APPEAL FROM COURT OF APPEALS CASE NO. 2018-CA-000392
JEFFERSON CIRCUIT COURT NO. 16-CI-002639
COUNSEL FOR APPELLANT: Eric Shawn Rice Kristin M. Lomond
Daniel S. Gumm Quintairos, Prieto, Wood 8b Boyer, P.A.
COUNSEL FOR APPELLEES ROBERT KLEINFELD, DC; INDIVIDUALLY AND
AS CORPORATE REPRESENTATIVE FOR LOUISVILLE SPORTS INJURY
CENTER, P.S.C. D/B/A LOUISVILLE SPORTS INJURY CHIROPRACTIC
INJURY 8b REHAB CENTER: John H. Ruby John H. Ruby 8&
COUNSEL FOR REAL PARTY IN INTEREST JEFFREY A. STREEVAL:
Michael Andrew Landisman Honorable Brian Edwards, Circuit
Judge Jefferson Circuit Court, Division Eleven
Property & Casualty Insurance Co. appeals from the Court
of Appeals' decision to grant Dr. Robert Kleinfeld's
writ petition precluding the discovery of certain
information. Finding that the Court of Appeals did not
properly apply the extraordinary writ petition standard, we
reverse the Court of Appeals.
is the insurer for Jeffery A. Streeval. Following an
automobile accident, Streeval filed a claim with Allstate for
basic reparation benefits. Allstate filed a petition, under
Kentucky Revised Statutes ("KRS") 304.39-
280(3), in Jefferson Circuit Court to require
Streeval to submit to an examination under oath to determine
the legitimacy of his claim. Streeval filed a counterclaim,
alleging that Allstate violated the Kentucky Motor Vehicle
Reparations Act by refusing to pay his medical expenses
without reasonable foundation. At issue is Allstate's
discovery request for information from Dr. Robert Kleinfeld,
individually and as corporate representative for Louisville
Sports Injury Center, P.S.C. ("LSIC"), LSIC being a
nonparty that provided medical treatment to Streeval.
dispute leading to Dr. Kleinfeld's writ petition is
Allstate's notice to take a deposition duces tecum and
the issuance of a subpoena duces tecum upon Dr. Kleinfeld as
the corporate representative of LSIC. Allstate requested Dr.
Kleinfeld to appear and produce the following information:
(1) The entire file related to Jeffrey Streeval, cover to
cover, including anything stored electronically.
(2) Any and all correspondence, documents, materials or other
items which are in your possession regarding the medical
reports and bills related to treatment provided by
Louisville Sports & Injury Center for
(3) Any and all documents evidencing that Louisville Sports
& Injury Center paid any other provider for the Jeffrey
Streeval Magnetic Resonance Imaging Scans (hereinafter
"MRI's") and how much Louisville Sports
& Injury Center paid any other medical provider
for Jeffrey Streeval's MRI.
(4) Any and all contracts, agreements and other documents
evidencing an agreement between Louisville Sports
& Injury Center and the medical provider that
provided Jeffrey Streeval's MRI.
(5) Any and all Articles of Incorporation (including all
amendments and addendums).
(6) Any and all reports authored by the radiologist who read
and interpreted Jeffrey Streeval's MRI(s). (This
includes any and all versions, drafts, and editions,
including any furnished directly from the radiologist and any
companies who employed the radiologist.}
trial court entered an order compelling LSIC, through Dr.
Kleinfeld, to produce the requested discovery. LSIC, through
Dr. Kleinfeld, then filed a motion for a protective order to
prevent the disclosure of the requested discovery except for
information relating to Streeval's medical reports and
bills, which the trial court denied.
through Dr. Kleinfeld, filed a petition for a writ of
prohibition in the Court of Appeals seeking protection from
the trial court's order compelling discovery, which the
Court of Appeals granted. Allstate then appealed to this
Court as a matter of right.
summarized the standard for appellate review of a lower
court's decision in a writ action in Appalachian
Racing, LLC v. Commonwealth:
We employ a three-part analysis in reviewing the appeal of a
writ action. We review the Court of Appeals' factual
findings for clear error. Legal conclusions we review under
the de novo standard. But ultimately, the decision whether or
not to issue a writ of prohibition is a question of judicial
discretion. So review of a court's decision to issue a
writ is conducted under the abuse-of-discretion standard.
That is, we will not reverse the lower court's ruling
absent a finding that the determination was "arbitrary,
unreasonable, unfair, or unsupported by sound legal
outset, we note that "[t]he issuance of a writ is an
extraordinary remedy that is disfavored by our jurisprudence.
We are, therefore, 'cautious and conservative both in
entertaining petitions for and in granting such
relief. Writs "are truly extraordinary in
nature and are reserved exclusively for those situations
where litigants will be subjected to substantial injustice if
they are required to proceed." "The exigency must be
extreme, the threatened danger practically certain, and the
consequent irremediable injury equally imminent, before the
writ should be so employed. It must be rare when the occasion
can arise." "To obtain an extraordinary writ,
such as a writ of prohibition, a petitioner is required to
meet a high standard. That standard is well
known." "This careful approach is necessary
to prevent short-circuiting normal appeal procedure and to
limit so far as possible interference with the proper and
efficient operation of our circuit and other courts. If this
avenue of relief were open to all who considered themselves
aggrieved by an interlocutory court order, we would face an
impossible burden of nonappellate
matters." "This policy is embodied in a
simple statement[:] 'Extraordinary writs are disfavored .
. . .W11 Moreover:
[T]he writ of prohibition is extraordinary in nature.
Such a writ bypasses the regular appellate process and
requires significant interference with the lower courts'
administration of justice. The expedited nature of writ
proceedings necessitates an abbreviated record. This
magnifies the chance of incorrect rulings that would
prematurely and improperly cut off the rights of litigants,
if the process were not strictly scrutinized for
appropriateness. As such, the specter of injustice always
hovers over writ proceedings, which explains why courts of
this Commonwealth are-and should be- loath to grant the
extraordinary writs unless absolutely necessary. Because they
fall outside the regular appellate process, especially when
they are used as de facto interlocutory appeals (an
increasing, undesired trend), writ petitions also consume
valuable judicial resources, slow down the administration of
justice (even when correctly entertained), and impose
potentially unnecessary costs on litigants. Thus, to say that
writ petitions should be reserved for extraordinary cases and
are therefore discouraged is an understatement.
Court in Commonwealth v. Peters explained that
"relief by way of a writ of prohibition is an
'extraordinary remedy and we have always been cautious
and conservative both in entertaining petitions for and in
granting such relief."' Writ cases are divided
into essentially two classes based on whether the inferior
court allegedly is acting: (1) without jurisdiction (which
includes "beyond its jurisdiction"); or (2)
erroneously within its jurisdiction.
appears that Dr. Kleinfeld may be contesting the jurisdiction
of the trial court over this case without ever explicitly
saying so. The extent of Dr. Kleinfeld's argument on this
point is two different statements that suggest such a
challenge, one statement being: "The only
recognized and authorized way to contest the reasonableness
of either the service or the charges for said service would
be to move the court for authority and to then cause Mr.
Streeval to undergo an independent medical
exam." Such a statement suggests that Dr.
Kleinfeld is ...