Preview
Filing # 129783562 E-Filed 06/30/2021 09:44:17 AM
IN THE CIRCUIT COURT OF THE 15TH
JUDICIAL CIRCUIT IN AND FOR PALM
BEACH COUNTY, FLORIDA
CASE NO.: 50-2018-CA-15763-XXXX-MB
ELIZABETH L. BALZARANO,
Individually, and as Personal
Representative of the ESTATE OF
MICHELLE L. BALZARANO,
Plaintiffs,
v.
LIFELINE RECOVERY, LLC d/b/a
LIFELINE RECOVERY SUPPORT
SERVICES, a Foreign Corporation;
JOHN BROGAN; LIFE CHANGES
ADDICTION TREATMENT CENTER OF
THE PALM BEACHES; WARBIRD
PROPERTIES, LLC, d/b/a CAMERON
VILLA, LLC, a Florida Corporation;
EMILIO DUBOY, M.D.; and JANINE
BEATTIE, ARNP,
Defendants.
DEFENDANT, LIFE CHANGES ADDITIONAL TREATMENT CENTER OF THE PALM
BEACHES AND JANINE BEATTIE, ARNP’S MOTION FOR SUMMARY JUDGMENT
COMES NOW, the Defendants, Life Changes Addition Treatment Center of The
Palm Beaches and Jeanine Beattie, ARNP, (hereinafter “DEFENDANT”) by and through
its undersigned attorney, and pursuant to Florida Rule of Civil Procedure 1.510, hereby
moves this Honorable Court for entry of an Order granting Final Summary Judgment in
favor of the Defendant as the Plaintiff is unable to prove that any alleged negligence was
the cause of Plaintiffs damages, and in support thereof, states as follows:
COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 93256 - (305) 350-5300 - (305) 373-2204 FAX
'** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 06/30/2021 09:44:17 AM ***CASE NO.: 50-2018-CA-15763-XXXX-MB
INTRODUCTION
The Plaintiff has brought the instant medical negligence action against the
undersigned Defendants, Life Changes Addition Treatment Center of The Palm Beaches
and Jeanine Beattie, ARNP, based upon the alleged wrongful death of the Decedent,
Michelle Balazarano, who received substance abuse treatment at the undersigned’s
facility, LIFE CHANGES. The Decedent took her own life nearly two months following her
discharge from the Defendant's facility. The Plaintiff contends that LIFE CHANGES
breached its duty by failing to provide Ms. Balzarano with an adequate amount of
prescription medication at the time of discharge or refer her to a community-based
physician for the assumption of care. The Defendant did not owe the Decedent a
legally cognizable futy of care at the time of her death as she was no longer under
their care, custody or control. Further, there is no genuine issue of material fact
that the undersigned was not the cause of the the Plaintiff's death. Accordingly,
summary judgment should be entered for these Defendants.
UNCONTESTED FACTS
1. The operative Second Amended Complaint asserts nineteen counts against the
Defendants. As to LIFE CHANGES, the Plaintiff alleges wrongful death (Count 8),
violation of Florida Statute §415.1111 (Count 9), breach of a fiduciary duty (Count
10), medical negligence (Count 17), vicarious liability based upon actual agency
(Count 18) and vicarious liability based upon apparent agency.
2. Ms. Balzarano was admitted the LIFE CHANGES on February 19, 2017. She had
an extensive history of depression, anxiety, and drug abuse. She was admitted to
2
COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAXCASE NO.: 50-2018-CA-15763-XXXX-MB
the Partial Hospitalization Program (PHP) where she underwent extensive care
and treatment.
3. Having successfully completed her program, Ms. Balzarano was discharged from
LIFE CHANGES on April 11, 2017 to a halfway house operated by the co-
defendant, CAMERON VILLA.
4. Ms. Balzarano was discharged from Life Changes with a 10-day supply of
Seroquel, 14-day supply of Trileptal, and 9-day supply of Topamax and instructions
to follow up with a community-based mental health care provider.
5. Shortly after discharge, Ms. Balzarano was seen at JFK Medical Center
Emergency Department on April 16, 2017 for a medication refill. She requested a
refill of her medication until she could establish with a local doctor.
6. Ms. Balzarano was given a 4-day supply of Trileptal, Topamax, and Seroquel. She
was also given information on residency clinics and South County Mental Health.
The discharge instructions instruct her to follow up with an adult clinic or South
County Mental Health in two days.
7. Nearly two months later, on June 6, 2017, Ms. Balzarano took her own life by
hanging herself in a closet at CAMERON VILLA.
8. The Plaintiff asserts that the Defendants owed the Decedent a duty of care which
was breached, and as a direct and proximate cause of the Defendants’ negligence,
she lost her life.
9. The Defendants submit the instant Motion for Summary Judgment arguing that (1)
the Defendants owed no duty of care to the Plaintiff at the time of her death, and
(2) there is no factual dispute in evidence regarding any conduct or action by the
3
COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAXCASE NO.: 50-2018-CA-15763-XXXX-MB
Defendants that caused or contributed to the Plaintiffs claimed damages. As a
result, the Defendants seek summary judgment in their favor as a matter of law.
MEMORANDUM OF LAW
I. Legal Standard Governing Motions for Summary Judgment
In In Re: Amendments to Florida Rule of Civil Procedure 1.510, No. SC20-1490
(Fla. Dec. 31, 2020), the Florida Supreme Court largely replaced the text of existing rule
1.510 with the text of Rule 56, Fed.R.Civ.P. The new rule 1.510(a) also added the
following sentence: “The summary judgment standard provided for in this rule shall be
construed and applied in accordance with the federal summary judgment standard.” /d.
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is
proper “if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. “Rule 56[]
mandates the entry of summary judgment...against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). The moving party bears the initial burden of proving the absence of a
genuine issue of material fact. /d. at 323. The burden then shifts to the nonmoving party,
who is required to “go beyond the pleadings” to establish that there is a “genuine issue
for trial.” /d. at 324 (citation and internal quotation marks omitted). A dispute about a
material fact is genuine “if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
4
COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAXCASE NO.: 50-2018-CA-15763-XXXX-MB
On motion for summary judgment, the Court must construe the evidence and all
reasonable inferences arising from it in the light most favorable to the non-moving party.
Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at
255. Any factual disputes will be resolved in the non-moving party’s favor when sufficient
competent evidence supports the non-moving party’s version of the disputed facts. See
Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002) (a court is not required
to resolve disputes in the non-moving party’s favor when that party’s version of events is
supported by insufficient evidence). However, “mere conclusions and unsupported factual
allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England,
432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v.
Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla’ of evidence
supporting the opposing party's position will not suffice; there must be enough of a
showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d
1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
The Florida Supreme Court has now made it clear, “Where the nonmovant bears
the ultimate burden of persuasion at trial on a particular issue . . . the requirements that
Rule 56 impose on the moving party are not onerous.” /n Re: Amendments to Florida Rule
of Civil Procedure 1.510, No. SC20-1490 (Fla. Dec. 31, 2020). A movant for summary
judgment need not set forth evidence in the motion when the nonmovant bears the burden
of persuasion at trial. Id. See Wease v. Ocwen Loan Servicing, LLC, 915 F. 3d 987 (5th
Cir. 2019). Additionally, a moving party that does not bear the burden of persuasion at
trial can obtain summary judgment without disproving the nonmovant’s case. In Re:
5
COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAXCASE NO.: 50-2018-CA-15763-XXXX-MB
Amendments to Florida Rule of Civil Procedure 1.510, No. SC20-1490 (Fla. Dec. 31,
2020).
Plaintiffs have failed to establish that the undersigned Defendants owned a duty of
care to the Decedent at the time of her passing. Additionally, Plaintiffs have failed to
produce any evidence to support the claim that these Defendants were the legal cause
of any injuries or damages to the Plaintiffs. Accordingly, there is no genuine issue as to
any material fact regarding the allegations against the Defendants, and therefore, they
are entitled to summary judgment as a matter of law.
I. Analysis
a. The Defendants did not owe the Decedent a legally recognized duty of
care as the Defendants did not have care, custody, and/or control over
the Decedent at the time of her death.
The Defendants are entitled to summary judgment as a matter of law because there
is no genuine issue of material fact as to the issue of duty. Specifically, the Plaintiff's claim
fails as a cause of action based in negligence requires the defendant to have a duty to
the plaintiff which does not exist in this instance. Clay Elec. Co-op, Inc. v. Johnson, 873
So. 2d 1182, 1185 (Fla. 2003). The “polestar” for determining both the existence and
scope of a legal duty is foreseeability. Biglen v. Fla. Power & Light Co., 910 So. 2d 405,
408 (Fla. 4th DCA 2005). One can “assume” such a duty by taking custody and control
over another. Estate of Brennan v. Church of Scientology Flag Serv. Org., 832 F. Supp.
2d 1370, 1377-78 (M.D. Fla. 2011).
A legal duty requires more than just foreseeability alone. Aguila v. Hilton, Inc., 878
So. 2d 392, 396 (Fla. 1st DCA 2004). A duty requires one to be in a position to "control
6
COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAXCASE NO.: 50-2018-CA-15763-XXXX-MB
the risk." Id. Thus, in cases of psychiatric facilities, they are liable for a patient's self-harm
because they are in a position to prevent patients from injuring themselves. See Paddock,
522 So. 2d at 416. This specific duty is based solely on the patient’s physical presence in
the facility, as well as the facility’s ability to supervise, monitor, and restrain the patient.
Id.
On the contrary, courts have held that the duty to prevent a patient from injuring
himself does not extend to residential facilities that may have certain rules, but do not
restrain the liberty of their residents. Azizi v. Regency Properties of Boca Raton, Inc., No.
502012CA013379, 2015 WL 1735538 (Fla. Cir. Ct. March 17, 2015). See also, Tuten v.
EFariborzian, 84 So.3d 1063, 1068 (Fla. 1* DCA 2012) (noting that when a patient injuries
themselves outside of a facility's “range of observation and control,” a duty is not
present.) Id. at 1068. Emphasis added.
In Azizi v. Regency Properties of Boca Raton, Inc., No. 502012CA013379, 2015
WL 1735538 (Fla. Cir. Ct. March 17, 2015), the personal representative of the estate
brought a wrongful death action against Boca House, a sober house located in Boca
Raton. In that case, the Decedent had completed treatment for alcohol addiction and
psychiatric issues at a New York hospital and was discharged to Boca House. Upon
admission, the Decedent agreed to the rules and regulations of Boca House, including
the prohibition of alcohol or drugs on the grounds. Residents who are found to be in
violation of the rules are driven by an employee of Boca House to another facility to
undergo detox. See, Defendant Regency Properties of Boca Raton, Inc. d/b/a Boca
House’s Motion for Summary Judgment and Memorandum of Law, attached as Exhibit A.
7
COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAXCASE NO.: 50-2018-CA-15763-XXXX-MB
The Decedent was found to be in violation of the house rules for failing an alcohol
test. He was offered to be transferred to a detox facility but refused. He was therefore
evicted from the premises. The following day, he was found dead in the Boca House
swimming pool, having cut his wrists. The Plaintiff alleged that Boca House was negligent
for failing to provide reasonable rehabilitation services, evaluation, and treatment,
resulting in the Decedent’s death.
