22 Fla. L. Weekly Supp. 1097b
Online Reference: FLWSUPP 2209DIXOInsurance — Personal injury protection — Discovery — Depositions — Scope of deposition of medical provider’s corporate representative is limited to areas of inquiry and questions not already asked and answered in deposition taken by different law firm representing insurer in separate action between same parties — Areas of inquiry and documents to be produced at deposition are established
HEALTH DIAGNOSTICS OF MIAMI, LLC, d/b/a STAND-UP MRI OF MIAMI, a/a/o Tawana Dixon, Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. CONO13-009964(70). March 20, 2015. Honorable John D. Fry, Judge. Counsel: Travis L. Stock, Weinstein Law Firm, Coral Springs, for Plaintiff. Kyle Mixson, Matt Hellman, P.A., Plantation, for Defendant.
ORDER GRANTING, IN PART, PLAINTIFF’SAMENDED MOTION FOR PROTECTIVEORDER REGARDING DEPOSITION OF PLAINTIFF’S1.310(b)(6) CORPORATE DESIGNEE
THIS CAUSE having come on to be heard on March 06, 2015, on Plaintiff’s Amended Motion for Protective Order Regarding Deposition of Plaintiff’s 1.310(b)(6) Corporate Designee and the Court having heard argument of counsel, having reviewed the Court file, and being otherwise advised in the Premises, it is hereupon ORDERED AND ADJUDGED as follows:
1. This small claims lawsuit, which was filed on September 01, 2013, arises out of a claim for unpaid personal injury protection benefits in the amount of $314.45.
2. In the case at bar, the Defendant set the deposition of Plaintiff’s Corporate Representative, pursuant to rule 1.310(b)(6), to take place on March 09, 2015.
3. Plaintiff filed a motion for protective order attempting to prevent this deposition based on the fact that Defendant, through a different law firm, already deposed Plaintiff’s corporate representative on October 21, 2014, for over an hour in the case of Health Diagnostics of Fort Lauderdale, LLC (a/a/o Allan Nauth) v. State Farm Mutual Automobile Insurance Company, Case No. CONO12-10932(73).
4. It is well settled in Florida that a party may file a motion for protective order to prevent disclosure of information that is beyond the scope of discovery,1 and that trial courts have broad discretion in controlling discovery and in issuing protective orders.2
5. In moving for a protective order, Plaintiff relied upon rule 1.280(c) of the Florida Rules of Civil Procedure, which provides, in pertinent part, as follows:
Upon motion by a party . . . and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; . . . (7) that a trade secret or other confidential research, development, or commercial information not be disclosed . . . .
6. At the hearing, Plaintiff argued that Defendant has already asked, and received answers to, the same or similar questions that Defendant is attempting to ask again in this case and that Defendant’s continuous conduct of attempting to set depositions in multiple cases that involve the same or similar issues is unnecessary, cumulative, and harassing.
7. Although the Court is allowing Defendant to take another deposition of Plaintiff’s corporate representative, the Court agrees with Plaintiff’s position and is therefore limiting the scope of the deposition to those areas of inquiry and questions that have not already been asked and answered in the deposition that was taken on October 21, 2014 and that are relevant or capable of leading to the discovery of admissible evidence.
8. Furthermore, the Defendant is cautioned that if questions are asked or areas are inquired into at the deposition that were already asked or inquired into at the deposition on October 21, 2014, Plaintiff’s counsel can object to those questions, instruct Plaintiff’s corporate representative not to answer those questions, and there will be sanctions imposed on the Defendant for violating this Court’s order.
9. Plaintiff also moved for a protective order and raised multiple objections regarding the areas of inquiry and duces tecum requests set forth in Defendant’s Notice of Taking Deposition Duces Tecum, which the Court addresses individually below.
10. When determining whether a matter is discoverable, the Court is guided by Rule 1.280(b)(1) of the Florida Rules of Civil Procedure, which provides as follows:
Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. (Emphasis added).
11. The issues in a lawsuit are framed by the pleadings and in a lawsuit for unpaid personal injury protection benefits, the issues are typically whether any of the services are related to the accident at issue, whether any of the services are medically necessary, and whether the charges for the services are reasonable.
