Daddono v. Hoffman

• Decision Date: 16 May 2022
• Docket Number: 8:21-cv-315-WFJ-JSS
• Parties: DREW DADDONO, as personal representative on behalf of the Estate of STEPHANIE MARIE MILLER, Plaintiff, v. KURT A. HOFFMAN as SHERIFF OF SARASOTA COUNTY, et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

DREW DADDONO, as personal representative on behalf of the Estate of STEPHANIE MARIE MILLER, Plaintiff,
v.
KURT A. HOFFMAN as SHERIFF OF SARASOTA COUNTY, et al., Defendants.

No. 8:21-cv-315-WFJ-JSS

United States District Court, M.D. Florida, Tampa Division

May 16, 2022

ORDER

WILLIAM F. JUNG, UNITED STATES DISTRICT JUDGE.

Before the Court is Plaintiff's “Motion to Enforce Fla. Stat. 766.206 and Strike Defendants' Answer” (Dkt. 121) and the response and reply (Dkts. 125, 128). After careful consideration of the submissions of the parties, the applicable law, and the entire file, the Court concludes the motion should be denied.

INTRODUCTION

Dr. Todd Wilcox, a Utah physician, submitted his corroborating medical expert opinion on behalf of the Charlotte Defendants in the presuit investigation stage. His Florida expert witness certification had lapsed. He reactivated his expert witness certificate immediately after Plaintiff raised the issue. One year into this lawsuit, Plaintiff now moves to strike the Charlotte Defendants' answer

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because the medical expert opinion did not comply with Florida's statutory law on presuit investigation requirements for medical negligence claims.

PERTINENT FACTS

Dr. Todd Wilcox is not licensed to practice medicine in the state of Florida. In 2012, Dr. Wilcox held an expert witness certificate under section 458.3175, Florida Statutes. Dkt. 124-1 at 1.^[1]The certificate is good for two years. Id. at 14.^[2] Dr. Wilcox again obtained certificates in 2014 and 2018. Id. at 2-3. The 2018 certificate expired on September 4, 2020. Id. at 3.

Dr. Wilcox signed the presuit affidavit in this case on behalf of the Charlotte Defendants in November 2020. Dkt. 125 at 6. He did not hold a Florida expert witness certificate at the time. The complaint in this action was filed on February 9, 2021. Dkt. 1. The Charlotte Defendants filed their answer and affirmative defenses on July 12, 2021. Dkt. 79.

Over one year after this case was filed, Plaintiff raised the failure to hold a Florida certificate with the Charlotte Defendants. Dkt. 125 at 6. Dr. Wilcox applied for an expert witness certificate as soon as he was told-on March 14, 2022. Dkt. 124-1 at 4. On April 1, 2022, Plaintiffs filed the instant motion to

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strike the Charlotte Defendants' answer for failure to comply with Florida's presuit medical negligence requirements in Chapter 766 of the Florida Statutes (“Medical Malpractice Act”). Dkt. 121.

DISCUSSION

The issue is whether the Charlotte Defendants' failure to comply with Florida's presuit requirements-§§ 766.201-766.212, Florida Statutes-requires their answer and affirmative defenses be stricken pursuant to section 766.206(3). Plaintiff contends that Dr. Wilcox was not a qualified medical expert under Florida law because he did not possess a valid Florida expert witness certificate when he signed his expert medical opinion rejecting Plaintiff's claim. Dkt. 121 at 3. Plaintiff further urges that Dr. Wilcox's late verification of the report in March 2022 when he renewed his certificate does not rectify the error. Dkt. 128 at 6-7. The facts are undisputed that Dr. Wilcox did not hold an expert certificate on November 4, 2020, when he signed his report.

Plaintiff seeks to strike the Charlotte Defendants' answer based on the following statute:

(3) If the court finds that the response mailed by a defendant rejecting the claim is not in compliance with the reasonable investigation requirements of ss. 766.201-766.212 including a review of the claim and a verified written medical expert opinion by an expert witness as defined in s 766.202, the court shall strike the defendant's pleading. The person who mailed such response, whether the defendant, the defendant's insurer, or the defendant's attorney, shall be personally liable for all attorney's fees and costs incurred during the investigation

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and evaluation of the claim, including the reasonable attorney's fees and costs of the claimant.

Fla. Stat. § 766.206(3) (emphasis added). Section 766.202 defines a “medical expert” as “ a person duly and regularly engaged in the practice of his or her profession who holds a health care professional degree from a university or college and who meets the definition of an expert witness as set forth in s. 766.102.” Fla. Stat. § 766.202(6). Section 766.102 addresses the prerequisites under which a person may give expert testimony concerning the prevailing standard of care. The “expert witness” must “possess a valid expert witness certificate issued under s. 458.3175” if not a licensed physician in Florida. Fla. Stat. § 766.102(12).^[3]

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Sections 766.102(12) and 458.3175

At the outset, the Court notes that the parties have not cited any applicable case law addressing either section 766.102(12) or 458.3175, much less the particular circumstances presented here. Both of these statutes were enacted in 2011, but only two opinions mention them. See Ch. 2011-233, §§ 1, 10, Laws of Fla. (eff. Oct. 1, 2011); Fla. Stat. §§ 458.3175, 766.102(12) (2012); In re Amends. to Fla. Evidence Code, 144 So.3d 536 (Fla 2014) (mentions statutes); Cros Rivas v. Cleveland Clinic Fla., No. 18-cv-60672-UU, 2018 WL 9362259 (S.D. Fla. Dec. 6, 2018) (same).

Section 766.102(12), which references section 458.3175, has not been adopted by the Florida Supreme Court “to the extent they are procedural.” In re Amends. to Fla. Evidence Code, 144 So.3d at 537 (“[T]he Court declines to adopt . . . chapter 2011-233, section 10, Laws of Florida, to the extent [it is] procedural.”). The Florida Supreme Court did not find the statute unconstitutional or unlawful, nor did it overturn the statute. See Bivins v. Rogers, 207 F.Supp.3d 1321, 1326 (S.D. Fla. 2016) (citing In re Amends. to Fla. Evidence Code); Clare v. Lynch, 220 So.3d 1258, 1262 (Fla. 2d DCA 2017) (citing Rogers and In re Amends. to Fla. Evidence Code and noting “the...