Greater Lakes Ambulatory Surgical Center, PLLC et al v. State Farm Mutual Automobile Insurance Company

Filing 35

ORDER granting in part and denying in part 32 Motion to Quash Subpoena. Signed by District Judge David M. Lawson. (DTof)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GREAT LAKES ANESTHESIA, PLLC, SUMMIT
MEDICAL GROUP, PLLC, GREATER LAKES
AMBULATORY SURGICAL CENTER, PLLC, d/b/a
ENDOSURGICAL CENTER AT GREATER LAKES,
Plaintiffs,
v.

Case Number 11-10658
Honorable David M. Lawson

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant,
and

ORDER GRANTING IN PART
DEFENDANT’S MOTION FOR
PROTECTIVE ORDER AND TO
QUASH SUBPOENA

GREATER LAKES AMBULATORY SURGICAL
CENTER, PLLC, d/b/a ENDOSURGICAL CENTER
AT GREATER LAKES, GREAT LAKES ANESTHESIA,
PLLC, and MICHIGAN INSTITUTE OF PAIN AND
HEADACHE, P.C.,
Plaintiffs,
v.

Case Number 11-11003
Honorable Robert H. Cleland

STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant,
and
GREATER LAKES AMBULATORY SURGICAL
CENTER, PLLC, GREAT LAKES ANESTHESIA,
PLLC, and SUMMIT MEDICAL GROUP, PLLC,
Plaintiffs,
v.
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant.
__________________________________________/

Case Number 11-11855
Honorable Avern Cohn

ORDER GRANTING IN PART DEFENDANT’S MOTION FOR
A PROTECTIVE ORDER AND TO QUASH SUBPOENA
The plaintiffs in these three cases are medical providers who rendered services to their
various patients to treat injuries received in automobile accidents. Each of the patients was insured
by defendant State Farm Mutual Automobile Insurance Company under Michigan’s no-fault
insurance law. The plaintiffs have sued State Farm to recover charges for those services. In each
case, State Farm has hired Dr. Eugene Mitchell to perform a medical examination on or review
medical records of the respective patient-insured, and presumably he intends to testify at trial that
the services rendered by the plaintiffs were not reasonable or necessary.
Discovery in at least two of these cases is about to close. The plaintiffs have served a notice
to take Dr. Mitchell’s deposition and a subpoena directing him to bring various financial documents
that reflect his relationship with State Farm, the law firm representing it, and his medical
consultation business. On September 27, 2011, State Farm filed in each of these case three nearly
identical motions to quash the subpoenas and for protective orders to prevent plaintiffs’ counsel
from questioning Dr. Mitchell on matters outside the scope of the litigation. Judges Robert Cleland
and Avern Cohn, after consultation with each other and the undersigned, concluded that the interest
of judicial efficiency would be best served by consolidating these motions for adjudication before
a single judge. The consolidation does not affect the other aspect of the respective cases, which,
except for these motions, remain assigned to the respective judges. The undersigned held a joint
hearing on the defendant’s motions on September 28, 2011. For the reasons discussed below, and
on the record, the Court will grant the defendant’s motion in part, order production of some of the
subpoenaed items, limit the scope of the subpoena, and direct the deposition to proceed.
I.
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The three lawsuits are all brought under Michigan’s no-fault insurance law by health care
providers seeking to recover reimbursement for medical services allegedly rendered to individuals
insured by State Farm. During discovery in Case Number 11-10658, Dr. Mitchell performed an
examination of the insured at the request of State Farm and issued a medical opinion. In Case
Numbers 11-11003 and 11-11855, Dr. Mitchell, again at State Farm’s request, reviewed the
insureds’ medical records and issued medical opinions.
On September 16, 2011, the plaintiffs noticed Dr. Mitchell’s deposition for September 29,
2011. The deposition notice included a request to produce the following documents:
1. All calendars, correspondence or documents listing dates or times scheduled for
Eugen Mitchell Jr.’s testimony in court or deposition, or to perform a non-treating
evaluation.
2. The entire files relating to Holly Nowland, Donald Amerson, and Stara Taylor in
the possession of Eugene Mitchell Jr.
3. All documents, including but not limited to correspondence, by State Farm to
Eugene Mitchell Jr., which (a) refer matters, cases, or claims to him, (b) request a
medical record review from him, or (c) request he perform a non-treating evaluation.
4. All bills, invoices, statements or documents specifying charges for services
rendered by Eugene Mitchell Jr. for State Farm, Hewson, or any evaluation entity.
5. All contracts and letters of understanding between State Farm and Eugene
Mitchell Jr.
6. All documents relating to financial transactions with, or services rendered for,
State Farm.
7. All documents showing the amounts paid by State Farm to Eugene Mitchell Jr.,
including but not limited to ledgers, receipts, deposit slips, W-2 tax forms, and 1099
tax forms, and any other tax form.
8. All bills, invoices, or itemization of expenses submitted by Eugene Mitchell Jr.
to State Farm.

