Cheatwood et al v. Christian Brothers Services

Filing 104

ORDER granting in part and denying in part 73 Motion to Quash. The motion is denied as to Request No. 6, but is granted as to Request Nos. 5 and 7. Signed by Judge H Russel Holland on 1/3/18. (EJA)

WO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA

AARON and BREANNA CHEATWOOD,
individually and as Next Best Friend of
D.C., a minor child,

)
)
)
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Plaintiffs, )
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vs.
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)
CHRISTIAN BROTHERS SERVICES, et al., )
)
Defendants.
)
_______________________________________)

No. 2:16-cv-2946-HRH

ORDER
Motion to Quash
Defendant Sentinel Air Medical Alliance moves to quash or modify plaintiffs’
subpoena duces tecum served on non-party, Bryan E. Bledsoe, D.O.1 This motion is
opposed.2 Oral argument was requested but is not deemed necessary.
Background
In April 2015, plaintiffs’ son (D.C.) was transported by a medical transport helicopter
from Yuma Regional Medical Center to Banner Cardon Children’s Medical Center.

1

Docket No. 73.

2

Docket No. 74.
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Defendant Christian Brothers Employee Benefit Trust denied payment for the cost of the air
transport, allegedly based on an opinion obtained from Sentinel that the air transport was not
medically necessary. In their amended complaint, plaintiffs assert breach of contract and
breach of the duty of good faith and fair dealing claims against Christian Brothers Services
(CBS) and the Trust. Plaintiffs have alleged that CBS and the Trust “acted unreasonably by
relying upon the opinion of Sentinel Air, an obviously biased and anti-claimant medical
reviewer, to deny [p]laintiffs’ claim.”3 Plaintiffs assert an aiding and abetting claim against
Sentinel based on allegations that Sentinel aided and abetted CBS’s and the Trust’s breach
of the duty of good faith and fair dealing.
Dr. Bledsoe did a medical necessity review for Sentinel. In his initial report, Dr.
Bledsoe concluded that air transport had not been medically necessary in D.C.’s case.4 In a
supplemental report, Dr. Bledsoe again concluded that air transport had not been medically
necessary.5
In the subpoena served on Dr. Bledsoe, plaintiffs requested seven different categories
of documents, and the parties were able to reach an agreement as to the production of

3

First Amended Complaint at 10, ¶ 62, Docket No. 11.

4

Exhibit 2, Plaintiffs’ Response to Sentinel’s Motion to Modify or Quash Plaintiffs’
Subpoena Duces Tecum to Bryan E. Bledsoe, D.O., Docket No. 74.
5

Exhibit 3, Plaintiffs’ Response to Sentinel’s Motion to Modify or Quash Plaintiffs’
Subpoena Duces Tecum to Bryan E. Bledsoe, D.O., Docket No. 74.
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documents in response to requests Nos. 1-4.6 However, the following three requests are still
at issue:
5.

Reports of medical necessity reviews you have
participated in (solely or with others) from January 1, 2013 to present (the identity of the persons
examined may be redacted, or alternatively
plaintiff[s] will agree to enter into a binding
stipulation to maintain the confidentiality of the
identities of the persons examined);

6.

All W-9’s received for compensation derived
directly or indirectly from your work performing
medical necessity reviews for the tax years 2013,
2014, 2015 and 2016; and

7.

The number of medical necessity reviews you
have participated in (solely or with others) from
January 1, 2013, to the present, broken down by
the number performed on behalf of plaintiffs and
the number performed on behalf of defendants.[7]

Sentinel now moves to quash these three requests.8

6

Requests Nos. 1-3 involve communications and documents related to the medical
necessity review Dr. Bledsoe did in this case and Request No. 4 asks for “[i]nstructions,
reports, guidelines, and/or forms received from Sentinel, The Trust, and/or CBS, including
their attorneys[.]” Exhibit A to Subpoena at 3 (unnumbered), Exhibit B, Defendant Sentinel
Air Medical Alliance’s Motion to Modify or Quash Plaintiffs’ Subpoena Duces Tecum to
Bryan E. Bledsoe, D.O., Docket No. 73.
7

Id. at 3-4 (unnumbered).

