CONSTANTINE HELLEN, Plaintiff, v. AMERICAN FAMILY INSURANCE COMPANY, Defendant Civil Action No. 22-cv-02717-REB-SBP United States District Court, D. Colorado filed February 29, 2024 Counsel Jessica L. Breuer, Stephen Jonathan Burg, Burg Simpson Eldredge Hersh Jardine PC, Englewood, CO, for Plaintiff. Billy-George Hertzke, SGR, LLC, Jessica Rae Schultz, Gordon Rees Scully Mansukhani LLP, Denver, CO, for Defendant. Blackburn, Robert E., United States District Judge ORDER *1 Due to the exigencies of the case, I previously overruled, by short-form order, Plaintiff's Objection to United States Magistrate Judge's Order on Motion To Quash Subpoena [#75],[1] filed January 23, 2023. (Order Overruling Plaintiff's Objection to United States Magistrate Judge's Order on Motion To Quash Subpoena [#79], filed February 21, 2024.) I issue this order to expatiate my analysis and decision. Plaintiff's objection pertains to non-dispositive matters that were referred to the magistrate judge for resolution. See Hutchinson v. Pfeil, 105 F.3d 562, 566 (10th Cir.) (“Discovery is a nondispositive matter.”), cert. denied, 118 S.Ct. 298 (1997). Pursuant to 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72(a), I may modify or set aside any portion of a magistrate judge's order which I find to be clearly erroneous or contrary to law. “The clearly erroneous standard requires that the reviewing court affirm unless it on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Ocelot Oil Corp. v. Sparrow Industries, 847 F.2d 1458, 1464 (10th Cir. 1988) (citation and internal quotation marks omitted). “The contrary to law standard permits plenary review as to matters of law, but the Court will set aside a Magistrate Judge's order only if it applied the wrong legal standard or applied the appropriate legal standard incorrectly.” Seidman v. American Family Mutual Insurance Co., 2016 WL 6518254 at *1 (D. Colo. Nov. 3, 2016) (internal citations and quotation marks omitted). In other words, the magistrate judge enjoys broad discretion in the resolution of non-dispositive discovery disputes. See id. That discretion was not abused here. The magistrate judge's order is an exemplar of thoughtful and thorough analysis. She has conscientiously and carefully reviewed the difficult and unsettled legal issues raised by and inherent to defendant's motion to quash the subpoena directed to its expert witness.[2] Having reviewed the order and the record, and having considered the arguments and authorities raised in the objection and the response,[3] I perceive neither legal nor factual error in the magistrate judge's determination of the issues presented to her for determination. Plaintiff maintains the magistrate judge clearly erred in concluding plaintiff was not entitled to discovery of the ten most recent narrative IME reports authored by Dr. Eric Hammerberg, the physician who performed an IME of plaintiff on behalf of defendant and who has been designated as an expert for defendant.[4] Plaintiff insists the magistrate judge misunderstood the distinction between doctors such as Dr. Hammerberg, who conduct IMEs as part of the claims adjusting process, and other medical experts who might be designated in the context of litigation. *2 I am unpersuaded. The magistrate judge plainly appreciated the nature of plaintiff's claim: that defendant chose Dr. Hammerberg because he was biased in favor of insurance companies. She also recognized that such circumstances, if proven, might give rise to a viable claim. See Young v. American National Property & Casualty Co., 2021 WL 7411471 at *2 (D. Colo. Dec. 13, 2021) (“[A] bad faith claim may arise where the insurer allegedly chooses an insurer-biased physician to conduct the examination.”) (emphasis in original).[5] Nevertheless, and more saliently, she concluded plaintiff failed to show the information he sought would be relevant to proving any such bias, or that any minimal relevance it might have was outweighed by the undue burden on Dr. Hammerberg in responding to the request. That conclusion was not clearly erroneous. As the magistrate judge noted, plaintiff's purported evidence of bad faith is extremely tenuous. Essentially, it is based on little more than that Dr. Hammerberg's opinion was unfavorable to plaintiff's claim for benefits. Plaintiff's contention that he need not proffer evidence of Dr. Hammerberg's alleged bias because his claim is founded on that purported bias is tautological and ludicrous. While bias is always relevant for purposes of impeachment, where a plaintiff's entire claim is premised on the alleged bias of the examiner, counsel's duties under Rule 11 plainly require more than the “evidence” put forth here.[6] As the magistrate judge found, given this dearth of evidence, the requested reports – each involving a unique set of facts and circumstances – would not necessarily establish Dr. Hammerberg's bias in favor of insurance companies.[7] Even if the evidence were to show that some statistically significant percentage of Dr. Hammerberg's IME findings are favorable to the insurer, “[s]uch a finding ... is not necessarily evidence of unreasonable or biased medical opinions:” If the insurer requests medical records reviews when it has a reasonable doubt regarding causation, the fact that the reports support the insurer's position on causation does not establish that the doctors were biased or their opinions were not objectively reasonable. The reasonableness of physicians’ opinions can only be determined by evaluating them in light of the medical and other evidence in the claim. Abueg v. State Farm Mutual Automobile Insurance Co., 2014 WL 5503114 at *6 (D. Nev. Oct. 30, 2014).[8] In the absence of this context, the requested evidence would have little probative value. *3 Moreover, I cannot find the magistrate judge erred in concluding that requiring Dr. Hammerberg to comply with the subpoena would impose an undue burden on him. Plaintiff maintains that courts of this district have granted such requests, citing Bryant v. Dillon Real Estate Co., 2019 WL 3935174 at *2 (D. Colo. Aug. 20, 2019), and Douponce v. Drake, 183 F.R.D. 565, 567 (D. Colo. 1998). These decisions are readily distinguishable. Both involve the interpretation of Rule 35, which requires the party requesting the examination to “on request, deliver to the requester a copy of the examiner's report, together with like reports of all earlier examinations of the same condition.” FED. R. CIV. P. 35(b)(1) (emphasis added). Not surprisingly, therefore, neither decision discusses whether requiring compliance constitutes an undue burden.