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IN THE CIRCUIT COURT OF THE FIFTEENTH
JUDICIAL CIRCUIT, IN AND FOR PALM
BEACH COUNTY, FLORIDA
CASE NO. 502008CA002138XXXXMB AO
TERESA MARIA CORTINAS, M.D., P.A.,
Plaintiff,
v.
ADVANCED IMAGING ASSOCIATES, LLC,
ROBERT D. BURKE, M.D., P.L. AND ROBERT D.
BURKE, DIAGNOSTIC ANCILLARY SERVICES, LLC,
Defendants, aoe
v.
WALTER E. WOJCICKI, M.D., PH.D., P.A., WALTER E.
WOSCICKI, M.D., TERESA MARIA CORTINAS, M.D.
95:2 id 12 Udy CU
Third-Party Defendants.
/
MOTION TO MopIFY TO CONFIDENTIALITY RESTRICTIONS FOR THE
PURPOSE OF FILING COMPLAINTS WITH GOVERNMENT AGENCIES
Plaintiff, Teresa Maria Cortinas, M.D., P.A., and Third-Party Defendant, Walter E. Wojcicki,
M.D, P.h.D, P.A. (collectively, the “Physicians”), serve this Motion to Modify Confidentiality
Restrictions for the Purpose of Filing Complaints with Government Agencies, and state:
1. This is a business litigation action involving the break-up of a physician practice.
The Physicians have sued their former partner, Dr. Burke (“Burke”), in part, for breaches of his
statutory duties of loyalty and fiduciary duties for participating in schemes that violate federal and
state laws prohibiting:
. kickbacks to referring physicians;
improper fee splitting among physicians;
illegal patient brokering; and
. paying physicians less than fair market value for services.2.
During Defendants’ recent deposition of Dr. Wojcicki (“Wojcicki”), Defendants’
counsel attempted to attack the credibility of Wojcicki because he had not yet filed regulatory
complaints with the appropriate federal or state agencies, which counsel asserted that Wojcicki was
duty-bound to do. The examination went, in part, as follows:
Q
*
©
POP OPOPOPO
POPOP
. .. Its your opinion that these physicians and Midtown and Dr. Burke
committed illegal acts.
Yes.
[Counsel]: Object to form.
The Witness: Yes.
All right. And had you reported this to any federal agency?
No.
You report it to any state agency?
No.
Why not?
Because I reported it my lawyer.
Are you a member of the Florida Bar — Excuse me, you hold a Florida
medical license.
Yes.
And you read the Florida Medical Practice Act.
No.
* *
Allright. And are you aware that if you’re aware of doctors breaking the law
you’re supposed to report them as a condition of holding a Florida medical
license.
Yes.
And you haven’t done that.
No.
Why not?
Because I reported it to my lawyer.
See Wojcicki Depo., pp. 108-112, excerpt attached as Exhibit 1.
3.
After the deposition, the undersigned reviewed the pertinent Florida statute, which
obligates both Wojcicki and Dr. Cortinas (“Cortinas”) to file complaints against Burke and the
imaging center that he co-owned, Midtown Imaging, LLC (“Midtown”). The statute provides as
follows:458.331 Grounds for disciplinary action; action by the board and department —
(1) The following acts constitute grounds for... disciplinary action .. .:
(e) Failing to report to the department any person who the licensee knows in
violation of this chapter or of the rules of the department or the board . . .
(D) Paying or receiving any commission, bonus, kickback, or rebate, or engaging
in any split-fee arrangement in any form whatsoever with a physician,
organization, agency, or person, either directly or indirectly, for patients referred
to providers of health care goods and services, including, but not limited to,
hospitals, nursing homes, clinical laboratories, ambulatory surgical centers or
pharmacies .. .
Fla. Stat. § 458.331 (Emphasis added).
4, The Physicians now intend to file their complaints against Burke and Midtown with
the respective federal and state agencies. As such, the Physicians need to use the deposition
transcript, including exhibits, of Midtown’s CFO, Kevin Johnson. This entire transcript, however,
was designated unilaterally by Defendants as “confidential” pursuant to the Stipulated
Confidentiality Protective Order (the “Confidentiality Order”) in this case.'| The Physicians,
therefore, now seek to modify the Confidentiality Order for the purpose of allowing the Physicians
to cite Kevin Johnson’s deposition in the agency complaints that they intend to file.
a: Florida law places the burden of proving that information is a trade secret or
confidential business information on the resisting party. See American Express Travel Related
Servs., Inc. v. Cruz, 761 So.2d 1206, 1209 (Fla. 4th DCA 2000) (“The burden is on the party
resisting discovery to show ‘good cause’ for protecting or limiting discovery by demonstrating that
the information sought is a trade secret or confidential business information and that disclosure may
be harmful.”). The determination will usually require that the court conduct an in camera inspection
of the materials in question to determine whether they contain trade secrets. Id.
' A copy of the Order granting Stipulation for Entry of Confidentiality Order is attached
as Exhibit 2.6. Here, the Physicians submit that the deposition of Kevin Johnson and exhibits do not
constitute trade secrets or confidential business information in the first instance, nor can Midtown
meet their burden of proving they are. Nonetheless, the Physicians submit that this Court need not
make that determination because the Physicians are only seeking to modify the existing
confidentiality order such that they may use the designated information in the other agency
complaints they plan, and as Defendants contend they are duty-bound, to file with federal and/or
state agencies.
cf The Confidentiality Order provides in relevant part as follows:
In the event that any party to this litigation objects at any state of these proceedings
to the propriety of a designation by a party of any information as Confidential
information, the Parties shall try first to dispose of such dispute in good faith on an
informal basis. If the dispute cannot be resolved, the objecting party may seek
appropriate relief from this Court.
See Exhibit 2, § 8-9 (emphasis added). Here, the parties have attempted to resolve this issue in good
faith but have not been successful to date. As such, the Physicians are now seeking to modify the
Confidentiality Order for the purpose of permitting the Physicians to cite to Kevin Johnson’s
deposition in any complaints the Physicians file with federal and/or state agencies.
