Lee Mem’l Health Sys. v. Jeffery (Full Text)

Case 2:08-cv-00843-JES-DNF Document 108 Filed 03/30/10 Page 1 of 17

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LEE MEMORIAL HEALTH SYSTEM,
Plaintiff,

Case No. 2:08-cv-843-FtM-29DNF

vs.
DAVID L. JEFFERY as Personal
Representative of the Estate of
Percy l. Jeffery, Jr., MARIA
JEFFERY, and JUDITH THORTON, as
Personal Representative of the
Estate of Kenneth Thornton,
Defendants.
___________________________________

OPINION AND ORDER
This matter comes before the Court on the following motions:
(1) defendants David L. Jeffery, as Personal Representative of the
Estate of Percy L. Jeffery, Jr., and Maria Jeffery’s Renewed Motion
for Abstention (Doc. #53); (2) defendant Judith Thornton’s, as
Personal Representative of the Estate of Kenneth Thornton, Renewed
Motion for Abstention (Doc. #54); and (3) plaintiff Lee Memorial
Health System’s Motion to Certify Defendant Class. (Doc. #64.)
The Court previously raised the issue of its jurisdiction,
questioning whether the case had been rendered moot by actions
occurring after its filing. The Court heard oral arguments on
these three topics on March 19, 2010.
I.

Plaintiff Lee Memorial Health System (“Lee Memorial”) is a
political subdivision of the State of Florida, created by the

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Florida Legislature to operate, control and maintain public
hospitals and other healthcare facilities in Southwest Florida.
Lee Memorial operates a number of health care facilities in
Southwest Florida, including Lee Memorial Hospital, Cape Coral
Hospital, HealthPark Medical Center, Southwest Florida Regional
Medical Center, and Gulf Coast Hospital. As part of its routine
operations, Lee Memorial engages in several types of self-critical
analysis, including physician credentialing, peer review, risk
management activities, and quality review and assurance measures.
Prior to November 2, 2004, the law in Florida was clear that
health care facilities in Florida such as Lee Memorial were not
required to disclose “confidential information and records” in
certain situations, such as pursuant to investigations of medical
malpractice. On November 2, 2004, however, the Florida electorate
approved, through the ballot initiative process, an amendment to
the State Constitution titled “Patients’ Right to Know About
Adverse Medical Incidents” (Amendment 7). Amendment 7, as codified
at Article X, Section 25 of the Florida Constitution, provides:
(a) In addition to any other similar rights provided
herein or by general law, patients have a right to have
access to any records made or received in the course of
business by a health care facility or provider relating
to any adverse medical incident.
(b) In providing such access, the identity of patients
involved in the incidents shall not be disclosed, and
any privacy restrictions imposed by federal law shall be
maintained.
(c) For purposes of this section, the following terms
have the following meanings:
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(1) The phrases “health care facility” and “health care
provider” have the meaning given in general law related
to a patient’s rights and responsibilities.
(2) The term “patient” means an individual who has
sought, is seeking, is undergoing, or has undergone care
or treatment in a health care facility or by a health
care provider.
(3) The phrase “adverse medical incident” means medical
negligence, intentional misconduct, and any other act,
neglect, or default of a health care facility or health
care provider that caused or could have caused injury to
or death of a patient, including, but not limited to,
those incidents that are required by state or federal
law to be reported to any governmental agency or body,
and incidents that are reported to or reviewed by any
health care facility peer review, risk management,
quality assurance, credentials, or similar committee, or
any representative of any such committees.
(4) The phrase “have access to any records” means, in
addition to any other procedure for producing such
records provided by general law, making the records
available for inspection and copying upon formal or
informal request by the patient or a representative of
the patient, provided that current records which have
been made publicly available by publication or on the
Internet may be “provided” by reference to the location
at which the records are publicly available.
FLA. CONST. art. X, § 25. On June 20, 2005, the Florida Legislature
passed an enabling act, codified at Florida Statutes § 381.028, to
implement Amendment 7. On March 6, 2008, the Florida Supreme Court
upheld Amendment 7 against various challenges, holding among other
things that Amendment 7 is self-executing, could be applied
retroactively to records existing prior to its effective date of
November 2, 2004, and that such retroactive application did not
violate the due process rights of hospitals. Fla. Hosp. Waterman,
Inc. v. Buster, 984 So. 2d 478 (Fla. 2008). A number of Florida

