[Cite as Miller v. State Farm Mut., Auto. Ins. Co., 2015-Ohio-280.]


STATE OF OHIO                     )                         IN THE COURT OF APPEALS
                                  )ss:                      NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

HOWARD MILLER, et al.                                       C.A. No.   27236

        Appellants

        v.                                                  APPEAL FROM JUDGMENT
                                                            ENTERED IN THE
STATE FARM MUTUAL, AUTOMOBILE                               COURT OF COMMON PLEAS
INSURANCE COMPANY, et al.                                   COUNTY OF SUMMIT, OHIO
                                                            CASE No.   CV 2012-11-6505
        Appellees

                                  DECISION AND JOURNAL ENTRY

Dated: January 28, 2015



        CARR, Judge.

        {¶1}     Appellant Howard Miller appeals the order of the Summit County Court of

Common Pleas that granted a motion by State Farm Mutual Automobile Insurance Company,

compelling him to provide medical authorization releasing his medical records to State Farm.

This Court reverses and remands.

                                                       I.

        {¶2}     After sustaining injuries in an automobile accident, Mr. Miller filed a complaint

alleging negligence against the driver of the car that hit him. His wife Betty alleged a claim for

loss of consortium. In addition, Mr. Miller alleged a claim against State Farm, seeking payment

of underinsured motorist benefits pursuant to his insurance policy with State Farm. State Farm

answered, admitting that it had issued an insurance policy to Mr. Miller that included

underinsured motorist protection in the amount of $100,000. It further alleged a cross-claim
                                                 2


against the driver named in Mr. Miller’s complaint, seeking indemnification and/or contribution

for benefits paid to Mr. Miller.

          {¶3}   The parties engaged in discovery. Mr. Miller responded to the defendant-driver’s

first set of interrogatories and request for production of documents, producing certain medical

records and bills and averring that he had provided medical records and bills or that he will

provide or make them available. State Farm did not itself serve any such requests for discovery,

describing such efforts as duplicative and instead relying on discovery sought by the defendant-

driver.    Mr. Miller was later deposed by defendants’ counsel.       At the conclusion of the

deposition, State Farm sought additional medical records regarding Mr. Miller’s injuries alleged

to have occurred as a result of the accident.        Mr. Miller refused to execute a medical

authorization to allow State Farm to obtain such records. Moreover, Mr. Miller insisted that his

records be sent to his counsel who would then determine which records State Farm was entitled

to review.

          {¶4}   Based on its asserted inability to obtain all medical records which might either

prove or delimit the extent of Mr. Miller’s injuries sustained as a result of the accident, State

Farm filed a motion to compel, or in the alternative, a motion in limine to exclude any evidence

regarding Mr. Miller’s alleged injuries and damages. State Farm appended Mr. Miller’s answers

to interrogatories and the medical records it had received to date, as well as a letter to Mr.

Miller’s counsel requesting supplemental discovery including medical records establishing Mr.

Miller’s claims.

          {¶5}   Mr. Miller opposed the motion to compel. He appended a letter sent by his

counsel to defendants’ counsel informing that he authorized Records Deposition Services to

obtain his medical records relative to the accident. The letter further informed the defendants
                                                 3


that they could request Mr. Miller’s medical records, “subject to our right to object” from

Records Deposition Services. Mr. Miller asserted that, notwithstanding State Farm’s failure to

serve him with any requests for production of documents, he had provided all medical records,

bills, and liens that he had received. He argued that, should he object to the production of certain

additional documents on the basis of physician-patient privilege or HIPAA protections, the issue

of disclosure must be resolved by the trial court after in camera inspection of those documents.

        {¶6}    State Farm replied that an order compelling Mr. Miller to execute authorization

for the insurance company to obtain his medical records and bills was warranted because the

determination whether or not the records were “causally or historically related” to the incident

was within the purview of Mr. Miller’s physicians, not Mr. Miller.

        {¶7}    The trial court issued an order granting State Farm’s motion to compel and

ordering Mr. Miller to provide medical authorization, compliant with R.C. 2317.02 and HIPAA,

to State Farm within three days. Mr. Miller appealed, raising one assignment of error for review.

                                                II.

        {¶8}    Mr. Miller argues that the trial court erred by issuing the following order, which

appellant recites in toto:

        This matter is before the court on the motion of defendant State Farm Mutual
        Automobile Insurance Company (“State Farm”), on the plaintiffs’ response, and
        on State Farm’s reply.

        Upon consideration of the motion to compel, the court finds it to be in order.
        Therefore, the court hereby orders plaintiff to provide a medical authorization that
        is compliant with R.C. 2317.02 and HIPAA to the defendant within three days of
        the date of this order so the matter may proceed.

