author: SUAREZ, J.

text:
    Alex LANZA, Appellant, v. ALLIED TRUCKING OF FLORIDA, INC., Appellee.
    No. 3D05-53.
    District Court of Appeal of Florida, Third District.
    Jan. 11, 2006.
    Rehearing Denied June 16, 2006.
    Mark J. Feldman, Miami, for appellant.
    Marlow, Connell, Abrams, Adler, Newman & Lewis and Alejandro (Alex) Suarez, Miami, for appellee.
    Before LEVY, RAMIREZ, and SUAREZ, JJ.
   SUAREZ, J.

Alex Lanza appeals an order vacating a default and the entry of a final summary judgment in favor of the appellee, Allied Trucking of Florida, Inc. (“Allied”). We affirm the setting aside of the default and reverse the final summary judgment.

Lanza brought a negligence action against Allied. He alleges Allied failed to properly install a canvas cover over a trailer containing construction debris which Lanza transported to the dump. He claims the canvas became stuck while he was attempting to remove it — causing him to fall from the trailer and to sustain injuries. Lanza obtained a default against Allied on January 3, 2003. On January 31, 2003, Allied moved to set aside the default. On April 8, 2004, after a stay of the proceedings, the trial court granted Allied’s Motion to Set Aside Default.

We affirm the granting of Allied’s Motion to Set Aside Default. A party moving to set aside a default must show excusable neglect, a meritorious defense, and due diligence in moving to set aside the default. See Venero v. Balbuena, 652 So.2d 1271 (Fla. 3d DCA 1995). Attorneys for Allied filed two affidavits to support the claims of excusable neglect and due diligence. The affidavits established that the complaint was faxed to the defense attorneys’ office but due to vacations of certain office personnel, it was not timely responded to. Failure to set aside a default is an abuse of discretion where excusable neglect has been shown. See, e.g., Okeechobee Imps. Inc. v. Am. Sav. & Loan Ass’n, 558 So.2d 506 (Fla. 3d DCA 1990) (employee’s failure to follow established corporate procedure in processing complaint constitutes excusable neglect); Carter, Hawley, Hale Stores, Inc. v. Whitman, 516 So.2d 83 (Fla. 3d DCA 1987) (tardiness in answering occasioned by breakdown in defendant’s established office practice constitutes excusable neglect); Kuehne & Nagel, Inc. v. Esser Int’l, Inc., 467 So.2d 457 (Fla. 3d DCA 1985) (employee’s mistake in filing away summons and complaint constitutes excusable neglect). As the affidavits establish excusable neglect recognized by the courts and the motion to set aside was filed within a reasonable time after learning of the default, the trial court was correct in granting the motion.

On August 6, 2004, Allied moved for summary judgment. In support of the motion, it attached an affidavit of its representative who denied knowledge of any acts on the part of Allied associated with the loading of construction debris into the trailer. Lanza filed an affidavit in opposition to the motion for summary judgment alleging that Allied was responsible for preparing the trailer for shipment and placing a cover over the cargo in the trailer. On December 1, 2004, the trial judge granted Allied’s motion for summary judgment and entered final summary judgment in Allied’s favor.

We reverse the final summary judgment entered in favor of Allied on grounds that genuine issues of material fact remain to be resolved by a jury. See Anello v. Murphy Motor Freight Lines, Inc., 525 F.2d 276 (2d Cir.1975); Muncie Aviation Corp. v. Party Doll Fleet, Inc., 519 F.2d 1178 (5th Cir.1975); Holl v. Talcott, 191 So.2d 40 (Fla.1966); Lumbermens Mut. Cas. Co. v. Alvarez, 443 So.2d 279 (Fla. 3d DCA 1983).

Affirmed in part, reversed in part, and remanded for further proceedings.

      . The issue of a meritorious defense was not raised on appeal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Robert J. BORKOWSKI, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 1D05-1257.
    District Court of Appeal of Florida, First District.
    Feb. 6, 2006.
    Rehearing Denied June 5, 2006.

