Case 2:16-cv-13040-AC-APP ECF No. 341 filed 10/17/18

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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
State Farm Mutual Automobile Insurance
Company,
Plaintiff,
v.
Elite Health Centers Inc.,
Elite Chiropractic, P.C.,
Elite Rehabilitation, Inc.,
Midwest Medical Associates, Inc.,
Pure Rehabilitation, Inc.,
Derek L Bittner D.C., P.C.,
Mark A. Radom,
Derek Lawrence Bittner, D.C.,
Ryan Matthew Lukowski, D.C.,
Michael P. Draplin, D.C.,
Noel H. Upfall, D.O.,
Mark J. Juska, M.D.,
Superior Diagnostic, Inc.,
Chintan Desai, M.D.,
Michael J. Paley, M.D.,
Dearborn Center for Physical Therapy, LLC,
Michigan Center for Physical Therapy, Inc., and
Jayson Rosett,
Defendants.

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Case No. 16-13040
Hon. Avern Cohn
Magistrate Judge
Anthony P. Patti

STATE FARM MUTUAL’S
MOTION TO COMPEL JANET ROSENBERG
TO PRODUCE DOCUMENTS RESPONSIVE TO SUBPOENA
Plaintiff State Farm Mutual Automobile Insurance Company (“State Farm
Mutual” or “SFMAIC”), pursuant to Fed. R. Civ. Proc. 26 and 45, respectfully
submits this Motion to Compel Janet Rosenberg to produce documents responsive

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to a subpoena issued by SFMAIC (“Motion”).

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This Motion is based on the

accompanying brief, which is incorporated herein. Counsel for SFMAIC conferred
with counsel for Janet Rosenberg on September 4, 2018 and September 7, 2018.
During the September 7 meet and confer, counsel said Rosenberg would provide
updated responses on September 10. To date and despite several follow-up emails
from SFMAIC, Rosenberg and her counsel have failed to update her responses or
even respond to SFMAIC’s emails. On September 24, 2018, SFMAIC requested
leave to file a motion to compel against Rosenberg, see Dkt. 318, and served a
copy on Rosenberg’s counsel. Rosenberg filed no response. On October 3, 2018,
the Court granted SFMAIC’s request to file a motion to compel against Rosenberg.
Dated: October 17, 2018
By: /s/ Kathy P. Josephson
Ross O. Silverman
Kathy P. Josephson
Michael M. Rosensaft
Matthew R. Ryan
Justin C. From
Katten Muchin Rosenman LLP
525 W. Monroe St.
Chicago, IL 60661
(312) 902-5200
ross.silverman@kattenlaw.com
kathy.josephson@kattenlaw.com
michael.rosensaft@kattenlaw.com
matthew.ryan@kattenlaw.com
justin.from@kattenlaw.com
Thomas W. Cranmer (P25252)
David D. O’Brien (P65532)
Jeffrey A. Crapko (P78487)

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Miller, Canfield, Paddock and Stone,
PLC
840 W. Long Lake Road, Suite 200
Troy, Michigan 48098
(248) 267-3381
cranmer@millercanfield.com
Attorneys for Plaintiff State Farm
Mutual Automobile Insurance Company

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UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
State Farm Mutual Automobile Insurance
Company,
Plaintiff,
v.
Elite Health Centers Inc.,
Elite Chiropractic, P.C.,
Elite Rehabilitation, Inc.,
Midwest Medical Associates, Inc.,
Pure Rehabilitation, Inc.,
Derek L Bittner D.C., P.C.,
Mark A. Radom,
Derek Lawrence Bittner, D.C.,
Ryan Matthew Lukowski, D.C.,
Michael P. Draplin, D.C.,
Noel H. Upfall, D.O.,
Mark J. Juska, M.D.,
Superior Diagnostic, Inc.,
Chintan Desai, M.D.,
Michael J. Paley, M.D.,
Dearborn Center for Physical Therapy, LLC,
Michigan Center for Physical Therapy, Inc., and
Jayson Rosett,
Defendants.

