Judge denies motion for protective order in lawsuit involving Pennsylvania, West Virginia hospitals

By The Penn Record | Sep 18, 2017

PITTSBURGH – A judge has denied a motion for protective order in a lawsuit involving University of Pittsburgh Medical Center and West Virginia University Hospitals.

WVUH’s motion for protective order was denied on Sept. 14. UPMC had previously filed a brief in opposition of the motion for protective order on Sept. 5.

In its brief, UPMC stated that it is seeking very limited pre-complaint discovery to enable it to prepare its complaint.

“That discovery is material and necessary to UPMC’s filing of a complaint,” it stated. “At present, UPMC knows that certain UPMC documents were taken and/or transmitted by [Leanne K.] Cerimel or WVUH. The limited pre-complaint discovery that UPMC seeks is necessary to enable UPMC to allege when by whom the documents were taken or transmitted, to whom the documents were transmitted and how the documents have been used.”

The allegations are all material to UPMC’s causes of action for conversion, breach of contract and tortious interference with contract.

“The rationale for the rule limiting pre-complaint discovery is that it may be unfair to the defendant to have to provide discovery without knowing what claims will be asserted against the defendant,” the brief states. “Here, UPMC has identified the claims that it will be asserting. WVUH knows that it has UPMC documents and WVUH knows the specific claims that UPMC will be asserting based on WVUH’s possession of those documents.”

Because WVUH knows the claims that will be asserted against it, it is not unfair to WVUH to require that WVUH provide the limited pre-complaint discovery that UPMC seeks, according to the brief.

Cerimele was the vice president of Human Resources for UPMC until she resigned from her employment in June 2016 in order to undertake employment with WVUH as its director of Human Resources.

Cerimele’s employment with WVUH was in violation of the non-competition provision of her employment agreement with UPMC.

In July 2016, UPMC, WVUH and Cerimele entered into a settlement of a declaratory judgment action and, as part of the settlement, WVUH agreed that Cerimele would comply with the remaining post-employment obligations under her employment contract with UPMC, including her confidentiality obligations.

In April, UPMC’s general counsel, W. Thomas McGough Jr., received an anonymous letter that stated that, in her current employment with WVUH, Cerimele carried around a UPMC flash drive containing UPMC documents, that she e-mailed and printed the documents out for use at WVUH, that some unidentified UPMC employees still sent her documents and that Cerimele’s office at WVUH was full of UPMC documents.

After UPMC received the anonymous letter, it contacted WVUH’s general counsel, which confirmed the allegations in the anonymous letter. However, WVUH refused to provide UPMC with information concerning how Cerimele obtained the documents, to whom she transmitted them documents and how WVUH and Cerimele have used to documents.

UPMC commenced the action against WVUH and Cerimele on July 19. WVUH moved for a protective order to preclude UPMC from taking any pre-complaint discovery from WVUH.

UPMC is represented by Kurt A. Miller and Andrew J. Ruxton of Clark Hill.

WVUH is represented by Michael P. Leahey and Daniel R. Michelmore of Jackson Kelly.

Court of Common Pleas of Allegheny County, Pennsylvania case number: 17-010101

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