Krezelak v. Indem. Ins. Co. of Am.

Decision Date06 October 2020
Docket NumberWCC No. 2020-4954
Citation2020 MTWCC 19
PartiesCANDIDA KREZELAK Petitioner v. INDEMNITY INS. CO. OF NORTH AMERICA Respondent/Insurer.
CourtMontana Workers Compensation Court
ORDER GRANTING PETITIONER'S MOTION TO COMPEL

Summary: Petitioner moves to compel Respondent to produce the journal articles on which its IME physician relied; the raw data from the IME; and the advertisements for the company for which the physician performed the examination.

Held: This Court granted Petitioner's motion because the evidence sought is discoverable.

¶ 1 Respondent Indemnity Ins. Co. of North America (Indemnity) had Petitioner Candida Krezelak undergo an examination under § 39-71-605, MCA, with Emily Heid, MD, of Ortho IME, PLLC. At the time of the examination, Dr. Heid was working for WellCare IME LLC (WellCare), which is now known as Clarus IME LLC (Clarus), and she issued her report on WellCare's letterhead. Krezelak now moves to compel Indemnity to produce: (1) the journal articles on which Dr. Heid relied in reaching her opinions; (2) the raw data from Dr. Heid's examination, including her notes, the questionnaires that she had Krezelak fill out, and test results; and (3) any advertising published by WellCare or Clarus.

¶ 2 Indemnity opposes Krezelak's motion, asserting that her discovery requests would require Dr. Heid to violate copyright law, are overly burdensome, and could not lead to the discovery of admissible evidence.

Journal Articles

¶ 3 M.R.Evid. 705 provides:

The expert may testify in terms of opinion or inference and give reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

The Commission Comments to this rule state, "The cross-examiner should be aware of the underlying facts or data of the opinion through discovery . . . ."

¶ 4 The Montana Supreme Court has "repeatedly stated that Rule 705 affords a party an essential right to cross-examine [an] expert witness regarding the basis of that expert's opinion."1 The court has also explained, "the right to cross-examine an opposing expert regarding the basis of that expert's opinion is 'the shield to guard against unwarranted opinions,' and is 'essential' to the 'discovery of truth.' "2

¶ 5 At her deposition, Dr. Heid testified that she relied upon 11 journal articles to reach her opinions. However, she claimed that she could not produce the journal articles to Krezelak because she had been told that it was unlawful for her to do so under copyright law. Indemnity asserts that Dr. Heid's understanding of copyright law is correct under 17 U.S.C. § 106 which, inter alia, prohibits a person from distributing the copyrighted work of another to the public. Indemnity asserts that Dr. Heid would be "forced" to violate copyright law if she must produce the articles to Krezelak in discovery.

¶ 6 Here, Krezelak is correct that Indemnity has not cited any copyright law supporting its position. Krezelak is not asking Dr. Heid to distribute the articles to the public. Rather, Krezelak is asking Dr. Heid to produce the articles on which Dr. Heid relied to Indemnity's attorneys, so Indemnity's attorneys can answer discovery which will allow Krezelak's attorneys to evaluate whether the journal articles actually support Dr. Heid's opinions. Thus, 17 U.S.C. § 106 does not support Indemnity's claim that copyright law prohibits Dr. Heid from producing the articles in discovery.

¶ 7 Indemnity also argues that requiring Dr. Heid to produce the articles would "inflict an unjustified cost on her." However, Dr. Heid already has the articles and Indemnity does not explain what cost she will incur other than possibly the cost of copying the articles and mailing them to Indemnity's attorneys so they can answer Krezelak's discovery requests, an amount that is negligible. In the alternative, Dr. Heid can scan the articles and email them to Indemnity's attorneys, which will cost her nothing.

¶ 8 Finally, Indemnity argues that this Court should require Krezelak to purchase the articles herself. However, there is no good reason to increase Krezelak's cost of litigation.

¶ 9 For the foregoing reasons, the journal articles on which Dr. Heid relied are discoverable.

Dr. Heid's "raw data"

¶ 10 Krezelak asserts that Dr. Heid's raw data — which she defines as Dr. Heid's notes taken during the examination, the questionnaires that Krezelak filled out for Dr. Heid, and the results of the tests that Dr. Heid had Krezelak perform — are discoverable under M.R.Evid. 705.

¶ 11 Indemnity asserts that it should not have to produce Dr. Heid's raw data because she testified that she gave the documents containing the raw data to WellCare for storage and she does not know if Clarus has them. Relying upon Vulk v. Employers Compensation Ins. Co.,3 Indemnity asserts that Dr. Heid cannot be required to produce documents that she does not possess. In Vulk, this Court ruled that the insurer did not have to produce a list of all insurance companies for which an IME physician had provided services or a list of all IMEs he had performed because he had never prepared such lists and they therefore did not exist.4

¶ 12 However, this case is distinguishable from Vulk because Dr. Heid did not testify that the raw data has never existed; rather, she testified that the information once existed and that she does not know whether it currently exists because she gave it to WellCare. For obvious reasons, an expert cannot circumvent her duty under M.R.Evid. 705 of producing the data and facts upon which she based her opinions by giving her records to another for storage. Krezelak is correct that Dr. Heid is in the business of providing forensic examinations and that she should have expected a discovery request asking for this evidence. She now has a duty to obtain the evidence and provide it to Indemnity, so it can produce it in discovery.

Advertising

¶ 13 Krezelak argues that WellCare's and Clarus's advertisements could contain evidence that the examinations it arranges are done by physicians with a bias. Indemnity asserts that the advertisements are not discoverable because WellCare and Clarus are completely "independent" from Dr. Heid and, therefore, whatever the advertisements state cannot be attributed to her. In the alternative, Indemnity asserts that the advertisements could not possibly be relevant.

¶ 14 Here, WellCare's and Clarus's advertisements are discoverable because they could contain evidence of bias. This Court has recognized that "discovery is very broad."5 The advertisements could be evidence that the medical examinations WellCare and Clarus arranges are not truly...

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