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9. All billing sheets or time logs relating to Eugene Mitchell Jr.’s charges or
intended charges to State Farm, even those not yet finalized or submitted, including
but not limited to those relating to Holly Nowland, Donald Amerson, and Stara
Taylor.
10. All documents relating to financial transactions with, or services rendered for
Hewson.
11. All documents showing the amounts paid by Hewson to Eugene Mitchell Jr.,
including but not limited to ledgers, receipts, deposit slips, W-2 tax forms, and 1099
tax forms.
12. All bills, invoices, or itemization of expenses submitted by Eugene Mitchell Jr.
to Hewson.
13. All billing sheets or time logs relating to Eugene Mitchell Jr.’s charges or
intended charges to Hewson, even those not yet finalized or submitted, including but
not limited to Holly Nowland, Donald Amerson, and Stara Taylor.
14. All documents showing the amounts paid by any insurance company, law firm,
or evaluation entity to Eugene Mitchell Jr. relating to a State Farm claimant,
including but not limited to ledgers, receipts, deposit slips, W-2 tax forms, 1099 tax
forms, records and reports.
15. All reports or records provided by Eugene Mitchell Jr. to State Farm or to
Hewson, or to an evaluation entity regarding a State Farm claimant including but not
limited to Holly Nowland, Donald Amerson, and Stara Taylor.
16. All reports, supplemental reports, addendums, notes, videotapes, audio tapes,
photographs, fluoroscopic films, handwritten notes and medical records, authored,
dictated, written or generated by Eugene Mitchell Jr., relating to Holly Nowland,
Donald Amerson, or Stara Taylor.
17. All documents showing, relating to, describing, specifying, some or all
compensation paid to Eugene Mitchell Jr., by or on behalf of State Farm or Hewson.
18. All documents which show, or from which one can determine, the number of
cases, claims, claimants or medical files referred to Eugene Mitchell Jr. by State
Farm or Hewson for each year of the specified period, including 2011.
19. All documents which show, or from which one can determine, the number of
cases, claims, claimants or medical files referred to Eugene Mitchell Jr. by State
Farm or Hewson for each year of the specified period, including 2011, relating to

