Kenneth Woliner v. Martha Sofronsky ( 2019 )


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  •            Case: 19-11060   Date Filed: 12/18/2019   Page: 1 of 11
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 19-11060
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 9:18-cv-80305-WPD
    KENNETH WOLINER,
    Plaintiff-Appellant,
    versus
    KRISTEN SUMMERS,
    LOUISE WILHITE-ST. LAURENT, et al.,
    Defendants,
    MARTHA SOFRONSKY,
    Defendant-Appellee.
    ________________________
    Appeals from the United States District Court
    for the Southern District of Florida
    ________________________
    (December 18, 2019)
    Case: 19-11060    Date Filed: 12/18/2019   Page: 2 of 11
    Before WILSON, HULL, and MARCUS, Circuit Judges.
    PER CURIAM:
    This is an unlawful-recording case. The appellant Kenneth Woliner is a
    formerly licensed medical doctor trained in holistic medicine. For about two years,
    he treated S.S., a young woman diagnosed with Stage 3 Hodgkin Lymphoma who
    ultimately passed away from her illness.
    Sometime after S.S. passed away, S.S’s mother, Martha Sofronsky, went to
    Woliner’s office to discuss S.S.’s autopsy report in a posthumous bereavement
    session. She recorded her conversation with Woliner, allegedly without his
    knowledge or consent. Florida Department of Health (DOH) officials then used
    the recording in a proceeding to revoke Woliner’s medical license, proving there
    that Woliner’s treatment of S.S. arose to medical malpractice.
    After Woliner learned of the recording, he sued Sofronsky and DOH
    officials for, among other things, violating Florida’s unlawful-recording statute
    (Counts I-IV). The district court ultimately granted summary judgment for
    Sofronsky and the DOH officials. Woliner now appeals the grant of summary
    judgment for Sofronsky on Count I only.
    After careful review, we hold that there are genuine disputes about the
    circumstances surrounding Sofronsky’s recording. Since these disputes are
    material to whether Woliner had a reasonable expectation of privacy in the private
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    medical office where he was recorded, we reverse the grant of summary judgment
    for Sofronsky on Count I and remand for proceedings consistent with this opinion.
    I.
    We review de novo the district court’s grant of summary judgment and apply
    the same standard used by the district court. Burton v. Tampa Hous. Auth., 
    271 F.3d 1274
    , 1276 (11th Cir. 2001). Summary judgment is appropriate only “if the
    movant shows that there is no genuine dispute as to any material fact and the
    movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex
    Corp. v. Catrett, 
    477 U.S. 317
    , 322 (1986). “Only disputes over facts that might
    affect the outcome of the suit under the governing law will properly preclude the
    entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 248
    (1986). We view all evidence and factual inferences in the light most favorable to
    the non-moving party. 
    Burton, 271 F.3d at 1277
    .
    Florida’s unlawful-recording act generally prohibits, among other things,
    the recording of “oral communication[s]” without the consent of all participants to
    the conversation. See Fla. Stat. § 934.03(1)(a)–(b). It also prohibits the use or
    disclosure of a recorded oral communication if the individual using or disclosing
    the recording knew or had reason to know that the recording was unlawful. See
    Fla. Stat. § 934.03(1)(c)–(d). An “oral communication” is “any oral
    communication uttered by a person exhibiting an expectation that such
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    communication is not subject to interception under circumstances justifying such
    expectation and does not mean any public oral communication uttered at a public
    meeting or any electronic communication.” Fla. Stat. § 934.02(2) (emphasis
    added). 1
    The Florida Supreme Court has interpreted this language to mean that a
    statement is an “oral communication” only if the speaker had “a reasonable
    expectation of privacy,” which includes “one’s actual subjective expectation of
    privacy as well as whether society is prepared to recognize this expectation as
    reasonable.” McDonough v. Fernandez-Rundle, 
    862 F.3d 1314
    , 1320 (11th Cir.
    2017) (citing State v. Inciarrano, 
    473 So. 2d 1272
    , 1275 (Fla. 1985)), cert. denied,
    584 U.S. __, 
    138 S. Ct. 2600
    (2018). This is “substantially the same test used in a
    Fourth Amendment right to privacy analysis.” Stevenson v. State, 
    667 So. 2d 410
    ,
    412 (Fla. 1st DCA 1996). We thus ask two questions to decide whether a
    statement is an oral communication: (1) Did the non-consenting party have a
    subjective expectation of privacy when making the statement? and (2) Was the
    expectation of privacy one that society is prepared to recognize as reasonable? See
    
    Inciarrano, 473 So. 2d at 1275
    .