12. This Court will not allow a party to expand the parameters of rule 1.280 by allowing a party to use the discovery process to engage in a “fishing expedition”.3
13. With this general foundation, the Court will now consider and rule upon each area of inquiry and duces tecum request separately.
Areas of Inquiry:
14. “Billing and collections procedures and including all tools, software, and practices of Plaintiff.”
a. Plaintiff’s objection is sustained since this information is neither relevant to the subject matter of the pending action, nor reasonably calculated to lead to the discovery of admissible evidence.
15. “Pricing of services and how derived including all factors and sources of information used to determine Plaintiff’s charges for the Procedure Code(s) at issue in this litigation.”
a. Plaintiff’s objection is sustained. The issue in a lawsuit for unpaid personal injury protection benefits is whether the charge, regardless of how it was set, is reasonable. As such, this information is neither relevant to the subject matter of the pending action, nor reasonably calculated to lead to the discovery of admissible evidence.
16. “Plaintiff’s agreement(s) with any Payor, in effect from 6 months before the first date of service at issue through 6 months after the last date of service at issue. Inquiry will be as to the effective dates of any such agreement(s), the parties to said agreement(s), and all amounts Plaintiff accepted from each such Payor for the Procedure Code(s) at issue. Payor means any individual or entity to which Plaintiff submitted medical bills for payment or reimbursement.”
a. Plaintiff’s objection is sustained. The agreements that Defendant is seeking are confidential, trade secret, and proprietary and State Farm was unable to demonstrate a reasonable necessity for the documents that outweighs Plaintiff’s interest in maintaining the confidentiality of its trade secrets.4
b. Additionally, this information is neither relevant to the subject matter of the pending action, nor reasonably calculated to lead to the discovery of admissible evidence.5
17. “All Reimbursement amounts accepted by Plaintiff from any individual or entity for the Procedure Code(s) at issue from 6 months before the first date of service at issue through 6 months after the last date of service at issue.”
a. Plaintiff’s objection is sustained, in part, for the reasons set forth in Paragraph 16 above. However, Defendant may inquire into the range of reimbursement amounts accepted by Plaintiff for self-pay patients.
18. “Composition of Plaintiff’s business for the year(s) in which the services/ treatment at issue were performed. Specific inquiry will be as to the percentages, total income, and profit for Plaintiff’s business comprised of medical services paid by the following categories of payers: Self-Pay patients, Health Insurance carriers (including HMOs, disability insurers, PPOs, and EPOs), Discount Medical Plan Organizations and their members, Federal agencies (excluding Medicare), Medicare, State agencies, Worker’s Compensation carriers, automobile insurers (i.e. Personal Injury Protection and Medical payments Coverage).”
a. Plaintiff’s objection is sustained, in part. Defendant may inquire into what percentage of Plaintiff’s business is comprised of medical services paid by self-pay patients. As to everything else in this area of inquiry, the Court finds that the information sought is neither relevant to the subject matter of the pending action, nor reasonably calculated to lead to the discovery of admissible evidence.
19. “Plaintiff’s profit margin and cost for each Procedure Code at issue in this litigation.”
a. Plaintiff’s objection is sustained since the information sought is neither relevant to the subject matter of the pending action, nor reasonably calculated to lead to the discovery of admissible evidence.
20. “Collection and receipt of the named assignor/patient’s 20% co-payment for the services at issue.”
a. Plaintiff’s objection is sustained since the information sought is neither relevant to the subject matter of the pending action, nor reasonably calculated to lead to the discovery of admissible evidence.6
21. “The strength, make, model, and year of any diagnostic imaging equipment used to perform the treatment or services for the named assignor/patient which were reviewed, taken, or ordered by Plaintiff.”
a. Plaintiff’s objection is sustained since the information sought is neither relevant to the subject matter of the pending action, nor reasonably calculated to lead to the discovery of admissible evidence.
22. “Personnel employed by Plaintiff or independent contractors who were present at the time of treatment or services were provided to the patient at issue, or who were in any way involved in the treatment or care of the patient.”
a. Plaintiff’s objection is sustained, in part. Defendant may inquire into whom the technician was that was present in the room when the MRI was conducted. As to everything else in this area of inquiry, the Court finds that the information sought is neither relevant to the subject matter of the pending action, nor reasonably calculated to lead to the discovery of admissible evidence.
