23 Fla. L. Weekly Supp. 312c
Online Reference: FLWSUPP 2304WEILInsurance — Personal injury protection — Discovery — Reasonableness of charges — Broad language of section 627.736(5)(a) allows for discovery of HMO and PPO contracts rates received by medical provider for CPT code at issue in six months surrounding insured’s treatment — Provider has not established that order compelling discovery causes irreparable harm due to trial court’s failure to conduct in camera inspection regarding claim of trade secret privilege where court never ruled on motion for in camera inspection and indicated that it was prepared to conduct inspection
GOLD COAST CHIROPRACTIC CENTER, INC., a/a/o/ ADAM WEIL, Petitioner, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Respondent. Circuit Court, 15th Judicial Circuit (Appellate) in and for Palm Beach County, Civil Division. Case No. 2014CA009227, Division AY. L.T. Case No. 2012SC004027. August 6, 2015. Petition for Writ of Certiorari from the County Court in and for Palm Beach County, Judge Reginald R. Corlew. Counsel: Joseph R. Littman, Boca Raton, for Petitioner. Nancy W. Gregoire, Fort Lauderdale, for Respondent.
(PER CURIAM.) The instant case involves a petition for writ of certiorari seeking relief from a trial court order compelling discovery. Petitioner, Gold Coast Chiropractic Center, Inc. (“Gold Coast”), claims the trial court’s order requires disclosure of irrelevant materials and that the trial court departed from the essential requirements of law by requiring disclosure without conducting an in camera review of the materials. For the reasons set forth below, we deny the petition.Background
Gold Coast served as chiropractor for Adam Weil (“Insured”) after he was injured in an automobile accident. Insured had an insurance policy with Respondent State Farm Mutual Automobile Insurance Co. (“State Farm”) and assigned the benefits under this policy to Gold Coast. State Farm paid Gold Coast for services rendered based on a statutory fee schedule. Gold Coast claims it is entitled to a reasonable amount of payment for these services and that this amount exceeds the amount paid by State Farm. Gold Coast instituted a claim against State Farm seeking recovery of the difference between the amount paid and the amount it argues it is owed.
As part of discovery regarding this claim, State Farm filed a Supplemental Request to Produce to Plaintiff Re: Reasonableness of Charge. This Request seeks, inter alia, the rates received by Gold Coast on PPO and HMO contracts in the six months surrounding Insured’s treatment with Gold Coast. Gold Coast objected to discovery of these materials on grounds the materials were trade secrets and otherwise irrelevant. The trial court overruled Gold Coast’s objections and required disclosure of the above materials by order dated June 26, 2014.Standard of Review
A non-final order that is not appealable under Florida Rule of Civil Procedure 9.130 is reviewable as a petition for writ of certiorari where the order is “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.” Bd. of Trustees of Internal Improvement Trust Fund v. Am. Educ. Enters., 99 So. 3d 450, 454 (Fla. 2012) [37 Fla. L. Weekly S589a] (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So. 2d 812, 822 (Fla. 2004)) [29 Fla. L. Weekly S783a]. The final two prongs of this test essentially ask whether the essential requirements of the law cause “irreparable harm.” Id. at 455.Analysis and Legal Conclusions
Gold Coast raises two arguments in support of its petition for writ of certiorari. First, Gold Coast argues the trial court’s order is improper because it requires disclosure of irrelevant materials. Second, Gold Coast argues the trial court erred by failing to conduct an in camera inspection of the purportedly privileged materials and otherwise failed to provide adequate safeguards to protect confidentiality.A. Whether the Trial Court OrderedDiscovery of Irrelevant Materials.
Gold Coast argues the sought-after materials are irrelevant. Trial courts possess broad discretion regarding discovery matters. Elsner v. E-Commerce Coffee Club, 126 So. 3d 1261, 1262 (Fla. 4th DCA 2013) [38 Fla. L. Weekly D2412a]. Discovery of irrelevant materials alone does not cause a litigant irreparable harm justifying certiorari relief. Allstate Ins. Co. v. Langston, 655 So. 2d 91, 95 (Fla. 1995) [20 Fla. L. Weekly S217a]. Instead, certiorari regarding discovery of irrelevant materials is appropriate where “it has been affirmatively established that such discovery is neither relevant nor will lead to the discovery of relevant information.” Id.
