04/24/2014
A judge limits the request. Her lawyer says it’s likely an attempt to portray the Maine CDC employee as unstable.
Lawyers for the state tried to obtain more than five years of medical records and the names of doctors, psychiatrists and psychologists who saw a former state employee who has filed a whistleblower lawsuit over the shredding of public records by the Maine Center for Disease Control and Prevention.
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Former Maine Center for Disease Control and Prevention employee Sharon Leahy-Lind has filed a lawsuit claiming that her former superiors ordered her to shred documents related to grant awards, and that she was bullied and harassed when she refused. A judge Wednesday denied the state’s request for some of her medical records, saying they were irrelevant to the case. Leahy-Lind’s lawyer said the state is trying to make her client appear to be unstable.
Eric Russell/staff writer
RELATED HEADLINES
The attorney for Sharon Leahy-Lind said Wednesday that the Department of Health and Human Services’ request was overly broad and intrusive, and likely foreshadows attempts to portray her client as unstable.
Leahy-Lind, former director of the CDC’s Division of Local Public Health, is the plaintiff in a lawsuit that’s in preliminary proceedings in U.S. District Court in Portland. She has alleged in court documents, and in sworn testimony before a legislative committee, that supervisors including CDC Director Sheila Pinette bullied and harassed her, and caused her emotional distress when she refused orders to destroy documents that were used to justify $4.7 million in public health grants.
In March, the court-appointed attorneys for the DHHS requested, through a discovery motion, documents related to Leahy-Lind’s health history. The request included the name of every physician, psychiatrist, psychologist, social worker and health care provider that Leahy-Lind had seen since 2008.
The attorneys also asked for all health-related expenses that Leahy-Lind had incurred since 2012, the year she made her allegations public but before she filed the federal lawsuit on Oct. 21, 2013.
The DHHS attorneys also requested all documents related to physical or emotional impairment that Leahy-Lind has claimed since 2008.
RECORDS REQUEST NARROWED
On Tuesday, John H. Rich III, a federal magistrate judge, denied many of the requests, including Leahy-Lind’s health expenses since 2012 and her insurance or benefit applications since 2008. Rich ruled both irrelevant to the case.
He ordered Leahy-Lind to comply with a narrower request to show any physical or emotional ailments since 2011, and to provide corresponding medical and mental health records. He also ordered her to disclose the names of physicians, psychiatrists and psychologists she has seen since 2011.
Rich wrote that the records are appropriate because Leahy-Lind claims emotional distress in her complaint against her former CDC supervisors.
Cynthia Dill, the attorney for Leahy-Lind, said the ruling was fair and struck an appropriate balance between protecting her client’s confidential medical records and satisfying the discovery request for the defendants.
Dill said the initial request was overly broad because Leahy-Lind isn’t seeking extraordinary damages or alleging permanent emotional distress. She said the request signals an attempt to “poke holes” in Leahy-Lind’s credibility.
“I expect that they are going to claim that my client is unstable,” Dill said. “I believe they’re going to argue that these problems – the unlawful order to destroy public documents and the harassment that my client suffered – was not something that they did, but somehow the fault of my client.
“Unfortunately, this is nothing new in cases in which individuals, especially women, come forward with harassment claims against their employers,” Dill said.
She said Leahy-Lind has not seen a psychiatrist or a psychologist.
“My client has nothing to hide,” Dill said. “We believe that the court order is a reasonable request that protects her confidential medical records.”
Attorneys for Fisher and Phillips of Portland, the court-appointed law firm that’s defending the DHHS, did not respond to a request for comment. Fisher and Phillips specializes in labor and employment law and has offices in several states.
The DHHS, which oversees the CDC, hired Fisher and Phillips after two lawyers in the Maine Attorney General’s Office who were defending the CDC asked to withdraw from the case, citing an unexpected development.
The specific reason for the withdrawal is confidential, but it has raised questions about whether criminal charges are forthcoming or whether there was a breach in the firewall between state attorneys defending the CDC and attorneys considering prosecution.
In court documents, the Fisher and Phillips attorneys argued that the request for Leahy-Lind’s medical history and other documents was relevant to the defense against allegations that Lisa Sockabasin, director of the CDC’s Office of Health Equity, had described Leahy-Lind as “crazy” to a public health official who was evaluating cultural issues in the CDC.
In Leahy-Lind’s initial complaint, Dill alleged that the comment was “part of a larger plan to undermine Sharon’s credibility in the public health community and push her out of the CDC” because she had refused to do something illegal.
LEGISLATIVE TESTIMONY
The discovery request by the DHHS is the latest development in a controversy that has reached the Legislature.
In March, the Government Oversight Committee heard sworn testimony from Pinette, Sockabasin and three other CDC officials. Each had been subpoenaed by the committee after a legislative watchdog agency found strong evidence that CDC officials including Christine Zukas, the deputy director, had ordered the destruction of documents used to determine the grants in the Maine Healthy Partnerships Program, and that the selection process had been manipulated when supervisors were unhappy with the original results.
The records destruction coincided with a request for information by the Sun Journal of Lewiston under the Maine Freedom of Access Act. It’s not clear from testimony whether the request precipitated the CDC’s actions.
Zukas, who admitted to destroying grant documents, implicated Pinette in the decision to manipulate the grant awards.
The legislative testimony may become part of the lawsuit, in which Pinette, Zukas and Sockabasin are defendants. Attorneys for Pinette and Sockabasin have filed motions to dismiss their clients as defendants. The court has not ruled on dismissals, but Dill said she expects a decision soon. She said that even if the court removes Sockabasin and Pinette as individual defendants, it will have no effect on the lawsuit against the DHHS.
The Government Oversight Committee will meet again on May 14, when it may get an update from its watchdog agency.
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