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) Case No. 16-13040
) Hon. Nancy G. Edmunds
) Hon. Anthony P. Patti
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BRIEF IN SUPPORT OF
STATE FARM MUTUAL’S MOTION
TO COMPEL JANET ROSENBERG TO
PRODUCE DOCUMENTS RESPONSIVE TO SUBPOENA

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TABLE OF CONTENTS
Page
I.

Introduction and Relevant Background ...........................................................1

II.

The Subpoena Served On Rosenberg ..............................................................5

III.

Legal Analysis .................................................................................................6

IV.

Conclusion .......................................................................................................8

i

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STATEMENT OF ISSUE PRESENTED
Whether Janet Rosenberg, a non-attorney employee of Michael Morse’s law firm
who was heavily involved in the solicitation component of Defendants’ fraud
scheme, should be ordered to produce highly relevant documents reflecting patient
referrals and solicitation and her relationship with Defendants, including Jayson
Rosett.
State Farm Mutual’s Response: Yes
Janet Rosenberg’s Response: No

ii

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TABLE OF AUTHORITIES
Cases

Page(s)

Doe v. United States,
253 F.3d 256 (6th Cir. 2001) ................................................................................ 8
Sabol v. Brooks,
469 F. Supp. 2d 324 (D. Md. 2006) ...................................................................... 6
SFMAIC v. Warren Chiropractic & Rehab Clinic, PC,
315 F.R.D. 220 (E.D. Mich. 2016) ....................................................................... 7
SFMAIC v. Fayda,
2015 WL 7871037 (S.D.N.Y. Dec. 3, 2015) ........................................................ 8
Strategic Mktg. & Res. Team, Inc. v. Auto Data Sols., Inc.,
2017 WL 1196361 (E.D. Mich. Mar. 31, 2017) ................................................... 6
Rules
Federal Rule of Civil Procedure 26 ........................................................................... 7
Federal Rule of Civil Procedure 45 ........................................................................... 7

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CONTROLLING OR MOST APPROPRIATE AUTHORITIES
SFMAIC v. Fayda, 2015 WL 7871037 (S.D.N.Y. Dec. 3, 2015)
SFMAIC v. Warren Chiropractic & Rehab Clinic, PC, 315 F.R.D. 220 (E.D. Mich.
2016)
Strategic Mktg. & Res. Team, Inc. v. Auto Data Sols., Inc., 2017 WL 1196361
(E.D. Mich. Mar. 31, 2017)

iv

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I.

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Introduction and Relevant Background
Janet Rosenberg (“Rosenberg”) should be compelled to produce all

documents responsive to SFMAIC’s Subpoena.

