HOW TO GET A BOOK ON THE

"DEFENSE" MEDICAL EXPERT AND

USE IT TO LIMIT OR IMPEACH
HIS/HER TESTIMONY

State Bar Presentation on June 25, 1998,

by:

Patrick O. Dunphy
CANNON & DUNPHY, S.C.
595 North Barker Road
P. O. Box 1750
Brookfield, WI 53008-1750
(414) 782-2700
I. LAY THE FOUNDATION FOR THE ORDER

A. SUBPOENA DUCES TECUM

REQUESTING
1. LISTING OF ALL
INSURANCE MEDICAL EXAMS
2. LISTING OF ALL
DISCOVERY DEPOSTIONS
3. LISTING OF ALL
TRIAL TESTIMONY
4. INVOICES FOR
ALL CHARGES FOR EACH
5. COPIES OF
INSURANCE CO. 1099'S.

B. DEPOSITION TESTIMONY
1. IDENTIFY
RECORD KEEPING METHOD
2. IDENTIFY
CALENDARING METHOD
3. IDENTIFY HOW
INFORMATION WOULD BE
RETRIEVED
4. IDENTIFY BASIS
FOR CHARGES
5. IDENTIFY
INSURANCE COMPANY PAYORS
6. DETERMINE
WHAT DEPOSITION OR TRIAL
TRANSCRIPTS ARE KEPT IN
OFFICE
7. COVER AREAS OF
EXPERTISE AND LIMIT THEM AS
MUCH AS POSSIBLE TO
MINIMIZE CHANCE OF OPINIONS
OUTSIDE AREA OF LEGITIMATE
EXPERTISE.

Dunphy - 2
8. BE CERTAIN TO
MAKE INQUIRIES THAT WILL
SERVE AS BASIS FOR TRIAL
CROSS EXAM REGARDING
DOCTORS
a. TI
ME SPENT WITH
PLAINTIFF VERSUS TIME
SPENT WITH REGULAR
PATIENT ON INITIAL
EXAM
b. CH
ARGES FOR INSUR-ANCE
EXAM VERSUS REGULAR
PATIENT
c. CH
ARGES FOR TIME SPENT
IN DEPOSITION AND
COURT VERSUS CHARGES
FOR TIME SPENT WITH
PATIENT
d. PE
RCENTAGE OF INCOME
FROM INSURANCE
DEFENSE WORK VERSUS
REGULAR PRACTICE
e. PE
RCENTAGE OF TIME
SPENT IN PRACTICE WITH
INSURANCE DEFENSE
WORK VERSUS PATIENT
CARE
f. PE
RSONAL RECOLLECTIONS
OF PLAINTIFF
g. NU
MBER OF OTHER
INSURANCE EXAMS DONE
SAME DAY AS PLAINTIFF

Dunphy - 3
 h. NU
MBER OF INSURANCE
EXAMS DONE PER WEEK,
IF REGULAR DAY SET
ASIDE FOR SUCH EXAMS
i. WO
RKING RELATIONSHIP
WITH INSURANCE
COMPANY's LAW FIRM.

C. OBTAIN COPIES OF OTHER

TRANSCRIPTS
1. CREATE
HISTORY OF CHARGES
2. CREATE
HISTORY OF EXAM FREQUENCY
3. CREATE
HISTORY OF NEVER FINDING
PERMANENCY

II PREPARE THE AFFIDAVIT SUPPORTING THE

MOTION WITH TESTIMONY FROM YOUR
CASE AND FROM OTHERS THAT YOU HAVE
COLLECTED.

III BE ABLE TO SHOW THAT THE PHYSICIAN IN

YOUR CASE IS UNIQUE IN HIS BIAS AND
INCOME AND SHOULD BE CONSIDERED
DIFFERENTLY BY THE JUDGE THAN
REGULAR PHYSICIANS INCLUDING THE
PLAINTIFF'S TREATING DOCTOR.

IV BE AWARE OF THE CASE LAW CITED IN

ATTACHED BRIEF WHICH IDENTIFIES
DECISIONS ON BOTH SIDES OF THE ISSUE.

V BRING MOTION IN LIMINE TO LIMIT THE

DEFENSE EXAMINER TO AREAS
LEGITIMATELY WITHIN EXPERTISE.

Dunphy - 4
VI BE PREPARED TO USE THE MONETARY
INFORMATION AND OTHER DEPOSITIONS
TRANSCRIPTS AS MAJOR PART OF YOUR
CROSS EXAM

VII REVIEW ATTACHED DOCUMENT

A. PLAINTIFF'S BRIEFS REGARDING
PRODCUTION OF DOCUMENTS
B. ORDER FOR PRODUCTION
C. SUBPOENA DUCES TECUM

Dunphy - 5
WAUKESHA COUNTY CIRCUIT COURT, WIS
CIVIL BRANCH
___________________________________

MICHELLE M. KUZMINSKI
f/k/a MICHELLE M. CONROY,
and CASSANDRA L. KUZMINSKI
and SAMANTHA M. KUZMINSKI,
minors, by their Guardian
ad Litem, Patrick 0. Dunphy,

Plaintiffs,

Case No. 96-CV-2155

and

WISCONSIN CENTRIFUGAL, INC.,

a Wisconsin corporation,
c/o M. E. Nevins,
Registered Agent

Involuntary Plaintiff,
v.

AMERICAN FAMILY MUTUAL INS. CO.,

a Wisconsin insurance corporation,
c/o James F. Eldridge,
Registered Agent

Defendant.
___________________________________

SUBPOENA DUCES TECUM

___________________________________
THE STATE OF WISCONSIN

TO: Marc Novum

8989 N Port Washington Rd
Milwaukee, WI

PURSUANT TO SECTION 805.07,

you are hereby commanded to
appear in person as follows:
BEFORE: Notary Public
PLACE: 595 N Barker Road
Brookfield, Wisconsin
DATE: October 28, 1997
TIME: 9:00 a.m.

YOU ARE FURTHER COMMANDED TO

BRING WITH YOU THE FOLLOWING:

1. A listing of all IMEs you have

performed at the request of an
insurance company or an insurance
company lawyer since January 1,
1996.

2. All invoices to insurance

companies or insurance company
lawyers for IMEs you have
performed since January 1, 1996.

3. A listing of all discovery

depositions you have given since
January 1, 1996.
4. A listing of all trial testimony
you have given since January 1,
1996.

5. A copy of all 1099 tax forms from

insurance companies for
independent medical examinations
performed by you, for deposition
testimony and for court testimony
by you from 1994 through the
present.

Failure to appear may result in

punishment for contempt which may
include monetary penalties,
imprisonment and other sanctions.

Dated at Brookfield, Wisconsin,

this 30th day of September 1997.

CANNON & DUNPHY, S.C.

Attorneys for Plaintiffs
BY Patrick O. Dunphy
State Bar No. 1016947

Dunphy - 8
WAUKESHA COUNTY CIRCUIT COURT, WIS
CIVIL BRANCH
___________________________________

MICHELLE M. KUZMINSKI
f/k/a MICHELLE M. CONROY,
and CASSANDRA L. KUZMINSKI
and SAMANTHA M. KUZMINSKI,
minors, by their Guardian
ad Litem, Patrick 0. Dunphy,

Plaintiffs,

Case No. 96-CV-2155

and

WISCONSIN CENTRIFUGAL, INC.,

a Wisconsin corporation,
c/o M. E. Nevins,
Registered Agent

Involuntary Plaintiff,
v.

