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Filing # 165656748 E-Filed 01/27/2023 05:35:00 PM
Miami | Fort Lauderdale | Palm Beach Marc J. Schleier
(305) 789-9237 direct
(305) 728-7537 fax
mschleier@fowler-white.com
January 27, 2023
VIA E-MAIL – SedaS@circuit19.org
The Honorable Elizabeth Metzger
19th Judicial Circuit
100 SE Ocean Boulevard
Stuart, Florida 34994
Re: Donna Long, as Person Representative of the Estate of Andrew Long, on Behalf
Martin Memorial Health Systems, Inc., et al.
Case No. 21‐000608‐CA‐AXMX
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of the Estate and Its Lawful Survivor, to-wit: Donna Long, Surviving Spouse, v.
Dear Judge Metzger:
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The undersigned represents Defendants Martin Memorial Health Systems, Inc. and Martin
Memorial Medical Center, Inc. (“Martin Memorial Defendants”) in the above-referenced matter.
Enclosed for Your Honor’s consideration is a copy of Martin Memorial Defendants’ Motion
to Bifurcate Trial, together with a proposed agreed order in Word format. Plaintiff’s counsel has
agreed to the language in the order and to having the order entered as an agreed order. If the
enclosed Agreed Order meets with Your Honor’s approval, we respectfully request that it be
entered and served.
Thank you for your attention to this matter. Please let us know if you should need any
additional information.
Respectfully submitted,
FOWLER WHITE BURNETT, P.A.
Marc J. Schleier
Enclosures
cc: Rosalyn Sia Baker-Barnes, Esq. (via e-mail with enclosures)
Yasmeen A. Lewis, Esq. (via e-mail with enclosures)
Northbridge
FOWLER WHITE BCentre
URNETT| P.A.
515 •North Flagler
BRICKELL ARCHDrive, Suite
, 1395 2100 |AWest
BRICKELL VENUEPalm
, 14THBeach,
FLOOR, FL 33401
MIAMI | www.fowler-white.com
, FLORIDA 33131 • (305) 789-9200
Filing # 163750046 E-Filed 12/28/2022 12:51:19 PM
IN THE CIRCUIT COURT FOR THE
NINETEENTH JUDICIAL CIRCUIT, IN
AND FOR MARTIN COUNTY, FLORIDA
CASE NO. 21-000608-CA-AXMX
DONNA LONG, AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF
ANDREW LONG, ON BEHALF OF THE
ESTATE AND ITS LAWFUL SURVIVOR,
TO-WIT: DONA LONG, SURVIVING
SPOUSE,
v.
Plaintiff,
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MARTIN MEMORIAL HEALTH SYSTEMS,
INC. d/b/a CLEVELAND CLINIC MARTIN
HEALTH and MARTIN MEMORIAL
MEDICAL CENTER, INC. d/b/a MARTIN C O
MEDICAL CENTER,
Defendants.
DEFENDANTS MARTIN MEMORIAL HEALTH SYSTEMS, INC.
AND MARTIN MEMORIAL MEDICAL CENTER, INC.’S
MOTION TO BIFURCATE TRIAL
Defendants, MARTIN MEMORIAL HEALTH SYSTEMS, INC. d/b/a CLEVELAND
CLINIC MARTIN HEALTH and MARTIN MEMORIAL MEDICAL CENTER, INC. d/b/a
MARTIN MEDICAL CENTER, by and through undersigned counsel and pursuant to Rule 1.270
of the Florida Rules of Civil Procedure, hereby move the Court to bifurcate for trial in this matter
Plaintiff’s claims for negligence/vicarious liability in Counts II-V of the Complaint from her
claims for violation of Section 766.110, Florida Statutes, in Counts VI and VII of the Complaint
and, in support thereof, state:
FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200
CASE NO. 21-000608-CA-AXMX
1. This is a medical malpractice action brought by Plaintiff, Donna Long, as Personal
Representative of the Estate of Andrew Long, against various defendants, including Martin
Memorial Health Systems and Martin Memorial Medical Center, arising out of medical care and
treatment provided in April 2019. According to the Complaint, cardiologist Kari Clark, D.O.,
negligently ordered and administered a beta blocker to Mr. Long contraindicated by the patient’s
history of bradycardia, without inserting a pacemaker, prior to discharge from Cleveland Clinic
Martin Health. Plaintiff alleges that, as a result of Dr. Clark’s negligence, Mr. Long’s bradycardia
severely worsened, he passed out and hit his head on the floor, suffered a subarachnoid hemorrhage
commencing February 20, 2023.
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and subdural hematoma, and ultimately passed away. This case is set for the Court’s trial docket
2.
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Plaintiff asserted a claim for medical negligence against Dr. Clark in Count VIII of
her Complaint and a claim for vicarious liability against Cardiology Associates of Stuart, P.A. for
the alleged negligence of Dr. Clark in Count I, but recently settled with both defendants.
3. The remaining claims are against Martin Memorial Health Systems and Martin
Memorial Medical Center. Plaintiff has asserted claims against the Martin Memorial Defendants
in Counts II, III, IV, and V for vicarious liability for the alleged negligence of Dr. Clark under
theories of actual agency and apparent agency. In addition, Plaintiff asserts claims against the
Martin Memorial Defendants under Section 766.110, Florida Statutes, which sets forth the
corporate negligence doctrine with respect to health care facilities, in Counts VI and VII,
respectfully.