      Appellant, pro se.
    Geri Atkinson-Hazelton, General Counsel, and John D. Maher, Deputy General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

Borkowski appeals an order of the Florida Unemployment Appeals Commission which dismissed his administrative appeal as untimely. We reverse and remand.

The circumstances of this case are analogous to those in Assam v. Florida Unemployment Appeals Commission, 871 So.2d 978 (Fla. 3d DCA 2004), which show that the Commission mailed the claimant two separate determinations setting out two distinct 20-day appeal periods (the determination of ineligibility to receive unemployment benefits and the overpayment determination), thereby creating confusion concerning the time for filing an appeal. In reversing the Commission’s dismissal of the appeal, the Third District concluded that the claimant had timely perfected a notice of appeal from the second overpayment determination, and that he was “free to raise any and all factual defenses to the underlying decision [which disqualified him from receiving benefits] to contest the overpayment determination.” Id. at 981.

Similar to the facts in Assam, claimant’s appeal in this case was timely as to the overpayment determination, but untimely in regard to the ineligibility determination. Because, as in Assam, the Commission’s overpayment determination is inextricably intertwined with the disqualification decision, claimant should be free to raise the same defenses pertinent to both decisions.

REVERSED and REMANDED.

ERVIN, DAVIS and BENTON, JJ., concur.


author: CORTINAS, Judge.

text:
    WYETH, INC., f/k/a American Home Products, a Pennsylvania corporation and Wyeth Pharmaceuticals, f/k/a Wyeth-Ayerst Pharmaceuticals, Inc., a Delaware corporation, Appellants, v. Arlene GOTTLIEB, individually and on behalf of all others similarly situated, Appellee.
    No. 3D05-491.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 2006.
    Rehearing and Rehearing En Banc Denied June 16, 2006.

      Cooney, Mattson, Lance, Blackburn, Richards & O’Connor and Michael Matt-son and Ace J. Blackburn, Jr. and Warren B. Kwavnick; Bruce S. Rogow, Fort Laud-erdale; Williams & Connolly and John W. Vardaman and F. Lane Heard, III, Washington, DC, for appellants.
    Stanley M. Rosenblatt and Jonathan R. Rosenn, Miami, and Marilyn Ducato; Christopher Lynch, for appellee.
    Before COPE, C.J., and WELLS, and CORTINAS, JJ.
   CORTINAS, Judge.

In this prescription drug medical monitoring class action, the Defendants, Wyeth, Inc., fik/a American Home Products, and Wyeth-Pharmaceuticals, f/k/a Wyeth-Ay-erst Pharmaceuticals, Inc., (collectively ‘Wyeth”) appeal from a non-final order granting plaintiffs, Arlene Gottlieb’s, Motion for Class Certification. We reverse.

I. BACKGROUND

Prempro is a hormone therapy drug consisting of conjugated estrogen and pro-gestin prescribed to prevent symptoms associated with menopause, osteoporosis, and heart disease. The use of conjugated estrogen and progestin is commonly referred to as hormone replacement therapy. Wyeth manufactures, distributes, and sells pharmaceuticals, including the prescription drug, Prempro.

In 1994, the United States Food and Drug Administration (“FDA”) approved the marketing of Prempro and, in 1995, approved the current form of Prempro, with estrogen and progestin combined in a single tablet. Wyeth then began marketing Prempro as a single pill.

In 2002, the Women’s Health Initiative (“WHI”) released certain findings of a clinical trial and observation study, which was a long-term national health study examining the effects of conjugated estrogen and progestin on the prevention of heart disease, hip fractures, and .any associated risks of breast cancer or colon cancer. The Study was sponsored by the National Institutes of Health (“NIH”) and was monitored by an independent data and safety monitoring board (“DSMB”). Based on the results of the Study, the DSMB concluded that the evidence of risk of breast cancer, along with evidence for increased risks of coronary heart disease, stroke and pulmonary embolism, outweighed the evidence of benefits of Prempro.