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courts have previously addressed, and continue to address, various
issues involving Amendment 7.
Lee Memorial routinely receives requests for documents falling
within the ambit of Amendment 7, i.e., “records made or received in
the course of business by a health care facility or provider
relating to any adverse medical incident.” These include
litigation discovery requests as well as requests in administrative
proceedings, pre-suit proceedings, and outside of litigation. Lee
Memorial declines to produce responsive documents voluntarily based
upon its legal belief as to the invalidity of Amendment 7.
The Second Amended Complaint (Doc. #46), the operative
pleading in this case, contains five counts: A request for a
declaratory judgment that Amendment 7 is preempted by the Health
Insurance Portability and Accountability Act (HIPAA) (Count I) and
is preempted by the Health Care Quality Improvement Act (HCQIA)
(Count II); a request for a declaratory judgment that the
retroactive application of Amendment 7 violates the Contract Clause
of the United States Constitution (Count III); a request for
declaratory judgment that the federal and state “work product
privilege” prevent disclosure of information sought pursuant to
Amendment 7 (Count IV); and a request for preliminary and permanent
injunctions that plaintiff need not comply with the Amendment 7

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requests for information by defendants Jeffery, Thornton, and Brea1
(Count V). (Doc. #46, pp. 20-21.)
II.
Federal courts are courts of limited jurisdiction, Keene Corp.
v. United States, 508 U.S. 200, 207 (1993), and a federal court is
obligated to inquire into subject-matter jurisdiction sua sponte
whenever it may be lacking. Cadet v. Bulger, 377 F.3d 1173, 1179
(11th Cir. 2004); May v. Capote, 149 Fed. Appx. 913, 915-16 (11th
Cir. 2005). Under Article III of the United States Constitution,
the subject matter jurisdiction of federal courts extends only to
“cases or controversies.” Bowen v. First Family Fin. Servs., 233
F.3d 1331, 1339 (11th Cir. 2000). “An actual controversy must be
extant at all stages of review, not merely at the time the
complaint is filed.” Alvarez v. Smith, 130 S. Ct. 576, 580
(2009)(internal citations and quotations omitted). “If a suit is
moot, it cannot present an Article III case or controversy and the
federal courts lack subject matter jurisdiction to entertain it.
[ ] Mootness can occur due to a change in circumstances, or . . .
a change in the law.” Seay Outdoor Adver., Inc. v. City of Mary
Esther, Florida, 397 F.3d 943, 946 (11th Cir. 2005)(internal

Defendants Kimberly Brea and Alex Brea, individually and as
1
parents and natural guardian of Michelle Brea, were named parties
in the superceded Amended Complaint. (Doc. #3.) The Brea
defendants are not, however, named parties in the operative Second
Amended Complaint (Doc. #46), despite a singular reference to them
on page 21 of the Second Amended Complaint and their inclusion in
the case caption.

