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Filing # 103088790 E-Filed 02/11/2020 09:30:05 AM
IN THE CIRCUIT COURT OF THE COURT OF THE 17TH
JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FL.
CIVIL DIVISION
CASE NO. CACE18-001878
JESUS CABRERA, M.D.
as Personal Representative
of the Estate of
RAMON CABRERA,
Deceased,
vs.
JACK MICHEL, M.D.,
REHABILITATION CENTER
AT HOLLYWOOD HILLS. LLC.,
HOLLYWOOD PROPERTY
INVESTMENTS, LLC. and
LARKIN COMMINITY HOSPITAL
INC. d/b/a LARKIN COMMUNITY
HOSPITAL
/
DEFENDANT, JACK MICHEL, M.D.’S
ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S SECOND AMENDED
COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL
Comes Now the Defendant, JACK MICHEL M.D. (hereinafter “MICHEL”), through the
undersigned Counsel, and files this Answer and Affirmative Defenses to Plaintiff's Second
Amended Complaint for Damages and Demand for Jury Trial dated January 22, 2020, and states
as follows:
1. As to the allegations in Paragraph 1, such allegations are jurisdictional in nature
and hence no response is required. However, MICHEL denies that the Plaintiff is entitled to any
relief and demands strict proof thereof.
2. Admitted.
Page 1 of 8
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 02/11/2020 09:30:05 AM.****CASE NO. CACE18-001878
3. Admitted to the extent that RAMON CABRERA was over the age of sixty, infirm
from aging and needed assistance with his care and activities of daily living.
4. As to the allegations in Paragraph 4, MICHEL is without knowledge and therefore
denies the same and demands strict proof thereof.
5. Admitted to the extent that REHABILATION CENTER AT HOLLYWOOD
HILLS, LLC. is a Florida limited liability company and was licensed and authorized to do business
as a nursing home in Broward County.
6. The allegations in paragraph 6 are admitted.
7. Admitted to the extent that REHABILATION CENTER AT HOLLYWOOD
HILLS, LLC. is required to comply with the applicable standards of care.
8. Denied.
9. Denied.
10. Denied.
11. Denied.
12. Admitted.
13. Denied.
14. Denied.
15. Denied.
16. Denied.
17. Denied.
18. Denied
19. Denied.
20. Denied.
Page 2 of 8CASE NO. CACE18-001878
21. Denied.
CARE FAILURES
22. Denied.
23. Denied.
COUNT I
CHAPTER §400 CLAIM AGAINST DEFENDANT,
JACK MICHEL, M.D.
As to the unnumbered paragraph set forth in Count I, this Defendant re-alleges and
reaffirms each and every answer contained in paragraphs one (1) through twenty-one (21) as if
fully stated herein.
24. As to the allegations contained in paragraph 24, including all subparts (a-d), the
allegations are denied.
25. Denied.
26. Denied.
27. Denied.
28. As to the allegations contained in paragraph 28, including all subparts (a-q), the
allegations are denied.
29. Denied.
30. As to the allegations in Paragraph 30 including subparts (a-e), MICHEL is without
knowledge and therefore denies the same and demands strict proof thereof.
31. Admitted to the extent that the alleged damages are recoverable by law.
32. Admitted to the extent that the alleged damages are recoverable by law.
33. Admitted to the extent that the alleged damages are recoverable by law.
Page 3 of 8CASE NO. CACE18-001878
34. As to the allegations contained in paragraph 34, including all subparts (a-b), the
allegations are admitted to the extent that the alleged damages are recoverable by law.
COUNTIT
CHAPTER §400 CLAIM AGAINST DEFENDANT.
REHABILITATION CENTER AT HOLLYWOOD HILLS, LLC
As to the unnumbered paragraph set forth in Count II, this Defendant re-alleges and
reaffirms each and every answer contained in paragraphs one (1) through twenty-one (21) as if
fully stated herein.
35-45. As to the remaining allegations set forth in Count II, these paragraphs and
subparagraphs are not directed to MICHEL, and as such MICHEL is without sufficient knowledge
to admit or deny the allegations.
COUNT II
CHAPTER §400 CLAIM AGAINST DEFENDANT
LARKIN COMMUNITY HOSPITAL, INC.
d/b/a LARKIN COMMUNITY HOSPITAL
As to the unnumbered paragraph set forth in Count II, this Defendant re-alleges and
reaffirms each and every answer contained in paragraphs one (1) through twenty-one (21) as if
fully stated herein.
