IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
District of St. Thomas/St. John

eee reer errr eeeeeeeeeeeeeee eee errr eee eee A iD,

Melissa Luterek, Case Number: $ST-2017-CV-00345
Plaintiff Action: Damages
Vv.

Schneider Regional Medical Center et al,
Defendant.

NOTICE of ENTRY
of
Memorandum Opinion

To: Julie German Evert, Esquire Royette V. Russell, Esquire
Lee_J. Rohn, Esquire Superior Court Magistrates & Judges
General Counsel Clerk of the Superior Court

Please take notice that on March 21, 2022
an) Memorandum Opinion

dated March 18, 2022 was entered
by the Clerk in the above-titled matter.

Dated: March 21, 2022 Tamara Charles
Clerk of the Court

’

By:

Audrey C. Brin
Court Clerk II
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN

See oe 2c ae 2

MELISSA LUTEREK Individually and as
the Special Administratrix of the ESTATE

OF PETER DARIUSZ LUTEREK, ) CASE NO. ST-17-CV-00345
Deceased, }
Plaintiffs, )
) ACTION FOR DAMAGES
v. )
)
SCHNEIDER REGIONAL MEDICAL } JURY TRIAL DEMANDED
CENTER, MARTHA JANE STEWART, }
M.D., EILEEN Mc NALLY. RN. MICHELLE )
SHIEL, RN, TRIPLE-S SALUD, INC. } 

d/b/a BLUE CROSS BLUE SHIELD OF )
THE VIRGIN ISLANDS, and JOHN }
DOE/JANE DOE and ABC, CORP., }
)
Defendants. }
)
)
JULIE GERMAN EVERT, ESQ. ROYETTE V. RUSSELL, ESQ.
Concierge Law Group, PLLC Assistant Attorney General
5043 Norre Gade, Suite 6 V.I. Department of Justice
St. Thomas, V.I. 00802 213 Estate LaReine
Attorneys for Plaintiff Kingshill, V.I. 00850
Attorneys for Defendant
LEE J. ROHN, ESQ.
Lee J. Rohn and Associates, LLC
1108 King Street
56 King Street, Third Floor
St. Croix, V.I. 00820
Attorneys for Plaintiff
CARTY, RENEE GUMBS, Judge
MEMORANDUM OPINION

ql BEFORE THIS COURT is Plaintiff's, Melissa Luterek (“Luterek’”), “Motion to Compel
Schneider Regional Medical Center to Supplement its Responses [to] Plaintiff's Demand for

Production of Documents” filed on June 9, 2021. Defendant, Schneider Regional Medical Center
Melissa Luterek Individually and as Special Administratrix of the Estate 

of Peter Dariusz Luterek, Deceased v. Schneider Regional Medical Center, et al.

Case No. ST-17-CV-345

Memorandum Opinion

(“SRMC”), filed their opposition on June 23, 2021, and Luterek filed her reply on July 8, 2021.
Luterek also filed a motion to compel SRMC to supplement their responses to her interrogatory
requests. To date, SRMC has not filed a response.’
1. STANDARD OF REVIEW

q2 Under V.I. R. Crv. P.26(b)(1), “[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's claim or defense. Information within this scope
of discovery need not be admissible in evidence to be discoverable.” Cruz v. VL Water & Power
Auth., No. ST-15-CV-491, 

, at *1 (Super. Ct. Jan. 14, 2020); Donastorg v.
Walker, No. ST-17-CV-393, 

, *5 (V.L Super. Ct. July 11, 2019). Under the
standard provided by Virgin Islands Rules of Evidence Rule 401, the court determines what
information is relevant. See Donastorg, 2019 V.1. LEXIS 66 at *5-6 (defining relevant information
as information which has the “tendency to make the existence of any fact that is of consequence
to the determination of the action more or less probable than it would be without [it].”).

q3 A party may move to compel discovery under V.I.R. Civ. P. 37(a)(1) only if the party
served fails to make all necessary disclosures as required by V.I. R. Civ. P. 33. However, the
movant must include a certification that they have conferred, or attempted to confer, with the
opposing party failing to disclose material in an effort to obtain said information without court
action. V.I. R. Civ. P. 37(a)(1). Counsel must demonstrate a “good faith effort” to meet and confer

before moving to compel discovery. See V.1. R. Civ. P. 37-1.