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any of the plaintiffs in this action, or patients treated at Greater Lakes Ambulatory
Surgical Center, PPLLC D/B/A Endosurgical Center at Great Lakes.
20. All correspondence from State Farm or Hewson to Eugene Mitchell Jr.
21. All correspondence from Eugene Mitchell Jr. to State Farm or Hewson.
Def.’s Mot. for Protective Order, Ex. 1, Notice of Deposition (emphasis in original). On September
22, 2011, the plaintiffs served a subpoena on Dr. Mitchell for production of the same documents
identified in the request for production of documents included in the notice of deposition. During
oral argument, the defendant asserted that the subpoena broadened the scope of the requested
documents.
In moving to quash the subpoena, State Farm argues that the plaintiffs’ demands are
unreasonable because the information sought extends well beyond the boundaries of these cases,
which State Farms perceives to be drawn around Dr. Mitchell’s involvement with the plaintiffs’
patients in the respective three lawsuits. State Farm acknowledges that its relationship with Dr.
Mitchell also may be relevant, and to that end it has produced its own records of payments made to
Dr. Mitchell over the past five years for medical consultations, including examinations and report
writing. However, State Farm insists that production of Dr. Mitchell’s tax records, the reports he
generated in other cases, and information about his medical-consultation work with other insurance
companies is irrelevant to the present case and therefore beyond the scope of permissible discovery.
Therefore, the defendant contends a protective order should be entered on the grounds that (1) Dr.
Mitchell should be protected from undue harassment; (2) the information sought is beyond the scope
allowed by the Federal Rules of Civil Procedure; and (3) the right to privacy of other individuals
insured by State Farm not involved in these three cases outweighs the plaintiffs’ right to the
information. The plaintiffs contend that they have a right to develop evidence that demonstrates Dr.
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Mitchell’s bias, which can be shown through his continuing relationship with State Farm and his
financial interest in cultivating insurance clients for his consulting business.
II.
The Federal Rules of Civil Procedure permit broad but not unlimited discovery. In federal
civil litigation, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense . . . . Relevant information need not be admissible at the trial if the
discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R.
Civ. P. 26(b)(1). A court “may, for good cause, issue an order to protect a party or person [from
whom discovery is sought] from annoyance, embarrassment, oppression, or undue burden or
expense.” Fed. R. Civ. P. 26(c)(1).
Likewise, a person served with a subpoena may object to it and move to quash it. Under
Rule 45(c), “the issuing court must quash or modify a subpoena that . . . subjects a person to undue
burden.” Fed. R. Civ. P. 45(c)(3)(A)(iv). The commentary to Rule 45 states that this subsection “is
a catch-all category that enables the court to grant the motion to quash or modify in any other
situation in which it finds, sui generis, what it believes to be an ‘undue burden’ imposed by the
subpoena.” Commentary C45-22 to Fed. R. Civ. P. 45(c)(3)(A)(iv). According to the Advisory
Committee that provision was intended to track the protections of Federal Rule of Civil Procedure
26(c), which deals with protective orders.
“Undue burden” is not further defined by the rules, but generally a court must balance the
potential value of the information to the party seeking it against the cost, effort, and expense to be
incurred by the person or party producing it. American Elec. Power Co., Inc. v. United States, 191
F.R.D. 132, 136 (S.D. Ohio 1999) (stating that the competing factors include “relevance, the need

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of the party for the documents, the breadth of the document request, the time period covered by it,
the particularity with which the documents are described and the burden imposed” and that “the
status of a person as a non-party is a factor that weighs against disclosure” (internal quotation marks
and citations omitted)); see also EEOC v. Ford Motor Credit Co., 26 F.3d 44, 47 (6th Cir. 1994)
(determining whether a burden is undue requires the court to weigh “the likely relevance of the
requested material . . . against the burden . . . of producing the material.”). Non-party status is also
relevant in determining whether the burden should be considered undue or excessive. See, e.g., N.C.
Right to Life, Inc. v. Leake, 231 F.R.D. 49, 51 (D.D.C. 2005).
Dr. Mitchell has not himself moved to quash the subpoena, and at the hearing counsel for
State Farm expressly disavowed any intention of speaking on his behalf. It is quite clear, however,
that State Farm’s and Dr. Mitchell’s interests are aligned in seeking the protective order. To that
end, it is pertinent to observe that a nonparty seeking to quash a subpoena bears the burden of
demonstrating that the discovery sought should not be allowed. See Concord Boat Corp. v.
Brunswick Corp., 169 F.R.D. 44, 48 (S.D.N.Y. 1996); see also Irons v. Karceski, 74 F.3d 1262, 1264
(D.C. Cir. 1995); 9A Wright & Miller, Federal Practice and Procedure § 2463.1, p. 507. “That
person cannot rely on a mere assertion that compliance would be burdensome and onerous without
showing the manner and extent of the burden and the injurious consequences of insisting upon
compliance with the subpoena.” 9A Wright & Miller, Federal Practice and Procedure § 2463.1, p.
507. Relevancy is one factor used by courts to balance against the burden of production. However,
the burden of demonstrating relevance is on the party seeking discovery. American Elec. Power,
191 F.R.D. at 136.
A.

