Preview
Filing # 98159472 E-Filed 10/31/2019 10:10:02 AM
IN THE CIRCUIT COURT OF THE
17TH JUDICIAL CIRCUIT, IN AND
FOR BROWARD COUNTY, FLORIDA
CASE NO: CACE 14-014218 (04)
SEAN DOMNICK, as Guardian Ad Litem for
the minors, KI N@RE and K
NOS, KE NG individually
and as Personal Representative of the Estate
of MAI TUYET NGUYEN, deceased, and on
behalf of KE" 1 i, Ki
N@HE the surviving children of MAI
UYET NGUYEN, and as the natural parent
of KA NW, a minor,
Plaintiffs,
v.
PLANTATION GENERAL HOSPITAL,
L.P., d/b/a PLANTATION GENERAL
HOSPITAL; et al.,
Defendants.
/
DEFENDANT’S MOTION TO COMPEL PRODUCTION
OF DOCUMENTS RELEVANT TO ITS MOTION FOR SET OFF'
Defendant, Plantation General Hospital L.P. d/b/a Plantation General Hospital (“PGH”),
moves to compel production of (a) the settlement agreement entered into between Plaintiffs and
Dr. Santini and (b) evidence of any Medicaid or Medicare liens related to Kaden Nguyen’s medical
expenses. Both items are necessary to the resolution of PGH’s Motion for Set Off filed September
19, 2019, and set for hearing on November 15, 2019. In support, PGH states:
' PGH files this motion without waiving the arguments it set forth in its Motion for Judgment in
Accordance with Motions for Directed Verdict and Alternative Motion for New Trial.
Further, PGH requests that the Court rule on this Motion, along with the other pending post-trial
motions, so that review may be taken of all motions in a timely manner.
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 10/31/2019 10:10:01 AM.****1. Plaintiffs brought this medical malpractice/wrongful death action against PGH on
behalf of Mai Tuyet Nguyen, and for personal injuries sustained by the minor, Kaden Nguyen.
2. The jury returned a verdict in Plaintiffs’ favor that included $1.4 million in past and
future medical expenses for Kaden Nguyen.
3. After trial, PGH filed a Motion for Set Off seeking, inter alia, a set off related to
past medical expenses and settlements.
4. PGH seeks information relevant to that motion.
5. First, as to medical expenses, at trial, Plaintiffs introduced evidence that Kaden
Nguyen incurred $308,879.18 in medical expenses in the past.”
(a) Plaintiffs are only entitled to recover those amounts which have actually
been paid by Medicaid or Medicare and for which there is a lien. Coop. Leasing, Inc. v. Johnson,
872 So. 2d 956, 958 (Fla. 2d DCA 2004). Absent the relevant documentation and proof of
Medicaid/Medicare payments and liens, this issue cannot be resolved.
(b) On October 30, 2019, PGH requested that Plaintiffs provide documentation
and proof of the amount of Medicaid/Medicare liens related to Kaden Nguyen’s medical expenses,
but to date, they have not been produced, and based on communications with Plaintiffs’ counsel,
it appears that Plaintiffs do not intend to produce this information absent court order. (See Emails
attached as Exh. A).
(c) As a result, PGH has been unable to determine the full amount of Kaden
Nguyen’s Medicaid/Medicare payments and liens.
? In its motion for set-off, PGH inadvertently referenced medical expenses related to “decedent”
rather than Kaden Nguyen.6. Second, under established Florida law, a party is entitled to a complete set off for
settlement proceeds where the defendant is held responsible under a theory of vicarious liability
for a settling party’s active negligence. See Grobman v. Posey, 863 So. 2d 1230, 1237 (Fla. 4th
DCA 2003).
(a) In this case, Plaintiffs previously entered into a settlement with Dr. Santini
for her alleged medical negligence.
(b) However, the jury found PGH vicariously liable for Dr. Santini’s actions.
(c) PGH denies that it is vicariously liable for Dr. Santini’s alleged medical
negligence, but if the Court finds that PGH was properly held vicariously liable for Dr. Santini’s
alleged medical negligence, then PGH would be entitled to a complete set off of the settlement
proceeds. See Grobman, 863 So. 2d at 1237.