8. In the alternative, the Physicians are seeking that Defendants be required to meet their
burden and prove that the designated information is protected trade secrets or confidential business
information. If this Court finds the information is not protected (after conducting an in camera
inspection) the Court should order that the confidentiality designations are overruled in their entirety.
Further, if the Court deems they are protected, the Court should find that there is “reasonable
necessity” sufficient to allow the Physicians to use the designated confidential information to pursue
their claims with any federal or state agencies.WHEREFORE, the Physicians request the following relief:
A. That this Court modify the Confidentiality Order for the purpose of allowing the
Physicians to use the information to file claims with federal and/or state agencies; or
B. Alternatively, require that Defendants and/or Midtown prove that Kevin Johnson’s
deposition is protected as trade secrets or confidential business information and, if
not protected, overrule the confidentiality designations in their entirety. Further, if
the Court deems that the information is protected, the Court should find there is a
reasonable necessity to permit the Physicians to cite to Kevin Johnson’s deposition
in any complaints filed with federal or state agencies.
Certificate of Service
I HEREBY CERTIFY that a true and correct copy of the foregoing was served via U.S. Mail
to David W. Spicer, Law Offices of David W. Spicer, P.A., 11000 Prosperity Farms Road, Suite 104,
Palm Beach Gardens, Florida 33410 and Christopher Duke, Akerman Senterfitt, 222 Lakeview
Avenue, Suite 400, West Palm Beach, FL 33401 this av day of April, 2009.
McCaBE RABIN, P.A.
Attorneys for Plaintiff and
Third-Party Defendants
1601 Forum Place, Suite 301
West Palm Beach, FL 33401
Tel: 561-659-7878
Fax: 561-242-4848
By:_/ e ——
Adam T. Rabin
Fla. Bar No. 985635Page 106
Page 108 |:
1 Q How was the outside read money split with the | 1 the correct Medicare reimbursement schedule then it
2 outside physicians? 2 would be appropriate.
3 A How was it split with them? 3 A. Can you repeat the question?
4 Q Yes. 4 Q Yes. Ifthe schedule was the Medicare
5 A_ But giving them excessive discounts. They 5 reimbursement schedule, then that would be appropriate.
6 did not pay fair market value for ALA's, for WWPA's 6 MR. RABIN: Form,
7 services, 7 THE WITNESS: For Medicare parents, yes,
8 —Q Did they pay it to Midtown? What didthey | 8 Q (BY MR. SPICER) All sight. And what about
9 pay Midtown, was that fair market value? 9 for insurance patients?
10 A No. 10 A. That depends upon what the insurance company
11 Q_ And what physician groups as we sit here now {11 would have paid for a professional fee.
12 do you know of that didn't pay fair market valueto {12 — Q Allright, And would the insurance company
13. Midtown? 13 normally pay what they normally pay, or are they going
14 A Palm Beach Sports Medicine. 14 to pay a discounted rate if somehow there's a
15 Q: Allright. 15. discounted rate given to the physician?
16 A Iwould have to have a list of outside reads, 16 MR. RABIN: Objection to form.
17 Q And these were less than the Medicare 17 THE WITNESS: It would, it would depend.
18 accepted -- 18 Q (BYMR. SPICER) Allright, Well, I'm trying
19° A Yes. 19 to understand what your allegation is, I mean, youre,
20 Q ~provisions? 20 you're accusing Dr, Burke of committing illegal acts,
21 A Yes, 21. things that you go to prison for. So I want to be very
22 Q AMllright. And were those all the documents | 22 clear about what you're, what you're alleging. You're
23 produced at Kevin Johnson's deposition? 23 alleging that there was a fee schedule that essentially
24 MR. RABIN: Form. 24 paid money back to physicians that were referring
25 ‘THE WITNESS: Well, there, in the discovery! | 25 clients to Midtown Imaging.
Page 107 Page 109
1 don’t remember they were all produced at the 2 A Yes,
2 deposition or not. 2 Q Allright. And actually money went in their
3 Q (BY MR. SPICER) Okay. And when you say that | 3 pocket or just they got such a discount that they
4. they were below fair market value, fair market value 4 pocketed the difference somehow?
5 would be essentially -- Explain to me what fair market 5 A Thelatter.
6 value is for outside physicians. Would this be the 6 — Q Okay, so you're also accnsing all these
7 Medicare charge, where would I find it? 7 physicians that had contracts of committing illegal
8 A Well, it depends what the professional fee 8 acts, conspiring with Dr. Burke and Midtown to commit
9 was for a given service. 9 illegal acts.
10. Q Okay, And I mean how do you determine what, | 10 MR, RABIN: Objection to form.
11 what is fair market value if you're contracting, there 11 THE WITNESS: Not all of them.
12 was.a number of contracts without outside groups. 12 Q (BY MR. SPICER) Any of the one where you
13° A Uh-huh. 13 allege that the fee schedule is not fair market value.
14 — Q And those groups said they had a schedule in 14 It’s your opinion that these physicians and Midtown and
15 there what they were paying for certain providers, All 15 Dr, Burke committed illegal acts.
16 right, And you're saying that schedule was improper, 160A Yes,
17 it was improperly low. a7 MR. RABIN: Objection to form.
18 A Yes. 18 THE WITNESS: Yes,
19 Q Allright. And if the schedule was Medicare 19 Q (BY MR. SPICER) Allright. And had you
20 reimbursement, would that be improperly low? 20 reported this to any federal agency?
210A Yes. 21 A No.
22 Q Allright, And why is that? 22 Q Youreport it to any state agency?
23 A _ Because it was less than what Medicare 23° A No.
24 reimbursed. 24 Q Why not?
