Crespo v. Home Depot United Statesa., Inc., CASE NO. 16-60086-CIV-COHN/SELTZER

• Decision Date: 15 July 2016
• Docket Number: CASE NO. 16-60086-CIV-COHN/SELTZER
• Parties: JOSUE G. ALVAREZ CRESPO, Plaintiff, v. HOME DEPOT U.S.A., INC., Defendant.
• Court: U.S. District Court — Southern District of Florida

JOSUE G. ALVAREZ CRESPO, Plaintiff, v. HOME DEPOT U.S.A., INC., Defendant.

CASE NO. 16-60086-CIV-COHN/SELTZER

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

July 15, 2016

ORDER

THIS CAUSE has come before the Court upon Prestige Orthopedics, LLC d/b/a Whitesands Orthopedics ("Whitesands") Motion to Quash and/or Motion for Protective Order [DE 23] and Thomas Roush, M.D./Columna, Inc.'s ("Columna") Motion for Protective Order and/or to Quash Subpoena Duces Tecum for Deposition [DE 33]. The Court heard argument of counsel at a hearing on July 13, 2016.

Whitesands and Columna are not parties to this action; they are medical providers who provided medical care and treatment to Plaintiff for injuries that are the subject of this litigation.¹ Specifically, Whitesands provided treatment through Dr. Merrill Reutter and Columna provided treatment through Dr. Thomas Roush. Reutter and Roush are expected to testify at trial.

Both motions address subpoenas duces tecum served by Defendant, Home Depot U.S.A., Inc. ("Home Depot"), pursuant to Fed. R. Civ. P. 30(b)(6). The subpoenas requestthree categories of documents and identify ten areas of inquiry of the corporate designee(s), largely pertaining to the medical providers' corporate, financial, and billing practices. The non-party medical providers object to both the production of documents and areas of inquiry on the following grounds: the information requested is overbroad, burdensome, harassing, and irrelevant to the medical care and treatment provided to Plaintiff; it is not calculated to lead to the discovery of admissible evidence; it infringes upon the privacy rights of both the medical providers and other patients; it involves trade secrets of the medical providers; and it exceeds the limits of expert witness discovery permitted under Florida law, specifically Fla. R. Civ. P. 1.280(b)(5).

At the outset, the Court notes that although the parties have briefed the issues solely in reference to Florida law, the Federal Rules of Civil Procedure govern discovery in diversity cases. Walker v. Armco Steel Corp., 446 U.S. 740, 745 (1980); Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1980). As one district court judge noted, "It is rare that a Federal Rule would not cover the situation of a discovery matter. 'State law is of very little relevance to discovery in a federal action.'" Ward v. Estaleiro Itajai S/A, 541 F. Supp. 2d 1344, 1348 (S.D. Fla. 2008)(quoting 8 Wright, Miller & Marcus, Federal Practice and Procedure, Civil 2d § 2005 (1994)). These issues, therefore, must be considered in light of the federal discovery rules, in particular Rule 26(b)(1):

Scope in General. Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether theburden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). Nevertheless, the Court finds that the Florida cases are relevant and helpful in its analysis of the proper scope of discovery.

Discovery of treating physicians who will testify at trial has been expanded by a series of Florida cases. Treating physicians are now recognized as expert witnesses, even though they are not technically "retained experts." See Steinger, Iscoe & Greene v. GEICO Gen. Ins. Co., 103 So.3d 200, 203 (Fla. 4^th DCA 2012)("For purposes of uncovering bias, we see no meaningful distinction between a treating physician witness, who also provides an expert opinion (the so-called 'hybrid witness'), and retained experts."). Thus, defendants in Florida courts have been permitted to discover certain general financial bias information from treating physicians, as set forth in Fla. R. Civ. P. 1.280(b)(5)(A). However, the discovery permitted by Rule 1.280(b)(5)(A) is not a concrete limitation, as Florida "trial courts have discretion to order additional discovery where relevant to a discrete issue in a case." Steinger, Iscoe & Greene, 103 So.3d at 204; see also, Brown v. Mittleman, 152 So.3d 602 (Fla. 4^th DCA 2014)(a referral relationship between treating doctor and attorney is discoverable); Katzman v. Ranjana Corp., 90 So.3d 873 (Fla. 4^th DCA 2012)(discovery regarding a doctor's charges to insured patients and unisured patients treated under a letter of protection is discoverable and related to the substantive issue of the reasonableness of medical bills).