AMERICAN FAMILY MUTUAL INS. CO.,

a Wisconsin insurance corporation,
c/o James F. Eldridge,
Registered Agent

Defendant.
___________________________________

PLAINTIFFS' BRIEF IN OPPOSITION

TO MOTION TO QUASH SUBPOENA AND
IN OPPOSITION TO MOTION FOR
PROTECTIVE ORDER
___________________________________

INTRODUCTION
This brief is submitted on behalf of
plaintiffs, Michelle M. Kuzminski,

Dunphy - 9
Cassandra L. Kuzminski, and Samantha M.
Kuzminski, by their attorneys, Cannon and
Dunphy, S.C., in opposition to American
Family Mutual Insurance Company's motion
to quash the subpoena and motion for a
protective order. The plaintiffs'
subpoena seeks the following information
from the defendant's expert witness, Dr.
Mark Novom:

1. A listing of all IMEs

you have performed at
the request of an
insurance company or an
insurance company lawyer
since January 1, 1996.

2. All invoices to
insurance companies or
insurance company
lawyers for IMEs
performed since January
1, 1996.

3. A listing of all
discovery depositions
you have given since
January 1, 1996.

4. A listing of all trial

testimony you have given
since January 1, 1996.

5. A copy of all 1099 tax

forms from insurance
companies for indepen-
dent medical exams per-
formed by you, for
deposition testimony and
for court testimony by
you from 1994 through
the present.

Dunphy - 10
(9/30/97 Amended Subpoena Duces Tecum,
Dunphy Aff. ¶ 2 Exh. 1).

In support of its motions, the

defendant asserts that the time necessary
to produce the requested documents creates
an undue hardship for Dr. Novom and that
the "subpoena serves only to harass Dr.
Novom and subject him to undue burden and
expense." Significantly, the defendant
does not assert the subpoenaed information
is irrelevant or nondiscoverable.

The defendant’s motion should be

denied. First, defendant has failed to
provide any legal authority supporting a
denial of the information requested by the
plaintiffs. Second, the affidavit of Dr.
Novom is ludicrous on its face and is
contradicted by sworn testimony he has
given in other cases. Third, the
information requested by the plaintiffs is
relevant, particularly in light of the
overt prejudice towards plaintiffs
manifested by Dr. Novom’s policy of
refusing plaintiffs' attorneys entrance to
his waiting room and requiring them to
wait in the foyer of the building where
his office is located. Fourth, there is
ample case and statutory authority
supporting the relevancy and
discoverability of the information
requested by the plaintiffs at no cost to
a plaintiff.
FACTS
This case involves an action brought
by Michelle M. Kuzminski against her
insurer, American Family Mutual Insurance
Company, for damages she sustained in a
July 2, 1994 motor vehicle accident. Mrs.
Kuzminski claims that she suffered an
injury to the ulnar nerve at her right
elbow that required surgery. At the time

Dunphy - 11
of the accident, the Kuzminskis were
covered by an insurance policy providing
underinsured motorists coverage of $100,000
per occurrence. American Family retained
Dr. Marc Novom, M.D. to perform an
examination of Mrs. Kuzminski on July 16,
1997.

Dr. Novom concluded that Mrs.

Kuzminski did not suffer an injury to her
right elbow in the accident. Instead, he
opined that Mrs. Kuzminski suffered from a
tardy ulnar nerve palsy in her right elbow
that was caused by an unknown, unreported
injury suffered before this accident.
(9/15/97 Novom Dep. at 55-57, Dunphy Aff.
¶ 3 Exh. 2) He based his opinion, in
part, on the fact that Mrs. Kuzminski had
suffered an injury to her left elbow eight
years earlier. Dr. Novom testified:

Q. Is it your opinion that

because she has left
elbow trauma that was
treated and had
symptoms, that that’s
evidence that she might
have a tardy ulnar palsy
in the right elbow?

A. There can be a
linkage.... (9/15/97
Novom Dep. at 46)

A. And I’ve submitted to you

that the fact that she
had significant enough
pain to warrant treatment
for her left elbow
suggests to me that she,
at some point in the
past, may have had
inadvertent trauma to the

Dunphy - 12
 right elbow, and that
that form of trauma can
be accountable for
delayed ulnar neuro-
pathy. That’s the
linkage.

(9/15/97 Novom Dep. at 55-56).

Dr. Christopher King, a neurosurgeon

who operated on Mrs. Kuzminski’s elbow
after the July, 1994 accident, testified
that he found her ulnar nerve entrapped by
scar tissue which was caused by the
accident and which was causing her
symptoms. (8/26/97 King Dep. at 17, 30,
Dunphy Aff. ¶ 4 Exh. 3). Dr. Novom
testified that he doesn’t know when or how
the scar tissue got into Mrs. Kuzminski’s
left elbow, but he knows it preexisted the
accident. He testified:

Q. So you don’t know how it

got there, you don’t
know how long it’s been
there; but you do have
an opinion that it
probably preexisted the
accident?

A. Yes.

(9/15/97 Novom Dep. at 61, Dunphy Aff. ¶ 3

Exh. 2).

On September 15, 1997 Attorney Dunphy

deposed Dr. Novom at Dr. Novom's office in
Milwaukee. Attorney Dunphy arrived at the
deposition 15 minutes before its scheduled
start time. He was preceded by Attorney
Yankala and the court reporter. Attorney
Yankala was allowed into Dr. Novom’s office
to prepare for the deposition. The court

Dunphy - 13
reporter was allowed to sit in the waiting
room. Attorney Dunphy was ordered to leave
the waiting room and wait in the lobby of
the building. This has happened to other
attorneys representing plaintiffs as well.
(9/17/97 Novom Dep. at 3, Dunphy Aff. ¶ 5
Exh. 4) During the deposition, Dr. Novom
admitted that he has instructed his office
staff to require only plaintiffs'
attorneys to wait in the building lobby.
(9/15/97 Novom Dep. at 5, Dunphy Aff. ¶ 3
Exh. 2).

When Attorney Dunphy asked Dr. Novom

whether he had given hundreds or thousands
of depositions, Dr. Novom challenged the
numbers, but when asked to provide
documentation of the actual number, he
refused to turn over the records to
establish the actual count. (9/15/97 Novom
Dep. at 87-88) When Attorney Dunphy asked
Dr. Novom to provide a listing of the
"IMEs" performed during July 1997, Dr.
Novom refused, stating: "I’m just not
going to provide that information to you.
That’s simple." (9/15/97 Novom Dep. at 82-
83).

Dr. Novom testified that (1) he

does four to six IMEs per week; (2) he
charges $850-$950 per exam; (3) 15-20% of
his practice is spent doing litigation
matters; and (4) he can’t recollect how
many times he testifies in trial per year.
(9/15/97 Novom Dep. at 12, 13, 20, 23-24)
Dr. Novom also testified that he keeps an
office calendar that would indicate days
on which he has given depositions (9/15/97
Novom Dep. at 18) and within a matter of
minutes, he was able to produce a listing
of the number of IMEs he did on the same
date as Mrs. Kuzminski's in response to a
request made during his deposition.

Dunphy - 14
(9/15/97 Novom Dep. at 83 and Dep. Exh.
4).