(d) On October 28, 2019, and again on October 30, 2019, PGH requested that
Plaintiffs provide a copy of those settlement documents, but to date, they have not been produced.
(See Exh. A). Moreover, based on communications with Plaintiffs’ counsel, it appears that
Plaintiffs do not intend to produce this information absent court order.
(e) As a result, PGH has been unable to discover the terms of the settlement
agreement, including the total amount of the settlement. Absent the settlement agreement, this
issue cannot be resolved.
WHEREFORE, PGH requests that the Court compel the production of (1) any proof of the
amount of Medicaid/Medicare payments and liens related to Kaden Nguyen’s medical expenses
and (2) the settlement agreement entered into between Plaintiffs and Dr. Santini. PGH requeststhat the production be ordered in time for the set off issues to be resolved along with other post-
trial motions.
LA CAVA & JACOBSON, P.A.
LOUIS J. LA CAVA
Fla. Bar No: 507880
llacava@lacavajacobson.com
MARCI L. STRAUSS
Fla. Bar No.: 857025
mstrauss@lacavajacobson.com
501 E. Kennedy Blvd.; Suite 1250
Tampa, FL 33602
Telephone: 813-209-9611
Facsimile: 813-209-9511
Respectfully submitted,
BOWMAN AND BROOKE LLP
Two Alhambra Plaza, Suite 800
Coral Gables, Florida 33134
Telephone: 305-995-5600
Facsimile: 305-995-6100
By:__/s/Wendy F. Lumish
WENDY F. LUMISH
Florida Bar No. 334332
Wendy.lumish@bowmanandbrooke.com
Attorneys for Defendant, Plantation General Hospital
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of the foregoing was electronically
filed with the Clerk of Court through the Florida Courts eFiling Portal and served via e-mail on
this _31st_ day of October, 2019 to:
Maria D. Tejedor, Esq.
Diez-Arguelles & Tejedor, P.A.
505 North Mills Avenue
Orlando, Florida 32803
Telephone: 407-705-2880
mail@theorlandolawyers.com
leah@theorlandolawyers.com
rosa@theorlandolawyers.com
Attorneys for Plaintiffs
Alex Alvarez, Esq.
The Alvarez Law Firm
3251 Ponce de Leon Boulevard
Coral Gables, FL 33134
Telephone: 305-444-7675
alex@talf.law
maria@talf.law
Co-Counsel for Plaintiffs
21605139
Kara Berard Rockenbach
Link & Rockenbach, P.A.
1555 Palm Beach Lakes Blvd., Suite 930
West Palm Beach, Florida 33401
Telephone: 561-847-4408
kara@linkrocklaw.com
daniel@linkrocklaw.com
tina@linkrocklaw.com
Appellate Counsel for Plaintiffs
By:___/s/Wendy F. Lumish
WENDY F. LUMISHEXHIBIT AWendy Lumish
Alina Alonso Rodriguez; Maria Tejedor; leah@theorlandolawyers.com; Tina L. Campbell; Louis LaCava;
From: Kara Berard Rockenbach
Sent: Wednesday, October 30, 2019 8:50 PM
To: Wendy Lumish
Cc:
Marci L. Strauss; mail@theorlandolawyers.com
Subject: Re: Motion for set off
Wendy, thanks for the email. | look forward to seeing your motion.
Sincerely,
Kara
LINK&
ROGKENBACH, PA
CIVIL TRIAL & & LLaTe Law
Email: kara@linkrocklaw.com
Kara Berard Rockenbach
Managing Partner
LINK & ROCKENBACH, PA
1555 Palm Beach Lakes Blvd., Suite 930
West Palm Beach, FL_33401
office (561) 847-4408 | cell (561)662-4031|
This e-mail may contain privileged or confidential information. If it is not meant for you, please delete it and notify us
immediately. Please confirm receipt of time sensitive communications because email deliveries may be delayed or
unsuccessful. We do not provide tax advice. Our communications may not be relied upon to avoid penalties that may be
imposed by the Internal Revenue Service.
On Oct 30, 2019, at 8:18 PM, Wendy Lumish wrote:
Hi Kara, since we have not heard back from you as to either the settlement or liens, we will file a
motion to compel tomorrow seeking the settlement amount and the amount of the medical
liens. We will request that the court set it for hearing along with the other motions on November
15.
