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Reese v. Great West Casualty Co.

United States District Court, E.D. Louisiana

October 7, 2019

WILBURT REESE, ET AL
v.
GREAT WEST CASUALTY COMPANY, ET AL

         SECTION: “L” (4)

          ORDER

          KAREN WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE.

         Before the Court is Motion for Contempt, Sanctions and Cost, and to Compel (Rec. doc. 68) and an Emergency Motion for Protective Order (R. Doc. 85) The motions are opposed (Rec. doc. 70, 94). The matters were set with oral argument on July 24, 2019 (Rec. doc. 69) and on September 4, 2019 (Rec. doc.96), respectively.

         I. Background

         The claimants initiated this lawsuit as a result of a collision allegedly occurred with a driver of an eighteen-wheeler who was attempting to make a lane change. As a result, the claimants seek damages.

         II. The Motion

         The discovery in this case made a shift to the defendants subpoenaing records and noticing the deposition of the plaintiff's treating physician Dr. Lonseth. According to the pleadings, on May 21, 2019 the defendants issued a subpoena for the deposition of the Office/Billing Administrator for Dr. Eric Lonseth and sought her appearance at 11:00am so as not to inconvenience the Office/Billing Administrator at Lonseth Interventional Pain Center, 4213 Teuton Dr. in Metairie. Service of the notice was made on the receptionist, Tyra Bandi. Rec. doc. 68-1.

         The notice at issue sought the production of the following: (1) referral of Reese to Dr. Lonseth; (2) billing in connection with Reese medical treatment; (3) records of examination and treatment; (4) price setting for treatment of Reese and other patients; (5) evidence of payment terms including collection at close of the lawsuit; and (6) information regarding payments received for or from Reese. Rec. doc. 68. In addition to the above, the notice also sought the production of prior deposition testimony of Dr. Lonseth, copies of the transcripts, list of his employees, copies of contracts Lonseth had on his own behalf or Lonseth Interventional Pain Center (“Pain Center”) with Total Medical Concepts and or MedPort or any other medical funding company. It also sought the sources of funding of the Pain Center.

         Darren Harper, the process server served an employee of the pain Center on June 3, 2019. Rec. doc. 68-3, Exhibit 2. According to the affidavit, paralegal Stagg later spoke with a representative in Dr. Lonseth's call center who advised that she would try to contact the office and when she did so and reported that the office was closed that day. Rec. doc. 68-5.

         Believing that they properly noticed the deposition, counsel for the defendant conducted a process verbal noting their efforts to notice the deposition for June 13, 2019 and the events that occurred when they showed up for the deposition only to find a closed office. Rec. doc.68 Thereafter, the defendants filed the subject motion on July 3, 2019 seeking to compel the attendance of the office administrator at a deposition and for her to produce records from Dr. Lonseth's office regarding: (1) referral of Reese to Dr. Lonseth; (2) billing in connection with Reese medical treatment; (3) records of examination and treatment; (4) price setting for treatment of Reese and other patients; (5) evidence of payment terms including collection at close of the lawsuit; and (6) information regarding payments received for or from Reese. Rec. doc. 68. In addition to the above, the notice also sought the production of prior deposition testimony of Dr. Lonseth for 24 months, copies of the transcripts, list of his employees, copies of contracts Lonseth had on his own behalf or Lonseth Interventional Pain Center with Total Medical Concepts and or MedPort or any other medical funding company. It also sought the sources of funding of the Pain Center. Medport is a factoring company that purchases account receivables secured by medical liens.

         Almost two weeks after the deposition date passed, counsel for Dr. Lonseth by letter dated June 24, 2019 acknowledged receipt of the notice and (1) produced billing records for Rees and Odds, (2) objected to the contents of the notice that go beyond the physician's treating records because the requests were neither relevant nor proportional, (3) objected to all other non-patient related information as not proportional to the needs of the case and (4) objected to the production of contracts because they were privileged and confidential and trade secret business information. Rec. doc. 70-1. On July 24, 2019 counsel for Dr. Lonseth communicated by letter with the defendant's attorney advising that August 19, 2019 appeared to be the best day to reset the deposition.

         The Court also heard oral argument on the motion on July 24, 2019. During the hearing counsel for the defendants and counsel for Dr. Lonseth agreed to working toward a compromise solution. Rec. doc. 75. The parties agreed to narrow the request to Dr. Lonseth seeking documents for patients treated who had the same CPT code as Reese and Odds from December 2017; May through June 2018; and December 2018 through January 2019. Counsel further agreed to eliminate the words “records, report and documents” from the notice. Rec. doc. 75. The Court partially denied the motion to compel as a result of the oral agreement reached and rescheduled the hearing to address the remaining issues; (1) the existence of a filing system that identified patients by whether they are in litigation or no; and (2) once the number of in litigation patients is determined, then an assessment of how many of those patients use factoring companies and production required to permit comparison of pricing. The Court considered the dispute ongoing and unsettled.

         Trying to gain knowledge about the filing system for Dr. Lonseth, the Court ordered Dr. Lonseth to produce to the Court the count or number of patients, In-Litigation Patients and those not in litigation for in camera review on August 9, 2019. Rec. doc. 75. The Court also set a telephone status conference for August 12, 2019 Dr. Lonseth exceeded the request of the court. Rather than providing the numerical count, he incurred additional expenses and provided actual documents for 165 patients for in camera review and sought reimbursement for the $3000 expense it incurred in compiling the information.

         Thereafter, on August 12, 2019, a follow up hearing by telephone took place and the Court conducted a review of several documents provided by Dr. Lonseth. Counsel also confirmed that Dr. Lonseth does not categorize or flag his electronic medical records system by litigation or non-litigation patients so the process of segregating them is tedious. The Court, therefore concluded that because the information was not maintained in the regular course of business by the defendant the request was not proportional to the needs of the case and therefore denied. The Court further denied the request for the rates charged for litigation and non-litigation patients as there was no apparent difference as observed upon its review of the in camera documents. Rec. doc. 97.

         Also, during the conference the Court ordered the defendants to file a brief by August 16, 2019 providing authority for why the ...


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