' On June 10, 2021, Luterek filed her “Motion to Compel Schneider Regional Medical Center to Supplement its
Responses [to] Plaintiff's Interrogatory Requests.” An Order granting Luterek’s motion regarding her interrogatories
has been issued under separate cover.
Melissa Luterek Individually and as Special Administratrix of the Estate 

of Peter Dariusz Luterek, Deceased v. Schneider Regional Medical Center, et al.

Case No. ST-17-CV-345

Memorandum Opinion

Il. FACTUAL AND PROCEDURAL HISTORY

4 On July 18, 2016, Peter Dariusz Luterek (“Peter”), was scheduled for a cardiac
catheterization procedure at SRMC. During the procedure, co-defendant Martha Jane Stewart,
M.D., allegedly caused Peter to develop a subarachnoid hemorrhage, or bleeding in the brain.
Thereafter, Peter required evacuation to Florida to undergo emergency surgery, but he could not
depart until coverage through his insurer, co-defendant Triple S-Salud, Inc. d/b/a Blue Cross Blue
Shield of the Virgin Islands, was confirmed. When coverage was finally confirmed and Peter was
transported to Florida for his emergency treatment, Florida physicians stated it was too late to
perform the operation. As a result, Peter Luterek subsequently passed away on July 20, 2016.

q5 Melissa Luterek (“Luterek”), individually and as the special administratrix of the estate of
Peter Dariusz Luterek, commenced this action on August 1, 2017. On January 22, 2021, Luterek
sent a letter to SRMC requesting they respond to unanswered interrogatories and demands for
productions within ten (10) days. Pl.’s Ex. 2. On April 27, 2021, Luterek informed SRMC certain
responses to her discovery requests were insufficient. Pl.’s Ex. 3. SRMC supplemented their
answers, but on May 6, 2021, Luterek again told SRMC that certain responses to discovery were
insufficient. Pl.’s Ex. 4. On May 18, 2021, Luterek sent an email to SRMC requesting the
supplemental discovery responses or, alternatively, dates to meet and confer. Pl.’s Ex. 5. After
receiving no response, Luterek filed the instant motion. The Court record reflects the
communications and a good faith effort made by Luterek for a meet and confer with SRMC. As
such, the Court finds that Luterek satisfied the meet and confer requirement.

46 On June 9, 2021, Luterek moved to compel SRMC to supplement their responses to her
Demands for Production Nos. 3, 4, 5, 6, 7, 8, 9, 10, 14, 19, 20, 22, 29, 30, 31, 32, 34, 37, 39, 47,

51, 58, 59, 60, 62, and 63. In their opposition, SRMC contests the supplementation of fifteen (15)
Melissa Luterek Individually and as Special Administratrix of the Estate 

of Peter Dariusz Luterek, Deceased v. Schneider Regional Medical Center, et al.

Case No. ST-17-CV-345

Memorandum Opinion

of Luterek’s Demands for Production, namely Nos. 3, 4, 5, 6, 7, 8, 9, 10, 14, 20, 22, 29, 30, 31,
and 32. As to the undisputed demands, the Court will summarily order responses within a period
of thirty (30) days, if they have not been supplemented at the time of this writing. Accordingly,
the Court will now focus on the disputed demands for production.

ltr. ANALYSIS

DEMAND FOR PRODUCTION NO. 3

Demand for Production No. 3 states:

Produce a complete copy of the audit trail for Peter Dariusz Luterek.

Response to Demand for Production No. 3 states:

Objection. This request is overly burdensome and redundant. Plaintiff is in
possession of Luterek’s entire medical record.