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citations omitted); Troiano v. Supervisor of Elections in Palm
Beach County, Florida, 382 F.3d 1276, 1281 (11th Cir. 2004). A
case is moot when the issue presented is no longer live, the
parties lack a legally cognizable interest in its outcome, or a
court decision could no longer provide meaningful relief to a
party. Troiano 382 F.3d. at 1281-82. Whether a case is moot is a
question of law, Troiano, 382 F.3d at 1282, and the party urging
dismissal bears the heavy burden of establishing mootness. Beta
Upsilon Chi Upsilon Chapter v. Machen, 586 F.3d 908, 916 (11th Cir.
2009).
The Court initially raised the issue of whether this case was
moot as to the two named defendants. (Doc. #96.) After an initial
discussion with counsel at a pretrial conference (Doc. #101), the
Court scheduled oral arguments on the issue. During oral
arguments, the parties agreed that the case is not moot as to
defendant Judith Thornton, but disagreed as to whether the case is
moot as to the Jeffery defendants. Defendants have recently filed
a Motion to Dismiss (Doc. #107) arguing that the case is moot as to
both defendants. For the reasons stated below, the Court finds
that the case is not moot as to defendant Thorton, but is moot as
to the Jeffery defendants.
A. Jeffery Defendants
The Second Amended Complaint alleged that the Jeffrey
defendants (Jeffreys) were plaintiffs in the state court matter of
Jeffery, et al. v. Assocs. in Gen. & Vascular Surgery, et. al.,
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Case No. 06-CA-000907, in the Circuit Court for the Twentieth
2
Judicial Circuit in and for Lee County, Florida. The state court
case consisted of a medical malpractice suit brought by the
Jefferys against various entities and physicians relating to
medical care provided to Percy L. Jeffery, Jr., at Cape Coral
Hospital. (See Doc. #3-10.) Lee Memorial was not named as a party
to that suit.
On May 11, 2008, the Jefferys, through their counsel, served
a subpoena duces tecum on Lee Memorial requesting various documents
(see Doc. #3-11), including documents within the scope of Amendment
7. (Doc. #46, ¶¶ 45-52; Doc. #55, p. 3.) The validity of this
subpoena remained contested in the state court proceeding. On
November 23, 2009, there was a voluntary dismissal of the state
court case due to settlement. Counsel for the state-court
plaintiffs has confirmed to counsel for Lee Memorial that there are
no longer any pending discovery requests of any kind directed at
Lee Memorial or any other entity in this case. (Doc. #106-1.)
The Court finds the issue regarding access to Amendment 7
documents in the Jefferys case is no longer live and that the
Jefferys currently lack a legally cognizable interest in its
outcome. The Jeffery case has been settled without disclosure of
the purported Amendment 7 documents, the state case is closed,
there is no longer a request for disclosure pending, and there is

It appears that the Second Amended Complaint incorrectly
2
lists the Case Number as: 05-CA-000907. (See Doc. #3-10.)
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no indication that such a request may be made in the future as to
the patient at issue in that case. While the parties may dispute
the lawfulness of Amendment 7,
that dispute is no longer embedded in any actual
controversy about the plaintiffs’ particular legal
rights. Rather, it is an abstract dispute about the law,
unlikely to affect these plaintiffs any more than it
affects other [ ] citizens. And a dispute solely about
the meaning of a law, abstracted from any concrete actual
or threatened harm, falls outside the scope of the
constitutional words “Cases” and “Controversies.”
Alvarez, 130 S. Ct. at 580-81 (internal citations omitted).
The Jeffery matter is not such an exceptional situation that
the “capable of repetition while evading review” exception is
applicable. Nothing suggests that the Jeffery defendants will
again seek Amendment 7 documents in connection with this patient
(who is deceased), and the lawfulness of the amendment does not
evade review in light of the others who have made such requests.
Id. at 581.
Additionally, the voluntary cessation doctrine does not apply
in this case. While the mere voluntary cessation of allegedly
illegal conduct does not moot a case, the “basis for this doctrine
is a concern that a defendant who voluntarily ceases an activity is
‘free to return to his old ways.’” Beta Upsilon Chi Upsilon
Chapter, 586 F.3d at 916 (citation omitted). That concern is not
applicable in this case, since the patient is deceased and his
representative has settled the claim.

