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STATE OF ILLINOIS )
) SS:
COUNTY OF C O O K )
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DEPARTMENT - LAW DIVISION

MAUREEN OBERMEIER, )
)
Plaintiff, )
)
-vs- ) No. 08 L 012426
)
NORTHWESTERN MEMORIAL )
HOSPITAL, THE NORTHWESTERN )
MEDICAL FACULTY FOUNDATION, )
PATRICK McCARTHY, M.D., and )
EDWARDS LIFESCIENCES, LLC, )
)
Defendants. )
_______________________________)

REPORT OF PROCEEDINGS at the hearing of the


above-entitled cause before Honorable WILLIAM E.
GOMOLINSKI, Judge of said Court, on the 6th of
December, 2013, at the hour of 2:33 p.m., concluding
at 3:44 p.m.

Reported by: Judith T. Lepore, CSR


License No.: 084-004040

McCorkle Litigation Services, Inc.


Chicago, Illinois (312) 263-0052
2
1 APPEARANCES:

2 NEWMAN, BOYER & STATHAM, LTD.

3 BY: MR. ARDWIN E. BOYER

4 20 North Clark Street

5 Suite 800

6 Chicago, Illinois 60602

7 (312) 443-1998

8 aeb@nbslaw.com

9 Representing the Plaintiff;

10

11

12 ANDERSON RASOR & PARTNERS LLP

13 BY: MS. AMY L. PLEUSS

14 100 South Wacker Drive

15 Suite 1000

16 Chicago, Illinois 60606

17 (312) 673-7800

18 amy.pleuss@arandparters.com

19 Representing the Defendants Northwestern

20 Memorial Hospital, The Northwestern Medical

21 Faculty Foundation, and Patrick McCarthy,

22 M.D.;

23

24

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1 APPEARANCES CONTINUED:

2 EICHORN & EICHORN, LLP

3 BY: MR. KIRK D. BAGROWSKI

4 200 Russell Street

5 Hammond, Indiana 46320

6 (219) 931-0560

7 kbagrowski@eichorn-law.com

8 Representing the Defendant Edwards

9 Lifesciences, LLC;

10

11 ANDERSON RASOR & PARTNERS LLP

12 BY: MS. PATRICIA J. FOLTZ

13 100 South Wacker Drive

14 Suite 1000

15 Chicago, Illinois 60606

16 (312) 673-7800

17 patricia.foltz@arandpartners.com

18 Representing Respondents to Subpoena;

19 Anna Huskin and Nancy Schoenecker.

20

21

22

23

24

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1 (Whereupon, the following

2 proceedings were had in

3 open court:)

4 THE COURT: Obermeier versus Northwestern.

5 All right, for the record.

6 MS. FOLTZ: Pat Foltz on behalf of

7 Respondents to Subpoena Huskin and Schoenecker in

8 particular for this hearing.

9 MS. PLEUSS: Amy Pleuss on behalf of

10 Northwestern Memorial Hospital, Northwestern Medical

11 Faculty Foundation and Dr. McCarthy.

12 MR. BAGROWSKI: Kirk Bagrowski on behalf of

13 Edwards Lifesciences.

14 MR. BOYER: Ardy Boyer for the plaintiff.

15 MS. FOLTZ: Just for the record, your Honor,

16 I'd like to point out that Dr. Rajamannan is in the

17 pews, and I know she has a right to do that. But I

18 want that to be reflected in the record in case we

19 need to know it later for some reason.

20 THE COURT: So reflected.

21 As you previously stated, this comes before

22 me on two of your motions and one of Mr. Boyer's

23 motions actually. Mr. Boyer's motion is to compel --

24 well, let me start with yours. Respondents to

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1 Subpoenas Nancy Schoenecker and Anna Huskin's Motion

2 to Preclude Plaintiff From Disseminating Medical

3 Studies Act information and materials. Respondents to

4 Subpoenas Nancy Schoenecker and Anna Huskin's Motion

5 to Bar Plaintiff Questions. Correct?

6 MS. FOLTZ: Correct.

7 THE COURT: And then Mr. Boyer had a motion

8 to compel and for protective order and for other

9 relief. So whatever one you want to do first is fine

10 with me. I have read the prior transcript of the

11 hearings. I'm fully up to speed as to what I ruled,

12 how I ruled, where we're going with this. And I've

13 read the Doe versus Masonic case again. I read a

14 bunch of other cases that I had in my files.

15 And I am looking through it. So the issue is

16 is that at one time, in the last hearing, we said

17 Anna Huskin -- it was Yates, Anna Huskin and. . .

18 MS. FOLTZ: Adams. And then Schoenecker was

19 never subject to the motion because I presented her.

20 She had actually witnessed the consent for the study,

21 but during the course of her dep, questioning raised

22 issues.

23 THE COURT: Okay. What were the questions?

24 MS. FOLTZ: She was handed the document that

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1 I believe Ardy has attached to his motion, and I know

2 not filed with the Court, the protocol, the requests

3 for HIPAA waiver, the request for informed consent

4 waiver, and the form submission that is required along

5 with the protocol. Because your Honor had said the

6 protocols were MSA privileged in the context of

7 looking at the rider with Anna --

8 THE COURT: I'm reversing myself. There's a

9 case that's right on point that says medical protocols

10 are not privileged and not subject to MSA.

11 MS. FOLTZ: You got one on me.

12 THE COURT: I'll give you the case. It's

13 Chicago Trust versus Cook County Hospital.

14 MS. FOLTZ: Judge Egan's?

15 THE COURT: Yeah.

16 MS. FOLTZ: Okay. With due respect, with

17 every respect disagree with you on that. Can I ask

18 your Honor why you think that that holding applies?

19 THE COURT: Sure. We'll go through it, and

20 I'll look at it with you, okay?

21 MS. FOLTZ: Okay.

22 THE COURT: Because I'm looking here, and --

23 this is Justice Wolfson, I believe. I'm pretty sure

24 it's Justice Wolfson. And he reviewed the Doe case,

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1 Doe versus Masonic, and he says this: We read Doe

2 differently. In Doe, we held the protocols governing

3 a medical study, maybe I misread it, were privileged

4 under the Act. In that context, a protocol, the point

5 is a plan of a scientific or medical experiment or

6 treatment. And then he goes on to say: Obviously,

7 the plan for a medical study would come before the

8 study, not as a result of the study, and drives the

9 operation of the study.

10 So Doe provides no support for the hospital.

11 Meaning that the protocol is a plan or a scientific

12 medical experiment or treatment, and the plan for a

13 medical study comes before the study. So if it comes

14 before the study, how could it be privileged?

