In the Circuit Court of Montgomery County State of Alabama
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ELECTRONICALLY FILED 2/3/2011 4:23 PM CV-2010-001587.00 CIRCUIT COURT OF MONTGOMERY COUNTY, ALABAMA FLORENCE CAUTHEN, CLERK IN THE CIRCUIT COURT OF MONTGOMERY COUNTY STATE OF ALABAMA BROOKWOOD HEALTH SERVICES, INC. d/b/a BROOKWOOD MEDICAL CENTER and ST. VINCENT'S HEALTH SYSTEM; Appellants/Petitioners, v. CASE NUMBER: CV-2010-001587.00 AFFINITY HOSPITAL, LLC d/b/a TRINITY MEDICAL CENTER OF BIRMINGHAM and ALABAMA STATE HEALTH PLANNING AND DEVELOPMENT AGENCY, an agency of the State of Alabama, Appellees/Respondents. MOTION TO QUASH Pursuant to Alabama Rule of Civil Procedure 26 and Ala. Code § 41-22-20, Appellee/Respondent Affinity Hospital, LLC d/b/a Trinity Medical Centers of Birmingham (“Trinity”) respectfully moves this Court for an order quashing the discovery requests served by Appellant/Petitioner Brookwood Health Services, Inc. d/b/a Brookwood Medical Center (“Brookwood”).1 In support of this Motion, Trinity shows the Court as follows: I. INTRODUCTION This action asks the Court to review the State Health Planning and Development Agency’s (“SHPDA”) final order granting Trinity’s request to relocate its hospital from Montclair Road to Highway 280. Under the Alabama Administrative Procedures Act, the Court’s review of that decision is limited to the administrative record generated during the agency proceedings and the decision must be affirmed if it is supported by any evidence in the 1 In bringing this motion, Trinity expressly reserves all objections to Brookwood’s discovery requests. 1137335.1 administrative record. Nevertheless, with the filing of its Petition for Judicial Review, Brookwood served written discovery requests, deposition notices, and notices of intent to serve third-parties with subpoenas (collectively, the “discovery requests”). The discovery requests seek information relating to: (1) representations made in Trinity’s CON application; (2) Trinity’s decision to forego its CON to relocate to Irondale in favor of applying for a CON to relocate to Highway 280; and (3) negotiations between Trinity and the owner of the site on Highway 280. All of these issues were litigated in the SHPDA proceedings and Alabama law does not allow Brookwood to relitigate them in this forum. Accordingly, the Court must quash Brookwood’s discovery request. Otherwise, it would be exceeding the authority vested in it by the Alabama Administrative Procedures Act. II. STATEMENT OF RELEVANT FACTS 1. On December 1, 2008, Trinity filed an application for a Certificate of Need (“CON”) to move its hospital from its current location on Montclair Road to the former HealthSouth building on Highway 280 in Birmingham. A true and correct copy of Trinity’s cover letter to its CON application is attached hereto as Exhibit A. 2. Thereafter, Brookwood and St. Vincent’s Health System filed Notice[s] of Intervention and Request[s] for a Contested Case Hearing. True and correct copies of those filings are attached hereto collectively as Exhibit B. 3. On April 20, 2009, while this matter was pending before the State Health Planning and Development Agency (“SHPDA”), Brookwood served proposed Joint Consolidated Discovery Requests on Trinity. True and correct copies of the Joint Consolidated Discovery Requests are attached hereto as Exhibit C. Brookwood also served seven proposed subpoenas. True and correct copies of those subpoenas are attached hereto as Exhibit D. 1137335 2 4. On April 30, 2009, Trinity filed a Motion to Limit Discovery. A true and correct copy of the Motion to Limit Discovery is attached hereto as Exhibit E. In the Motion to Limit Discovery, Trinity noted that the Certificate of Need Review Board’s (the “CON Board”) rules state that “substantial information is contained in applications for Certificates of Need” therefore discovery requests “are not favored, and it is recommended that the discretion to authorize such discovery be exercised against permitting such discovery, or that any such discovery be limited to the most rare and unusual circumstances.” Id. at pp. 2-4 (quoting CON Board Rule 410-1-8- .02(6) and citing Ex Parte Wilbanks Health Care Servs., Inc., 986 So. 2d 422, 427 (Ala. 2007) (holding that an agency must “vigorously comply” with its own administrative regulations). 