25 _Q Well, , 'mconfirsed. Tit was, ifit was 25 A _Because I reported it to my lav |
28 (Pages 106 to 109)
Weathers & Associates, Inc. EXHIBIT
561-689-1570 3
3 1Page 110 Page 112}
2 Q Areyouamember of the Florida Bar --Excuse | 1 A I've consulted with my attomey about it.
2 me, you hold a Florida medical license. 2 MR. SPICER: All right, I don't want to hear
3 A Yes. 3 about that,
4 Q_ And you read the Florida Medical Practice 4 Q (BYMR. SPICER) Have you arrived at a figure
5 Act, 5 as to how much you think Midtown was undercompensated }?
6 A No 6 by these illegal arrangements?
7 Q You're required every year when you, or every | 7 MR. RABIN: Objection to the form.
8 two years when you renew your ficense to state under | 8 THE WITNESS: Yes.
9 oath that you've read the medical practice act. 9 Q (BY MR. SPICER) And what is that figure?
10 A Well, then J probably have, J don't know 10 AI don't remember.
14. what you're referring to. 11 Q_ For 2007 do you have a rough idea what that E
12 Q You're required by the law in the state 12 figure is? E
13 Florida, are you not, to report any physician that you 13 A_ It was in the Answer to Interrogatories,
14 know that is in violation of any state and federal law. 14 Q Okay.
15 MR. RABIN; Objection to form. 15 A__ Jf you want to pull that out J can show you
16 Q (BY MR. SPICER) Are you aware of that? 16 where itis.
17 MR. RABIN: Cails for a legal conclusion. 17 Q > And how was that figure computed?
18 Q (BY MR. SPICER) Are you aware of that? I'm|28 A How?
19 notasking you as a lawyer, I'masking you asadoctor, {19 Q Yes.
20 MR RABIN: Same objection, 20 A_ By data from the discovery documents,
24 MR. SPICER: Don't, don'thold your hand in | 22 Q__Soessentially went through every bill that
22 front of him. Make your objection, but don't stop _| 22_was paid to Midtown and looked to see if it was less
23 him from answering unless you instruct him not to | 23. than fair market value and then added fair market
24 answer, 24 value,
25 MR, RABIN: No, I'm not, no, hold on. 25 A Well, what I did was I looked at the net
Page 111 Page 113
1 MR. SPICER: Okay. 1 collected revenues, applied the fair market value that
2 MR. RABIN: Lam placing my objection on the | 2 was reached by the appraisers, and subtracted the fair
3 record. 3 market value that was, or the 14 percent that Midtown
4 MR. SPICER: That's fine. 4 paid, which wasn't fair market value, and arrived at a
5 MR. RABIN: And have an opportunity todo | 5 difference, And then the outside read money which went
6 that before he starts answering. 6 to Midtown -- FE
7 ‘MR. SPICER: That's fine. 7 Q No, we're talking apples and oranges. You're ff
8 MR. RABIN; You're asking him for a legal 8 talking about what Midtown paid to AIA. I'mtaiking =
9 interpretation of a specific act, for which that 9 about whet physicians paid Midtown.
10 {sa proper objection, So I'm placing that 10° A Okay.
11 objection on the record. When you're done and 14 Q You're saying physicians underpaid Midtown,
12 when I'm done, then he can answer. a
13 THE WITNESS: So what was the question? 13° Q >All right. And I want to know how did you
14 Q (BY MR. SPICER) Are you aware of the rules | 14 arrive at the figure of how much Midtown was underpaid
15. and regulations that doctors are expected to conform 15. by those physicians, what calculation, If you don't
16 with in the state of Florida? 16 have the figures, how did you catculate that?
oe ee i A How did I calculate that? Just addition and
18 Q Allright. And are you aware that if you're 18 subtraction. I assumed that the fair market value was
19. awate of doctors breaking the law you're supposed to {19 the Medicare, from the Medicare fee schedule.
20 report them as a condition of holding a Florida medical | 20 Q Allsight. So you went through each bill and
21 license? 21 figured out whether --
22 A Yes. 22 A_ I went through the monthly invoices.
23° Q And you haven't done that, 23° Q Alltight. Every month for 2007.
24 A And 2006.
25 Q_ Allright. Well you don't claim you're F
29 (Pages 110 to 113)
Weathers & Associates, Inc.
561-689-1570bone
IN THE CIRCUIT COURT OF THE 15™
JUDICIAL CIRCUIT, IN AND FOR PALM
BEACH COUNTY, FLORIDA
CASE NO.: 05-2008-CA-002138-XXXX-MB
TERESA MARIA CORTINAS, M.D, PA.
Plaintiff,
vs.
ADYANCED IMAGING ASSOCIATES, LLC,
MIDTOWN IMAGING, LLC, ROBERT D.
BURKE, M.D., P.L., and ROBERT D, BURKE
Defendants.
f
ORDER GRANTING STIPULATION FOR ENTRY OF CONFIDENTIALITY ORDER
This maiter having come before this Court upon the parties’ Stipulation for Entry of
Confidentiality Order (“Stipulation”), the parties being in agreement and the Court being fully
advised in the premises, the Stipulation is hereby GRANTED,
ITIS FURTHER ORDERED:
He The following definitions shall apply to this Confidentiality Order:
A. The term “action” shall refer to the above-entitled proceedings in the Fifteenth
Judicial Circuit In and For Paim Beach County, Florida (the “Court”) and any appeal thereof
through final judgment.
B. “Confidential” information as used herein means any type or classification of
information which is designated as “Confidential” by a party to this action, whether it be a
document, information contained in a document, information revealed during a deposition,
information revealed in an interrogatory answer, or otherwise. Any party to this action may
designate any document or information “Confidential” in the reasonable exercise of such party’s
ioe EXHIBIT Sart
‘tabbles"
Lee eet Sebona
sole discretion; provided, however, by stipulating to the entry of this Confidentiality Order, no
party waives the right to challenge any other party's designation of any information as
“Confidential.” In designating information as “Confidential” information, a party will make
such designation only as to that information that it in good faith believes to constitute financial,
trade secrets, confidential research, development or confidential or proprietary information or
know-how of such party or such party's client or otherwise sensitive information. Information
which has previously been disclosed in a non-privileged context is not confidential.