The Court found that the sober living facility did not have custody or control over
the decedent after he left the facility and after was ejected from the facility and determined
that the facility did not owe a duty of care to the decedent as a matter of law. Id. In so
holding, the Court noted that if such a duty was extended, facilities would be reluctant to
assist released inmates and those recovering from addiction. Azizi at *2. The Decedent
was free to come and go as he pleased, and therefore had no duty to maintain vigil over
the Decedent. Id.
The Court in Surloff v. Regions Bank, 179 So. 3d 472 (Fla. 4% DCA 2015)
contemplated these principles in granting the Defendant’s Motion to Dismiss for failure to
state a cause of action. In that case, the Plaintiff suffered from mental and physical
impairments resulting in his inability to process complex information. The defendant was
instructed by the decedent's family and healthcare providers not to provide sensitive
information to the decedent, but ignored this request. The defendant shared sensitive
information with the decedent. After leaving the defendant facility, the decedent
committed suicide.
8
COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAXCASE NO.: 50-2018-CA-15763-XXXX-MB
In Surloff, the defendant moved to dismiss for failure to state a cause of action,
arguing that the defendant owed no duty to the decedent. In affirming the trial court’s
ruling granting the Motion to Dismiss, the Appellate Court held:
In the instant case, [Defendant] did not assume a specific duty of care to
prevent the decedent from committing suicide. Although [Defendant]
allegedly knew of the decedent's mental state and agreed to withhold
complex financial information from the decedent, [Defendant] could not
undertake a duty to prevent the decedent's suicide because the decedent
was not in [Defendant]'s ‘custody or control.’ ... [Defendant] simply had no
ability or responsibility to protect the decedent from committing suicide.
Surloff at 476. The Court went on to cite Aguila, supra, which stated:
[The fact that a defendant realizes or should realize that an action on his
or her part is required to ensure the safety of another person does not alone
create a duty to take that action. The defendant must also have a right to
take the action in question.
Most recently, in Herrera v. Q Health Services, Inc., et al, No. 2018CA010087AXX
(Fla. Cir. Ct. March 30, 2021), the Honorable John Kastrenakes considered an identical
argument raised in a factually analogous case, granting the Defendants’ Motion to
Dismiss. In that case, the Decedent was discharged from the Defendant facility. The day
after discharge, the Decedent died of a drug overdose. See, Exhibit B, at *3-4. The Court
was asked to answer the question of duty, specifically, whether at the time the Decedent
ingested the drugs that caused his overdose and death, did the defendants owe any duty
of care to him? The Court held the answer was “no.” The Court further found that the
Defendant facility no longer had custody or control over the Decedent at the time of his
overdose, and therefore, had no legal duty cognizable under a theory of negligence. Id.
at *10, relying on Surloff, supra. The Court therefore granted the Defendants’ motion.
9
COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAXCASE NO.: 50-2018-CA-15763-XXXX-MB
In the present case, the Defendants owed no duty of care to Ms. Balzarano at the
time of her death. Ms. Balzarano was discharged from LIFE CHANGES on April 11, 2017,
nearly two months prior to her suicide. Ms. Balzarano was no longer under the custody
and control of the undersigned Defendants at the time of her death. As a result, the
undersigned owed no duty of care to protect Ms. Balzarano once she left their custody
and control and therefore, had no duty to prevent the injuries alleged in the Complaint.
See, Tuten, supra. As the facility has no duty to protect Ms. Balzarano at the time of her
death, there is no genuine issue of material fact as to the element of duty in this case and
summary judgment should enter.
b. There is no genuine issue of material fact that the Defendants’
purported negligence was the proximate cause of the Decedent’s
death.
Under Florida law, it is well settled that, in order to recover in a medical negligence
case, a plaintiff must prove 1) that the defendant owed a duty of care to the plaintiff; 2)
that the defendant breached the duty; and 3) that the breach, more likely than not,
proximately caused the damages claimed by the plaintiff. Wroy v. N. Miami Med. Ctr,
Ltd., 937 So.2d 116, 1117 (Fla. 3d DCA 2006) (citing Gooding v. University Hosp. Bldg.,
Inc., 445 So. 2d 1015, 1018 (Fla. 1984). The Gooding court quoted Prosser as follows:
On the issue of causation, as on other issues essential to his cause
of action for negligence, the plaintiff, in general, has the burden of
proof. He must introduce evidence which affords a reasonable basis
for the conclusion that it is more likely than not that the conduct of
the defendant was a substantial factor in bringing about the result. A
mere possibility of such causation is not enough; and when the
matter remains one of pure speculation or conjecture, or the
probabilities are at best evenly balanced, it becomes the duty of the
court to direct a verdict for the defendant.
Prosser, Law of Tort, Sec. 41 (4tn Ed. 1971).
10
COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAXCASE NO.: 50-2018-CA-15763-XXXX-MB
In other words, the plaintiff must show that there is greater than a 50% likelihood
that the defendant’s negligence caused the plaintiff's injuries. Gooding, 445 So. 2d at
1020. When the matter remains one of pure speculation or conjecture, or the probabilities
are at best evenly balanced, it become the duty of the court to find in favor of the
defendant. Wroy v North Miami Medical Center, Ltd., 937 So. 2d 1116 (Fla. 3d DCA
2006); St. Joseph’s Hospital v. Cox, 14 So. 2d 1124 (Fla. 2d DCA 2009).
In applying the requirements to establish a prima facie case of negligence in this
case, the undisputed facts and evidence demonstrate that the Plaintiff cannot show that
the cause of the Plaintiff's death was the purported negligence of these Defendants.
As noted above, the sum and substance of the Plaintiff's allegations against LIFE
CHANGES is the failure to provide an adequate amount of prescription medication and/or
the failure to coordinate appropriate follow up-care at the time of Ms. Balzarano’s
discharge. Despite this allegation, the undisputed evidence in this case shows that five-
days after discharge, Ms. Balzarano presented to JFK Medical Center Emergency
Department in search of refills for her prescription medication. During that ER visit, Ms.
Balzarano was provided with a four-day supply of her medication along with instructions
to follow up with a community-based mental health care provider. Specifically, the JFK
Medical Center Emergency Department record states, “Pt requesting a refill until she can
establish with a local doctor.” Further, the ER physician, Steven Keehn, DO, noted, “Pt
given 3-day supply. Pt given info on residency clinic and South County Mental Health.”
The discharge instructions note, “We are giving you a 4 day supply of your medications
today. Please call your psychiatrist to set up for refills within this time frame or follow up
11
COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAXCASE NO.: 50-2018-CA-15763-XXXX-MB
with South County Mental Health.” See, Exhibit C, Medical Records from JFK Medical
Center.
The medical record itself makes clear that even assuming arguendo, that the
undersigned Defendants breached their duty of care’ at the time of discharge, the
evidence in this case is unequivocal that it has no causal link to the Decedent’s death. As
instructed by LIFE CHANGES, Ms. Balzarano presented to a subsequent health care
provider to obtain a refill of her prescription medication. There is no evidence that the
Defendants’ breach was a substantial factor in bringing about the result. Since the Plaintiff
is not able to prove the causation issues necessary to support a theory of negligence, the
Defendants are entitled to summary judgment as a matter of law.
CONCLUSION
Plaintiff cannot hold Defendants, Life Changes Addition Treatment Center of The
Palm Beaches and Jeanine Beattie, ARNP liable for their purported negligence. The
Defendant owed no duty of care to the Decedent at the time of her death. Furthermore,
the Plaintiff cannot, as a matter of law, prove the essential element of causation.
WHEREFORE, the Defendants, Life Changes Addition Treatment Center of The
Palm Beaches and Jeanine Beattie, ARNP, respectfully move this Court to grant its
Motion for Summary Judgment and enter a judgment in its favor as a matter of law, as
well as any additional relief this Court deems just and proper.
1 As noted in Section A above, the Defendants dispute that they owed any duty of care to the Decedent
following her discharge from its facility.
12
COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAXCASE NO.: 50-2018-CA-15763-XXXX-MB
CERTIFICATE OF SERVICE
| HEREBY CERTIFY that on this 30‘ day of June 2021, a true and correct copy
of the foregoing was filed with the Clerk of Palm Beach County by using the Florida Courts
e-Filing Portal, which will send an automatic e-mail message to the following parties
registered with the e-Filing Portal system: Thomas D. Graham, Esq., Leesfield Scolaro,
P.A., 2350 So. Dixie Highway, Miami, FL 33133, Attorney for Plaintiff, Elizabeth L.
Balzarano, Nicole Sauvola-LaMay, Esq., Nicole Sauvola-LaMay PA,
Colelaw36@gmail.com, 4500 PGA Boulevard, Suite 200, Palm Beach Gardens, FL
33418, Attorney for Defendant, Warbird Properties LLC dba CAMERON VILLA, LLC,
Thomas Scolaro, Esq., Leesfield Scolaro,
scolaro@leesfield.com;rose@leesfield.com;azcuy@leesfield.com:garcia@leesfield.com
;merida@leesfield.com, 2350 South Dixie Highway, Miami, FL 33133, Attorney for
Plaintiff, Elizabeth L. Balzarano and Noelle Sheehan, Esq., Wilson Elser Moskowitz
Edelman & Dicker, LLP, Noelle.Sheehan@wilsone
lser.com;vicki.sheridan@wilsonelser.com;abigail.ralson@wilsonelser.com, 111 N.
Orange Ave., Suite 1200, Orlando, FL 32801,Attorney for Defendant, Emilio Duboy.
COLE, SCOTT & KISSANE, P.A.
Counsel for Defendant Life Changes Addition
Treatment Center of The Palm Beaches and
Jeanine Beattie, ARNP;
Cole, Scott & Kissane Building
9150 South Dadeland Boulevard, Suite 1400
P.O. Box 569015
Miami, Florida 33256
Telephone (305) 350-5354
Facsimile (305) 373-2294
Primary e-mail: jonathan.midwall@csklegal.com
Secondary e-mail: alyssa.tornberg@csklegal.com
Alternate e-mail: omaira.rodriguez@csklegal.com
By: _s/ Jonathan M. Midwall
JONATHAN M. MIDWALL
Florida Bar No.: 182011
ALYSSA M. TORNBERG
Florida Bar No.: 127409
13
COLE, SCOTT & KISSANE, P.A.
COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAXEXHIBIT A
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CASE NO.: 2012CA013379XXXXMB
CIVIL DIVISION “AG”
HAKIM ABDUL AZIZI, personal
representative of the estate of JAWID,
AZIZI,
EINAL DISPOSITION FORM
_— (Fla.R.Civ.P Form 1.998
Plaintiff, THE CLERK 1S DIRECTED TO CLOSE THIS FILE
vy. 7 MEANS OF FINAL DISPOSITION
Q Dismissed Before Hearing Ci Disposed by Non-Jury Trial
REGENCY PROPERTIES OF BOCA O Dismissed After Hearing Disposed by Jury Trial
RATON, INC. d/b/a BOCA HOUSE, Ci Dismissed by Default Other
by Judge
Defendant.
