[Cite as Mezatasta v. Ent. Hill Farm,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY

Kasandra Mezatasta Court of Appeals No. E-15-037

Appellee Trial Court No. 2013-CV-0143

v.

Enterprise Hill Farm, et al. DECISION AND JUDGMENT

Appellant Decided: June 10, 2016

*****

Margaret M. Murray and Florence J. Murray, for appellee.

Patric Kasson, Justin D. Harris, and Acacia Perko, for appellant, Gerald S. Steinman.

Colleen A. Mountcastle and Melanie R. Irvan, for amicus curiae The Ohio Association of Civil Trial Attorneys.

***** JENSEN, P.J.

{¶ 1} Appellant, Gerald S. Steiman, M.D., appeals the June 4, 2015, and June 24,

2015 judgments of the Erie County Court of Common Pleas. For the reasons that follow,

we affirm as to the June 4, 2015 judgment, but reverse as to the June 24, 2015 judgment.1

I. BACKGROUND

{¶ 2} Plaintiff-appellee, Kasandra Mezatasta, filed suit against defendant-appellee,

Seth Tinker, and his employer, Enterprise Hill Farm, for injuries she sustained in a

February 24, 2011 automobile accident with Tinker. Tinker was allegedly acting in the

scope of his employment with, and operating a vehicle owned by, Enterprise Hill.

Defendants retained neurologist, Dr. Gerald Steiman, to perform an independent medical

examination (“IME”) of Mezatasta.

{¶ 3} On March 26, 2015, Mezatasta served Dr. Steiman with a subpoena ordering

him to appear for deposition on April 23, 2015, and to:

Bring with you the following records and documents for inspection,

which are in your possession and under your control. In lieu of your

appearance at this deposition, you may produce the following documents

and records by mailing the same to the undersigned attorney: copies of

your tax returns and 1099 forms for the tax years of 2009-2014.

1 The order dated June 24, 2015, was journalized on June 26, 2015, but because the parties consistently refer to the order by the date it was filed-stamped, we do so in this decision as well.

2. {¶ 4} In correspondence dated April 20, 2015, Dr. Steiman objected to producing

his personal tax returns. He instead volunteered information about the number of IMEs

he had performed in the previous three years and the income he received from those

IMEs.

{¶ 5} Plaintiff’s counsel and defense counsel communicated via email about the

documents requested of Dr. Steiman and Dr. Steiman’s proposed compromise. Plaintiff’s

counsel responded that the dispute could be resolved if Dr. Steiman would also produce a

list of cases in which he prepared expert reports for the preceding three years, along with

a designation as to which party (plaintiff or defendant) had retained him. Dr. Steiman

refused this alternative, claiming that the request was equally intrusive and burdensome.

{¶ 6} On April 23, 2015, defendants-appellees filed a motion to quash the

subpoena and for a protective order. They acknowledged that only the person

subpoenaed has standing to file a motion to quash, but they explained that Dr. Steiman

requested that defense counsel address the issue on his behalf. Defendants-appellees

argued that the subpoena is ambiguous because the body of the subpoena directed Dr.

Steiman to bring to a deposition “records and documents” that were “in [his] possession

and under [his] control,” without further explanation; that, as worded, the subpoena seeks

records protected by the physician-patient privilege; that the requested tax records

include information about all sources of income—not just IMEs—and are, therefore, not

relevant to the proceedings; and that it would be unduly burdensome for Dr. Steiman to

produce “records and documents” that are in his possession and under his control. They

3. urged that Mezatasta’s requests were “not typical” of those usually made of defense

experts. And they emphasized that the information Dr. Steiman voluntarily provided to

Mezatasta about the number of IMEs performed and the income derived from those IMEs

was sufficient to permit Mezatasta to cross-examine him as to potential bias.

{¶ 7} In response to defendants-appellees’ motion, Mezatasta argued that Dr.

Steiman was in contempt of court because he failed to timely comply with the subpoena

or move to quash or modify it for one of the enumerated reasons set forth in Civ.R. 45.

She claimed that defendants-appellees did not have standing to move to quash the

subpoena. And she maintained that defendants-appellees offered no support for their

contention that the tax records were protected by physician-patient privilege or that

production of the records would be unduly burdensome. Mezatasta insisted that it was of

no matter whether the requests were “typical.”

