Judge Theresa M. Traber, Case Number: BC649395, Date: 2025-03-05 Tentative Ruling

Judge: Theresa M. Traber, Case: BC649395, Date: 2025-03-05 Tentative Ruling

Case Number: BC649395 Hearing Date: March 5, 2025 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: March 5, 2025 TRIAL DATE: NOT SET

CASE: State of California v. Bruce E. Fishman, M.D.

CASE NO.: BC648395

ORDER TO SHOW CAUSE RE: RECONSIDERATION OF EVIDENCE PRESERVATION LETTER

MOVING PARTY: Plaintiffs State of California, the Counties of Los Angeles, Kern, San Bernardino, Ventura, Santa Barbara, the Cities of Los Angeles and Bakersfield, the School Districts of Los Angeles, McFarland, Visalia and Kern, the Health Care District of Tehachapi, ex rel. Med-Legal Associates, Inc. and CLCI, Inc;

RESPONDING PARTY(S): Defendants Bruce E. Fishman, M.D., Bruce E. Fishman, M.D., FISC, Inc. and Family Urgent Care & Industrial Medical Clinic, Inc.

CASE HISTORY:

· 01/27/17: Complaint filed under seal.

· 11/06/17: Order lifting seal entered.

· 12/22/17: First Amended Complaint filed under seal. (Not on eCourt, but attached as exhibit to a filing.)

· 02/17/21: Judgment on the Pleadings

· 02/22/21: Appeal filed by School Districts of Los Angeles, McFarland, et al. and GLC Operations, Inc., et al.

· 03/16/23: Remittitur filed, judgment reversed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a qui tam action alleging that Defendant Bruce E. Fishman lied on his application (concealing a felony conviction) to serve as a qualified medical evaluator (“QME”) in connection with the examination of injured workers for purposes of their eligibility for workers’ compensation benefits. Plaintiffs allege that Defendants billed Plaintiffs for medical evaluation services Defendant Fishman unlawfully performed under the pretense of being a validly appointed QME and collected public funds for these services.

On January 24, 2025, the Court issued an Order to Show Cause re: Reconsideration of the Court’s December 19, 2024 order directing the preparation of an evidence preservation letter. The Court instructed the parties to brief (1) the efficacy of an evidence preservation letter at this juncture and the range of documents to be preserved; (2) the basis for Plaintiffs’ proposed list of recipients; (3) the burden to be imposed on the recipients and the mechanisms to challenge the imposition of those burdens; (4) whether the privacy rights of any patients are implicated by the letter, and, if so, how those rights should be balanced against the need for the letter; and (5) whether the letter will have an unduly deleterious effect on Defendants’ current reputation and medical practice. The parties have completed their briefing, and the Court now issues a ruling.

TENTATIVE RULING:

On November 27, 2024, the Court ordered the parties to meet and confer regarding the preparation of a letter directing pertinent insurance companies to preserve records of potential relevance to this action. (November 27, 2024 Minute Order.) After reviewing the joint statements of the parties and a proposed letter, the Court ordered Plaintiff to prepare a final version of the letter with a list of proposed recipients. (December 19, 2024 Minute Order.) Plaintiffs submitted a final draft of the letter and listed over 900 proposed recipients of the notice. (See Notice of Final Proposed Evidence Preservation Letter filed January 10, 2025.) On January 24, 2025, in response to this extraordinary number of proposed recipients, the Court issued an Order to Show Cause re: Reconsideration of the Court’s December 19, 2024 order directing the preparation of an evidence preservation letter.

The Court has the inherent authority to amend and control its process and orders to conform to law and justice. (Code Civ. Proc. § 128(a)(8).) The Court may therefore reconsider its prior interim orders at any time during the pendency of the case. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1108 [distinguishing the Court’s inherent authority to reconsider rulings sua sponte from the prescribed, time-limited authorization for the parties to seek reconsideration by written motion].)

As part of the Order to Show Cause, the Court instructed the parties to brief (1) the efficacy of an evidence preservation letter at this juncture and the range of documents to be preserved; (2) the basis for Plaintiffs’ proposed list of recipients; (3) the burden to be imposed on the recipients and the mechanisms to challenge the imposition of those burdens; (4) whether the privacy rights of any patients are implicated by the letter, and, if so, how those rights should be balanced against the need for the letter; and (5) whether the letter will have an unduly deleterious effect on Defendants’ current reputation and medical practice.