Accordingly, this Order will only be applied prospectively.
c “Producing party” shall mean any person or entity bound by this Confidentiality
Order producing documents, information or other materials in this action.
DB. “Designating party” shall mean any person or entity bound by this Confidentiality
Order who designates information “Confidential”,
EB When used herein, the singular shall include the plural number, and the plural
umber shail include the singular.
2s This Confidentiality Order shall govern all information and documents generated
or produced by the parties in response to any method of discovery conducted by any party to this
action or in connection with mediation.
3. All “Confidential” information produced or exchanged in this action shall be used
solely for the purpose of this action, except by further order of the Court, and shall not be
disclosed to any person or used for any other purpose except in accordance with the terms hereof
or by further order of the Court.
4 “Qualified Persons” as used herein means persons who are: (a) counsel for the
parties to this action and their employees, paralegals, and other secretarial and clerical
Doc # 44636town
employees; (b) the parties to this action; and (c) experts retained by any party to this action who
have a need to review the information in connection with this action, provided that before any
disclosure to any expert is made, the expert must sign an acknowledgment in the form of Exhibit
“A” hereto,
5S ‘Transcripts, depositions, exhibits, answers to interrogatories and other documents
and things produced by a party pursuant to pretrial discovery may be designated by any party
"Confidential" information by marking each page: “CONFIDENTIAL.” In lieu of marking the
original, if the original is not produced, the Designating party may mark the copies that are
produced or exchanged. In the event the original is produced, and the requesting party elects to
copy such original by any means of reproduction, the producing party shail have the right to
review all copies of originals and to designate and matk as "Confidential" information any of
such copies on the premises where said originals are copied and before such copies are provided.
to the requesting party.
6. Information disclosed at the deposition or production of documents of a party or
one of its present or former officers, directors, employees, agents, accountants, clients or
independent experts retained by counsel for purposes of this action may be designated by any
party as Confidential information by indicating on the record at the deposition or at the
production that the testimony or information is Confidential and subject to the provisions of this
Confidentiality Order. Any party may also designate information disclosed at such deposition or
production of documents as Confidential by notifying all of the parties, in writing, within thirty
(30) days of the production or of his receipt of the transcript, of the specific pages and lines of
the transcript or exhibit which are Confidential,
7. Confidential information shall not be disclosed or made available to persons other
Doe #44636uae
than Qualified Persons or the party who designated or produced the Confidential information
without further order of the Court except as otherwise provided in this paragraph, Disclosure of
any Confidential information to any Qualified Person shall not constitute a waiver of the
confidential status of such Confidential information. If any party wishes to divulge any
information designated Confidential to anyone other than Qualified Persons, the author of the
document containing same or any party who designated or produced the Confidential
information, notice shall be served on counsel for each and every patty who designated the
subject matter as Confidential of the identity of that person, and the information to be divulged.
Such divulgation shall not occur except upon consent of such Designating party or upon leave of
Court.
8. A party shalf not be obligated to challenge the propriety of a Confidential
information designation at the time made, and a failure to do so shall not preclude a subsequent
challenge thereto. In the event that any party to this litigation objects at any stage of these
proceedings to the propriety of a designation by a patty of any information as Confidential
information, the Parties shall try first to dispose of such dispute in good faith on an informal
basis. If the dispute cannot be resolved, the objecting party may seek appropriate relief from this
Court,
9, Each party or other person subject to the terms hereof shall be under an obligation
to assemble and return to the originating source, or destroy, any originals and reproductions of
atty documents produced by any other party which are confidential; provided, however, counsel
of record for each party may retain one copy of each said document for reference in the event of
a dispute over the use or dissemination of information subject to the terms hereof or ina
fitigation arising out of the original action. Insofar as the provisions of this Confidentiality Order
Doo #44636bone
entered in this action restrict the communication and use of the documents produced thereunder,
this Confidentiality Order shail continue to be binding after the conclusion of this action except
(a) that there shall be no restriction on documents that are used as exhibits in Court (unless such
exhibits were filed under seal) and (6) that a party may seek the written permission of the
producing party or further order of the Court with respect to dissolution or modification of this
Confidentiality Order.
10. Nothing in this Confidentiality Order shall bar or otherwise restrict any attorney
herein from rendering advice to his client with respect to this litigation and, in the course thereof,
referring to or relying upon his examination of Confidential information; provided, however, that
in rendering such advice and in otherwise communicating with his clients, the attorney shall not
quote, paraphrase, or otherwise make specific disclosure of any item of Confidential information
unless the person(s) to whom the attorney is rendering advice and otherwise .communicating with
is a Qualified Person as defined herein.
IL. Any party designating any person as a Qualified Person shall have the duty to use
reasonable care and precautions to insure that such person observes the terms
of this Confidentiality Order.
TT IS SO ORDERED, *
SIGNED AND DATED
OCT 85 2008
DATED: iNGE THOMASH. BARKOULL I
CIRCUIT COURT JUDGE
Copies Furnished:
See Below Service List:
-5-
Doo #44636Seryiee List
Adam T. Rabin, Esq.
Ryon McCabe, Esq.
McCabe Rabin, P.A.
Trump Plaza Office Center
525 South Flagler Drive
Suite 200
West Palm Beach, FL 33401
David Spicer, Esq.
Law Office of David W. Spicer
11000 Prosperity Farms Road
Suite 104
Palm Beach Gardens, FL 33410
Christopher S. Duke, Esq.
Schwarzberg Spector Duke & Rogers
222 Lakeview Avenue
Suite 210
West Palm Beach, FL 33401
Doe #44636EXHIBIT “A”
ACKNOWLEDGEMENT OF UNDERSTANDING AND AGREEMENT RE
"CONFIDENTIAL" DISCOVERY INFORMATION
The undersigned hereby acknowledges that he/she has read the Stipulation for Entry of
‘Confidentiality Order entered in the action entitled Teresa Maria Cortinas, M.D., P.A. v.