Rosenberg is the “marketing

director” for Michael Morse’s law firm and, in that role, worked with defendant
Jayson Rosett (“Rosett”) to solicit auto accident victims on behalf of Morse who
they would steer to Defendants’ clinics for treatment. Rosett has already admitted
that he participated in the unlawful solicitation of accident victims for Morse and
Defendants. Specifically, on October 12, 2018, he submitted a letter to the Court
stating that a federal investigation revealed he “conspired with others including . . .
named Defendants to bribe police officers to obtain unofficial accident reports. . . .
After the unofficial reports were obtained, they were provided to the Elite
[Entities] and the . . . Morse law firm for the purpose of soliciting patients for the
Elite [Entities] and the . . . Morse law firm.” Dkt. 337. In response, Morse’s
counsel told the Detroit News, “Morse and his law firm are not a party to any legal
action which asserts that either of them improperly obtained police reports . . . The
reason is simple. They did not.” See Ex. 1 (emphasis added). This statement is
demonstrably false. Emails produced by Rosett establish that Morse’s firm, along
with Rosett and the Elite Defendants, knowingly and improperly used unapproved
police reports to solicit clients for Morse who they steered to Defendants for
treatment. Rosenberg was heavily involved in this solicitation.
In early 2010, Rosett started purchasing “unapproved” police reports (before
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they were publicly available to law enforcement, attorneys or insurers) from
Detroit police officers which he used to solicit clients for Morse. Initially, Rosett
would personally call auto accident victims using the alias “Lou” and then email
the victims’ information to Rosenberg. See Ex. 2 (Rosett emailing Rosenberg, “Hi
Jan here is a for sure one. I said the best auto law office will be calling her real
shortly.”) Rosenberg, knowing Rosett had identified auto accident victims from
unapproved police reports and called himself “Lou” to conceal his true identity,
would then call the accident victims to solicit them for Morse. See Exs. 3–6.
When accident victims asked how Rosenberg got their contact information, she
lied. See, e.g., Ex. 4 (Rosenberg emailing Rosett that “[e]veryone I talked to
today..I mention Lou, next thing they ask me is ‘yeah but how did LOU get my
number??’ I’ve been talking my wa[y] through that but just a heads up in case
there is anything else you can say”).
In exchange for soliciting clients for Morse, Rosenberg directed the
chiropractors who treated Morse’s clients to refer them to Rosett’s PT clinics for
treatment. Ex. 7 (Rosenberg confirming to Rosett that chiropractor referred three
patients to Michigan Center for PT and promising more patient referrals: “I need u
to be patient and know I’m on it.”); Ex. 8 (Rosenberg emailing Rosett she “spoke
to 2 chiros today and asked them each to refer someone to [Rosett’]s] PT within
the next 7 days”); see also, e.g., Exs. 9–10.
The process of Rosett calling accident victims and then emailing their
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information to Rosenberg created a lag time between when Rosett sent Rosenberg
the potential clients’ information and when she called them, which sometimes
resulted in the potential client hiring a different lawyer. See Ex. 11 (Rosenberg
emailing Rosett that potential client “told me he has a lawyer already!! Wtf? No
clue what happened, but he was called promptly!”); Ex. 12 (Rosenberg emailing
Rosett that a potential client “hung up from Lou and called another lawyer and has
chosen that firm!!!!”). To remedy this situation, Rosenberg and Rosett figured out
a way for Rosett to patch his calls with potential clients directly into Morse’s office
while he had them on the phone. See Ex. 13 (Rosenberg explaining to Rosett that
they could “connect you right to our office with your own direct dial number so
our name won’t come up on caller ID”); Ex. 14 (email from Rosenberg to Rosett
discussing auto accident victim who signed with attorney Carl Collins after
speaking to “Lou” and exclaiming “WE NEED TO GET THAT PHONE SET
UP!!”); see also Exs. 15–16.
Around the time Radom and Bittner formed the Elite Entities, Morse and
Rosett agreed to an arrangement in which Rosett would start hand-delivering
unapproved police reports to Morse’s office. On August 12, 2011, Morse told
Rosett, “Let’s do the police report thing. Just get them to me and I will get you
more active treating patients. It will work[.]” Ex. 17. Rosett then started to hand
deliver unapproved police reports to Morse. See Exs. 17–20. At some point,
Rosenberg began receiving these reports for Morse on a daily basis. Ex. 21
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(3/14/2013 emails between Rosenberg and Rosett: “[R]eports everyday!!” with
sample of AIB spreadsheet attached).
In mid-2012, Bittner, Radom, and Rosett started planning to use an entity
formed by Rosett, Accident Information Bureau, LLC (“AIB”) as a “call center” to
solicit clients for Morse and patients for the Defendants using unapproved police
reports that AIB purchased, using funds provided by the Elite Defendants. See
Exs. 22–24. Indeed, on June 8, 2012, when AIB’s operations were ramping up,
Bittner emailed two Elite chiropractors, including defendant Ryan Lukowski, to
tell them they were “starting a mass marketing blitz.” Ex. 25. Bittner directed the
specific treatment and attorney referral protocols the chiropractors should use,
including to have patients contact Rosenberg at Morse’s firm. Id.
Rosenberg knew the police reports used to solicit auto accident victims to
become clients of Morse were “unapproved.”

First, many were stamped

“Unapproved Report.” See Ex. 26 (5/13/2013 email from Rosett to Rosenberg
attaching sample set of police reports). Second, Rosenberg emailed Rosett that
Morse sent a mailer to potential clients “that says we have your police report,
please call us, blah blah blah[,]” but “[f]or the PR’s you send us, we can’t access
those online when people ask us about them” because they were “not on those
websites.” Ex. 27. Third, there was no reason for Morse’s firm to obtain police
reports from Rosett once they were approved when all law firms could access the

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reports, as it would have deprived Morse of his competitive advantage in soliciting
clients.
II.

