United States District Court, D. Minnesota
Alaa E. Elkharwily, Plaintiff,
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.
E. Elkharwily, pro se.
Charles G. Frohman, Esq., Maslon LLP, Minneapolis, Minnesota,
L. Martin, Esq., Mayo Clinic, Rochester, Minnesota, for
FINDINGS OF FACT AND CONCLUSIONS OF LAW AND REPORT
AND RECOMMENDATION AND ORDER
E. RAU, United States Magistrate Judge
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; and should it
ever become apparent that Elkharwily or Richard Wylie
(“Wylie”)- Elkharwily's former
attorney-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
the Court denies Elkharwily's self-styled motion for
appointment of counsel made at the evidentiary
hearing. 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
operative pleading, Elkharwily's Second Amended
Complaint, was filed on July 9, 2013. (Second Am. Compl.)
[Doc. No. 43].
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).
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.
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 ¶
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).
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).
Protective Order also stated “[t]he obligations imposed
by this Protective Order shall survive the termination of
this action.” (Id. ¶ 15).
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].
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).
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).
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].
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].
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). ...