At the outset, the Court must address the largely non-responsive nature of Defendants’ papers. Rather than directly address the issues on which the Court ordered briefing, Defendants’ counsel has once again devoted his attention and efforts to uncivil attacks on the relators and their counsel and irrelevant discussions of merits issues. The purpose of the Court’s solicitation of briefing is to obtain the assistance of counsel in framing the legal and factual issues and the application of law to facts. In this respect, Defendants briefing is of little material value. The Court instructed Defendants to brief specified issues. As Defendants have not heeded that instruction, the Court has little need or interest in considering Defendants’ briefing in ruling on this matter.

1. Efficacy of Evidence Preservation Letter

Plaintiffs assert that an evidence preservation letter is necessary because, according to Plaintiffs, the Court’s orders restraining discovery have hindered Plaintiffs’ ability to collect evidence regarding monetary recovery, thereby somehow necessitating an evidence preservation letter. Tellingly, however, an evidence preservation letter is not a form of discovery, and Plaintiffs do not and cannot contend that they have been barred from seeking an evidence preservation letter in the past or that any discovery stay issued in this case has prevented them from doing so. Moreover, invocation of the discovery stays that have been imposed in this case misses the point of the Court’s inquiry: given the age of the litigation and the expiration of Defendant’s QME license in 2014, what evidence would remain to be preserved at this late date? Plaintiffs have not addressed this question. While Plaintiffs have explained the scope of the inquiry from 2003 to the present as based on the additional allegations of falsified medical reports, they have not answered the threshold question of whether an evidence preservation letter would be of any use.

2. Basis for Recipients

Plaintiffs assert that the list of recipients was “carefully crafted” because it was unknown which insurance companies and payors received bills from Defendants, and, therefore, it is not possible to narrow the list of recipients. The Court is not persuaded. A list of 915 recipients is not, by any measure, “carefully crafted,” and the assertion that it is not possible to narrow the list of recipients does not militate in favor of issuing the letter to those recipients.

3. Burden on Recipients

Plaintiffs offer no factual basis for their speculation that the letter imposes minimal burden and costs upon the recipients, nor do they address how any recipient might challenge the burden imposed upon them.

4. Implication of Privacy Rights

Plaintiffs state, without explanation, that the privacy rights of patients are not implicated by the preservation letter. A bare assertion that does not demonstrate how Plaintiffs have reached their conclusion is not persuasive. Plaintiffs have offered no evidence, for example, that the targeted insurance companies are likely to have electronic records organized to allow for searches of the designated Qualified Medical Examiner, as opposed to records listed by the name of the individual claimants or their insurance-covered employers. In the absence of such evidence, the Court cannot conclude either that the burden of the search is minimal or the privacy disclosure insignificant.

5. Deleterious Impact on Reputation of Defendants

Plaintiffs contend that the substance of the letter is innocuous, and that any reputational implication to the Defendants is the natural and inescapable consequence of any third-party discovery. Leaving aside the unsupported nature of this assertion, Plaintiffs elide the central issue that the breadth of the proposed list of recipients, and not merely the name of the case, alerts such a wide range of entities to the existence of this litigation. Moreover, the evidence sought to be preserved expressly carries negative implications regarding Defendants’ medical legal reports.

Plaintiffs have offered the Court no meaningful explanation for the utility, breadth, or distribution of their proposed Evidence Preservation Letter. The Court authorized the preparation of an Evidence Preservation letter to mitigate the potential loss of evidence due to the age of this action. Plaintiffs’ proposal to send this letter to a purportedly irreducible list of 915 recipients strongly suggests that Plaintiffs have taken the Court’s order as an opportunity to weaponize this proceeding to harm Defendants’ reputation, without providing any support for a conclusion that it will have any constructive utility.

The Court therefore reconsiders and vacates its December 19, 2024 ruling directing the preparation of an Evidence Preservation letter. No evidence preservation letter shall be issued.

Court to give notice.

IT IS SO ORDERED.

Dated: March 5, 2025 ___________________________________

Theresa M. Traber

Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.