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Filing # 118015569 E-Filed 12/10/2020 03:46:35 PM
96792-5
IN THE CIRCUIT COURT OF
THE EIGHTEENTH JUDICIAL CIRCUIT
IN AND FOR BREVARD COUNTY, FLORIDA
NANCY ALOISE, CIRCUIT CIVIL DIVISION
Plaintiff, CASE NO. 05-2020-CA-047988
vs.
RACHEL CRAIN, M.D. and BREVARD
EAR, NOSE AND THROAT CENTER,
P.A.,
Defendants.
/
DEFENDANTS’ ANSWER AND AFFIRMATIVE DEFENSES TO
PLAINTIFF’S COMPLAINT
Defendants, Rachel Crain, M.D. and Brevard Ear, Nose and Throat Center, P.A.,
by and through their undersigned counsel, file this Answer to correspondingly numbered
paragraphs in Plaintiff's Complaint, as follows:
1. Admitted for jurisdictional purposes only, otherwise denied.
2. Denied.
3. Admitted.
4. Admitted that when Dr. Crain treated plaintiff that she was employed by
the P.A. and acting within the course and scope of her employment. Any other
allegations are denied.
5. Denied as phrased.
6. Denied.
7. Denied.
8. Denied.
9. Denied.
10. Denied without knowledge.
Filing 118015569 NANCY ALOISE VS RACHEL CAIN 05-2020-CA-047988-XXXX-XXCASE NO. 05-2020-CA-047988
11. Denied.
12. Denied.
COUNT I —- NEGLIGENCE CLAIM OF DEFENDANT RACHEL CRAIN, M.D.
Defendants re-incorporate by reference their correspondingly numbered
responses to paragraphs 1-12 above, as if fully set forth herein.
13. Denied.
14. Denied.
15. (a)-(e) Denied.
16. Denied.
COUNT II — VICARIOUS LIABILITY OF DEFENDANT BREVARD EAR, NOSE AND
THROAT CENTER, P.A.
Defendants re-incorporate by reference their correspondingly numbered
responses to paragraphs 1-16 above, as if fully set forth herein.
17. Denied.
CERTIFICATE OF COMPLIANCE PURSUANT TO FLORIDA STATUTE 766.104
18. Denied.
AFFIRMATIVE DEFENSES
19. At all times, Dr. Crain met the applicable standard of care for the
purposes of her involvement in the diagnosis, evaluation, and treatment of Plaintiff, and
therefore, Plaintiff has failed to state a cause of action against Dr. Crain or Brevard Ear,
Nose and Throat Center, P.A.
20. Plaintiff was guilty of negligence and her negligence was either the sole,
proximate cause or a contributing cause of her claimed damages such that recovery, if
any, should be barred or reduced proportionately pursuant to the doctrine of comparative
negligence.
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Filing 118015569 NANCY ALOISE VS RACHEL CAIN 05-2020-CA-047988-XXXX-XXCASE NO. 05-2020-CA-047988
20. These Defendants are entitled to any and all applicable limitations of
liability and damages, as set forth in Chapters 766 and 768, Florida Statutes, including
but not limited to § 768.81, § 768.78, § 768.76, among others.
21. These Defendants are entitled to a collateral source setoff to the extent of
any monies paid or payable to or on behalf of Plaintiff or on behalf of any persons
claiming to be entitled to any damages, in the form of medical expenses or other monies,
for which economic recovery is sought herein, pursuant to the applicable Florida
Statutes.
22. Plaintiffs recovery, if any, of medical damages or other economic
damages is limited to that which was reasonable, related and attributable to these
Defendants only.
23. Any excessive or reasonably avoidable damages are not recoverable due
to a failure to mitigate or lack of proximate cause.
24. The damages claimed by Plaintiff in her Complaint were not caused by
any act or omissions attributable to these Defendants, but rather were caused by an
independent intervening cause or superseding cause or conduct on part of a third party
or third parties not under the control of these Defendants.
25. Plaintiff's claim for medical and hospital expenses is limited and/or
barred, except to the extent that any such expenses have actually been paid, incurred
and/or have been accepted by a health care provider as full and complete payment.
26. These Defendants specifically claim any credit or set-off to which these
Defendants may be entitled for any and all payments paid or payable to Plaintiff for any
damages alleged in the Amended Complaint from any collateral source whatsoever.
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Filing 118015569 NANCY ALOISE VS RACHEL CAIN 05-2020-CA-047988-XXXX-XXCASE NO. 05-2020-CA-047988
27. Plaintiff has not sustained any loss, injury or damage, which was
proximately caused by any allegedly negligent act or omission attributable to Dr. Crain or
Brevard Ear, Nose and Throat Center, P.A.
28. These Defendants reserve the right to add any third parties or nonparties
to the verdict form who are determined by discovery to have been negligent in causing
or contributing to the Plaintiffs claims and who were not under the control of these
Defendants.
DEMAND FOR JURY TRIAL
These Defendants demand a trial by jury of all issues so triable as of right by a
jury.
WE HEREBY CERTIFY that a copy hereof has been electronically served via
Florida ePortal to: Michael A. Petruccelli, Esquire, mpetruccelli@rubensteiniaw.com,
kross@rubensteinlaw.com; on this 10th day of December, 2020.
/s/ Barbara A. Flanagan
Barbara A. Flanagan, Esquire
Florida Bar No. 500641
Ryan A. Hestbeck, Esquire
Florida Bar No. 1018583
WICKER SMITH O'HARA MCCOY & FORD, P.A.