ORDER GRANTING DEFENDANT’S
MOTION FOR FINAL SUMMARY JUDGMENT
THIS CAUSE came before the court on Defendant’s, Regency Properties of Boca Raton,
Inc. d/b/a Boca House (“Boca House”), Motion for Final Summary Judgment filed on December
30, 2014. The court has carefully reviewed the Motion, Plaintiff's Response, Defendant’s Reply,
and all applicable legal authority, and is otherwise fully advised in the premises.
I. BACKGROUND
d
SVHS
5102
>
This case arises out of the death of Jawid Azizi (“Decedent”) at ee Houge
a
aseiy
house located in Boca Raton, Florida. On June 4, 2010, the Decedent movi Boga Hae.
On June 8, 2010, the Decedent was ejected from Boca House for rating eo op
accordance with house rules, the Decedent spent the night in a detox facility Bra tumed to
Boca House the next day. On July 22, 2010, the Decedent again failed an alcohol test and was
again ejected from Boca House. This time the Decedent did not go to detox and left the soberhouse. The next morning, an employee of Boca House found Decedent’s body. floating in the
' ‘swimming pool. The Decedent apparently had cut his left wrist. : |
‘Plaintiff, Hakim Abdul Azizi (“Azizi”), brings the instant action against Boca House as
the, personal representative (and brother) of Decedent, alleging that the wrongful death of his
brother was a result of Boca House’s negligence.
IL. STANDARD OF REVIEW
Summary judgment may be entered when it is shown that there is no genuine issue as to
any material fact and that the moving party is entitled as to judgment as a matter of law. Fla. R.
Civ. P. 1.510(c). The moving party bears the burden of establishing irrefutably that the
nonmoving party cannot prevail. Charles v. State Dep't of Children & Families Dist. Nine, 914
So, 2d 1, 2 (Fla. 4th DCA 2005). When considering a motion for summary judgment, it is settled
that a trial court is not permitted to weigh material conflicting evidence. Sasson v. Rockwell
Mf... Co., 715 So, 2d 1066, 1067 (Fla. 3d DCA 1998). Further, the court must draw every
possible inference in favor of the party against whom a summary judgment is sought.. Gonzalez
v. Be B Cash Grocery Stores, Inc., 692 So. 2d 297, 299 (Fla. 4th DCA 1997).
Ill. ANALYSIS
Absent a specific duty of care, there is no liability for the suicide. of another in the State
of Florida. Such a duty of care may exist where a patient has surrendered himself to the custody,
care, and Tetment of a locked-down psychiatric hospital and its staff, and the hospital failed to
take protective méasures to prevent a patient from injuring himself. Garcia v. Lifemark
n Hospitals of Florida, 754 So. 2d 48, 49 (Fla. 3d DCA 1999). However, this duty does not extend
to missions, shelters, halfway houses, or other residential facilities that may have certain rules
ms , but do not restrain the liberty of their residents.In Lighthouse Mission of Orlando, Inc. v. Estate of McGowen, the Fifth District Court of
Appeal considered a case where the resident of the mission, a halfway house for ex-convicts,
raped and murdered an eleven year old girl who lived next door. Lighthouse Mission of Orlando,
Inc. v. Estate of McGowen, 683 So. 2d 1086, 1088 (Fla. Sth DCA 1996). The court held that the
resident of the mission a not in the custody or control of the mission and there were no
restraints on his liberty. /d. Because the resident paid rent in exchange for his room and board,
he essentially lived. at the mission as a tenant and under these circumstances the court found that
because the mission did not possess the right or ability to control the resident, they did not owe'a
duty to the plaintiff: Jd.
In this case, the Decedent had been lawfully discharged from the premises of Boca House
the day before his death. In order to effectively operate, a halfway house or sober living facility
must have structured rules and regulations. One’ of the rules at Boca House was that residents
must pass all alcohol tests. On June 8, 2010, pursuant to house rules, the Decedent failed an
alcohol test and was properly ejected from the Boca House until he had spent the night in detox
and returned sober. On June 22, 2010, the Decedent again failed an alcohol test and again was
properly ejected. He then left the sober house. At that time, Boca House did not owe.a duty to
the Decedent to prevent him from injuring himself. As noted by the Fifth District Court of
Appeal, it is a sound public policy to not extend such a duty to nonprofit organizations such as
homeless shelters and halfway houses, because they would be reluctant to assist released inmates
and those recovering from addiction if such a duty existed. Lighthouse Mission of Orlando, 683
So, 2d at 1088-89. -
In Kelley v. Beverly Hills Club Apartments, the Third District Court of Appeal considered
a case where the plaintiff was a resident of an apartment community where residents receivedaddiction and mental health treatment.' Kelley v. Beverly Hills Club, Apartments, 68 So, 34-954,
956 (Fla. 3d DCA 2011). The court determined that the defendant, who owned aid operated the
rental apartment community but did not deal directly with the plaintiff in any way, owed no duty
to-the plaintiff.
Even if Azizi had been told that his brother may receive some type of treatment while a
resident of Boca House, this does not create a legal duty for Boca House. Moréover, even if the
hospital where the Decedent was previously a patient thought he might get inpatient treatment
when he moved into the.Boca House, this also does not create a duty. The Decedent was
absolutely free to come and go as he chose, and though Boca House provided AA/NA meetings
to its residents, it did not have a common law duty to maintain a vigil over those who sought
shelter. See Metro. Dade County v. Dubon, 780 So. 2d 328, 330 (Fla. 3d DCA 2001). In Dubon,
the Third District Court of Appeal held that a homeless shelter did not owe a duty to a resident
who was stabbed by another resident of the shelter, despite the shelter’s knowledge of prior
verbal threats from the assailant. Jd. The court in Dubon concluded that the shelter had.no duty
to control the actions of the offending resident. /d.
Defendant, as a sober living facility, did not have custody or control of the Decedent after
he left the house and after he had been properly ejected from the facility the night before his
death, Therefore, the court finds that there are no genuine issues of material fact that and that
Defendant Boca House owed no duty of care to the Decedent as a matter of law. Accordingly, it
is
' The Beverly Hills Club Apartments owned and operated the rental apartment community, while another
corporation, Extended Care Treatment, Inc. provided any treatment and assigned clients to spécific-units.. Kelley, 68
So: 3d at 955. “Therefore, the plaintiff had no lease or agreement with The Beverly Hills Club and in tum, The
Beverly Hills Club did not know anything about the plaintiff's medical history or treatment and did not have any
contro! over the plaintiff. /d.
5ORDERED and ADJUDGED that Defendant’s Motion for Summary Judgment is
GRANTED.
DONE.and. ORDERED in Chambers in West Palm Beach, Palm Beach County, Florida .
this “day of March, 2015.
Copies furnished to: .
_ Seth A. Kolton, Esq., 2255 Glades Road, Suite 218-A, Boca Raton, FL 33431; sak@weissandhandlerpa.com
Barbara S. Diamond, Esq., 1000 N.W. 57th Court, Suite 300, Miami, FL 33126; bdiamond@defer inselEXHIBIT B
IN THE CIRCUIT COURT OF THE FIDFTEENTH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CIVILDIVISION DIV; “AF”
CASENO.: 2018CA010087AXX
ANN J. HERRERA, as Administrator
of the Estate of Blake Alexander Meier, deceased,
Plaintiff,
vs.
QHEALTH SERVICES, INC., a Florida for
Profit Corporation d/b/a Q Health Palm Beach,
And EMILIO DUBOY, M.D., an individual,
Defendants.
ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS WITH PREJUDICE
THIS CAUSE came before the Court on August 3, 2020 upon the Defendants’ separate
Motions to Dismiss Plaintiffs Fourth Amended Complaint (“FAC”) (DE #181), filed by
Defendant Q Health Services, Inc., d/b/a Q Health Palm Beach (“Q Health”) (DE #185), and by
Defendant Emilio Duboy, M.D. (“Duboy”) (DE #186), both filed May 28, 2020. Plaintiff
responded to these motions separately (DE ##190, 191), filed July 20, 2020. The Court having
carefully reviewed Defendants’ Motions, Plaintiff's Responses, including the Plaintiff's filed
evidence (DE #193), filed July 21, 2000, and Plaintiff's Supplemental authority provided to the
Court on August 28, 2020, having reviewed the FAC, having reviewed the case file and record,
having heard argument of counsel, and after being otherwise fully advised in the premises, finds
as follows:
A. Background.
This is a wrongful death action filed by Ann J. Herrera as administrator of the estate of
Blake Alexander Meier (“Meier” or “Decedent”), deceased. This is plaintiff's fifth attempt to statecauses of action against the defendants. The original complaint (DE #2) was filed on August 8,
2018, and all defendants filed motions to dismiss the original complaint, which Plaintiff amended
as a matter of course pursuant to Fl. R. Civ. P. 1.190(a2) (DE #32). Defendants then moved to
dismiss the First Amended Complaint (DE ##34, 40, 48), and by Order entered March 22, 2019,
the First Amended Complaint was dismissed with leave to amend (DE #64). The Second Amended
Complaint (DE #72) was met with another round of Motions to Dismiss (DE ##75, 76), and it was
dismissed without prejudice by Order entered September 23, 2019 on the ground that the original
plaintiff, Dawn Camarda, as mother and next friend of Meier, was without standing to bring the
action in her individual capacity (DE #139).
The current plaintiff, Ann J. Herrera, was appointed administrator of Meier’s estate, and
the Third Amended Complaint was deemed filed as of December 4, 2019 (DE #147). All
defendants named in the third amended complaint again moved to dismiss (DE ##148, 150). By
Order entered April 16, 2020, the Court dismissed with prejudice certain improperly named
defendants, and also dismissed with prejudice Counts 2, 3, 4, 5, and 6 of the Third Amended
Complaint. Counts 1, 7, and 8 were dismissed without prejudice, and Plaintiff was granted leave
to file the FAC (DE #170).
Thus, as the case currently stands, under the FAC the Plaintiff remains Ann J. Herrera, in
her capacity as administrator of Meier’s estate. The remaining defendants are Q Health and
Duboy. The FAC contains the following counts:
Count 1 - “Negligence — Wrongful Death Against Q Health”
Count 2 - “Negligence — Medical Malpractice of Emilio Duboy, M.D.”
Count 3 — Vicarious Liability of Q Health for Dr. Duboy”@E #181, ff 123-143, 144-158, 159-170), Defendants’ motions to dismiss the FAC are the
subject of this Order.
B. The Facts Alleged In the FAC.
Because these motions are presented as Motions to Dismiss for failure to state a cause of
action under Fl. R. Civ. P. 1.140(b)(6), the Court will carefully set forth the facts alleged in the
FAC as to each Defendant. In reciting these facts, in order to avoid repeated use of the words
“alleges” and “alleged,” the Court hereby acknowledges that the facts next recited are all “alleged”
by Plaintiff and are only presumed as true for the purpose of ruling on the pending motions.
(a) At the time of the incidents complained of, the Decedent, Meier, was a 26 year-old
adult male resident of Georgia who on July 19, 2016 was ordered by the State/Magistrate Court of
Fulton County, Georgia, to, inter alia, attend impatient treatment at C.A.R.E. Addiction Recovery
in North Palm Beach, Florida (FAC, { 15 and Ex. “B”). While not explained in the FAC (and
ultimately irrelevant for purposes of the case and this Order), ultimately Meier instead was
admitted to Q Health on July 26, 2016 (id, { 16).