The Subpoena Served On Rosenberg
In light of the foregoing, the Subpoena seeks (1) communications with

Defendants and related third-parties regarding solicitation or referral of accident
victims and with anyone regarding police reports received from Defendants or
AIB, (2) payments for police reports, (3) documents reflecting the receipt or
delivery of non-public police reports from Defendants or AIB, any attempts to
obtain non-public police reports, and the use of such reports to solicit accident
victims, and (4) documents regarding the referral of Morse clients to Defendants,
Horizon Imaging, Plaintiff Investment Funding, or Med-Lien Solutions. Ex. 28.1
1

Request No. 1: All Communications with any Defendant, Robert Rosett, Horizon
Imaging, LLC, AIB, and/or 2875 Maple LLC regarding (a) accident reports and/or
(b) the solicitation of accident victims; Request No. 2: All Communications with
anyone regarding any mechanism to transfer or connect telephone calls made to or
received on any telephone number used by Jayson Rosett or AIB to the Mike
Morse Law Firm . . .; Request No. 3: All Communications with anyone regarding
(a) accident reports received, directly or indirectly, from Rosett, any of the other
Defendants, or AIB; and/or (b) the use of information contained in accident reports
received, directly or indirectly, from Rosett, any of the other Defendants, or AIB,
to solicit accident victims to be clients of the Mike Morse Law Firm; Request No.
4: All Documents regarding or reflecting (a) the receipt and/or delivery of accident
reports, directly or indirectly, from Jayson Rosett, any of the other Defendants, or
AIB, (b) any attempts to view and/or obtain any unapproved accident reports,
and/or (c) the use of information contained in unapproved police reports received,
directly or indirectly, from Rosett, any of the other Defendants, or AIB, to solicit
accident victims to be clients of the Michael Morse Law Firm; Request No. 5: All
Payments made to or received from anyone regarding the provision of accident
reports, directly or indirectly, from Jayson Rosett, any of the other Defendants, or
AIB; Request No. 6: All Documents and Communications regarding or reflecting
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Rosenberg lodged boilerplate objections claiming the Subpoena seeks information
not relevant or proportional to SFMAIC’s claims and is not limited to the 221
patients identified in the Complaint.

Ex. 29.

Rosenberg also claimed “any

responsive documents, if any were to exist, are not in [her] possession, custody or
control . . . .” Id. Rosenberg’s objections lack merit. Nor is it credible that
Rosenberg has no responsive documents in her possession. Rosett’s produced
more than 200 emails to or from Rosenberg, including nearly 80 emails to or from
Rosenberg’s personal email account. The Court should grant the Motion.
III.

Legal Analysis
Rosenberg’s objections are general and boilerplate and are therefore

“tantamount to no objection at all and [should] not be considered by the Court.”
Strategic Mktg. & Res. Team, Inc. v. Auto Data Sols., Inc., 2017 WL 1196361, at
*2 (E.D. Mich. Mar. 31, 2017); see Dkt. 276 at 12269. They should be deemed
waived. See Sabol v. Brooks, 469 F. Supp. 2d 324, 329 (D. Md. 2006). Even if the
Court considers Rosenberg’s objections, they lack merit.
First, the Subpoena seeks highly relevant documents focusing on
Rosenberg’s role in (1) the solicitation of individuals on behalf of Morse from nonpublic unapproved police reports illegally purchased by Rosett, AIB, or any other
the referral of clients of the Mike Morse Law Firm to any Defendant, the Rosett PT
Entities, and/or Horizon Imaging, LLC; Request No. 7: All Communications with
Michael Morse and anyone else at the Mike Morse Law Firm regarding the referral
of any client who was or became a patient of any Defendant, Horizon Imaging,
LLC, and/or the Rosett PT Entities to Plaintiff Investment Funding, LLC and/or
Med-Lien Solutions, LLC.
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Defendant, and (2) the referral of Morse clients to Defendants’ clinics, or to related
third parties.

