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Melissa Crable v. State Farm Mutual Automobile Insurance Company

November 14, 2011



Before the court are the following motions:

1. Defendant State Farm Mutual Automobile Insurance Company's ("State Farm") Motion to Seal Plaintiff Ainaseth Montanez's Notice of Service of Verified Second Amended Answers to Defendant's Second Supplemental Interrogatories, filed on August 15, 2011. (Doc. 64).

2. Defendant's Motion to Compel Responses to Amended Supplemental Interrogatories to Plaintiff and Incorporated Memorandum of Law, filed on August 15, 2011. (Doc. 65).

3. Motion for Protective Order and to Quash or Modify Subpoena Directed to Non-Party Millennium Medical Management, LLC and Memorandum of Law in Support of Same, filed on August 29, 2011. (Doc. 69).

4. Non-party Millennium Medical Management, LLC and Dr. Ara Deukmedjian's Motion for Leave to Supplement Motion for Protective Order and to Quash, filed on September 16, 2011. (Doc. 76).

5. Defendant's Motion to Compel and For Sanctions Regarding Deposition of Millennium Medical Management Corporate Representative and Incorporated Memorandum of Law, filed on October 7, 2011. (Doc. 81).

6. The Records Custodian of Morgan and Morgan, P.A. Motion for Protective Order to Defendant's Non-Party Subpoena Duces Tecum, filed on October 13, 2011. (Doc. 83).

I. Background

This is an action for uninsured/under-insured motorist benefits brought by plaintiff against State Farm for injuries she allegedly incurred in a November 12, 2008 automobile accident. Following the accident, plaintiff underwent medical treatments and she engaged the firm of Morgan & Morgan as her attorneys. The firm referred her to Dr. Ara Deukmedjian at Millennium Medical Management, a/k/a The Deuk Spine Institute ("Deuk Spine") which entered into an agreement with her to take a lien on the proceeds of this lawsuit rather than bill her insurance carrier. Dr. Deukmedjian examined the plaintiff and performed surgical procedures on her cervical spine. Now, she claims $76,000 in economic damages nearly $65,000 of which results from the treatment provided by Dr. Deukmedjian.*fn1 The plaintiff intends to rely upon her treating physicians, including Dr. Deukmedjian, for any expert testimony in her case against State Farm.

After the plaintiff was treated by Deuk Spine, the Morgan & Morgan firm withdrew as her counsel. Then State Farm served a non-party subpoena duces tecum on the records custodian of Morgan & Morgan seeking extensive discovery concerning the relationship between the law firm and Deuk Spine. Morgan & Morgan has objected to the subpoena. State Farm has also attempted to subpoena records from Deuk Spine which has objected and State Farm took a Rule 30(b)(6) deposition of Deuk Spine which it complains, did not comply with its obligations under the Rule. On November 2, 2011, the Court heard oral argument on the motions.

The core issue before this Court is the scope of discovery State Farm may obtain from the plaintiff, Deuk Spine and Morgan & Morgan concerning the relationship between Morgan & Morgan and Deuk Spine. These parties are simultaneously litigating the same issue in three or more pending state court actions including Ainaseth Montanez and Red Starke v. Rosina M. Abbate, Case No.: 48-2010-CA-73-O in the Circuit Court in and for Orange County, Florida. In Montanez, the plaintiffs have disclosed, pursuant to court order, that within the last four years, Morgan & Morgan has referred approximately 176 clients to Deuk Spine for independent medical examinations and that during the past three years, Morgan & Morgan has paid Deuk Spine approximately $2,955,786.74. Based upon the arguments of counsel, the Court understands these figures are only for cases in which a lawsuit was filed.

State Farm has commenced the deposition of Ms. Margaret Zukoski in the Montanez case. Morgan & Morgan has yet to cross-examine Ms. Zukoski and the completion of her deposition is pending rulings by the state court on Morgan & Morgan's objections including to the discovery of documents Ms. Zukoski brought to the deposition. According to Morgan & Morgan, the deponent is a disgruntled ex-employee, her deposition is incomplete, most of what she has to say is speculation and hearsay and therefore, this Court should not consider the testimony she has given so far. To date, Ms. Zukoski has testified, inter alia, that:

1. For four years she worked for Morgan & Morgan as a litigation paralegal. (Page 5. Lines 10-16)

2. Her responsibilities included dealing with treating physicians. (Page 5, Line 24-Page 6, Line 16)

3. In September or October of 20009, Dr. Deukmedjian went to Morgan & Morgan spoke to the case managers about his laser surgery and told them they should be sending their clients to him. (Page 24, Lines 18-25)

4. Attorney, Dan Newlin, operating from Morgan & Morgan, would send patients to Deuk Spine if there was any bulge depicted on an MRI. Dr. Deukmedjian would perform surgery and submit a bill. (Page 19, Line 8-Page 20, Line 2 and Page 22, Line 25-Page 23, Line 12)

5. Morgan & Morgan would then handle the case. (Page 23, Lines 15-17)

6. There was an arrangement between Deuk Spine and Morgan & Morgan that Deuk Spine would accept half the amount billed for the surgery. (Page 20, Lines 3-20 and Page 37, Lines 5-15)

7. The full amount of the Deuk Spine bill, not the amount Deuk Spine had agreed to accept was used at mediation and trial. (Page 37, Line 24-Page 38, Line 14)

8. The purpose of the association between Dan Newlin and Deuk Spine was to have Deuk Spine perform surgery on the clients to generate money. (Page 23, Line 24-Page 24, Line 10)

9. Deuk Spine would request and be provided liability insurance policy limits. Deuk Spine also wanted to know the date a demand was sent, how much was demanded, whether trial was set and how soon Deuk Spine could expect payment. (Page 25, Lines 8-22)

10. Deuk Spine would send to Morgan & Morgan a list of the patients about whom it wanted this information. (Page 26, Lines 2-7)

11. Morgan & Morgan no longer uses Deuk Spine because Dr. Deukmedjian "got greedy" and began wanting his entire bill paid instead of the half previously agreed to. (Page 48, Lines 14-19)

12. Ms. Zukoski testified to being in possession of a 25 page "Vendor Check History" listing payments made by Morgan & Morgan to Deuk Spine between ...

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