Please let me know if you wish to discuss in advance of the hearing.
Wendy F. Lumish
Bowman and Brooke LLP
Direct: 1.305.995.6099
From: Wendy Lumish
Sent: Wednesday, October 30, 2019 9:48 AM
To: Kara Berard Rockenbach
1Cc: Alina Alonso Rodriguez ; Maria Tejedor
; leah@theorlandolawyers.com; Tina L. Campbell
; Louis LaCava ; Marci L. Strauss
; mail @theorlandolawyers.com; Wendy Lumish
Subject: RE: Motion for set off
Hi Kara,
| hope to hear back from you today on the issue of the amount of the settlement with Dr.
Santini.
In addition, also in connection with our motion for set off related to economic damages, | have
checked with trial counsel and they have evidence of a few thousand dollars in liens.
Accordingly, PGH requests any documentation and proof of the amount of Medicaid/ Medicare
liens related to Kaden Nguyen’s medical expenses.
Should you have any questions, please do not hesitate to contact me.
Wendy F. Lumish
Bowman and Brooke LLP
Direct: 1.305.995.6099
From: Wendy Lumish
Sent: Monday, October 28, 2019 1:35 PM
To: Kara Berard Rockenbach
Cc: Alina Alonso Rodriguez ; Maria Tejedor
; leah@theorlandolawyers.com; Tina L. Campbell
; Louis LaCava ; Marci L. Strauss
; mail @theorlandolawyers.com; Wendy Lumish
Subject: Motion for set off
Hi Kara
In connection with our motion for set off, depending on the court's rulings on our post trial
motions, we believe that the settlement with Dr. Santini would be a set off from the judgment.
While | am not asking you to agree with my position that it is a set off, please advise if you will
provide us with the amount of that settlement either before or at the hearing or whether | will
need to file a motion seeking this amount.
If you could get back to me on this by COB Wednesday, | would greatly appreciate it.
Thank you
Wendy F. Lumish
Bowman and Brooke LLP
Direct: 1.305.995.6099
Note: This electronic mail is intended to be received and read only by certain individuals. It may contain
information that is attorney-client privileged or protected from disclosure by law. If it has been
2misdirected, or if you suspect you have received this in error, please notify me by replying and then
delete both the message and reply. Thank you.
Preview
Filing # 98159472 E-Filed 10/31/2019 10:10:02 AM IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA CASE NO: CACE 14-014218 (04) SEAN DOMNICK, as Guardian Ad Litem for the minors, KI N@RE and K NOS, KE NG individually and as Personal Representative of the Estate of MAI TUYET NGUYEN, deceased, and on behalf of KE" 1 i, Ki N@HE the surviving children of MAI UYET NGUYEN, and as the natural parent of KA NW, a minor, Plaintiffs, v. PLANTATION GENERAL HOSPITAL, L.P., d/b/a PLANTATION GENERAL HOSPITAL; et al., Defendants. / DEFENDANT’S MOTION TO COMPEL PRODUCTION OF DOCUMENTS RELEVANT TO ITS MOTION FOR SET OFF' Defendant, Plantation General Hospital L.P. d/b/a Plantation General Hospital (“PGH”), moves to compel production of (a) the settlement agreement entered into between Plaintiffs and Dr. Santini and (b) evidence of any Medicaid or Medicare liens related to Kaden Nguyen’s medical expenses. Both items are necessary to the resolution of PGH’s Motion for Set Off filed September 19, 2019, and set for hearing on November 15, 2019. In support, PGH states: ' PGH files this motion without waiving the arguments it set forth in its Motion for Judgment in Accordance with Motions for Directed Verdict and Alternative Motion for New Trial. Further, PGH requests that the Court rule on this Motion, along with the other pending post-trial motions, so that review may be taken of all motions in a timely manner. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 10/31/2019 10:10:01 AM.****1. Plaintiffs brought this medical malpractice/wrongful death action against PGH on behalf of Mai Tuyet Nguyen, and for personal injuries sustained by the minor, Kaden Nguyen. 2. The jury returned a verdict in Plaintiffs’ favor that included $1.4 million in past and future medical expenses for Kaden Nguyen. 