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Cheatwood v. Christian Brothers Services

United States District Court, D. Arizona

February 1, 2018

AARON and BREANNE CHEATWOOD, individually and as Next Best Friend of D.C., a minor child, Plaintiffs,


          H. Russel Holland United States District Judge.

         Motion to Quash; Motion to Compel

         Non-party Tri-State Care Flight, L.L.C. moves to quash Request Nos. 2 through 12 of a subpoena served upon it by defendant Sentinel Air Medical Alliance.[1] This motion is opposed and Sentinel cross-moves to compel Tri-State to respond to Request Nos. 2 through 12, as modified by Sentinel.[2] Sentinel's motion to compel is opposed.[3] Oral argument was requested but is not deemed necessary.


         Plaintiffs are Aaron and Breanne Cheatwood, individually, and as next best friend of D.C., a minor child. Defendants are Christian Brothers Services (“CBS”); Christian Brothers Employee Benefit Trust (“the Trust”); and Sentinel Air Medical Alliance.

         In April 2015, D.C. was transported by a medical transport helicopter from Yuma Regional Medical Center to Banner Cardon Children's Medical Center in Mesa, Arizona. Tri-State is the air ambulance company that transported D.C. to Mesa. Tri-State billed plaintiffs $61, 566 for the air transport. The Trust denied payment for the cost of the air transport, allegedly based on an opinion it obtained from Sentinel that the air transport was not medically necessary and that the charges were not reasonable.

         In their amended complaint, plaintiffs assert breach of contract and breach of the duty of good faith and fair dealing claims against CBS and the Trust. Plaintiffs have alleged that CBS and the Trust “acted unreasonably by relying upon the opinion of Sentinel Air, an obviously biased and anti-claimant medical reviewer, to deny [p]laintiffs' claim.”[4] Plaintiffs assert an aiding and abetting claim against Sentinel based on allegations that Sentinel aided and abetted CBS's and the Trust's breach of the duty of good faith and fair dealing.

         Sentinel contends that plaintiffs have disclosed $61, 566 as special damages, other unspecified “financial harm”, and damages for mental and emotional distress. Sentinel contends that plaintiffs are asserting that the outstanding bill from Tri-State for the cost of the air transport has become a threat to their credit rating. But, Sentinel contends that plaintiffs have, so far, not produced any evidence to support this assertion, and Sentinel contends that it is possible that plaintiffs are not being pursued by Tri-State for payment. Sentinel also contends that plaintiffs' claims are based on a theory that Sentinel provides biased opinions and that in developing this theory, plaintiffs have focused on Sentinel's company mission, which is “to provide solutions to effectively control rates and ensure proper utilization for air transport services.”[5] Sentinel contends that in order to defend against plaintiffs' bias theory, it will need to provide evidence of Tri-State's billing practices.

         On October 17, 2017, Sentinel served a subpoena on Tri-State, which contained twelve requests for documents. Request No. 1 sought Tri-State's records as they pertained to D.C. but did not actually name D.C., instead referring only to a “patient.”[6] Although Request No. 1 indicated that there was a release of information attached to the subpoena that identified the patient, [7] no release of information was attached. Request Nos. 2-12 sought commercial records and contracts as they pertained to Tri-State's business practices in Arizona. The compliance date stated on the subpoena was November 7, 2017.[8]

         Tri-State contends that prior to November 7, 2017, it informed Sentinel that it could not comply with the subpoena without a patient authorization form. Cheryl Brackney, a paralegal for Tri-State, avers that “prior to November 7, 2017, I contacted counsel for Sentinel, explaining that Tri-State could not respond to the Sentinel Subpoena because there was no patient-identifying information included. Additionally, I told Sentinel that Tri-State could not provide the requested information because the timeframe was too broad.”[9]Brackney further avers that “[o]ver the next few weeks, I continued to exchange voicemails with Sentinel's attorney regarding the lack of patient-identifying information and Tri-State's concerns regarding the scope of the request[s].”[10]