15 MS. FOLTZ: But they are not considering a

16 protocol for a medical study at all in that Chicago

17 Trust case. I think what happened there is the

18 defendants made the argument that Doe applied to

19 something that did not relate to a medical study, that

20 related to quality assurance, and tried to apply Doe

21 to that situation. Honestly, that has -- I've always

22 interpreted that case -- that's sort of the seminal

23 case on occurrence reports. Our office was actually

24 involved in it. So I don't remember precisely what

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1 the briefing was, but I think the defendants probably

2 said Doe said something before can be protected. And

3 I think what Judge Wolfson is saying is, yes, it can

4 but only when it relates to a medical study. And what

5 was at issue in Chicago Trust were things that were

6 done after an event of care to investigate that care,

7 and there were some memos back and forth prior to the

8 QA Committee meeting.

9 THE COURT: Well, there were some -- and

10 plus, in the Trust case, there were also those -- it

11 was the HOC and the -- what are they called, the

12 Hospital Oversight Committee and the Quality Assurance

13 Committee, but most of the Hospital Oversight

14 Committee things that were produced were given and

15 disseminated to everybody in the hospital.

16 MS. FOLTZ: Right.

17 THE COURT: And the bottom line saying was

18 that when a trial court finds that a document at issue

19 was created, initiated, prepared, or generated by a

20 peer-review committee, it should be considered

21 privileged. And even though it was later disseminated

22 outside the peer-review process, because we know the

23 statute says it doesn't matter if it subsequently gets

24 out, it's still privileged. However, if a document

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1 was created in the ordinary course of the hospital's

2 medical business or for the purpose of rendering legal

3 opinions or to weigh potential liability risk or for

4 later corrective action, it should not be privileged.

5 I read that paragraph before it, though.

6 See, what they did was they related and they

7 equated the protocols in Doe with the. . .

8 MS. FOLTZ: With the stuff that came before

9 the committee meeting.

10 THE COURT: Hospital Oversight Committee,

11 right, with their statements and things that they have

12 generated and then disseminated to rest of the staff

13 of the hospital.

14 MS. FOLTZ: I don't disagree that that's what

15 that says, but I don't think it overrules Doe, which

16 is a different context.

17 THE COURT: I've got Doe also. But my

18 question is simply this, is that if Justice Wolfson is

19 describing the protocol is the plan of a scientific or

20 medical experiment or treatment, the plan, the plan

21 has to come before the study.

22 MS. FOLTZ: And it does, absolutely.

23 THE COURT: So then how is the protocol in

24 this case protected?

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1 MS. FOLTZ: Well, this is what we discussed

2 when we were here last time. I think I said on the

3 record, if you had asked me this question, is a

4 protocol for a study, a human research study

5 privileged, if you'd ask me this question without Doe,

6 I would have said I don't think so under the case law.

7 But when I read Doe, Doe says medical studies are

8 treated differently than peer review and quality

9 assurance. In that case, the child was actually

10 enrolled in the study, a participant in a study, not a

11 data repository like this, an actual study where he

12 received treatment in the course of that. And they

13 said, no, it is protected because it is a medical

14 study. And hence, it is my opinion at this point that

15 until we hear something besides Doe that medical

16 studies have a greater breadth of protection than QA

17 and peer review, and I don't think Judge Wolfson is

18 saying anything different.

19 THE COURT: Okay. There's also that Roche

20 (phonetic) case, correct? In the Roche case, doesn't

21 Roche stand for the proposition that anything that's

22 generated prior to the study?

23 MS. FOLTZ: I do not disagree with you, but

24 it's not a medical study. Roche is again a quality

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1 assurance. It has to do with review of something that

2 happened already. What we're talking about is

3 something -- it's not clinical care. What we're

4 talking about here is Dr. McCarthy and a number of

5 other physicians enrolled this woman in something

6 called a cardiac surgery outcomes study, which is

7 simply a data repository. She gets no additional

8 treatment. She gets no additional testing. She gets

9 nothing, but she says, okay, I agree with you, you can

10 put my data into a computer, and it's going to be used

11 for research. So it is completely separate and apart

12 from the clinical care.

13 QA and peer review is always inextricably

14 intertwined with clinical care. And frankly, I'm not

15 saying I would tell you -- I mean, there are studies

16 that are inextricably intertwined with clinical care,

17 too. This isn't one of them. So I think it's an even

18 easier decision. In Doe, they were intertwined, and

19 the Court still found the protocol was protected.

20 THE COURT: I'll look at it again. I have it

21 all highlighted back there. I just didn't bring it

22 out with me because maybe I was stuck on this case.

23 But I've read everything, so let's go through it now.

24 The first person is who?

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1 MS. FOLTZ: Anna Huskin is the one that's

2 going next Wednesday. That was the reason we came

3 back today.

4 THE COURT: Let's talk about Anna Huskin

5 first, okay?

6 MS. FOLTZ: Yes.

7 THE COURT: Tell me what it is you want to

8 do, Mr. Boyer.

9 Just give me one second, just let me grab my

10 cases.

11 (Whereupon a short break

12 was taken, after which the

13 following proceedings were

14 had:)

15 THE COURT: Okay. So, Mr. Boyer, what is it

16 you want from Ms. Huskin?

17 MR. BOYER: As a matter of foundation, it's

18 part of the motion, and I'm explaining, your Honor

19 knows this, my client had this surgical procedure, she

20 had this device, the Myxo ring implanted into her as

21 part of that procedure. She was presented consent

22 forms, one of them is attached to the motion, and it's

23 my motion Exhibit 5. And it's called a Cardiac --

24 THE COURT: I never got any copies -- oh, I

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1 did maybe.

2 MR. BOYER: It's a Cardiac Surgery Outcomes

3 Registry Consent form. These are the documents that

4 are in dispute. That's one of the reasons I attached

5 them.

6 In the lower left-hand corner, it has Cardiac

7 Surgery IRB 1532-003. That's supposedly the IRB

8 number that approved this research form that my client

9 approved to be part of this research project. So the

10 question then, in my mind, is what is this research

11 project that she agreed to be part of?

12 So this was presented to my client by

13 Nancy Schoenecker. We took Ms. Schoenecker's

14 deposition. As part of discovery in this case, I

15 asked for the backup documents for this consent form,

16 and the hospital produced them. They are attached to

17 the motion.

18 THE COURT: Now, you don't represent the

19 hospital?

20 MS. FOLTZ: No. And I will say one thing,

21 and I think Ardy will agree with this, Exhibit No. 5,

22 the consent to the study, is not at issue.

23 MR. BOYER: Right.

24 MS. FOLTZ: We have never tried to preclude

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1 him from seeing that. But that was the stepping off

2 point for him going to the other stuff.

3 MR. BOYER: I will also say this. There were

4 some words exchanged during Ms. Schoenecker's

5 deposition. But I think the lawyers identified what

6 the issues were, and we identified the documents in

7 dispute. And that's what we're here about.

8 But for the record, your Honor, documents

9 were produced to us by Northwestern.

10 THE COURT: That's another question that I

11 have. You don't represent Northwestern?

12 MS. FOLTZ: I do not.

13 THE COURT: You represent NU.

14 MS. FOLTZ: No, I do not. I represent four

15 women who have received subpoenas in this case, and

16 that's who I represent.

17 THE COURT: I understand.

18 MS. FOLTZ: He had an exchange with NU or

19 subpoena earlier, and that, as I understand it, was

20 handled by their general counsel's office. That was a

21 very limited question, and I believe that was

22 responded to.

23 THE COURT: I wanted to know how he got the

24 documents from the hospital.

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1 MS. PLEUSS: We produced them.

