23
Fla. L. Weekly Supp. 415b

Online
Reference: FLWSUPP 2305VITOTop of Form

Civil
procedure — Discovery — Depositions — Non-party treating physician —
Business and financial information — Scope of deposition of non-party treating
physician and requested production of documents by treating physician is
limited to medical records and/or invoices of claimant only — Additional
information sought exceeds bounds allowable by law as applied to facts and
circumstances of instant case — Evidence did not demonstrate referral
relationship between law firm representing plaintiff and non-party which would
support disclosure of demanded financial discovery — Reasonableness of charges
— Extensive business and financial information sought by defendants is not
reasonably calculated to lead to discovery of admissible evidence related to
reasonableness of charges — Moreover, information demanded is protected as
trade secret — Finally, defendants did not satisfy their obligation to notify
other non-party patients

OSVALDO VITON, Plaintiff, vs. ER IBERTO MENDOZA and ENERGY
DISPATCH, LLC, Defendants. Circuit Court, 11th Judicial Circuit in and for
Miami-Dade County. Case No. 2014-19164-CA-01. September 15, 2015. Rosa I.
Rodriguez, Judge.

ORDER
ON NON-PARTY, KENDALL CHIRO, LLC’S,

MOTION
FOR PROTECTIVE ORDER IN

REGARDS
TO DEFENDANTS’ SUBPOENA

FOR
DEPOSITION DUCES TECUM

ORDERED AND ADJUDGED that Non-Party, Kendall Chiro, LLC’s
Motion is GRANTED as follows:

During the hearing regarding the subpoena for deposition
duces tecum served upon Non-Party, Kendall Chiro, LLC, (hereinafter
“Non-Party”), Defendants withdrew their demand for Non-Party’s records, but
continues to seek testimony regarding the information contained within said
records. Moreover, Defendants agreed to the entrance of a confidentiality order
protecting the disclosure of Non-Party’s business practices and financial
information. Independent and irrespective of these concessions, the Court
grants Non-Party’s motion as the information sought exceeds the bounds
allowable by law as applied to the facts and circumstances in this particular
case. “[E]ach case raising these issues should be decided on its own facts and
circumstances.” Katzman v. Ranjana Corp., 90 So. 3d 873, (Fla. 4th DCA
2012) [37 Fla. L. Weekly D1320a].

The evidence before the Court demonstrates no referral
relationship between the Plaintiff’s law firm and the Non-Party which would
support disclosure of the demanded financial discovery. “Trial courts have
broad discretion to balance the interests involved in discovery and generally
should not permit extensive discovery of a treating gphysician’s finances.” Brown
v. Mittelman, 152 So. 3d 602 (Fla. 4th DCA 2014) [39 Fla. L. Weekly D1806a]
quoting Syken v. Elkins, 644 So. 2d 539, 544-45 (Fla. 3d DCA 1994), approved,
672 So. 2d 517 (Fla.1996) [21 Fla. L. Weekly S159a]. The Court in Brown
further held that with respect to the relationship between law firm and
physician, “In cases where there is evidence of a referral relationship, more
extensive financial discovery may be appropriate from both the law firm and the
doctor.” Brown citing Steinger, Iscoe & Greene, P.A. v. Geico
Gen. Ins. Co., 103 So. 3d 200, 203-04 (Fla. 4th DCA 2012) [37 Fla. L.
Weekly D2688a].

Recently, the 5th District Court of Appeals in Worley v.
Central Florida Young Men’s Christian Ass’n, Inc., 2015 WL 2259293 (Fla.
5th DCA 2015) [40 Fla. L. Weekly D1158a], also agreed that before granting the
discovery of financial and business records of a non-party treating physician,
evidence of a referral relationship with the Plaintiff’s attorney must first
exist. The Court held:

“However,
to protect the privacy interests of the treating physicians and their former
patients, before overly-intrusive financial bias information concerning a
treating physician’s relationship with a plaintiff’s law firm is discoverable,
there must be some evidence of a referral relationship. See Fla. R. Civ. P. 1.280(b)(5)(A)
(“An expert may be required to produce financial and business records only
under the most unusual or compelling circumstances and may not be compelled to
compile or produce nonexistent documents.”)

The Plaintiff testified that he was referred to his treating
physician, Dr. Amos Dare, by his daughter. Keren Gomez of Non-Party Kendall
Chiro, LLC, testified that Plaintiff was referred to them by Dr. Dare. Thus,
there is no evidence of a referral relationship between the Non-Party and
Plaintiff’s law firm justifying the disclosure of the demanded testimony.