{¶ 8} Defendants-appellees responded. They represented that Dr. Steiman had

authorized them to act as a conduit in filing the motion to quash on his behalf, and they

pointed out that they had previously acted as such while negotiating with plaintiff’s

counsel toward a resolution to the dispute. They maintained that the subpoena was

defective because it did not identify what records Dr. Steiman was to produce at

deposition; it specified only what records to bring in lieu of appearing for deposition.

They also claimed that even if the “in lieu of” language specified the documents

requested, that section of the subpoena contains no “command” language as provided by

Civ.R. 45(A)(1)(b)(iv). They again argued that Dr. Steiman’s tax records would not be

4. relevant. They insisted that the information Dr. Steiman provided to Mezatasta was more

than adequate, and that the alternative proposed by Mezatasta was as burdensome as her

original request for documents. Defendants-appellees contended that Mezatasta sought

only to harass Dr. Steiman and to deter him from performing IMEs.

{¶ 9} In an order dated May 12, 2015, the trial court denied the motion to quash,

finding that defendants-appellees lacked standing to move to quash a subpoena served on

a third party. On May 21, 2015, Mezatasta filed a motion for contempt of court by Dr.

Steiman.

{¶ 10} At this point, Dr. Steiman engaged his own counsel who filed a

memorandum in opposition to the motion for sanctions, and an accompanying motion to

quash the subpoena and for a protective order. He urged that the issuance of the

subpoena was an abuse of the discovery process designed to inquire unnecessarily into

the confidential affairs of a non-party witness, and that the records requested would

reveal every aspect of Dr. Steiman and his wife’s financial situation. He also argued that

Mezatasta was not entitled to an award of sanctions because she failed to seek a court

order to compel production of documents following receipt of Dr. Steiman’s objections to

the subpoena. He again insisted that the information he voluntarily provided to

Mezatsasta concerning the number of IMEs he performed and amount earned from those

IMEs sufficed to provide Mezatasta with information needed to cross-examine him on the

issue of bias. Dr. Steiman cited case law where courts had specifically refused to compel

production of an expert witness’ tax returns. Taylor v. Frasure, Franklin C.P.

5. No.09CVC01-622 (Jan. 4, 2010); Stinchcomb v. Mammone,

, 2004-

Ohio-1276,

(5th Dist.).

{¶ 11} In an order journalized on June 4, 2015, the trial court denied the motion

for sanctions, but it also denied Dr. Steiman’s motion for protective order.

{¶ 12} In light of the court’s ruling, Dr. Steiman terminated his engagement with

defendants-appellees to avoid producing his financial documents. He filed a Civ.R.

60(B) motion for relief from judgment, requesting that the court vacate the previous

order. He argued (1) that Mezatasta failed to show a substantial need for the tax returns;

(2) that because he terminated his engagement with defendants-appellees, it would be

unjust to invade his private financial affairs, and (3) his motion was timely-filed. The

trial court denied Dr. Steiman’s motion in an order journalized on June 26, 2015.

{¶ 13} Dr. Steiman timely-appealed both the June 4, 2015, and June 24, 2015

judgments. He assigns the following errors for our review:

First Assignment Of Error: A Trial Court Abuses Its Discretion By

Denying A Third Party’s Motion To Quash When The Requesting Party

Did Not Show A Substantial Need For The Materials Sought Under The

Subpoena Or The Request Is Designed To Intimidate A Witness.

Second Assignment Of Error: A Trial Court Abuses Its Discretion

By Denying A Third Party’s Rule 60(B) Motion When The Motion Was

Timely, Demonstrated A Meritorious Defense And Set Forth Grounds For

Relief Under Civ.R. 60(B).

6. II. LAW AND ANALYSIS

{¶ 14} In this appeal, Dr. Steiman argues that the trial court abused its discretion

in denying his motion to quash because (1) Mezatasta did not show a substantial need for

the records, (2) there was no evidence that his tax records were relevant, (3) Mezatasta

had sufficient evidence to cross-examine him as to bias, and (4) the real purpose of the

subpoena was to intimidate him. He argues that the trial court also abused its discretion

in denying his Civ.R. 60(B) motion because the motion demonstrated a meritorious

defense given that Dr. Steiman no longer planned to testify, it set forth circumstances

justifying relief from judgment, and it was filed within a week of his withdrawing from

the case, and was, therefore, timely. Dr. Steiman also claims that it was error for the trial

court to fail to hold a hearing on his Civ.R. 60(B) motion.

