21 Fla. L. Weekly Supp. 938a
Online Reference: FLWSUPP 2109DURRInsurance — Personal injury protection — Discovery — Depositions — Managing member of medical provider’s limited liability company is required to submit to deposition despite not having provided treatment to insured where deposition testimony is related to issues raised by insurer’s defense that provider has engaged in fraudulent billing and fabrication of medical records — No merit to argument that deposition would unduly burden and inconvenience managing member — Provider’s offer to present chief operating officer for deposition does not preclude deposition of managing member
HESS SPINAL & MEDICAL CENTERS OF LAKELAND, P.L. as assignee of Rillar Durr, Plaintiff, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 10th Judicial Circuit in and for Polk County. Case No. 2012CC-004403-0000-00. May 2, 2014. Honorable Kevin J. Abdoney, Judge. Counsel: Daniel Crotta, Pardy & Rodriguez, P.A., Orlando, for Plaintiff. Jarod L. Gilbert, Andrews & Manno, P.A., Tampa, for Defendant.
ORDER DENYING PLAINTIFF’S MOTION FOR PROTECTIVE ORDER AND OVERRULING PLAINTIFF’S OBJECTION TO SUBPOENA DUCES TECUM FOR DEPOSITION
THIS CAUSE having come before this Court on Plaintiff’s “Objection to Subpoena Duces Tecum for Deposition and Motion for Protective Order” on April 25, 2014, and the Court having considered the Motion, and otherwise having been advised, finds the following:
This is a Personal Injury Protection (“PIP”) case involving the above captioned parties. In an Amended Statement of Claim, Hess Spinal & Medical Centers of Lakeland, P.L. (“Plaintiff”) has alleged, inter alia, that State Farm Mutual Automobile Insurance Company (“Defendant”) has failed to timely pay PIP benefits in accordance with Fla. Stat. §627.736 and the contract of insurance. In response, Defendant has denied the material allegations in Plaintiff’s Amended Statement of Claim and has asserted four affirmative defenses.
On or about October 24, 2013, Defendant served its Request for Production, Interrogatories, and Request for Admissions to Plaintiff. In addition, on March 11, 2014, Defendant served a Notice of Taking Deposition Duces Tecum to Plaintiff. Said notice was for the managing member of Plaintiff’s limited liability company, Dr. Stephen T. Hess.1 Dr. Hess was also served with a subpoena through a person authorized to accept service on March 21, 2014. No other discovery has been propounded on Plaintiff by Defendant.
Prior to Dr. Hess’ scheduled deposition, Plaintiff filed and served its “Objection to Subpoena Duces Tecum for Deposition and Motion for Protective Order.” Within said motion, Plaintiff has alleged that Dr. Hess did not provide treatment to the purported assignor, Rillar Durr, and that he would not “have any information that would be germain or relevant to her care and treatment at [Plaintiff’s facility].” Plaintiff further alleged that Defendant’s subpoena was served to “harass, unduly burden and inconvenience Dr. Hess,” and that his attendance “would create an unreasonable burden upon him and his profession and would amount to a complete waste of time.” These arguments were reiterated by Plaintiff’s counsel at the hearing on Plaintiff’s motion.
In rebuttal, counsel for Defendant argued that the deposition of Dr. Hess is relevant and allowable based on the facts of this case as framed by the pleadings. Specifically, counsel for Defendant pointed out that Defendant’s Second Affirmative Defense alleges, inter alia, “[t]hat the Plaintiff has submitted medical records/bills which contain billing for services not rendered, fabricated medical records, and/or up-coding, and as such, the bills at issue are false, misleading and patently deceptive. . .” Defendant’s position was that as owner of Hess Spinal & Medical Centers of Lakeland, P.L., Dr. Hess’ testimony was, at a minimum, reasonably calculated to lead to the discovery of admissible evidence because he would have the final say on billing practices, personnel decisions, procedures and policies, etc. This Court agrees.Analysis
Discovery in civil cases must be relevant to the subject matter of the case and must be admissible or reasonably calculated to lead to admissible evidence. Board of Trustees of the Internal Improvement Trust Fund v. American Educational Enterprises, LLC, 99 So.3d 450, 457 (Fla. 2012) [37 Fla. L. Weekly S589a]. The concept of relevancy has a much wider application in the discovery context then in the context of admissible evidence at trial. Id. It is well-settled that information sought in discovery must relate to the issues involved in the litigation as framed by the pleadings. Id.
In this case, Defendant has asserted a defense that Plaintiff has engaged in various unlawful practices such as fraudulent billing and fabricating medical records. Clearly, the testimony of the Plaintiff’s owner, Dr. Hess, is related to the issues of this case as framed by the pleadings. Even if it is determined that Dr. Hess does not have specific information regarding the treatment of the purported assignor in this case, he would, at least in theory, be able to provide information that is reasonably calculated to lead to the discovery of admissible evidence.
Plaintiff has asserted that the deposition of Dr. Hess would unduly burden and inconvenience Dr. Hess. Legally, these assertions lack merit. Plaintiff sued Defendant. The law does not allow a business’s owner to avoid having his deposition taken simply because it is inconvenient. See Plantation-Simon, Inc., et al. v. Bahloul, 596 So.2d 1159 (Fla. 4th DCA 1992) (holding that the corporate president of the named Plaintiff cannot avoid his deposition because it is inconvenient or burdensome; a party has the right to take a deposition of an officer, director, or managing agent of a corporation already named and served as a party by simple notice). Furthermore, Plaintiff has not presented sufficient evidence on how Dr. Hess and/or his company will be unduly burdened by the noticed deposition. See Faircloth v. Bliss, 917 So.2d 1005, 1007 (Fla. 4th DCA 2006) [31 Fla. L. Weekly D133a] (“[u]nsworn statements by attorneys are usually not considered as evidence by trial courts unless stipulated to by both parties.”)
Lastly, it should be noted that counsel for Plaintiff has offered to present the Chief Operating Officer of Plaintiff for deposition. However, there has been insufficient evidence to conclude that said person is any more knowledgeable than Dr. Hess. In fact, as of the date of the hearing on Plaintiff’s Motion for a Protective Order, Plaintiff has yet to respond to Defendant’s discovery. Additionally, there have been no affidavits filed on behalf of Plaintiff. As such, based on the issues in this case as framed by the pleadings and the evidence presented thus far, there are no legal obstacles preventing Defendant from taking both depositions. See, e.g., Blessing Rehab Center, Inc. (a/a/o Sydney Edmond) v. Allstate Indemnity Company, 20 Fla. L. Weekly Supp. 1039a (Fla. 9th Jud. Cir. App. Ct. 2013).
Based upon the foregoing, it is ORDERED AND ADJUDGED that Plaintiff’s “Objection to Subpoena Duces Tecum for Deposition and Motion for Protective Order” is hereby overruled and DENIED.
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1The deposition of Dr. Hess is scheduled for April 30, 2014.
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