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Accordingly, the federal case as to the Jeffery defendants is
moot, and those defendants are dismissed from this case.
B. Thornton Defendant
The Second Amended Complaint alleged that on June 26, 2008,
defendant Thornton sent a pre-suit Notice of Intent to Initiate
Litigation for Medical Malpractice to Lee Memorial, seeking
documents covered under Amendment 7. (See Doc. #46, ¶¶ 53-56; Doc.
#3-12.) Lee Memorial alleged that it objected to the request to
the extent that it sought documents covered under Amendment 7, and
that the Thornton request of Lee Memorial was still pending as of
the filing of the Second Amended Complaint. No Amendment 7
documents were produced by Lee Memorial pursuant to the pre-suit
request, but a medical malpractice case was filed on October 16,
2008 in state court against Lee Memorial and others. That case is
still pending in state court, and the docket sheet reflects
continuing discovery efforts. (Doc. #100-1, Exh. E.) On March 24,
2010, counsel for Judith Thornton wrote to Lee Memorial’s counsel
and officially withdrew her Notice of Intent to the extent it in
any way implicated Amendment 7. (Doc. #107-2.) Ms. Thornton’s
counsel did not withdraw any discovery request made during the
litigation which implicates Amendment 7 documents.
The Court finds the case is not moot as to defendant Thornton.
Unlike the situation with Jeffery, the underlying medical
malpractice case is continuing, there are on-going discovery
requests in that proceeding, there has been no attempt to disclaim
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any interest in Amendment 7 documents in that case, and there is
every realistic probability that Amendment 7 documents exist and
will or have been requested in the on-going litigation.
III.
This Court has subject matter jurisdiction over the claims
against Thornton in the Second Amended Complaint pursuant to 28
U.S.C. § 1331, which provides jurisdiction over claims arising
under federal law. Having found that the case is not moot as to
Thornton, and therefore remains justiciable, the Court next turns
to defendant’s argument that the Court should abstain from
exercising its jurisdiction under Younger v. Harris, 401 U.S. 37
(1971) and its progeny, specifically Middlesex County Ethics Comm.
v. Garden State Bar Ass’n, 457 U.S. 423 (1982).
The well established general rule is that a federal court has
a “virtually unflagging” duty to adjudicate claims within its
jurisdiction. New Orleans Pub. Serv., Inc. v. Council of New
Orleans, 491 U.S. 350, 359 (1989)(NOPSI). The Younger doctrine is
“an extraordinary and narrow exception to the duty of a District
Court to adjudicate a controversy properly before it.” Colorado
River Water Conservation Dist. v. United States, 424 U.S. 800, 813
(1976) (quoting County of Allegheny v. Frank Mashuda Co., 360 U.S.
185, 188-89 (1959)).
In Younger v. Harris, a federal plaintiff challenged the
constitutionality of a state statute under which he was being
prosecuted in state court as a defendant. The Supreme Court
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concluded that the state criminal proceeding offered a sufficient
forum for the plaintiff to raise his constitutional defense, and
abstained from hearing plaintiff’s claim. Younger held that based
on concepts of federalism, a federal district court must refrain
from enjoining pending criminal state court proceedings except
under certain special circumstances.
The Supreme Court has expanded Younger abstention to strictly
civil proceedings which implicate state courts’ “important
interests in administering certain aspects of their judicial
systems.” Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 12-13 (1987)
(requirement for the posting of bond pending appeal); Juidice v.
Vail, 430 U.S. 327, 334 (1977) (state contempt process).
Nonetheless, the Supreme Court has made clear that the abstention
doctrine is not triggered in a civil context unless the federal
injunction requested would create an “undue interference with state
proceedings.” NOPSI, 491 U.S. at 359. In addition, the Supreme
Court has instructed that Younger only applies where the state
proceeding at issue involves “orders that are uniquely in
furtherance of the state courts’ ability to perform their judicial
functions . . . it has never been suggested that Younger requires
abstention in deference to a state judicial proceeding reviewing
legislative or executive action.” NOPSI, 491 U.S. at 368; Wexler
v. Lepore, 385 F.3d 1336, 1338-39 (11th Cir. 2004) (holding that a
pending state civil action does not require the federal court to
abstain “unless the requested federal relief would result in
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meticulous and burdensome federal oversight of state court or
court-like functions”).3
Thus, a federal court may abstain from granting injunctive
relief under Younger where: (1) the state proceeding is ongoing;
(2) the proceeding implicates an important state interest; and (3)
there is an adequate opportunity to raise a constitutional
challenge in the state court proceedings. Green v. Jefferson
County Comm’n, 563 F.3d 1243, 1250 (11th Cir. 2009); Middlesex
County Ethics Comm’n, 457 U.S. at 432-35. The Supreme Court
created exceptions to Younger abstention, however, allowing a
federal court to issue an injunction when (1) there is evidence of
state proceedings motivated by bad faith, (2) irreparable injury
would occur, or (3) there is no adequate alternative state forum
where the constitutional issues can be raised. Younger, 401 U.S.
at 46-49.
The Court concludes that it should not abstain in this case.
The pre-suit request does not justify abstention because there was
no pending case from which to abstain at the time. While there is
now a pending medical malpractice case, defendant has not