The plaintiffs have obtained copies

of other depositions given by Dr. Novom in
which he gives answers contradicting the
answers given in this case. First, Dr.
Novom has testified to as few as 3 IMEs
per week in the case of Cruzen v. Rural
Mut. Cas. Co., and as many as 6-7 or 7-8
IMEs per week in Klement v. American
Family and Schmidlin v. American Family.
(Dunphy Aff. ¶¶ 6-7, 11 Exhs. 5-6, 10).
Second, while Dr. Novom consistently
testifies that the average cost of his
IMEs is $600-$950 (depending on the year),
the plaintiffs have obtained copies of
four deposition transcripts where the cost
of the exam was discussed, and, as in this
case, the actual fee was greater than the
professed average. No exam fees were
uncovered that were within the professed
average. (Dunphy Aff. ¶¶ 5, 9-11 Exhs. 4,
8-10). Third, Dr. Novom has testified
that at times, 33%-50% of his practice has
been litigation related. (Dunphy Aff. ¶¶
10, 12 Exhs. 9, 11).

Dr. Novom admits to a staggering

amount of income from his litigation work.
His professed average IME charge of $900
for his professed 5 weekly IMEs totals
$225,000.00 per 50-week year. His
admitted charge of at least $1,000.00 per
deposition for an admitted average of 20
depositions per year totals an additional
$20,000.00 per year. (3/3/94 Novom Dep. at
7, 76, Dunphy Aff. ¶ 8 Exh. 7) (9/15/97
Novom Dep. at 17, Dunphy Aff. ¶ 3 Exh. 2)
Dr. Novom’s trial testimony costs
$4,000.00 if given in Milwaukee County and
$5,000.00 if given in Waukesha County.
(9/15/97 Novom Dep. at 17) If he testifies

Dunphy - 15
"a couple of times in the last couple of
years," then he earns another $8,000.00 to
$10,000.00 per year. Therefore, his
litigation income could be as high as
$250,000.00 per year.

ARGUMENT

Dr. Novom’s credibility is a

significant issue when he admits to
making up to $250,000.00 per year in
litigation-related work and when his bias
favoring insurance companies is so
pronounced he refuses plaintiffs’
attorneys admittance to his waiting room.
Dr. Novom has easy access to the documents
that will put an end to his vagueness,
contradictions and speculation. He can
produce copies of his 1099’s to
demonstrate how much income he makes from
his insurance-litigation work. He can
have his office manager flip through his
office calendar and list the number of
times there is an entry for "deposition"
or "IME," just as he did in this case for
July 16, 1997, the day of Mrs. Kuzminski’s
exam. It most assuredly will not require
Dr. Novom’s time to peruse his office
calendar. Nor will it take 30 hours or
$10,000.00 in office time to compile the
requested information. Such contentions
are unfounded, unsupported, and designed
to intimidate plaintiffs from seeking the
requested documentation.

I. THE PLAINTIFFS ARE ENTITLED TO

DISCOVERY OF THE INFORMATION LISTED
IN THE SUBPOENA DUCUS TECUM.

The "ascertainment of the truth" is

"the ultimate objective of the adversary
trial system and of pretrial discovery."

Dunphy - 16
State ex rel. Dudek v. Circuit Court for
Milwaukee County, 34 Wis.2d 559, 576, 150
N.W.2d 387, 397 (1967). The liberal rules
of pretrial discovery are a means to that
end. The party seeking to discover
information does not have to show that the
information sought will be admissible at
trial. Section 804.01(2)(a), Wis. Stats.
It only has the burden to prove that it
"appears reasonably calculated to lead to
the discovery of admissible evidence." Id.
The scope of discovery is broad:

Parties may obtain discovery

regarding any matter, not
privileged, which is relevant
to the subject matter involved
in the pending action, whether
it relates to the claim or
defense of the party seeking
discovery or to the claim or
defense of any other party
....

Id.
The subpoena duces tecum is a means
through which one party can obtain
information from the other party's expert,
including the expert's "books, papers
[and] documents" within the scope of
discovery. Section 804.05(3)(a), Wis.
Stats. Given the liberal rules of
pretrial discovery, Dudek, 34 Wis. 2d at
576, 150 N.W.2d at 398, the power to
subpoena documents and other items is
broad. Once a party has issued a
subpoena, it "must be complied with in the
absence of a reasonable excuse." Nashban
Barrel & Co. v. Parsons Trucking Co., 49
Wis. 2d 591, 610, 182 N.W.2d 448, 458
(1971).

Dunphy - 17
 When deciding whether to issue a
protective order or quash a subpoena, the
court should consider whether: (1) the
information is relevant, (2) the documents
are sufficiently identified to allow the
witness to know what is requested, (3) the
witness would be harassed or oppressed in
the production of the documents, and (4)
the period of time covered by the subpoena
is unreasonable. State v. Washing-ton, 83
Wis. 2d 808, 844, 266 N.W.2d 597, 615
(1978).

A. The Information Sought is

Clearly Relevant to Dr. Marc
Novom's Credibility As An
Expert Witness and The Merits
Of The Plaintiffs' Case.

Section 904.01, Wis. Stats., defines

relevant evidence as evidence "having a
tendency to make the existence of any fact
that is of consequence to the
determination of the action more probable
or less probable than it would be without
the evidence." The standard of relevance
in the context of discovery is broader
than in the context of admissibility.
Ranft v. Lyons, 163 Wis. 2d 282, 290, 471
N.W.2d 254, 257 (Ct. App. 1991); §
804.01(2)(a); see Wacker v. Gehl Co., 157
F.R.D. 58, 58 (W.D. Mo. 1994).

Wisconsin has long recognized that

the credibility of a witness is relevant.
Wis. J.I.–Civil 215. In State v. Rogers,
93 Wis. 2d 682, 688, 287 N.W.2d 774, 777
(1980), the Wisconsin Supreme Court
stated:

The proper standard for the

test of relevancy on cross-

Dunphy - 18
 examination is not whether the
answer sought will elucidate
any of the main issues in the
case but whether it will be
useful to the trier of fact in
appraising the credibility of
the witness and evaluating the
probative value of the direct
testimony.

Dr. Novom's testimony as an expert

witness in this case, as well as in other
cases, has put his credibility and
veracity at issue with respect to the
information Attorney Dunphy sought during
the deposition and with the present
subpoena. Such information is directly
related to his ability to perform
nonbiased independent medical exams and
present nonbiased testimony, which affects
the merits of this case.

B. Evidence Of Dr. Marc Novom's

Litigation-Related Business Is
Relevant and Discover-able In
This Case.

The number of IMEs and amount of

litigation-related testimony Dr. Novom
performs for insurance companies, the
income he receives from doing such work,
and the portion of his livelihood that is
dependent on retaining that type of
business is clearly relevant to
demonstrate the credibility of Dr. Novom
as an expert witness and specifically, to
show his bias, motive or interest.