2 THE COURT: We knew that. Because NU is IRB,

3 correct?

4 MS. PLEUSS: IRB is part of NU, yes.

5 MS. FOLTZ: I might be able to tell you this

6 because I do a lot of human research work with that

7 institution specifically. The hospital uses the

8 University's IRB, not an uncommon occurrence.

9 Dr. McCarthy, for example, along with most of the

10 other physicians on staff at NMH, also hold academic

11 appointments at NU, so they have two boxes, so to

12 speak. If I'm doing, either as an NU receptor or as

13 an NMH actually Faculty Foundation member, a study

14 that involves my clinical practice and my clinical

15 patients, I must go through the University's IRB to

16 get that study approved, because the hospital itself

17 does not have an IRB, which it has to either have one

18 or relate to one.

19 THE COURT: Use someone else's.

20 MS. FOLTZ: Correct.

21 So it's chosen to use NU's. So, as a

22 researcher, I, wearing my NU hat, but you don't think

23 about that as a doctor, put together the protocol, I

24 fill out the forms. And Anna Huskin, pertinent to her

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1 dep, is the one that actually does a lot of this

2 paperwork for Pat McCarthy. So that paperwork is all

3 put together, but it is physically in the clinical

4 trials unit. Dr. McCarthy would have access to it

5 obviously because he's part of generating it.

6 And my assumption about what happened is, and

7 I don't know if it was NMH, obviously it was NMH,

8 because there was the turmoil with the FDA and

9 Senator Grassley, NMH ended up with the Grassley

10 response which contained documents that were pertinent

11 to a request to produce in this case. And as Niven

12 versus Siqueira says, the fact that I send it to

13 somebody who has a legal authority to request it, just

14 like I have to send stuff to Joint Commission, doesn't

15 strip it of the privilege.

16 THE COURT: I agree. I don't disagree with

17 that.

18 MS. FOLTZ: But I think that's how physically

19 this happened.

20 THE COURT: Except. . .

21 MS. FOLTZ: And yes, they were privileged.

22 And should they have been turned over, probably not,

23 but it's still not a waiver.

24 THE COURT: I don't disagree with you. I

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1 think the case law is pretty clear on some of those

2 issues. But the question that I have is that, you

3 know, NMH is using NU's IRB and ORI for different

4 things, correct?

5 MS. FOLTZ: Correct, correct. All their

6 studies go through there.

7 THE COURT: And when NMH uses NU for the IRB

8 or ORI and you have doctors who are working in both

9 areas like this, it kind of like takes that hat and

10 just starts putting it on everybody's head so that you

11 can claim medical studies privilege because that's all

12 part of the same documentation, so to speak.

13 MS. FOLTZ: But if I had --

14 THE COURT: That's my issue.

15 MS. FOLTZ: When I was in-house counsel at

16 Michael Reese and we had a thriving academic research

17 population and we coordinated with U of C, we had our

18 own IRB at the hospital. Those documents, in the

19 hands of the IRB, it doesn't matter who's running it,

20 they're always privileged.

21 THE COURT: They are.

22 MS. FOLTZ: So I don't -- I guess I'm not

23 following why just because somebody -- every doctor --

24 THE COURT: I'm not saying that they're not

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1 privileged.

2 MS. FOLTZ: Okay.

3 THE COURT: I'm saying that it seems like we

4 can hide behind a cloak easier when you're using a

5 different IRB or ORI and. . .

6 MS. FOLTZ: Oh, I don't think the argument's

7 any different with all due respect. I would be

8 telling you the exact same thing. I think the reason

9 we're trying to make it clear here is because, in

10 part, Ardy's motion to compel is directed at NU

11 inappropriately, and we have capped separate the

12 representation of those different entities, because

13 they are different entities.

14 THE COURT: And it just makes it so

15 confusing. And because NU is IRB and ORI, then how

16 does NMH even get those documents that are part of the

17 NU IRB and ORI if, in fact, they're privileged to

18 begin with?

19 MS. FOLTZ: Because NMH is the physical site

20 of the research and has to put those documents

21 together to give them to IRB and ORI. And the IRB has

22 a regulatory responsibility to do an annual review.

23 They have the right to go in and see the patient

24 records. That would be true -- there are a number of

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1 smaller hospitals that use, I think it's Western

2 something. It's a commercial IRB entity.

3 THE COURT: Correct.

4 MS. FOLTZ: Those hospitals would have these

5 same documents that they have to give to the IRB, and

6 they would keep it in whatever office keeps those

7 documents. And it may be the individual researcher's

8 office.

9 THE COURT: Let's go on. Exhibit No. 5 is

10 the Northwestern University Department of Surgery

11 Consent form.

12 MR. BOYER: Can I try to give a quick answer

13 to that question, Judge?

14 THE COURT: It's 1532-003 IRB. That's what

15 we're talking about. Everybody agrees the consent

16 form's not an issue.

17 MS. FOLTZ: Correct.

18 MR. BOYER: There were a couple things that

19 Pat Foltz answered that I think I can better answer.

20 One is, how did Northwestern Memorial Hospital get

21 access to these documents? It's my opinion that the

22 study that is one of the exhibits says in the lower

23 left-hand corner of Dr. McCarthy's actual study that

24 it's from the Bluhm Cardiovascular Institute, Division

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1 of Cardiothoracic Surgery, Cardiology and Clinical

2 Trials Unit, Northwestern Memorial Hospital. Not

3 Northwestern University, Northwestern Memorial

4 Hospital. So I believe Dr. McCarthy was under the

5 impression that this study was being conducted in his

6 capacity as someone who was on --

7 MS. FOLTZ: I don't think that makes any

8 difference.

9 THE COURT: I'm not sure it does either.

10 Let's move on.

11 MR. BOYER: I have the request to produce

12 here that they produced the information on, and the

13 response they gave me when they produced -- the

14 hospital gave me was when they produced. . .

15 THE COURT: Let's get back to the -- Huskin

16 is it or Schoenecker?

17 MS. FOLTZ: Huskin.

18 THE COURT: Let's get back to her dep.

19 MS. FOLTZ: If I could correct something for

20 the record, Ardy, when you sent me the exhibit list

21 for Nancy, Exhibit 5 is the protocol. The consent for

22 the outcomes registry is actually Exhibit 2. And I

23 don't want this to be wrong in the record later on, so

24 Exhibit 2 --

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1 THE COURT: My Exhibit 5 says the consent

2 form.

3 MS. FOLTZ: Oh my God, they've been marked so

4 many different times.

5 MS. PLEUSS: But it's Schoenecker 2,

6 Exhibit 5 to his motion.

7 MR. BOYER: I marked them my motion exhibit

8 numbers.

9 MS. FOLTZ: Oh, Jesus. Okay.

10 THE COURT: So, for the record, this is the

11 Northwestern University, Department of Surgery consent

12 form. It's Exhibit 5, it's Schoenecker Exhibit No. 2,

13 it's Rajamannan Exhibit 3 something.