{¶ 15} Before addressing the merits of Dr. Steiman’s appeal, we must determine

whether the June 4, 2015 judgment is a final appealable order. Mezatasta argues that it is

not. She claims that because Dr. Steiman is not a party to the litigation, is not integral to

the litigation, and, in fact, terminated his engagement to testify, the trial court’s June 4,

2015 judgment is not final and appealable.

{¶ 16} Generally speaking, discovery orders, including orders denying a motion to

quash a subpoena duces tecum, are interlocutory and are not immediately appealable.

Dispatch Printing Co. v. Recovery Ltd. Partnership,

, 2006-Ohio-

1347,

(10th Dist.); Munro v. Dargai, 8th Dist. Cuyahoga No. 54622,

7.

, *1 (Mar. 31, 1988). R.C. 2505.02(B) provides an exception to this

general rule, however. It provides, in pertinent part, as follows:

An order is a final order that may be reviewed, affirmed, modified,

or reversed, with or without retrial, when it is one of the following:

***

(4) An order that grants or denies a provisional remedy and to which

both of the following apply:

(a) The order in effect determines the action with respect to the

provisional remedy and prevents a judgment in the action in favor of the

appealing party with respect to the provisional remedy.

(b) The appealing party would not be afforded a meaningful or

effective remedy by an appeal following final judgment as to all

proceedings, issues, claims, and parties in the action.

Under R.C. 2505.02(A)(3), a “provisional remedy” is defined as “a proceeding ancillary

to an action, including, but not limited to, a proceeding for a preliminary injunction,

attachment, discovery of privileged matter, or suppression of evidence * * *.”

{¶ 17} A number of Ohio courts have concluded that an order compelling

discovery of privileged, potentially-protected information constitutes a final, appealable

order. Dispatch Printing Co. at ¶ 8. Some even go so far as holding that any “order

overruling a motion to quash a subpoena duces tecum issued to a non-party * * * is

appealable since the party has no recourse other than to appeal from the order overruling

8. the motion to quash,” without regard to whether the subpoena seeks privileged or

otherwise protected documents.

. See also Foor v. Huntington Nat. Bank,

,

(10th Dist. 1986); Tisco Trading USA, Inc. v.

Cleveland Metal Exch., Ltd., 8th Dist. Cuyahoga No. 97114,

; Scott

Process Sys., Inc. v. Mitchell, 5th Dist. Stark No. 2012CA00021,

, ¶ 23-

24. These cases make no distinction based on whether the non-party is “integral” to the

action, as argued by Mezatasta.

{¶ 18} We decline to adopt a blanket rule that in every instance, there is an

immediate right to an appeal of an order denying a motion to quash a subpoena duces

tecum issued to a non-party. Having said this, the documents at issue here are tax

returns. While tax returns are not, in a strict sense, “privileged,” the Ohio Supreme Court

has recognized that “tax returns reflect intimate, private details of an individual’s life,”

and citizens have an expectation of privacy with respect to their tax returns. State ex rel.

Fisher v. Cleveland,

,

,

, ¶ 27, 32. As

such, we conclude that discovery seeking production of a non-party’s tax returns is a

“provisional remedy,” and the trial court order at issue here “in effect determines the

action with respect to the provisional remedy.” Moreover, once Dr. Steiman produces his

tax returns, he will have no meaningful or effective remedy following final judgment of

the action. Accordingly, we find that the June 4, 2015 judgment is a final, appealable

order.

9. {¶ 19} Having concluded that the June 4, 2015 is a final, appealable order, we turn

to the merits of this appeal.