Dr. Novom's answers in the

deposition in the present case as well as
in other cases show marked inconsistencies
demonstrating his lack of credibility and

Dunphy - 19
bias. Dr. Novom told Attorney Dunphy that
his fee for reviewing medical records,
conducting an independent medical exam and
writing a report was between $850 and
$950. (9/15/97 Novom Dep. at 12-13,
Dunphy Aff. ¶ 3 Exh. 2) Yet he charged
American Family $1500.00 for reviewing
plaintiff Michelle Kuzminski's medical
records, conducting an IME, and dictating
a letter. (Invoice from Dr. Novom's
office to Wayne Yankala, Dunphy Aff. ¶ 3
Exh. 2, Dep. Exh. 2) This same thing has
occurred in several other cases as well:

• In a 9/17/97 deposition Dr. Novom

gave in Yong Hee Rhee v. Millers
First Ins. Co. on behalf of the
insurance company, the fee for the
IME was $1100. Dr. Novom testified
that at that time, his fee for an
IME was between $850 and $950.
(9/17/97 Novom Dep. at 9-10, Dunphy
Aff. ¶ 5 Exh. 4).

• In a 6/8/95 evidentiary deposition

Dr. Novom gave in Kulcscar v.
Walgreen Co. on behalf of Walgreens,
the fee for the IME of Ms. Kulcscar
and one additional report was
between $1200 and $1350. Dr. Novom
testified that at that time, his fee
for an IME was between $750 and
$850. (6/8/95 Novom Dep. at 33-34,
66, Dunphy Aff. ¶ 9 Exh. 8)

• In a 11/13/92 deposition Dr. Novom

gave in Blair v. Anderson on behalf
of a chiropractor, the fee for the
IME was $1500. Dr. Novom testified
that at that time, his fee for an
IME was between $600 and $700.

Dunphy - 20
 (11/13/92 Novom Dep. at 9-10, Dunphy
Aff. ¶ 10 Exh. 9)

• In a 9/17/92 deposition Dr. Novom

gave in Klement v. American Family
on behalf of American Family, Dr.
Novom stated that he had already
charged more than $700 for the IME
when his fee in 1992 was between
$600 and $700. (9/17/92 Novom Dep.
at 48, Dunphy Aff. ¶ 11 Exh. 10).

In fact, the plaintiffs' research failed

to uncover one case in which Dr. Novom's
actual IME fees did not exceed what his
stated average charges were.

The subpoenaed information will

assist the plaintiffs in determining
whether Dr. Novom’s "professed" and
"actual" average charges are the same.
That information, in turn, will allow an
accurate calculation of the likely defense
income Dr. Novom receives on a yearly
basis. Both items will help plaintiffs to
prepare a cross-examination that will
challenge Dr. Novom's objectivity.

Dr. Novom also stated that between

fifteen and twenty percent of his practice
is comprised of litigation-related
matters. (9/15/97 Novom Dep. at 23-24,
Dunphy Aff. ¶ 3 Exh. 2) Yet in another
case, Dr. Novom testified that performing
IMEs comprises one-third of his practice.
(11/13/92 Novom Dep. at 9, Dunphy Aff. ¶
10 Exh. 9) In still another case in 1992,
Dr. Novom testified that performing IMEs
comprises one-half of his income.
(10/21/92 Novom Dep. at 14-15, Dunphy Aff.
¶ 12 Exh. 11) When asked about his
$4,000.00-5000.00 fee for trial testimony,
Dr. Novom has stated that the price was

Dunphy - 21
the same whether he was in court for half
a day or the whole day. (9/17/97 Novom.
Dep. at 11, Dunphy Aff. ¶ 5 Exh. 4) But in
another deposition, Dr. Novom testified
that his fee for testifying is based on
half a day of work, so if he is required
to be in court for a longer period, he may
charge more than the regular fee.
(3/16/95 Novom Dep. at 75, Dunphy Aff. ¶
13, Exh. 12).

Again, the subpoenaed information

will allow the plaintiffs to determine
what the "real" charges are and how much
income Dr. Novom earns for his defense
work. Additionally, the requested
information may well provide the
plaintiffs with leads on other testimony
Dr. Novom has given that may be used in
preparation of cross-examination in this
case.

During the deposition Attorney

Dunphy asked for the number of IMEs Dr.
Novom performed during the month he
examined Mrs. Kuzminski. (9/15/97 Novom
Dep. at 82-83, Dunphy Aff. ¶ 3 Exh. 2)
Although Dr. Novom had earlier indicated
that such information was available on his
computer calendar, (9/15/97 Novom Dep. at
7, 18) later in the deposition, he
replied:

Q. Certainly. While we do
that, would you please
be so kind as to follow
up on your earlier
promise to ask your
office manager to see if
she can tell me how many
other exams you did
during the month of
July?

Dunphy - 22
 A. That I wouldn’t be able
to provide you with. I
think you initially
expressed, perhaps, how
many independent medical
exams I saw in the day
of Ms. Kuzminski. I
might be able to find
that for you.

MR. YANKALA: That is what you

asked for.

MR. DUNPHY: I also asked for

that week.

A. That would not be

available to you.

BY MR. DUNPHY: Q. That

wouldn't be available?

A. No.

Q. Do you have one day at

time planner?

A. No. I'm just not going

to provide that
information to you.
That's simple.

(9/15/97 Novom Dep. at 82-83). The number

of IMEs performed on the same day as Mrs.
Kuzminski’s was provided a short time
later during the deposition. The response
shows that Dr. Novom has the requested
information readily available to someone
other than Attorney Dunphy, the claimed 30
hours and $10,000.00 of retrieval time is
ludicrous, and Dr. Novom’s attitude is one
of confrontation and obstruction.

Dunphy - 23
 Against this factual backdrop, the
relevancy of the subpoenaed information
cannot be disputed under Wisconsin law
discussed at pages 8-10 supra. The
information will allow the plaintiffs to
accurately determine the amount of money
Dr. Novom earns from his defense work.
His contradictory and, at times, vague
answers, raise the inference that he has
been less than candid. The requested
lists and 1099’s will put an end to the
speculation and dodges. The need for
documentary support is apparent in light
of Dr. Novom’s attitude and open bias
towards plaintiffs.

Dr. Novom cannot be trusted to give

accurate answers to deposition inquiries
because he knows how "the game is played"
and how harmful accurate answers could be
to his credibility. For example, Dr. Novom
was critical of Mrs. Kuzminski’s treating
surgeon, Dr. William Dzwierzynski, for his
inability to deal with lawyers:

Q. Was it your experience

as an expert witness
that led you to conclude
that Dr. Dzwierzynski,
quote, "is steered to
forced conclusion-making
by deft legal framework
and artistry of posing
questions," close quote?

A. That was an obvious

conclusion from reading
the deposition.

Q. And based upon your

experience in giving
deposition testimony,

Dunphy - 24
 you have become familiar
with deft legal
framework and artistry
of posing questions?

A. I don’t think it has any

relationship to my
experience. Today we’re
going through a similar
process. It was most
obvious by reading the
deposition.

Q. That’s a judgment call

that you’ve made by
reading the deposition?

A. That’s what I
understood.

Q. Have you, through your

years as an expert
witness, developed the
ability to deal with the
artistry of posing
questions?

A. I’d let you be the

judge.

(9/15/97 Novom Dep. at

86).

Dr. Novom was critical of Dr. Dzwierzynski

for not being able to deal with attorneys.
Dr. Novom obviously feels that he is much
better at it. He prides himself on being
“savvy”. Dr. Novom has shown an attitude
that supports an inference that he knows
accurate responses to his defense income
may hurt his credibility. His "estimates"
may well be untrustworthy and he has the

Dunphy - 25
information available to resolve that
issue.