4. On December 1, 2022, Martin Memorial Health Systems and Martin Memorial
Medical Center filed a Motion for Final Summary Judgment. The Martin Memorial Defendants
argued that they are not responsible for the conduct of Dr. Clark under an actual agency theory, as
the evidence in the record reflects that Dr. Clark was not employed by either Martin Memorial
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CASE NO. 21-000608-CA-AXMX
Health Systems or Martin Memorial Medical Center; neither Dr. Clark nor the Martin Memorial
entities believed, or acted as if, they had entered into an employer-employee relationship; and there
is no evidence that either Martin Memorial Defendant controlled or had the right to control the
manner in which Dr. Clark provided medical care or services at the hospital. The Martin Memorial
Defendants argued that they are not responsible for the conduct of Dr. Clark under an apparent
agency theory because Plaintiff presented no evidence that Martin Memorial Health Systems or
Martin Memorial Medical Center made any representation to Mr. Long that Dr. Clark was acting
as its agent or that Mr. Long relied upon (or changed his position in reliance upon) any purported
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representation in obtaining care. And the Martin Memorial Defendants argued that Plaintiff has
failed to establish that Martin Memorial Health Systems or Martin Memorial Medical Center
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violated any requirement contained in Section 766.110, Florida Statutes. The record contains no
evidence that the hospital failed to appropriately adopt written procedures for the selection of staff
members, periodically review the medical care and treatment rendered to patients by the members
of its medical staff, or adopt a comprehensive risk management program which fully complies
with the substantive requirements of Section 395.0197, Florida Statutes. Plaintiff has also
presented no evidence that Dr. Clark lacked sufficient credentials or was otherwise unfit or
incompetent. The hearing on the motion is presently set to take place on February 9, 2022.
5. In the event that this Court does not grant the foregoing motion, the Martin
Memorial Defendants request that the Court order separate trials for the following: (1) Plaintiff’s
claims for negligence/vicarious liability against Martin Memorial Health Systems and Martin
Memorial Medical Center in Counts II-V; and (2) if Dr. Clark is found to be negligent and Martin
Memorial Health Systems and Martin Memorial Medical Center are found not to be vicariously
liable for Dr. Clark’s negligence, Plaintiff’s claims for violation of Section 766.110, Florida
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CASE NO. 21-000608-CA-AXMX
Statutes, against Martin Memorial Health Systems and Martin Memorial Medical Center in Counts
VI and VII.
6. Rule 1.270 of the Florida Rules of Civil Procedure provides in relevant part that the
Court “in furtherance of convenience or to avoid prejudice may order a separate trial of any claim,
cross claim, or third-party claim, or of any separate issue or of any number of claims, crossclaims,
counterclaims, third-party claims, or issues.” Fla. R. Civ. P. 1.270(b). See also Microclimate Sales
Co., Inc. v. Doherty, 731 So. 2d 856, 858 (Fla. 5th DCA 1999) (separate trials on independent issues
are generally proper absent a specific threat of inconsistent verdicts or prejudice to a party);
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Hernandez v. Leiva, 391 So. 2d 292, 294 (Fla. 3d DCA 1980) (trial court did not abuse its discretion
in bifurcating the issues of liability and damages in action arising out of contract to sell a house).
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Florida law is well-settled that the decision to order separate trials of claims or issues is subject to
the sound discretion of the trial court. See Johansen v. Vuocolo, 125 So. 3d 197, 200 (Fla. 4th DCA
2013); Roseman v. Town Square Ass’n, 810 So. 2d 516, 521 (Fla. 4th DCA 2001).
7. The law in Florida is clear that, in determining whether one has committed a tort,
evidence regarding other “bad acts” is inadmissible. See §90.404(2)(a), Fla. Stat.; Jacobs v. Atl.
Coast Ref., 165 So. 3d 714, 717-18 (Fla. 4th DCA 2015) (holding that reference to, and evidence
of, a prior lawsuit between the defendant and her previous husband was not admissible in a civil
theft action; relying on Section 90.404(2)(a), the appellate court held that such evidence should
not have been admitted at trial because it was designed to speculate on the defendant’s character
and propensity to commit the particular act with which she now stood accused); Thigpen v. UPS,
990 So. 2d 639, 647 (Fla. 4th DCA 2008) (supervisor’s “misconduct had little or no probative value
in the jury’s assessment of the conduct of plaintiff’s supervisors in terminating plaintiff. Yet, the
danger of unfair prejudice from this testimony was substantial, because it allowed the jury to
consider not only the facts surrounding plaintiff’s discharge from employment, but also events at
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CASE NO. 21-000608-CA-AXMX
other times and places that were not shown to be connected to the conduct of plaintiff’s
supervisors.”); Midtown Enterprises, Inc. v. Local Contractors, Inc., 785 So. 2d 578, 580-81 (Fla.
3d DCA 2001) (holding that evidence of subcontractor’s “pattern of cheating” was not relevant to
show bad character or propensity); Smith v. Hooligan’s Pub & Oyster Bar, Ltd., 753 So. 2d 596,
600 (Fla. 3d DCA 2000) (requiring new trial where evidence of bar patron’s bad acts were
improperly admitted); Hernandez v. Miami Skyways Hotel P’ship, 564 So. 2d 574, 575 (Fla. 3d
DCA 1990) (in civil action, introduction of testimony regarding arrest in prior unrelated matter
was prejudicial and irrelevant, requiring a new trial); see also State v. Hubbard, 751 So. 2d 552,
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565 (Fla. 1999) (in DUI manslaughter conviction, the Court held that it was error to admit evidence
that the defendant’s driving privileges were suspended in the past, stating that “[t]he fact that
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Hubbard had his driving privileges suspended in the past clearly was of slight probative value,
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which was substantially outweighed by the danger of unfair prejudice”).