[9] Nor do I concur with plaintiff's self-serving characterization of the subpoena as “appropriately tailored.” The request here is not limited to IME reports Dr. Hammerberg authored on behalf of defendant, or which involved injuries similar to plaintiff's, or even injuries allegedly related to covered automobile accidents. The out-of-district cases on which plaintiff relies which permitted discovery of past IME reports plainly were more narrowly focused than this request.[10] See Kelly v. Provident Life & Accident Insurance Co., 2010 WL 3259997 at *1 (D. Vt. Aug. 17, 2010) (compelling production of IMEs “prepared for Defendants”); Hussey v. State Farm Lloyds Insurance Co., 216 F.R.D. 591, 593, 594 (E.D. Tex. 2003) (subpoena sought “engineering reports prepared by State Farm for the past five years on residential foundation claims where damage was alleged to be caused by a plumbing leak”). Cf. Abueg, 2014 WL 5503114 at *6 (distinguishing Hussey on ground that request involved “substantially the same factual issue” as case before court); Aiken v. Rimkus Consulting Group, Inc., 2007 WL 1101210 at *2 (S.D. Miss. Apr. 4, 2007) (denying discovery not cabined to specific engineer and engineering firm implicated by plaintiff's claims); Cartier, Inc. v. Four Star Jewelry Creations, Inc., 2003 WL 22227959 at *3 (S.D.N.Y. Sept. 26, 2003) (refusing plaintiffs’ request for expert reports from all cases in which expert testified in the last five years; distinguishing Hussey as “confined to expert reports dealing with the same facts and issues as the case being considered”). *4 For these reasons, the magistrate judge's order was neither clearly erroneous nor contrary to law, and plaintiff's objection accordingly was overruled. Dated February 29, 2024, at Denver, Colorado. Footnotes [1] “[#75]” is an example of the convention I use to identify the docket number assigned to a specific paper by the court's case management and electronic case filing system (CM/ECF). I use this convention throughout this order. [2] Indeed, the magistrate judge afforded plaintiff the benefit of the doubt in assuming, without deciding, that Rule 45(b) permits a party to seek discovery from its opponent's expert. Having reviewed the conflicting authorities on this issue, the court is not convinced it would have decided similarly. [3] I reiterate that I do not consider the arguments raised in plaintiff's unauthorized reply brief. (Order Overruling Plaintiff's Objection at 1-2.) [4] Plaintiff's objections do not implicate the magistrate judge's additional determination limiting plaintiff's request for Dr. Hammerberg's personal financial information. Her order as to that aspect of the subpoena therefore stands. FED. R. CIV. P. 72(a) (“A party may not assign as error a defect in the order not timely objected to.”). See also Franke v. ARUP Laboratories, Inc., 390 Fed. Appx. 822, 828 (10th Cir. 2010). [5] I note that the discussion of this issue in Young patently was mere dicta. Moreover, as the magistrate judge accurately recognized, and plaintiff does not challenge, Young did not involve any question related to discovery under the circumstances presented here. (Order on Motion To Quash at 11 n.4.) [6] As the magistrate judge noted, the “facts” that Dr. Hammerberg performs work on behalf of insurance companies, that his report allegedly contains factual inaccuracies, and that his conclusions contradict those of plaintiff's own doctors do not readily distinguish this case from any other in which a plaintiff disagrees with his insurer's assessment of the extent and/or accident-relatedness of his injury. [7] With absolutely no factual substantiation whatsoever, plaintiff breathlessly informs the court: There exists a subset of medical professionals who, driven by vested interests, effectively align their loyalties with insurance companies. They generate reports that favor these insurance companies, ostensibly providing ‘objective’ medical evaluations. And then rewarded for their efforts, these medical professionals are incentivized to continue producing such skewed reports. And the insurance companies, either directly or indirectly through intermediaries, ensure a continuous supply, thereby perpetuating a cycle. (Obj. at 10 (internal citation omitted).) This court does not resolve legal questions based on conspiracy theories. [8] The Abueg court also disagreed with the conclusion of another court that “collateral ‘mini-trials’ regarding medical opinions rendered in other claims can be easily avoided if the validity or invalidity of those opinions is to be fairly considered.” Abueg, 2014 WL 5503114 at *6. I share that concern as well. [9] Plaintiff grapples not at all with the magistrate judge's additional conclusion that disclosing the reports, even with the subjects’ names redacted, raises concerning implications for the privacy interests of those individuals. [10] The other case cited by plaintiff, Hangarter v. Provident Life & Accident Insurance Co., 373 F.3d 998 (9th Cir. 2004), involved an appeal of the denial of a motion for judgment as a matter of law following a jury trial and did not address any question of discoverability at all. See id. at 1011 (finding sufficient evidence supported jury's determination that defendant was liable for bad faith based on evidence including, but not limited to, that defendant used same IME examiner nineteen times in five years). The case therefore is wholly inapposite. Moreover, in addition to the substantial other evidence of bias adduced at that trial, the inference of bias in that case was substantiated by the testimony of an industry standards expert, who testified that “when an insurer ‘use[s] the same [IME] on a continual basis,’ the medical examiner becomes ‘biased’ because they ‘lose their independence.’ ” Id. No such evidence has been presented here. (See supra, n.7.)