The Holding
In Cheatwood v. Christian Brothers Services, 2018 WL 287389 (D. Ariz. Jan. 4, 2018) (unpublished) (Order), a bad faith case arising from a health benefits claim, the Arizona District Court quashed portions of the Insureds’ subpoena to a medical expert which sought: (a) all medical review reports prepared by the medical expert during the last five years, and (b) the number of medical necessity reviews performed for plaintiffs versus defendants during the last five years. The Insureds claimed the Insurer acted unreasonably by relying on an “obviously biased and anti-claimant medical reviewer” to deny the Insureds’ claim.
The Takeaway
Arizona insurers should rely on Cheatwood and the cases cited therein—including the Bronick and Grant cases—to argue insureds are not entitled to discovery of medical experts’ previous reports, the number of reports prepared for claimants/plaintiffs versus insurers/defendants, and exhaustive financial information from medical experts.
The Rationale
Generally, pursuant to Rule 45, a court “must quash or modify” a subpoena that subjects a person to undue burden. A subpoena seeking completely irrelevant information may be quashed as unduly burdensome.
The District Court quashed the Insureds’ request for all medical review reports prepared by the medical expert during the last five years because:
- Although evidence of an expert’s bias may be relevant to a bad faith claim, the medical expert’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.”
- The Insureds could not demonstrate that each previous medical necessity review was biased because the Insureds did not know the facts and circumstances underlying each review. Thus, an attempt to compare the medical expert’s conclusion in the previous reviews to the review in the Insureds’ case would require a “mini-trial” on each previous claim and these “mini-trials would only confuse and mislead a jury.”
- It would be unsurprising if the expert’s previous reviews were favorable to the Insurer because insurers likely seek medical necessity reviews only on questionable claims.
- In Bronick v. State Farm Mutual Auto Insurance Co., 2013 WL 3716600 (D. Ariz. July 15, 2013), a bad faith case arising from a UIM claim in which the insured alleged the hiring of a certain medical expert was evidence of bad faith, the District Court stated that a medical expert performing 151 IMEs for an insurer and only five of the IMEs favoring the insured was “wholly irrelevant” to the insured’s case because the facts of the other reviews were unknown.
- Thus, the expert’s “other medical necessity reviews have nothing to do with whether the review” in the Insureds’ case was biased.
The District Court also quashed the Insureds’ request for the number of medical necessity reviews performed for plaintiffs versus defendants during the last five years because:
- The medical expert did not know for whom he conducted previous reviews; rather, the expert simply conducted the reviews.
- And, the Insureds’ failed to respond to the Insurer’s argument that this request was “illogical” because insureds “rarely, if ever,” seek medical necessity opinions.
Nate is a partner at Jaburg Wilk in Phoenix, Arizona. His practice focuses on insurance coverage, bad faith litigation, commercial litigation, general liability litigation and professional liability litigation. He represents insurance companies, contractors, policy holders, global corporations, insurance adjusters, business owners, insurance agents and professionals. If you have questions about insurance law contact Nate at 602-248-1032 or ndm@jaburgwilk.com