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The plaintiffs must show that the financial information they seek from Dr. Mitchell is
relevant, or at least is designed to lead to the discovery of admissible evidence. The threshold for
establishing relevance is quite low. The Sixth Circuit has explained:
The standard for relevancy is “extremely liberal.” Douglass v. Eaton Corp., 956
F.2d 1339, 1344 (6th Cir. 1992). “‘[E]vidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence’ is relevant.”
Robinson v. Runyon, 149 F.3d 507, 512 (6th Cir. 1998) (quoting Fed. R. Evid. 401).
“‘[E]ven if a district court believes the evidence is insufficient to prove the ultimate
point for which it is offered, it may not exclude the evidence if it has the slightest
probative worth.’” DXS, Inc. v. Siemens Med. Sys., Inc., 100 F.3d 462, 475 (6th Cir.
1996) (quoting Douglass, 956 F.2d at 1344).
United States v. Whittington, 455 F.3d 736, 738-39 (6th Cir. 2006). The fact that an item of
evidence is insufficient to prove a particular point by itself does not render the evidence irrelevant.
1 McCormick on Evidence, § 185, at 776 (4th ed. 1992) (“An item of evidence, being but a single
link in the chain of proof, need not prove conclusively the proposition for which it is offered. It need
not even make that proposition appear more probable than not. Whether the entire body of one
party’s evidence is sufficient to go to the jury is one question. Whether a particular item of evidence
is relevant to the case is quite another. . . . A brick is not a wall.”).
As mentioned above, the plaintiffs argue that the information they seek will establish Dr.
Mitchell’s bias in favor of State Farm. “The term ‘bias’ describes ‘the relationship between a party
and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in
favor of or against a party.’” Robinson v. Mills, 592 F.3d 730, 737 (6th Cir. 2010) (quoting United
States v. Abel, 469 U.S. 45, 52 (1984)). As the Sixth Circuit has explained:
Bias is “not limited to personal animosity against a defendant or pecuniary gain.”
Instead, it includes mere “employment or business relationships” with a party and
“is always relevant in assessing a witness’s credibility.”

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Ibid. (quoting Schledwitz v. United States, 169 F.3d 1003, 1015 (6th Cir. 1999)).
It is well-settled that “cross-examination to show the bias of a witness or his interest in a case
is entirely proper,” Collins v. Wayne Corp., 621 F.2d 777, 784 (5th Cir. 1980), superseded on other
grounds by 2000 amendment to Fed. R. Evid. 103(a), and the inquiry may extend to fees earned by
the expert in other cases, id. at 783 (stating that “cross-examination of an expert witness regarding
fees earned in prior cases is not improper”). Any relationship between Dr. Mitchell and State Farm
that might cause him to slant his testimony in favor of State Farm, either wittingly or unwittingly,
is relevant to credibility, and the jury is entitled to have that information to assess whether the
witness is believable or how much weight to ascribe to the witness’s testimony. Charter v.
Chleborad, 551 F.2d 246, 248 (8th Cir. 1977) (holding that evidence that a witness was employed
by the defendant’s insurer was admissible to show bias); cf. Fed. R. Evid. 611(b) (stating that the
proper scope of cross-examination includes “matters affecting the credibility of the witness”).
Certainly, a continuing relationship between the witness and a party in which a witness receives
payment for generating an opinion that may be favorable to the interests of the party seeking the
opinion is a source of bias.
In addition, expert witnesses in the business of furnishing litigation support, including
medical-legal consultations, may have a motive to slant testimony to favor their customers and
promote the continuation of their consultation business. Courts have recognized that expert
witnesses who seek law firms, insurance companies, or the government as clients may have interests
beyond the fact of individual cases in producing opinion evidence. Behler v. Hanlon, 199 F.R.D.
553, 557 (D. Md. 2001) (finding that “the fact that an expert witness may have a 20 year history of
earning significant income testifying primarily as a witness for defendants, and an ongoing