    1
    Section 934.10 provides a civil remedy for the person whose oral communication was
    unlawfully recorded. Fla. Stat. § 934.10. The statute also prohibits the disclosure of unlawfully
    recorded communications in certain proceedings. Fla. Stat. § 934.06.
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    Florida law suggests that these factors help guide whether an expectation of
    privacy was objectively reasonable: (1) the location where the communication took
    place; (2) the manner in which the communication was made; (3) the nature of the
    communication; (4) the intent of the speaker asserting Chapter 934 protection at
    the time the communication was made; (5) the purpose of the communication;
    (6) the conduct of the speaker; (7) the number of people present; and (8) the
    contents of the communication. Brugmann v. State, 
    117 So. 3d 39
    , 49 (Fla. 3d
    DCA 2013) (Rothenberg, J., dissenting from denial of rehearing en banc). Florida
    courts also recognize that conversations “occurring inside an enclosed area or in a
    secluded area are more likely to be protected . . . .” Cinci v. State, 
    642 So. 2d 572
    ,
    573 (Fla. 4th DCA 1994). And the Florida Supreme Court has held that a person,
    in some cases, has a reasonable expectation of privacy inside a medical
    examination room. See Jones v. State, 
    648 So. 2d 669
    , 677 (Fla. 1994).
    Similarly, the United States Supreme Court has said that one should consider
    “the intention of the Framers of the Fourth Amendment, the uses to which the
    individual has put a location, and our societal understanding that certain areas
    deserve the most scrupulous protection from government invasion.” O’Connor v.
    Ortega, 
    480 U.S. 709
    , 715 (1987). A majority of the Court has also agreed that, in
    some cases, a doctor has a reasonable expectation of privacy in his or her private
    medical office. Id.; see also Minnesota v. Carter, 
    525 U.S. 83
    , 90–91 (1998)
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    (citing Ortega for the proposition that “the Court has held that in some
    circumstances a worker can claim Fourth Amendment protection over his own
    workplace”).
    II.
    Woliner generally alleged two unlawful-recording theories. First, he
    claimed that Sofronsky unlawfully recorded him during their bereavement session.
    Second, Woliner alleged that Sofronsky and DOH officials had unlawfully
    disclosed or used the unlawful recording in the license-revocation hearing.
    At summary judgment, Sofronsky and DOH officials challenged both
    theories. And yet, though the court granted total summary judgment for the
    defendants, the court seemed to address only the second issue—it did not directly
    tackle the baseline claim that Sofronsky unlawfully recorded Woliner.
    Still, we read one aspect of the court’s order as justifying its grant of total
    summary judgment for Sofronsky. The court reasoned, in analyzing the second
    claim, that Woliner could not prove his case at trial because he did not have a
    reasonable expectation that his conversation with Sofronsky would not be
    recorded.2 This conclusion barred the second claim, as the defendants could not
    2
    The court did not distinguish between subjective expectation and objective reasonableness, but
    we note that Sofronsky’s briefing did not dispute that Woliner at least subjectively expected that
    she was not recording him. In any event, we believe, as explained below, that there are genuine
    disputes of fact relevant to both the subjective and objective parts of the reasonable-expectation
    inquiry.
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    have used or disclosed an unlawful recording if the recording was lawful. And it
    also inherently decided the first claim: If there was no expectation of privacy, then
    the recording was lawful, and Sofronsky did not violate Fla. Stat. § 934.03. See
    
    Inciarrano, 473 So. 2d at 1275
    . So even though the district court did not spell it
    out, it ruled for Sofronsky on the first claim because it thought that there was no
    genuine dispute over whether Woliner had a reasonable expectation of privacy.
    Thus, the question for us is whether, taking the facts in the light most favorable to
    Woliner, a reasonable factfinder could conclude that he had a reasonable
    expectation of privacy. See 
    Burton, 271 F.3d at 1276
    –77. On this record, we
    believe that answer is yes.
    The record, viewed in the light most favorable to Woliner, would support
    these findings. An obvious cornerstone of medical care is patient confidentiality.
    To that end, Woliner took great care to ensure that his medical office complied
    with typical confidentiality standards. He added a privacy sign-in sheet that made
    it impossible for patients to see the names of earlier patients; a sliding glass
    window dividing the waiting room from the front office area; privacy computer
    screens; heavy soundproof doors; extra insulation between the walls; a private
    checkout room; and a policy that employees keep their cell phones out of sight.
    Woliner also solely owned the medical condominium where he examined his
    patients, ensuring total control of the premises.
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    Woliner, on occasion, allowed patients to record their examinations if the
    exams involved complex information too difficult to write down. But this policy
    came with restrictions. To validly record an exam, a patient had to pay a $5
    recording fee. The patient would also need to inform Woliner of his or her desire
    to record the exam. Woliner, at the beginning of the recording, would state the
    names of all participants to the conversation and affirm that all participants
    consented to the recording. Woliner typically made these recordings on a visible
    office recording device. And Woliner never condoned recordings that did not
    follow his typical recording procedure.