3. After trial, PGH filed a Motion for Set Off seeking, inter alia, a set off related to past medical expenses and settlements. 4. PGH seeks information relevant to that motion. 5. First, as to medical expenses, at trial, Plaintiffs introduced evidence that Kaden Nguyen incurred $308,879.18 in medical expenses in the past.” (a) Plaintiffs are only entitled to recover those amounts which have actually been paid by Medicaid or Medicare and for which there is a lien. Coop. Leasing, Inc. v. Johnson, 872 So. 2d 956, 958 (Fla. 2d DCA 2004). Absent the relevant documentation and proof of Medicaid/Medicare payments and liens, this issue cannot be resolved. (b) On October 30, 2019, PGH requested that Plaintiffs provide documentation and proof of the amount of Medicaid/Medicare liens related to Kaden Nguyen’s medical expenses, but to date, they have not been produced, and based on communications with Plaintiffs’ counsel, it appears that Plaintiffs do not intend to produce this information absent court order. (See Emails attached as Exh. A). (c) As a result, PGH has been unable to determine the full amount of Kaden Nguyen’s Medicaid/Medicare payments and liens. ? In its motion for set-off, PGH inadvertently referenced medical expenses related to “decedent” rather than Kaden Nguyen.6. Second, under established Florida law, a party is entitled to a complete set off for settlement proceeds where the defendant is held responsible under a theory of vicarious liability for a settling party’s active negligence. See Grobman v. Posey, 863 So. 2d 1230, 1237 (Fla. 4th DCA 2003). (a) In this case, Plaintiffs previously entered into a settlement with Dr. Santini for her alleged medical negligence. (b) However, the jury found PGH vicariously liable for Dr. Santini’s actions. (c) PGH denies that it is vicariously liable for Dr. Santini’s alleged medical negligence, but if the Court finds that PGH was properly held vicariously liable for Dr. Santini’s alleged medical negligence, then PGH would be entitled to a complete set off of the settlement proceeds. See Grobman, 863 So. 2d at 1237. (d) On October 28, 2019, and again on October 30, 2019, PGH requested that Plaintiffs provide a copy of those settlement documents, but to date, they have not been produced. (See Exh. A). Moreover, based on communications with Plaintiffs’ counsel, it appears that Plaintiffs do not intend to produce this information absent court order. (e) As a result, PGH has been unable to discover the terms of the settlement agreement, including the total amount of the settlement. Absent the settlement agreement, this issue cannot be resolved. WHEREFORE, PGH requests that the Court compel the production of (1) any proof of the amount of Medicaid/Medicare payments and liens related to Kaden Nguyen’s medical expenses and (2) the settlement agreement entered into between Plaintiffs and Dr. Santini. PGH requeststhat the production be ordered in time for the set off issues to be resolved along with other post- trial motions. LA CAVA & JACOBSON, P.A. LOUIS J. LA CAVA Fla. Bar No: 507880 llacava@lacavajacobson.com MARCI L. STRAUSS Fla. Bar No.: 857025 mstrauss@lacavajacobson.com 501 E. Kennedy Blvd.; Suite 1250 Tampa, FL 33602 Telephone: 813-209-9611 Facsimile: 813-209-9511 Respectfully submitted, BOWMAN AND BROOKE LLP Two Alhambra Plaza, Suite 800 Coral Gables, Florida 33134 Telephone: 305-995-5600 Facsimile: 305-995-6100 By:__/s/Wendy F. Lumish WENDY F. LUMISH Florida Bar No. 334332 Wendy.lumish@bowmanandbrooke.com Attorneys for Defendant, Plantation General Hospital CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true and correct copy of the foregoing was electronically filed with the Clerk of Court through the Florida Courts eFiling Portal and served via e-mail on this _31st_ day of October, 2019 to: Maria D. Tejedor, Esq. Diez-Arguelles & Tejedor, P.A. 505 North Mills Avenue Orlando, Florida 32803 Telephone: 407-705-2880 mail@theorlandolawyers.com leah@theorlandolawyers.com rosa@theorlandolawyers.com Attorneys