While Younger involved an injunction, it has been extended to
3
declaratory relief which would effectively enjoin a pending state
criminal case. Samuels v. Mackell, 401 U.S. 66, 73 (1971); Rowe v.
Griffin, 676 F.2d 524, 525-26 (11th Cir. 1982)(citing Younger, 401
U.S. 37 and Samuels, 401 U.S. 66). The Eleventh Circuit has also
applied Younger to a request for declaratory judgment which would
have the effect of enjoining a state court from enforcing its
judgment. Old Republic Union Ins. Co. v. Tillis Trucking Co.,
Inc., 124 F.3d 1258 (11th Cir. 1997).
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identified any specific order which a decision in this federal case
would interfere with, much less establish an undue interference
with the state proceedings. Therefore, defendant’s request to
abstain from deciding the issues presented is denied.
IV.
The final issue is plaintiff’s motion to certify a defendant
class. Lee Memorial seeks certification of the following class of
defendants: “All individuals who have made or may in the future
make a request for documents pursuant to or covered by Amendment 7
to Lee Memorial Health System, including any facility or provider
under its control.” (Doc. #64, p. 5.) Lee Memorial argues that it
has satisfied all prerequisites of Rule 23(a) as well as the
requirements of Rule 23(b)(2).
Lee Memorial has provided scant authority with regard to
certifying a class of defendants, in contrast with the usual
posture where a class of plaintiffs seek certification. The Court
agrees with Lee Memorial, however, that such a defendant class is
authorized by Federal Rule of Civil Procedure 23. In setting forth
the prerequisites for a class action, Rule 23(a) states in
pertinent part that “[o]ne or more members of a class may sue or be
sued as representative parties on behalf of all members only if: .
. .” FED. R. CIV. P. 23(a)(emphasis added). Similarly, Rule 23(b)
provides that “[a] class action may be maintained if Rule 23(a) is
satisfied and if: (1) prosecuting separate actions by or against
individual class members would create a risk of: . . .” FE D. R.
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CIV. P. 23(b)(emphasis added). Defendant classes have been
recognized, without review, by the Supreme Court. Zablocki v.
Redhail, 434 U.S. 374, 380 n.6 (1978). Defendants do not argue
that defendant class actions can not be authorized, but rather
argue that they are rarely authorized and require additional
scrutiny. The Court agrees with this proposition as well.
The rules for certification of a class are well settled in the
Eleventh Circuit, albeit in the context of a class of plaintiffs.
“To obtain class certification under Rule 23, the Plaintiffs must
meet each of the requirements specified in Rule 23(a), as well as
at least one of the three subsections of Rule 23(b). [ ] Rule 23(a)
requires plaintiffs to demonstrate that the proposed class
satisfies the prerequisites of numerosity, commonality, typicality,
and adequacy of representation.” Babineau v. Fed. Express Corp.,
576 F.3d 1183, 1189-90 (11th Cir. 2009)(internal citations and
quotations omitted). Rule 23(b) provides three alternatives, one
of which must be satisfied by the moving party.
“Among the prerequisites to the maintenance of a class action
is the requirement of Rule 23(a)(4) that the class representatives
‘will fairly and adequately protect the interests of the class.’ ”
Lyons v. Georgia-Pacific Corp. Salaried Employees Ret. Plan, 221
F.3d 1235, 1253 (11th Cir. 2000). This requirement applies to both
the named plaintiff and counsel, Amchem Prods., Inc. v. Windsor,
521 U.S. 591, 626 n.20 (1997), and is intended in part to protect
the legal rights of absent class members. “Because all members of
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the class are bound by the res judicata effect of the judgment, a
principal factor in determining the appropriateness of class
certification is the forthrightness and vigor with which the
representative party can be expected to assert and defend the
interests of the members of the class.” Lyons, 221 F.3d at 1253
(internal quotations omitted). A court is required to “undertake
a stringent and continuing examination of the adequacy of
representation by the named class representative[ ] at all stages
of the litigation where absent members will be bound by the court’s
judgment.” Shroder v. Suburban Coastal Corp., 729 F.2d 1371, 1374
(11th Cir. 1984). The party seeking certification bears the burden
of establishing all elements of Rule 23(a). London v. Wal-Mart
Stores, Inc., 340 F.3d 1246, 1253 (11th Cir. 2003).
Contrary to the usual situation, the class representative in
a defendant class does not voluntarily seek such designation, but
is effectively selected by the opposing party. There is no showing
that Thornton’s counsel is appropriate for a class action, other
that the law firm represents itself as an appellate firm in its
letter head. While the firm knows the area, having been counsel of
record in Buster before the Florida Supreme Court, this does not
necessarily qualify it to be class counsel. Thornton herself has
made clear she does not wish to be class representative, and
plaintiff has shown nothing which convinces the court of her
qualifications in any event.