Not only is the subpoenaed

information discoverable under Wisconsin
law, but parallel issues in federal
evidentiary law require the production of
this information and are instructive on
its basic discoverability and the
associated cost chargeable for its
production.1

Federal Rule of Civil Procedure 26

provides in relevant part:

Except as otherwise stipulated

or directed by the court ...
this disclosure shall, with
respect to a witness who is
retained or specially employed
to provide expert testimony in
the case ... shall contain ...
a listing of any other cases
in which the witness has

1
Wisconsin state courts look to the
decisions of the federal courtsto the
extent that they show a pattern of
constructionas persuasive authority in
construing Wisconsin rules of civil
procedure that are based on federal rules
of civil procedure. Neylan v. Vorwald, 124
Wis.2d 85, 99, 368 N.W.2d 648, 656 (1985).
"Wisconsin statutes §§ 887.12 and 269.57,
Wis. Stats., [presently §§ 804.05, 804.09]
which provide for the inspection of
documents and property, now permit
pretrial discovery in the Wisconsin courts
analogous to the procedures in the federal
system under Rules 26 to 37 of Federal
Rules of Civil Procedure." Dudek, 34 Wis.
2d at 575, 150 N.W.2d at 397.

Dunphy - 26
 testified as an expert at a
trial or by deposition within
the preceding four years.

The fact that the federal rules explicitly

require the expert witness to provide the
opposing party with the cases in which the
expert has testified clearly shows that
such information is not only relevant, but
compilation of such a list is not
oppressive or unduly burdensome. It is
also significant that the federal rule
calls for "four" years of information.
The plaintiffs subpoena only calls for one
year and 10 months.

Federal decisions applying Federal

Rule 26 also demonstrate that information
regarding the income or percentage of
business generated by expert testimony is
not only relevant but essential to
establish bias and to help prepare an
effective cross-examination. In County of
Suffolk v. Long Island Lighting Co., 122
F.R.D. 120 (E.D.N.Y. 1988), the defendant
moved the court to compel the plaintiff's
expert to identify, among other things,
the percentage of his professional income
received in the previous three years that
was attributable to fees paid by the
county. The plaintiff argued that further
testimony or documentation on payments did
not have to be produced because the expert
"already answered this information to the
best of his ability." Id. at 121.
Although the expert had already been
required to produce documentation showing
money his consulting business received
with respect to the litigation, the court
granted further discovery of the expert's
specific share of income and the
percentage of his professional income
attributable to the county. Id. at 124.

Dunphy - 27
 C. Dr. Mark Novom's Tax Returns
Are Relevant And Subject To
Discovery In The Present Case.

Tax returns are clearly subject to

discovery in an appropriate case. Fort
Washington Resources, Inc. v. Tannen, 153
F.R.D. 78, 80 (E.D. Pa. 1994). Because
there is a public policy favoring
nondisclosure of tax returns, this must be
balanced against the public policy
favoring liberal discovery in determining
whether tax returns are discoverable. Id.
Courts apply a two-part test:

First, the party seeking

discovery bears the burden of
demonstrating relevance. If
relevant, the tax returns will
be discoverable unless the
party resisting discovery
meets its burden of proving
there is no compelling need
for the tax returns because
the information available in
the tax returns can be
obtained from other sources.

Id. The burden of showing that tax returns

and other financial information are
relevant is a "low threshold." Poulos v.
NAAS Foods, Inc., 132 F.R.D. 513, 522
(E.D. Wis. 1990), aff'd, 959 F.2d 69 (7th
Cir. 1992).

The 1099 tax forms Dr. Novom has

received from insurance companies are
clearly relevant here because of Dr.
Novom's variant testimony given under
oath, and because as indicated, the actual
amount of money Dr. Novom generates from
doing work for insurance companies or

Dunphy - 28
their attorneys goes to bias. Under such
circumstances, Dr. Novom's tax returns are
discoverable. See Wacker v. Gehl Co., 157
F.R.D. 58, 59 (W.D. Mo. 1994). Although
the court in Wacker ultimately denied the
defendant's request for the expert's
income tax returns, it did so because the
defendant failed to present factual
information reflecting a possible bias or
lack of objectivity. Unlike the party in
Wacker, the plaintiffs have presented
factual evidence demonstrating Dr. Novom's
bias and lack of objectivity to show that
the requested discovery is "reasonably
calculated to lead to admissible
evidence," thereby satisfying the
"threshold showing of relevance." Id.

Moreover, the subpoena at issue here

does not seek discovery of all of Dr.
Novom's income tax returnsonly the 1099
forms showing his income from insurance
companies. The request does not include
"irrelevant or immaterial" portions of Dr.
Novom's tax returns. See Konle v. Page,
205 Wis. 2d 385, 556 N.W.2d 380, 382 (Ct.
App. 1996). These forms must be readily
available. Dr. Novom undoubtedly still
has his 1996 tax returns, filed this year,
and must also be collecting his 1997
1099’s in preparation for his 1997
returns.

Because the defendant has not shown

an alternative source from which the
plaintiffs can obtain the relevant
information, Dr. Novom should produce his
1099 tax forms.

II. THE DEFENDANT'S MOTION FOR A

PROTECTIVE ORDER SHOULD BE DENIED
BECAUSE THE DEFENDANT HAS NOT

Dunphy - 29
 ESTABLISHED "GOOD CAUSE" FOR THE
ISSUANCE OF A PROTECTIVE ORDER.

Section 804.01(3) governs the

issuance of protective orders, and
provides in relevant part:

PROTECTIVE ORDERS. (a) Upon

motion by a party or by the
person from whom discovery is
sought, and for good cause
shown, the court may make any
order which justice requires
to protect a party or person
from annoyance, embarrass-
ment, oppression, or undue
burden or expense ....

This section permits a court to

issue a protective order upon a showing of
"good cause." Section 804.01(3)(a), Wis.
Stats. The burden of establishing "good
cause" is on the party seeking the
protective order. Earl v. Gulf & Western
Mfg. Co., 123 Wis.2d 200, 208, 366 N.W.2d
160, 164 (Ct. App. 1985); Vincent &
Vincent, Inc. v. Spacek, 102 Wis.2d 266,
272, 306 N.W.2d 85, 88 (Ct. App. 1981).
Because "[t]he presumption is that no
order is necessary," a "strong showing" of
good cause is required before a party will
be denied the right to discovery.
Blankenship v. Hearst Corp., 519 F.2d 418,
429 (9th Cir. 1975). "The burden is not
met by 'the recitation of expense and
burdensomeness [which are] merely
conclusory statements.'" Fort Washington,
153 F.R.D. at 79 (quoting Panola Land
Buyers Ass'n v. Shuman, 762 F.2d 1550,
1559 (11th Cir. 1985)). "There must be a
showing of 'particular need.'" Fort
Washington, 153 F.R.D. at 79.

Dunphy - 30
 The defendant attempts to establish
good cause for a protective order by
alleging undue burden or expense arising
out of production of the information. The
fact that discovery causes an individual
or party to take certain steps to obtain
the information is not the issue. All
discovery is burdensome and expensive to
some degree. Vincent & Vincent, 102 Wis.
2d at 272, 306 N.W.2d at 88.

The question is whether the

particular burden and expense
is justified in the particular
case. When the burden and
expense are determined, courts
must weigh this burden and
expense against the value of
the information sought.