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economic relationship with certain insurance companies, certainly fits within recognized examples
of bias . . . making such facts relevant both to the subject matter of the litigation . . . and placing it
squarely withing the scope of discovery authorized by rule 26(b)(1)”). Although an expert witness
would not necessarily succumb to business pressures, and most experts endeavor to remain faithful
to the facts as viewed through the lens of their specialized knowledge, when formulating their
opinion, a jury nonetheless is entitled to know of the potential influences that are brought to bear
on the witness when called upon to assess credibility. See Collins, 621 F.2d at 784 (“Impeachment
of witnesses through a showing of bias or interest aids the jury in its difficult task of determining
facts when it is faced with contradictory assertions by witnesses on both sides of the case.”).
The Court finds, therefore, that the requested information is relevant and falls squarely within
the scope of discovery authorized by the Federal Rules of Civil Procedure.
B.
The defendant argues, however, that requiring Dr. Mitchell to produce the requested
information trenches on the privacy interests of others. State Farm says that the plaintiffs are
seeking medical reports written by Dr. Mitchell in other cases unrelated to the plaintiffs’ three
patients, and perhaps unrelated to people insured by State Farm. Although Dr. Mitchell did not
establish a doctor-patient relationship with any of those examinees, they still have an interest in
keeping private their own health matters, especially when some of Dr. Mitchell’s reports recite
findings made by other physicians. The plaintiffs argue, however, that if Dr. Mitchell’s reports
establish a pattern of rote findings that favor the insurance company, the jury should be able to use
that information to evalute Dr. Mitchell’s credibility.

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The defendant’s concern is legitimate. But there is a relatively simple method for addressing
it without diminishing the value of the information sought by the plaintiffs. Any document produced
by Dr. Mitchell in response to the request for production or the subpoena that would reveal the
identity of examinees in other cases unrelated to the three matters before the Court should be
redacted to delete reference to the subjects’ names. The name references should be replaced by the
insurance claim numbers in the reports.
C.
The defendant also argues that Dr. Mitchell should be protected from undue harassment. The
notice of deposition requests a substantial number of documents, and the subpoena, assuming it
broadens the scope of requested information, certainly poses the risk of being unduly burdensome.
For example, the defendant contends that there is no temporal limitation on the records sought, and
some information may be privileged. In addition, the potential volume of documentation may be
burdensome to produce.
The Court agrees that the scope of the subpoena is overbroad. The plaintiffs have
acknowledged that over the past three years, Dr. Mitchell has been asked by State Farm to consult
on approximately 99 cases. Dr. Mitchell presumably consults for other insurance companies as well.
The defendant already has produced data for payments it has made to Dr. Mitchell over the last four
years. The Court finds that a four-year look-back for financial data from Dr. Mitchell’s consulting
business is adequate to provide a full picture of his financial interest in forensic consulting. Given
the volume of reports generated, a three-year limitation is reasonable to allow the plaintiffs to
determine if any pattern emerges. Therefore, the Court will limit the subpoena to conform to those
time periods.

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IV.
For the reasons discussed above and on the record, the Court will grant in part the
defendant’s motion and enter a protective order imposing limitations on the subpoena. The
deposition is scheduled to take place later this morning, and as discussed yesterday on the record,
it ought to proceed, since discovery in my case and Judge Cleland’s case formally closes on
September 30, 2011. However, the Court will not prevent the parties from agreeing to adjust the
dates and times of the deposition and production of records for the convenience of the lawyers and
Dr. Mitchell, as long as the delays do not impact any other case management deadlines set out in the
scheduling order (such as filing or responding to dispositive motions). The Court will deny the
defendant’s motion to the extent that it seeks to prevent the disclosure of the requested information
altogether.
Accordingly, it is ORDERED that the defendant’s motions for protective order and to quash
subpoena [dkt. #26, Case No. 11-10658], [dkt. #32, Case No. 11-11003], and [dkt. #12, Case No.
11-11855] are GRANTED IN PART AND DENIED IN PART.
It is further ORDERED that the plaintiffs’ subpoena duces tecum is limited to the production
of documents created in the last four years with respect to financial information concerning Dr.
Mitchell’s medical-legal consulting business(es), and three years for documents constituting Dr.
Mitchell’s medical reports.
It is further ORDERED that Dr. Mitchell shall redact any information in medical reports that
reveals the identity of examinees in other cases unrelated to the three above-captioned cases and
shall substitute the relevant insurance claim number in place of the examinees’ names.

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It is further ORDERED that the motions are DENIED in all other respects.
s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: September 29, 2011

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on September 29, 2011.
s/Deborah R. Tofil
DEBORAH R. TOFIL

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