A. The June 4, 2015 Judgment

{¶ 20} In his first assignment of error, Dr. Steiman claims that the trial court

abused its discretion by denying his motion to quash because Mezatasta did not show a

substantial need for the materials sought and the request was designed merely to

intimidate him. He claims that there was no showing that his tax documents were

relevant, he provided sufficient information on which he could be cross-examined as to

bias, and he warns that requiring medical providers to produce their personal financial

records will shrink the number of providers who are willing to offer their services to

injured parties and to serve as experts in litigation.2

{¶ 21} Mezatasta responds that Dr. Steiman failed to timely object to the

subpoena. She states that the subpoena was served on March 26, 2015, Civ.R.

45(C)(2)(b) permits the subpoenaed party to serve written objections within 14 days after

service, and Dr. Steiman failed to object until April 20, 2015. She contends that the

subpoenaed documents were limited in scope and time as “compared to other subpoenas

served on Appellant and other forensic medical examiners.” While generally discussing

the fact that bias and pecuniary interest are permissible areas of inquiry on cross-

2 The Ohio Association of Civil Trial Attorneys (“OACTA”) filed a brief of amicus curiae in support of Dr. Steiman’s position. OACTA argues that requiring expert witnesses to disclose personal tax returns is overly-intrusive and will serve to increase litigation expenses and reduce a party’s ability to retain well-qualified experts. It also argues that the tax returns of an expert are confidential and irrelevant.

10. examination, she fails to articulate how the documents requested in the subpoena would

assist in that inquiry, and focuses mainly on how her proposed compromise to Dr.

Steiman’s objections further that purpose.

{¶ 22} It is well-established that trial courts have broad discretion over discovery

matters. State ex rel. Citizens for Open, Responsive & Accountable Govt. v. Register,

,

,

, ¶ 18. Generally, absent an abuse of

discretion, we will not overturn a trial court’s decision to enforce a subpoena. Block

Communications v. Pounds,

,

, ¶ 33. (6th Dist.). “Abuse

of discretion” implies that the trial court’s attitude is “unreasonable, arbitrary, or

unconscionable.” Blakemore v. Blakemore,

,

(1983).

{¶ 23} The trial court denied Dr. Steiman’s second motion to quash because it

found that it did not “place any undue burden on Dr. Steiman.” It seemingly failed,

however, to consider Dr. Steiman’s contention that his personal income tax returns are

not relevant, are confidential, and are not subject to discovery. Dr. Steiman cites

Stinchcomb v. Mammone,

,

,

, in

support of his position.

{¶ 24} In Stinchcomb, plaintiff issued a subpoena duces tecum to the doctor hired

by the defense to perform an IME. The subpoena required the doctor to produce the

number of IMEs he performed at the request of any defense law firm or insurance

company for a four-year period, the amount of money he or his office earned in

11. performing IMEs during that period, and copies of all tax form 1099’s he or his business

received from any defense law firm or insurance company showing payments made to

him for that period. Id. at ¶ 10-12. The doctor and his practice retained counsel and

objected to the production of the documents. Id. at ¶ 13-14. Plaintiff filed a motion to

compel compliance with the subpoena, indicating that the documents were relevant to

demonstrate the doctor’s possible bias or pecuniary interest. Id. at ¶ 15. The trial court

denied the motion, finding that the doctor had “provided more than sufficient information

and Plaintiffs are not entitled to the privileged information sought in the subpoena.” Id.

at ¶ 18. The Fifth District affirmed the trial court’s decision.

{¶ 25} Here, the tax records requested in Mezatasta’s subpoena actually went well

beyond what was requested by the plaintiff in Stinchcomb. In Stinchcomb, the plaintiff

requested 1099s from defense firms and insurance companies. Mezatasta requested all of

Dr. Steiman’s 1099s and income tax returns for a five-year period. As Dr. Steiman

points out, these documents would reflect income from all sources and would include his

wife’s financial information as well. He also maintains that he performed IMEs as an

employee of Steiman Neurology Group—thus his personal tax returns and 1099s would

not distinguish what amount of his income is attributable to the IMEs he performs. So

while we agree with the trial court that Mezatasta’s request did not place an undue burden

12. on Dr. Steiman, we question the trial court’s failure to consider the relevance of the

documents and Mezatasta’s need for them.3

{¶ 26} Having said this, Civ.R. 45(C)(2)(b) provides a mechanism for a non-party

to challenge a subpoena:

[A] person commanded to produce under divisions (A)(1)(b), (iii),

(iv), (v), or (vi) of this rule may, within fourteen days after service of the

subpoena or before the time specified for compliance if such time is less

than fourteen days after service, serve upon the party or attorney designated

in the subpoena written objections to production. If objection is made, the

party serving the subpoena shall not be entitled to production except

pursuant to an order of the court by which the subpoena was issued. If

objection has been made, the party serving the subpoena, upon notice to the

person commanded to produce, may move at any time for an order to

compel the production. * * * (Emphasis added.)