    As far as anyone other than Sofronsky knew, S.S. and Sofronsky had
    recorded S.S.’s examinations only three times before the allegedly unlawful
    recording. Each time, they paid the $5 fee. The recording was made on Woliner’s
    office computer, not a personal recording device. Woliner also obtained consent
    for each recording from all parties present, including himself. The recording
    device used was visible, and he began the recording by noting who was in the
    room.
    On the day of the allegedly unlawful recording, Sofronsky hid a recording
    device in her purse. She entered Woliner’s medical condominium and recorded
    conversations with three of Woliner’s employees in the condominium’s common
    areas. Woliner then greeted Sofronsky and invited her back to his private office—
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    a room with a soundproof door and closed curtains. Woliner spoke with Sofronsky
    there for several hours about her daughter’s autopsy report. The sole purpose of
    Woliner’s communication with Sofronsky was to help ease her grief; Woliner did
    not charge her for the time and did not treat her as a patient. Sofronsky never
    suggested that she was recording the conversation, never paid the $5 fee, and never
    asked for Woliner’s consent. Woliner was thus unaware that Sofronsky was
    recording their discussion.
    On these facts, a factfinder could conclude that Woliner subjectively
    believed that he had an expectation of privacy. Indeed, the record reflects that he
    thought as much, that he never saw a listening device, that Sofronsky never asked
    that he consent to being recorded, and that Sofronsky never complied with the
    typical recording procedures. Three of his employees also swore that they never
    saw Sofronsky with a listening device and never knew that she was recording.
    This is enough to raise a genuine dispute about the circumstances material to the
    subjective-expectation element.
    Similarly, a factfinder could conclude on these facts that Woliner’s belief
    was objectively reasonable. Woliner is a medical doctor, and the medical
    profession hinges on confidentiality. Woliner thus took great pains to ensure that
    conversations with his patients in his medical complex remained confidential,
    installing heavy soundproofing, mandating confidentiality procedures for his staff,
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    and obtaining sole ownership of the property. A factfinder could therefore
    conclude that it was reasonable for him to generally expect privacy within his
    medical condominium, and especially within his private medical office. See
    
    Ortega, 480 U.S. at 715
    .
    Moving to details of the allegedly unlawful recording, Sofronsky recorded
    Woliner during a conversation in this private medical office—an office equipped
    with soundproofing and closed curtains. See 
    Jones, 648 So. 2d at 677
    . Woliner
    and Sofronsky were the only participants to the closed-door discussion. See 
    Cinci, 642 So. 2d at 573
    . The conversation involved a child’s autopsy report—highly
    sensitive medical material for a parent. See 
    Brugmann, 117 So. 3d at 49
    . And the
    purpose of the conversation was not to relay complex information about patient
    treatment, but to assist Sofronsky with her grief. See 
    id. To be
    sure, Woliner has let patients record him before. But this was not a
    free-for-all policy; it came with specific guidelines. S.S. and her mother had
    followed this procedure before. Yet, on this occasion, Sofronsky complied with
    none of the typical recording procedures, leading Woliner to reasonably conclude
    that he was not on tape. 3
    3
    Sofronsky testified that she and S.S. had recorded Woliner before on a private recording device
    without following the office recording procedures. But the record also shows that Woliner did
    not know that Sofronsky had made these private recordings and learned of them for the first time
    at Sofronsky’s deposition. Taking the evidence in the light most favorable to Woliner, a
    factfinder could find that S.S. and her mother made any unauthorized findings in secret, and so
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    In sum, given the location, purpose, and nature of the communication, and
    given that Sofronsky did not comply with typical recording procedure, a
    factfinder—viewing the record in the light most favorable to Woliner—could
    conclude that he had an objectively reasonable expectation of privacy in his private
    medical office. See 
    id. 4 As
    a result, there remain genuine disputes of material fact relevant to
    whether Woliner had a reasonable expectation of privacy—a conclusion key to
    whether his statements are protected under Fla. Stat. § 934.03. For these reasons,
    we REVERSE the district court’s grant of summary judgment for Sofronsky on
    Count I and REMAND for proceedings consistent with this opinion.
    no one could have expected that Sofronsky would record a conversation outside the office-
    sanctioned recording policy.
    4
    Woliner also raises a bevy of supplemental arguments supporting reversal. Because we agree
    that there remain genuine disputes of material fact, we need not reach these issues. Of course,
    Woliner may raise these arguments in the district court and remains entitled to appeal after final
    judgment.
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