Supplemental Response to Demand for Production No. 3 states:

Defendant stands on its prior response.
{7 In her Demand for Production No. 3, Luterek requests a copy of the “audit trail” for Peter
Darius Luterek.? SRMC opposes, arguing the audit trail is “not part of a patient’s regular medical
record,” and “metadata is not routinely produced unless the requesting party shows good cause.”
Def.’s Opp’n. (citing Aguilar v. Immigration & Customs Enf't Div., 

 (S.D.N.Y.
2008). The Court disagrees.
48 The measure for whether information is discoverable is determined by the relevancy of
such information. See Donastorg, 2019 V.1. LEXIS 66 at *5-6. The audit trail for Peter Dariusz

Luterek provides critical information of when, and by whom, his records were accessed or

? An “audit trail” is a form of metadata created as a function of the medical provider's computerization of medical
records. Gilbert v. Highland Hosp., 

 (Sup. Ct. Mar. 24, 2016). Metadata is defined as the
“information describing the history, tracking, or management of an electronic document.” EMR Metadata Uses and
E-Discovery, 18 Ann. Health L. 75, 78.

4
Melissa Luterek Individually and as Special Administratrix of the Estate 

of Peter Dariusz Luterek, Deceased v. Schneider Regional Medical Center, et al.

Case No. ST-17-CV-345

Memorandum Opinion

reviewed. Such information is relevant and may lead to the discovery of additional relevant
information or witnesses. Deasy v. Upme Health Sys., 

,
*6 (Pa. Dist. Aug. 23, 2015). Furthermore, an audit trail is created in the natural course of business
and is not protected by any privilege. Hall v. Flannery, No. 3:13-cv-914-SMY-DGW, 2015 US.
Dist. LEXIS 57454, at *11 (S.D. Ill. May 1, 2015) (“The audit trail is not created in anticipation
of litigation; it is a part of the electronic medical record and is automatically generated as a function
of the program. It does not implicate the ‘core of attorney work product,’ the "’mental impressions,
conclusions, opinions, or legal theories of a party's attorney or other representative concerning the
litigation.’""). Moreover, because metadata is generated automatically, a party should have no
issues producing specific data requested by the opposing party. See generally EMR Metadata Uses
and E-Discovery, 18 Ann. Health L. 75. Thus, the Court will ORDER SRMC to produce a
complete copy of the audit trail for Peter Dariusz Luterek.

DEMANDS FOR PRODUCTION NOS. 4, 5, and 6

Demand for Production No. 4 states:

Produce the personnel file of Co-Defendant Martha Jane Stewart, including, but not
limited to, all contracts, agreements, conditions of employment, employee
handbook, evaluations, disciplinary actions, commendations and documents
reflecting benefits and allowances.

Response to Demand for Production No. 4 states:

Objection. Personnel documents are protected from disclosure. But see Defendant
Stewart’s CV, License, Degrees and Certificates attached as Bates Nos. MS000001-
MS000008.

Supplemental Response to Demand for Production No. 4 states:

Defendant stands on its prior response.
Melissa Luterek Individually and as Special Administratrix of the Estate 

of Peter Dariusz Luterek, Deceased v. Schneider Regional Medical Center, et al.

Case No. ST-17-CV-345

Memorandum Opinion

Demand for Production No. 5 states:
Produce the personnel file of Co-Defendant Michelle Shiel, including, but not
limited to, all contracts, agreements, conditions of employment, employee

handbook, evaluations, disciplinary actions, commendations and documents
reflecting benefits and allowances.

Response to Demand for Production No. 5 states:

Objection. Personne! documents are protected from disclosure. But see Defendant
Shiel’s CV, License, Degrees and Certificates attached as Bates Nos. GVI000355-
GVI000364.

Supplemental Response to Demand for Production No. 5 states:

Defendant stands on its prior response

Demand for Production No. 6 states:

Produce the personnel file of Co-Defendant Eileen McNally, including, but not
limited to, all contracts, agreements, conditions of employment, employee

handbook, evaluations, disciplinary actions, commendations and documents
reflecting benefits and allowances.

