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Elkharwily v. Albert Lea Medical Center - Mayo Health System

United States District Court, D. Minnesota

October 18, 2017

Alaa E. Elkharwily, Plaintiff,
v.
Albert Lea Medical Center - Mayo Health System, Mayo Clinic Health System - Albert Lea, Mark Ciota, John Grzybowski, Dieter Heinz, Robert E. Nesse, Steve Underdahl, Stephen Waldhoff, Mayo Foundation, and Mayo Clinic, Inc., Defendants.

          Alaa E. Elkharwily, pro se.

          Charles G. Frohman, Esq., Maslon LLP, Minneapolis, Minnesota, for Defendants.

          Joanne L. Martin, Esq., Mayo Clinic, Rochester, Minnesota, for Defendants.

          FINDINGS OF FACT AND CONCLUSIONS OF LAW AND REPORT AND RECOMMENDATION AND ORDER

          STEVEN E. RAU, United States Magistrate Judge

         This above-captioned case comes before the undersigned on Defendants Albert Lea Medical Center - Mayo Health System, Mayo Clinic Health System - Albert Lea, Mark Ciota, John Grzybowski, Dieter Heinz, Robert E. Nesse, Steve Underdahl, Stephen Waldhoff, Mayo Foundation, and Mayo Clinic, Inc.'s (collectively, the “Defendants”) Motion to Hold Plaintiff in Contempt (“Third Contempt Motion”) [Doc. No. 347] for Plaintiff Alaa E. Elkharwily's (“Elkharwily”) failure to purge himself of the contempt finding in an order issued by the Honorable David S. Doty. (Order Dated Apr. 13, 2017, “Contempt Order”) [Doc. No. 324]. This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and District of Minnesota Local Rule 72.1 for Findings of Fact, Conclusions of Law, and a Report and Recommendation. (Order Dated May 26, 2017) [Doc. No. 359] (postponing an evidentiary hearing and referring the matter to the undersigned). A hearing was held to determine whether Elkharwily had purged himself of contempt. See (Minute Entry Dated July 27, 2017) [Doc. No. 399]; (Tr.) [Doc. No. 404] (transcript of the evidentiary hearing). Based on the Findings of Fact and Conclusions of Law, the Court recommends: that the Defendants be awarded reasonable fees and costs in bringing their Third Contempt Motion; Elkharwily be found to have purged himself of contempt;[1] and should it ever become apparent that Elkharwily or Richard Wylie (“Wylie”)- Elkharwily's former attorney[2]-remain in possession of confidential information in violation of the Protective Order [Doc. No. 47]-or that Elkharwily be found in violation of any other Court order in this matter-that a bench warrant be issued for Elkharwily's arrest.

         Furthermore, the Court denies Elkharwily's self-styled motion for appointment of counsel made at the evidentiary hearing.[3] See (Minute Entry Dated July 27, 2017); (Tr. at 91- 92). Lastly, the Court orders the Clerk's Office to seal certain documents submitted by Elkharwily.

         FINDINGS OF FACT[4]

         1. The operative pleading, Elkharwily's Second Amended Complaint, was filed on July 9, 2013. (Second Am. Compl.) [Doc. No. 43].

         2. Elkharwily alleges various violations under 31 U.S.C. § 3730 (False Claims Act), 42 U.S.C. § 1395dd (Emergency Medical Treamtment and Labor Act), Minnesota Statutes section 181.932 (Minnesota whistleblower statute), Minnesota Statutes section 626.5572, subdivision 21(a)(4) (Minnesota Vulnerable Adult Protections Act), breach of contract, intentional infliction of emotional distress, and defamation. (Id. at 21-31). Elkharwily also requested punitive damages on the federal claims. (Id. at 31-32).

         3. The Honorable Jeffrey J. Keyes issued a Protective Order on July 25, 2017, tracking closely with a stipulation reached by the parties. Compare (Protective Order) [Doc. No. 47], with (Stipulation for Protective Order) [Doc. No. 45].

         4. In relevant part, the Protective Order was issued as a “qualified protective order” under 45 C.F.R. § 164.512(e)(1)(v), which authorizes-in limited circumstances-the dissemination of protected health information for which an authorization or opportunity to agree or object is not required. (Protective Order ¶ 12).

         5. Furthermore, the Protective Order specified that

All Confidential documents, along with the information contained in the documents, shall be used solely for the purpose of this action, and no person receiving such documents shall, directly or indirectly, use, transfer, disclose, or communicate in any way the documents or their contents to any other person than those specified . . . . Any other use is prohibited.

(Id. ¶ 3).

         6. With respect to Confidential protected health information the Protective Order stated that “the parties are prohibited (A) from using or disclosing the protected health information for any purpose other than this litigation and (B) such protected information, documents and records shall be returned to the covered entity or destroyed (including all copies made) at the end of this litigation.” (Id. ¶ 12).

         7. The Protective Order also stated “[t]he obligations imposed by this Protective Order shall survive the termination of this action.” (Id. ¶ 15).

         8. Judge Doty granted Defendants' Motion for Summary Judgment [Doc. No. 200] and dismissed the case with prejudice. (Order Dated Feb. 5, 2015) [Doc. No. 242]. A judgment also issued at that time. (J.) [Doc. No. 243].

         9. Elkharily filed a notice of appeal to the Eighth Circuit [Doc. No. 245] on April 4, 2015. The Eighth Circuit affirmed Judge Doty's order granting the Motion for Summary Judgment. See Elkharwily v. Mayo Holding Co., 823 F.3d 462 (8th Cir. 2016) (per curiam).

         10. On May 20, 2015, Defendants moved the Court to enter an order to show cause why Elkharwily should not be in contempt of court for failing to abide by Judge Keyes's Text Only Order Dated November 18, 2014 [Doc. No. 185], requiring “each party shall pay for the other party's expert witness fess for attendance at that expert's deposition.” See (Mot. for Order to Show Cause and Mem. in Supp., “First Contempt Mot.”) [Doc. No. 268 at 1] (internal quotation marks omitted).

         11. Judge Doty granted Defendants' First Contempt Motion. See (Order Dated May 22, 2015) [Doc. No. 272]. On June 17, 2015, Elkharwily tendered the ordered payment and the Order to Show Cause was effectively discharged. See (Letter Dated June 17, 2015) [Doc. No. 273]; (Text Only Order Dated June 22, 2015) [Doc. No. 275].

         12. On March 3, 2017, Defendants filed their Motion to Show Cause why Plaintiff Should Not be Found in Contempt for Violating the Protective Order, and to Compel the Immediate Return of Confidential Documents (“Second Contempt Motion”) [Doc. No. 285].

         13. Judge Doty found Elkharwily in contempt for violations of the Protective Order. (Contempt Order). As a result, Judge Doty ordered Elkharwily to “return all documents in his possession, custody or control, including those documents that remain in the possession of his former attorney, Rick Wylie, obtained from [the Defendants] that contain confidential medical records and patient information, ” destroy all electronic copies of the same, and “certify in writing that he has returned and destroyed all such documents.” (Id. at 4-5). ...


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