Kelly M. Liebbe and Jonathan Rute v. Stephen Courtney, M.D. and Stephen Courtney, M.D., P.A.

Court of Appeals of Texas·Decided September 26, 2022·No. 05-22-00158-CV·Published

Opinion

Filed: 9/21/2022 11:14 AM Lynne Finley District Clerk Collin County, Texas By Suzanne Rogers Deputy Envelope ID: 68468864

Cause No. 296~034 70~2016

STEPHEN COURTNEY, M.D. AND § IN THE DISTRICT COURT STEPHEN COURTNEY, M.D., P.A., § §

Plaintiffs, § § 296TH JUDICIAL DISTRICT v. § §

KELLY M. LIEBBE, et al., § §

Defendants. § COLLIN COUNTY, TEXAS

ORDER GRANTING PLAINTIFFS' SECOND AMENDED MOTION TO SEAL CERTAIN TRIAL EXHIBITS AND CERTAIN EXHIBITS FROM THE CLERK'S RECORD, SUPPLEMENTAL CLERK'S RECORD, AND TWO REPORTER'S RECORDS

After having considered Plaintiffs' Second Amended Motion to Seal Certain

Trial Exhibits and Certain Exhibits from the Clerk's Record, Supplemental Clerk's

Record, and Two Reporter's Records (the "Motion") filed by Plaintiffs, Stephen

Courtney, M.D. and Stephen Courtney, M.D., P.A., (collectively, "Plaintiffs" or the

"Courtney Parties"), Defendants' Responses, and the arguments of counsel, the

Court makes the following findings and orders:

1. Plaintiffs filed their Second Amended Motion to Seal seeking to

permanently seal certain trial exhibits and portions of appellate records 1 under Rule

76a of the Texas Rules of Civil Procedure. As reflected in the Certificate of Service

1 The specific documents Plaintiffs request to perm anently seal is included in the ch art below.

Permanent Sealing Order Page I1

at the end of Plaintiffs' Motion, Defendants have been provided notice of the filing

of the Motion.

2. The Court further finds that the Plaintiffs complied with public notice

requirement within Rule 76a(3) of the Texas Rules of Civil Procedure. Specifically,

Plaintiffs filed their Second Amended Motion to Seal on August 26, 2022. Plaintiffs

then filed a Public Notice on said Motion to be posted at the place where notices for

meetings of Collin County governmental bodies are required to be posted on August

26, 2022. The Public Notice was posted at the place where notices for meetings of

Collin County governmental bodies are required to be posted on August 30, 2022.

Plaintiffs filed a verified copy of the public notice with the clerk of the court in which

the case is pending and with the Clerk of the Supreme Court of Texas on August 30,

2022. The Public Notice has thus been posted for more than 14 days prior to the

hearing on the Motion to Seal. On September 20, 2022, the Collin County Constable

filed his Return of Citation by Posting confirming that the Public Notice was posted

in the lobby of the Collin County Courthouse on August 30, 2022 until September

20, 2022. Plaintiffs further filed a Notice of Filing a Return of Service attaching the

Constable's Return of Citation by Posting on September 20, 2022.

3. The specific facts supporting the permanent sealing of the exhibits and

portions of the appellate records listed below consist of their inclusion of protected

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health information of non~parties that federal and state statutes mandate

confidentiality unless the individual patient provides authorization for disclosure. 45

C.F.R. §§ 164.502(a) and 164.508(a); Tex. Health & Safety Code§ 181.006. The

specific facts supporting the permanent sealing of the exhibits and portions of the

appellate records listed below also consist of confidential, sensitive business and

financial information, namely individual and business tax returns, for which federal

confidentiality is required by federal law. 26 U.S.C. § 6103. Additionally, the specific

facts supporting the permanent sealing of the exhibits and portions of the appellate

records listed below consist of proprietary and competitive information within the

confidential, sensitive business and financial records.