(6) On August 9, 2016, Meier was expelled (“involuntarily discharged”) for having
used illicit drugs while at the Q Health facility in violation of Q Health rules (/d., {| 62-64, 73).
On that date, Q Health agents or employees transported Meier (along with two other expelled
patients) to a motel in West Palm Beach (id, J 86). Q Health agents or employees made the
decision as to the motel to which Meier was taken (a motel that was used by Q Health to place
expelled patients and for which Q Health received discounted rates), made the reservation, and
placed Meier in the same room with the other two expelled patients (/d., ¥] 86-88, 89, 93-98).(©) After being released to the motel, Meier — either alone or with the other expelled
patients, acquired various illicit drugs (/d., { 100). Meier subsequently died from an overdose on
August 10, 2016 (Id., J 100-101).
@ QHealth is an inpatient drug rehabilitation facility (/d., 7). Duboy is a licensed
physician specializing in psychiatry and was employed by Q Health as its chief medical officer
and medical director (Id. TJ 9-11).
©) Meier was admitted to Q Health to receive treatment for opioid and drug addiction
and associated mental health treatment (/d., 17). Q Health had exclusive supervision and control
over Meier while at its facility (Id. J 18).
@ While at Q Health Meier received medications prescribed by Duboy to alleviate
cravings and withdrawal symptoms (Jd, 22-23). When Meier was discharged from Q Health, he
no longer had access to these medications, and Q Health did not coordinate with other health care
providers to continue the medications (Jd., 24).
(g) Prior to Meier’s admission, Q Health representatives told his mother that he would
undergo intensive addiction treatment and that she would be notified if he suffered a relapse of
drug use while at the facility or violated facility rules (Id., 27-29). Q Health representative told
Meier’s mother that she would be notified of any involuntary discharge of Meier prior to effecting
such discharge so that she could arrange for alternative care (Id., { 30-31).
(h) Q Health had a written contract under which it agreed to take precautionary
measures to protect Meier from self-harm or overdosing and to inform his mother in the event he
was to be involuntarily discharged or violated Q Health rules. Meier agreed to these terms, and Q
Health had accurate contact information for his mother (/d., { 36-43).@ Meier entered Q Health with histories of depression, anxiety, and post-traumatic
stress disorder. He also reported a prior relapse and high-risk withdrawal symptoms, including
seizures, He reported an overdose event that occurred in July 2015 (id, ] 44-48). At the time of
his admission Meier was taking prescription drugs to control seizures, ADHD, and depression and
anxiety (Id., | 44-48, 51).
@ Meier reported a history of using heroin, oxycodone, morphine, Percocet,
marijuana and Dilaudid. His last usage prior to admission was July 20, 2016. He reported using
heroin and Xanax daily and did not attempt to stop using drugs, although he had a significant
history of attending inpatient detoxification programs (Jd. | 52-57).
(kK) Meier became involved with two other patients, C.D. and T.L., who also had drug
addictions. On August 9, 2016, Meier ingested an illicit drug, either alone or with these
individuals, and he and the two individuals were involuntarily discharged (expelled) by Q Health
that day for violating Q Health’s rule forbidding the use of illicit drugs while a patient (Id, § 60-
65).
ad) There were no physicians (including Duboy) present at the facility when Meier was
expelled, and he received no evaluation counseling or treatment in conjunction with his expulsion.
Q Health knew that as an addict Meier had relapse and withdrawal risks (/d., { 66-69, 81-82). His
mother was not notified by Q Health of Meier’s rule violation or expulsion, and Meier had no
means of contacting her at the time of or after his expulsion (Jd., § 70-72, 83-85).
(m) Notes in Q Health’s records of Meier noted risks of relapse upon becoming an
outpatient and that he was experiencing drug-seeking behaviors needing more intensive treatment,
that he had unresolved grief issues, and that his motivation was “poor.” Q Health had knowledgethat Meier presented a risk of withdrawal symptoms and relapse to illicit drug use upon his
discharge (Id., J 78-80, 102-103, 111-113).
(n) On August 9, 2016, Q Health transported Meier, C.D. and T.L. to a local motel
selected by Q Health, booked a room for the three of them, and paid for the room, even though
separate rooms were available. Q Health used this motel for the same purpose on other occasions
and received discounted rates (Id., J] 86-98).
{o) After being left at the hotel, on August 10, 2016 Meier, either alone or with the
other two individuals, obtained illicit drugs including Fentanyl, and Meier either ingested or
injected the drugs and overdosed, causing his death (Id., ¥] 100-101).
C. The Standards Applicable To A Rule 1.140(b)(6) Motion To Dismiss.
The primary purpose of a Motion to Dismiss is to determine whether the Complaint
properly states a cause of action upon which relief can be granted and, if it does not, to enter an
order of dismissal. In making this determination, this Court is to review the claims, including all
attached exhibits, see Atkins v. Topp Telecom, Inc., 873 So. 2d 397, 399 (Fla. 4th DCA 2004), and
draw all inferences in favor of the Plaintiff, and accept as true all well-pled allegations. In short,
the Court must determine whether, assuming all the allegations in the pleading to be true, the
Plaintiff has stated a cause of action upon which it is entitled to relief. See, e.g., Connolly v.
Sebeco, Inc., 89 So. 2d 482, 484 (Fla. 1956); City of Gainesville v. State Dept. of Transp., 778 So.
2d 519, 522 (Fla. 1st DCA 2001); Wausau Ins. Co. v. Haynes, 683 So. 2d 1123, 1124 (Fla. 4th
DCA 1996).
Under the Florida Rules of Civil Procedure, a well-pled Complaint requires Plaintiff to
allege ultimate facts showing that the pleader is entitled to relief. See Fla. R. Civ. P. 1.110(b)
(requiring a short and plain statement of the ultimate facts showing that the pleader is entitled torelief). To comply with this requirement, a Complaint “must set forth factual assertions that can
be supported by evidence which gives rise to legal liability.” It is insufficient to plead opinions,
theories, legal conclusions or arguments, Barrett v. City of Margate, 743 So. 2d 1160, 1162-63
Gla. 4th DCA 1999), Of course, the court “need not accept internally inconsistent factual claims,
conclusory allegations, unwarranted deductions, or mere legal conclusions made by a party.” W.R.
Townsend Contr., Inc. v. Jensen Civil Const., Inc., 728 So. 2d 297, 300 (Fla. lst DCA 1999),
Ultimately, “[t]he test for a motion to dismiss under rule 1.140(b)(6) is whether the pleader
could prove any set of facts whatever in support of the claim.” Rocks v. McLaughlin Engineering
Co,, 49 So. 3d 823, 827 (Fla. 4th DCA 2010). In this regard, the Court notes that Plaintiff, in her
fifth rendition of her complaint, has copiously and comprehensively pleaded all of the facts relating
to the circumstances leading up to Meier’s death, including the facts upon which she bases her
claims against defendants. The question is whether those facts support the causes of action asserted
against defendants. The answer is no.
D. Upon Discharge Defendants Owed No Duty of Care to Meier.
Defendants’ Motions to Dismiss focus primarily upon the issue of duty: At the time that
Meier ingested the drugs that caused his overdose and death, did defendants, or either of them,
owe any duty of care to him? This question is central to all three of plaintiff's counts - common
law negligence as to Q Health, medical malpractice as to Duboy, and Q Health’s vicarious liability
for Duboy’s alleged malpractice.
(1) = @ Health owed no duis to Meier.
“ ‘The issue of legal duty in a negligence case asks “whether the plaintiff's interests are
entitled to legal protection against the defendant’s conduct.” Pollack v. Cruz, 296 So. 3d 453, 460
la. 4th DCA 2020), quoting Knight v. Merhige, 133 So. 3d 1140, 1149 (Fla. 4th DCA 2014),quoting Prosser & Keeton on the Law of Torts § 53, at 357. Likewise, duty is elemental to a
medical malpractice action. Ruiz v. Tenet Hialeah Health System, Inc., 260 So. 3d 977, 981 (Fla.
2018) (setting forth elements of medical malpractice claim). The existence of duty is a threshold
issue of law; if no duty exists, no claim will lie. Las Olas Holding Co. v. Demella, 228 So. 3d 97,
103 (Fla. 4th DCA 2017).
The existence of duty turns in part upon foreseeability; i.¢., that the defendant’s conduct
presents a foreseeable risk of harm to the plaintiff. McCain v. Florida Power Corp., 590 So. 2d
500, 503 (Fla. 1992). Plaintiff heavily relies upon the “zone of risk” concept espoused in decisions
addressing the element of duty. E.g., Kaisner y. Kolb, 543 So. 2d 732, 735 (Fla. 1989). What
must be emphasized, however, is that the “zone of risk” must be created by a defendant’s conduct.
“The proper way of determining whether a duty existed is to decide whether the defendant's actions
created a foreseeable zone of risk, not by whether the specific injury suffered was foreseeable by
the defendant.” Florida Power & Light Co. v. Periera, 705 So. 2d 1359, 1361 (Fla. 1998)
(emphasis added). This critical distinction cannot be overemphasized in this case,
Unquestionably, the injury that Meier suffered — overdose and death due to consumption
of drugs — was foreseeable. This is endemic to addiction: It is always foreseeable that one who
has an addiction might injure or kill himself or herself by overdose. However, based on the deeply
detailed facts pled in the FAC, defendants’ actions did not create a foreseeable zone of risk that
resulted in Meier’s death.
Meier was a drug addict and as such had a constant urge and craving for drugs. Defendants,
of course, did not create his condition. Meier’s condition — not defendants’ conduct — was Meier’s
“zone of risk,” and that zone was everywhere: Whether he was left at a motel, or turned over to
another treatment facility, or to his mother, or to law enforcement, Meier — because of his addiction— was always at risk of obtaining and ingesting drugs and overdosing. Indeed, Plaintiff's own facts
demonstrate as much. While at Q Health, Meier’s addiction drove him to somehow obtain and
consume illicit drugs at the facility, knowing that doing so would expose him to expulsion. In
short, Meier and his addiction created his “zone of risk,” and that zone was present in any set of
circumstances. Such is the scourge of addiction. Cf Mental Health Care, Inc. v. Stuart, 909 So.
2d 371, 374 (Fla, 2d DCA 2005) (noting “the inherent unpredictability associated with mental
illnesses and the ‘near-impossibility of accurately or reliably predicting dangerousness””), quoting
Boynton v. Burgess, 590 So. 2d 446, 450 (Fla. 3d DCA 1991); Tuten v. Fariborzian, 84 So. 3d
1063, 1068 (Fla. 1st DCA 2012) (“because the future behavior of a psychiatric patient is
unknowable, under Florida law risk of harm is not foreseeable and therefore no duty exists to
Jessen the risk or protect others from the type of risk which a psychiatric patient might pose”).
In addition to foreseeability, “‘A duty requires one to be in a position to “control the risk.”””