8

“A party has standing to challenge a subpoena served on another entity only if the
party can show it has a personal right or privilege regarding the subject matter of the
subpoena.” Blotzer v. L-3 Communications Corp., 287 F.R.D. 507, 509 (D. Ariz. 2012).
Plaintiffs do not contend that Sentinel lacks standing to challenge the subpoena that was
served on Dr. Bledsoe.
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Discussion
“Federal Rule of Civil Procedure 45 governs discovery of nonparties by subpoena.”
ATS Products, Inc. v. Champion Fiberglass, Inc., 309 F.R.D. 527, 530 (N.D. Cal. 2015).
Rule 45 provides, in pertinent part, that
[o]n timely motion, the court for the district where compliance
is required must quash or modify a subpoena that:
***
(iv) subjects a person to undue burden.
Fed. R. Civ. P. 45(d)(3)(A). “‘[A] court determining the propriety of a subpoena balances
the relevance of the discovery sought, the requesting party’s need, and the potential hardship
to the party subject to the subpoena.’” ATS Products, 309 F.R.D. at 531 (quoting Gonzales
v. Google, Inc., 234 F.R.D. 674, 680 (N.D. Cal. 2006)). “‘Relevancy, for the purposes of
discovery, is defined broadly, although it is not without ultimate and necessary boundaries.’”
Id. (quoting Gonzales, 234 F.R.D. at 679–80). “[A] subpoena seeking completely irrelevant
information might be quashed as unduly burdensome[.]” Miller v. York Risk Services
Group, Case No. 2:13–cv–1419 JWS, 2014 WL 4230783, at *1 (D. Ariz. Aug. 27, 2014).
“The party who moves to quash a subpoena bears the ‘burden of persuasion’ under Rule
45(c)(3).” ATS Products, 309 F.R.D. at 531 (quoting Moon v. SCP Pool Corp., 232 F.R.D.
633, 637 (C.D. Cal. 2005)). This “burden is a heavy one.” In re Yassai, 225 B.R. 478, 484
(Bankr. C.D. Cal. 1998).

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Request No. 5. In Request No. 5, plaintiffs seek all of the medical necessity reviews
that Dr. Bledsoe has done during the last five years. Sentinel represents that Dr. Bledsoe has
done more than 100 medical necessity reviews during the past five years.9 Sentinel argues
that it would be unduly burdensome for Dr. Bledsoe to produce these reviews, not because
there are so many of them, but because these reviews are irrelevant to plaintiffs’ claims.
Plaintiffs, however, argue that Dr. Bledsoe’s other medical necessity reviews are
relevant to their claims because they may show that he is biased and evidence showing a
physician’s bias is relevant and discoverable in bad faith cases. For example, in Kravetz v.
Paul Revere Life Ins. Co., Case No. CV–08–1060–PHX–FJM, 2009 WL 77649, at *1 (D.
Ariz. Jan. 12, 2009), the court rejected the argument that other IME reports performed by a
doctor retained by the defendant were not relevant to the plaintiff’s claim that the doctor was
biased because he “had no real medical practice and the bulk of his business is as an expert
for insurance companies.”
Plaintiffs also cite to Hangarter v. Provident Life and Accident Insurance Co., 373
F.3d 998 (9th Cir. 2004), in support of their argument that Dr. Bledsoe’s other medical
necessity reviews are relevant. There, Hangarter asserted a bad faith claim against her
disability insurer. Id. at 1005. As part of her evidence of bias, Hangarter presented evidence
that the insurer had retained the same doctor to do IMEs “nineteen times from 1995 to 2000”