8. However, in a claim for negligent credentialing, hiring, or retention brought against
an entity, evidence of prior “bad acts” is routinely admitted at trial on the issue of whether the
entity was on notice that the tortfeasor was unfit for employment or lacked sufficient credentials.
While the Martin Memorial Defendants believe that no such evidence exists, they anticipate that,
if this case were to survive summary judgment, Plaintiff would seek to introduce evidence at trial
regarding Dr. Clark that is irrelevant to the jury’s decision on Plaintiff’s claims that Dr. Clark was
negligent in providing care and treatment to Mr. Long. Allowing Plaintiff to put that evidence
before the jury would prejudice the jury’s decision on such claims.
9. In order to avoid such prejudice, courts have routinely determined that tort claims
against a directly liable tortfeasor should be bifurcated from negligent credentialing, hiring, and
retention claims brought against his employer. For example, in Johansen, supra, the decedent’s
estate filed a claim for medical malpractice against the decedent’s surgeon Dr. Philip Vuocolo, as
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CASE NO. 21-000608-CA-AXMX
well as claims against the Heart and Family Institute of Port St. Lucie for vicarious liability for Dr.
Vuocolo’s malpractice and for the negligent hiring and retention of Dr. Vuocolo and Dr. Robert
Norton, a surgeon also employed by the Institute who assisted in the subject procedure. 125 So.
3d at 198. Concerned that Dr. Norton’s extensive malpractice history would have a prejudicial
effect on the jury, the defendants moved to bifurcate the medical malpractice claims from the
negligent hiring and retention claims. Id. at 199. The trial court agreed that Dr. Norton’s
malpractice history would prejudice a jury in the medical malpractice claim against Dr. Vuocolo
and ultimately ordered two separate trials – the estate’s claims based on the medical malpractice
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and negligent hiring of Dr. Vuocolo would be tried separately from the claims based on the medical
malpractice and negligent hiring of Dr. Norton. Id. On appeal, the Fourth District Court of Appeal,
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noting that the trial court was concerned about the possibility of prejudice to the defendants
resulting from evidence of Dr. Norton’s prior medical malpractice, held that “the trial court
properly exercised its discretion when it found that this evidence (relevant on the issue of whether
Dr. Norton was negligently hired and retained) could irreparably damage the jury’s ability to fairly
decide the issue of whether Dr. Vuocolo acted within the applicable standard of care in treating
Mr. Johansen.” Id. at 200. In support, the Fourth District cited several reported decisions from
other jurisdictions for the proposition that bifurcation of medical malpractice claims from related
negligent hiring claims is proper to avoid prejudice. Id.; see also Dickinson v. Gonzalez, 839 So.
2d 709, 713 (Fla. 3d DCA 2003) (stating that, if Trooper Gipson’s internal affairs file were properly
admitted into evidence, court should have bifurcated claims for false arrest and violation of civil
rights under 42 U.S.C. section 1983 against trooper from negligent retention or supervision against
the Department of Highway Safety and Motor Vehicles, because the internal affairs file was not
admissible against the trooper).
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FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200
CASE NO. 21-000608-CA-AXMX
10. As reflected in the above-referenced cases, the only way to eliminate the prejudice
resulting from the admission of prior “bad acts” evidence, and ensure a fair trial on the issue of
whether Dr. Clark negligently caused Mr. Long’s death, is for the Court to bifurcate the trial on the
negligence/vicarious liability claims against Martin Memorial Health Systems and Martin
Memorial Medical Center from the claims for violation of Section 766.110, Florida Statutes,
against the Martin Memorial Defendants. Phase one of the bifurcated trial would focus only on
whether Dr. Clark negligently caused Mr. Long’s death and whether the Martin Memorial
Defendants are vicariously liable for such negligence. If the jury were to find that Dr. Clark
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negligently caused Mr. Long’s death and that the Martin Memorial Defendants were not
vicariously liable for Dr. Clark’s negligence, the trial would proceed to phase two, in which the
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jury would decide whether the Martin Memorial Defendants violated Section 766.110, Florida
Statutes. If the jury were to find that Dr. Clark negligently caused Mr. Long’s death and that the
Martin Memorial Defendants were vicariously liable for Dr. Clark’s negligence, the case would be
over because, where a defendant is vicariously liable for an alleged tort, employer liability can
only be pursued on the basis of respondeat superior and not on the basis of direct negligence. See
Mallory v. O’Neil, 69 So. 2d 313, 315 (Fla. 1954); Delaurentos v. Peguero, 47 So. 3d 879, 882
(Fla. 3d DCA 2010); Clooney v. Geeting, 352 So. 2d 1216, 1220 (Fla. 2d DCA 1977).1 Of course,
if the jury finds that Dr. Clark did not negligently cause Mr. Long’s death, the case would be over
because “there is no cause of action unless the directly liable tortfeasor commits a tort.” Peltz v.
Tr. Hosp. Int’l, LLC, 242 So. 3d 518, 520 n.6 (Fla. 3d DCA 2018).