Response to Demand for Production No. 6 states:

Objection. Personnel documents are protected from disclosure. See CV and Degrees
attached as GV1000365-GV1000369.

Supplemental Response to Demand for Production No. 4 states:

Defendant stands on its prior response.
q9 Luterek’s Demands for Production Nos. 4, 5, and 6, seek the personnel files from individual
co-defendants. SRMC challenges Luterek’s request and argues the personnel files from each co-
defendant is confidential and not subject to discovery. First, the law is unambiguous; the Virgin
Islands Code states personal information in confidential personnel records is kept confidential
unless ordered by a court to release such information. 3 V.I.C. § 881(g)(10). Second, information
such as qualifications, quality of employee training, and disciplinary actions are relevant to
Luterek’s allegation of negligent hiring. Luterek has the right to know of SRMC’s knowledge of

6
Melissa Luterek Individually and as Special Administratrix of the Estate 2022 Vi Super 35U
of Peter Dariusz Luterek, Deceased v. Schneider Regional Medical Center, et al.

Case No. ST-17-CV-345

Memorandum Opinion

prior negligent claims against Martha Jane Stewart or to determine if SRMC negligently
supervised Martha Jane Stewart. Similarly, Luterek has the right to know SRMC’s knowledge of
prior negligent claims against both Eileen McNally and Michelle Shiel and to investigate their
qualifications, training, and any disciplinary actions against them. As such, the Court will ORDER
SRMC to produce a redacted copy of the personnel files of the co-defendants, including employee
evaluations, disciplinary actions, and other conditions related to employment.

DEMANDS FOR PRODUCTION NOS. 7, 8, 9, 10, and 14

Demand for Production No. 7 states:

Produce all documents and/or communications from the Medical Staff Quality
Committee concerning Co-Defendant Martha Jane Stewart.

Response to Demand for Production No. 7 states:

Objection. This information is protected from disclosure pursuant to 19 V.LC. sec.
248(b). None.

Supplemental Response to Demand for Production No. 7 states:

Defendant stands on its prior response pursuant to 19 V.LC. sec. 248(b) which states as
follows:

(b) All proceedings and records or proceedings concerning medical staff review, hospital
review and other reviews of medical care conducted by the utilization review committee,
quality assurance committee, medical review committee, surgical review committee,
peer review committee or disciplinary committee of physicians and other health care
practitioners or personnel or on behalf of individual physicians, when the reviews are
required by Federal or Territorial law, rules and regulations or as a condition of
accreditation by any applicable regulatory body or certification by the Health Care
Financing Administration are privileged and confidential.

Demand for Production No. 8 states:

Produce all documents and/or communications from the Medical Staff Quality
Committee concerning Co-Defendant Michelle Shiel.
Melissa Luterek Individually and as Special Administratrix of the Estate 

of Peter Dariusz Luterek, Deceased v. Schneider Regional Medical Center, et al.

Case No. ST-17-CV-345

Memorandum Opinion

Response to Demand for Production No. 8 states:

Objection. This information is protected from disclosure pursuant to 19 V.I.C. sec.
248(b). None.

Supplemental Response to Demand for Production No. & states:

Defendant stands on its prior response pursuant to 19 V.I.C. sec. 248(b) which states as
follows:

(b) All proceedings and records or proceedings concerning medical staff review, hospital
review and other reviews of medical care conducted by the utilization review committee,
quality assurance committee, medical review committee, surgical review committee,
peer review committee or disciplinary committee of physicians and other health care
practitioners or personnel or on behalf of individual physicians, when the reviews are
required by Federal or Territorial law, rules and regulations or as a condition of
accreditation by any applicable regulatory body or certification by the Health Care
Financing Administration are privileged and confidential.

Demand for Production No. 9 states:

Produce all documents and/or communications from the Medical Staff Quality
Committee concerning Co-Defendant Eileen McNally.