4. The Court further finds that the Motion demonstrates patients treated

by Plaintiffs possess specific, serious, and substantial interests in permanently sealing

the court records containing their protected health information to protect their

privacy rights who did not authorize the disclosure of their protected health

information. The Court further finds that Plaintiffs possess specific, serious, and

substantial interests in sealing the court records containing their financial and

business information because disclosure of those records would result in a

competitive disadvantage, an invasion of privacy, and financial harm. The Court

further finds the Motion demonstrates that Plaintiffs' and their patients' interests in

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sealing these records outweigh the presumption of openness and will not cause any

adverse effect on the general public health and safety.

5. The Court further finds the Motion demonstrates there are no less

restrictive means than sealing these court records to adequately and effectively

protect Plaintiffs' and their patients' asserted interests.

6. The Court further finds Plaintiffs did not waive their right to seek the

sealing of the exhibits and portions of the appellate records listed below. During pre~

trial discovery, the Parties exchanged discovery under a Protective Order to protect

the documents, materials, and information relevant to this lawsuit, including

protected health information and other confidential, sensitive business and financial

information. Additionally, and for purposes of pre~trial hearings, motion practice,

and at trial, the parties filed and/or admitted exhibits with the Court containing

protected health information and confidential, sensitive business and financial

information. The Parties filed those documents with the Court subject to and under

the agreed protective order entered in the case. At trial, all Parties agreed on the

record to seal certain documents containing protected health information and

confidential, sensitive business and financial information. Further, the Plaintiffs do

not hold the right to waive disclosure of protected health information of the non~

party patients treated by Plaintiffs.

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Therefore, the Court hereby ORDERS the following relief after an open

hearing was held on Plaintiffs' Motion to Seal requesting a permanent sealing order:

1. The following documents be, and are hereby, permanently sealed:

TRIAL EXHIBIT NUMBER TRIAL EXHIBIT SEALED DENIED DESCRIPTION

Plaintiffs' Exhibit No. 31 Exhibit 34 to Dr. Carmody's deposition / Plaintiffs' Exhibit No. 90 Rute's email forwarding Bryan Taylor's medical records to himself dated May 4, 2016

Plaintiffs' Exhibit No. 119 P&Ls to Dr. Alan Osenbaugh's Amended Expert Report / Plaintiffs' Exhibit No. 120 D RGs to Dr. Alan Osenbaugh's Amended Expert Report

Plaintiffs' Exhibit No. 121 Dr. Alan Osenbaugh's Amended Expert Report / Defendant Liebbe's Tax Returns, Dr. Stephen Exhibit No. 95 Courtney / Defendant Liebbe's Tax Returns, Eminent Exhibit No. 97 Medical Center Operating / Defendant Liebbe's Exhibit No. 98 T ax Returns, Eminent Medical Center Operating / Defendant Liebbe's Exhibit No. 99 Tax Returns, Eminent Medical Center Operating I Defendant Liebbe's Exhibit No. 100 T ax Returns, Eminent Medical Center Operating

Defendant Liebbe's Exhibit No. 101 T ax Returns, Eminent Medical Center Operating I Permanent Sealing Order Page I5

TRIAL EXHIBIT NUMBER TRIAL EXHIBIT SEALED DENIED DESCRIPTION

Defendant Liebbe's Tax Returns, Dr. Stephen Exhibit No. 106 Courtney / Defendant Liebbe's Tax Returns, Dr. Stephen Exhibit No. 107 Courtney I CLERK'S RECORD Nos. DESCRIPTION SEALED DENIED (APPEAL NO. 05--22--00158--CV} /

Volume 4, Clerk's Record Letter from Michael No. 1916,,1945 Alfred to Judge Roach dated 5/22/20 / SUPPLEMENTAL CLERK'S DESCRIPTION SEALED DENIED REcoRDNos. (APPEAL NO. 05--22--00158--CV} ./ Volume 2, Supplemental Patient lists attached to Clerk's Record No. l 784~ email dated 11/5/18 from 1810 Rute to Moore forwarding Exhibit 2 to Plaintiffs 6/6/16 email Supplement to Their Rule / 215 Motion to Strike Pleadings Against Kelly Liebbe

Permanent Sealing Order Page I6

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