1
The rationale for this rule is that any negligence on the part of the employer would be
immaterial, in that it would not impose any additional liability. See Mallory, 69 So. 2d at 315;
Delaurentos, 47 So. 3d at 882; Clooney, 352 So. 2d at 1220.
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CASE NO. 21-000608-CA-AXMX
11. Separation of Plaintiff’s claims for negligence/vicarious liability and claims for
violation of Section 766.110, Florida Statutes, into different phases would also uphold the interests
of judicial economy. Judge David L. Tobin explained the advantages of separate trials for liability
and damage issues in his article, To B . . . or Not to B . . . “B . . .” Means Bifurcation, 74 Fla.
Bar. J. 14 (Nov. 2000). Judge Tobin disclosed that he routinely bifurcated liability and damages
in personal injury suits and listed the following benefits of doing so: (1) a shorter trial on liability
alone than on liability and damages, (2) potential conclusion of all issues if it is determined that
there is no liability on the part of the defendant, (3) certain conclusion of the issue of liability in
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any event, (4) no prejudice to the plaintiff to appeal a finding of no liability, (5) simplification of
the pre-trial and trial process for the litigants and the court, (6) a mechanism for parties to re-
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evaluate the case upon apportionment of liability among defendants, (7) judicial economy by
enabling the court to more efficiently move all cases through the judicial system, (8) faster
resolution for parties if liability issue is case determinative, and (9) a trial on the liability issue
alone is simpler in preparation, less costly, and easier to try. Id. at 16. Judge Tobin has also found
that bifurcated cases have a greater rate of settlement than those not bifurcated. Id. at 18. He
attributes this phenomenon, in part, to the savings of time and cost of trying the liability issues,
which allows for more leeway in the settlement process and to greater motivation on the part of
defendants to settle once liability has been determined in favor of the plaintiff in negligence cases.
Id. at 20.
12. While Judge Tobin’s article did not discuss the bifurcation of negligence/vicarious
liability claims from claims for a violation of Section 766.110, Florida Statutes, or for negligent
hiring/retention, the advantages of having separate trials set forth therein are equally applicable in
the case at bar. Separate trials will conserve judicial resources, will streamline the judicial process,
will reduce costs for the parties, and will not prejudice any party. If the jury finds that Dr. Clark
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CASE NO. 21-000608-CA-AXMX
did not negligently cause Mr. Long’s death or that the Martin Memorial Defendants are vicariously
liable for negligence on the part of Dr. Clark, the case will end and the parties will not have to
expend additional resources relating to the claims for violation of Section 766.110, Florida
Statutes. If Dr. Clark is found to have negligently caused Mr. Long’s death and the Martin
Memorial Defendants are found not to be vicariously liable, the parties can re-evaluate the case to
determine whether settlement is feasible. If a settlement cannot be reached, the parties would then
try the claims for a violation of Section 766.110, Florida Statutes. Notably, with the exception of
Dr. Clark, it does not appear that any witness would testify in both trials. Holding separate trials,
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each of which will be shorter and will require less preparation than a single trial on all issues, will
promote more efficient movement of this case through the judicial process, and will be more
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convenient for the litigants and the Court. As such, this Court should exercise its discretion to
bifurcate Plaintiff’s claims for negligence/vicarious liability from her claims for violation of
Section 766.110, Florida Statutes, “in furtherance of convenience.” See Zuniga v. Eisinger, 954
So. 2d 634, 637 (Fla. 3d DCA 2007) (finding that trial court did not abuse its discretion in granting
defendant’s request to bifurcate trial as to liability and damages in automobile negligence action
where issue of liability was hotly contested, trial would be much shorter if tried only on liability,
and that, following the trial on liability, the case was likely to resolve one way or the other).
WHEREFORE, Defendants, MARTIN MEMORIAL HEALTH SYSTEMS, INC. d/b/a
CLEVELAND CLINIC MARTIN HEALTH and MARTIN MEMORIAL MEDICAL CENTER,
INC. d/b/a MARTIN MEDICAL CENTER, respectfully request that the Court, in the interest of
avoidance of prejudice, convenience, and judicial economy, bifurcate the trial in this matter and
order a trial on Plaintiff’s claims for negligence/vicarious liability in Counts II-V of the Complaint
and thereafter, if necessary, a trial on Plaintiff’s claims for violation of Section 766.110, Florida
Statutes, in Counts VI and VII of the Complaint.
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FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200
CASE NO. 21-000608-CA-AXMX
I HEREBY CERTIFY that on this 28th day of December 2022, a true and correct copy of
the foregoing document was electronically filed with the Clerk of the Courts using the Florida
Courts E-Filing Portal and served on this day via transmission of Notices of Electronic Filing
generated by the Florida Courts E-Filing Portal to: Rosalyn Sia Baker-Barnes, Esq., Searcy
Denney, Counsel for Plaintiff, rsb@searcylaw.com, baker-barnesteam@searcylaw.com.
Respectfully submitted,
/s/ Marc J. Schleier
James D. DeChurch
Fla. Bar No. 0125679
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Email: jdechurch@fowler-white.com
George M. Koonce, III
Fla. Bar No. 519261
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Email: gkoonce@fowler-white.com
Marc J. Schleier
C Fla. Bar No. 0389064
Email: mschleier@fowler-white.com
FOWLER WHITE BURNETT, P.A.