Attorneys for Rachel Crain, M.D and Brevard Ear,
Nose & Throat Center
390 N. Orange Ave., Suite 1000
Orlando, FL 32801
Phone: (407) 843-3939
Fax: (407) 649-8118
ORLertpleadings@wickersmith.com
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Filing 118015569 NANCY ALOISE VS RACHEL CAIN 05-2020-CA-047988-XXXX-XX
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Filing # 118015569 E-Filed 12/10/2020 03:46:35 PM 96792-5 IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT IN AND FOR BREVARD COUNTY, FLORIDA NANCY ALOISE, CIRCUIT CIVIL DIVISION Plaintiff, CASE NO. 05-2020-CA-047988 vs. RACHEL CRAIN, M.D. and BREVARD EAR, NOSE AND THROAT CENTER, P.A., Defendants. / DEFENDANTS’ ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF’S COMPLAINT Defendants, Rachel Crain, M.D. and Brevard Ear, Nose and Throat Center, P.A., by and through their undersigned counsel, file this Answer to correspondingly numbered paragraphs in Plaintiff's Complaint, as follows: 1. Admitted for jurisdictional purposes only, otherwise denied. 2. Denied. 3. Admitted. 4. Admitted that when Dr. Crain treated plaintiff that she was employed by the P.A. and acting within the course and scope of her employment. Any other allegations are denied. 5. Denied as phrased. 6. Denied. 7. Denied. 8. Denied. 9. Denied. 10. Denied without knowledge. Filing 118015569 NANCY ALOISE VS RACHEL CAIN 05-2020-CA-047988-XXXX-XXCASE NO. 05-2020-CA-047988 11. Denied. 12. Denied. COUNT I —- NEGLIGENCE CLAIM OF DEFENDANT RACHEL CRAIN, M.D. Defendants re-incorporate by reference their correspondingly numbered responses to paragraphs 1-12 above, as if fully set forth herein. 13. Denied. 14. Denied. 15. (a)-(e) Denied. 16. Denied. COUNT II — VICARIOUS LIABILITY OF DEFENDANT BREVARD EAR, NOSE AND THROAT CENTER, P.A. Defendants re-incorporate by reference their correspondingly numbered responses to paragraphs 1-16 above, as if fully set forth herein. 17. Denied. CERTIFICATE OF COMPLIANCE PURSUANT TO FLORIDA STATUTE 766.104 18. Denied. AFFIRMATIVE DEFENSES 19. At all times, Dr. Crain met the applicable standard of care for the purposes of her involvement in the diagnosis, evaluation, and treatment of Plaintiff, and therefore, Plaintiff has failed to state a cause of action against Dr. Crain or Brevard Ear, Nose and Throat Center, P.A. 20. Plaintiff was guilty of negligence and her negligence was either the sole, proximate cause or a contributing cause of her claimed damages such that recovery, if any, should be barred or reduced proportionately pursuant to the doctrine of comparative negligence. -2- Filing 118015569 NANCY ALOISE VS RACHEL CAIN 05-2020-CA-047988-XXXX-XXCASE NO. 05-2020-CA-047988 20. These Defendants are entitled to any and all applicable limitations of liability and damages, as set forth in Chapters 766 and 768, Florida Statutes, including but not limited to § 768.81, § 768.78, § 768.76, among others. 21. These Defendants are entitled to a collateral source setoff to the extent of any monies paid or payable to or on behalf of Plaintiff or on behalf of any persons claiming to be entitled to any damages, in the form of medical expenses or other monies, for which economic recovery is sought herein, pursuant to the applicable Florida Statutes. 22. Plaintiffs recovery, if any, of medical damages or other economic damages is limited to that which was reasonable, related and attributable to these Defendants only. 23. Any excessive or reasonably avoidable damages are not recoverable due to a failure to mitigate or lack of proximate cause. 24. The damages claimed by Plaintiff in her Complaint were not caused by any act or omissions attributable to these Defendants, but rather were caused by an independent intervening cause or superseding cause or conduct on part of a third party or third parties not under the control of these Defendants. 25. Plaintiff's claim for medical and hospital expenses is limited and/or barred, except to the extent that any such expenses have actually been paid, incurred and/or have been accepted by a health care provider as full and complete payment. 26. These Defendants specifically claim any credit or set-off to which these Defendants may be entitled for any and all payments paid or payable to Plaintiff for any damages alleged in the Amended Complaint from any collateral source whatsoever. -3- Filing 118015569 NANCY ALOISE VS RACHEL CAIN 05-2020-CA-047988-XXXX-XXCASE NO. 05-2020-CA-047988 27. Plaintiff has not sustained any loss, injury or damage, which was proximately caused by any allegedly negligent act or omission attributable to Dr. Crain or Brevard Ear, Nose and Throat Center, P.A. 28. These Defendants reserve the right to add any third parties or nonparties to the verdict form who are determined by discovery to have been negligent in causing or contributing to the Plaintiffs claims and who were not under the control of these Defendants. DEMAND FOR JURY TRIAL These Defendants demand a trial by jury of all issues so triable as of right by a jury. WE HEREBY CERTIFY that a copy hereof has been electronically served via Florida ePortal to: Michael A. Petruccelli, Esquire, mpetruccelli@rubensteiniaw.com, kross@rubensteinlaw.com; on this 10th day of December, 2020. /s/ Barbara A. Flanagan Barbara A. Flanagan, Esquire Florida Bar No. 500641 Ryan A. Hestbeck, Esquire Florida Bar No. 1018583 WICKER SMITH O'HARA MCCOY & FORD, P.A. Attorneys for Rachel Crain, M.D and Brevard Ear, Nose & Throat Center 390 N. Orange Ave., Suite 1000 Orlando, FL 32801 Phone: (407) 843-3939 Fax: (407) 649-8118 ORLertpleadings@wickersmith.com -4- Filing 118015569 NANCY ALOISE VS RACHEL CAIN 05-2020-CA-047988-XXXX-XX