14 MS. PLEUSS: 34.

15 MS. FOLTZ: All right. I was just confused.

16 I apologize.

17 MR. BOYER: So then the question is, what is

18 IRB 1532-003, and there's associated documents. I got

19 into Schoenecker's deposition, and there were a series

20 of documents that are attached. I handed the witness

21 the first document that is Schoenecker Exhibit 5, and

22 Pat Foltz --

23 THE COURT: What's your exhibit number?

24 MR. BOYER: 8.

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1 And Pat Foltz said, you can't show her that,

2 that's a protocol. I did not know this was a

3 protocol. It doesn't say it's a protocol, but that

4 was our first dispute.

5 We then identified my Exhibit 9, which is a

6 form called a New Project Submission form. We

7 identified my --

8 MS. FOLTZ: Which is Schoenecker 6.

9 MR. BOYER: Schoenecker 6. We identified my

10 exhibit. . .

11 THE COURT: Well, let me ask you this

12 question. I'm just looking at this Exhibit No. 8 that

13 you called a protocol, and everything that's quoted in

14 here is a published reference.

15 MS. FOLTZ: If you're looking at the

16 introduction and the background, they're a summary of

17 literature, but that is not the -- if you go on to the

18 study design and such and the objectives, that is the

19 part of the protocol that requires approval.

20 THE COURT: I see.

21 MR. BOYER: And, your Honor, I would add,

22 too, that the New Project Submission form, I mean,

23 this, as far as I see, is more akin to an application

24 rather than boundaries or protocol. There are two

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1 other forms that I have been provided here that are

2 part of 1532-003, my motion Exhibit 10, which is a

3 request to waive consent.

4 THE COURT: Let's just stick to 8 first,

5 because I'm not as bright as you are. I need to be

6 simple about this.

7 MR. BOYER: I was just trying to identify.

8 THE COURT: I understand. So let's stick

9 with 8. So you tried to show this to Schoenecker,

10 correct?

11 MR. BOYER: Yes.

12 THE COURT: And you objected saying this is

13 part of the. . .

14 MS. FOLTZ: This is the protocol, and that

15 your Honor said, when we were going over Ms. Huskin's

16 rider, the protocols are MSA.

17 MR. BOYER: Let me just say, I had no idea

18 this was a protocol.

19 THE COURT: So the question for me to answer

20 is whether or not she can -- he can show or use this

21 documentation to Huskin in the deposition?

22 MS. FOLTZ: That is, yeah.

23 MR. BOYER: Yes.

24 MS. FOLTZ: And I will tell you, quite

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1 honestly, I think your ruling on the other exhibits

2 follows that because they are all part and parcel of

3 the same thing. They are all documents that are

4 created for the IRB's consideration, required for the

5 IRB's consideration, and the IRB is the only entity

6 that typically would use those.

7 MR. BOYER: Can we just limit that to 8

8 through 11 for now, Pat?

9 MS. FOLTZ: I'm sorry. I don't know -- tell

10 me Schoenecker exhibits.

11 Amy's helping me. Yes, that is his

12 Exhibits 8 to 11. I think whatever your Honor rules

13 on 8, it will follow on 9, 10, and 11.

14 THE COURT: Now, let's talk about this

15 protocol. According to Justice Wolfson, and I'm just

16 looking at what he has to say about protocols, and

17 then I'm looking back at Doe. I don't have my

18 marked-up copy. I don't know what I did with it now.

19 Do you have Doe in front of you? I would

20 like you to show me where you believe that the

21 protocols under the research portion of the other

22 types of committees like IRBs and ORIs are covered and

23 where that would be included in this order or in this

24 case.

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1 MS. FOLTZ: In Doe?

2 THE COURT: Yeah.

3 MS. FOLTZ: Well, the request was to produce

4 documents used in the course of the study.

5 THE COURT: This was a certified question.

6 MS. FOLTZ: Yes, it just refers to the

7 documents reviewed in camera. But one of the things

8 the documents -- one of the documents that were

9 reviewed was the research protocol. I am looking to

10 see where that specifically says that or if I know

11 that because that's what a research program always

12 starts with.

13 I don't know what else you would interpret

14 that as.

15 THE COURT: That's what I'm looking for.

16 MS. FOLTZ: Okay. Here, bottom of -- it's

17 like the third paragraph after the certified question.

18 It's talking about the Does filing suit against

19 multiple defendants.

20 THE COURT: Right.

21 MS. FOLTZ: And request for production of

22 documents relative to the pre-implantation genetic

23 testing procedure including protocols submitted to the

24 Institutional Review Board. Yes, that document was

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1 held to be non-disclosable and privileged.

2 THE COURT: The trial court subsequently

3 granted defendants' motion for certification after

4 they looked at them and said to produce them, correct?

5 MS. FOLTZ: Right. Then there was a

6 contempt, I believe.

7 THE COURT: Show me where the Court orders

8 that.

9 MS. FOLTZ: The court order from the trial

10 court?

11 THE COURT: No, no, no. The certified

12 question was whether in camera documents should have

13 been produced.

14 MS. FOLTZ: Correct. And one of those

15 documents was the protocol.

16 THE COURT: Where a duly constituted

17 committee of the medical staff is protected from

18 disclosing and producing a plaintiff's document

19 submitted for an in camera inspection, including the

20 entire files of the IRB and minutes, and then we go

21 back and we talk about the protocol.

22 MS. FOLTZ: I mean, the conclusion of the

23 Court is that we conclude the trial court incorrectly

24 ordered production of the requested documents, and

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1 that the information is privileged under the MSA.

2 That's the last paragraph. And one of the documents

3 we know --

4 THE COURT: It says here, too, it says that

5 it is clear the Act applies to the materials in

6 question.

7 All right. And then Wolfson says: Equating

8 the privilege protocols in Doe with the HOC's response

9 and recommendations here, we read Doe differently. In

10 Doe, we held the protocols governing a medical study

11 were privileged under the Act. In the context -- in

12 that context, a protocol is the plan of a scientific

13 or medical experiment or treatment. Obviously, the

14 plan for a medical study would come before the study,

15 not as a result of the study, and drives the operation

16 of the study.

17 MS. FOLTZ: So I believe that's Judge Wolfson

18 saying, as is acknowledged in Doe where they're

19 comparing another state statute that expressly

20 protects peer review but not medical study, I believe

21 that is Judge Wolfson saying Doe doesn't apply in here

22 to Chicago Trust because it's not medical study.

23 We're not talking about a protocol for medical study,

24 which, of course, you can't generate after the fact.

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1 But it doesn't say we've changed our minds about Doe

2 and the protocol being privileged.

3 THE COURT: No, I don't disagree with you.

4 Except that it throws me that they write this opinion

5 this way that says that the plan for a medical study

6 would come before the study, not as a result of the

7 study. If it comes before the study, then how is it

8 privileged under the Roche decision that says that

9 nothing that is done prior to it is privileged?

10 MS. FOLTZ: Because Roche has nothing to do

11 with medical study. What we're saying here, I think

12 what that's acknowledging and what Doe says is,

13 there's one approach we take under MSA to peer review

14 and quality assurance. There is a different broader

15 approach that we take to medical study, because you

16 can't do a study ever without it going through a

17 protocol and IRB review if it is truly human research.

18 THE COURT: Okay. Let me ask one other

19 question then.

