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Filing # 131342009 E-Filed 07/24/2021 04:59:23 PM
IN THE CIRCUIT COURT
OF THE NINTH JUDICIAL CIRCUIT
IN AND FOR ORANGE COUNTY, FLORIDA
BELINDHA RUSSELL, as the Personal CASE NO. 2017-CA-004662-O
Representative of the Estate of ROLAND L.
CAJUSTE (deceased),
Plaintiff,
vs.
ADVENTIST HEALTH SYSTEM/SUNBELT,
INC.
D/B/A FLORIDA HOSPITAL EAST & FLORIDA
HOSPITAL ORLANDO; FLORIDA HOSPITAL
MEDICAL GROUP, INC. D/B/A RADIOLOGY
SPECIALISTS OF FLORIDA; PEDIATRIC
CARE GROUP, P.A., FLORIDA EMERGENCY
PHYSICIANS KANG & ASSOCIATES, M.D.,
INC., ALFREDO TIRADO GONZALEZ, M.D.,
MIGUEL A. ACEVEDO-SEGUI, M.D.,
KIMBERLY R. BUFFKIN, M.D., DENNIS A.
HERNANDEZ, M.D., DOUGLAS M. HAUS,
M.D., LUIS R. CAMPIS VAZQUEZ, M.D.,
KATARINA M. NAMMOUR, ARNP,
Defendants.
____________________________/
DEFENDANT’S, LUIS R. CAMPIS VAZQUEZ, M.D.,
SUPPLEMENTAL AUTHORITY FOR MOTION FOR SUMMARY JUDGMENT
Defendant, LUIS R. CAMPIS VAZQUEZ, M.D., by and through the undersigned
counsel, hereby provides the following supplemental authority in support of its Motion for
Final Summary Judgment for Lack of Duty, and states as follows:
1. On August 11, 2020, Defendant, Dr. Luis Campis Vazquez, filed a motion
for final summary judgment based upon lack of duty.
2. This Motion is set for hearing on August 5, 2021.
3. Since the filing of the Motion, the summary judgment standard was
changed.
CASE NO. 2017-CA-004662-O
4. In accordance with guidance from the Florida Supreme Court, this
Supplemental Memorandum of Law is being filed to update the Summary Judgment
standard as discussed in Paragraph 8 of the Motion for Summary Judgment.
SUMMARY JUDGMENT STANDARD
5. As this Court is likely aware, Florida’s summary judgment standard recently
underwent a major change, with significant implications for how this Court analyzes and
rules on this Motion for Summary Judgment.
6. Under the newly effective Florida Rule of Civil Procedure 1.510, summary
judgment must be granted, “if the pleadings and summary judgment evidence on file show
that there is no genuine dispute as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c); 2021 FLORIDA COURT
ORDER 0024 (C.O. 0024); In re Amendments to Fla. Rule of Civil Procedure 1.510, No.
SC20-1490, 2020 WL 7778179, at *4 (Fla. Dec. 31, 2020) (amending language to replace
“genuine issue” with “genuine dispute”). The critical change is in how this language must
now be interpreted. No longer is summary judgment a “disfavored” mechanism for
resolving cases; rather, it is “an integral part” of the rules as a whole. In re Amendments,
2020 WL 7778179, at *2; 2021 FLORIDA COURT ORDER 0024 (C.O. 0024).
7. Notably, the Florida Supreme Court has emphasized that, “‘[w]here the non-
movant bears the ultimate burden of persuasion [at trial] on a particular issue ... the
requirements that Rule 56 imposes on the moving party are not onerous.’ . We echo the
Eighth Circuit Court of Appeals’ observation that the movant's initial burden of production
in this circumstance is ‘far from stringent’ and that it can be ‘regularly discharged with
-2-
CASE NO. 2017-CA-004662-O
ease.’ ” 2021 FLORIDA SUPREME COURT ORDER 0024 (C.O. 0024) (quoting
Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013); Bedford v. Doe, 880 F. 3d
993, 996 (8th Cir 2018)).