Pollack v. Cruz, 296 So. 3d 453, 457 (Fla. 4th DCA 2020), quoting Surloff'v. Regions Bank, 179
So. 3d 472, 476 (Fla 4th DCA 2015), quoting Aguila v. Hilton, Inc., 878 So. 2d 392, 396 (Fla. 1st
DCA 2004). Surloff is instructive. In that case, the decedent was an individual who suffered
severe mental and physical impairments that rendered him unable to process information and
caused resulting anxiety. Both family members and the decedent’s physician informed Regions
Bank representatives of his condition, and those representatives were instructed not to discuss
finances or the loan process with him. Despite these instructions and the bank’s agreement to
follow them, an employee of the bank who knew of the instructions nonetheless continued to
communicate directly with the decedent and one day met with the decedent
Preview
Filing # 129783562 E-Filed 06/30/2021 09:44:17 AM IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 50-2018-CA-15763-XXXX-MB ELIZABETH L. BALZARANO, Individually, and as Personal Representative of the ESTATE OF MICHELLE L. BALZARANO, Plaintiffs, v. LIFELINE RECOVERY, LLC d/b/a LIFELINE RECOVERY SUPPORT SERVICES, a Foreign Corporation; JOHN BROGAN; LIFE CHANGES ADDICTION TREATMENT CENTER OF THE PALM BEACHES; WARBIRD PROPERTIES, LLC, d/b/a CAMERON VILLA, LLC, a Florida Corporation; EMILIO DUBOY, M.D.; and JANINE BEATTIE, ARNP, Defendants. DEFENDANT, LIFE CHANGES ADDITIONAL TREATMENT CENTER OF THE PALM BEACHES AND JANINE BEATTIE, ARNP’S MOTION FOR SUMMARY JUDGMENT COMES NOW, the Defendants, Life Changes Addition Treatment Center of The Palm Beaches and Jeanine Beattie, ARNP, (hereinafter “DEFENDANT”) by and through its undersigned attorney, and pursuant to Florida Rule of Civil Procedure 1.510, hereby moves this Honorable Court for entry of an Order granting Final Summary Judgment in favor of the Defendant as the Plaintiff is unable to prove that any alleged negligence was the cause of Plaintiffs damages, and in support thereof, states as follows: COLE, SCOTT & KISSANE, P.A. COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 93256 - (305) 350-5300 - (305) 373-2204 FAX '** FILED: PALM BEACH COUNTY, FL JOSEPH ABRUZZO, CLERK. 06/30/2021 09:44:17 AM ***CASE NO.: 50-2018-CA-15763-XXXX-MB INTRODUCTION The Plaintiff has brought the instant medical negligence action against the undersigned Defendants, Life Changes Addition Treatment Center of The Palm Beaches and Jeanine Beattie, ARNP, based upon the alleged wrongful death of the Decedent, Michelle Balazarano, who received substance abuse treatment at the undersigned’s facility, LIFE CHANGES. The Decedent took her own life nearly two months following her discharge from the Defendant's facility. The Plaintiff contends that LIFE CHANGES breached its duty by failing to provide Ms. Balzarano with an adequate amount of prescription medication at the time of discharge or refer her to a community-based physician for the assumption of care. The Defendant did not owe the Decedent a legally cognizable futy of care at the time of her death as she was no longer under their care, custody or control. Further, there is no genuine issue of material fact that the undersigned was not the cause of the the Plaintiff's death. Accordingly, summary judgment should be entered for these Defendants. UNCONTESTED FACTS 1. The operative Second Amended Complaint asserts nineteen counts against the Defendants. As to LIFE CHANGES, the Plaintiff alleges wrongful death (Count 8), violation of Florida Statute §415.1111 (Count 9), breach of a fiduciary duty (Count 10), medical negligence (Count 17), vicarious liability based upon actual agency (Count 18) and vicarious liability based upon apparent agency. 2. Ms. Balzarano was admitted the LIFE CHANGES on February 19, 2017. She had an extensive history of depression, anxiety, and drug abuse. She was admitted to 2 COLE, SCOTT & KISSANE, P.A. COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAXCASE NO.: 50-2018-CA-15763-XXXX-MB the Partial Hospitalization Program (PHP) where she underwent extensive care and treatment. 3. Having successfully completed her program, Ms. Balzarano was discharged from LIFE CHANGES on April 11, 2017 to a halfway house operated by the co- defendant, CAMERON VILLA. 4. Ms. Balzarano was discharged from Life Changes with a 10-day supply of Seroquel, 14-day supply of Trileptal, and 9-day supply of Topamax and instructions to follow up with a community-based mental health care provider. 5. Shortly after discharge, Ms. Balzarano was seen at JFK Medical Center Emergency Department on April 16, 2017 for a medication refill. She requested a refill of her medication until she could establish with a local doctor. 6. Ms. Balzarano was given a 4-day supply of Trileptal, Topamax, and Seroquel. She was also given information on residency clinics and South County Mental Health. The discharge instructions instruct her to follow up with an adult clinic or South County Mental Health in two days. 7. Nearly two months later, on June 6, 2017, Ms. Balzarano took her own life by hanging herself in a closet at CAMERON VILLA. 8. The Plaintiff asserts that the Defendants owed the Decedent a duty of care which was breached, and as a direct and proximate cause of the Defendants’ negligence, she lost her life. 9. The Defendants submit the instant Motion for Summary Judgment arguing that (1) the Defendants owed no duty of care to the Plaintiff at the time of her death, and (2) there is no factual dispute in evidence regarding any conduct or action by the 3 COLE, SCOTT & KISSANE, P.A. COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAXCASE NO.: 50-2018-CA-15763-XXXX-MB Defendants that caused or contributed to the Plaintiffs claimed damages. As a result, the Defendants seek summary judgment in their favor as a matter of law. MEMORANDUM OF LAW I. Legal Standard Governing Motions for Summary Judgment In In Re: Amendments to Florida Rule of Civil Procedure 1.510, No. SC20-1490 (Fla. Dec. 31, 2020), the Florida Supreme Court largely replaced the text of existing rule 1.510 with the text of Rule 56, Fed.R.Civ.P. The new rule 1.510(a) also added the following sentence: “The summary judgment standard provided for in this rule shall be construed and applied in accordance with the federal summary judgment standard.” /d. Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. “Rule 56[] mandates the entry of summary judgment...against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. /d. at 323. The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to establish that there is a “genuine issue for trial.” /d. at 324 (citation and internal quotation marks omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 4 COLE, SCOTT & KISSANE, P.A. COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAXCASE NO.: 50-2018-CA-15763-XXXX-MB On motion for summary judgment, the Court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255. Any factual disputes will be resolved in the non-moving party’s favor when sufficient competent evidence supports the non-moving party’s version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276, 1278 (11th Cir. 2002) (a court is not required to resolve disputes in the non-moving party’s favor when that party’s version of events is supported by insufficient evidence). However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere ‘scintilla’ of evidence supporting the opposing party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252). The Florida Supreme Court has now made it clear, “Where the nonmovant bears the ultimate burden of persuasion at trial on a particular issue . . . the requirements that Rule 56 impose on the moving party are not onerous.” /n Re: Amendments to Florida Rule of Civil Procedure 1.510, No. SC20-1490 (Fla. Dec. 31, 2020). A movant for summary judgment need not set forth evidence in the motion when the nonmovant bears the burden of persuasion at trial. Id. See Wease v. Ocwen Loan Servicing, LLC, 915 F. 3d 987 (5th Cir. 2019). Additionally, a moving party that does not bear the burden of persuasion at trial can obtain summary judgment without disproving the nonmovant’s case. In Re: 5 COLE, SCOTT & KISSANE, P.A. COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAXCASE NO.: 50-2018-CA-15763-XXXX-MB Amendments to Florida Rule of Civil Procedure 1.510, No. SC20-1490 (Fla. Dec. 31, 2020). Plaintiffs have failed to establish that the undersigned Defendants owned a duty of care to the Decedent at the time of her passing. Additionally, Plaintiffs have failed to produce any evidence to support the claim that these Defendants were the legal cause of any injuries or damages to the Plaintiffs. Accordingly, there is no genuine issue as to any material fact regarding the allegations against the Defendants, and therefore, they are entitled to summary judgment as a matter of law. I. Analysis a. The Defendants did not owe the Decedent a legally recognized duty of care as the Defendants did not have care, custody, and/or control over the Decedent at the time of her death. The Defendants are entitled to summary judgment as a matter of law because there is no genuine issue of material fact as to the issue of duty. Specifically, the Plaintiff's claim fails as a cause of action based in negligence requires the defendant to have a duty to the plaintiff which does not exist in this instance. Clay Elec. Co-op, Inc. v. Johnson, 873 So. 2d 1182, 1185 (Fla. 2003). The “polestar” for determining both the existence and scope of a legal duty is foreseeability. Biglen v. Fla. Power & Light Co., 910 So. 2d 405, 408 (Fla. 4th DCA 2005). One can “assume” such a duty by taking custody and control over another. Estate of Brennan v. Church of Scientology Flag Serv. Org., 832 F. Supp. 2d 1370, 1377-78 (M.D. Fla. 2011). A legal duty requires more than just foreseeability alone. Aguila v. Hilton, Inc., 878 So. 2d 392, 396 (Fla. 1st DCA 2004). A duty requires one to be in a position to "control 6 COLE, SCOTT & KISSANE, P.A. COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAXCASE NO.: 50-2018-CA-15763-XXXX-MB the risk." Id. Thus, in cases of psychiatric facilities, they are liable for a patient's self-harm because they are in a position to prevent patients from injuring themselves. See Paddock, 522 So. 2d at 416. This specific duty is based solely on the patient’s physical presence in the facility, as well as the facility’s ability to supervise, monitor, and restrain the patient. Id. On the contrary, courts have held that the duty to prevent a patient from injuring himself does not extend to residential facilities that may have certain rules, but do not restrain the liberty of their residents. Azizi v. Regency Properties of Boca Raton, Inc., No. 502012CA013379, 2015 WL 1735538 (Fla. Cir. Ct. March 17, 2015). See also, Tuten v. EFariborzian, 84 So.3d 1063, 1068 (Fla. 1* DCA 2012) (noting that when a patient injuries themselves outside of a facility's “range of observation and control,” a duty is not present.) Id. at 1068. Emphasis added. In Azizi v. Regency Properties of Boca Raton, Inc., No. 502012CA013379, 2015 WL 1735538 (Fla. Cir. Ct. March 17, 2015), the personal representative of the estate brought a wrongful death action against Boca House, a sober house located in Boca Raton. In that case, the Decedent had completed treatment for alcohol addiction and psychiatric issues at a New York hospital and was discharged to Boca House. Upon admission, the Decedent agreed to the rules and regulations of Boca House, including the prohibition of alcohol or drugs on the grounds. Residents who are found to be in violation of the rules are driven by an employee of Boca House to another facility to undergo detox. See, Defendant Regency Properties of Boca Raton, Inc. d/b/a Boca House’s Motion for Summary Judgment and Memorandum of Law, attached as Exhibit A. 7 COLE, SCOTT & KISSANE, P.A. COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAXCASE NO.: 50-2018-CA-15763-XXXX-MB The Decedent was found to be in violation of the house rules for failing an alcohol test. He was offered to be transferred to a detox facility but refused. He was therefore evicted from the premises. The following day, he was found dead in the Boca House swimming pool, having cut his wrists. The Plaintiff alleged that Boca House was negligent for failing to provide reasonable rehabilitation services, evaluation, and treatment, resulting in the Decedent’s death. The Court found that the sober living facility did not have custody or control over the decedent after he left the facility and after was ejected from the facility and determined that the facility did not owe a duty of care to the decedent as a matter of law. Id. In so holding, the Court noted that if such a duty was extended, facilities would be reluctant to assist released inmates and those recovering from addiction. Azizi at *2. The Decedent was free to come and go as he pleased, and therefore had no duty to maintain vigil over the Decedent. Id. The Court in Surloff v. Regions Bank, 179 So. 3d 472 (Fla. 4% DCA 2015) contemplated these principles in granting the Defendant’s Motion to Dismiss for failure to state a cause of action. In that case, the Plaintiff suffered from mental and physical impairments resulting in his inability to process complex information. The defendant was instructed by the decedent's family and healthcare providers not to provide sensitive information to the decedent, but ignored this request. The defendant shared sensitive information with the decedent. After leaving the defendant facility, the decedent committed suicide. 