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Cumby v. American Medical Response, Inc.

United States District Court, D. Massachusetts

March 11, 2019

HERMAN PAUL CUMBY, Plaintiff,
v.
AMERICAN MEDICAL RESPONSE, INC., ET AL., Defendants.

          MEMORANDUM OF DECISION AND ORDER ON THE THIRD PARTIES' EMERGENCY MOTION TO QUASH SUBPOENA AND DEFENDANT AMERICAN MEDICAL RESPONSE OF MASSACHUSETTS, INC.'S CROSS MOTION TO COMPEL (Dkt. Nos. 43 & 48)

          KATHERINE A. ROBERTSON U.S. MAGISTRATE JUDGE.

         I. Introduction

         Plaintiff Herman Paul Cumby (Plaintiff) has brought suit against American Medical Response, Inc. (AMR), American Medical Response of Massachusetts, Inc. (AMR MA), Edward Van Horne, the president of AMR and AMR MA, David Pelletier, the general manager of AMR MA (collectively, AMR Defendants), and two emergency medical technicians (EMTs), John Doe and Jane Doe, who were employed by AMR MA, asserting federal claims under 42 U.S.C. § 1983 and state law (Dkt. No. 1). Before the court is Advance Local Media, LLC's (MassLive) and MassLive reporter Dan Glaun's "Emergency Motion to Quash Subpoena[s]" (Dkt. No. 43). Defendant AMR MA issued subpoenas duces tecum to MassLive and Mr. Glaun and a deposition subpoena to Mr. Glaun, opposed the emergency motion, and moved to compel MassLive and Mr. Glaun to comply with the subpoenas (Dkt. No. 48 at 8-9). The court heard argument from the parties on December 20, 2018 and took the motions under advisement. For the reasons set forth below, the court ALLOWS MassLive's and Mr. Glaun's emergency motion to quash in part and DENIES it in part without prejudice, and ALLOWS AMR MA's motion to compel in part and DENIES it in part without prejudice

         II. Relevant Background A.

         Facts[1]

         Plaintiff's claims against Defendants stem from the events that occurred in and around Nathan Bill's EFP Bar and Restaurant ("Nathan Bill's") in Springfield during the night of April 7, 2015 into the early morning hours of April 8, 2015 (Dkt. No. 1 ¶¶ 20, 23). At approximately 11:00 P.M. on April 7, 2015, Plaintiff was inside Nathan Bill's with his cousins, Jozelle Ligon and Jackie Ligon, [2] and their friend Michael Cintron (id. ¶ 20). A group of off-duty Springfield police officers, including Daniel Billingsley, his then-girlfriend Melissa Rodriguez, Anthony Cicero, Christian Cicero, and Igor Basovskiy, were also patronizing Nathan Bill's that night (id. ¶¶ 22, 23).

         At approximately 1:00 A.M. (now April 8, 2015), Billingsley interpreted Jozelle's whistle to a bartender as a "catcall" to Ms. Rodriguez (id. ¶¶ 23). Jozelle left the bar after Billingsley "became aggressive" (id. ¶ 24). Billingsley and two other off-duty officers followed Jozelle outside (id.). Plaintiff, Mr. Cintron, and John Sullivan, one of Nathan Bill's owners and the bar manager, joined them (id. ¶ 25). "When Billingsley rejected efforts to peacefully solve the conflict," Plaintiff, Jackie, Jozelle, and Mr. Cintron walked a short distance to Rocky's Hardware store (id. ¶¶ 25, 26). From there, Plaintiff left the group and walked down Allen Street while speaking to his girlfriend on his cell phone (id. ¶ 26).

         "Right before" 2:00 A.M., Plaintiff walked back toward Nathan Bill's to get his vehicle from Nathan Bill's parking lot (id. ¶¶ 21, 27). As he approached Rocky's Hardware, he saw Jackie, Jozelle, and Mr. Cintron near Murphy's Pop Shop and saw the off-duty officers from Nathan Bill's and about ten others advancing toward them (id. ¶¶ 27, 28). There was a loud whistle, Billingsley allegedly said, "What's up now?" and pushed Jozelle (id. ¶¶ 29, 30). Plaintiff alleges that he attempted to "diffuse the conflict" (id. ¶ 30). When he turned his back on Billingsley and his group, someone struck him from behind knocking him unconscious (id. ¶ 31).

         On-duty Springfield police officers arrived at 2:04 A.M. (id. ¶ 32). At 2:06 A.M., Defendant AMR MA, which furnished contract emergency ambulance services to the Springfield Police Department, was called to assist a "'man down on the ground'" (id. ¶¶ 17, 32). According to the complaint, "AMR MA first entered Nathan Bill's parking lot at 2:11:27 A.M., where a large majority of the Springfield Police had gathered, and then exited the parking lot [one minute later] and left the vicinity, without attending to . . . Plaintiff who was lying on the ground unconscious" (id. ¶ 33). AMR MA returned "[a]fter some delay," parked near Plaintiff, but did not assist him (id. ¶ 34). When Plaintiff regained consciousness, he tried to sit up and saw uniformed Springfield officers Darren Nguyen and Shavonne Lewis speaking to the AMR MA EMTs, John Doe and Jane Doe (id. ¶ 35). Plaintiff also saw some of the off-duty officers who participated in the attack walking back toward Nathan Bill's (id. ¶ 36).

