Arizona Court of Appeals Division One Vacates Superior Court’s Order Requiring Insurance Company’s Expert Physician to Produce Extensive Documentation In Response to Subpoena Duces Tecum

In connection with a car accident that resulted in an underinsured motorist (“UIM”) claim to American Family, American Family retained orthopedic surgeon Jon Zoltan, M.D.  He reviewed the claim and determined that the claimant and insured, Lauren Allo, had preexisting health issues and that those issues, rather than her car accident, explained her medical issues. 

Allo sued American family.  She alleged that American Family breached the terms of the insurance contract and acted in bad faith by, inter alia, retaining Dr. Zoltan because it knew he was biased against personal injury plaintiffs.  During discovery, Allo issued a subpoena duces tecum (“SDT”) to Dr. Zoltan, requiring the production of extensive documentation.  After an objection by Dr. Zoltan, a motion to compel by Allo, and a motion to quash by American family, the superior court ordered Dr. Zoltan to produce substantial information, including copies of all medical review reports and IME reports provided to insurance companies or their attorneys from 2000 to the present, the financial information requested regarding his total revenues from the insurance industry and their lawyers’ from 2000 to present, including fee information for cases from 2000 to present. 

Accepting special action jurisdiction, the Court began by noting that litigants are generally entitled to present evidence that tends to show bias on the part of experts.  While Allo must have “some latitude” in discovering evidence of bias, such latitude is “not unfettered.”  This need must be balanced against competing interests, including the right of witnesses to be free from unduly intrusive inquiries and the need to prevent “broad-ranging discovery forays that serve to increase the cost, length, and burden of litigation. . . .”   Addressing the superior court’s discovery order, the Court easily reversed the time frame set forth by the superior court.  Although Allo’s subpoena included requests for documents going back three to five years, the court’s order required Dr. Zoltan to produce documents going back nine years.  There was no basis in the record for this “significantly expanded order,” and the Court noted that a nine-year span would rarely be appropriate. 

The Court went on to find that litigants should “first pursue less intrusive discovery before resorting to broad demands” like those at issue here.  The Court found that Allo already had “substantial information about Dr. Zoltan . . . and his purported bias” and that this was not a “case of a recalcitrant expert,” as American Family had conceded that Allo may take Dr. Zoltan’s deposition to demonstrate bias.  On the issue of financial documents, the Court declined to adopt any “bright-line” standard, but agreed that courts have “gone too far in permitting burdensome inquiry into the financial affairs of physicians.”  The production of exhaustive financial documentation such as that sought by Allo “is appropriate only in the most compelling of circumstances, and only after less intrusive means of obtaining bias-related evidence has been explored.”

Division One vacated the superior court’s order and remanded for further proceedings, including an assessment of whether Allo has explored less intrusive discovery, and if so, whether she can demonstrate good cause for more expanded inquiries.

Judge Downie authored the opinion, with Judge Portley, Presiding Judge, and Judge Brown concurring.