20 MS. FOLTZ: And just for the record, human

21 research is defined to include data repositories in

22 the federal regulatory scheme.

23 THE COURT: Is this protocol that you say it

24 is, is this in the patient file at all?

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1 MS. FOLTZ: No.

2 THE COURT: Is this in her record?

3 MS. FOLTZ: No. And it is also a predecessor

4 to the actual protocol that is attached to the consent

5 she signed. The numbers may remain the same, but in

6 the course of years of a study, researchers may amend

7 protocols from time to time to do a variety of things,

8 and it is my belief that the name change was

9 associated with an amendment to a protocol, in

10 addition to the name change.

11 THE COURT: All right. Mr. Boyer?

12 MR. BOYER: Your Honor, when the hospital

13 produced these materials, I asked for a number of

14 items. And back in May of 2012, they answered my

15 initial request to produce No. 23. The answer to

16 No. 23 -- and which asked for materials from the

17 United States House or House of Representatives or

18 Senate in 23.0, any investigation by any government

19 body. The answer that the hospital gave was as

20 follows, and I'll read it: This Defendant objects to

21 this request on the grounds that it encompasses

22 materials that are privileged pursuant to the

23 attorney-client privilege, the insured privilege,

24 and/or the Attorney Work Product Doctrine. Without

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1 waiving said objection and insofar as the request

2 seeks non-privileged materials, see attached as

3 Exhibit A. And they provided those materials as

4 non-privileged materials to me, and I had them as

5 such. They are marked with NMH Bates numbers.

6 And I took the deposition of

7 Nancy Schoenecker, and as part of that deposition, I

8 think I rightfully asked, when you, as a research

9 nurse, go to someone like my client and ask my client

10 or patients to sign a consent form to be part of

11 Northwestern's outcome registry or any research

12 project, how do you, the research nurse, become

13 educated on what the research project is? How do you

14 learn about the research project so that you can

15 provide full and complete information to the patients?

16 And the nurse responded that one thing that she does

17 is they read the protocol. So the protocol is more

18 than a secret confidential medical studies document

19 that is being claimed here. It is also part of the

20 nurse's educational process that informs and gives the

21 nurse the information. It's part of the informed

22 consent process. That's a non-privileged part of the

23 process.

24 THE COURT: Let me ask you, as part of the

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1 informed concept process, they don't give a copy of

2 this to the client?

3 MS. FOLTZ: No.

4 THE COURT: To the patient.

5 MS. FOLTZ: No.

6 MR. BOYER: They don't give a copy, but it's

7 part of the education process.

8 MS. FOLTZ: Of the --

9 THE COURT: How is that part of the informed

10 consent then? And the other question I have for you

11 is this: Are you disputing the fact that if something

12 that is inadvertently turned over to you under MSA

13 that somehow that waives the privilege?

14 MR. BOYER: No.

15 THE COURT: Is that what you're saying?

16 MR. BOYER: No, I'm not saying that. What

17 I'm saying here is that documents like these, even if

18 counsel's right and they may have at some point been

19 part of this, documents can have a dual purpose. They

20 can have a privilege purpose, and if they have a

21 non-privileged purpose and they were disclosed as

22 non-privileged documents, which they were here, if

23 they become part of a non-privileged file and are used

24 for non-privileged ordinary course of business

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1 purposes.

2 THE COURT: If they're used for ordinary

3 course of business purposes, the cases are clear that

4 they're not privileged, and they're not subject to

5 Medical Studies Act.

6 MR. BOYER: Then we have a nurse --

7 THE COURT: Show me how that happened here.

8 MR. BOYER: Well, we have a research nurse

9 that looks up on the screen, on the electronic screen

10 and says, I want to know what this study is about, and

11 reads this document that they call a protocol, they're

12 calling it a protocol, and says, I want to know what

13 this study is about so I can go in and tell someone

14 like Maureen Obermeier what this outcomes registry is

15 that I'm asking her to become part of it and I explain

16 it to her and use the information there. Because the

17 question that I want to know is, is a medical device a

18 part of this? At the end the day, I want to know, is

19 a medical device a part of this, and we can look at

20 that protocol and tell it is not. We can look at,

21 Judge, and I think this is really what we're getting

22 to --

23 MS. FOLTZ: Your Honor, if I could?

24 MR. BOYER: If I can just finish this one

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1 point. We can look at the New Project Submission form

2 that is 1532-003, it specifically says, is a medical

3 device a part of this research project, and it says

4 no.

5 MS. FOLTZ: If that's all he's asking from --

6 MR. BOYER: The question then becomes, at the

7 end of the day, what authority did Dr. McCarthy have

8 to do this, to do this research project?

9 THE COURT: That's a question you could ask,

10 that's for sure. That's something I can easily rule

11 on.

12 MR. BOYER: But he's claiming it is this

13 outcomes registry.

14 MS. FOLTZ: No, no, no, no, no.

15 MR. BOYER: He's not?

16 MS. FOLTZ: Ardy, number one -- if I might,

17 your Honor.

18 MR. BOYER: Excuse me. She's not

19 representing these defendants. So excuse me, but --

20 MS. FOLTZ: I am representing deponents, and

21 you've made some misrepresentations that need to be

22 corrected for the Court to understand the context of

23 this.

24 MR. BOYER: I'm sorry, Judge, but, you know,

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1 if she represents Anna Huskin --

2 THE COURT: Yes, she does, and that's what

3 we're talking about is whether or not certain

4 documents can be used within those depositions of

5 those parties, which she has come in to quash. So you

6 made some representations, so let her say what she

7 needs to say on the record.

8 MS. FOLTZ: Number one --

9 THE COURT: I don't think we're far apart

10 here.

11 MR. BOYER: I don't think so either.

12 MS. FOLTZ: Mr. Boyer said specifically the

13 research nurse reads the protocol to make sure she has

14 the entire background so she can walk in with what is,

15 I think your Honor will even acknowledge, a very

16 detailed informed consent document pursuant to federal

17 regulations, much more detailed than you would for

18 clinical procedure. Nancy Schoenecker and

19 Anna Huskin, they do not provide clinical care. All

20 they do is research. They are part of the medical

21 study.

22 But what is baffling to me now is, if

23 Mr. Boyer is saying that the only reason he wants to

24 talk to Anna is to find out if this consent was a

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1 consent to implant what they allege is an experimental

2 medical device, I will tell you right now Anna will

3 say no, because the device wasn't experimental. And

4 I've read Dr. McCarthy's dep to give myself context,

5 and he asked Dr. McCarthy a number of very insulting

6 questions. And it's clear, I mean, I don't know

7 anybody's taking the position that we somehow got --

8 that the defendant somehow got a consent to implant an

9 experimental device. It's my understanding it wasn't

10 experimental. That's the testimony I have read. Anna

11 would tell you the same thing.

12 THE COURT: All right.

13 MS. FOLTZ: So, if that's all this is about,

14 this seems like a bit ridiculous to even be dragging

15 her in here.

