21 Fla. L. Weekly Supp. 280b
Online Reference: FLWSUPP 2103DINGInsurance — Personal injury protection — Discovery — Trade secrets — Protective order regarding disclosure of data relied upon by insurer’s expert witness on issue of reasonableness of charges
PRO IMAGING, INC. (a/a/o EDDIE DINGLE), Plaintiff, vs. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 12-1850 COCE 53. December 20, 2013. Robert W. Lee, Judge. Counsel: Gregory Gudin and Todd Landau, for Plaintiff. Brett J. Roth and David Bender, for Defendant.
ORDER ON DEFENDANT’S MOTION FORPROTECTIVE ORDER REGARDING DATA RELIED UPONBY DEFENDANT’S EXPERT WITNESS DARRELL SPELL
THIS CAUSE having come before the Court on December 13, 2013 on Defendant State Farm Mutual Automobile Insurance Company’s Motion for Protective Order Regarding Data Relied Upon By Defendant’s Expert Witness Darrell Spell, and the Court’s having reviewed the motion and the affidavit of Darrell Spell dated December 12, 2013, having hard argument of counsel, and having reviewed the relevant legal authority and being sufficiently advised in the premises, finds as follows:
Plaintiff filed the instant action to recover personal injury protection (PIP) benefits. On or about October 25, 2013, Plaintiff filed its Motion for Summary Judgment as to the medical services at issue being reasonable, related, and necessary. In opposition to Plaintiff’s Motion for Summary Judgment on the issue of reasonableness, Defendant has proffered an expert opinion of Darrell D. Spell, FSA, MAA, a consulting actuary with the Tampa office of Milliman, Inc.
In formulating his opinion in this case, Mr. Spell opinion has relied upon information from the MarketScan Research Database. Plaintiff has raised an issue concerning the production of this data. Mr. Spell has testified that the MarketScan Research Database includes confidential, proprietary, and trade secret information and may implicate other issues of third party privacy and include HIPAA protected information. Mr. Spell also testified that public disclosure or dissemination of information contained in the MarketScan Research Database would negatively impact the commercial and property interests of Truven Health Analytics, Inc., the vendor and owner of the data.
Fla. R. Civ. P. 1.280(c) provides that “[u]pon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, including one or more of the following: [. . .] (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way [. . .].”
Defendant, Mr. Spell, and Milliman, Inc. have agreed to provide the data from the MarketScan Research Database on which Mr. Spell has relied in formulating his expert opinion in this case on condition that protective measures are taken to prevent public disclosure or dissemination and unauthorized use of this data. See Columbia Hosp. (Palm Beaches) Ltd. P’ship v. Hasson, 33 So. 3d 148, 150 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D1067a] (holding that where the trial court treats the information as entitled to protection as trade secrets, in camera inspection is not necessary.)
Based on the forgoing, this Court finds that Defendant has met its burden in establishing good cause under Fla. R. Civ. P. 1.280(c) that it is necessary for this Court to enter a protective order the data relied upon by Defendant’s expert in this case. Accordingly it is:
ORDERED and ADJUDGED that Defendant’s Motion for Protective Order Regarding Data relied Upon By Defendant’s Expert Witness Darrell Spell is hereby GRANTED.
It is further ORDERED and ADJUDGED that Defendant shall make available for inspection by the Plaintiff the MarketScan Research data relied upon by Mr. Spell in formulating his opinions in this case (the “Data”) under the following conditions:
(1) That the Data may be used by Plaintiff and Plaintiff’s counsel only for the purposes of prosecuting this action, including settlement and all appeals, and shall not be used for any other purpose;
(2) For the purposes of this Order, the Data may be viewed only by the following categories of individuals (“Authorized Recipient(s)”):
(a) Plaintiff’s counsel(s), who have filed a notice of appearance in this action prior to the date of this order,
(b) Plaintiff designated expert witness(s),
(c) and Court reporting personnel involved in taking or transcribing testimony in this action;
(3) That the Data may be viewed only by Authorized Recipients under the supervision of Defense counsel:
(4) That the parties shall coordinate a date and location for Authorized Recipients from categories (a) and (b) to inspect the Data within 10 days of the date of this Order. Said inspection shall occur on or before January 13, 2013;
(4) An Authorized Recipient shall not disclose, either directly or indirectly, any portion of the Data to any third party not directly associated with this litigation;
(5) An Authorized Recipient shall not duplicate/copy the Data or any portion thereof Authorized recipients may take notes concerning the Data; however, no Authorized Recipient may copy any portion of the Data in to the notes. All notes concerning the Data must be certified as destroyed by signed correspondence delivered to Defense counsel within 30 days of the conclusion of this litigation, including all appeals.
(6) An Authorized Recipient shall not publish the Data or any portion thereof in any medium, including but not limited to email, print, or online.
(7) An Authorized Recipient shall not file in the public record the Data or any portion thereof. If the Plaintiff determines it necessary to file in or submit to the Court the Data, or information derived therefrom. Plaintiff shall file the papers or information under seal and serve the Defendant with notice of such intent.
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