Id. (citations omitted). While Dr. Novom

asserts that the amount of time and
expense necessary to produce the
information requested is oppressive
because such documents are "not readily
available in [his] office," (Dr. Novom
Aff. ¶¶ 6, 10, Dunphy Aff. ¶ 14 Exh. 13)
the plaintiffs submit that these
assertions are without basis.

First, the above-recitation of

inconsistencies in Dr. Novom's testimony
demonstrates that his estimates of time
and costs are not trustworthy. Second,
the evidence shows the information listed
in the subpoena can be generated by
computer or by his office staff flipping
or scrolling through his appointment
calendars for the years 1996 and 1997.
During his deposition, Dr. Novom was able
to have his office staff obtain the
listing of the IMEs done on the same date

Dunphy - 31
as Ms. Kuzminski’s. In his deposition in
the present case, Dr. Novom stated that
his records are all on computer and that
the records generally indicate a referral
source. (9/15/97 Novom Dep. at 7, Dunphy
Aff. ¶ 3 Exh. 2) Dr. Novom also stated
that discovery deposition dates were
entered on his computer calendar. (9/15/97
Novom Dep. at 18) If deposition dates are
on his computer, it follows that trial
testimony dates would also be marked on
his calendar.

Moreover, in a previous case, an

attorney subpoenaed Dr. Novom for
information very similar to that requested
here, including all books indicating
appointments done at the request of
insurance companies or their attorneys for
1990-1992. In response to the attorney's
questions as to whether that information
could be produced, Dr. Novom stated:

The way in which I would

likely be able to provide that
information is simply
generating through the
computer all the names of
patients that I've seen in the
course of a year, which the
computer should have. And
generally that will show us a
referral, whether it's a so-
called [IME], where the source
of the referral was, or if it
was from a consultative exam
....

So though it's not

logged, if you will ... as a
separate entity .... We would
just simply have to spin out
all the names of the patients

Dunphy - 32
 that we've seen. And I ...
have no doubt that we could
break down that information
for you.

(10/21/92 Novom Dep. at 12, Dunphy Aff. ¶

12 Exh. 11)

In that same deposition Dr. Novom

was asked for any information or documents
setting forth income received in 1989,
1990, and 1991 as a result of IMEs
performed on behalf of insurance
companies or their attorneys. When asked
whether that information would be
available, he replied: "I have no doubt
that that's just as readily available
through the computer." (10/21/92 Novom
Dep. at 13-14) (emphasis added). Dr.
Novom also stated that his office
computers provided the information for
preparation of the 1099 tax forms for the
income he receives from insurance
companies, and that his accountant
prepared his tax returns. (10/21/92 Novom
Dep. at 14).

Dr. Novom also recalled an earlier request that was

"very comparable" to what was being requested by the
attorney that issued the subpoena and stated that "it took a
number of hours, probably measured over some days, for
secretaries to extract that information." (10/21/92 Novom
Dep. at 21-22) He also said: "I do remember our secretaries
getting all that information out." Given this information, it
seems highly unlikely that the information requested is "not
readily available in [his] office," as Dr. Novom asserts in his
affidavit. (9/18/97 Novom Aff. ¶ 6, Dunphy Aff. ¶ 14 Exh.
13)

III. THE INTERPROFESSIONAL CODE HAS NO

BEARING ON DR. NOVOM'S LEGAL

Dunphy - 33
 RESPONSIBILITY TO COMPLY WITH THE
VALID SUBPOENA IN THIS CASE.

The defendant relies on the

Interprofessional Code that the Wisconsin
State Bar drafted to guide
interprofessional relation-ships in legal
proceedings and is designed "to aid
professionals in working together to serve
the patient/client," (Interprofessional
Code at 2, Dunphy Aff. ¶ 15 Exh. 14) The
defendant's argument seems to be that
because the manner in which the subpoena
was issued did not comport with the
recommendatory guidelines in the Code, it
is somehow legally invalid. The defendant
has cited no legal authority for the
proposition that lawyers and doctors "must
adhere" to this Code. Furthermore, the
defendant's argument relates only to the
manner in which the subpoena was served;
it has nothing to do with the merits of
their motion. Lastly, it is strikingly
inconsistent for the defendant to call on
the plaintiffs to comply with the
Interprofessional Code when Dr. Novom
threw the plaintiffs’ attorney out of the
waiting room. Apparently, the Code only
applies to the doctor.

IV. THE DEFENDANT'S EXPERT IS NOT

ENTITLED TO FEES OR ONLY
NOMINAL/REASONABLE FEES FOR THE
PRODUCTION OF DOCUMENTS IN THE
SUBPOENA.

The defendant contends that pursuant

to § 804.01(2)(d)3, Wis. Stats., the
plaintiffs should pay Dr. Novom "a
reasonable fee for the time spent in
responding to discovery." The plaintiffs
do not believe Dr. Novom is entitled to

Dunphy - 34
his regular expert fees for producing the
requested information for the following
reasons:

1. The list of discovery and

trial testimony Dr. Novom has given since
January 1, 1996 is a requirement imposed
by law, see Fed. R. Civ. Proc.
26(a)(2)(B), which does not require
remuneration. While this is not binding
on this case it is indicative of the
recognition that expert witnesses who
charge for their testimony have an
obligation to the system.

2. With respect to the other

documents, Dr. Novom has previously
testified that it is his secretaries that
are responsible for "extracting" this type
of information. (10/21/92 Novom Dep. at
21-22, Dunphy Aff. ¶ 12 Exh. 11) He has
also testified that his accountant is
responsible for his financial matters.
Therefore, there is no reason that any
cost associated with production of these
documents should be billed at expert fee
rates.

3. Even if fees were charged for

such information, the time necessary to
flip or scroll through twenty-two months
on a calendar for scheduled IMEs,
depositions and trial testimony, and copy
the corresponding invoices and 1099 tax
forms from 1994 through the present does
not begin to approach upwards of thirty
hours or a cost of $10,000 ($333.00 per
hour).

Even if this court determines that

Dr. Novom is entitled to his expert fee
for producing the requested discovery, the
fee must be reasonable. Section

Dunphy - 35
804.01(2)(d)3, Wis. Stats. The federal
courts have determined that $250 an hour
is reasonable for expert fees. Magee v.
Paul Revere Life Ins. Co., 172 F.R.D. 627,
646 (E.D.N.Y. 1997) (reducing expert
physician's hourly fee from $350 to $250);
Mathis v. NYNEX, 165 F.R.D. 23, 26
(E.D.N.Y. 1996) (upholding $250 hourly
rate for deposition testimony); Anthony v.
Abbott Labs., 106 F.R.D. 461, 465 (D.R.I.
1985) ($250 per hour expert witness fee is
"in this court's view, at the outermost
periphery of the range of sustainable
rewards.").

CONCLUSION
The plaintiffs respectfully request
that the defendant's Motion to Quash
Subpoena and Motion for Protective Order
be denied. Plaintiffs' Subpoena Duces
Tecum is drafted narrowly in such a way as
to require the defendant to produce only
those documents referring to or relating
in any way to the amount of work Dr. Novom
performs for insurance companies or their
attorneys and the income he generates as a
result. This information is relevant to
Dr. Novom's credibility as a witness and
ability to perform nonbiased independent
medical examinations. Such information is
not protected by any privilege because the
information sought is factual in nature.
Although Dr. Novom makes the unfounded
assertion that the subpoena serves only to
oppress or annoy him, the defendant has
not made a factual showing that this is
the case or that production of the
discovery will be unduly burdensome or
expensive. Accordingly, the information
is discoverable.