46-56. As to the remaining allegations set forth in Count III, MICHEL states that such
paragraphs and subparagraphs are not directed to MICHEL, and as such MICHEL is without
sufficient knowledge to admit or deny the allegations.
GENERAL DENIAL
As to any allegation not specifically responded to above, MICHEL denies same and
demands strict proof thereof.
Page 4 of 8CASE NO. CACE18-001878
AFFIRMATIVE DEFENSES
1. Defendant, MICHEL denies that he violated F.S. Chapter 400 and that it was the
legal cause of the loss, injuries or damages alleged by Plaintiff herein.
2. Defendant, MICHEL alleges that the loss, injuries and damages complained of were
caused by the sole negligence of the Plaintiff and/or resident, thereby barring the Plaintiff from
any recovery herein.
3. Defendant, MICHEL alleges that, at the time of the subject incident, the Plaintiff
was negligent, and such negligence on his part was a competent producing cause of the loss,
injuries and damages which are claimed; and that the Plaintiff's award, if any, should be
proportionately reduced based on the doctrine of comparative negligence in relation to the
Plaintiff's own contribution to the loss, injuries and damages sustained.
4. Any loss, injuries and damages alleged by Plaintiff was the result of preexisting
medical and/or psychiatric conditions and the unforeseeable, unpredictable and/or unavoidable
sequela thereto, and are unrelated to any act or omission of MICHEL.
5. Defendant, MICHEL alleges that the Plaintiff has failed to mitigate his damages
and, accordingly, the recovery of Plaintiff, if any, should be reduced by the amount by which the
Plaintiff could have lessened his claimed loss, injuries and damages.
6. Defendant, MICHEL alleges that RCHH acted within the accepted and prevailing
standard of care as stated in §400.023, Florida Statutes, such that Plaintiff's claim is barred.
7. The cause of action is barred by the applicable statute of limitations.
8. Defendant, MICHEL states that judgment shall only be entered based on each
party’s percentage of fault, not based on joint and several liability, pursuant to section 768.81,
Florida Statutes.
Page 5 of 8CASE NO. CACE18-001878
9. Defendant, MICHEL is entitled to credit and/or setoff for any and all collateral
sources or other sources of setoff, including settlement funds received from any entity in the past
and in the future as it relates to the alleged loss, injuries and damages; therefore, the Plaintiff's
claim is limited and/or reduced by said credits and/or setoffs.
10. The Defendant, MICHEL affirmatively asserts that Plaintiff's alleged damages, if
any, resulted from new and independent, unforeseeable, superseding, and/or intervening causes
unrelated to any conduct of this Defendant, MICHEL.
11. | The Defendant, MICHEL affirmatively asserts that all or a part of any alleged
damages herein were partially or totally caused by others who the Defendant had no dominion or
control, and therefore, the Defendant is entitled to the defenses and privileges set forth under
Section §768.81(3), Florida Statutes, with respect to apportionment of fault principles. If the
Plaintiff meets the burden of proof against this party or other non-parties and the Defendant,
MICHEL, then the Defendant, MICHEL, intends to avail themselves of the then controlling law
conceming apportionment of damages. Specifically, the Defendant, MICHEL relies upon the
allegations and the proof to be presented by the Plaintiff as to other parties or non-parties as the
basis for this defense.
12. Defendant, MICHEL denies he is guilty of any negligence in this cause, but alleges
that even if Defendant were found to be negligent, the chain of causation was severed by the
unforeseeable actions of the plaintiff or some third party or parties not under the direction or
control of the Defendant, including persons not yet known to the Defendant; said actions were an
independent, efficient, intervening and/or superseding cause of the alleged incidents and any loss,
injuries and damages allegedly resulting therefrom and, accordingly, any negligence by Defendant
was not the proximate cause of the subject incidents and any loss, injuries and damages resulting
Page 6 of 8CASE NO. CACE18-001878
therefrom. Defendant reserves the right to amend this affirmative defense to more specifically
identify the above-mentioned third party or parties prior to the trial of this matter, pursuant to Nash
v. Wells Fargo Guard Services, Inc., 678 So.2d 1262 (Fla. 1996).