In 2003, Wyeth added a black-boxed warning in the labeling insert of Prempro, stating, among other things, that Prempro should not be used for the prevention of cardiovascular disease and advising users of the WHI findings. Wyeth also sent a letter to physicians advising them of the WHI results. Additionally, Wyeth reduced its dosage of Prempro to the lowest possible effective dose. Nevertheless, even with the WHI findings, the higher-dosage tablet previously manufactured by Wyeth continues to be approved by the FDA.

II. FACTS

Ms. Gottlieb began ingesting Prempro in 1998. In 2002, after learning about the results of the WHI Study, Ms. Gottlieb decided to stop taking Prempro. She has not been diagnosed with any type of cancer or cardiovascular disease as a result of her use of Prempro.

In her class action complaint, Ms. Gott-lieb requests relief in the form of a medical monitoring program funded by Wyeth and supervised by the court pursuant to Petito v. A.H. Robins, Co., Inc., 750 So.2d 103 (Fla. 3d DCA 1999), which recognized medical monitoring as a cognizable cause of action in Florida despite the absence of present physical injury or symptomatic disease. The complaint asserts that Wyeth was negligent in testing, manufac-taring, formulating, labeling, marketing, distributing, or selling Prempro, and sur-veilling the adverse effects of .Prempro and that, as a result of Wyeth’s negligence, Ms. Gottlieb and similarly situated class members have been exposed to a hazardous substance which causes a significantly increased risk of contracting serious latent diseases. The complaint alleges that medical monitoring is medically and reasonably necessary to provide for the early detecT tion and prevention of latent diseases and death, minimize damage to consumers of Prempro, and minimize the liability and damages ultimately payable by Wyeth.

In 2004, Ms. Gottlieb filed a motion for class certification, seeking to certify a class defined as “[a]ll women who have taken Prempro and/or conjugated estrogen and progestin in the State of Florida.” The trial court granted her motion after conducting extensive hearings, but redefined the class as:

Asymptomatic women who are residents of Florida and who were prescribed and regularly took Prempro for a minimum of six (6) months, while residing in Florida, prior to the black-boxed FDA mandated warnings in January, 2003.
Subclass: All asymptomatic Florida women in the Class who switched to lower-dose Prempro or who continued taking the higher-dose versions, after the WHI study results and/or the black-boxed warnings in January, 2003.

Wyeth appeals arguing that the trial court abused its discretion in granting the motion for class certification because individual issues prevail over the common or typical elements. See Goldfarb v. Ins. Co. of N. America, 642 So.2d 586, 587 (Fla. 3d DCA 1994).

Wyeth claims that Prempro continues to be approved as safe and effective by the FDA, and that no federal or state court has certified a medical monitoring class action involving a prescription drug, especially for a prescription drug that the FDA currently considers safe and effective. See generally In re Baycol Prods. Litig., 218 F.R.D. 197, 204 (D.Minn.2003)(denymg medical monitoring class certification involving a drug intended to lower cholesterol due to the absence of medical monitoring recommendations from the medical community and because individual issues existed among the class members which destroyed the cohesive nature of the class claims). Wyeth also contends that individual issues, such as exposure, negligence, and causation, not only exist, but defeat any common issues of fact and law and clearly predominate over class-wide issues.

On the other hand, Plaintiffs urge this court to affirm the trial court’s certification order because individual risk factors and other differences among the putative class members do not defeat certification, just as individual differences and independent risk factors did not impact the results of the WHI Study. Plaintiffs allege that Prempro was hazardous and exposed women to substantially increased risks of developing latent diseases, regardless of the woman’s independent risk factors.