Brickell Arch, Fourteenth Floor
1395 Brickell Avenue
Miami, Florida 33131
Telephone: (305) 789-9200
Facsimile: (305) 789-9201
10
FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200
Preview
Filing # 165656748 E-Filed 01/27/2023 05:35:00 PM Miami | Fort Lauderdale | Palm Beach Marc J. Schleier (305) 789-9237 direct (305) 728-7537 fax mschleier@fowler-white.com January 27, 2023 VIA E-MAIL – SedaS@circuit19.org The Honorable Elizabeth Metzger 19th Judicial Circuit 100 SE Ocean Boulevard Stuart, Florida 34994 Re: Donna Long, as Person Representative of the Estate of Andrew Long, on Behalf Martin Memorial Health Systems, Inc., et al. Case No. 21‐000608‐CA‐AXMX P Y of the Estate and Its Lawful Survivor, to-wit: Donna Long, Surviving Spouse, v. Dear Judge Metzger: C O The undersigned represents Defendants Martin Memorial Health Systems, Inc. and Martin Memorial Medical Center, Inc. (“Martin Memorial Defendants”) in the above-referenced matter. Enclosed for Your Honor’s consideration is a copy of Martin Memorial Defendants’ Motion to Bifurcate Trial, together with a proposed agreed order in Word format. Plaintiff’s counsel has agreed to the language in the order and to having the order entered as an agreed order. If the enclosed Agreed Order meets with Your Honor’s approval, we respectfully request that it be entered and served. Thank you for your attention to this matter. Please let us know if you should need any additional information. Respectfully submitted, FOWLER WHITE BURNETT, P.A. Marc J. Schleier Enclosures cc: Rosalyn Sia Baker-Barnes, Esq. (via e-mail with enclosures) Yasmeen A. Lewis, Esq. (via e-mail with enclosures) Northbridge FOWLER WHITE BCentre URNETT| P.A. 515 •North Flagler BRICKELL ARCHDrive, Suite , 1395 2100 |AWest BRICKELL VENUEPalm , 14THBeach, FLOOR, FL 33401 MIAMI | www.fowler-white.com , FLORIDA 33131 • (305) 789-9200 Filing # 163750046 E-Filed 12/28/2022 12:51:19 PM IN THE CIRCUIT COURT FOR THE NINETEENTH JUDICIAL CIRCUIT, IN AND FOR MARTIN COUNTY, FLORIDA CASE NO. 21-000608-CA-AXMX DONNA LONG, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ANDREW LONG, ON BEHALF OF THE ESTATE AND ITS LAWFUL SURVIVOR, TO-WIT: DONA LONG, SURVIVING SPOUSE, v. Plaintiff, P Y MARTIN MEMORIAL HEALTH SYSTEMS, INC. d/b/a CLEVELAND CLINIC MARTIN HEALTH and MARTIN MEMORIAL MEDICAL CENTER, INC. d/b/a MARTIN C O MEDICAL CENTER, Defendants. DEFENDANTS MARTIN MEMORIAL HEALTH SYSTEMS, INC. AND MARTIN MEMORIAL MEDICAL CENTER, INC.’S MOTION TO BIFURCATE TRIAL Defendants, MARTIN MEMORIAL HEALTH SYSTEMS, INC. d/b/a CLEVELAND CLINIC MARTIN HEALTH and MARTIN MEMORIAL MEDICAL CENTER, INC. d/b/a MARTIN MEDICAL CENTER, by and through undersigned counsel and pursuant to Rule 1.270 of the Florida Rules of Civil Procedure, hereby move the Court to bifurcate for trial in this matter Plaintiff’s claims for negligence/vicarious liability in Counts II-V of the Complaint from her claims for violation of Section 766.110, Florida Statutes, in Counts VI and VII of the Complaint and, in support thereof, state: FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200 CASE NO. 21-000608-CA-AXMX 1. This is a medical malpractice action brought by Plaintiff, Donna Long, as Personal Representative of the Estate of Andrew Long, against various defendants, including Martin Memorial Health Systems and Martin Memorial Medical Center, arising out of medical care and treatment provided in April 2019. According to the Complaint, cardiologist Kari Clark, D.O., negligently ordered and administered a beta blocker to Mr. Long contraindicated by the patient’s history of bradycardia, without inserting a pacemaker, prior to discharge from Cleveland Clinic Martin Health. Plaintiff alleges that, as a result of Dr. Clark’s negligence, Mr. Long’s bradycardia severely worsened, he passed out and hit his head on the floor, suffered a subarachnoid hemorrhage commencing February 20, 2023. P Y and subdural hematoma, and ultimately passed away. This case is set for the Court’s trial docket 2. C O Plaintiff asserted a claim for medical negligence against Dr. Clark in Count VIII of her Complaint and a claim for vicarious liability against Cardiology Associates of Stuart, P.A. for the alleged negligence of Dr. Clark in Count I, but recently settled with both defendants. 3. The remaining claims are against Martin Memorial Health Systems and Martin Memorial Medical Center. Plaintiff has asserted claims against the Martin Memorial Defendants in Counts II, III, IV, and V for vicarious liability for the alleged negligence of Dr. Clark under theories of actual agency and apparent agency. In addition, Plaintiff asserts claims against the Martin Memorial Defendants under Section 766.110, Florida Statutes, which sets forth the corporate negligence doctrine with respect to health care facilities, in Counts VI and VII, respectfully. 