13. The Defendant, MICHEL affirmatively asserts that the Plaintiff has failed to
comply with the conditions precedent under Florida Statutes §440.023(3) to name MICHEL as a
defendant and, therefore, has failed to state a cause of action against MICHEL.
14. Defendant, MICHEL is entitled to the limitations on liability and protections set
forth in Florida Statutes §605.0304.
15. | The Defendant, MICHEL affirmatively asserts that Plaintiff has failed to plead the
necessary factual allegations to state a viable cause of action against MICHEL as a manager and/or
management company.
16. | The Defendant, MICHEL affirmatively asserts that MICHEL is not manager, as
defined by Florida statute, so as to subject MICHEL to any liability under Chapter 400, Florida
Statutes.
17. Defendant, MICHEL specifically reserves the right to add affirmative defenses as
they present themselves during discovery.
DEMAND FOR JURY TRIAL
Defendant, MICHEL demands trial by jury on all issues so triable.
WHEREFORE, the Defendant, MICHEL states that the Plaintiffs are not entitled to any
relief whatsoever and requests this Honorable Court to enter judgment in favor of MICHEL and
against Plaintiff, together with taxable fees and costs, and to award any additional relief it deems
right and proper to Defendant, MICHEL.
Page 7 of 8CASE NO. CACE18-001878
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to
William A. Dean, B.C.S., Esq. Ford, Dean & Rotundo, P.A., bill@forddean.com;
brandy@forddean.com; service@forddean.com; 3323 NE 163RD Street, Suite 605, North Miami
Beach, FL 33160 on February 11, 2020.
Respectfully submitted,
s/ Julie W. Allison
Julie W. Allison, Esquire
Florida Bar No.: 678872
JULIE W. ALLISON, P.A.
4601 Sheridan Street, Suite 213
Hollywood, FL 33021
P: 305 428-3093
Fax: 305-397-2211
julie@allisonlaw.net;
para@allisonlaw.net
Attorneys for Defendants
/s/ Kirsten K. Ullman
Kirsten K. Ullman
Florida Bar 857210
ULLMAN BURSA LAW
3812 Coconut Palm Drive, Suite 200
Tampa, Florida 33619 813/970-0500
kullman@ublawoffices.com;
ssamhoury@ublawoffices.com 7
courtmail@ublawoffices.com
Co-Counsel for Defendants
Page 8 of 8
Preview
Filing # 103088790 E-Filed 02/11/2020 09:30:05 AM IN THE CIRCUIT COURT OF THE COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FL. CIVIL DIVISION CASE NO. CACE18-001878 JESUS CABRERA, M.D. as Personal Representative of the Estate of RAMON CABRERA, Deceased, vs. JACK MICHEL, M.D., REHABILITATION CENTER AT HOLLYWOOD HILLS. LLC., HOLLYWOOD PROPERTY INVESTMENTS, LLC. and LARKIN COMMINITY HOSPITAL INC. d/b/a LARKIN COMMUNITY HOSPITAL / DEFENDANT, JACK MICHEL, M.D.’S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S SECOND AMENDED COMPLAINT FOR DAMAGES AND DEMAND FOR JURY TRIAL Comes Now the Defendant, JACK MICHEL M.D. (hereinafter “MICHEL”), through the undersigned Counsel, and files this Answer and Affirmative Defenses to Plaintiff's Second Amended Complaint for Damages and Demand for Jury Trial dated January 22, 2020, and states as follows: 1. As to the allegations in Paragraph 1, such allegations are jurisdictional in nature and hence no response is required. However, MICHEL denies that the Plaintiff is entitled to any relief and demands strict proof thereof. 2. Admitted. Page 1 of 8 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 02/11/2020 09:30:05 AM.****CASE NO. CACE18-001878 3. Admitted to the extent that RAMON CABRERA was over the age of sixty, infirm from aging and needed assistance with his care and activities of daily living. 4. As to the allegations in Paragraph 4, MICHEL is without knowledge and therefore denies the same and demands strict proof thereof. 5. Admitted to the extent that REHABILATION CENTER AT HOLLYWOOD HILLS, LLC. is a Florida limited liability company and was licensed and authorized to do business as a nursing home in Broward County. 6. The allegations in paragraph 6 are admitted. 7. Admitted to the extent that REHABILATION CENTER AT HOLLYWOOD HILLS, LLC. is required to comply with the applicable standards of care. 8. Denied. 9. Denied. 10. Denied. 11. Denied. 12. Admitted. 13. Denied. 14. Denied. 15. Denied. 16. Denied. 17. Denied. 18. Denied 19. Denied. 20. Denied. Page 2 of 8CASE NO. CACE18-001878 21. Denied. CARE FAILURES 22. Denied. 