8 COLE, SCOTT & KISSANE, P.A. COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAXCASE NO.: 50-2018-CA-15763-XXXX-MB In Surloff, the defendant moved to dismiss for failure to state a cause of action, arguing that the defendant owed no duty to the decedent. In affirming the trial court’s ruling granting the Motion to Dismiss, the Appellate Court held: In the instant case, [Defendant] did not assume a specific duty of care to prevent the decedent from committing suicide. Although [Defendant] allegedly knew of the decedent's mental state and agreed to withhold complex financial information from the decedent, [Defendant] could not undertake a duty to prevent the decedent's suicide because the decedent was not in [Defendant]'s ‘custody or control.’ ... [Defendant] simply had no ability or responsibility to protect the decedent from committing suicide. Surloff at 476. The Court went on to cite Aguila, supra, which stated: [The fact that a defendant realizes or should realize that an action on his or her part is required to ensure the safety of another person does not alone create a duty to take that action. The defendant must also have a right to take the action in question. Most recently, in Herrera v. Q Health Services, Inc., et al, No. 2018CA010087AXX (Fla. Cir. Ct. March 30, 2021), the Honorable John Kastrenakes considered an identical argument raised in a factually analogous case, granting the Defendants’ Motion to Dismiss. In that case, the Decedent was discharged from the Defendant facility. The day after discharge, the Decedent died of a drug overdose. See, Exhibit B, at *3-4. The Court was asked to answer the question of duty, specifically, whether at the time the Decedent ingested the drugs that caused his overdose and death, did the defendants owe any duty of care to him? The Court held the answer was “no.” The Court further found that the Defendant facility no longer had custody or control over the Decedent at the time of his overdose, and therefore, had no legal duty cognizable under a theory of negligence. Id. at *10, relying on Surloff, supra. The Court therefore granted the Defendants’ motion. 9 COLE, SCOTT & KISSANE, P.A. COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAXCASE NO.: 50-2018-CA-15763-XXXX-MB In the present case, the Defendants owed no duty of care to Ms. Balzarano at the time of her death. Ms. Balzarano was discharged from LIFE CHANGES on April 11, 2017, nearly two months prior to her suicide. Ms. Balzarano was no longer under the custody and control of the undersigned Defendants at the time of her death. As a result, the undersigned owed no duty of care to protect Ms. Balzarano once she left their custody and control and therefore, had no duty to prevent the injuries alleged in the Complaint. See, Tuten, supra. As the facility has no duty to protect Ms. Balzarano at the time of her death, there is no genuine issue of material fact as to the element of duty in this case and summary judgment should enter. b. There is no genuine issue of material fact that the Defendants’ purported negligence was the proximate cause of the Decedent’s death. Under Florida law, it is well settled that, in order to recover in a medical negligence case, a plaintiff must prove 1) that the defendant owed a duty of care to the plaintiff; 2) that the defendant breached the duty; and 3) that the breach, more likely than not, proximately caused the damages claimed by the plaintiff. Wroy v. N. Miami Med. Ctr, Ltd., 937 So.2d 116, 1117 (Fla. 3d DCA 2006) (citing Gooding v. University Hosp. Bldg., Inc., 445 So. 2d 1015, 1018 (Fla. 1984). The Gooding court quoted Prosser as follows: On the issue of causation, as on other issues essential to his cause of action for negligence, the plaintiff, in general, has the burden of proof. He must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant. Prosser, Law of Tort, Sec. 41 (4tn Ed. 1971). 10 COLE, SCOTT & KISSANE, P.A. COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAXCASE NO.: 50-2018-CA-15763-XXXX-MB In other words, the plaintiff must show that there is greater than a 50% likelihood that the defendant’s negligence caused the plaintiff's injuries. Gooding, 445 So. 2d at 1020. When the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it become the duty of the court to find in favor of the defendant. Wroy v North Miami Medical Center, Ltd., 937 So. 2d 1116 (Fla. 3d DCA 2006); St. Joseph’s Hospital v. Cox, 14 So. 2d 1124 (Fla. 2d DCA 2009). In applying the requirements to establish a prima facie case of negligence in this case, the undisputed facts and evidence demonstrate that the Plaintiff cannot show that the cause of the Plaintiff's death was the purported negligence of these Defendants. As noted above, the sum and substance of the Plaintiff's allegations against LIFE CHANGES is the failure to provide an adequate amount of prescription medication and/or the failure to coordinate appropriate follow up-care at the time of Ms. Balzarano’s discharge. Despite this allegation, the undisputed evidence in this case shows that five- days after discharge, Ms. Balzarano presented to JFK Medical Center Emergency Department in search of refills for her prescription medication. During that ER visit, Ms. Balzarano was provided with a four-day supply of her medication along with instructions to follow up with a community-based mental health care provider. Specifically, the JFK Medical Center Emergency Department record states, “Pt requesting a refill until she can establish with a local doctor.” Further, the ER physician, Steven Keehn, DO, noted, “Pt given 3-day supply. Pt given info on residency clinic and South County Mental Health.” The discharge instructions note, “We are giving you a 4 day supply of your medications today. Please call your psychiatrist to set up for refills within this time frame or follow up 11 COLE, SCOTT & KISSANE, P.A. COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAXCASE NO.: 50-2018-CA-15763-XXXX-MB with South County Mental Health.” See, Exhibit C, Medical Records from JFK Medical Center. The medical record itself makes clear that even assuming arguendo, that the undersigned Defendants breached their duty of care’ at the time of discharge, the evidence in this case is unequivocal that it has no causal link to the Decedent’s death. As instructed by LIFE CHANGES, Ms. Balzarano presented to a subsequent health care provider to obtain a refill of her prescription medication. There is no evidence that the Defendants’ breach was a substantial factor in bringing about the result. Since the Plaintiff is not able to prove the causation issues necessary to support a theory of negligence, the Defendants are entitled to summary judgment as a matter of law. CONCLUSION Plaintiff cannot hold Defendants, Life Changes Addition Treatment Center of The Palm Beaches and Jeanine Beattie, ARNP liable for their purported negligence. The Defendant owed no duty of care to the Decedent at the time of her death. Furthermore, the Plaintiff cannot, as a matter of law, prove the essential element of causation. WHEREFORE, the Defendants, Life Changes Addition Treatment Center of The Palm Beaches and Jeanine Beattie, ARNP, respectfully move this Court to grant its Motion for Summary Judgment and enter a judgment in its favor as a matter of law, as well as any additional relief this Court deems just and proper. 1 As noted in Section A above, the Defendants dispute that they owed any duty of care to the Decedent following her discharge from its facility. 12 COLE, SCOTT & KISSANE, P.A. COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAXCASE NO.: 50-2018-CA-15763-XXXX-MB CERTIFICATE OF SERVICE | HEREBY CERTIFY that on this 30‘ day of June 2021, a true and correct copy of the foregoing was filed with the Clerk of Palm Beach County by using the Florida Courts e-Filing Portal, which will send an automatic e-mail message to the following parties registered with the e-Filing Portal system: Thomas D. Graham, Esq., Leesfield Scolaro, P.A., 2350 So. Dixie Highway, Miami, FL 33133, Attorney for Plaintiff, Elizabeth L. Balzarano, Nicole Sauvola-LaMay, Esq., Nicole Sauvola-LaMay PA, Colelaw36@gmail.com, 4500 PGA Boulevard, Suite 200, Palm Beach Gardens, FL 33418, Attorney for Defendant, Warbird Properties LLC dba CAMERON VILLA, LLC, Thomas Scolaro, Esq., Leesfield Scolaro, scolaro@leesfield.com;rose@leesfield.com;azcuy@leesfield.com:garcia@leesfield.com ;merida@leesfield.com, 2350 South Dixie Highway, Miami, FL 33133, Attorney for Plaintiff, Elizabeth L. Balzarano and Noelle Sheehan, Esq., Wilson Elser Moskowitz Edelman & Dicker, LLP, Noelle.Sheehan@wilsone lser.com;vicki.sheridan@wilsonelser.com;abigail.ralson@wilsonelser.com, 111 N. Orange Ave., Suite 1200, Orlando, FL 32801,Attorney for Defendant, Emilio Duboy. COLE, SCOTT & KISSANE, P.A. Counsel for Defendant Life Changes Addition Treatment Center of The Palm Beaches and Jeanine Beattie, ARNP; Cole, Scott & Kissane Building 9150 South Dadeland Boulevard, Suite 1400 P.O. Box 569015 Miami, Florida 33256 Telephone (305) 350-5354 Facsimile (305) 373-2294 Primary e-mail: jonathan.midwall@csklegal.com Secondary e-mail: alyssa.tornberg@csklegal.com Alternate e-mail: omaira.rodriguez@csklegal.com By: _s/ Jonathan M. Midwall JONATHAN M. MIDWALL Florida Bar No.: 182011 ALYSSA M. TORNBERG Florida Bar No.: 127409 13 COLE, SCOTT & KISSANE, P.A. COLE, SCOTT & KISSANE BUILDING - 9150 SOUTH DADELAND BOULEVARD - SUITE 1400 - P.O. BOX 569015 - MIAMI, FLORIDA 33256 - (305) 350-5300 - (305) 373-2294 FAXEXHIBIT A IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 2012CA013379XXXXMB CIVIL DIVISION “AG” HAKIM ABDUL AZIZI, personal representative of the estate of JAWID, AZIZI, EINAL DISPOSITION FORM _— (Fla.R.Civ.P Form 1.998 Plaintiff, THE CLERK 1S DIRECTED TO CLOSE THIS FILE vy. 7 MEANS OF FINAL DISPOSITION Q Dismissed Before Hearing Ci Disposed by Non-Jury Trial REGENCY PROPERTIES OF BOCA O Dismissed After Hearing Disposed by Jury Trial RATON, INC. d/b/a BOCA HOUSE, Ci Dismissed by Default Other by Judge Defendant. ORDER GRANTING DEFENDANT’S MOTION FOR FINAL SUMMARY JUDGMENT THIS CAUSE came before the court on Defendant’s, Regency Properties of Boca Raton, Inc. d/b/a Boca House (“Boca