23. “All health care provider Licensing and Certifications and Approvals for Plaintiff, its employees, and independent contractors.”
a. Plaintiff’s objection is sustained since the information sought is neither relevant to the subject matter of the pending action, nor reasonably calculated to lead to the discovery of admissible evidence.
Duces Tecum Requests:
24. “Copies of all agreements and contracts between Plaintiff and any Health Insurance company (including but not limited to HMOs, disability insurers, PPOs, and EPOs), any Discount Medical Plan Organization, any Federal agencies including Medicare, any State agency, any Worker’s Compensation carrier, any automobile insurer, relating to the reimbursement for medical treatment or services in the State of Florida and in effect at any point from 2007 to the present.”
a. Plaintiff’s objection is sustained for the reasons set forth in paragraph 16 above.
25. “Copies of any and all documents used by the Plaintiff to set charges for treatment and services at issue in this case.”
a. Plaintiff’s objection is sustained for the reasons set forth in paragraph 15 above.
26. “Documents showing the reimbursement amounts accepted by the Plaintiff from Medicare, Medicaid, self-pay patients, any Workman’s Compensation carrier, and any Insurance company, Healthcare Management Organization (“HMO”), or Preferred Provider Organization (“PPO”) for the same CPT codes at issue from 6 months before the first date of service at issue through 6 months after the last date of service at issue.”
a. Plaintiff’s objection is sustained, in part. In addition to the reasons set forth in paragraph 16 above, the Court further finds that Plaintiff is not permitted to redact patient names and cannot provide copies of the requested documents to the Defendant as it would violate the privacy of the patients unrelated to this case.7 However, as it relates to self-pay patients, Plaintiff is permitted to provide a matrix demonstrating the range of reimbursement accepted for self-pay patients for the same services at issue in this lawsuit.
27. Plaintiff made no objection to duces tecum requests 1, 3, 5, 7, and 8.
28. For the reasons set forth above, Plaintiff’s motion is granted, in part, and it is hereby ordered that this deposition take place within 45 days from the date of this order.
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1See e.g., Diaz-Verson v. Walbridge Aldinger Co., 54 So. 3d 1007, 1011 (Fla. 2d DCA 2010) [36 Fla. L. Weekly D26b] (holding that the trial court departed from the essential requirements of law in denying plaintiff’s motion for protective order when information sought was not relevant to any issue raised by the pleadings); Peisach v. Antuna, 539 So. 2d 544 (Fla. 3d DCA 1989).
2See e.g., Rasmussen v. S. Florida Blood Serv., Inc., 500 So. 2d 533, 535 (Fla. 1987); Katzman v. Rediron Fabrication, Inc., 76 So. 3d 1060, 1065 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1747a]; Florida Highway Patrol v. Bejarano, 137 So. 3d 619 (Fla. 1st DCA 2014) [39 Fla. L. Weekly D974b].
3See e.g., General Electric Capital Corp. v. Nunziata, Case No. 2D13-422 (Fla. 2d DCA 2013) [38 Fla. L. Weekly D1719c] (stating that a “subpoena duces tecum is not the equivalent of a search warrant and should not be used as a fishing expedition to require a witness to produce broad categories of documents which the party can search to find what may be wanted.”); Toledo v. Publix Super Markets, Inc., 30 So. 3d 712 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D747a] (reasoning that curiosity about the contents of a file does not satisfy the relevancy requirement.); Allstate Ins. Co. v. Langston, 655 So. 2d 91 (Fla. 1995) [20 Fla. L. Weekly S217a].
4See e.g., Laser Spine Institute, LLC v. Greer, 144 So. 3d 633 (Fla. 1st DCA 2014) [39 Fla. L. Weekly D1671a]; Millennium Radiology, LLC, d/b/a Millennium Open MRI (a/a/o Mary Butler) v. State Farm Fire and Casualty Co., Case No. CONO13-008891 (Fla. Broward Cty. Ct. 2014) [21 Fla. L. Weekly Supp. 811a].