Trial courts must balance the burden on non-party witnesses in responding to the discovery with the facts and issues of the case at hand. Katzman v. Rediron Fabrication, Inc., 76 So.2d 1060 (Fla. 4^th DCA 2011). Courts have broad discretion to balance theinterests involved and to protect treating physicians from overly intrusive financial discovery. Brown, 152 So.3d at 605. Yet, "the rule limiting financial discovery from retained experts cannot be used to hide relevant information regarding a treating physician's possible bias or the reasonableness of the charges at issue in the litigation." Id. Whitesands and Columna argue that the discovery requested by Home Depot is overly intrusive and not warranted by the facts of this case.

Home Depot counters that the requested documents and areas of inquiry are necessary to establish bias on the part of the medical providers and to contest the reasonableness of Plaintiff's medical bills. Home Depot seeks to discover the medical providers' practice of providing care and billing under a letter of protection, as was done in this case. More specifically, Home Depot seeks to discover whether and the extent to which Plaintiffs' medical providers write down or sell letter of protection bills. Home Depot argues that such information is relevant to the issue of the reasonableness of Plaintiff's medical bills.

"A letter of protection is a document sent by an attorney on a client's behalf to a healthcare provider when the client needs medical treatment, but does not have insurance. Generally, the letter states that the client is involved in a court case and seeks an agreement from the medical provider to treat the client in exchange for deferred payment of the provider's bill from the proceeds of [a] settlement or award; and typically, if the client does not obtain a favorable recovery, the client is still liable to pay the provider's bills." Carnival Corp. v. Jimenez, 112, so.3d 513, 516-17 n. 3 (Fla. 2^nd DCA 2013) (quoting C. Pace, Tort Recovery for Medicare Beneficiaries: Procedures, Pitfalls and Potential Values,49 Hous. Law. 24, 27 (2012)).² Florida courts have recognized that a letter of protection gives the treating physician a "financial interest in the outcome" of the litigation; it is evidence that a physician is more likely to testify favorably on behalf of a plaintiff because of that financial interest in the case. Jimenez, 112 So.3d at 520; see also Allstate Ins. Co. v. Boecher, 733 So.2d 993, 997-98 (Fla. 1999)("A party is entitled to argue to the jury that a witness might be more likely to testify favorably on behalf of the party because of the witness's financial incentive to continue the financially advantageous relationship.")

Whitesands and Columna argue that a letter of protection is not, without more, sufficient evidence of bias to allow discovery into the medical providers' financial information. See Katzman v. Rediron Fabrication, Inc., 76 So.3d 1060, 1064 (Fla. 4^th DCA 2011)(explaining that it is a "direct referral by the [plaintiff's] lawyer to the doctor [and not a letter of protection] that creates a circumstance that would allow the defendant to explore possible bias on the part of the doctor"). Whitesands and Columna argue that there is no evidence here of an attorney referral and, therefore, Home Depot has not proffered the necessary threshold evidence of bias that would permit discovery of their financial information. The Court, however, is not persuaded and finds that Home Depot has raised sufficient circumstances to establish the relevancy and, therefore, to justify some inquiry into the medical providers' financial information.

First, the Florida Fourth District Court of Appeal specifically stated that it never intended to restrict more expansive discovery of medical providers to instances wherethere is a direct referral. Brown, 152 So.3d at 604. In this case, the physician referral was not direct, but indirect: Plaintiff's counsel referred Plaintiff to a chiropractor who, in turn, referred Plaintiff to Whitesands and Columna. The record, therefore, does not establish an "arm's-length" relationship between Plaintiff and the medical providers. Furthermore, although the Court was not advised whether the letters of protection originated with Plaintiff's counsel or with the medical providers, it has been represented (and was not contradicted) that Plaintiff does have insurance (either private insurance or Medicaid), yet has chosen to proceed under a letter of protection rather than seek insurance reimbursement for his medical bills. Finally, the medical providers have acknowledged that neither has contracts with private insurance or with Medicare or Medicaid; their practices are conducted entirely through letters of protection or through patients who self-pay. The medical providers charge the same amount regardless of whether a patient is insured or under a letter of protection. The Court finds that the amount(s) ultimately accepted by these medical providers under letters of protection is relevant to the reasonableness of the medical bills and that Home Depot has proffered a sufficient basis for obtaining that...