13 Fla. L. Weekly Supp. 370a
Insurance — Personal injury protection — Discovery — Documents relative to chiropractor who performed independent medical examination of insured and information relative to the relationship between the insurer and the third-party vendor which directly retained this chiropractor to perform IME are clearly discoverable where it is clear that insurer justified reduction of benefits in this case based on IME report — Although information sought may not be in direct possession of insurer, insurer has burden of obtaining the information from the expert it relied upon in making coverage decisions
RHODES AND ANDERSON D.C. P.A. d/b/a VENICE CHIROPRACTIC CENTER (a/a/o IRENA DYNDUL), Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 12th Judicial Circuit in and for Sarasota County, South County. Case No. 2005 SC 1960 SC. December 29, 2005. Kimberly C. Bonner, Judge. Counsel: Virlyn B. Moore, III, Venice, for Plaintiff. Philip A. Friedman, Ramey, Ramey & Kampf, P.A., for Defendant.
[Editor’s note: see 13 Fla. L. Weekly Supp. 903a]
ORDER ON PLAINTIFF’S AND DEFENDANT’S MOTION TO COMPEL
This cause came on for hearing on the above referenced motions. This case involves disputed medical bills under the Personal Injury Protection (PIP) coverage of the Plaintiff’s assignor. The amended complaint alleges that the Plaintiff’s assignor was involved in an automobile accident on August 12, 2003 and thereafter received medical treatment from the Plaintiff. These treatments were billed to the Defendant and the complaint alleges that the Defendant breached its contract by reducing payment on a bill in the amount of $236.80. The court has previously denied Defendant’s Motion to Dismiss the amended complaint. After consideration of the arguments of counsel and the applicable authorities, the court finds as follows:
PLAINTIFF’S MOTION TO COMPEL: The Plaintiff seeks information relevant to the chiropractor, Dr. Howard Hochman, who performed an independent medical examination of its assignor on June 12, 2004. In answers to interrogatories dated July 29, 2005, Defendant acknowledges that it relied upon Dr. Hochman’s findings in reducing the bills at issue in this case.
A third party vendor, Medical Services Consultants, directly retained Dr. Hochman to perform this IME. The Defendant asserted at the various hearings on this matter that it uses MSC in this fashion so it has no direct involvement in hiring a particular doctor. The Plaintiff seeks discovery of documents relative to both the chiropractor who performed the examination under the PIP coverage as well as information relative to the relationship between the Defendant and this third party vendor. The Defendant asserted at the hearing that the information relative to MSC constitutes a “trade secret” because the various vendors that provide these types of services to insurance companies do so at varying prices and include a non-disclosure agreement in their contracts. No representative of MSC appeared at the hearing to assert any trade secret privilege on its behalf.
The information requested by the Plaintiff is clearly discoverable. See Allstate Insurance Co. v. Boecher, 733 So. 2d 993 (Fla. 1999). Despite the Defendant’s characterization of the IME examiner as a mere “fact witness” and not a defense expert, it is clear that the Defendant justified the reduction of benefits in this case based on the IME report. It is of no import that the Defendant uses a third party to create an impression of an arms length transaction: both the potential bias of the third party as well as the person performing an IME can be explored in discovery. The Defendant’s efforts to distance itself from the IME provider is, at best, disingenuous. See Southern Diagnostic Associates v. Bencosme, 833 So. 2d 801 (Fla. 3rd DCA 2002) (insurer cannot shield itself from inquiries about its relationship with IME physicians by using third parties to arrange and pay for the IME).
With regard to the IME provider, the parties agree generally that information concerning Dr. Hochman’s compensation and/or potential bias would be subject to discovery under Boecher. The primary dispute concerns which party bears the burden of retrieving this information. The Defendant asserts that the items sought in the peer review/expert interrogatories are not in their possession or control, and that the Plaintiff should simply send third party discovery requests to the witness. Because the Defendant disavows this provider as their retained expert, it urges the court to place the burden of obtaining the information directly from the physician on the Plaintiff.
Although the Plaintiff concedes that the information sought may not be in the direct possession of the Defendant, he asserts that it is reasonable to place the burden on the defendant to obtain the information from the expert it relied upon in making coverage decisions.
In light of the court’s finding above that the Defendant cannot disavow Dr. Hochman as their expert witness, it appears that the Plaintiff’s assessment of the burden is correct. In Boecher, the Florida Supreme Court held that information on the frequency of an expert’s testimony and payments to the expert may be discovered from the insurer. Boecher, at998, 999 (emphasis added). Although an insurer cannot be required to create documents that do not exist or to otherwise create lists, that issue does not arise in this case. Rather, the Defendant simply refused to provide the information and instead instructed the Plaintiff to obtain the information elsewhere.
The court therefore GRANTS the Plaintiff’s Motion to Compel responses to Plaintiff’s Interrogatories 4, 5, 6, 9, 12, and 14 and also GRANTS the Plaintiff’s Motion to Compel answers to peer review interrogatories. The Defendant shall provide answers within 30 days.
With regard to the interrogatories relating to the relationship between MSC and the Defendant, the court is mindful that where a trade secret is alleged, the court should place appropriate parameters to avoid any irreparable harm. In reviewing the discovery requests, it does not appear that any of the interrogatories would require disclosure of a trade secret. C.f. Southern Diagnostic Associates v. Bencosme, 833 So. 2d 801, 803 (Fla. 3rd DCA 2002) (discover order permitting inspection of computer system was overly broad). The bare allegation that MSC’s pricing system is subject to a nondisclosure agreement does not persuade the court that the prices or compensation received from the Defendant constitute a trade secret. Moreover, a party cannot simply contract away its obligations to provide discovery under the Florida Rules of Civil Procedure.
DEFENDANT’S MOTION TO COMPEL: Finally, an issue has arisen as to a VHS tape requested by the Defendant from the Plaintiff. Although the Plaintiff can reproduce this tape, the original contains information concerning other patients, and the Defendant insists that it must have a data in its raw form. The Plaintiff asserted at the hearing that it would take him approximately three hours to copy only those portions of the tape pertaining to the assignor. The Plaintiff indicates that this process will cost approximately $1,280. The Plaintiff’s time, albeit valuable as a medical provider, is not compensable because he is a party to this action.
The court does have discretion to order the posting of a bond when the costs of responding to discovery would be unreasonable or unduly burdensome. Allstate Insurance Co. v. Hodges, 855 So. 2d 636, 642 (Fla. 2d DCA 2003). In the present case, there is an insufficient record demonstrating the need for a bond to be posted prior to the Plaintiff providing the requested documentation. The Plaintiff’s request for a bond is denied and he is ordered to produce the requested documentation within 30 days from the date of this order.
At this time, the court declines to enter sanctions against the Defendant.
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