
process” and Defendants' “substantial
noncompliance with critical aspects of health care
delivery.” (Doc. 3089 at 1). It appears, however, that
Defendants wish to artificially limit the scope of Dr.
Stern's work both in substance and by preventing him from
speaking with personnel involved in providing care. Such
limitations are not appropriate. Contrary to Defendants'
contention, the quality of health care provided to individual
prisoners is necessarily relevant to determine whether there
is a “practice of substantially departing from the
standard of care.” (Doc. 1185 ¶ 8.) Dr. Stern will
not be precluded from analyzing care provided to particular
prisoners in order to draw global conclusions about health
care delivery. Nor will Dr. Stern be limited in reviewing the
Monitoring Guide and the methodology by which compliance
scores are obtained. The Court has spent tremendous time and
resources in reviewing the various methodologies to ensure
accurate compliance scores are obtained and if Dr. Stern
identifies revisions to the Guide to enhance the reliability
of the data, the Court will entertain those recommendations.
also seek to limit the records Dr. Stern may review and the
individuals he may interview. Neither attempted restriction
is well-taken. Dr. Stern may review source documents that
underly any of the compliance numbers he is tasked with
analyzing. Further, Dr. Stern will be allowed to
“interview key personnel, including facility health
care and custody staff, who it may be necessary to interview
to understand the processes followed, to determine whether
the Monitoring Bureau's methodology application was
correct.” (Doc. 3111 at 5).
Access to Documents, Records, and Prison Facilities
parties disagree whether Dr. Stern should be required to give
notice three business days in advance of any visit to a
prison facility. The parties also disagree on which personnel
Dr. Stern should be allowed to communicate with during those
visits. Dr. Stern will be required to give as much advance
notice as possible but he will not be required to give three
business days' notice. Nor will the Court preclude
unannounced visits in light of Dr. Stern's commitment
that they will be rare events. Also, Dr. Stern will be
permitted to speak with the personnel he believes necessary
during his visits. Dr. Stern has avowed he will avoid
interfering with the daily operations to the extent possible
and, at present, there is no reason to believe his visits
will be unduly burdensome. Good faith allegations that the
Department of Corrections is incurring substantial burdens
can be brought ot the Court's attention for possible
Stern must be permitted to speak privately with individuals
(i.e., no counsel present) but because he will be speaking
with many individuals employed by non-party Corizon, those
individuals are entitled to have counsel present if they
parties also disagree whether Dr. Stern should be given
access to “Pentaho, ” a proprietary software
program that would allow Dr. Stern to generate reports based
on prisoners' electronic medical records. The Court will
leave this matter to Dr. Stern's discretion. If he
believes access to Pentaho would be helpful, Defendants must
arrange that access.
Timeframe and Status Updates
would like Dr. Stern to have regularly-scheduled phone calls
to update the parties while Defendants believe Dr. Stern
should conduct phone calls only on an as-needed basis. Dr.
Stern has no preference. The Court will not require Dr. Stern
to provide updates at regular intervals; the parties will
have status updates when deemed advisable by Dr. Stern. If
either party requests a status update, they may request that
Dr. Stern provide one.
Recommendations to the Court
request that Dr. Stern's reports be filed under seal but
they do not explain why. There is no support for sealing Dr.
Stern's reports and provided personally identifying
patient information has been redacted, there is no need for
them to be filed under seal.