5. On July 17, 2009, Brookwood filed a Motion to Compel discovery responses from Trinity. A true and correct copy of the Motion to Compel is attached hereto as Exhibits F. 6. The administrative law judge (“ALJ”) issued an Order dated August 4, 2009, addressing the Motion to Compel. A true and correct copy of the ALJ’s Order dated August 4, 2009, is attached hereto as Exhibit G. In that Order, the ALJ directed the parties to “confer as to all remaining discovery issues.” Id. at p. 1, ¶ 3. The ALJ further stated that “in the absence of resolution of all conflicts, the parties should submit, in writing to the [ALJ], specific issues on a question-by-question basis and requests for production on a request-by-request basis.” Id. The ALJ further explained that he would “rule on each issue, question and request for production as may be necessary.” Id. 7. On August 26, 2009, Brookwood filed a second Motion to Compel. A true and correct copy of the second Motion to Compel is attached hereto as Exhibit H. In the second Motion to Compel, Brookwood only took issue with Trinity’s response to a single request for production in which Brookwood asked Trinity to produce documents between itself and other 1137335 3 healthcare providers by which the other healthcare provider would agree to withhold objection to Trinity’s relocation. Id. at p. 1, ¶ 1. 8. On September 16, 2009, after holding an in camera inspection of the documents requested by Brookwood, the ALJ denied Brookwood’s second Motion to Compel. A true and correct copy of the ALJ’s Order dated September 16, 2009, is attached hereto as Exhibit I. 9. Thereafter, from September 28, 2009, through November 4, 2009, the parties presented their arguments and evidence to the ALJ. After hearing all of the evidence and arguments of the parties, the ALJ issued a recommendation that the CON Board grant Trinity’s request for a certificate of need (“CON”) to relocate its hospital to the location on Highway 280. A true and correct copy of the ALJ’s recommendation is attached hereto as Exhibit J. On September 15, 2010, the CON Board adopted the ALJ’s findings and granted Trinity’s CON application. The CON Board issued SHPDA’s Final Order on September 30, 2010. A true and correct copy of the Final Order is attached hereto as Exhibit K. 10. On October 15, 2010, Brookwood filed a Request for Reconsideration of the final order. A true and correct copy of Brookwood’s Request for Reconsideration is attached hereto as Exhibit L. 11. On October 17, 2010, Trinity produced sixteen more documents, in addition to the 7,000 pages of documents it had already produced, to Brookwood, St. Vincent’s, and the CON Review Board. The majority of the documents had been withheld from the original production because they were protected by the attorney-client privilege. However, in a separate lawsuit in which Trinity was represented by separate counsel, the documents were produced, thus arguably waiving the privilege. See Email from Carey B. McRae, a true and correct copy of which is attached hereto as Exhibit M. 1137335 4 12. On October 18, 2010, Trinity filed an Opposition to Brookwood’s Motion for Reconsideration and pointed out that the newly produced documents did not provide any basis for SHPDA to reconsider its Final Order. A true and correct copy of Trinity’s Opposition to the Motion for Reconsideration is attached hereto as Exhibit N. 13. On October 19, 2010, Brookwood filed a reply brief and argued that the contested case hearing should be re-opened based upon Trinity’s production of documents. A true and correct copy of Brookwood’s Reply Brief is attached hereto as Exhibit O. 14. On October 20, 2010, the parties appeared before the CON Board and argued their respective positions relating to Brookwood’s Motion for Reconsideration. See Exhibit Q at ¶ 83. On November 4, 2010, The CON Board issued an Order denying Brookwood’s Request for Reconsideration. A true and correct copy of the Order denying Brookwood’s Motion for Reconsideration is attached hereto as Exhibit P. 15. On December 16, 2010, Brookwood filed this action for judicial review of SHPDA’s final decision granting Trinity’s CON application. A stamped “filed” copy of the Petition for Judicial Review is attached hereto as Exhibit Q. Brookwood’s Petition for Judicial review states that SHPDA’s final decision should be overturned because it was: (1) in violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) in violation of an agency rule; (4) made upon unlawful procedure; (5) affected by other error of law; (6) clearly erroneous based upon the evidence contained in the whole record; and (7) unreasonable, arbitrary, capricious, or characterized by an abuse of discretion. Id. at ¶ 85. Notably, Brookwood’s Petition for Judicial Review does not allege any fraud or other misconduct on the part of anyone involved in the administration of SHPDA. See id. 1137335 5 16. On December 16, 2010, Brookwood served Consolidated Discovery Requests upon Trinity which included Interrogatories, Requests for Production, and Requests for Admission. A true and correct copy of the Consolidated Discovery Requests are attached hereto as Exhibit R. The Consolidated Discovery Requests seek information regarding issues surrounding Trinity’s submission of its application for a Certificate of Need (“CON”) to relocate its hospital to Highway 280, but not one of the requests contained therein seeks any information that would shed light on whether any person engaged in the administration of the SHPDA engaged in fraud or other misconduct.