Agster v. Maricopa County

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CAROL ANN AGSTER, personal 
representative of the Estate of
Charles J. Agster, III, deceased,
and as surviving parent of Charles
J. Agster, III; CHARLES J. AGSTER,
JR., surviving parent of Charles J.
Agster, III,
Plaintiffs-Appellees,
v.
MARICOPA COUNTY, a public entity;
MARICOPA COUNTY CORRECTIONAL
HEALTH SERVICES, a division of
Maricopa County, No. 04-15466
Defendants-Appellants,
 D.C. No.
CV-02-01686-JAT
and
MARICOPA COUNTY SHERIFF’S OPINION
OFFICE, a division of Maricopa
County; JOSEPH M. ARPAIO,
Sheriff; BETTY J. LEWIS; JOHN DOE
LEWIS, husband; BARUCH A.
REUSCH; JANE DOE REUSCH, wife;
LEAH R. COMPTON; JOHN DOE
COMPTON, husband; KRISTINE
KEMPER; JAMES E. CROUCH,
husband, aka John Doe Kemper;
AMANDA S. GARRISON; JOHN DOE
GARRISON, husband; SUSAN E.
FISHER; JOHN DOE FISHER, husband;

11705
11706 AGSTER v. MARICOPA COUNTY
ERIC NULPH; JANE DOE NULPH, 
wife; KATHERINA BROKSCHMIDT;
CHARLES BROKSCHMIDT, husband,
aka John Doe Brokschmidt;
MICHAEL C. WILKINS; KATHLEEN 
WILKINS, wife, aka Jane Doe
Wilkins; LAURA SODEMAN; JOHN
DOE SODEMAN, husband,
Defendants.

Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Argued and Submitted
March 16, 2005—San Francisco, California
Filed August 29, 2005
Before: John T. Noonan, Sidney R. Thomas, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Noonan
11708 AGSTER v. MARICOPA COUNTY
COUNSEL
Michael D. Wolver, Phoenix, Arizona, for the defendants-
appellants.
Sean B. Berberian, Phoenix, Arizona, for the plaintiffs-
appellees.
OPINION
NOONAN, Circuit Judge:
The parents and the representative of the estate of Charles
J. Agster III (Agster) brought this action against individuals
and Maricopa County and Maricopa County Sheriff’s Office
AGSTER v. MARICOPA COUNTY 11709
(collectively, the County) for the death of Agster while in the
custody of the County. In this interlocutory appeal, the
County challenges the order of the district court compelling
production of the mortality review conducted by Correctional
Health Services. We hold that we have jurisdiction to consider
the County’s claim of privilege, and we hold that federal law
recognizes no privilege of peer review in the context of a case
involving the death of a prisoner.
FACTS AND PROCEEDINGS
On August 6, 2001, Agster was arrested and taken to the
county jail where he was placed in a restraint chair. His respi-
ration decreased, and he developed an irregular heartbeat.
Attempts were made to resuscitate him. He was ultimately
transported to a hospital where he was placed on life support.
On August 9, 2001, he was pronounced dead.
Correctional Health Services, whose employees had given
medical care to Agster at the jail, was obligated to undertake
a mortality review by its own policies and by Standard J-10
of the National Commission on Correctional Health Care
Standards for Health Services in Jails. The review, designated
as a “Critical Incident Report” was begun August 7, 2001 and
finished November 8, 2001. The review was intended to be,
and was, kept confidential.
On August 6, 2002, the plaintiffs brought this action in Ari-
zona state court. On August 29, 2002, the County removed
the action to the federal district court. Prior to trial, the plain-
tiffs sought discovery of the mortality review. The motion
was opposed by the County evoking Arizona law to maintain
its confidentiality. On January 30, 2002, the district court
ruled “that no federal peer review has been adopted in the
Ninth Circuit.” The court overruled the claim of privilege and
ordered the production of the document. The court declined
to certify the order for interlocutory appeal.
11710 AGSTER v. MARICOPA COUNTY
The County appeals.
ANALYSIS
Jurisdiction. Our jurisdiction is of final judgments, 28
U.S.C. § 1291, with a gloss admitting appeal of “a narrow
class of decisions that do not terminate the litigation, but
must, in the interest of achieving a healthy legal system, none-
theless be treated as final.” Digital Equip. Corp. v. Desktop
Direct, Inc., 511 U.S. 863, 867 (1994) (internal quotations
and citations omitted). Such decisions must “conclusively
determine the disputed question, resolve an important issue
completely separate from the merits of the action, and be
effectively unreviewable on appeal from a final judgment.”
Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978).
The present appeal meets these stringent conditions.
Our circuit has not resolved the general question of
“whether a discovery order disposing of an asserted claim of
privilege could be independently appealed under the collateral
order doctrine of Cohen[.]” United States v. Fernandez, 231
F.3d 1240, 1245 n. 4 (9th Cir. 2000). We need not do so here;
it suffices to conclude that under the specific circumstances of
this case, including the nature and importance of the privilege
at issue, jurisdiction lies.
[1] The issue of the production of the mortality review is
conclusively resolved, and the statutory grant of the claimed
privilege by Arizona and other states attests to its importance.
The trickier question, as we recognized in a related context in
Bittaker v. Woodford, 331 F.3d 715, 718 (9th Cir. 2003) (en
banc), is whether the issue at stake will be effectively unre-
viewable after a final judgment. As we stated in Bittaker, the
district court’s order regarding the privilege is “reviewable on
appeal from the final judgment, no matter who wins below on
the merits,” and “at that time we will know much more about
the practical effect of the order, if any.” Id. at 717. Further,
“if [plaintiffs are] unsuccessful in any of [their] claims, and
AGSTER v. MARICOPA COUNTY 11711
no retrial is necessary, the order would become irrelevant for
all practical purposes.” Id. A similar result would also follow
if, upon appeal after a final judgment, we assumed the impro-
priety of the discovery order but found the error harmless.
[2] However, we conclude, as we did in Bittaker, that the
decision is appealable now “because significant strategic deci-
sions turn on its validity,” and “review after final judgment
may therefore come too late.” Id. at 717-718. Once “[t]he cat
is already out of the bag,” it may not be possible to get it back
in. See id. (quoting In re Ford Motor Co., 110 F.3d 954, 963
(3d Cir. 1997)). Even if a new trial were ordered at which the
material found to be privileged was not admissible, it might
be impossible to undo the effects of the disclosure with regard
to the information in plaintiffs’ hands and its effect on their
trial strategy. Jurisdiction exists to decide the dispute now.
[2] The Privilege. Arizona recognizes the privilege attached
to peer review of “the professional practices within the hospi-
tal or center for the purposes of reducing morbidity and mor-
tality and for the improvement of the care of patients provided
in the institution.” Ariz. Rev. Stat. §§ 36-445, 36-445.01. But
we are not bound by Arizona law, and the defendants deliber-
ately chose the federal forum to litigate this suit.
[4] No case in this circuit has recognized the privilege. But
we can create a new privilege as a matter of federal common
law. A “public good transcending the normally predominant
principle” disfavoring testimonial privileges may justify such
creation. Jaffee v. Redmond, 518 U.S. 1, 9 (1996) (internal
quotations and citation omitted). The law of privilege is not
frozen. The process of recognizing one is “evolutionary.” Id.(citation omitted). It is earnestly urged that the evolution has
reached the point here that the protection of confidentiality in
peer review in order to assure candor in the review has been
recognized by most states. Weekoty v. United States, 30 F.
Supp. 2d 1343, 1348 (D. N.M. 1998); Note, The Medical
11712 AGSTER v. MARICOPA COUNTY
Review Committee Privilege: A Jurisdictional Survey, 67
N.C.L. Rev. 179 (1988).
[5] We are constrained by two considerations, one general
and the other particular to this case. We must be “especially
reluctant to recognize a privilege in an area where it appears
that Congress has considered the relevant competing concerns
but has not provided the privilege itself.” Univ. of Pennsylva-
nia v. EEOC, 493 U.S. 182, 189 (1990). The Health Care
Quality Improvement Act of 1986 granted immunity to partic-
ipants in medical peer reviews, but did not privilege the report
resulting from the process. See 42 U.S.C. §§ 11101-11152.
Congress amended the act in 1987 to state that “nothing in
this subchapter shall be construed as changing the liabilities
or immunities under law or preempting or overriding any
State law.” Pub. L. No. 100-177, § 402(c). As Congress has
twice had occasion and opportunity to consider the privilege
and not granted it either explicitly or by implication, there
exists a general objection to our doing so.
[6] The particular objection is that the privilege is sought
to protect a report bearing on the death of a prisoner. Whereas
in the ordinary hospital it may be that the first object of all
involved in patient care is the welfare of the patient, in the
prison context the safety and efficiency of the prison may
operate as goals affecting the care offered. In these circum-
stances, it is peculiarly important that the public have access
to the assessment by peers of the care provided. Given the
demands for public accountability, which seem likely to guar-
antee that such reviews take place whether they are privileged
or not, we are not convinced by the County’s argument that
such reviews will cease unless kept confidential by a federal
peer review privilege. Accordingly, we are unwilling to create
the privilege in this case.
[7] The State Law Claims. Where there are federal question
claims and pendent state law claims present, the federal law
of privilege applies. Fed. R. Evid. 501 advisory committee
AGSTER v. MARICOPA COUNTY 11713
note; see also Wm. T. Thompson Co. v. Gen. Nutrition Corp.,
671 F.2d 100, 104 (3rd Cir. 1982).
AFFIRMED.