         Sentinel's counsel contends that she does not recall Brackney ever mentioning in her voicemails that Tri-State believed the subpoena was overbroad.[11] Sentinel contends that it requested that Tri-State comply with Request Nos. 2-12 pending receipt of the patient authorization form. Brackney, however, avers that “Sentinel never directed me to respond to requests 2 through 12 while we were discussing the problems with the Sentinel Subpoena.”[12]

         On November 29, 2017, Sentinel provided the patient authorization form to Tri-State. On December 14, 2017, counsel for Tri-State and Sentinel met and conferred and Tri-State agreed to respond to Request No. 1[13] and Sentinel agreed to narrow the scope of Request Nos. 2-12.[14] The modified requests are as follows:

Request No. 2: Those contracts and/or agreements with Yuma Regional Medical Center regarding the provision of air ambulance services to patients that were in effect between 2014-2016.
Request No. 3: Those contracts and/or agreements with Banner Desert Medical Center (the receiving hospital in this case) that relate to the provision of air ambulance services and that were in effect between 2014-2016.
Request No. 4: Those contracts and/or agreements that relate to the charges/pricing for air ambulance services in Arizona between Tristate and Medicaid in effect between 2014-2016.
Request No. 5: Documents related to marketing and/or business development that were used to promote Tristate's air ambulance services to Yuma Regional Medical Center and/or Banner Desert Medical Center between 2014 and 2016. This request includes, but is not limited to, flyers, brochures, presentations, emails, and/or letters.
Request No. 6: Contracts and/or agreements between Tristate and any insurance company and/or health care benefit provider, including but not limited to any managed care contracts, related to air ambulance services provided by Tristate in Arizona in effect between 2014 and 2016.
Request No. 7: Written complaints and/or reviews against Tristate for air ambulance services rendered in Arizona between 2014-2016. This request does not seek private information about patients, including patient names or other private health information as defined by HIPAA, and the documents produced in response to this request may be redacted to conceal such information.
Request No. 8: A copy of all billed charges billed by Tristate Careflight [to] patients traveling from Yuma Regional Medical Center to Banner Desert Medical Center ... for the years 2014 and 2015. This request does not seek medical records, but simply the amounts charged, and any patient identifying information may be redacted.
Request No. 9: All policies and procedures Tristate used to deter- mine whether air transportation is considered to be medically necessary that were in effect between 2014-2016.
Request No. 10: All policies and procedures that were in effect between 2014-2016 related to billing patients for services when those services/charges are not covered through insurance and/or other health benefit plans or for individuals who are not insured or who have no health plan benefits.
Request No. 11: Financial reports for air ambulance services provided from bases in Arizona that show gross revenue, net revenue, operating expenses, non-operating expenses and net income for the years 2014-2016.
Request No. 12: Documents showing the following for years 2014- 2016: air ambulance charges, payments, payor information, and contractual adjustments and write offs.[15]

         Sentinel requested that Tri-State notify it by December 19, 2017 as to whether Tri-State would respond to the modified requests.[16] On December 19, 2017, Tri-State informed Sentinel that it would not respond to Request Nos. 2-12, as modified, because they were unduly burdensome and requested confidential commercial information.

         Tri-State's motion to quash Request Nos. 2-12 followed. Sentinel responded to the motion to quash by filing a motion to compel Tri-State to respond to Request Nos. 2-12. These two motions are now ready for disposition.


         “Federal Rule of Civil Procedure 45 governs discovery of nonparties by subpoena.” ATS Products, Inc. v. Champion Fiberglass, Inc., 309 F.R.D. 527, 530 (N.D. Cal. 2015). Rule 45(d)(3)(A) provides, in pertinent part, that

[o]n timely motion, the court for the district where compliance is required must quash or modify a subpoena that:
* * * (iii) requires disclosure of privileged or other protected matter, if no exception ...

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