23. Denied. COUNT I CHAPTER §400 CLAIM AGAINST DEFENDANT, JACK MICHEL, M.D. As to the unnumbered paragraph set forth in Count I, this Defendant re-alleges and reaffirms each and every answer contained in paragraphs one (1) through twenty-one (21) as if fully stated herein. 24. As to the allegations contained in paragraph 24, including all subparts (a-d), the allegations are denied. 25. Denied. 26. Denied. 27. Denied. 28. As to the allegations contained in paragraph 28, including all subparts (a-q), the allegations are denied. 29. Denied. 30. As to the allegations in Paragraph 30 including subparts (a-e), MICHEL is without knowledge and therefore denies the same and demands strict proof thereof. 31. Admitted to the extent that the alleged damages are recoverable by law. 32. Admitted to the extent that the alleged damages are recoverable by law. 33. Admitted to the extent that the alleged damages are recoverable by law. Page 3 of 8CASE NO. CACE18-001878 34. As to the allegations contained in paragraph 34, including all subparts (a-b), the allegations are admitted to the extent that the alleged damages are recoverable by law. COUNTIT CHAPTER §400 CLAIM AGAINST DEFENDANT. REHABILITATION CENTER AT HOLLYWOOD HILLS, LLC As to the unnumbered paragraph set forth in Count II, this Defendant re-alleges and reaffirms each and every answer contained in paragraphs one (1) through twenty-one (21) as if fully stated herein. 35-45. As to the remaining allegations set forth in Count II, these paragraphs and subparagraphs are not directed to MICHEL, and as such MICHEL is without sufficient knowledge to admit or deny the allegations. COUNT II CHAPTER §400 CLAIM AGAINST DEFENDANT LARKIN COMMUNITY HOSPITAL, INC. d/b/a LARKIN COMMUNITY HOSPITAL As to the unnumbered paragraph set forth in Count II, this Defendant re-alleges and reaffirms each and every answer contained in paragraphs one (1) through twenty-one (21) as if fully stated herein. 46-56. As to the remaining allegations set forth in Count III, MICHEL states that such paragraphs and subparagraphs are not directed to MICHEL, and as such MICHEL is without sufficient knowledge to admit or deny the allegations. GENERAL DENIAL As to any allegation not specifically responded to above, MICHEL denies same and demands strict proof thereof. Page 4 of 8CASE NO. CACE18-001878 AFFIRMATIVE DEFENSES 1. Defendant, MICHEL denies that he violated F.S. Chapter 400 and that it was the legal cause of the loss, injuries or damages alleged by Plaintiff herein. 2. Defendant, MICHEL alleges that the loss, injuries and damages complained of were caused by the sole negligence of the Plaintiff and/or resident, thereby barring the Plaintiff from any recovery herein. 3. Defendant, MICHEL alleges that, at the time of the subject incident, the Plaintiff was negligent, and such negligence on his part was a competent producing cause of the loss, injuries and damages which are claimed; and that the Plaintiff's award, if any, should be proportionately reduced based on the doctrine of comparative negligence in relation to the Plaintiff's own contribution to the loss, injuries and damages sustained. 4. Any loss, injuries and damages alleged by Plaintiff was the result of preexisting medical and/or psychiatric conditions and the unforeseeable, unpredictable and/or unavoidable sequela thereto, and are unrelated to any act or omission of MICHEL. 5. Defendant, MICHEL alleges that the Plaintiff has failed to mitigate his damages and, accordingly, the recovery of Plaintiff, if any, should be reduced by the amount by which the Plaintiff could have lessened his claimed loss, injuries and damages. 6. Defendant, MICHEL alleges that RCHH acted within the accepted and prevailing standard of care as stated in §400.023, Florida Statutes, such that Plaintiff's claim is barred. 7. The cause of action is barred by the applicable statute of limitations. 8. Defendant, MICHEL states that judgment shall only be entered based on each party’s percentage of fault, not based on joint and several liability, pursuant to section 768.81, Florida Statutes. Page 5 of 8CASE NO. CACE18-001878 9. Defendant, MICHEL is entitled to credit and/or setoff for any and all collateral sources or other sources of setoff, including settlement funds received from any entity in the past and in the future as it relates to the alleged loss, injuries and damages; therefore, the Plaintiff's claim is limited and/or reduced by said credits and/or setoffs. 