For the reasons set forth above, the

plaintiffs respectfully request that this

Dunphy - 36
Court deny the defendant's motion to quash
and motion for a protective order.

Dated at Brookfield, Wisconsin, this

14th day of October, 1997.

Patrick O. Dunphy
State Bar No. 1016947
CANNON & DUNPHY, S.C.
Attorneys for Plaintiffs

Dunphy - 37
WAUKESHA COUNTY CIRCUIT COURT, WIS
CIVIL BRANCH
___________________________________

MICHELLE M. KUZMINSKI
f/k/a MICHELLE M. CONROY,
and CASSANDRA L. KUZMINSKI
and SAMANTHA M. KUZMINSKI,
minors, by their Guardian
ad Litem, Patrick 0. Dunphy,

Plaintiffs,

Case No. 96-CV-2155

and

WISCONSIN CENTRIFUGAL, INC.,

a Wisconsin corporation,
c/o M. E. Nevins,
Registered Agent

Involuntary Plaintiff,
v.

AMERICAN FAMILY MUTUAL INS. CO.,

a Wisconsin insurance corporation,
c/o James F. Eldridge,
Registered Agent

Defendant.
___________________________________

SUPPLEMENTAL BRIEF IN RESPONSE TO

MOTION TO QUASH
___________________________________
 INTRODUCTION

The information plaintiffs requested

in their subpoena duces tecum is relevant,
outweighs any interest Dr. Marc Novom has
in nondisclosure and cannot be obtained by
other means. The supplemental affidavit
filed by Dr. Novom does not support the
defendants' motion to quash. It is based
on speculation, unfounded assumptions and
the proposition that only Dr. Novom can
perform some of the work necessary to
respond. This results in an inflated
estimate of the time, commitment and cost
associated with responding to the
subpoena. In fact, Dr. Novom's time
estimate has risen from 30 hours to 415
hours. Plaintiffs submit that defendants
have not met their burden of showing that
the requested discovery is unduly invasive
or burdensome and that the motion to quash
the subpoena should be denied.
ARGUMENT

I. THE INFORMATION SOUGHT IS RELEVANT,

OUTWEIGHS ANY INTEREST IN
NONDISCLOSURE, AND CANNOT BE
OBTAINED BY LESS BURDENSOME MEANS.

The defendants reply brief cited

several cases from other jurisdictions in
support of their argument that the
information plaintiffs seek is burdensome
and of no probative value. While some
states may limit the discoverability of an
expert's financial and litigation-related
matters, "the trend is to allow discovery
of such documents." State ex rel.
Creighton v. Jackson, 879 S.W.2d 639, 642
(Mo. Ct. App. 1994); see State ex rel.
Lichtor v. Clark, 845 S.W.2d 55 (Mo. Ct.
App. 1992); 8 Wright & Miller, Federal
Practice and Procedure § 2015 (1994).

In Creighton, the trial court first

determined that production of the expert
witness's financial information, including
five years of 1099 forms, was "reasonably
calculated to lead to the discovery of
admissible evidence." In refusing to
quash the subpoena, the court considered
evidence submitted from previous
depositions showing the doctor earned a
substantial living as an expert, evidence
reflecting his inability to estimate
annual earnings, and his "refus[al] to
make available any documentation from
which the information sought could be
determined." Id. at 643. The court of
appeals affirmed, stating that the expert
had been "less than forthcoming" and could
reasonably be expected "to evade such
inquiries if put to him in the absence of
any documentation to which reference may
be made."

As in Creighton, it is Dr. Novom's

lack of forthrightness and inability or
unwillingness to provide the plaintiffs
with the information requested that
necessitates production of the requested
documents to ensure accurate testimony at
trial. While the expert's interest in
avoiding disclosure must be weighed
against the probative value of the
evidence, none of the plaintiffs' requests
require disclosure of confidential patient
information or income generated in the
course of Dr. Novom's nonlitigation-
related business.

Even when the opponent asserts that

the discovery is "unduly intrusive or
burdensome," the answer is "not to

Dunphy - 40
narrowly define the scope of discovery."
Creighton, 879 S.W.2d at 642. It must be
determined whether the objections are
legitimate and whether the information can
be discovered through less burdensome
avenues. Id. While defendants state that
plaintiffs' object can be accomplished
through less intrusive means, they do not
state what those means are.

Given the plaintiffs' unsuccessful

attempt and inability to discover this
information through other means, the trend
of permitting discovery of this type of
information, and the unsubstantiated
assertions in his most-recent affidavit,
Dr. Novom should be required to comply
with the subpoena. Plaintiffs submit that
defendants have not set forth any
legitimate objections and that defendants
have not met their burden of showing that
the relevant information is burdensome,
unduly invasive, or necessitates the
amount of time or remuneration claimed.

II. DR. NOVOM FAILED TO SHOW THE

DOCUMENT REQUESTS INVADE PRIVACY
INTERESTS, ARE UNDULY BURDENSOME OR
NECESSITATE NUMEROUS HOURS OF
COMPILATION.

A. Compilation of IME Lists.

Dr. Novom's supplemental affidavit

claims that it would take him five hours
of time to identify all patients seen
since January 1, 1996 for purposes of an
IME. He states that he would have to
check his office computer records on a
daily basis to obtain this list.
Plaintiffs submit these assertions are
without merit for several reasons.

Dunphy - 41
 First, Dr. Novom has made no
statement as to why he must be the one
reviewing the computer records. During
the course of his deposition his office
staff was able to identify all of the IMEs
done the same day as plaintiffs'. There
is no showing that his office staff could
not examine his computer calendar and
obtain this information.

Second, plaintiffs have not

subpoenaed a list of names. Plaintiffs
only want a list of IMEs. Exhibit No. 4
marked at Dr. Novom's deposition
established that IMEs are clearly marked
as such in the computer calendar.
Assuming Dr. Novom's computer has even the
most antiquated Pentium processor,
scanning his calendar for the letters
"IME" cannot take five hours. Certainly,
it would not take that long to scan a
written calendar/appointment book.

Third, the plaintiffs' subpoena does

not require and does not seek disclosure
of the names of the patients that were
seen. If Dr. Novom chooses to document
the number of IMEs by producing the daily
listing of patients seen, as his office
staff did when plaintiffs asked how many
IME's Dr. Novom performed the day he saw
Ms. Kuzminski, patient names can be marked
out as before. (9/15/97 Deposition Exh.
No.4, Exh. 1) The plaintiffs' request
raises no confidentiality issues.

B. Production Of Insurance Company

Invoices.

Dr. Novom has supplied no support

for his claim that it would involve 200+
hours of time to assemble actual copies of

Dunphy - 42
all invoices generated during the time
period referenced. Broad assertions that
"producing the documents would take too
much time and expense [that] are
unsupported by the necessary
particularized facts and details" are
insufficient to prevent discovery. Fort
Washington Res., Inc. v. Tannen, 153
F.R.D. 78, 79 (E.D. Pa. 1994). Even so,
plaintiffs are willing to accept Dr.
Novom's book entry of the amount charged
for the IMEs without requiring production
of the underlying invoice. Information
regarding the witness's earnings as an
expert is a factor that may influence the
expert's objectivity and is discoverable.
Creighton, 879 S.W.2d at 641, 643.