House”), Motion for Final Summary Judgment filed on December 30, 2014. The court has carefully reviewed the Motion, Plaintiff's Response, Defendant’s Reply, and all applicable legal authority, and is otherwise fully advised in the premises. I. BACKGROUND d SVHS 5102 > This case arises out of the death of Jawid Azizi (“Decedent”) at ee Houge a aseiy house located in Boca Raton, Florida. On June 4, 2010, the Decedent movi Boga Hae. On June 8, 2010, the Decedent was ejected from Boca House for rating eo op accordance with house rules, the Decedent spent the night in a detox facility Bra tumed to Boca House the next day. On July 22, 2010, the Decedent again failed an alcohol test and was again ejected from Boca House. This time the Decedent did not go to detox and left the soberhouse. The next morning, an employee of Boca House found Decedent’s body. floating in the ' ‘swimming pool. The Decedent apparently had cut his left wrist. : | ‘Plaintiff, Hakim Abdul Azizi (“Azizi”), brings the instant action against Boca House as the, personal representative (and brother) of Decedent, alleging that the wrongful death of his brother was a result of Boca House’s negligence. IL. STANDARD OF REVIEW Summary judgment may be entered when it is shown that there is no genuine issue as to any material fact and that the moving party is entitled as to judgment as a matter of law. Fla. R. Civ. P. 1.510(c). The moving party bears the burden of establishing irrefutably that the nonmoving party cannot prevail. Charles v. State Dep't of Children & Families Dist. Nine, 914 So, 2d 1, 2 (Fla. 4th DCA 2005). When considering a motion for summary judgment, it is settled that a trial court is not permitted to weigh material conflicting evidence. Sasson v. Rockwell Mf... Co., 715 So, 2d 1066, 1067 (Fla. 3d DCA 1998). Further, the court must draw every possible inference in favor of the party against whom a summary judgment is sought.. Gonzalez v. Be B Cash Grocery Stores, Inc., 692 So. 2d 297, 299 (Fla. 4th DCA 1997). Ill. ANALYSIS Absent a specific duty of care, there is no liability for the suicide. of another in the State of Florida. Such a duty of care may exist where a patient has surrendered himself to the custody, care, and Tetment of a locked-down psychiatric hospital and its staff, and the hospital failed to take protective méasures to prevent a patient from injuring himself. Garcia v. Lifemark n Hospitals of Florida, 754 So. 2d 48, 49 (Fla. 3d DCA 1999). However, this duty does not extend to missions, shelters, halfway houses, or other residential facilities that may have certain rules ms , but do not restrain the liberty of their residents.In Lighthouse Mission of Orlando, Inc. v. Estate of McGowen, the Fifth District Court of Appeal considered a case where the resident of the mission, a halfway house for ex-convicts, raped and murdered an eleven year old girl who lived next door. Lighthouse Mission of Orlando, Inc. v. Estate of McGowen, 683 So. 2d 1086, 1088 (Fla. Sth DCA 1996). The court held that the resident of the mission a not in the custody or control of the mission and there were no restraints on his liberty. /d. Because the resident paid rent in exchange for his room and board, he essentially lived. at the mission as a tenant and under these circumstances the court found that because the mission did not possess the right or ability to control the resident, they did not owe'a duty to the plaintiff: Jd. In this case, the Decedent had been lawfully discharged from the premises of Boca House the day before his death. In order to effectively operate, a halfway house or sober living facility must have structured rules and regulations. One’ of the rules at Boca House was that residents must pass all alcohol tests. On June 8, 2010, pursuant to house rules, the Decedent failed an alcohol test and was properly ejected from the Boca House until he had spent the night in detox and returned sober. On June 22, 2010, the Decedent again failed an alcohol test and again was properly ejected. He then left the sober house. At that time, Boca House did not owe.a duty to the Decedent to prevent him from injuring himself. As noted by the Fifth District Court of Appeal, it is a sound public policy to not extend such a duty to nonprofit organizations such as homeless shelters and halfway houses, because they would be reluctant to assist released inmates and those recovering from addiction if such a duty existed. Lighthouse Mission of Orlando, 683 So, 2d at 1088-89. - In Kelley v. Beverly Hills Club Apartments, the Third District Court of Appeal considered a case where the plaintiff was a resident of an apartment community where residents receivedaddiction and mental health treatment.' Kelley v. Beverly Hills Club, Apartments, 68 So, 34-954, 956 (Fla. 3d DCA 2011). The court determined that the defendant, who owned aid operated the rental apartment community but did not deal directly with the plaintiff in any way, owed no duty to-the plaintiff. Even if Azizi had been told that his brother may receive some type of treatment while a resident of Boca House, this does not create a legal duty for Boca House. Moréover, even if the hospital where the Decedent was previously a patient thought he might get inpatient treatment when he moved into the.Boca House, this also does not create a duty. The Decedent was absolutely free to come and go as he chose, and though Boca House provided AA/NA meetings to its residents, it did not have a common law duty to maintain a vigil over those who sought shelter. See Metro. Dade County v. Dubon, 780 So. 2d 328, 330 (Fla. 3d DCA 2001). In Dubon, the Third District Court of Appeal held that a homeless shelter did not owe a duty to a resident who was stabbed by another resident of the shelter, despite the shelter’s knowledge of prior verbal threats from the assailant. Jd. The court in Dubon concluded that the shelter had.no duty to control the actions of the offending resident. /d. Defendant, as a sober living facility, did not have custody or control of the Decedent after he left the house and after he had been properly ejected from the facility the night before his death, Therefore, the court finds that there are no genuine issues of material fact that and that Defendant Boca House owed no duty of care to the Decedent as a matter of law. Accordingly, it is ' The Beverly Hills Club Apartments owned and operated the rental apartment community, while another corporation, Extended Care Treatment, Inc. provided any treatment and assigned clients to spécific-units.. Kelley, 68 So: 3d at 955. “Therefore, the plaintiff had no lease or agreement with The Beverly Hills Club and in tum, The Beverly Hills Club did not know anything about the plaintiff's medical history or treatment and did not have any contro! over the plaintiff. /d. 5ORDERED and ADJUDGED that Defendant’s Motion for Summary Judgment is GRANTED. DONE.and. ORDERED in Chambers in West Palm Beach, Palm Beach County, Florida . this “day of March, 2015. Copies furnished to: . _ Seth A. Kolton, Esq., 2255 Glades Road, Suite 218-A, Boca Raton, FL 33431; sak@weissandhandlerpa.com Barbara S. Diamond, Esq., 1000 N.W. 57th Court, Suite 300, Miami, FL 33126; bdiamond@defer inselEXHIBIT B IN THE CIRCUIT COURT OF THE FIDFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CIVILDIVISION DIV; “AF” CASENO.: 2018CA010087AXX ANN J. HERRERA, as Administrator of the Estate of Blake Alexander Meier, deceased, Plaintiff, vs. QHEALTH SERVICES, INC., a Florida for Profit Corporation d/b/a Q Health Palm Beach, And EMILIO DUBOY, M.D., an individual, Defendants. ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS WITH PREJUDICE THIS CAUSE came before the Court on August 3, 2020 upon the Defendants’ separate Motions to Dismiss Plaintiffs Fourth Amended Complaint (“FAC”) (DE #181), filed by Defendant Q Health Services, Inc., d/b/a Q Health Palm Beach (“Q Health”) (DE #185), and by Defendant Emilio Duboy, M.D. (“Duboy”) (DE #186), both filed May 28, 2020. Plaintiff responded to these motions separately (DE ##190, 191), filed July 20, 2020. The Court having carefully reviewed Defendants’ Motions, Plaintiff's Responses, including the Plaintiff's filed evidence (DE #193), filed July 21, 2000, and Plaintiff's Supplemental authority provided to the Court on August 28, 2020, having reviewed the FAC, having reviewed the case file and record, having heard argument of counsel, and after being otherwise fully advised in the premises, finds as follows: A. Background. This is a wrongful death action filed by Ann J. Herrera as administrator of the estate of Blake Alexander Meier (“Meier” or “Decedent”), deceased. This is plaintiff's fifth attempt to statecauses of action against the defendants. The original complaint (DE #2) was filed on August 8, 2018, and all defendants filed motions to dismiss the original complaint, which Plaintiff amended as a matter of course pursuant to Fl. R. Civ. P. 1.190(a2) (DE #32). Defendants then moved to dismiss the First Amended Complaint (DE ##34, 40, 48), and by Order entered March 22, 2019, the First Amended Complaint was dismissed with leave to amend (DE #64). The Second Amended Complaint (DE #72) was met with another round of Motions to Dismiss (DE ##75, 76), and it was dismissed without prejudice by Order entered September 23, 2019 on the ground that the original plaintiff, Dawn Camarda, as mother and next friend of Meier, was without standing to bring the action in her individual capacity (DE #139). The current plaintiff, Ann J. Herrera, was appointed administrator of Meier’s estate, and the Third Amended Complaint was deemed filed as of December 4, 2019 (DE #147). All defendants named in the third amended complaint again moved to dismiss (DE ##148, 150). By Order entered April 16, 2020, the Court dismissed with prejudice certain improperly named defendants, and also dismissed with prejudice Counts 2, 3, 4, 5, and 6 of the Third Amended Complaint. Counts 1, 7, and 8 were dismissed without prejudice, and Plaintiff was granted leave to file the FAC (DE #170). Thus, as the case currently stands, under the FAC the Plaintiff remains Ann J. Herrera, in her capacity as administrator of Meier’s estate. The remaining defendants are Q Health and Duboy. The FAC contains the following counts: Count 1 - “Negligence — Wrongful Death Against Q Health” Count 2 - “Negligence — Medical Malpractice of Emilio Duboy, M.D.” Count 3 — Vicarious Liability of Q Health for Dr. Duboy”@E #181, ff 123-143, 144-158, 159-170), Defendants’ motions to dismiss the FAC are the subject of this Order. B. The Facts Alleged In the FAC. Because these motions are presented as Motions to Dismiss for failure to state a cause of action under Fl. R. Civ. P. 1.140(b)(6), the Court will carefully set forth the facts alleged in the FAC as to each Defendant. In reciting these facts, in order to avoid repeated use of the words “alleges” and “alleged,” the Court hereby acknowledges that the facts next recited are all “alleged” by Plaintiff and are only presumed as true for the purpose of ruling on the pending motions. (a) At the time of the incidents complained of, the Decedent, Meier, was a 26 year-old adult male resident of Georgia who on July 19, 2016 was ordered by the State/Magistrate Court of Fulton County, Georgia, to, inter alia, attend impatient treatment at C.A.R.E. Addiction Recovery in North Palm Beach, Florida (FAC, { 15 and Ex. “B”). While not explained in the FAC (and ultimately irrelevant for purposes of the case and this Order), ultimately Meier instead was admitted to Q Health on July 26, 2016 (id, { 16). (6) On August 9, 2016, Meier was expelled (“involuntarily discharged”) for having used illicit drugs while at the Q Health facility in violation of Q Health rules (/d., {| 62-64, 73). On that date, Q Health agents or employees transported Meier (along with two other expelled patients) to a motel in West Palm Beach (id, J 86). Q Health agents or employees made the decision as to the motel to which Meier was taken (a motel that was used by Q Health to place expelled patients and for which Q Health received discounted rates), made the reservation, and placed Meier in the same room with the other two expelled patients (/d., ¥] 86-88, 89, 93-98).