4. On December 1, 2022, Martin Memorial Health Systems and Martin Memorial Medical Center filed a Motion for Final Summary Judgment. The Martin Memorial Defendants argued that they are not responsible for the conduct of Dr. Clark under an actual agency theory, as the evidence in the record reflects that Dr. Clark was not employed by either Martin Memorial 2 FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200 CASE NO. 21-000608-CA-AXMX Health Systems or Martin Memorial Medical Center; neither Dr. Clark nor the Martin Memorial entities believed, or acted as if, they had entered into an employer-employee relationship; and there is no evidence that either Martin Memorial Defendant controlled or had the right to control the manner in which Dr. Clark provided medical care or services at the hospital. The Martin Memorial Defendants argued that they are not responsible for the conduct of Dr. Clark under an apparent agency theory because Plaintiff presented no evidence that Martin Memorial Health Systems or Martin Memorial Medical Center made any representation to Mr. Long that Dr. Clark was acting as its agent or that Mr. Long relied upon (or changed his position in reliance upon) any purported P Y representation in obtaining care. And the Martin Memorial Defendants argued that Plaintiff has failed to establish that Martin Memorial Health Systems or Martin Memorial Medical Center C O violated any requirement contained in Section 766.110, Florida Statutes. The record contains no evidence that the hospital failed to appropriately adopt written procedures for the selection of staff members, periodically review the medical care and treatment rendered to patients by the members of its medical staff, or adopt a comprehensive risk management program which fully complies with the substantive requirements of Section 395.0197, Florida Statutes. Plaintiff has also presented no evidence that Dr. Clark lacked sufficient credentials or was otherwise unfit or incompetent. The hearing on the motion is presently set to take place on February 9, 2022. 5. In the event that this Court does not grant the foregoing motion, the Martin Memorial Defendants request that the Court order separate trials for the following: (1) Plaintiff’s claims for negligence/vicarious liability against Martin Memorial Health Systems and Martin Memorial Medical Center in Counts II-V; and (2) if Dr. Clark is found to be negligent and Martin Memorial Health Systems and Martin Memorial Medical Center are found not to be vicariously liable for Dr. Clark’s negligence, Plaintiff’s claims for violation of Section 766.110, Florida 3 FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200 CASE NO. 21-000608-CA-AXMX Statutes, against Martin Memorial Health Systems and Martin Memorial Medical Center in Counts VI and VII. 6. Rule 1.270 of the Florida Rules of Civil Procedure provides in relevant part that the Court “in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross claim, or third-party claim, or of any separate issue or of any number of claims, crossclaims, counterclaims, third-party claims, or issues.” Fla. R. Civ. P. 1.270(b). See also Microclimate Sales Co., Inc. v. Doherty, 731 So. 2d 856, 858 (Fla. 5th DCA 1999) (separate trials on independent issues are generally proper absent a specific threat of inconsistent verdicts or prejudice to a party); P Y Hernandez v. Leiva, 391 So. 2d 292, 294 (Fla. 3d DCA 1980) (trial court did not abuse its discretion in bifurcating the issues of liability and damages in action arising out of contract to sell a house). C O Florida law is well-settled that the decision to order separate trials of claims or issues is subject to the sound discretion of the trial court. See Johansen v. Vuocolo, 125 So. 3d 197, 200 (Fla. 4th DCA 2013); Roseman v. Town Square Ass’n, 810 So. 2d 516, 521 (Fla. 4th DCA 2001). 7. The law in Florida is clear that, in determining whether one has committed a tort, evidence regarding other “bad acts” is inadmissible. See §90.404(2)(a), Fla. Stat.; Jacobs v. Atl. Coast Ref., 165 So. 3d 714, 717-18 (Fla. 4th DCA 2015) (holding that reference to, and evidence of, a prior lawsuit between the defendant and her previous husband was not admissible in a civil theft action; relying on Section 90.404(2)(a), the appellate court held that such evidence should not have been admitted at trial because it was designed to speculate on the defendant’s character and propensity to commit the particular act with which she now stood accused); Thigpen v. UPS, 990 So. 2d 639, 647 (Fla. 4th DCA 2008) (supervisor’s “misconduct had little or no probative value in the jury’s assessment of the conduct of plaintiff’s supervisors in terminating plaintiff. Yet, the danger of unfair prejudice from this testimony was substantial, because it allowed the jury to consider not only the facts surrounding plaintiff’s discharge from employment, but also events at 4 FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200 CASE NO. 21-000608-CA-AXMX other times and places that were not shown to be connected to the conduct of plaintiff’s supervisors.”); Midtown Enterprises, Inc. v. Local Contractors, Inc., 785 So. 2d 578, 580-81 (Fla. 3d DCA 2001) (holding that evidence of subcontractor’s “pattern of cheating” was not relevant to show bad character or propensity); Smith v. Hooligan’s Pub & Oyster Bar, Ltd., 753 So. 2d 596, 600 (Fla. 3d DCA 2000) (requiring new trial where evidence of bar patron’s bad acts were improperly admitted); Hernandez v. Miami Skyways Hotel P’ship, 564 So. 2d 574, 575 (Fla. 3d DCA 1990) (in civil action, introduction of testimony regarding arrest in prior unrelated matter was prejudicial and irrelevant, requiring a new trial); see also State v. Hubbard, 751 So. 2d 552, P Y 565 (Fla. 1999) (in DUI manslaughter conviction, the Court held that it was error to admit evidence that the defendant’s driving privileges were suspended in the past, stating that “[t]he fact that O Hubbard had his driving privileges suspended in the past clearly was of slight probative value, C which was substantially outweighed by the danger of unfair prejudice”). 