Response to Demand for Production No. 9 states:

Objection. This information is protected from disclosure pursuant to 19 V.LC. sec.
248(b). None.

Supplemental Response to Demand for Production No. 9 states:

Defendant stands on its prior response pursuant to 19 V.I.C. sec. 248(b) which states as
follows:

(b) All proceedings and records or proceedings concerning medical staff review, hospital
review and other reviews of medical care conducted by the utilization review committee,
quality assurance committee, medical review committee, surgical review committee,
peer review committee or disciplinary committee of physicians and other health care
practitioners or personnel or on behalf of individual physicians, when the reviews are
required by Federal or Territorial law, rules and regulations or as a condition of
accreditation by any applicable regulatory body or certification by the Health Care
Financing Administration are privileged and confidential.
Melissa Luterek Individually and as Special Administratrix of the Estate 

of Peter Dariusz Luterek, Deceased v. Schneider Regional Medical Center, et al.

Case No. ST-17-CV-345

Memorandum Opinion

Demand for Production No. 10 states:

Produce all documents from the Medical Staff Quality Committee concerning any
other Co-Defendant.

Response to Demand for Production No. 10 states:

Objection. This information is protected from disclosure pursuant to 19 V.L.C. sec.
248(b).

Supplemental Response to Demand for Production No. 10 states:

Defendant stands on its prior response pursuant to 19 V.LC. sec. 248(b) which states as
follows:

(b} All proceedings and records or proceedings concerning medical staff review, hospital
review and other reviews of medical care conducted by the utilization review committee,
quality assurance committee, medical review committee, surgical review committee,
peer review committee or disciplinary committee of physicians and other health care
practitioners or personnel or on behalf of individual physicians, when the reviews are
required by Federal or Territorial law, rules and regulations or as a condition of
accreditation by any applicable regulatory body or certification by the Health Care
Financing Administration are privileged and confidential.

Demand for Production No. 14 states:

Produce copies of any documents and communications relative to all disciplinary
actions, corrective actions, warnings, suspensions, investigations, inquiries or any
other such action taken against any individual or entity as a result of the subject
incidents as described in Plaintiff's Complaint.

Response to Demand for Production No. 14 states:

Objection. This information is protected from disclosure.

Supplemental Response to Demand for Production No. 14 states:

Defendant stands on its prior response pursuant to 19 V.I.C. sec. 248(b) which states as
follows:

(b) All proceedings and records or proceedings concerning medical staff review, hospital
review and other reviews of medical care conducted by the utilization review committee,
quality assurance committee, medical review committee, surgical review committee,
peer review committee or disciplinary committee of physicians and other health care
practitioners or personnel or on behalf of individual physicians, when the reviews are
required by Federal or Territorial law, rules and regulations or as a condition of

9
Melissa Luterek Individually and as Special Administratrix of the Estate 

of Peter Dariusz Luterek, Deceased v. Schneider Regional Medical Center, et al.
Case No. ST-17-CV-345
Memorandum Opinion

accreditation by any applicable regulatory body or certification by the Health Care
Financing Administration are privileged and confidential.

qiO In Demands for Production Nos. 7, 8, 9, 10, and 14, Luterek requests SRMC produce
documents and communications from the “Medical Staff Quality Committee” concerning the three
(3) individual co-defendants and any other co-defendants. SRMC objects, arguing such
information is protected from disclosure pursuant to 19 V.ILC. § 248(b). Conversely, Luterek
argues the documents are not confidential and that 19 V.I.C. 248(j) supersedes 19 V.LC. § 248(b)
and permits courts to order a peer review body to provide information or discovery in any
proceeding in which a health care professional is accused of a civil action. 19 V.1-C. 248(j) (“[A]
court may order a peer review body to provide information or discovery in any proceeding in which
the health care professional is accused of a felony, civil action, or any professional misconduct if
the court determines that disclosure is in the best interest of justice[.]’).

qi1 The Court agrees with Luterek. The information is certainly relevant, and its disclosure is
in the “best interest of justice.” Therefore, the Court will ORDER SRMC to supplement their
responses to Luterek’s Demands for Productions Nos. 7, 8, 9, 10, and 14, and SRMC will produce
communications from the “Medical Staff Quality Committee” concerning co-defendants Martha
Jane Stewart, Michelle Shiel, Eileen McNally, and any other necessary co-defendant.