Advanced Imaging Associates, LLC, Midtown Imaging, LLC, Robert D. Burke, M.D., P.L,, and
Robert D. Burke, Case No. 05-2008-CA-002138-XXXX-MB; that he/she understands the terms
thereof; that he/she has been designated by
as a Qualified Person. thereunder,
that he/she individually and on behalf of » and
on behalf of the party designating him/her as a Qualified Person, agrees to be bound by such
Stipulation for Confidentiality Order; and that he/she acknowledges the jurisdiction of the Court
and agrees to be bound by the jurisdiction of the Court.
DATED:
(Signature)
(PRINT NAME)
(Address)
Doc #44636
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IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO. 502008CA002138XXXXMB AO TERESA MARIA CORTINAS, M.D., P.A., Plaintiff, v. ADVANCED IMAGING ASSOCIATES, LLC, ROBERT D. BURKE, M.D., P.L. AND ROBERT D. BURKE, DIAGNOSTIC ANCILLARY SERVICES, LLC, Defendants, aoe v. WALTER E. WOJCICKI, M.D., PH.D., P.A., WALTER E. WOSCICKI, M.D., TERESA MARIA CORTINAS, M.D. 95:2 id 12 Udy CU Third-Party Defendants. / MOTION TO MopIFY TO CONFIDENTIALITY RESTRICTIONS FOR THE PURPOSE OF FILING COMPLAINTS WITH GOVERNMENT AGENCIES Plaintiff, Teresa Maria Cortinas, M.D., P.A., and Third-Party Defendant, Walter E. Wojcicki, M.D, P.h.D, P.A. (collectively, the “Physicians”), serve this Motion to Modify Confidentiality Restrictions for the Purpose of Filing Complaints with Government Agencies, and state: 1. This is a business litigation action involving the break-up of a physician practice. The Physicians have sued their former partner, Dr. Burke (“Burke”), in part, for breaches of his statutory duties of loyalty and fiduciary duties for participating in schemes that violate federal and state laws prohibiting: . kickbacks to referring physicians; improper fee splitting among physicians; illegal patient brokering; and . paying physicians less than fair market value for services.2. During Defendants’ recent deposition of Dr. Wojcicki (“Wojcicki”), Defendants’ counsel attempted to attack the credibility of Wojcicki because he had not yet filed regulatory complaints with the appropriate federal or state agencies, which counsel asserted that Wojcicki was duty-bound to do. The examination went, in part, as follows: Q * © POP OPOPOPO POPOP . .. Its your opinion that these physicians and Midtown and Dr. Burke committed illegal acts. Yes. [Counsel]: Object to form. The Witness: Yes. All right. And had you reported this to any federal agency? No. You report it to any state agency? No. Why not? Because I reported it my lawyer. Are you a member of the Florida Bar — Excuse me, you hold a Florida medical license. Yes. And you read the Florida Medical Practice Act. No. * * Allright. And are you aware that if you’re aware of doctors breaking the law you’re supposed to report them as a condition of holding a Florida medical license. Yes. And you haven’t done that. No. Why not? Because I reported it to my lawyer. See Wojcicki Depo., pp. 108-112, excerpt attached as Exhibit 1. 3. After the deposition, the undersigned reviewed the pertinent Florida statute, which obligates both Wojcicki and Dr. Cortinas (“Cortinas”) to file complaints against Burke and the imaging center that he co-owned, Midtown Imaging, LLC (“Midtown”). The statute provides as follows:458.331 Grounds for disciplinary action; action by the board and department — (1) The following acts constitute grounds for... disciplinary action .. .: (e) Failing to report to the department any person who the licensee knows in violation of this chapter or of the rules of the department or the board . . . (D) Paying or receiving any commission, bonus, kickback, or rebate, or engaging in any split-fee arrangement in any form whatsoever with a physician, organization, agency, or person, either directly or indirectly, for patients referred to providers of health care goods and services, including, but not limited to, hospitals, nursing homes, clinical laboratories, ambulatory surgical centers or pharmacies .. . Fla. Stat. § 458.331 (Emphasis added). 4, The Physicians now intend to file their complaints against Burke and Midtown with the respective federal and state agencies. As such, the Physicians need to use the deposition transcript, including exhibits, of Midtown’s CFO, Kevin Johnson. This entire transcript, however, was designated unilaterally by Defendants as “confidential” pursuant to the Stipulated Confidentiality Protective Order (the “Confidentiality Order”) in this case.'| The Physicians, therefore, now seek to modify the Confidentiality Order for the purpose of allowing the Physicians to cite Kevin Johnson’s deposition in the agency complaints that they intend to file. a: Florida law places the burden of proving that information is a trade secret or confidential business information on the resisting party. See American Express Travel Related Servs., Inc. v. Cruz, 761 So.2d 1206, 1209 (Fla. 4th DCA 2000) (“The burden is on the party resisting discovery to show ‘good cause’ for protecting or limiting discovery by demonstrating that the information sought is a trade secret or confidential business information and that disclosure may be harmful.”). The determination will usually require that the court conduct an in camera inspection of the materials in question to determine whether they contain trade secrets. Id. ' A copy of the Order granting Stipulation for Entry of Confidentiality Order is attached as Exhibit 2.6. Here, the Physicians submit that the deposition of Kevin Johnson and exhibits do not constitute trade secrets or confidential business information in the first instance, nor can Midtown meet their burden of proving they are. Nonetheless, the Physicians submit that this Court need not make that determination because the Physicians are only seeking to modify the existing confidentiality order such that they may use the designated information in the other agency complaints they plan, and as Defendants contend they are duty-bound, to file with federal and/or state agencies. cf The Confidentiality Order provides in relevant part as follows: In the event that any party to this litigation objects at any state of these proceedings to the propriety of a designation by a party of any information as Confidential information, the Parties shall try first to dispose of such dispute in good faith on an informal basis. If the dispute cannot be resolved, the objecting party may seek appropriate relief from this Court. See Exhibit 2, § 8-9 (emphasis added). Here, the parties have attempted to resolve this issue in good faith but have not been successful to date. As such, the Physicians are now seeking to modify the Confidentiality Order for the purpose of permitting the Physicians to cite to Kevin Johnson’s deposition in any complaints the Physicians file with federal and/or state agencies. 