16 MR. BOYER: Well, what it's about, Judge, is

17 my client signed a consent form that's based on IRB

18 1532-003. Anna Huskin is the preparer of these

19 documents, and I want to ask her about the documents

20 and basis of the documents. This apparently is the

21 source and the origin of -- and I have Dr. McCarthy's

22 study which says that he took the information from --

23 THE COURT: You can ask anything you want

24 about the findings, can't you?

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1 MS. FOLTZ: Yeah. That's never been a

2 dispute.

3 MR. BOYER: Well --

4 THE COURT: Here's how I see it. You know,

5 I've reread Doe and I read the Chicago Trust case,

6 and, you know, the Chicago Trust case comes out a

7 month after the Doe case comes out, I think. It does.

8 And I'm really just concerned with that one clause.

9 Clearly when I read Doe, the protocol is under --

10 considered privileged under the Medical Studies Act,

11 clearly. It includes it. It talks about it. It

12 speaks directly of it in that way.

13 Now, I know that when they're defining

14 protocol in that Roche case, it says that anything

15 prior to that doesn't include an IRB or an ORI or some

16 other committee that's under MSA, that would be

17 considered under MSA, the Internal Review Board.

18 MS. FOLTZ: Roche doesn't deal with IRB.

19 THE COURT: No, no.

20 MS. FOLTZ: I'm sorry. I'm misunderstanding

21 what you're saying.

22 THE COURT: No. It talks about anything that

23 takes place prior to the committee actually commencing

24 is not privileged.

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1 MS. FOLTZ: In general, I would agree with

2 you, except for medical studies, yes.

3 THE COURT: But see, we only get that through

4 this Doe case.

5 MS. FOLTZ: I agree with you. You are

6 absolutely right.

7 THE COURT: So that's the only case that we

8 have. And then we have this case that's decided a

9 month later that gives me a little cause for concern.

10 In Doe, we hold the protocols were privileged under

11 the Act. In that context, a protocol is the plan or a

12 scientific or medical experiment. Obviously, the plan

13 would come before it, not as a result of the study.

14 MS. FOLTZ: Right.

15 THE COURT: So does that mean it's privileged

16 or not privileged?

17 MS. FOLTZ: I think it means it is. I think

18 it's saying Doe is different. Medical studies is

19 different than QA and peer review, which is what we're

20 dealing with here, meaning here in Chicago Trust.

21 MR. BOYER: I think in this case, it can be

22 viewed as an application.

23 THE COURT: Here's what I'm going to do, I'm

24 going to hold that it is MSA. I'm going to say you

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1 can't use the protocol. I'll certify the question for

2 you.

3 MR. BOYER: And what about the applications,

4 Judge? I might be able to live with the other

5 documents, you know, the forms.

6 THE COURT: Show me what you're talking

7 about, which ones. My ruling is based upon Doe and

8 the Chicago Title case -- Chicago Trust Company

9 case --

10 MR. BOYER: New products --

11 THE COURT: -- versus Cook County.

12 MR. BOYER: -- 9, 10, and 11.

13 THE COURT: I have 9.

14 MR. BOYER: I think I stapled them together,

15 Judge.

16 THE COURT: They're together. Okay.

17 MS. FOLTZ: I will simply say what I said

18 before, I think the ruling on the protocol drives the

19 ruling on the others, because these are all documents

20 that are very obviously IRB documents, and they are

21 all submitted as part of the protocol approval

22 process. I don't know how you treat them any

23 differently. Their format is meaningless in terms of

24 the privilege attaching. There's nothing in the case

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1 law that says format makes a difference.

2 THE COURT: I'm not concerned with format.

3 I'm concerned with whether these documents appear in

4 the patient's file --

5 MS. FOLTZ: They do not.

6 THE COURT: -- in general.

7 MS. PLEUSS: No.

8 THE COURT: I'm concerned with whether or not

9 the client, the patient signs them.

10 MS. FOLTZ: They do not. She does not.

11 Mr. Boyer disagrees, he can say so. But I would not

12 misrepresent that.

13 THE COURT: And the last thing I look at is

14 just whether or not it appears to me it was either

15 initiated, created, prepared, or generated by the IRB

16 in the Peer Review Committee. It talks about the

17 IRB's date stamp, the IRB project number. It talks

18 about -- if it's done that, then it's covered under

19 the Medical Studies Act in my humble opinion.

20 MS. FOLTZ: It is done, I will tell your

21 Honor, based on IRB requirements at the same time the

22 protocol is done, and they are all submitted together.

23 THE COURT: The protocol has some interesting

24 aspects to it, because the protocol, even in the

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1 second portion of the protocol, cites to public. . .

2 MS. FOLTZ: Journal documents.

3 THE COURT: Yes.

4 MS. FOLTZ: Yes. And if you remember, the

5 one -- there's a case out there that talks about when

6 a credentialing committee says, I want to look at this

7 literature, that is essentially -- I think of it as

8 the mental process that equates with attorney work

9 product. It tells you what they're thinking about

10 when they're considering the issue. So the fact that

11 it is otherwise public does not mean you get it. And

12 I don't know if that was the Siqueira or which case

13 that was. But that clearly says there is something

14 about the process.

15 THE COURT: I agree. I think they're MSA

16 documents also.

17 MR. BOYER: Can I just make a couple points

18 just to make a record here?

19 THE COURT: Yes, and hold your thought. But

20 I will give you 308 language for you to submit any

21 question that you want within a certain period of time

22 to take me up on this issue. If they speak on that

23 issue, it will settle it once and for all.

24 MS. FOLTZ: Which none of us would be upset

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1 with, I don't think.

2 Are we going to proceed with Anna's dep then

3 or not?

4 MR. BOYER: No, I don't need her then.

5 MS. FOLTZ: I understand that.

6 MR. BOYER: I needed to ask her about these

7 documents.

8 Just so I can get a couple more things on the

9 record.

10 THE COURT: Absolutely.

11 MR. BOYER: I would add that --

12 THE COURT: Let me just say this. Hold your

13 thought. I don't want you to lose it. So what I

14 found to be MSA privileged are Exhibit No. 8 of your

15 motion, Mr. Boyer's motion, which is Schoenecker

16 Exhibit No. 5 and Bates stamped NMH 001462, that's the

17 beginning page number, and NWU 00027. I've said that

18 item number -- Mr. Boyer's Exhibit No. 9, 10, and 11

19 are also privileged. Those are Schoenecker

20 Exhibit No. 6, No. 7, and No. 8 respectively, I

21 believe. And the Exhibit No. 9 is Bates stamped

22 NMH 001477 and NWU 00042; Exhibit No. 10 and

23 Schoenecker Exhibit 7 is NMH 001494 and NWU 00059; and

24 Exhibit No. 11 is Schoenecker Exhibit No. 8,

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1 NMH 001496 and NWU 00061. I just want to make sure

2 we're clear for the record, because there are multiple

3 exhibit tags on the documents.

4 MS. FOLTZ: Thank you.

5 THE COURT: All right, Mr. Boyer.

6 MR. BOYER: We also need rulings on the group

7 of documents that were part of my Group 15, and those

8 involve -- Pat, we never got to these.

9 MS. FOLTZ: Because I don't know what you're

10 talking about.