DEMAND FOR PRODUCTION NO. 20

Demand for Production No. 20 states:

Produce a copy of each and every Complaint and/or claim alleging any medical
malpractice action against Defendant and/or against any Co-Defendant from 2015
to the present.

Response to Demand for Production No. 20 states:

Objection. Overbroad and irrelevant.

Supplemental Response to Demand for Production No. 20 states:

10
Melissa Luterek Individually and as Special Administratrix of the Estate 

of Peter Dariusz Luterek, Deceased v. Schneider Regional Medical Center, et al.

Case No. ST-17-CV-345

Memorandum Opinion

3) ce

Objection. Request for “each and every malpractice action” “against any Codefendant” is
overbroad and will not lead to the discovery of facts relevant this action.

{12 In Demand for Productions No. 20, Luterek requests SRMC to produce copies of every
medical malpractice claim against SRMC and other co-defendants from 2015 to the present.
Luterek argues this information is relevant to the case sub judice and therefore discoverable.
SRMC does not dispute this claim but believes that such information is publicly available and
Luterek is in a “more convenient and less burdensome” position to obtain the requested
information. See V.I. R. CIV. P. 26(b)(2)(C)(i).

q!3 The Court agrees with Luterek. Parties are permitted to discover relevant, nonprivileged
evidence even if such information is not admissible at trial, so long as “the discovery is reasonably
calculated to lead to the discovery of admissible evidence.” Molloy v. Indep. Blue Cross, 56 V.1.
155, 169 (V.I. 2012). The Court is afforded broad discretion in determining the relevancy of
information sought, and discovery is often liberally granted “to permit parties a fair opportunity to
develop their causes of action or defenses.” Guardian Ins. Co. v. Estate of Knight-David, No. ST-
08-CV-189, 

, at *5 (Super. Ct. Sep. 2, 2014). Courts have granted discovery
requests concerning past lawsuits and complaints. Here, there is a specific allegation of one of the
co-defendants allegedly under investigation for a similar incident at another hospital that resulted
in the death of a patient. Therefore, the Court believes SRMC is in the best position to provide this
information to Luterek. Thus, the Court will ORDER SRMC to produce complaints or claims
related to medical malpractice as it relates to SRMC and each co-defendant from 2015 to the

present.

ll
Melissa Luterek Individually and as Special Administratrix of the Estate 

of Peter Dariusz Luterek, Deceased v. Schneider Regional Medical Center, et al.
Case No. ST-17-CV-345

Memorandum Opinion

DEMAND FOR PRODUCTION NO. 22

Demand for Production No. 22 states:
Produce copies of all Defendant’s standards, policies, procedures, practices, rules,

protocols, regulations and criteria followed with regard to preparing patients for
cardiac catheterization.

Response to Demand for Production No. 22 states:

See document attached as Bates No. GV1000371-GVI000373.

Supplemental Response to Demand for Production No. 22 states:

The preference card is not relevant to this inquiry.

414  Luterek’s Demand for Production No. 22 requests SRMC to produce copies of standards,
procedures, policies, and other practices followed when preparing patients for cardiac
catheterization. Specifically, Luterek seeks the physician’s preference card.? SRMC directs
Luterek to three (3) pages of discovery and challenges the relevancy of the preference card, arguing
such a request is outside the scope of the demand for production.