8. In pertinent part, the recent amendment states:
[Florida’s] summary judgment standard provided for in this rule shall be
construed and applied in accordance with the federal summary judgment
standard articulated in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct.
2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); and Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).
In re Amendment, 2020 WL 7778179, at *1; 2021 FLORIDA COURT ORDER 0024 (C.O.
0024).
9. “By its very terms [the summary judgment] standard provides that the mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
supported motion for summary judgment.” Anderson, 477 U.S. at 247-48. Anderson
expressly rejected the “scintilla rule” espoused in Florida cases: “There mere existence
of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must
be evidence on which the jury could reasonably find for the plaintiff.” Id. at 252.
WHEREFORE Defendant, Luis R. Campis Vazquez M.D., respectfully submits this
updated memorandum of law on the summary judgment standard for the Court to
consider in ruling upon Defendant’s Motion for Final Summary Judgment based upon a
lack of legal duty owed.
WE HEREBY CERTIFY that a copy hereof has been electronically served via
Florida ePortal to: Maria D. Tejedor, Esquire, mail@theorlandolawyers.com;
leah@theorlandolawyers.com; ; Thomas E. Dukes III, Esquire, nos@mmdorl.com;; J.
-3-
CASE NO. 2017-CA-004662-O
Charles Ingram, Esquire, jci@eifg-law.com; pbp@eifg-law.com; Patrick H. Telan,
Esquire, phtelan@ketmw.com; enotice@ketmw.com; cboals@ketmw.com; Robert D.
Henry, Esquire, rdhefilingservice@law-fla.com; lph@law-fla.com; rdh@law-fla.com; on
this 24th day of July, 2021.
/s/ Kyle R. Fontaine
Kyle R. Fontaine, Esquire
Florida Bar No. 124686
WICKER SMITH O'HARA MCCOY & FORD, P.A.
Attorneys for Alfredo Tirado, M.D., Miguel Acevedo-
Segui, M.D., Luis R. Campis Vazquez, M.D., and
Douglas Haus, D.O.
390 N. Orange Ave., Suite 1000
Orlando, FL 32801
Phone: (407) 843-3939
Fax: (407) 649-8118
ORLcrtpleadings@wickersmith.com
-4-
Preview
Filing # 131342009 E-Filed 07/24/2021 04:59:23 PM IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR ORANGE COUNTY, FLORIDA BELINDHA RUSSELL, as the Personal CASE NO. 2017-CA-004662-O Representative of the Estate of ROLAND L. CAJUSTE (deceased), Plaintiff, vs. ADVENTIST HEALTH SYSTEM/SUNBELT, INC. D/B/A FLORIDA HOSPITAL EAST & FLORIDA HOSPITAL ORLANDO; FLORIDA HOSPITAL MEDICAL GROUP, INC. D/B/A RADIOLOGY SPECIALISTS OF FLORIDA; PEDIATRIC CARE GROUP, P.A., FLORIDA EMERGENCY PHYSICIANS KANG & ASSOCIATES, M.D., INC., ALFREDO TIRADO GONZALEZ, M.D., MIGUEL A. ACEVEDO-SEGUI, M.D., KIMBERLY R. BUFFKIN, M.D., DENNIS A. HERNANDEZ, M.D., DOUGLAS M. HAUS, M.D., LUIS R. CAMPIS VAZQUEZ, M.D., KATARINA M. NAMMOUR, ARNP, Defendants. ____________________________/ DEFENDANT’S, LUIS R. CAMPIS VAZQUEZ, M.D., SUPPLEMENTAL AUTHORITY FOR MOTION FOR SUMMARY JUDGMENT Defendant, LUIS R. CAMPIS VAZQUEZ, M.D., by and through the undersigned counsel, hereby provides the following supplemental authority in support of its Motion for Final Summary Judgment for Lack of Duty, and states as follows: 1. On August 11, 2020, Defendant, Dr. Luis Campis Vazquez, filed a motion for final summary judgment based upon lack of duty. 2. This Motion is set for hearing on August 5, 2021. 