9

Defendant Sentinel Air Medical Alliance’s Motion to Modify or Quash Plaintiffs’
Subpoena Duces Tecum to Bryan E. Bledsoe, D.O. at 6, Docket No. 73.
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and “that in thirteen out of thirteen cases involving claims for total disability, Dr. Swartz
rejected the insured’s claim that he or she was totally disabled.” Id. at 1011.
In addition, plaintiffs cite to Hertz v. Hartford Life and Accident Insurance Co., 991
F. Supp. 2d 1121 (D. Nev. 2014). There, Dr. Rim had done medical reviews on which
Hartford had relied to deny Hertz disability benefits. Id. at 1129-31. As evidence that
Hartford’s structural conflict of interest had impacted its benefits decision, Hertz argued that
Dr. Rim was biased. Id. at 1136. The evidence showed that during the relevant time, “Dr.
Rim reviewed fourteen (14) claims for Hartford”, and that “of those fourteen (14) claims
reviewed, Dr. Rim did not find that a single claimant was completely unable to perform any
type of work.” Id. In other words, “Dr. Rim found that 100% of all claimants could perform
some type of work.” Id. The court found “these statistics strongly suggest that both MLS
[the third party service for whom Dr. Rim worked] and Dr. Rim harbored a significant bias
towards finding a claimant capable of performing some type of work.” Id.
Similar to Hangarter and Hertz, plaintiffs argue that the facts indicate that both
Sentinel and Dr. Bledsoe harbor a significant bias against claims involving medical air
transport and thus plaintiffs argue that Dr. Bledsoe’s other medical necessity reviews are
plainly relevant. Plaintiffs argue that it is significant that Dr. Bledsoe has done over 100
reviews in a 5-year period (an average of one review every two and half weeks) and that he
appears to work exclusively for Sentinel and they argue that they ought to be allowed to
further explore his bias.

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Although evidence of bias may be relevant to a bad faith claim, Dr. Bledsoe’s other
medical necessity reviews are not likely to lead to evidence of bias, largely because they
involve facts and circumstances different from the facts and circumstances involved in this
case. Plaintiffs would have no way of demonstrating that each review was biased because
plaintiffs do not know the underlying facts and circumstances of each review. Any attempt
to compare Dr. Bledsoe’s conclusions in each of these reviews to the conclusion he reached
in this case would require a mini-trial on each of the claims that gave rise to the other
reviews. Such mini-trials would only confuse and mislead a jury. In addition, given that
medical necessity reviews are likely only sought in questionable cases, it would not be
surprising if many of Dr. Bledsoe’s other reviews were favorable to the insurer, thereby
calling into question the relevancy of these reviews to plaintiffs’ bad faith claim.
The court finds Bronick v. State Farm Mutual Auto Insurance Co., Case No.
CV–11–01142-PHX–JAT, 2013 WL 3716600 (D. Ariz. July 15, 2013), instructive on this
issue. There, Bronick was involved in a rear-end collision and claimed that her torn Achilles
tendon was a result of the accident. Id. at *1. Bronick made a UIM claim and State Farm
questioned whether the torn Achilles tendon had been caused by the accident. Id. at *2.
State Farm required plaintiff to undergo an IME, which was done by Dr. Hartzler. Id. Dr.
Hartzler concluded that plaintiff’s Achilles tendon injury was not a result of the accident and
based on his report, State Farm denied Bronick’s UIM claim. Id. at *2-3. Bronick brought
claims of breach of contract and bad faith against State Farm. Id. at *3. On motion for

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summary judgment, Bronick argued that “the hiring of Dr. Hartzler is evidence in and of
itself that [State Farm] knew its conduct was unreasonable.” Id. at *9. Bronick argued that
Dr. Hartzler was biased and offered evidence that showed that “Dr. Hartzler ha[d] performed
151” IMEs, of which “only five of them favored the patients and showed their injuries and
treatments were justified causally to the subject accidents.” Id. The court found “[]this
statistic is wholly irrelevant to the facts of [Bronick’s] case” because the facts of those 151
cases were unknown. Id. at *10. The court explained that “[t]he relevant question is whether
Dr. Hartzler was unfair and biased, not how many times Dr. Hartzler was hired or how many
times he reached a favorable conclusion for a defendant insurer absent the unique facts of
each case.” Id.
Similarly here, Dr. Bledsoe’s other reports are irrelevant to plaintiffs’ claims because
they involve other parties and other factual situations. Dr. Bledsoe’s other medical necessity
reviews have nothing to do with whether the review Dr. Bledsoe provided in plaintiffs’ case
was biased. “The relevant question is whether Dr. [Bledsoe] was unfair and biased, not how
many times Dr. [Bledsoe] was hired or how many times he reached a favorable conclusion
for a defendant insurer absent the unique facts of each case.” Id. Dr. Bledsoe’s other
medical necessity reviews are not relevant to plaintiffs’ claims. Request No. 5 is quashed.
Request No. 6. In Request No. 6, plaintiffs ask Dr. Bledsoe to produce financial
information (in the form of W-9s) related to the compensation he has received for performing
medical necessity reviews in 2013-2016. Sentinel contends that Dr. Bledsoe agreed to