{15S The present lawsuit alleges negligent medical malpractice and courts in other jurisdictions
have found preference cards to be relevant in such actions. See Young v. Univ. of Miss. Med. Ctr.,

 (Miss. App. 2005) (finding that the probative value of a preference card,
had it been offered into evidence, would have been to establish specific requests from the physician
in preparation of surgery); Mills v. Angel, 

 (Tex. App. 1999) (holding that a
witness’ testimony was not sufficient to show the hospital had a duty to review the physician’s
preference card prior to surgery); Napier v. Decatur Mem'l Hosp., 

, 4

14 (case where a preference card was included as relevant evidence in a medical malpractice

? A preference card notifies a hospital of a surgeon's preferred materials for different types of surgeries so that the
materials are available in the hospital's inventory. See Wilbourn v. Cavalenes, 

 (2010).

12
Melissa Luterek Individually and as Special Administratrix of the Estate 

of Peter Dariusz Luterek, Deceased v. Schneider Regional Medical Center, et al.

Case No. ST-17-CV-345

Memorandum Opinion

claim); Stricklin v. Bordelon, Civil Action No. 19-cv-1242-WJM-KMT, 

, at *8 (D. Colo. Jan. 16, 2020) (witness testifying that, to a certain degree, a preference card
controls how nurses prepare a patient for surgery). The Court finds the preference card for the
respective co-defendant wholly relevant and therefore discoverable. See Donastorg, 

 at *5-6. The Court also finds SRMC’s response insufficient as SRMC’s policies,
procedures, and practices cannot realistically be detailed in three (3) pages. Thus, the Court will
ORDER SRMC to produce the preference card as requested by Luterek and any other documents
elaborating on the criteria followed with respect to preparing patients for cardiac catheterization.

DEMANDS FOR PRODUCTION NOS. 29, 30, and 31

Demands for Production No, 29, 30, and 31 state:
Produce a complete copy of all certificates, and/or completion documents of any
type whatsoever, regarding any and all continuing education credits and/or CME

(Continuing Medical Education) for the past ten (10) years for Co-Defendant Eileen
McNally, [Martha Jane Stewart, and Michelle Shiel, respectively. ]

Responses to Demands for Production No. 29, 30, and 31 state:

Objection. Overbroad in time and scope. Will supplement.

Supplemental Responses to Demands for Production No. 29, 30, and 31 state:

Will supplement.
416 In Demands for Production Nos. 29, 30, and 31, Luterek requests copies of certificates
and/or documents recognizing the completion of continuing medical education credits. In their
opposition, SRMC affirms they agreed to supplement their responses to Luterek’s Demands for
Production Nos. 29, 30, and 31, and will produce the information once received. Thus, the Court

will not rule on these demands for production at this time.

13
Melissa Luterek Individually and as Special Administratrix of the Estate 

of Peter Dariusz Luterek, Deceased v. Schneider Regional Medical Center, et al.
Case No. ST-17-CV-345

Memorandum Opinion

DEMAND FOR PRODUCTION NO. 32

Demand for Production No. 32 states:

Produce any and all statements taken and/or made by any person concerning the
incidents as described in Plaintiff's Complaint.

Response to Demand for Production No. 32 states:

Objection. This inquiry seeks information protected by the attorney client and work
product privileges.

Supplemental Response to Demand for Production No. 32 states:

Defendant stands on its responses.
§17 Demand for Production No. 32 requests “any and all statements taken and/or made by any
person conceming the incidents as described in Plaintiff's complaint.” SRMC contends such
statements are protected by attorney-client privilege, or alternatively, the work product doctrine.
Virgin Islands courts recognize statements made by clients to their attorney are protected by
attorney-client privilege and documents prepared in anticipation of litigation are protected by the
work product doctrine. See DiamondRock Hosp. Co. v. Certain Underwriters at Lloyd's of London,

, 193 (Super. Ct. 2019). Conversely, Luterek opines any privilege was waived when
SRMC failed to produce a privilege log pursuant to V.I. R. Cry. P. 26(b)(5). See also Joseph v.
Pricesmart LLC, No. ST-15-CV-62, 2016 V.I LEXIS 17, at *9 (Super. Ct. Feb. 29, 2016).
918 | Waiver of privileged statements which are protected by attorney-client privilege or the
work product doctrine is too harsh a punishment. SRMC’s failure to produce a privilege log does
not automatically entitle Luterek to those protected statements. Luterek is not entitled to
communications that fall within the privilege of attorney-client nor is she entitled to work product
of counsel. However, Luterek is entitled to non-privileged statements relevant to this case. The

Court will ORDER SRMC to produce any non-privileged statements taken or made by any person

14
Melissa Luterek Individually and as Special Administratrix of the Estate 

of Peter Dariusz Luterek, Deceased v. Schneider Regional Medical Center, et al.