8. In the alternative, the Physicians are seeking that Defendants be required to meet their burden and prove that the designated information is protected trade secrets or confidential business information. If this Court finds the information is not protected (after conducting an in camera inspection) the Court should order that the confidentiality designations are overruled in their entirety. Further, if the Court deems they are protected, the Court should find that there is “reasonable necessity” sufficient to allow the Physicians to use the designated confidential information to pursue their claims with any federal or state agencies.WHEREFORE, the Physicians request the following relief: A. That this Court modify the Confidentiality Order for the purpose of allowing the Physicians to use the information to file claims with federal and/or state agencies; or B. Alternatively, require that Defendants and/or Midtown prove that Kevin Johnson’s deposition is protected as trade secrets or confidential business information and, if not protected, overrule the confidentiality designations in their entirety. Further, if the Court deems that the information is protected, the Court should find there is a reasonable necessity to permit the Physicians to cite to Kevin Johnson’s deposition in any complaints filed with federal or state agencies. Certificate of Service I HEREBY CERTIFY that a true and correct copy of the foregoing was served via U.S. Mail to David W. Spicer, Law Offices of David W. Spicer, P.A., 11000 Prosperity Farms Road, Suite 104, Palm Beach Gardens, Florida 33410 and Christopher Duke, Akerman Senterfitt, 222 Lakeview Avenue, Suite 400, West Palm Beach, FL 33401 this av day of April, 2009. McCaBE RABIN, P.A. Attorneys for Plaintiff and Third-Party Defendants 1601 Forum Place, Suite 301 West Palm Beach, FL 33401 Tel: 561-659-7878 Fax: 561-242-4848 By:_/ e —— Adam T. Rabin Fla. Bar No. 985635Page 106 Page 108 |: 1 Q How was the outside read money split with the | 1 the correct Medicare reimbursement schedule then it 2 outside physicians? 2 would be appropriate. 3 A How was it split with them? 3 A. Can you repeat the question? 4 Q Yes. 4 Q Yes. Ifthe schedule was the Medicare 5 A_ But giving them excessive discounts. They 5 reimbursement schedule, then that would be appropriate. 6 did not pay fair market value for ALA's, for WWPA's 6 MR. RABIN: Form, 7 services, 7 THE WITNESS: For Medicare parents, yes, 8 —Q Did they pay it to Midtown? What didthey | 8 Q (BY MR. SPICER) All sight. And what about 9 pay Midtown, was that fair market value? 9 for insurance patients? 10 A No. 10 A. That depends upon what the insurance company 11 Q_ And what physician groups as we sit here now {11 would have paid for a professional fee. 12 do you know of that didn't pay fair market valueto {12 — Q Allright, And would the insurance company 13. Midtown? 13 normally pay what they normally pay, or are they going 14 A Palm Beach Sports Medicine. 14 to pay a discounted rate if somehow there's a 15 Q: Allright. 15. discounted rate given to the physician? 16 A Iwould have to have a list of outside reads, 16 MR. RABIN: Objection to form. 17 Q And these were less than the Medicare 17 THE WITNESS: It would, it would depend. 18 accepted -- 18 Q (BYMR. SPICER) Allright, Well, I'm trying 19° A Yes. 19 to understand what your allegation is, I mean, youre, 20 Q ~provisions? 20 you're accusing Dr, Burke of committing illegal acts, 21 A Yes, 21. things that you go to prison for. So I want to be very 22 Q AMllright. And were those all the documents | 22 clear about what you're, what you're alleging. You're 23 produced at Kevin Johnson's deposition? 23 alleging that there was a fee schedule that essentially 24 MR. RABIN: Form. 24 paid money back to physicians that were referring 25 ‘THE WITNESS: Well, there, in the discovery! | 25 clients to Midtown Imaging. Page 107 Page 109 1 don’t remember they were all produced at the 2 A Yes, 2 deposition or not. 2 Q Allright. And actually money went in their 3 Q (BY MR. SPICER) Okay. And when you say that | 3 pocket or just they got such a discount that they 4. they were below fair market value, fair market value 4 pocketed the difference somehow? 5 would be essentially -- Explain to me what fair market 5 A Thelatter. 6 value is for outside physicians. Would this be the 6 — Q Okay, so you're also accnsing all these 7 Medicare charge, where would I find it? 7 physicians that had contracts of committing illegal 8 A Well, it depends what the professional fee 8 acts, conspiring with Dr. Burke and Midtown to commit 9 was for a given service. 9 illegal acts. 10. Q Okay, And I mean how do you determine what, | 10 MR, RABIN: Objection to form. 11 what is fair market value if you're contracting, there 11 THE WITNESS: Not all of them. 12 was.a number of contracts without outside groups. 12 Q (BY MR. SPICER) Any of the one where you 13° A Uh-huh. 13 allege that the fee schedule is not fair market value. 14 — Q And those groups said they had a schedule in 14 It’s your opinion that these physicians and Midtown and 15 there what they were paying for certain providers, All 15 Dr, Burke committed illegal acts. 16 right, And you're saying that schedule was improper, 160A Yes, 17 it was improperly low. a7 MR. RABIN: Objection to form. 18 A Yes. 18 THE WITNESS: Yes, 19 Q Allright. And if the schedule was Medicare 19 Q (BY MR. SPICER) Allright. And had you 20 reimbursement, would that be improperly low? 20 reported this to any federal agency? 210A Yes. 21 A No. 22 Q Allright, And why is that? 22 Q Youreport it to any state agency? 23 A _ Because it was less than what Medicare 23° A No. 24 reimbursed. 24 Q Why not? 25 _Q Well, , 'mconfirsed. Tit was, ifit was 25 A _Because I reported it to my lav | 28 (Pages 106 to 109) Weathers & Associates, Inc. EXHIBIT 561-689-1570 3 3 1Page 110 Page 112} 2 Q Areyouamember of the Florida Bar --Excuse | 1 A I've consulted with my attomey about it. 2 me, you hold a Florida medical license. 2 MR. SPICER: All right, I don't want to hear 3 A Yes. 3 about that, 4 Q_ And you read the Florida Medical Practice 4 Q (BYMR. SPICER) Have you arrived at a figure 5 Act, 5 as to how much you think Midtown was undercompensated }? 6 A No 6 by these illegal arrangements? 7 Q You're required every year when you, or every | 7 MR. RABIN: Objection to the form. 8 two years when you renew your ficense to state under | 8 THE WITNESS: Yes. 9 oath that you've read the medical practice act. 9 Q (BY MR. SPICER) And what is that figure? 