5See, e.g., Pan Am Diagnostic Services, Inc. d/b/a Wide Open MRI (a/a/o Svetlana Pimanova) v. State Farm Mut. Auto. Ins. Co., Case No. CONO13-012923 (Fla. Broward Cty. Ct. 2014) [22 Fla. L. Weekly Supp. 650a] (Judge DeLuca reasoned that reasonableness is a range and the “fact that Medicare, Workers Compensation, etc., allows less than the amount billed by the Plaintiff in this case, by itself, is not sufficient to create a triable issue that the Plaintiff’s charge was unreasonable.”); Millennium Radiology, LLC, d/b/a Millennium Open MRI (a/a/o Mary Butler) v. State Farm Fire and Casualty Co., Case No. CONO13-008891 (Fla. Broward Cty. Ct. 2014) [21 Fla. L. Weekly Supp. 811a] (this Court reasoned that “negotiated rate contracts the Plaintiff may have with other insurers are not relevant to a determination of what price State Farm must pay the Plaintiff for its services in this case.”); Palms MRI Diagnostic Imaging Centers, Inc. (a/a/o Frank Sirker) v. State Farm Mut. Auto. Ins. Co., Case No. CONO 11-14717(71) (Fla. Broward Cty. Ct. 2014) [22 Fla. L. Weekly Supp. 393b](Judge Schiff reasoned that “negotiated rate contracts the Plaintiff may have with other insurers are simply not relevant to a determination of what price State Farm must pay the Plaintiff for its services in this case.”); Quantum Imaging Holdings, LLC (a/a/o Gerome Baptelmy) v. United Auto. Ins. Co., 22 Fla. L. Weekly Supp. 142a (Fla. Broward Cty. Ct. 2014)(Judge Skolnik reasoned that “evidence of health insurance contracts and the contracted rate are not relevant in PIP.”); Tri-County Accident Clinic, LLC (a/a/o Spencer Kermisch) v. State Farm Mut. Auto. Ins. Co., 22 Fla. L. Weekly Supp. 644a (Fla. Broward Cty. Ct. 2014)(Judge Dishowitz reasoned that “because the amount paid by an insurer subject to a negotiated rate contract has no bearing on a provider’s reasonable charge the Defendant’s request for information concerning HMO and PPO contracts is irrelevant.”); Physicians Medical Centers, Jax., Inc. (a/a/o Janice Bowman) v. Star Casualty Ins. Co., Case No. 16-2014-SC-1660 (Fla. Duval Cty. Ct. 2015)(Judge Floyd reasoned that “reimbursement rates from HMO/PPO contracts and co-pays from patients have nothing to do with the reasonableness of the charge. To the contrary, the reimbursement is agreed to between the parties irrespective of the charge. Therefore, seeking this information is not reasonably calculated to lead to relevant evidence that would assist a trier of fact and is not discoverable.”).
6See e.g., Tri-County Accident Clinic, LLC (a/a/o Spencer Kermisch) v. State Farm Mut. Auto. Ins. Co., 22 Fla. L. Weekly Supp. 644a (Fla. Broward Cty. Ct. 2014)(Judge Dishowitz reasoned that this category bears “no relationship to the issues raised in this case as framed by the pleadings.”); Physicians Medical Centers, Jax., Inc. (a/a/o Janice Bowman) v. Star Casualty Ins. Co., Case No. 16-2014-SC-1660 (Fla. Duval Cty. Ct. 2015)(Judge Floyd reasoned that “whether Plaintiff has collected co-payments or deductibles from other patients is similarly irrelevant as to the determination of whether the Plaintiff’s charges are reasonable.”); Pompano Beach Pain & Rehabilitation, Inc. (a/a/o Felix Guzman) v. State Farm Mut. Auto. Ins. Co., 22 Fla. L. Weekly Supp. 375a (Fla. Miami-Dade Cty. Ct. 2014)(Judge King reasoned that “whether Plaintiff has collected co-payments or deductibles from other patients is similarly irrelevant and immaterial as to the determination of whether Plaintiff’s charges are reasonable.”).
7See State Farm Mut. Auto. Ins. Co. v. Eunice J. Park, D.C., P.A., 21 Fla. L. Weekly Supp. 132a (Fla. 17th Cir. Ct. (Appellate) 2013); Millennium Radiology, LLC, d/b/a Millennium Open MRI (a/a/o Mary Butler) v. State Farm Fire and Casualty Co., Case No. CONO13-008891 (Fla. Broward Cty. Ct. 2014) [21 Fla. L. Weekly Supp. 811a]; Fla. Stat. § 456.057; Graham v. Dacheikh, 991 So.2d 932 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D2015a].
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