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Additionally, the Court is not persuaded by plaintiff’s
argument that the Attorney General for the State of Florida is
providing adequate representation to the class of defendants. The
Attorney General entered a Notice of Appearance pursuant to Florida
Statute § 86.091 on November 25, 2008. (Doc. #9.) This statute
does not make the Attorney General a party, Martin Mem’l Med. Ctr.,
Inc. v. Tenet Healthsystem Hosps., Inc., 875 So. 2d 797, 799-801
(Fla. 1st DCA 2004), or provide that the Attorney General will
represent the named parties. Rather, it merely provides that the
Attorney General is “entitled to be heard” where a declaratory
judgment action seeks to declare a statute, charter, ordinance or
franchise unconstitutional. In this case the Attorney General has
adopted motions filed by defendants’ counsel (Docs. #27, 93),
signed a Case Management Report (Doc. #28), and done virtually
nothing else of record. No one from the attorney general’s office
has appeared for the last two hearings, and that office has been
described as simply monitoring the actions of defendant’s counsel.
Accordingly, plaintiff’s motion to certify a class of defendants is
denied.

V.
The magistrate judge has previously entered an Order (Doc.
#45) giving plaintiff fourteen (14) days from the resolution of the
class certification issue to add parties. That time period starts
with the filing of this Opinion and Order.
Accordingly, it is now

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ORDERED:
1. Defendants David L. Jeffery, as Personal Representative of
the Estate of Percy L. Jeffery, Jr., and Maria Jeffery’s Renewed
Motion for Abstention (Doc. #53) is DENIED.
2. Defendant Judith Thornton’s, as Personal Representative of
the Estate of Kenneth Thornton, Renewed Motion for Abstention (Doc.
#54) is DENIED.
3. Plaintiff Lee Memorial Health System’s Motion to Certify
Defendant Class (Doc. #64) is DENIED.
4. The Second Amended Complaint is DISMISSED as to defendants
David L. Jeffery, as personal representative of the estate of Percy
I. Jeffery, Jr., and Maria Jeffery since the case is moot as to
these defendants.
DONE AND ORDERED at Fort Myers, Florida, this 30th day of
March, 2010.

Copies:
Counsel of record

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