10. The Defendant, MICHEL affirmatively asserts that Plaintiff's alleged damages, if any, resulted from new and independent, unforeseeable, superseding, and/or intervening causes unrelated to any conduct of this Defendant, MICHEL. 11. | The Defendant, MICHEL affirmatively asserts that all or a part of any alleged damages herein were partially or totally caused by others who the Defendant had no dominion or control, and therefore, the Defendant is entitled to the defenses and privileges set forth under Section §768.81(3), Florida Statutes, with respect to apportionment of fault principles. If the Plaintiff meets the burden of proof against this party or other non-parties and the Defendant, MICHEL, then the Defendant, MICHEL, intends to avail themselves of the then controlling law conceming apportionment of damages. Specifically, the Defendant, MICHEL relies upon the allegations and the proof to be presented by the Plaintiff as to other parties or non-parties as the basis for this defense. 12. Defendant, MICHEL denies he is guilty of any negligence in this cause, but alleges that even if Defendant were found to be negligent, the chain of causation was severed by the unforeseeable actions of the plaintiff or some third party or parties not under the direction or control of the Defendant, including persons not yet known to the Defendant; said actions were an independent, efficient, intervening and/or superseding cause of the alleged incidents and any loss, injuries and damages allegedly resulting therefrom and, accordingly, any negligence by Defendant was not the proximate cause of the subject incidents and any loss, injuries and damages resulting Page 6 of 8CASE NO. CACE18-001878 therefrom. Defendant reserves the right to amend this affirmative defense to more specifically identify the above-mentioned third party or parties prior to the trial of this matter, pursuant to Nash v. Wells Fargo Guard Services, Inc., 678 So.2d 1262 (Fla. 1996). 13. The Defendant, MICHEL affirmatively asserts that the Plaintiff has failed to comply with the conditions precedent under Florida Statutes §440.023(3) to name MICHEL as a defendant and, therefore, has failed to state a cause of action against MICHEL. 14. Defendant, MICHEL is entitled to the limitations on liability and protections set forth in Florida Statutes §605.0304. 15. | The Defendant, MICHEL affirmatively asserts that Plaintiff has failed to plead the necessary factual allegations to state a viable cause of action against MICHEL as a manager and/or management company. 16. | The Defendant, MICHEL affirmatively asserts that MICHEL is not manager, as defined by Florida statute, so as to subject MICHEL to any liability under Chapter 400, Florida Statutes. 17. Defendant, MICHEL specifically reserves the right to add affirmative defenses as they present themselves during discovery. DEMAND FOR JURY TRIAL Defendant, MICHEL demands trial by jury on all issues so triable. WHEREFORE, the Defendant, MICHEL states that the Plaintiffs are not entitled to any relief whatsoever and requests this Honorable Court to enter judgment in favor of MICHEL and against Plaintiff, together with taxable fees and costs, and to award any additional relief it deems right and proper to Defendant, MICHEL. Page 7 of 8CASE NO. CACE18-001878 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to William A. Dean, B.C.S., Esq. Ford, Dean & Rotundo, P.A., bill@forddean.com; brandy@forddean.com; service@forddean.com; 3323 NE 163RD Street, Suite 605, North Miami Beach, FL 33160 on February 11, 2020. Respectfully submitted, s/ Julie W. Allison Julie W. Allison, Esquire Florida Bar No.: 678872 JULIE W. ALLISON, P.A. 4601 Sheridan Street, Suite 213 Hollywood, FL 33021 P: 305 428-3093 Fax: 305-397-2211 julie@allisonlaw.net; para@allisonlaw.net Attorneys for Defendants /s/ Kirsten K. Ullman Kirsten K. Ullman Florida Bar 857210 ULLMAN BURSA LAW 3812 Coconut Palm Drive, Suite 200 Tampa, Florida 33619 813/970-0500 kullman@ublawoffices.com; ssamhoury@ublawoffices.com 7 courtmail@ublawoffices.com Co-Counsel for Defendants Page 8 of 8