10 A Well, then J probably have, J don't know 10 AI don't remember. 14. what you're referring to. 11 Q_ For 2007 do you have a rough idea what that E 12 Q You're required by the law in the state 12 figure is? E 13 Florida, are you not, to report any physician that you 13 A_ It was in the Answer to Interrogatories, 14 know that is in violation of any state and federal law. 14 Q Okay. 15 MR. RABIN; Objection to form. 15 A__ Jf you want to pull that out J can show you 16 Q (BY MR. SPICER) Are you aware of that? 16 where itis. 17 MR. RABIN: Cails for a legal conclusion. 17 Q > And how was that figure computed? 18 Q (BY MR. SPICER) Are you aware of that? I'm|28 A How? 19 notasking you as a lawyer, I'masking you asadoctor, {19 Q Yes. 20 MR RABIN: Same objection, 20 A_ By data from the discovery documents, 24 MR. SPICER: Don't, don'thold your hand in | 22 Q__Soessentially went through every bill that 22 front of him. Make your objection, but don't stop _| 22_was paid to Midtown and looked to see if it was less 23 him from answering unless you instruct him not to | 23. than fair market value and then added fair market 24 answer, 24 value, 25 MR, RABIN: No, I'm not, no, hold on. 25 A Well, what I did was I looked at the net Page 111 Page 113 1 MR. SPICER: Okay. 1 collected revenues, applied the fair market value that 2 MR. RABIN: Lam placing my objection on the | 2 was reached by the appraisers, and subtracted the fair 3 record. 3 market value that was, or the 14 percent that Midtown 4 MR. SPICER: That's fine. 4 paid, which wasn't fair market value, and arrived at a 5 MR. RABIN: And have an opportunity todo | 5 difference, And then the outside read money which went 6 that before he starts answering. 6 to Midtown -- FE 7 ‘MR. SPICER: That's fine. 7 Q No, we're talking apples and oranges. You're ff 8 MR. RABIN; You're asking him for a legal 8 talking about what Midtown paid to AIA. I'mtaiking = 9 interpretation of a specific act, for which that 9 about whet physicians paid Midtown. 10 {sa proper objection, So I'm placing that 10° A Okay. 11 objection on the record. When you're done and 14 Q You're saying physicians underpaid Midtown, 12 when I'm done, then he can answer. a 13 THE WITNESS: So what was the question? 13° Q >All right. And I want to know how did you 14 Q (BY MR. SPICER) Are you aware of the rules | 14 arrive at the figure of how much Midtown was underpaid 15. and regulations that doctors are expected to conform 15. by those physicians, what calculation, If you don't 16 with in the state of Florida? 16 have the figures, how did you catculate that? oe ee i A How did I calculate that? Just addition and 18 Q Allright. And are you aware that if you're 18 subtraction. I assumed that the fair market value was 19. awate of doctors breaking the law you're supposed to {19 the Medicare, from the Medicare fee schedule. 20 report them as a condition of holding a Florida medical | 20 Q Allsight. So you went through each bill and 21 license? 21 figured out whether -- 22 A Yes. 22 A_ I went through the monthly invoices. 23° Q And you haven't done that, 23° Q Alltight. Every month for 2007. 24 A And 2006. 25 Q_ Allright. Well you don't claim you're F 29 (Pages 110 to 113) Weathers & Associates, Inc. 561-689-1570bone IN THE CIRCUIT COURT OF THE 15™ JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 05-2008-CA-002138-XXXX-MB TERESA MARIA CORTINAS, M.D, PA. Plaintiff, vs. ADYANCED IMAGING ASSOCIATES, LLC, MIDTOWN IMAGING, LLC, ROBERT D. BURKE, M.D., P.L., and ROBERT D, BURKE Defendants. f ORDER GRANTING STIPULATION FOR ENTRY OF CONFIDENTIALITY ORDER This maiter having come before this Court upon the parties’ Stipulation for Entry of Confidentiality Order (“Stipulation”), the parties being in agreement and the Court being fully advised in the premises, the Stipulation is hereby GRANTED, ITIS FURTHER ORDERED: He The following definitions shall apply to this Confidentiality Order: A. The term “action” shall refer to the above-entitled proceedings in the Fifteenth Judicial Circuit In and For Paim Beach County, Florida (the “Court”) and any appeal thereof through final judgment. B. “Confidential” information as used herein means any type or classification of information which is designated as “Confidential” by a party to this action, whether it be a document, information contained in a document, information revealed during a deposition, information revealed in an interrogatory answer, or otherwise. Any party to this action may designate any document or information “Confidential” in the reasonable exercise of such party’s ioe EXHIBIT Sart ‘tabbles" Lee eet Sebona sole discretion; provided, however, by stipulating to the entry of this Confidentiality Order, no party waives the right to challenge any other party's designation of any information as “Confidential.” In designating information as “Confidential” information, a party will make such designation only as to that information that it in good faith believes to constitute financial, trade secrets, confidential research, development or confidential or proprietary information or know-how of such party or such party's client or otherwise sensitive information. Information which has previously been disclosed in a non-privileged context is not confidential. Accordingly, this Order will only be applied prospectively. c “Producing party” shall mean any person or entity bound by this Confidentiality Order producing documents, information or other materials in this action. DB. “Designating party” shall mean any person or entity bound by this Confidentiality Order who designates information “Confidential”, EB When used herein, the singular shall include the plural number, and the plural umber shail include the singular. 2s This Confidentiality Order shall govern all information and documents generated or produced by the parties in response to any method of discovery conducted by any party to this action or in connection with mediation. 3. All “Confidential” information produced or exchanged in this action shall be used solely for the purpose of this action, except by further order of the Court, and shall not be disclosed to any person or used for any other purpose except in accordance with the terms hereof or by further order of the Court. 