C. A Listing of Discovery
Depositions and Trial
Testimony.

Dr. Novom estimates that it would

take him an additional five hours to
identify and list the depositions he has
given since January 1, 1996 and another
five hours to identify the trial testimony
he has given since January 1, 1996. These
estimates are again without foundation and
fly in the face of common sense.

In Dr. Novom's deposition, he states

his computer calendar contains entries
such as "IME" and "discovery deposition"
on the days he has such appointments
scheduled. (9/15/97 Deposition at 18, 25,
Exh. 1) Therefore, as his office staff
flips through his computer calendar, they
should easily be able to identify dates on
which depositions and trial testimony was
given. Therefore, it should take no more
additional time to compile a list of

Dunphy - 43
depositions and trial testimony than it
does to identify IMEs. Dr. Novom's office
staff need only create three columns, one
headed IME, one headed deposition and one
headed trial testimony and then enter the
count on a monthly basis in each category.

With respect to the depositions and

trial testimony, there is no privilege
that attaches to such a request. Notably,
the defendants cite Elkins v. Sykens, 672
So. 2d 517, 521 (Fla. 1996), where the
court held that "[t]he expert may be
required to identify specifically each
case in which he or she has actually
testified, whether by deposition or at
trial, going back a reasonably period of
time, which is normally three years."

If the attorney and/or case are

identified in Dr. Novom's calendar entry,
that information can be quickly and easily
provided. If not, limiting a search of
the patient's file to the cases in which
deposition and trial testimony were given
so a case caption could be provided,
should not take 100 hours to complete.
The 100-hour estimate is particularly
ludicrous in light of Dr. Novom's
testimony that he only gives 20-24
depositions per year and not more than "a
couple of" trial testimonies over the last
several years. (9/15/97 Deposition at 18,
20, Exh. 1; 3/3/94 Deposition at 7, 76,
77, Exh. 2)

D. 1099 Forms.

Dr. Novom's supplemental affidavit

states that he no longer has access to his
1099 forms because of a flood that
destroyed this material. The affidavit
does state how plaintiffs can obtain this

Dunphy - 44
information through alternate means. See
Tannen, 153 F.R.D. at 80 (relevant tax
returns are discoverable unless party
resisting discovery meets burden of
proving the information is obtainable from
other sources.) While Dr. Novom's
affidavit does not indicate whether he has
an accountant that prepares his tax
returns, in a deposition taken in
Galbraith v. Badger Mut. Ins. Co., Dr.
Novom testified that he has an accountant
who handles his financial matters,
including his 1099 tax forms. (10/21/92
Deposition at 14, Exh. 3) If Dr. Novom
still has an accountant who has copies of
his tax returns and 1099 forms, this
information would be as readily and easily
retrievable as the plaintiff's W-2 forms.

Moreover, it should be stressed that

the subpoena does not require Dr. Novom to
produce his income tax returns, only his
1099 forms for insurance company IMEs,
deposition testimony and court testimony.
This is a very limited and targeted
request for documents that relate
specifically to the business in which he
is engaged each time that he testifies in
a case, such as Ms. Kuzminski's. Under
such circumstances, courts have held the
expert's privacy interest is outweighed by
the other party's interest in assuring the
accountability of the expert's responses,
and have required the expert to produce
his 1099 forms. Creighton, 879 S.W.2d at
643-44; Lichtor, 845 S.W.2d at 67; see In
re San Juan DuPont Plaza Hotel Fire
Litig., 117 F.R.D. 30 (D. P.R. 1987).

CONCLUSION
It is interesting to note that Dr.
Novom's estimate of the time that it would
take him to provide the subpoenaed

Dunphy - 45
information has risen from 30 hours to 415
hours. One cannot help but question the
accuracy of his estimates and candor in
both affidavits given their striking
disparity.

The plaintiffs believe that the

subpoenaed information can be produced in
less than 10 hours time and at the cost of
$60.00 per hour for office staff. For the
foregoing reasons, the plaintiffs
respectfully renew their request that the
court order Dr. Novom to comply with the
subpoena.

Dated at Brookfield, Wisconsin, this

14th day of November, 1997.

Patrick O. Dunphy
State Bar No. 1016947
CANNON & DUNPHY, S.C.
Attorneys for Plaintiffs

Dunphy - 46
WAUKESHA COUNTY CIRCUIT COURT, WIS
CIVIL BRANCH
___________________________________

MICHELLE M. KUZMINSKI
f/k/a MICHELLE M. CONROY,
and CASSANDRA L. KUZMINSKI
and SAMANTHA M. KUZMINSKI,
minors, by their Guardian
ad Litem, Patrick 0. Dunphy,

Plaintiffs,

Case No. 96-CV-2155

and

WISCONSIN CENTRIFUGAL, INC.,

a Wisconsin corporation,
c/o M. E. Nevins,
Registered Agent

Involuntary Plaintiff,
v.

AMERICAN FAMILY MUTUAL INS. CO.,

a Wisconsin insurance corporation,
c/o James F. Eldridge,
Registered Agent

Defendant.
___________________________________

ORDER

This matter having come before the

Court on November 24, 1997, pursuant to
American Family Mutual Insurance Company's
Motion to Quash the subpoena duces tecum
naming Dr. Marc Novom, and the
accompanying Motion for Protective Order;
and The Court having reviewed all of the
materials supplied by the parties in
connection with said motion; and
 The Court having considered the oral
arguments made by the parties on the
initial hearing date of October 27, 1997,
the plaintiffs having appeared by Patrick
0. Dunphy and the defendants having
appeared by Wayne M. Yankala; and

The Court having considered the oral

arguments of counsel at the recent hearing
of November 24, 1997, the plaintiffs
having appeared by Patrick 0. Dunphy and
the defendants having appeared by Karyn
Gimbel Youso; and

The Court having issued an oral

decision on November 24, 1997; IT IS
ORDERED:

1. Dr. Novom will produce a listing by

date, first name and first initial of last
name of all IMEs performed from January I,
1996 to the present.

2. Dr. Novom will produce a listing of

all discovery depositions and trial
testimony he has given since January 1,
1996. Such lists shall give the date of
the testimony and the case name, if known,
or the name of the party who retained him.

3. Dr. Novom will produce copies of all

available 1099 tax forms from insurance
companies for independent medical exami-
nations, deposition testimony and court
testimony for the year 1996. Such forms
for the year 1997 will also be produced if
they are available prior the commencement
of trial in this matter.

4. The Court's decision in ordering

production of said 1099 tax forms is based
upon the unique circumstances of the

Dunphy - 48
above-captioned matter, and plaintiffs and
their counsel are prohibited from
disseminating copies of said tax forms or
sharing the infor-mation contained therein
with any individuals other than those
directly associated with this law suit.

5. The plaintiffs' request that Dr. Novom

produce invoices from insurance companies
or insurance company lawyers for IMEs is
denied.

Dated at Waukesha, Wisconsin this 10th day

of December 1997.

BY THE COURT:

Kathryn W. Foster
Circuit Court Judge Branch 2

Dunphy - 49