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provide information regarding what percentage of his income is derived from his work with
Sentinel. Sentinel argues that this is sufficient and that plaintiffs’ request for the actual
amount of income that Dr. Bledsoe earned from Sentinel is improper under Arizona law.
Sentinel cites to American Family Mutual Insurance Co. v. Grant, 217 P.3d 1212 (Ariz. Ct.
App. 2009), in support of its argument.
There, Allo had been in a motor vehicle accident and submitted a UIM claim to
American Family for injuries she claimed were caused by the accident. Id. at 1214.
American Family questioned whether Allo’s knee surgery and on-going treatment were a
result of the accident and retained Dr. Zoltan to evaluate her claim. Id. After American
Family denied her UIM claim, Allo sued American Family, asserting breach of contract and
bad faith claims. Id. Allo’s bad faith claim was based on her contention that “American
Family knew Dr. Zoltan was biased against personal injury plaintiffs and that he would
render opinions adverse to her interests.” Id. Allo requested the amount of income that Dr.
Zoltan had earned from doing IMEs and supporting financial documents such as “personal
tax returns, company tax returns, shareholder statements, accounting ledgers, 1099s or W–2s,
and profit sharing documents....” Id. at 1215. The court “caution[ed] that production of
exhaustive financial documentation like that demanded in Allo’s subpoena is appropriate
only in the most compelling of circumstances, and only after less intrusive means of
obtaining bias-related evidence have been explored.” Id. at 1219. Sentinel argues that there
are no compelling circumstances here because plaintiffs already know that Dr. Bledsoe only

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does medical necessity reviews for Sentinel and they know what percentage of his income
is derived from this activity. In light of this information, Sentinel argues that it would be
unduly intrusive to require Dr. Bledsoe to provide plaintiffs with his actual income.
Plaintiffs’ request for Dr. Bledsoe’s W-9s is much less intrusive than what was
requested in Grant and is not improper under Arizona law. Plaintiffs have only requested
that Dr. Bledsoe produce any W-9s he has received in connection with his work as a medical
reviewer. This financial information is relevant to plaintiffs’ claims. Request No. 6 is not
quashed. Dr. Bledsoe shall produce the requested W-9s.
Request No. 7. In Request No. 7, plaintiffs ask Dr. Bledsoe to provide the number of
medical necessity reviews he has done since January 1, 2013, to the present broken down by
whether the reviews were done for plaintiffs or defendants. After Sentinel advised plaintiffs
that Dr. Bledsoe does not provide his medical opinion in the context of a lawsuit, but rather
is simply asked to provide a medical necessity opinion, plaintiffs requested that Dr. Bledsoe
provide information regarding how many opinions he has provided for health plan benefits
providers versus how many he has provided for individuals submitting claims for benefits.
Sentinel argues that this request is illogical because individuals who submit claims for health
care benefits rarely, if ever, independently seek opinions as to whether their claims seek
payment for necessary services.
Plaintiffs make no argument in response, presumably because they already have the
answer to Request No. 7, which is that Dr. Bledsoe does not know, at the time he is doing

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a review, whether it is for a defendant or plaintiff. Dr. Bledsoe need not further respond to
Request No. 7.
Conclusion
Sentinel’s motion to quash10 is denied in part and granted in part. The motion is
denied as to Request No. 6, but is granted as to Request Nos. 5 and 7.
DATED at Anchorage, Alaska, this 3rd day of January, 2018.
/s/ H. Russel Holland
United States District Judge

10

Docket No. 73.
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