        Should the plaintiff fail to comply with this order, the court will either
        entertain a motion from the defendants for dismissal of the plaintiffs’ claims
        or it will sua sponte dismiss this action pursuant to Civ.R. 37(B)(2)(c).

        IT IS SO ORDERED.
                                                 4


       {¶9}    As a preliminary matter, we must first determine whether the order appealed

constitutes a final, appealable order which this Court has jurisdiction to consider. State Farm

argues that the order is merely interlocutory and does not implicate the issue of privilege,

rendering it a non-final order. Mr. Miller argues that the order constitutes a provisional remedy

that affects a substantial right and in effect determines the action, precluding any meaningful

remedy by appeal following a final judgment. We agree with Mr. Miller that the trial court’s

order is a final, appealable order which this Court has jurisdiction to review.

       {¶10} “Generally, trial court orders addressing discovery issues are merely interlocutory

and not immediately appealable.” Bowers v. Craven, 9th Dist. Summit No. 25717, 2012-Ohio-

332, ¶ 14, citing Novak v. Studebaker, 9th Dist. Summit No. 24615, 2009-Ohio-5337, ¶ 14, citing

Walters v. Enrichment Ctr. of Wishing Well, Inc., 78 Ohio St.3d 118, 120-121 (1997).

Nevertheless, the legislature has carved out certain limited exceptions to the general rule. This

Court recognizes one such exception with regard to orders for the disclosure of privileged

matters pursuant to R.C. 2505.02(B), which states:

       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.

See, e.g., Grove v. Northeast Ohio Nephrology Assoc., Inc., 164 Ohio App.3d 829, 2005-Ohio-

6914, ¶ 7-9 (9th Dist.).
                                                5


       {¶11} A “provisional remedy” is “a proceeding ancillary to an action, including, but not

limited to, * * * discovery of privileged matter * * *.” R.C. 2505.02(A)(3).

       {¶12} The law recognizes that a person’s medical records are confidential. Hageman v.

Southwest Gen. Health Ctr., 119 Ohio St.3d 185, 2008-Ohio-3343, ¶ 9; R.C. 149.43(A)(1)(a)

(medical records excluded from public records); R.C. 2317.02(B) (privileged communications

between physician and patient). Mr. Miller has refused to execute an authorization for State

Farm’s unfettered access to his medical records on the grounds that some records may retain

their privileged nature. Accordingly, contrary to State Farm’s assertion, concerns regarding the

disclosure of privileged matters exist in this case. Therefore, the order falls within the purview

of a “provisional remedy.”

       {¶13} Moreover, as the order determined the discovery issue and prevented a judgment

in favor of Mr. Miller on that issue, R.C. 2505.02(B)(4)(a) is met. Finally, Mr. Miller would not

be afforded a meaningful remedy should he be compelled to wait to appeal the trial court’s order

after the final judgment in the case was rendered because the confidentiality of his medical

records would have already been compromised. Accordingly, the order meets the requirements

of R.C. 2505.02(B)(4)(b). As we reasoned in Grove, supra, at ¶ 9, the trial court’s order

requiring Mr. Miller to authorize access by State Farm to his medical records constitutes a final,

appealable order which this Court has jurisdiction to review. See also Amer Cunningham Co.,

L.P.A. v. Cardiothoracic Vascular Surgery of Akron, 9th Dist. Summit No. 20899, 2002-Ohio-

3986, ¶ 4-11 (concluding that an order granting a provisional remedy, here regarding the

disclosure of privileged attorney-client matters, constituted a final, appealable order pursuant to

R.C. 2505.02(B)(4)).
                                                 6


       {¶14} To the extent that the order indicates that the trial court will consider a motion by

State Farm to dismiss the complaint or may sua sponte dismiss the complaint should Mr. Miller

fail to execute a medical authorization form within three days, that issue is not ripe for appeal.

Accordingly, this Court will not address the propriety of dismissal of Mr. Miller’s complaint as

that matter remains merely speculative.

       {¶15} Regarding the substance of this appeal, Mr. Miller argues that the trial court’s

order implicates several issues for review: (1) Could State Farm avail itself of the procedural

mechanism set forth in Civ.R. 37(A) to move to compel the disclosure of Mr. Miller’s medical

records? (2) Did State Farm use reasonable efforts to resolve this matter as required by Civ.R.

37(E) prior to filing its motion to compel? (3) Did the trial court err by failing to conduct an in

camera inspection of any objectionable medical records before ordering Mr. Miller to provide

State Farm with a medical authorization?