III. DISCUSSION

To grant class action certification, the trial court must conduct a rigorous analysis to determine that the elements of Florida Rule' of Civil Procedure 1.220, the class action rule, have been met. Ortiz v. Ford Motor Co., 909 So.2d 479, 480-81 (Fla. 3d DCA 2005)(citing Baptist Hosp. of Miami, Inc. v. Demario, 661 So.2d 319, 321 (Fla. 3d DCA 1995)). The party seeking class certification bears the burden of pleading and proving the elements required for certification. Execu-Tech Bus. Sys., Inc. v. Appleton Papers, Inc., 743 So.2d 19, 21 (Fla. 4th DCA 1999). The requirements under Rule 1.220(a) for class action certification are that: (1) the members of the class are so numerous that a separate joinder of each member is impracticable; (2) the claim of the representative party raises questions of law or fact common to questions of law or fact raised by the claim of each member of the class; (3) the claim of the representative party is typical of the claim of each member of the class; and (4) the representative party can fairly and adequately represent the interests of each member of the class. See Fla. R. Civ. P. 1.220(a); Ortiz, 909 So.2d at 481. In addition to satisfying Rule 1.220(a), the plaintiffs must also satisfy one of the subdivisions of Rule 1.220(b). The subdivisions applicable to the instant case are contained in sections (b)(2) and (b)(3). Section (b)(2) requires that the class claims be cohesive. Fla. R. Civ. P. 1.220(b)(2); see also Chase Manhattan Mort. Corp. v. Porcher, 898 So.2d 153, 158-59 (Fla. 4th DCA 2005)(defining cohesiveness as class members who share “common characteristics” or enjoy a pre-existing relationship). Section (b)(3) requires that common questions of law or fact predominate over the individual questions of the separate members. Fla. R. Civ. P. 1.220(b)(2); see also Volkswagen of America, Inc. v. Sugarman, 909 So.2d 923, 924 (Fla. 3d DCA 2005). The 1.220(b)(3) requirement parallels the commonality requirement under 1.220(a), in that both require that common questions exist, but the 1.220(b) predominance requirement is more stringent since common questions must pervade.

A. NUMEROSITY

As to the requirement of numerosity under Rule 1.220, Plaintiffs allege that the statewide class consists of thousands of women, so numerous that joinder of all members is impracticable. Wyeth does not dispute that the proposed class is sufficiently numerous. However, even if Plaintiffs are able to meet this numerosity prong of Rule 1.220(a), they must nonetheless establish that issues of law and fact are common to the class.

B. COMMONALITY

Plaintiffs claim that they satisfy the commonality requirement of Rule 1.220 because all class members share common issues of law and fact such as whether (1) Wyeth was negligent in failing to make lower-dose Prempro available prior to 2003, (2) the high-dose Prempro is a hazardous substance, (3) special monitoring procedures exist for the early detection of latent diseases caused by Prempro, (4) Wyeth failed to test or improperly tested Prempro before placing it on the market, and (5) Wyeth was negligent for failing to issue adequate warnings concerning the risks associated with the use of Prempro. Plaintiffs further allege that the medical monitoring program will be identical for all class members and that the elements for a medical monitoring program, pursuant to Petito, can be established through common proof.

In contrast, Wyeth argues that individual issues pervade in this case because members of the class used Prempro in different dosages for different periods of time and some members were aware of the risks associated with Prempro while others were not. Furthermore, some class members may have independent risk factors for breast cancer or other diseases at issue, which may warrant special medical monitoring apart from any past Prempro use. Wyeth contends that Plaintiffs did not establish the commonality of their claims because individual issues, such as exposure, negligence, and causation predominate over any common issues. See Ortiz, 909 So.2d at 480-82. In Ortiz, we found that, even when some common issues of fact exist, a class action cannot be certified if individual inquiries prevail over those common issues. Ortiz, 909 So.2d at 481.

Although we are not to decide the merits of this action or Plaintiffs’ right to relief, we nonetheless recognize that evidence pertinent to the determination of the commonality requirement is often intertwined with the merits. See Rink v. Cheminova, Inc., 203 F.R.D. 648, 661 (M.D.Fla.2001). Thus, we will consider whether the elements of a medical monitoring claim can be established through common proof. See id.

