Gordon v. Marvin M. Rosenberg, D.D.S., P.A.

Decision Date10 May 1995
Docket NumberNo. 93-3227,93-3227
Citation654 So.2d 643
Parties20 Fla. L. Weekly D1142 Robert GORDON, Appellant, v. MARVIN M. ROSENBERG, D.D.S., P.A., and Marvin M. Rosenberg, individually, Appellee.
CourtFlorida District Court of Appeals

Jerald C. Cantor of Engelberg, Cantor & Kushner, P.A., Hollywood, for appellant.

Shelley H. Leinicke of Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Lane, P.A., Fort Lauderdale, for appellee.

POLEN, Judge.

We reverse the final judgment of the trial court entered after jury trial in this dental malpractice case. Before trial, plaintiff Gordon had settled a portion of his claim with the defendant dentist, Dr. Newman, for $24,999. He proceeded to trial against the defendant periodontist, Dr. Rosenberg, and the jury awarded damages in the amount of $30,000. Over objection, the trial court set off the $24,999 settlement against the $30,000 verdict.

At the heart of this appeal is the issue of whether the evidence of plaintiff's damages, for which he sought recovery from Dr. Rosenberg, were the same damages for which he had obtained a recovery from Dr. Newman. The statutory provision by which Dr. Rosenberg could seek a setoff is section 768.041(2), Florida Statutes (1993). 1 In Devlin v. McMannis, 231 So.2d 194, 196 (Fla.1970) the Supreme Court of Florida stated that section 768.041(2) "must be interpreted so as to preserve the identity of separate causes of action and the distinctive character of the damage element accruing under each such cause." Further, it stated, the statute was designed to prevent duplicate or overlapping compensation for identical damages. Id. at 196.

Appellant alleges that the trial court erred in granting a setoff to Rosenberg because the damages caused by Dr. Rosenberg were separate and distinct from those caused by Dr. Newman. He states that the injuries caused by the implant surgery occurred in October of 1989 when the implants were installed by Dr. Rosenberg. However, the second injuries were caused by Dr. Newman's attempt to place dentures in his mouth which occurred sometime later. He adds that "each dental procedure represented a separate and mutually exclusive cause of action" because each had its own distinctive character, i.e., the implant procedure caused the paresthesia, drooling, improper swallowing, drooping mouth, speech impediment, and food remaining of the face problems whereas the improper denture placement made it impossible for appellant to use the teeth.

Dr. Fish, the dentist who ultimately fitted appellant with a usable set of dentures, testified on appellant's behalf. He testified that an informed consent form should have been given to appellant prior to implant surgery so that appellant could have been made aware of the potential problems associated with implant surgery. He blamed Dr. Rosenberg for this oversight. Dr. Fish also testified that appellant's problems stemmed from the improper placement of the implants, but he added that Dr. Newman compounded the problem by placing substandard and inferior dentures on top of the implants. He qualified Dr. Newman's liability, however, by stating that Dr. Newman had an impossible task of attempting to fabricate dentures on improper implants. Dr. Fish's contention was that appellant was never a good candidate for implants. Dr. Fish also pointed out that appellant's swallowing, spitting, drooling, etc., problems stemmed directly from Dr. Rosenberg's negligence. However, on cross-examination, he did state that Dr. Newman deviated from the standard of care in his treatment of appellant and therefore his dentistry was incompetent.

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10 cases
  • Blasland, Bouck & Lee, Inc. v. City of North Miami, 00-14975.
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • March 1, 2002
    ...See Fla. Corvette Calipers, Inc. v. Cincinnati Milacron Mktg. Co., 670 So.2d 1203, 1203 (Fla. 4th DCA 1996); Gordon v. Rosenberg, 654 So.2d 643, 645 (Fla. 4th DCA 1995). Finally, in cases in which a set off of the recovery in prior litigation is in order, the entire amount of the prior reco......
  • Wakjer v. Bozeman
    • United States
    • U.S. District Court — Northern District of Florida
    • February 11, 2003
    ...1st DCA 1964), overruled on other grounds, Devlin v. McMannis, 231 So.2d 194 (Fla. 1970); see also Gordon v. Marvin M. Rosenberg, D.D.S., P.A., 654 So.2d 643, 645 (Fla. 4th DCA 1995) (holding that settlement with one defendant could not be setoff from verdict against second defendant where ......
  • Philip Morris USA Inc. v. Gore
    • United States
    • Florida District Court of Appeals
    • August 10, 2022
    ...or overlapping compensation for identical damages.’ " Cornerstone SMR , 163 So. 3d at 569 (quoting Gordon v. Marvin M. Rosenberg, D.D.S., P.A. , 654 So. 2d 643, 644 (Fla. 4th DCA 1995) ). Section 46.015 provides in relevant part:(1) A written covenant not to sue or release of a person who i......
  • Philip Morris U.S. Inc. v. Gore
    • United States
    • Florida District Court of Appeals
    • April 13, 2022
    ... ... Gordon v. Marvin M. Rosenberg, D.D.S., P.A. , 654 ... So.2d ... ...
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