{¶ 27} Thus, where a party makes written objection within 14 days of receiving

the subpoena, it is incumbent on the issuing party to seek a court order compelling

production. The rule also provides a mechanism by which the subpoenaed non-party can

seek court intervention:

3 The Franklin County Court of Common Pleas addressed a similar issue in Taylor v. Frasure, Franklin C.P. No. 09CVC01-622 (Jan. 4, 2010), another case in which Dr. Steiman performed an IME and medical records review at defense counsel’s request. The court held that “[t]o the extent that the plaintiff is seeking tax related documents showing all income received by Dr. Steiman since 2006, the Court finds that this documentation is not relevant.” Id. at 2.

13. (3) On timely motion, the court from which the subpoena was issued

shall quash or modify the subpoena, or order appearance or production only

under specified conditions, if the subpoena does any of the following:

***

(b) Requires disclosure of privileged or otherwise protected matter

and no exception or waiver applies;

***

(d) Subjects a person to undue burden. (Emphasis added.)

{¶ 28} But before seeking court intervention, Civ.R. 45(C)(4) requires both that

the “person resisting discovery * * * attempt to resolve any claim of undue burden

through discussions with the issuing attorney[,]” and that a motion filed under Civ.R.

45(C)(3)(d) “be supported by an affidavit of the subpoenaed person or a certificate of that

person’s attorney of the efforts made to resolve any claim of undue burden.”

{¶ 29} Dr. Steiman followed none of these procedural rules. His written

objections to the subpoena were provided more than a week late; the motion permitted by

Civ.R. 45(C)(3) was filed by a party without standing to file on his behalf and was not

filed within 14 days of the issuance of the subpoena; and the original motion to quash

was not accompanied by the required affidavit or certification of the efforts to resolve Dr.

Steiman’s claim of undue burden. See Trick v. Scherker, 2d Dist. Montgomery No.

26461,

, ¶ 12, 16 (refusing to strictly enforce the provisions of Civ.R. 45

against issuing party where recipient, plaintiff’s treating physician, failed to adhere to 14-

14. day objection period); McDade v. Morris, 9th Dist. Summit No. 27454,

(finding that failure to comply with affidavit or certification provision of Civ.R.

45(C)(4) warranted denial of motion to quash); Jones v. Records Deposition Serv. of

Ohio, Inc., 6th Dist. Lucas No. L-01-1333,

, ¶ 13 (recognizing that only

the person subpoenaed has standing to file a motion to quash subpoena).

{¶ 30} Because of Dr. Steiman’s failure to abide by the procedures set forth in

Civ.R. 45(C), we find his first assignment of error not well-taken.

B. The Denial of the Civ.R. 60(B) Motion

{¶ 31} In his second assignment of error, Dr. Steiman contends that the trial court

abused its discretion in denying his Civ.R. 60(B) motion filed on June 12, 2015. He

argues that because he withdrew as a witness, there were new and changed circumstances

entitling him to relief from the June 4, 2015 judgment. He contends that where an expert

witness withdraws from a case, he should have no obligation to produce his personal

information because he will not be cross-examined. He relies on Civ.R. 60(B)(5) as the

basis for his motion. Dr. Steiman also submits that he was entitled to a hearing on his

motion.

{¶ 32} Mezatasta counters that because Dr. Steiman was in contempt of court by

the time his counsel filed a motion to quash on his behalf, he is not entitled to relief from

judgment. She fails to address the fact that Dr. Steiman withdrew as a witness and will,

therefore, not be subject to cross-examination—a significant change in circumstances

from those that existed at the time the court issued its June 4, 2015 judgment.