8. However, in a claim for negligent credentialing, hiring, or retention brought against an entity, evidence of prior “bad acts” is routinely admitted at trial on the issue of whether the entity was on notice that the tortfeasor was unfit for employment or lacked sufficient credentials. While the Martin Memorial Defendants believe that no such evidence exists, they anticipate that, if this case were to survive summary judgment, Plaintiff would seek to introduce evidence at trial regarding Dr. Clark that is irrelevant to the jury’s decision on Plaintiff’s claims that Dr. Clark was negligent in providing care and treatment to Mr. Long. Allowing Plaintiff to put that evidence before the jury would prejudice the jury’s decision on such claims. 9. In order to avoid such prejudice, courts have routinely determined that tort claims against a directly liable tortfeasor should be bifurcated from negligent credentialing, hiring, and retention claims brought against his employer. For example, in Johansen, supra, the decedent’s estate filed a claim for medical malpractice against the decedent’s surgeon Dr. Philip Vuocolo, as 5 FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200 CASE NO. 21-000608-CA-AXMX well as claims against the Heart and Family Institute of Port St. Lucie for vicarious liability for Dr. Vuocolo’s malpractice and for the negligent hiring and retention of Dr. Vuocolo and Dr. Robert Norton, a surgeon also employed by the Institute who assisted in the subject procedure. 125 So. 3d at 198. Concerned that Dr. Norton’s extensive malpractice history would have a prejudicial effect on the jury, the defendants moved to bifurcate the medical malpractice claims from the negligent hiring and retention claims. Id. at 199. The trial court agreed that Dr. Norton’s malpractice history would prejudice a jury in the medical malpractice claim against Dr. Vuocolo and ultimately ordered two separate trials – the estate’s claims based on the medical malpractice P Y and negligent hiring of Dr. Vuocolo would be tried separately from the claims based on the medical malpractice and negligent hiring of Dr. Norton. Id. On appeal, the Fourth District Court of Appeal, C O noting that the trial court was concerned about the possibility of prejudice to the defendants resulting from evidence of Dr. Norton’s prior medical malpractice, held that “the trial court properly exercised its discretion when it found that this evidence (relevant on the issue of whether Dr. Norton was negligently hired and retained) could irreparably damage the jury’s ability to fairly decide the issue of whether Dr. Vuocolo acted within the applicable standard of care in treating Mr. Johansen.” Id. at 200. In support, the Fourth District cited several reported decisions from other jurisdictions for the proposition that bifurcation of medical malpractice claims from related negligent hiring claims is proper to avoid prejudice. Id.; see also Dickinson v. Gonzalez, 839 So. 2d 709, 713 (Fla. 3d DCA 2003) (stating that, if Trooper Gipson’s internal affairs file were properly admitted into evidence, court should have bifurcated claims for false arrest and violation of civil rights under 42 U.S.C. section 1983 against trooper from negligent retention or supervision against the Department of Highway Safety and Motor Vehicles, because the internal affairs file was not admissible against the trooper). 6 FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200 CASE NO. 21-000608-CA-AXMX 10. As reflected in the above-referenced cases, the only way to eliminate the prejudice resulting from the admission of prior “bad acts” evidence, and ensure a fair trial on the issue of whether Dr. Clark negligently caused Mr. Long’s death, is for the Court to bifurcate the trial on the negligence/vicarious liability claims against Martin Memorial Health Systems and Martin Memorial Medical Center from the claims for violation of Section 766.110, Florida Statutes, against the Martin Memorial Defendants. Phase one of the bifurcated trial would focus only on whether Dr. Clark negligently caused Mr. Long’s death and whether the Martin Memorial Defendants are vicariously liable for such negligence. If the jury were to find that Dr. Clark P Y negligently caused Mr. Long’s death and that the Martin Memorial Defendants were not vicariously liable for Dr. Clark’s negligence, the trial would proceed to phase two, in which the C O jury would decide whether the Martin Memorial Defendants violated Section 766.110, Florida Statutes. If the jury were to find that Dr. Clark negligently caused Mr. Long’s death and that the Martin Memorial Defendants were vicariously liable for Dr. Clark’s negligence, the case would be over because, where a defendant is vicariously liable for an alleged tort, employer liability can only be pursued on the basis of respondeat superior and not on the basis of direct negligence. See Mallory v. O’Neil, 69 So. 2d 313, 315 (Fla. 1954); Delaurentos v. Peguero, 47 So. 3d 879, 882 (Fla. 3d DCA 2010); Clooney v. Geeting, 352 So. 2d 1216, 1220 (Fla. 2d DCA 1977).1 Of course, if the jury finds that Dr. Clark did not negligently cause Mr. Long’s death, the case would be over because “there is no cause of action unless the directly liable tortfeasor commits a tort.” Peltz v. Tr. Hosp. Int’l, LLC, 242 So. 3d 518, 520 n.6 (Fla. 3d DCA 2018). 1 The rationale for this rule is that any negligence on the part of the employer would be immaterial, in that it would not impose any additional liability. See Mallory, 69 So. 2d at 315; Delaurentos, 47 So. 3d at 882; Clooney, 352 So. 2d at 1220. 