(©) After being released to the motel, Meier — either alone or with the other expelled patients, acquired various illicit drugs (/d., { 100). Meier subsequently died from an overdose on August 10, 2016 (Id., J 100-101). @ QHealth is an inpatient drug rehabilitation facility (/d., 7). Duboy is a licensed physician specializing in psychiatry and was employed by Q Health as its chief medical officer and medical director (Id. TJ 9-11). ©) Meier was admitted to Q Health to receive treatment for opioid and drug addiction and associated mental health treatment (/d., 17). Q Health had exclusive supervision and control over Meier while at its facility (Id. J 18). @ While at Q Health Meier received medications prescribed by Duboy to alleviate cravings and withdrawal symptoms (Jd, 22-23). When Meier was discharged from Q Health, he no longer had access to these medications, and Q Health did not coordinate with other health care providers to continue the medications (Jd., 24). (g) Prior to Meier’s admission, Q Health representatives told his mother that he would undergo intensive addiction treatment and that she would be notified if he suffered a relapse of drug use while at the facility or violated facility rules (Id., 27-29). Q Health representative told Meier’s mother that she would be notified of any involuntary discharge of Meier prior to effecting such discharge so that she could arrange for alternative care (Id., { 30-31). (h) Q Health had a written contract under which it agreed to take precautionary measures to protect Meier from self-harm or overdosing and to inform his mother in the event he was to be involuntarily discharged or violated Q Health rules. Meier agreed to these terms, and Q Health had accurate contact information for his mother (/d., { 36-43).@ Meier entered Q Health with histories of depression, anxiety, and post-traumatic stress disorder. He also reported a prior relapse and high-risk withdrawal symptoms, including seizures, He reported an overdose event that occurred in July 2015 (id, ] 44-48). At the time of his admission Meier was taking prescription drugs to control seizures, ADHD, and depression and anxiety (Id., | 44-48, 51). @ Meier reported a history of using heroin, oxycodone, morphine, Percocet, marijuana and Dilaudid. His last usage prior to admission was July 20, 2016. He reported using heroin and Xanax daily and did not attempt to stop using drugs, although he had a significant history of attending inpatient detoxification programs (Jd. | 52-57). (kK) Meier became involved with two other patients, C.D. and T.L., who also had drug addictions. On August 9, 2016, Meier ingested an illicit drug, either alone or with these individuals, and he and the two individuals were involuntarily discharged (expelled) by Q Health that day for violating Q Health’s rule forbidding the use of illicit drugs while a patient (Id, § 60- 65). ad) There were no physicians (including Duboy) present at the facility when Meier was expelled, and he received no evaluation counseling or treatment in conjunction with his expulsion. Q Health knew that as an addict Meier had relapse and withdrawal risks (/d., { 66-69, 81-82). His mother was not notified by Q Health of Meier’s rule violation or expulsion, and Meier had no means of contacting her at the time of or after his expulsion (Jd., § 70-72, 83-85). (m) Notes in Q Health’s records of Meier noted risks of relapse upon becoming an outpatient and that he was experiencing drug-seeking behaviors needing more intensive treatment, that he had unresolved grief issues, and that his motivation was “poor.” Q Health had knowledgethat Meier presented a risk of withdrawal symptoms and relapse to illicit drug use upon his discharge (Id., J 78-80, 102-103, 111-113). (n) On August 9, 2016, Q Health transported Meier, C.D. and T.L. to a local motel selected by Q Health, booked a room for the three of them, and paid for the room, even though separate rooms were available. Q Health used this motel for the same purpose on other occasions and received discounted rates (Id., J] 86-98). {o) After being left at the hotel, on August 10, 2016 Meier, either alone or with the other two individuals, obtained illicit drugs including Fentanyl, and Meier either ingested or injected the drugs and overdosed, causing his death (Id., ¥] 100-101). C. The Standards Applicable To A Rule 1.140(b)(6) Motion To Dismiss. The primary purpose of a Motion to Dismiss is to determine whether the Complaint properly states a cause of action upon which relief can be granted and, if it does not, to enter an order of dismissal. In making this determination, this Court is to review the claims, including all attached exhibits, see Atkins v. Topp Telecom, Inc., 873 So. 2d 397, 399 (Fla. 4th DCA 2004), and draw all inferences in favor of the Plaintiff, and accept as true all well-pled allegations. In short, the Court must determine whether, assuming all the allegations in the pleading to be true, the Plaintiff has stated a cause of action upon which it is entitled to relief. See, e.g., Connolly v. Sebeco, Inc., 89 So. 2d 482, 484 (Fla. 1956); City of Gainesville v. State Dept. of Transp., 778 So. 2d 519, 522 (Fla. 1st DCA 2001); Wausau Ins. Co. v. Haynes, 683 So. 2d 1123, 1124 (Fla. 4th DCA 1996). Under the Florida Rules of Civil Procedure, a well-pled Complaint requires Plaintiff to allege ultimate facts showing that the pleader is entitled to relief. See Fla. R. Civ. P. 1.110(b) (requiring a short and plain statement of the ultimate facts showing that the pleader is entitled torelief). To comply with this requirement, a Complaint “must set forth factual assertions that can be supported by evidence which gives rise to legal liability.” It is insufficient to plead opinions, theories, legal conclusions or arguments, Barrett v. City of Margate, 743 So. 2d 1160, 1162-63 Gla. 4th DCA 1999), Of course, the court “need not accept internally inconsistent factual claims, conclusory allegations, unwarranted deductions, or mere legal conclusions made by a party.” W.R. Townsend Contr., Inc. v. Jensen Civil Const., Inc., 728 So. 2d 297, 300 (Fla. lst DCA 1999), Ultimately, “[t]he test for a motion to dismiss under rule 1.140(b)(6) is whether the pleader could prove any set of facts whatever in support of the claim.” Rocks v. McLaughlin Engineering Co,, 49 So. 3d 823, 827 (Fla. 4th DCA 2010). In this regard, the Court notes that Plaintiff, in her fifth rendition of her complaint, has copiously and comprehensively pleaded all of the facts relating to the circumstances leading up to Meier’s death, including the facts upon which she bases her claims against defendants. The question is whether those facts support the causes of action asserted against defendants. The answer is no. D. Upon Discharge Defendants Owed No Duty of Care to Meier. Defendants’ Motions to Dismiss focus primarily upon the issue of duty: At the time that Meier ingested the drugs that caused his overdose and death, did defendants, or either of them, owe any duty of care to him? This question is central to all three of plaintiff's counts - common law negligence as to Q Health, medical malpractice as to Duboy, and Q Health’s vicarious liability for Duboy’s alleged malpractice. (1) = @ Health owed no duis to Meier. “ ‘The issue of legal duty in a negligence case asks “whether the plaintiff's interests are entitled to legal protection against the defendant’s conduct.” Pollack v. Cruz, 296 So. 3d 453, 460 la. 4th DCA 2020), quoting Knight v. Merhige, 133 So. 3d 1140, 1149 (Fla. 4th DCA 2014),quoting Prosser & Keeton on the Law of Torts § 53, at 357. Likewise, duty is elemental to a medical malpractice action. Ruiz v. Tenet Hialeah Health System, Inc., 260 So. 3d 977, 981 (Fla. 2018) (setting forth elements of medical malpractice claim). The existence of duty is a threshold issue of law; if no duty exists, no claim will lie. Las Olas Holding Co. v. Demella, 228 So. 3d 97, 103 (Fla. 4th DCA 2017). The existence of duty turns in part upon foreseeability; i.¢., that the defendant’s conduct presents a foreseeable risk of harm to the plaintiff. McCain v. Florida Power Corp., 590 So. 2d 500, 503 (Fla. 1992). Plaintiff heavily relies upon the “zone of risk” concept espoused in decisions addressing the element of duty. E.g., Kaisner y. Kolb, 543 So. 2d 732, 735 (Fla. 1989). What must be emphasized, however, is that the “zone of risk” must be created by a defendant’s conduct. “The proper way of determining whether a duty existed is to decide whether the defendant's actions created a foreseeable zone of risk, not by whether the specific injury suffered was foreseeable by the defendant.” Florida Power & Light Co. v. Periera, 705 So. 2d 1359, 1361 (Fla. 1998) (emphasis added). This critical distinction cannot be overemphasized in this case, Unquestionably, the injury that Meier suffered — overdose and death due to consumption of drugs — was foreseeable. This is endemic to addiction: It is always foreseeable that one who has an addiction might injure or kill himself or herself by overdose. However, based on the deeply detailed facts pled in the FAC, defendants’ actions did not create a foreseeable zone of risk that resulted in Meier’s death. Meier was a drug addict and as such had a constant urge and craving for drugs. Defendants, of course, did not create his condition. Meier’s condition — not defendants’ conduct — was Meier’s “zone of risk,” and that zone was everywhere: Whether he was left at a motel, or turned over to another treatment facility, or to his mother, or to law enforcement, Meier — because of his addiction— was always at risk of obtaining and ingesting drugs and overdosing. Indeed, Plaintiff's own facts demonstrate as much. While at Q Health, Meier’s addiction drove him to somehow obtain and consume illicit drugs at the facility, knowing that doing so would expose him to expulsion. In short, Meier and his addiction created his “zone of risk,” and that zone was present in any set of circumstances. Such is the scourge of addiction. Cf Mental Health Care, Inc. v. Stuart, 909 So. 2d 371, 374 (Fla, 2d DCA 2005) (noting “the inherent unpredictability associated with mental illnesses and the ‘near-impossibility of accurately or reliably predicting dangerousness””), quoting Boynton v. Burgess, 590 So. 2d 446, 450 (Fla. 3d DCA 1991); Tuten v. Fariborzian, 84 So. 3d 1063, 1068 (Fla. 1st DCA 2012) (“because the future behavior of a psychiatric patient is unknowable, under Florida law risk of harm is not foreseeable and therefore no duty exists to Jessen the risk or protect others from the type of risk which a psychiatric patient might pose”). In addition to foreseeability, “‘A duty requires one to be in a position to “control the risk.””” Pollack v. Cruz, 296 So. 3d 453, 457 (Fla. 4th DCA 2020), quoting Surloff'v. Regions Bank, 179 So. 3d 472, 476 (Fla 4th DCA 2015), quoting Aguila v. Hilton, Inc., 878 So. 2d 392, 396 (Fla. 1st DCA 2004). Surloff is instructive. In that case, the decedent was an individual who suffered severe mental and physical impairments that rendered him unable to process information and caused resulting anxiety. Both family members and the decedent’s physician informed Regions Bank representatives of his condition, and those representatives were instructed not to discuss finances or the loan process with him. Despite these instructions and the bank’s agreement to follow them, an employee of the bank who knew of the instructions nonetheless continued to communicate directly with the decedent and one day met with the decedent