         Plaintiff alleges that he needed Mr. Cintron's help to reach the EMTs' location because he was not able to bear weight on his injured leg and the EMTs still did not approach him to offer their assistance (id. ¶¶ 37, 39, 40). When EMT John Doe asked Plaintiff whether he needed medical attention, Plaintiff responded, "I don't know" (id. ¶ 40). EMT John Doe then told Plaintiff that he "'look[ed] like crap'" (id. ¶ 41). Notwithstanding Plaintiff's report that he had been hit in the head, knocked unconscious, and had "'just got[ten] off the ground, '" EMT John Doe "briefly" examined Plaintiff's bloody head wounds but did not ask whether he was suffering from symptoms of a head injury and did not perform any further assessments, such as checking his pupils or vital signs (id. ¶¶ 42, 44). Plaintiff alleges that EMT John Doe's treatment of his ankle and mouth injuries was similarly subpar (id. ¶¶ 46, 48-52).

         EMT John Doe asked Plaintiff whether he wanted to be transported to the hospital and, without discussing Plaintiff's finances or health insurance, added, "'An ambulance trip would be expensive'" (id. ¶¶ 53, 54). Plaintiff sought EMT John Doe's advice regarding whether he needed emergency treatment at a hospital to which the EMT replied, "'I think you had too much to drink and should go home and sleep it off'" (id. ¶ 55). Plaintiff then drove his vehicle to a cousin's house where he continued to suffer the effects of his injuries (id. ¶¶ 60, 63). Later that day, Plaintiff went to the Baystate Medical Center emergency room where he was diagnosed with a concussion, a broken leg, and "a severely dislocated ankle with significant ligamentous and cartilage injury (requiring surgery and insertion of a metal plate and screws)" (id. ¶ 65). In addition, he lost four upper front teeth (id.).

         Mr. Glaun conducted interviews that are related to the incident that occurred in or near Nathan Bill's on April 7-8, 2015. Mr. Glaun interviewed Plaintiff, Jackie, and their attorneys for an October 16, 2016 MassLive article describing the incident, Plaintiff's medical treatment, and injuries (Dkt. No. 48-1 at 2-10). All interviewees were identified in the article (id.). Mr. Glaun spoke to Plaintiff and his attorney again and quoted them in an article that appeared on MassLive on February 3, 2017 (id. at 63-67). Jozelle, Jackie, and their attorney were interviewed for an April 21, 2017 MassLive article authored by Mr. Glaun (id. at 112, 113). Finally, a January 15, 2018 article identified statements obtained from interviews of Plaintiff, his girlfriend, and his attorney regarding the incident and its aftermath (id. at 115-123). Other MassLive articles referenced information gathered from confidential sources (id. at 132, 160, 161).[3]

         B. Procedural History

         Plaintiff's April 6, 2018 complaint alleges violations of 42 U.S.C. § 1983 and raises pendant state law claims. According to the complaint, the violation of Plaintiff's civil rights stemmed from the EMTs' alleged collusion with Springfield police officers at the scene to deny Plaintiff appropriate emergency medical treatment based on "his race, assumed socio-economic status, and the fact that he had been victimized by [off-duty] Springfield police officers" whose conduct the EMTs and police were purportedly attempting to conceal (Count VII) (Dkt. No. 1 ¶¶ 94-102). In Count VIII, Plaintiff alleges that the AMR Defendants breached their duty to "properly hire, train, and supervise [their] employees and agents in the appropriate standard of care that would not violate [Plaintiff's] civil rights" (id. ¶¶ 103-107). Plaintiff brings a similar claim under the Massachusetts civil rights statute, Mass. Gen. Laws ch. 12, § 11I (Count IX) (id. ¶¶ 108-115). In addition, the complaint includes state law claims of negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress against the EMTs (Counts I, II, III) (id. ¶¶ 66-79) and against the AMR Defendants for their alleged failure to "properly hire, train, and supervise [their] employees and agents to provide the appropriate standard of care" (Counts IV, V, VI) (id. ¶¶ 80-93).

         In the course of discovery, AMR MA issued subpoenas duces tecum to MassLive and to Mr. Glaun based on the MassLive articles Mr. Glaun authored regarding the Nathan Bill's incident (Dkt. No. 45-1 at 2, 6). The subpoena issued to Mr. Glaun also commanded his appearance at a deposition on December 18, 2018 (id. at 2).

         MassLive and Mr. Glaun moved to quash the subpoenas on December 4, 2018 (Dkt. No. 43). They advanced two grounds for their motion to quash: (1) the government agencies' public records that AMR MA seeks are available from other sources and their production by MassLive would constitute an undue burden; and (2) Mr. Glaun's interviews of witnesses, and his notes, recordings of interviews, and other investigatory materials are privileged and contain information obtained from confidential sources (Dkt. No. 44 at 3-7).

         III. Analysis

         A. Government ...


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