7 FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200 CASE NO. 21-000608-CA-AXMX 11. Separation of Plaintiff’s claims for negligence/vicarious liability and claims for violation of Section 766.110, Florida Statutes, into different phases would also uphold the interests of judicial economy. Judge David L. Tobin explained the advantages of separate trials for liability and damage issues in his article, To B . . . or Not to B . . . “B . . .” Means Bifurcation, 74 Fla. Bar. J. 14 (Nov. 2000). Judge Tobin disclosed that he routinely bifurcated liability and damages in personal injury suits and listed the following benefits of doing so: (1) a shorter trial on liability alone than on liability and damages, (2) potential conclusion of all issues if it is determined that there is no liability on the part of the defendant, (3) certain conclusion of the issue of liability in P Y any event, (4) no prejudice to the plaintiff to appeal a finding of no liability, (5) simplification of the pre-trial and trial process for the litigants and the court, (6) a mechanism for parties to re- C O evaluate the case upon apportionment of liability among defendants, (7) judicial economy by enabling the court to more efficiently move all cases through the judicial system, (8) faster resolution for parties if liability issue is case determinative, and (9) a trial on the liability issue alone is simpler in preparation, less costly, and easier to try. Id. at 16. Judge Tobin has also found that bifurcated cases have a greater rate of settlement than those not bifurcated. Id. at 18. He attributes this phenomenon, in part, to the savings of time and cost of trying the liability issues, which allows for more leeway in the settlement process and to greater motivation on the part of defendants to settle once liability has been determined in favor of the plaintiff in negligence cases. Id. at 20. 12. While Judge Tobin’s article did not discuss the bifurcation of negligence/vicarious liability claims from claims for a violation of Section 766.110, Florida Statutes, or for negligent hiring/retention, the advantages of having separate trials set forth therein are equally applicable in the case at bar. Separate trials will conserve judicial resources, will streamline the judicial process, will reduce costs for the parties, and will not prejudice any party. If the jury finds that Dr. Clark 8 FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200 CASE NO. 21-000608-CA-AXMX did not negligently cause Mr. Long’s death or that the Martin Memorial Defendants are vicariously liable for negligence on the part of Dr. Clark, the case will end and the parties will not have to expend additional resources relating to the claims for violation of Section 766.110, Florida Statutes. If Dr. Clark is found to have negligently caused Mr. Long’s death and the Martin Memorial Defendants are found not to be vicariously liable, the parties can re-evaluate the case to determine whether settlement is feasible. If a settlement cannot be reached, the parties would then try the claims for a violation of Section 766.110, Florida Statutes. Notably, with the exception of Dr. Clark, it does not appear that any witness would testify in both trials. Holding separate trials, P Y each of which will be shorter and will require less preparation than a single trial on all issues, will promote more efficient movement of this case through the judicial process, and will be more C O convenient for the litigants and the Court. As such, this Court should exercise its discretion to bifurcate Plaintiff’s claims for negligence/vicarious liability from her claims for violation of Section 766.110, Florida Statutes, “in furtherance of convenience.” See Zuniga v. Eisinger, 954 So. 2d 634, 637 (Fla. 3d DCA 2007) (finding that trial court did not abuse its discretion in granting defendant’s request to bifurcate trial as to liability and damages in automobile negligence action where issue of liability was hotly contested, trial would be much shorter if tried only on liability, and that, following the trial on liability, the case was likely to resolve one way or the other). WHEREFORE, Defendants, MARTIN MEMORIAL HEALTH SYSTEMS, INC. d/b/a CLEVELAND CLINIC MARTIN HEALTH and MARTIN MEMORIAL MEDICAL CENTER, INC. d/b/a MARTIN MEDICAL CENTER, respectfully request that the Court, in the interest of avoidance of prejudice, convenience, and judicial economy, bifurcate the trial in this matter and order a trial on Plaintiff’s claims for negligence/vicarious liability in Counts II-V of the Complaint and thereafter, if necessary, a trial on Plaintiff’s claims for violation of Section 766.110, Florida Statutes, in Counts VI and VII of the Complaint. 9 FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200 CASE NO. 21-000608-CA-AXMX I HEREBY CERTIFY that on this 28th day of December 2022, a true and correct copy of the foregoing document was electronically filed with the Clerk of the Courts using the Florida Courts E-Filing Portal and served on this day via transmission of Notices of Electronic Filing generated by the Florida Courts E-Filing Portal to: Rosalyn Sia Baker-Barnes, Esq., Searcy Denney, Counsel for Plaintiff, rsb@searcylaw.com, baker-barnesteam@searcylaw.com. Respectfully submitted, /s/ Marc J. Schleier James D. DeChurch Fla. Bar No. 0125679 P Y Email: jdechurch@fowler-white.com George M. Koonce, III Fla. Bar No. 519261 O Email: gkoonce@fowler-white.com Marc J. Schleier C Fla. Bar No. 0389064 Email: mschleier@fowler-white.com FOWLER WHITE BURNETT, P.A. Brickell Arch, Fourteenth Floor 1395 Brickell Avenue Miami, Florida 33131 Telephone: (305) 789-9200 Facsimile: (305) 789-9201 10 FOWLER WHITE BURNETT P.A. • BRICKELL ARCH, 1395 BRICKELL AVENUE, 14TH FLOOR, MIAMI, FLORIDA 33131 • (305) 789-9200