In Petito, we articulated that the following elements must be met in order to state a claim for medical monitoring:

(1) exposure greater than normal background levels; (2) to a proven hazardous substance; (3) caused by the defendant’s negligence; (4) as a proximate result of the exposure, plaintiff has a significantly increased risk of contracting a serious latent disease; (5) a monitoring procedure exists that makes the early detection of the disease possible; (6) the prescribed monitoring regime is different from that normally recommended in the absence of the exposure; and (7) the prescribed monitoring regime is reasonably necessary according to contemporary scientific principles.

Petito, 750 So.2d at 106-07. The injury in a medical monitoring case is defined as the quantifiable costs of periodic medical examinations necessary to detect the onset of physical harm. See id. at 106; Albertson v. Wyeth, No. 002944, 2005 WL 1048779 (Pa.Ct.Com.Pl. Apr. 26, 2005). It is preferable that Plaintiffs “recover these costs through a court supervised and administered trust fund instead of through lump sum damage award because a trust fund compensates the plaintiff only for the monitoring costs actually incurred, limiting defendants’ liability.” Albertson, 2005 WL 1048779, at *8.

In the instant case, Plaintiffs failed to show that proving the Petito elements would involve questions of fact common to the class as a whole. For instance, the hazardous nature of Prempro has not been proven as it continues to be approved as safe and effective by the FDA. In fact, Ms. Gottlieb’s own physician continues to prescribe Prempro. Moreover, Plaintiffs’ own expert, Dr. Siegel, testified that Prempro is hazardous only if prescribed for cardiovascular conditions, which is not a use approved by the FDA. Ms. Gottlieb testified that she was not prescribed Prempro to prevent cardiovascular problems. Instead, she ingested Prempro to prevent the onset of osteoporosis. Therefore, Ms. Gottlieb cannot prove that she was exposed to a hazardous substance, which therefore makes her an inadequate class representative. See infra Part III.C.

Additionally, the element of causation is a highly individualistic determination that depends on the individual characteristics of a putative class member, the duration of the Prempro ingestion, and whether that member was taking other medication along with Prempro. See In re Paxil Litig., 212 F.R.D. 539, 548 (C.D.Cal.2003). In the instant case, Plaintiffs had varying levels of exposure to Prempro, relied on different sources of information when making their decisions to ingest Prempro, and might have risk factors other than those caused by Prempro.

Furthermore, at the hearing on the motion for class certification, testimony from Plaintiffs’ expert, Dr. Siegel, demonstrated that Plaintiffs’ claims are better addressed individually. Dr. Siegel testified that, aside from ingesting Prempro, a woman’s increased risk of breast cancer can be caused by other factors such as family history, not having children until after the age of thirty (30), obesity, and consumption of alcohol. Therefore, proving causation would not involve common issues of fact, and the determination of whether a putative class member has a significantly increased risk of contracting a serious latent disease from Prempro would depend on individual circumstances.

Dr. Siegel’s testimony also established that the monitoring program for detecting breast cancer would involve essentially the same medical examinations that menopausal and post-menopausal women are advised to complete regardless of whether they used Prempro. Dr. Siegel additionally testified that monitoring would vary among the different class members, depending on their medical history and individual circumstances. As such, it is questionable, at least as far as the detection of breast cancer, whether the monitoring program recommended by Dr. Siegel is different from that normally recommended in the absence of the exposure.

Besides breast cancer monitoring, the physical examinations to detect cardiovascular diseases would also vary among individual plaintiffs depending on when they stopped using Prempro, the length of time they ingested it, and their medical histories. As far as detecting any cardiovascular problems, Dr. Siegel admitted that, even though the risks for cardiovascular complications disappear sometime after a woman discontinues Prempro use, he nonetheless recommended a more extensive physical examination than those generally provided by doctors. Thus, Dr. Sie-gel’s testimony again demonstrates that Plaintiffs’ claims are more adequately addressed on an individual basis.