for Plaintiffs Alex Alvarez, Esq. The Alvarez Law Firm 3251 Ponce de Leon Boulevard Coral Gables, FL 33134 Telephone: 305-444-7675 alex@talf.law maria@talf.law Co-Counsel for Plaintiffs 21605139 Kara Berard Rockenbach Link & Rockenbach, P.A. 1555 Palm Beach Lakes Blvd., Suite 930 West Palm Beach, Florida 33401 Telephone: 561-847-4408 kara@linkrocklaw.com daniel@linkrocklaw.com tina@linkrocklaw.com Appellate Counsel for Plaintiffs By:___/s/Wendy F. Lumish WENDY F. LUMISHEXHIBIT AWendy Lumish Alina Alonso Rodriguez; Maria Tejedor; leah@theorlandolawyers.com; Tina L. Campbell; Louis LaCava; From: Kara Berard Rockenbach Sent: Wednesday, October 30, 2019 8:50 PM To: Wendy Lumish Cc: Marci L. Strauss; mail@theorlandolawyers.com Subject: Re: Motion for set off Wendy, thanks for the email. | look forward to seeing your motion. Sincerely, Kara LINK& ROGKENBACH, PA CIVIL TRIAL & & LLaTe Law Email: kara@linkrocklaw.com Kara Berard Rockenbach Managing Partner LINK & ROCKENBACH, PA 1555 Palm Beach Lakes Blvd., Suite 930 West Palm Beach, FL_33401 office (561) 847-4408 | cell (561)662-4031| This e-mail may contain privileged or confidential information. If it is not meant for you, please delete it and notify us immediately. Please confirm receipt of time sensitive communications because email deliveries may be delayed or unsuccessful. We do not provide tax advice. Our communications may not be relied upon to avoid penalties that may be imposed by the Internal Revenue Service. On Oct 30, 2019, at 8:18 PM, Wendy Lumish wrote: Hi Kara, since we have not heard back from you as to either the settlement or liens, we will file a motion to compel tomorrow seeking the settlement amount and the amount of the medical liens. We will request that the court set it for hearing along with the other motions on November 15. Please let me know if you wish to discuss in advance of the hearing. Wendy F. Lumish Bowman and Brooke LLP Direct: 1.305.995.6099 From: Wendy Lumish Sent: Wednesday, October 30, 2019 9:48 AM To: Kara Berard Rockenbach 1Cc: Alina Alonso Rodriguez ; Maria Tejedor ; leah@theorlandolawyers.com; Tina L. Campbell ; Louis LaCava ; Marci L. Strauss ; mail @theorlandolawyers.com; Wendy Lumish Subject: RE: Motion for set off Hi Kara, | hope to hear back from you today on the issue of the amount of the settlement with Dr. Santini. In addition, also in connection with our motion for set off related to economic damages, | have checked with trial counsel and they have evidence of a few thousand dollars in liens. Accordingly, PGH requests any documentation and proof of the amount of Medicaid/ Medicare liens related to Kaden Nguyen’s medical expenses. Should you have any questions, please do not hesitate to contact me. Wendy F. Lumish Bowman and Brooke LLP Direct: 1.305.995.6099 From: Wendy Lumish Sent: Monday, October 28, 2019 1:35 PM To: Kara Berard Rockenbach Cc: Alina Alonso Rodriguez ; Maria Tejedor ; leah@theorlandolawyers.com; Tina L. Campbell ; Louis LaCava ; Marci L. Strauss ; mail @theorlandolawyers.com; Wendy Lumish Subject: Motion for set off Hi Kara In connection with our motion for set off, depending on the court's rulings on our post trial motions, we believe that the settlement with Dr. Santini would be a set off from the judgment. While | am not asking you to agree with my position that it is a set off, please advise if you will provide us with the amount of that settlement either before or at the hearing or whether | will need to file a motion seeking this amount. If you could get back to me on this by COB Wednesday, | would greatly appreciate it. Thank you Wendy F. Lumish Bowman and Brooke LLP Direct: 1.305.995.6099 Note: This electronic mail is intended to be received and read only by certain individuals. It may contain information that is attorney-client privileged or protected from disclosure by law. If it has been 2misdirected, or if you suspect you have received this in error, please notify me by replying and then delete both the message and reply. Thank you.