11 MR. BOYER: These are IRB 004, and we were

12 fighting over 003 during the deposition.

13 MS. FOLTZ: Can you show me what you're

14 talking about, Ardy, because I honestly don't know

15 what you're talking about?

16 MR. BOYER: Can we just take a couple

17 minutes?

18 THE COURT: You want to take a couple minutes

19 to go off.

20 MR. BOYER: Yes.

21 (Whereupon, a discussion

22 was had off the record.)

23 THE COURT: And Schoenecker's dep we don't

24 need.

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1 MS. FOLTZ: We've done that, and we don't

2 need to supplement.

3 THE COURT: What about Huskin?

4 MR. BOYER: Huskin, Anna Huskin's deposition,

5 given the Court's ruling, I have no need to pursue

6 that at this point, and I will give some thought to

7 whether I need to do a motion to pursue appeal on

8 that.

9 I would like to add, your Honor, that as part

10 of my motion, I have some materials on Exhibit 15 that

11 were part of Northwestern Memorial Hospital's request

12 to produce documents, amended No. 36, they're

13 Exhibit E, dealing with NMH Bates numbers 1 through

14 29. And these are dealing with IRB 1532-004, and

15 Pat Foltz has just represented to me that these have

16 no bearing on Dr. McCarthy's paper.

17 THE COURT: Or the Obermeier case.

18 MR. BOYER: Or the Obermeier case. And given

19 that, I do not need to pursue discovery on those

20 materials, and I will withdraw my motion as to these

21 materials.

22 MS. FOLTZ: And I will affirm that

23 representation. And I will also say, in light of

24 Mr. Boyer's representation to me that those are the

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1 documents that he discussed with Dr. Rajamannan that

2 apparently provoked her email to my client

3 Anna Huskin, amongst others, it's obvious that

4 Mr. Boyer understands the parameters of the Court's

5 ruling, and I can withdraw the motion.

6 MR. BOYER: By the way, I don't know what it

7 provoked. I told you I just asked --

8 MS. FOLTZ: I know you don't. I wasn't

9 implying that you had anything to do with that, Ardy,

10 not at all.

11 MR. BOYER: I told you we had a dispute in

12 the Schoenecker deposition. I went back, I reviewed

13 file materials. I saw a paper that had valve

14 pathology that had Dr. Rajamannan's name on it. I

15 called Dr. Rajamannan. I said, what is this.

16 MS. FOLTZ: I get it. I get it. It's all

17 okay. I never tried to imply, I don't think, that you

18 had anything to do with what Dr. Rajamannan did

19 thereafter.

20 MR. BOYER: So with that said, I think we're

21 done for today, and we need to. . .

22 THE COURT: Okay. I'm going to give you a

23 case management, but I just wanted -- there was

24 something in the record that I read on the 19th of

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1 September 2013, and we talked about, you know, this

2 alleged potential for sandbagging as to whether or not

3 they can ask at trial whether or not this went to an

4 IRB. And they could come back and say it did, and

5 there was a finding that there was nothing wrong.

6 MS. FOLTZ: I think to clarify, if I might,

7 the issue Ardy was concerned about is the Office of

8 Research Integrity, when Dr. Rajamannan made an

9 allegation of research impropriety, the Office of

10 Research Integrity investigated that and issued a

11 finding that there was no impropriety. And I said, on

12 the record, and I know this is NU's position, that

13 even if NMH or Dr. McCarthy asked for that document at

14 trial, we would be and you would be in there based

15 on -- saying you don't get it either.

16 THE COURT: I understand except. . .

17 MR. BOYER: That is as to Ann Adams, I

18 believe, and the Ann Adams letters.

19 THE COURT: It is.

20 MS. FOLTZ: The ORI stuff.

21 THE COURT: The ORI stuff, that's correct.

22 It's in the record here. Except findings from these

23 committees might be fair game. They're not

24 privileged.

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1 MS. FOLTZ: Well, you know, again, this is

2 the question of how far the scope of medical studies

3 privilege attaches. And if I were representing NU in

4 this case, I would say that that is a specialty -- ORI

5 is a special construct of the federal regulatory

6 scheme that governs human research studies, and as is

7 a protocol that pre-exists the committee's

8 consideration is privileged for a medical study, so

9 too are the findings related to allegations of

10 impropriety in research. I think it is a broader --

11 THE COURT: I hear you loud and clear.

12 Thanks for putting that on the record. I'm just

13 bringing it up, because in the Chicago Trust Company

14 versus Cook County Hospital case, the Court

15 specifically says that the Act does not protect

16 against disclosure of the peer review committee's

17 recommendations after completion of the peer review

18 process. Now, that says peer review. It doesn't take

19 about IRB, ORI, and I just wanted to make sure that I

20 wasn't misrepresenting or misleading the parties in

21 the record that that was not going to be able to be

22 asked and answered at trial, because it may be, and

23 that would be solely within the purview of the trial

24 judge to make that determination or subject to a

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1 motion in limine prior to the trial. I just want to

2 put that on the record.

3 MS. FOLTZ: Understood.

4 THE COURT: It's nothing that I'm impeding

5 the trial court in any way and say, well, Gomolinski

6 said this, and you have to follow this.

7 MR. BOYER: I understood your Honor's ruling

8 to mean that these were subject to in limine motions.

9 THE COURT: I just want to make sure.

10 MS. FOLTZ: That's what we discussed last

11 time.

12 MR. BOYER: But I will just say that

13 Ann Adams is not on anybody's witness list. Nobody's

14 listing her as a 213 witness.

15 THE COURT: I'm just making sure that I make

16 sure that there wasn't any misunderstanding.

17 MR. BOYER: And can I just say one more

18 thing, Judge? When we were before you yesterday?

19 MS. PLEUSS: Wednesday.

20 MS. FOLTZ: Whenever we were, yeah.

21 MR. BOYER: Pat Foltz made a comment about I

22 might be a little too busy for this case, and she's

23 right. I had a co-counsel on this case for a while,

24 and I lost them. And I called him today and said

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1 you're supposed to have an appearance on file, and

2 Mr. Kroll promised he would get his appearance on file

3 today.

4 MS. FOLTZ: I thought he had an appearance on

5 file. He's always been on our service list.

6 MR. BOYER: He did as Jeff Kroll. But then

7 that firm dissolved, and he's with Pat Salvi's office

8 now.

9 MR. BAGROWSKI: I thought he came in after

10 that.

11 MR. BOYER: He didn't file as Pat Salvi.

12 MS. FOLTZ: It doesn't matter.

13 MR. BOYER: So he is going to file a

14 supplemental appearance, and he will be involved on

15 the (f)(3) issues. So I'm getting help.

16 THE COURT: Where are we otherwise?

17 MR. BOYER: We have the plaintiff

18 supplemental deps that we have to talk about.

19 THE COURT: Those have to go.

20 MR. BOYER: Yes. We have a meeting next week

21 on the protective order issue.

22 THE COURT: Do you want this on the record?

23 MR. BOYER: I don't think so.

24 (Whereupon, a discussion

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1 was had off the record.)