Moreover, we agree with the reasoning in Baycol, Albertson, and Zehel-Miller v. Astrazenaca Pharm., LP, 223 F.R.D. 659 (M.D.Fla.2004). In Baycol, the court observed that “negligence claims depend on individual facts — whether there is a breach of duty or the foreseeability of harm will depend on what Defendants knew or should have known at the time [the drug] was prescribed and whether Defendants acted reasonably based on the knowledge [they] had at the time.” Baycol, 218 F.R.D. at 208. In the instant case, Plaintiffs’ claim that Wyeth was negligent in failing to warn about the risks of certain diseases cannot be established by common proof because class members were prescribed Prempro at many different times over a ten-year period and scientific knowledge has changed and evolved over that time period. Thus, the issue of negligence would require specific proof as to what Wyeth knew at the time each plaintiff was prescribed Prempro. Had Wyeth’s knowledge and warnings to its users remained static during the ten-year period, Plaintiffs would have had a much stronger claim that negligence may be shown through common proof.

In Albertson, a Pennsylvania court considered near identical circumstances as in the instant case, involving a claim for medical monitoring based on increased risks of breast cancer associated with the use of Prempro. After reviewing the evidence, the court concluded that “[t]he facts surrounding the Class’ negligence claim demonstrate[ ] that proof as to one claimant would not be proof as to all. A myriad of individual causation inquiries exist in determining the level of risk for developing breast cancer.” Albertson, 2005 WL 1048779, at *8. Similarly, in Zehel-Miller, a federal court in the Middle District of Florida denied certification for a class of anti-psychotic prescription drug users, holding that “individual questions concerning patient characteristics and medical history, physician involvement, dosage, causation and comparative or contributory negligence, eviscerate any notion that common issues predominate in this case.” Zehelr-Miller, 223 F.R.D. at 664.

We note that Plaintiffs’ reliance on In re Diet Drugs Products Liability Litig., No. 98-20626, 1999 WL 673066 (E.D.Pa. Aug.26, 1999) is misplaced. In Diet Drugs, the court considered a state-wide medical monitoring class for users of Fen-Phen after the FDA withdrew Fen-Phen from the market due to its hazardous public health implications. In re Pennsylvania Diet Drugs Litig., 41 Pa. D. & C.4th 78, 81-82 (Pa.Ct.Com.Pl.1999). Moreover, Diet Drugs involved numerous forms of medical monitoring which were first recommended by the United States Department of Health and Human Services. Id. at 86-87. Those recommendations were issued jointly with the Centers for Disease Control, NIH, the FDA, and other medical organizations. See id. at 86.

Here, neither the FDA, nor any other medical organization, has recommended or developed a medical monitoring program for current or former Prempro users. Thus, the timing of the requested relief presents a very significant obstacle for the Plaintiffs. See In re Propulsid Products Liab., 208 F.R.D. 133, 147 (E.D.La.2002). As the court in Propulsid aptly stated:

Neither the FDA, nor any medical organization or institution, nor anyone else for that matter, except the plaintiffs expert, has recommended or suggested that a program for medical monitoring or a group study of all former Propulsid users be undertaken.... In such a situation the courts should not attempt to fill the void. “[T]he courtroom is not the place for scientific guesswork even of the inspired sort. Law lags scienee[;] it does not lead it.”

Id. at 147 (quoting Rosen v. Ciba-Geigy Corp., 78 F.3d 316, 319 (7th Cir.1996)).

C. TYPICALITY AND ADEQUACY OF REPRESENTATION

As for the remaining requirements of typicality and adequacy of representation under Rule 1.220, given the circumstances of this case, we find it unlikely that the named plaintiff, Ms. Gottlieb, has claims similar to those of the putative class, or that she adequately represents the class members. The typicality requirement focuses on the relationship of the class representative’s claims to the claims of the class members. Colonial Penn. Ins. Co. v. Magnetic Imaging Sys. I, Ltd., 694 So.2d 852, 854 (Fla. 3d DCA 1997). Ms. Gottlieb alleges that her claim is co-extensive with the class members’ claims as she ingested Prempro for several years, remains asymptomatic, and seeks the same relief as the class members.