       {¶16} Mr. Miller noted multiple times both below and on appeal that State Farm never

propounded any requests for discovery on him. Specifically, State Farm did not serve Mr. Miller

with either any interrogatories pursuant to Civ.R. 33, or any requests for production of

documents pursuant to Civ.R. 34. Nevertheless, without any citation to authority, State Farm

asserts that it was not required to propound what would have merely been duplicative discovery

requests, and that any party could properly seek to compel responses to any other party’s

requests for discovery. Specifically, State Farm argues that, because the other driver’s attorney

served interrogatories and a request for production of documents on Mr. Miller, State Farm was

authorized to ensure Mr. Miller’s compliance with those discovery requests. Moreover, although

the insurance company requested in a notice of deposition that Mr. Miller bring his medical

records to the deposition, State Farm has not argued that that constituted a discovery request.
                                                 7


       {¶17} Civ.R. 37(A)(2) addresses motions for orders compelling discovery and states, in

relevant part:

       If * * * a party fails to answer an interrogatory submitted under Rule 33, or if a
       party, in response to a request for inspection submitted under Rule 34, fails to
       respond that inspection will be permitted as requested or fails to permit inspection
       as requested, the discovering party may move for an order compelling an answer
       or an order compelling inspection in accordance with the request.

Emphasis added.

       {¶18} Here, by the plain language of the rule, the party who propounded the discovery

request may move the trial court for an order compelling a response. Axiomatically, where a

party has not propounded any requests for discovery, it reasonably has no basis on which to seek

an order compelling disclosure of information from an opponent.

       {¶19} There is understandably a dearth of case law involving parties who, despite their

failure to propound any discovery requests, have filed motions to compel the production of

discovery. The Second District Court of Appeals addressed a similar issue in Bd. of Clark Cty.

Commrs. v. Newberry, 2d Dist. Clark No. 2002-CA-15, 2002-Ohio-6087. In that case, the trial

court excluded an expert report that the defendants provided to the opposing party only one day

before trial. The appellate court reversed, concluding that although the parties had informally

engaged in some voluntary sharing of information, they “never * * * dispense[d] with the formal

discovery procedures set forth in the Civil Rules.” Id. at ¶ 14. Because they did not, pursuant to

Civ.R. 29, “by written stipulation * * * modify the procedures provided by these rules for other

methods of discovery[,]” the Newberry court concluded that they were bound by the discovery

rules. Therefore, because the Board of Commissioners never filed any discovery request for the

expert report, they were not entitled to provision of the report prior to trial or the imposition of

any discovery sanction pursuant to Civ.R. 37(B). Id. at ¶ 15.
                                                8


       {¶20} Federal courts too have refused to compel parties to provide certain materials in

discovery where the parties have only informally requested such information instead of having

issued formal discovery requests pursuant to the Federal Rules of Civil Procedure. See, e.g.,

Suid v. Cigna Corp., 203 F.R.D. 227 (Dist.Virgin Islands2001) (motion to compel denied where

letter did not constitute an adequate F.R.C.P. 34 request); Sithon Maritime Co. v. Holiday

Mansion, D.Kan. No. CIV.A. 96-2262-EEO, 1998 WL 182785 (Apr. 10, 1998); Alberts v.

Wheeling Jesuit Univ., N.D.W.Va. No. 5:09-CV-109, 2010 WL 2253518, *3 (June 1, 2010) (“A

court cannot grant a motion to compel unless a previous formal discovery request preceded the

motion to compel.”); Patterson v. Kim, W.D.Mich. No. 1:08-cv-873, 2009 WL 1911819 (July 1,

2009) (reasoning that, while informal requests for information from another party may be

expeditious, a motion to compel may only be predicated on the party’s failure to comply with

formal discovery requests); James v. Wash Depot Holdings, Inc., 240 F.R.D. 693 (S.D.Fla.2006)

(a lack of a prior formal discovery request precludes the issuance of an order to produce

documents).

       {¶21} The trial court cannot compel a response from one party to another who has not

yet issued a request. Under these circumstances, State Farm could not yet avail itself of the

procedural mechanism set forth in Civ.R. 37(A). Any motion by State Farm for an order to

compel disclosure was improper in the absence of service of its own discovery requests upon Mr.

Miller. Accordingly, Mr. Miller’s assignment of error is sustained.

                                               III.

       {¶22} Mr. Miller’s sole assignment of error is sustained. The judgment of the Summit

County Court of Common Pleas is reversed and the cause remanded for further proceedings

consistent with this opinion.
                                                 9


                                                                              Judgment reversed,
                                                                             and cause remanded.



       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellees.




                                                     DONNA J. CARR
                                                     FOR THE COURT


WHITMORE, J.
CONCURS.

BELFANCE, P.J.
CONCURS IN JUDGMENT ONLY.

APPEARANCES:

RUSSELL SMITH, Attorney at Law, for Appellant.

KIMBERLEE J. KMETZ, Attorney at Law, for Appellee State Farm Mutual Automobile
Insurance Company.

PHILLIP C. KOSLA, Attorney at Law, for Andrea Baylets.