2 THE COURT: I do want you in 14 days, because

3 we're going to come back here, we're going to do

4 something anyway. You have to tell me whether or not

5 you want any 308(a) language with respect to this

6 issue as to whether or not the Medical Studies Act

7 privilege applies to the protocol for the IRB based

8 upon the Doe case and the Chicago Trust versus Cook

9 County Hospital case, and since the court in the Cook

10 County case specifically says that a protocol is

11 something that takes place prior to, it's whether or

12 not that protocol would be included under MSA for

13 purposes of IRB.

14 MR. BOYER: Thank you.

15 THE COURT: Then I need to have firm dates

16 for this Obermeier dep.

17 MS. PLEUSS: Your Honor, as you may recall,

18 we received the information at 8:30 the night before

19 we were here. I have had a chance to briefly look at

20 it. I withdrew from accounting my first year of

21 college because I could not do it, but we are missing

22 IRS material I believe from 2011 and '12 for the corp

23 and '12 personal. I need somebody to help me look at

24 this stuff. I don't understand it.

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1 THE COURT: Okay. So what are you asking me?

2 MR. BAGROWSKI: We're just going to need more

3 time to go through it, your Honor. I don't think we

4 can set it in 14 days.

5 THE COURT: I understand. I understand what

6 you're saying. All I've asked you to do is come up

7 with a date.

8 MR. BAGROWSKI: Will do.

9 THE COURT: I will give you time to do

10 whatever you need to do to review it. Listen, we're

11 in that time of the year, too, where people are on

12 vacation, they're doing different things, family are

13 coming in. It is what it is. I promise I'll give you

14 all the time you need. We've given Mr. Boyer all the

15 time that he's needed, so we will give you time to

16 review it. And then I just want the deps set. I

17 would like the deps set, okay? I want firm dates for

18 those, because those firm dates, unless we hold to

19 them, they come and they go. And I don't want to play

20 that game anymore. So, when you come back, if you can

21 just set out a date, say, hey, I need 45 days to look

22 at this, I can't get a dep date until the end of

23 January or something, that's fine. I would be more

24 than happy to give you the time to take it and then

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1 review it and do what you need to do.

2 In the meantime, where else are we? We have

3 Obermeier. You have a couple more (f)(2)s, right?

4 MR. BOYER: I think there may be just one or

5 two more Edwards people. I'm going to have to consult

6 with him.

7 MR. BAGROWSKI: We're going to have to talk

8 about it. He sent us a 206(a)(1) for patent issues.

9 The first was authenticity, which I think we can

10 stipulate to. I don't think we're going to have an

11 issue on that. The second is a potential witness.

12 MR. BOYER: Well, we can talk about that.

13 MR. BAGROWSKI: We're going to have to

14 discuss that.

15 The other issue that we have is he's

16 challenged essentially the confidentiality of pretty

17 much all of the documents we've produced. I have my

18 response --

19 MR. BOYER: We don't have to talk about that

20 on the record.

21 MR. BAGROWSKI: We have a meeting next week

22 on that.

23 MR. BOYER: This parlays into what I can do

24 with their documents for (f)(3) purposes.

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1 THE COURT: So what would be the purpose of

2 coming back any time soon, none. It's a waste of

3 time.

4 MS. FOLTZ: Unless he decides he needs a

5 certified question.

6 THE COURT: That's the only issue as to

7 whether or not you need a certified question, correct?

8 MR. BOYER: Yes.

9 THE COURT: Well, if you're going to present

10 the certified question, just throw it on a motion

11 call.

12 MR. BOYER: Yes.

13 MS. FOLTZ: And if you would, shoot it to me

14 a couple days beforehand, because we might be able to

15 agree to language, and then let the judge decide

16 whether your Honor is in agreement.

17 THE COURT: I usually choose my own any, but

18 I'll look at it. But I'm willing to give anybody,

19 anybody who asks me for 308(a) language, I'm always

20 willing to give it to you. Because I think I have a

21 pretty good grasp. I read everything over and over

22 and over again. I spent a lot of time reading it.

23 MR. BOYER: Leave to file my motion under

24 seal?

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1 MS. FOLTZ: I have no problem with that. His

2 motion to compel attached a number of those MSA

3 documents, and I know last time, when I had to file

4 something under seal, you wanted certain specific

5 language if we follow that form. But simply refer to

6 it as a statutory privilege rather than subject to a

7 protective order.

8 THE COURT: Yes, just saying that it's

9 statutory based upon MSA, and therefore this document

10 is filed under seal.

11 MR. BOYER: Can I get a draft order over

12 tomorrow, Judge?

13 THE COURT: That's fine.

14 MS. FOLTZ: You know what, Ardy, I will

15 revise the one I have, because I have it electrically

16 in my system. I'll email it to you.

17 THE COURT: Tomorrow is Saturday, and I'm not

18 here next week so whenever.

19 MR. BOYER: Okay.

20 THE COURT: Thanks for indulging, putting up

21 with me.

22 MS. FOLTZ: No. Thank you.

23 MS. PLEUSS: When do you want to see us

24 again?

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1 THE COURT: I was going to say throw it on

2 the motion call. Other than that, what I was going to

3 do is say why don't we just take the 45 days, come

4 back here on January 22nd, tell me where we're at.

5 Not enough time? Too late?

6 MS. PLEUSS: That's my birthday, but I'll

7 here. That's okay.

8 MS. FOLTZ: 11 o'clock, your Honor?

9 THE COURT: No. I think we can just do

10 regular case management. The reason we can is because

11 there's really no pressing issue now. All we can do

12 is report, tell me where you're at. You look at the

13 Obermeier stuff. We're going to set a date or maybe

14 you can set a date by then. Tell me when that date

15 is. I want a firm date. I want a firm date.

16 MS. PLEUSS: That's fine.

17 THE COURT: And I want to hold the people to

18 it.

19 MR. BOYER: I have just one thing on the

20 record, February 14th I'm starting a two-week trial,

21 so we're going to be working around that.

22 (Which were all the proceedings

23 had in the above-entitled cause

24 on this date.)

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1 STATE OF ILLINOIS )

) SS:

2 COUNTY OF C O O K )

5 JUDITH T. LEPORE, being first duly sworn on

6 oath says that she is a court reporter doing business

7 in the City of Chicago; that she reported in shorthand

8 the proceedings given at the taking of said motion and

9 that the foregoing is a true and correct transcript of

10 her shorthand notes so taken as aforesaid and contains

11 all the proceedings given at said motion.

12 Witness my official signature on this 16th

13 of December, A.D., 2013.

14

15 ______________________

JUDITH T. LEPORE, CSR

16

17 License No.: 084-004040

18

19

20

21

22

23

24

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1
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2
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McCorkle Litigation Services, Inc.


Chicago, Illinois (312) 263-0052
4
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8:23 12:17 14:9,11 50:17 53:19 particular

McCorkle Litigation Services, Inc.


Chicago, Illinois (312) 263-0052
5
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McCorkle Litigation Services, Inc.


Chicago, Illinois (312) 263-0052
6
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McCorkle Litigation Services, Inc.


Chicago, Illinois (312) 263-0052
7
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McCorkle Litigation Services, Inc.


Chicago, Illinois (312) 263-0052