Case No. ST-17-CV-345

Memorandum Opinion

concerning the incidents described in Luterek’s complaint, but exclude all attorney-client
communications and work product generated from those communications.

q19 Last, SRMC did not challenge the requests to supplement Luterek’s Demands for
Production Nos. 19, 34, 37, 39, 47, 51, 58, 59, 60, 62, and 63. Consequently, the Court will
ORDER SRMC to supplement Luterek’s respective demands for production.

IV. CONCLUSION

420 In conclusion, Luterek has demonstrated her good faith efforts to obtain discovery
information without court interference. The Court finds that SRMC must further supplement their
responses to Luterek’s demands for production. The motion to compel will be granted and an Order

consistent herewith immediately follows.

Dated: March LY. 2022 ~ wond { () Lf A

' Renée Gut bs Carty /
Judge eee Siperior Coal
of the Virgjn Islands a a

—=_—

ATTEST:
Tamara Charles
Clerk of the Court

Donava

Cou Clerk sup rvisor 3 IH (7-

15
IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS
DIVISION OF ST. THOMAS AND ST. JOHN

oe KE ok a

MELISSA LUTEREK Individually and as
the Special Administratrix of the ESTATE
OF PETER DARIUSZ LUTEREK,
Deceased,

CASE NO. ST-17-CV-00345

Plaintiffs,
ACTION FOR DAMAGES
v.

SCHNEIDER REGIONAL MEDICAL
CENTER, MARTHA JANE STEWART,
M.D., EILEEN Mc NALLY. RN. MICHELLE
SHIEL, RN, TRIPLE-S SALUD, INC.

d/b/a BLUE CROSS BLUE SHIELD OF

THE VIRGIN ISLANDS, and JOHN
DOE/JANE DOE and ABC, CORP.,

JURY TRIAL DEMANDED

Defendants.

“ae neers” Magee” Nee Menges See” eee See!” ogee Meee eee” Smee ee ee Noe!” See” Ne Set” See”

ORDER

THIS MATTER is before the Court on Plaintiff's, Melissa Luterek, (“Luterek”), Motion
to Compel Schneider Regional Medical Center to Supplement its Responses [to] Plaintiffs’
Demand for Production of Documents” filed on June 9, 2021. Defendant, Schneider Regional
Medical Center (“SRMC’”), filed their opposition on June 23, 2021, and Luterek filed her reply on
July 8, 2021. Consistent with the Memorandum Opinion of even date, it is hereby

ORDERED that Luterek’s motion is GRANTED; and it is further

ORDERED that SRMC shall supplement their responses to Luterek’s Demands for
Production Nos. 3, 4, 5, 6, 7, 8, 9, 10, 14, 19, 20, 22, 32, 34, 37, 39, 47, 51, 58, 59, 60, 62, and

63; and it is further
Melissa Luterek Individually and as Special Administratrix of the Estate

of Peter Dariusz Luterek, Deceased v. Schneider Regional Medical Center, et al.
Case No. ST-17-CV-345

Order

ORDERED that SRMC shall respond to Plaintiff's written discovery requests within
thirty (30) days of entry of this Order; and it is further
ORDERED that copies of this Order shall be directed to Lee J. Rohn, Esquire, Julie

German Evert, Esquire and Royette V. Russell, Esquire.

Dated: March Ik , 2022

of the Virgin Islands

ATTEST:
Tamara Charles
Clerk of the Court

Donna‘. Donave
fe Court Clerk Supervisor BIA. / Mi--