3. Since the filing of the Motion, the summary judgment standard was changed. CASE NO. 2017-CA-004662-O 4. In accordance with guidance from the Florida Supreme Court, this Supplemental Memorandum of Law is being filed to update the Summary Judgment standard as discussed in Paragraph 8 of the Motion for Summary Judgment. SUMMARY JUDGMENT STANDARD 5. As this Court is likely aware, Florida’s summary judgment standard recently underwent a major change, with significant implications for how this Court analyzes and rules on this Motion for Summary Judgment. 6. Under the newly effective Florida Rule of Civil Procedure 1.510, summary judgment must be granted, “if the pleadings and summary judgment evidence on file show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fla. R. Civ. P. 1.510(c); 2021 FLORIDA COURT ORDER 0024 (C.O. 0024); In re Amendments to Fla. Rule of Civil Procedure 1.510, No. SC20-1490, 2020 WL 7778179, at *4 (Fla. Dec. 31, 2020) (amending language to replace “genuine issue” with “genuine dispute”). The critical change is in how this language must now be interpreted. No longer is summary judgment a “disfavored” mechanism for resolving cases; rather, it is “an integral part” of the rules as a whole. In re Amendments, 2020 WL 7778179, at *2; 2021 FLORIDA COURT ORDER 0024 (C.O. 0024). 7. Notably, the Florida Supreme Court has emphasized that, “‘[w]here the non- movant bears the ultimate burden of persuasion [at trial] on a particular issue ... the requirements that Rule 56 imposes on the moving party are not onerous.’ . We echo the Eighth Circuit Court of Appeals’ observation that the movant's initial burden of production in this circumstance is ‘far from stringent’ and that it can be ‘regularly discharged with -2- CASE NO. 2017-CA-004662-O ease.’ ” 2021 FLORIDA SUPREME COURT ORDER 0024 (C.O. 0024) (quoting Modrowski v. Pigatto, 712 F.3d 1166, 1168 (7th Cir. 2013); Bedford v. Doe, 880 F. 3d 993, 996 (8th Cir 2018)). 8. In pertinent part, the recent amendment states: [Florida’s] summary judgment standard provided for in this rule shall be construed and applied in accordance with the federal summary judgment standard articulated in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In re Amendment, 2020 WL 7778179, at *1; 2021 FLORIDA COURT ORDER 0024 (C.O. 0024). 9. “By its very terms [the summary judgment] standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise supported motion for summary judgment.” Anderson, 477 U.S. at 247-48. Anderson expressly rejected the “scintilla rule” espoused in Florida cases: “There mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id. at 252. WHEREFORE Defendant, Luis R. Campis Vazquez M.D., respectfully submits this updated memorandum of law on the summary judgment standard for the Court to consider in ruling upon Defendant’s Motion for Final Summary Judgment based upon a lack of legal duty owed. WE HEREBY CERTIFY that a copy hereof has been electronically served via Florida ePortal to: Maria D. Tejedor, Esquire, mail@theorlandolawyers.com; leah@theorlandolawyers.com; ; Thomas E. Dukes III, Esquire, nos@mmdorl.com;; J. -3- CASE NO. 2017-CA-004662-O Charles Ingram, Esquire, jci@eifg-law.com; pbp@eifg-law.com; Patrick H. Telan, Esquire, phtelan@ketmw.com; enotice@ketmw.com; cboals@ketmw.com; Robert D. Henry, Esquire, rdhefilingservice@law-fla.com; lph@law-fla.com; rdh@law-fla.com; on this 24th day of July, 2021. /s/ Kyle R. Fontaine Kyle R. Fontaine, Esquire Florida Bar No. 124686 WICKER SMITH O'HARA MCCOY & FORD, P.A. Attorneys for Alfredo Tirado, M.D., Miguel Acevedo- Segui, M.D., Luis R. Campis Vazquez, M.D., and Douglas Haus, D.O. 390 N. Orange Ave., Suite 1000 Orlando, FL 32801 Phone: (407) 843-3939 Fax: (407) 649-8118 ORLcrtpleadings@wickersmith.com -4-