15. {¶ 33} Civ.R. 60(B) provides that:

On motion and upon such terms as are just, the court may relieve a

party or his legal representative from a final judgment, order or proceeding

for the following reasons: (1) mistake, inadvertence, surprise or excusable

neglect; (2) newly discovered evidence which by due diligence could not

have been discovered in time to move for a new trial under Rule 59(B); (3)

fraud * * *, misrepresentation or other misconduct of an adverse party; (4)

the judgment has been satisfied, released or discharged, or a prior judgment

upon which it is based has been reversed or otherwise vacated, or it is no

longer equitable that the judgment should have prospective application; or

(5) any other reason justifying relief from the judgment. The motion shall

be made within a reasonable time, and for reasons (1), (2) and (3) not more

than one year after the judgment, order or proceeding was entered or taken.

A motion under this subdivision (B) does not affect the finality of a

judgment or suspend its operation.

{¶ 34} In GTE Automatic Elec., Inc. v. ARC Indus., Inc.,

, 150-

51,

(1976), the Supreme Court of Ohio elaborated on what must be

established to prevail on a motion filed under Civ.R. 60(B):

To prevail on [a] motion under Civ.R. 60(B), the movant must

demonstrate that: (1) the party has a meritorious defense or claim to present

if relief is granted; (2) the party is entitled to relief under one of the grounds

16. stated in Civ.R. 60(B)(1) through (5); and (3) the motion is made within a

reasonable time, and, where the grounds of relief are Civ.R. 60(B)(1), (2) or

(3), not more than one year after the judgment, order or proceeding was

entered or taken.

{¶ 35} Certainly, Dr. Steiman’s Civ.R. 60(B) motion was timely, filed just days

after judgment was entered. Thus, our focus is on the first and second GTE elements.

{¶ 36} Civ.R. 60(B)(5) is a “catchall provision which reflects the inherent power

of a court to relieve a person from the unjust operation of a judgment.” Volodkevich v.

Volodkevich,

,

(1988). It cannot be used as a

substitute for one of the more specific provisions of Civ.R. 60(B). Guardian Alarm Co.

v. Mahmoud,

,

,

(6th Dist.),

citing Caruso–Ciresi, Inc. v. Lohman,

,

, paragraph two

of the syllabus. A moving party must have substantial grounds for invoking Civ.R.

60(B)(5).

{¶ 37} “Civ.R. 60(B) is a remedial rule to be liberally construed with a view

toward effecting a just result.” Rose Chevrolet, Inc. v. Adams,

,

(1988). Generally, an appellate court will not reverse a trial court’s decision

on a motion for relief from judgment absent an abuse of discretion. Birr v. Birr, 2012-

Ohio-187,

, ¶ 26 (6th Dist.). Here, however, the trial court failed to

provide any rationale for denying Dr. Steiman’s motion, and we find that Dr. Steiman’s

withdrawal from the case constitutes substantial grounds for invoking Civ.R. 60(B)(5).

17. As discussed earlier in this decision, the tax records that Dr. Steiman was ordered to

produce would reflect income from all sources, would include his wife’s financial

information, and would not differentiate as to what portions of his income are attributable

to the IMEs he performs. As the documents were of questionable relevance when Dr.

Steiman was set to testify as a defense witness, they are of absolutely no relevance now

that he has withdrawn from the case. Under these circumstances, the trial court abused

its discretion in denying Dr. Steiman’s Civ.R. 60(B) motion.

{¶ 38} We, therefore, find Dr. Steiman’s second assignment of error well-taken.

III. CONCLUSION

{¶ 39} We find Dr. Steiman’s first assignment of error not well-taken and affirm

the June 4, 2015 judgment of the Erie County Court of Common Pleas; however, we find

his second assignment of error well-taken, and reverse its June 24, 2015 judgment. We

remand this matter to the trial court for further proceedings consistent with this decision.

The costs of this appeal are assessed to Mezatasta pursuant to App.R. 24.

Judgment affirmed, in part and reversed, in part.

18. E-15-037 Mezatasta v. Enterprise Hill Farm, et al.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J. _______________________________ JUDGE Stephen A. Yarbrough, J. _______________________________ James D. Jensen, P.J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.

19.