SFMAIC alleged that patient solicitation and referrals were an

essential component of Defendants’ scheme. See, e.g., Compl. ⁋⁋ 80–91. As set
forth above, Rosenberg, who works for Morse, actively participated in the
solicitation of accident victims on Morse’s behalf and steered Morse’s clients to
Defendants’ clinics. In doing so, Defendants, Morse and those working for him,
including Rosenberg, knew they were not permitted to have or use the non-public
reports they used to solicit individuals, but used them anyway so that they would
have a competitive advantage over other firms and providers.

In addition,

documents show that Rosenberg, on behalf of Morse, steered Morse’s clients to
Defendants’ clinics and coordinated patient referrals from Defendants’ clinics to
Morse’s firm. Given Morse’s apparent role in the scheme and the significant
evidence of a quid pro quo referral arrangement between his firm and Defendants’
clinics — designed to enrich themselves rather than benefit any patient/client —
the requested documents into these matters are clearly relevant.2

2

While Rosenberg does not explain her vague, general objection that the Subpoena
“is not limited” to the 221 patients identified in the Complaint, Ex. 29, her
objection is meritless. Under Rules 26 and 45, “[p]arties may obtain discovery
regarding any nonprivileged matter that is relevant to any party’s claim or defense
and proportional . . . .” SFMAIC v. Warren Chiropractic & Rehab Clinic, PC, 315
F.R.D. 220, 222 (E.D. Mich. 2016). SFMAIC specifically alleges that Defendants
engaged in improper solicitation and had quid pro quo referral arrangements with .
. . a “PI Attorney,” i.e., Morse, see Compl. ⁋⁋ 80–91, and the Subpoena specifically
requests documents reflecting those arrangements.
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Second, the Subpoena is proportional. Under the Federal Rules, courts
should “evaluate whether the benefit of the discovery sought is proportional to the
burden of producing it, taking into account issues like access, importance, and
available resources.” State Farm Mut. Auto. Ins. Co. v. Fayda, 2015 WL 7871037,
at *4 (S.D.N.Y. Dec. 3, 2015). Not only are the requested documents relevant, but
Rosenberg has failed to argue burden.
requested documents.

SFMAIC has no other access to the

Morse has refused to produce any documents, and, as

reflected in SFMAIC’s pending request for leave to file sanctions, the Elite
Defendants have not completed their ESI production. Finally, this case involves
issues of public importance. See Doe v. United States, 253 F.3d 256, 267 (6th Cir.
2001) (noting public importance of combatting health-care fraud).
IV.

Conclusion
The Court should grant the Motion. If Rosenberg maintains she has no

responsive documents, the Court should order her to sign an affidavit affirming
same and detailing the steps she took to search for responsive documents.
By:

/s/ Kathy P. Josephson
Ross O. Silverman
Kathy P. Josephson
Michael M. Rosensaft
Matthew R. Ryan
Justin C. From
Katten Muchin Rosenman LLP
525 W. Monroe St.
Chicago, IL 60661
(312) 902-5200
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ross.silverman@kattenlaw.com
kathy.josephson@kattenlaw.com
michael.rosensaft@kattenlaw.com
matthew.ryan@kattenlaw.com
justin.from@kattenlaw.com
Thomas W. Cranmer (P25252)
Miller, Canfield, Paddock and Stone, PLC
840 W. Long Lake Rd., Suite 200
Troy MI 48098
(248) 267-3381
cranmer@millercanfield.com
Attorneys for Plaintiff State Farm Mutual
Insurance Company

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CERTIFICATE OF SERVICE
I hereby certify that on October 17, 2018, I electronically filed the foregoing
with the Clerk of Court using the CM/ECF system. I also certify that I served the
foregoing on counsel for Rosenberg via first-class mail and email at the following
addresses:
James Thomas
12900 Hall Road
Suite 350
Sterling Heights, MI 48313
jthomas@orlaw.com
By:

/s/ Kathy P. Josephson
Attorney for Plaintiff

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