Regarding the demanded testimony about the reasonableness of
the charges from Non-Party, based on the evidence presented as applied to
Florida Rule of Civil Procedure 1.280(b)(5)(A)(iii), there are no unusual or
compelling circumstances that would that would require the Non-Party to produce
their financial and business records. Defendants’ reliance on Columbia
Hospital (Palm Beaches) Limited Partnership v. Hasson, 33 So. 3d 148, 150
(Fla. 4th DCA 2010) [35 Fla. L. Weekly D1067a], is distinguishable from the
facts at issue. In Columbia Hospital, the Court justified its ruling on
grounds absent in this case: “We conclude that Defendants sufficiently
explained below why they needed the information: in order to dispute, as
unreasonable, the amount of medical expenses that the plaintiff will seek to
recover from them, if the hospital charges non-litigation patients a lower fee
for the same medical services.” Columbia Hospital, at 150. Here, the
testimony from the Non-Party is that that they charge the same amount to
patients irrespective of whether they are involved in litigation or not.
Defendants offered no evidence to the contrary. Thus, there is no evidence
before the Court which would support more extensive financial discovery.

Defendants state that the demanded billing and collection
information of other patients demonstrates the reasonableness of the billed
fee. However, this information is not reasonably calculated to lead to the
discovery of admissible evidence as the introduction of this information at
trial would place confusing collateral matters before the jury. Roosevelt v.
State, 42 So. 3d 293, 295 (Fla. 3d DCA 2010) [35 Fla. L. Weekly D1740a]
(holding collateral means of impeachment inadmissible).

The Supreme Court held in Elkins v. Syken, 672 So. 2d
517, 522 (Fla.1996) [21 Fla. L. Weekly S159a] that discovery should be focused
on the main issues of the case, holding:

“To
adopt petitioners’ arguments could. . . cause future trials to consist of many
days of questioning on the collateral issue of expert bias rather than
on the true issues of liability and damages.” (Emphasis Added).

Referencing the collateral matter, the Supreme Court stated
in Allstate Insurance Company v. Boecher, 733 So. 2d 993 (Fla. 1999) [24
Fla. L. Weekly S187a], referring to Elkins, 672 So. 2d at 521:

“We
quoted with approval the Third District’s observations that decisions in this
field have gone too far in permitting burdensome inquiry into the financial
affairs of physicians, providing information which “serves only to emphasize in
unnecessary detail that which would be apparent to the jury on the simplest
cross examination: that certain doctors are consistently chosen by a particular
side in personal injury cases to testify on its respective behalf.”

This sort of financial discovery that the Defendants seek is
a collateral matter and, “It is improper to litigate purely collateral matters
solely for the purpose of impeaching a party or a witness.” Jacobs v.
Westgate, 766 So. 2d 1175, 1181 (Fla. 3d DCA 2000) [25 Fla. L. Weekly
D2187a].

The information demanded is also protected as trade secrets.
The trade secret privilege codified in Florida Statutes sections 90.506 and
688.002(4), restrict Defendants’ ability to obtain privileged information
unless Defendant, “makes a showing of necessity which outweighed the
countervailing interests in maintaining the confidentiality of such
information.” Banc of America Investment Services v. Barnett, 997 So. 2d
1154, 1157 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D2758b]. Here, Defendants did
not meet their burden.

Finally, Defendants did not satisfy their obligation to
notice other non-party patients of Non-Party Kendall Chiro, LLC, in accordance
with Florida Statutes sections 456.057(7)(a), 395.3025(7)(a), Brana v.
Roura, 144 So. 3d 699, 699-700 (Fla. 4th DCA 2014) [39 Fla. L. Weekly
D1767a], Coopersmith v. Perrine, 91 So. 3d 246, 247-48 (Fla. 4th DCA
2012) [37 Fla. L. Weekly D1513a], and State v. Singming Sun, 82 So. 3d
866 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1149a], holding patient contracts
with doctors are medical records protected by the right to privacy.

Defendants will pay the reasonable cost of Non-Party’s
production for gathering documents and information to which they did not object
as well as if Non-Party’s objections are overruled. First Call Ventures, LLC
v. Nationwide Relocation Services, 127 So. 3d 691, 693 (Fla. 4th DCA 2013)
[38 Fla. L. Weekly D2431a].