4 “Qualified Persons” as used herein means persons who are: (a) counsel for the parties to this action and their employees, paralegals, and other secretarial and clerical Doc # 44636town employees; (b) the parties to this action; and (c) experts retained by any party to this action who have a need to review the information in connection with this action, provided that before any disclosure to any expert is made, the expert must sign an acknowledgment in the form of Exhibit “A” hereto, 5S ‘Transcripts, depositions, exhibits, answers to interrogatories and other documents and things produced by a party pursuant to pretrial discovery may be designated by any party "Confidential" information by marking each page: “CONFIDENTIAL.” In lieu of marking the original, if the original is not produced, the Designating party may mark the copies that are produced or exchanged. In the event the original is produced, and the requesting party elects to copy such original by any means of reproduction, the producing party shail have the right to review all copies of originals and to designate and matk as "Confidential" information any of such copies on the premises where said originals are copied and before such copies are provided. to the requesting party. 6. Information disclosed at the deposition or production of documents of a party or one of its present or former officers, directors, employees, agents, accountants, clients or independent experts retained by counsel for purposes of this action may be designated by any party as Confidential information by indicating on the record at the deposition or at the production that the testimony or information is Confidential and subject to the provisions of this Confidentiality Order. Any party may also designate information disclosed at such deposition or production of documents as Confidential by notifying all of the parties, in writing, within thirty (30) days of the production or of his receipt of the transcript, of the specific pages and lines of the transcript or exhibit which are Confidential, 7. Confidential information shall not be disclosed or made available to persons other Doe #44636uae than Qualified Persons or the party who designated or produced the Confidential information without further order of the Court except as otherwise provided in this paragraph, Disclosure of any Confidential information to any Qualified Person shall not constitute a waiver of the confidential status of such Confidential information. If any party wishes to divulge any information designated Confidential to anyone other than Qualified Persons, the author of the document containing same or any party who designated or produced the Confidential information, notice shall be served on counsel for each and every patty who designated the subject matter as Confidential of the identity of that person, and the information to be divulged. Such divulgation shall not occur except upon consent of such Designating party or upon leave of Court. 8. A party shalf not be obligated to challenge the propriety of a Confidential information designation at the time made, and a failure to do so shall not preclude a subsequent challenge thereto. In the event that any party to this litigation objects at any stage of these proceedings to the propriety of a designation by a patty of any information as Confidential information, the Parties shall try first to dispose of such dispute in good faith on an informal basis. If the dispute cannot be resolved, the objecting party may seek appropriate relief from this Court, 9, Each party or other person subject to the terms hereof shall be under an obligation to assemble and return to the originating source, or destroy, any originals and reproductions of atty documents produced by any other party which are confidential; provided, however, counsel of record for each party may retain one copy of each said document for reference in the event of a dispute over the use or dissemination of information subject to the terms hereof or ina fitigation arising out of the original action. Insofar as the provisions of this Confidentiality Order Doo #44636bone entered in this action restrict the communication and use of the documents produced thereunder, this Confidentiality Order shail continue to be binding after the conclusion of this action except (a) that there shall be no restriction on documents that are used as exhibits in Court (unless such exhibits were filed under seal) and (6) that a party may seek the written permission of the producing party or further order of the Court with respect to dissolution or modification of this Confidentiality Order. 10. Nothing in this Confidentiality Order shall bar or otherwise restrict any attorney herein from rendering advice to his client with respect to this litigation and, in the course thereof, referring to or relying upon his examination of Confidential information; provided, however, that in rendering such advice and in otherwise communicating with his clients, the attorney shall not quote, paraphrase, or otherwise make specific disclosure of any item of Confidential information unless the person(s) to whom the attorney is rendering advice and otherwise .communicating with is a Qualified Person as defined herein. IL. Any party designating any person as a Qualified Person shall have the duty to use reasonable care and precautions to insure that such person observes the terms of this Confidentiality Order. TT IS SO ORDERED, * SIGNED AND DATED OCT 85 2008 DATED: iNGE THOMASH. BARKOULL I CIRCUIT COURT JUDGE Copies Furnished: See Below Service List: -5- Doo #44636Seryiee List Adam T. Rabin, Esq. Ryon McCabe, Esq. McCabe Rabin, P.A. Trump Plaza Office Center 525 South Flagler Drive Suite 200 West Palm Beach, FL 33401 David Spicer, Esq. Law Office of David W. Spicer 11000 Prosperity Farms Road Suite 104 Palm Beach Gardens, FL 33410 Christopher S. Duke, Esq. Schwarzberg Spector Duke & Rogers 222 Lakeview Avenue Suite 210 West Palm Beach, FL 33401 Doe #44636EXHIBIT “A” ACKNOWLEDGEMENT OF UNDERSTANDING AND AGREEMENT RE "CONFIDENTIAL" DISCOVERY INFORMATION The undersigned hereby acknowledges that he/she has read the Stipulation for Entry of ‘Confidentiality Order entered in the action entitled Teresa Maria Cortinas, M.D., P.A. v. Advanced Imaging Associates, LLC, Midtown Imaging, LLC, Robert D. Burke, M.D., P.L,, and Robert D. Burke, Case No. 05-2008-CA-002138-XXXX-MB; that he/she understands the terms thereof; that he/she has been designated by as a Qualified Person. thereunder, that he/she individually and on behalf of » and on behalf of the party designating him/her as a Qualified Person, agrees to be bound by such Stipulation for Confidentiality Order; and that he/she acknowledges the jurisdiction of the Court and agrees to be bound by the jurisdiction of the Court. DATED: (Signature) (PRINT NAME) (Address) Doc #44636