The trial court ordered discovery of reimbursement amounts received by Gold Coast regarding the same insurance claim code as involved in the instant case. Section 627.736(5)(a), Florida Statutes, allows for a physician to charge an insurer and injured party “a reasonable amount pursuant to this section for the services and supplies rendered.” The parties dispute whether the fee charged in the instant case was reasonable. Gold Coast objects to discovery of PPO and HMO contract rates as such rates are “irrelevant” to the reasonableness of a fee under section 627.736(5)(a). Section 627.736(5)(a) specifically notes the following considerations as relevant regarding a charge’s reasonableness:
[E]vidence of usual and customary charges and payments accepted by the provider involved in the dispute, and reimbursement levels in the community and various federal and state fee medical fee schedules applicable to automobile and other insurance coverages and other information relevant to the reasonableness of the reimbursement for the service, treatment, or supply.
(emphasis added).
The trial court did not depart from the essential requirements of law in ordering the purportedly irrelevant materials. The language of section 627.736(5)(a) is extremely broad and the trial court retains broad discretion in ordering discovery. Gold Coast argues section 627.736(5)(a) does not contain any provision allowing for the discovery of PPO and HMO contract rates. The broad language of the section allows for the discovery at issue here notwithstanding the statute’s silence on the specific issue of PPO and HMO contract rates. Because Gold Coast has failed to show it is “affirmatively established” section 627.736(5)(a) prohibits discovery of PPO and HMO contract rates, discovery of these materials was not a departure from the essential requirements of law under relevancy grounds.B. Whether the Trial Court Departed from the EssentialRequirements of Law by Failing to Conduct an InCamera Inspection or Otherwise Produce AdequateSafeguards to Protect the Materials.
Gold Coast also argues the trial court departed from the essential requirements of law by failing to conduct an in camera inspection or otherwise adequately protected the sought-after materials’ confidentiality. Gold Coast specifically argues the materials at issue here are protected as trade secrets. “When trade secret privilege is asserted as the basis for resisting production, the trial court must determine whether the requested production constitutes a trade secret; if so the court must require the party seeking production to show reasonable necessity for the requested materials. Am. Express Travel Related Servs., Inc. v. Cruz, 761 So. 2d 1206, 1208 (Fla. 4th DCA 2000) [25 Fla. L. Weekly D1542a]. “This determination will usually require the trial court conduct an in camera inspection of the materials in question to determine whether they contain trade secrets.” Id. at 1209. A petition for certiorari challenging a discovery order fails to establish irreparable harm when it seeks relief from discovery prior to a judge’s requested in camera inspection of any purportedly privileged materials. Poston v. Wiggins, 112 So. 3d 783, 786 (Fla. 1st DCA 2013) [38 Fla. L. Weekly D1104a].
The trial court ordered discovery of the purportedly confidential materials subject to a confidentiality agreement. While the trial court did not conduct an in camera inspection, it was plainly ready to do so. At the trial court’s June 26, 2014, hearing on the request to produce, the following exchange occurred:
[COUNSEL FOR GOLD COAST]: Judge, our position is that this is not relevant . . . . However, again, our objection will stand as it being trade secret and privileged information. We can enter into some type of confidentiality agreement subject to an in-camera inspection . . . .
THE COURT: Well, I’m going to overrule the objection. And if you want me to consider these documents under an in-camera inspection, submit a motion and I can hear that on its merit. But for purposes of this hearing, I’m going to overrule the objection.
(emphasis added). Gold Coast filed a motion for in camera inspection with the trial court on June 27, 2014, and filed the instant petition on July 25, 2014. Gold Coast has failed to show any irreparable harm occurred based solely on the trial court’s June 26, 2014, order when the trial court never ruled on Gold Coast’s motion for in camera inspection. Any substantive arguments Gold Coast makes regarding the trial court’s disposition of the motion for in camera review are not properly before this court. See Nassau Power Corp. v. Beard, 601 So. 2d 1175, 1178 (Fla. 1992) (noting a reviewing court is able only to consider the operative order appealed); Beverly Enterprises-Florida, Inc. v. Ives, 832 So. 2d 161, 162 (Fla. 5th DCA 2002) [27 Fla. L. Weekly D2410a] (“The applicable standard of review is whether the challenged order is a departure from the essential requirements of law” (emphasis added)).
Gold Coast has failed to establish the sought-after materials are irrelevant to the instant case. Gold Coast has failed to establish the trial court’s order compelling discovery causes irreparable harm in light of its motion for in camera inspection. Accordingly, the Petition for Writ of Certiorari is DISMISSED. Gold Coast’s Motion for Appellate Attorney’s fees is DENIED. State Farm’s Motion for Appellate Attorney’s Fees is GRANTED conditioned upon the trial court’s determination that the requirements of section 768.79, Florida Statutes, are satisfied following entry of final judgment. (G. KEYSER, BARKDULL, and SMALL, JJ., concur.)