However, Ms. Gottlieb stopped ingesting Prempro in 2002 upon learning about the WHI Study findings, which was prior to both the black-boxed Prempro warning and Wyeth’s release of the lower-dose Prempro. On the other hand, other class members continued using Prempro even after its label and dosage changed. Even if a trial court were to find that Wyeth was negligent prior to 2003, such a finding would not necessarily support a conclusion that Wyeth was negligent in marketing the lower-dose Prempro in 2003, especially because Wyeth’s knowledge may have been different prior to 2002.

Additionally, at the class certification hearings, Ms. Gottlieb testified that she neither read the Prempro labels nor saw any advertisements by Wyeth promoting Prempro. Ms. Gottlieb was also warned by her physician about the risk of breast cancer associated with Prempro but continued to use it for menopausal symptoms, while other class members may not have been aware of the risks and may have taken Prempro for other reasons, such as prevention of cardiovascular disease. Finally, Dr. Siegel testified that Ms. Gottlieb was atypical from the other Prempro users because she stopped taking Prempro, on her own, after learning about the WHI Study results.

Since factual differences among the class members’ claims and the defenses which Wyeth can assert vary depending on each plaintiffs individual circumstances and conditions, Ms. Gottlieb’s claims are not typical of the class. Based on these differences among class members’ claims, we must conclude that Ms. Gottlieb’s interests are not sufficiently similar to the class and it is possible that Ms. Gottlieb’s arguments at trial would be adverse to another class member’s claims. Therefore, besides being an atypical plaintiff, Ms. Gottlieb is also not an adequate representative of the putative class. See Broin v. Philip Morris Cos., Inc., 641 So.2d 888, 891 (Fla. 3d DCA 1994)(defíning an adequate class representative as one who has interests in common with the proposed class members).

IV. CONCLUSION

Since Plaintiffs have not met their burden of showing that the prerequisites of Rule 1.220(a) have been satisfied, we need not reach the requirements of section 1.220(b). Accordingly, we find that the elements of commonality, typicality, and adequacy of representation have not been prima facie established because individual issues of law and fact exist.

We reverse and remand for decertification of the class.


author: ROTHENBERG, J.

text:
    Karem Elena ROMO, individually and as personal representative of the Estate of Magali Romo, Appellant, v. AMEDEX INSURANCE COMPANY, Cincinnati Equitable Insurance Company, and Fernando Nava d/b/a F. Nava & Company, Appellees.
    No. 3D05-1400.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 2006.
    Rehearing Denied June 27, 2006.

      Greenberg Traurig and Charles M. Aus-lander; Mintz, Truppman, Clein & Higer and Michael J. Higer, Miami, for appellant.
    Hunton & Williams and Christopher N. Johnson, Miami, for appellees.
    Before GREEN, RAMIREZ, and ROTHENBERG, JJ.
   ROTHENBERG, J.

The plaintiff, Karem Elena Romo, etc., appeals from an order dismissing her second amended complaint with prejudice as to defendants Amedex Insurance Company (“Amedex”), Cincinnati Equitable Insurance Company (“Cincinnati Equitable”), and Fernando Nava d/b/a F. Nava & Company (“Nava”). We reverse and remand for further proceedings.

THE COMPLAINT

The plaintiff filed a ten-count Second Amended Complaint (“Complaint”) against Amedex, Cincinnati Equitable, Nava, and Humberto Martinez. The Complaint alleges that Amedex is a Florida corporation authorized to sell health insurance products to residents of Mexico, including Ma-gali Romo and her family. Amedex recruited agents, including Martinez and Nava, to sell its health insurance policies, and Amedex supervised these agent relationships. Beginning in 1986, Amedex, which at that time was known as Cincinnati Assurance International Corporation, started to administer, market, and sell health insurance policies on behalf of Cincinnati Equitable. However, in July 1997, Amedex acquired Cincinnati Equitable’s policies and began to issue renewal policies under its own name. At all material times, Martinez was Nava’s agent; Nava and Martinez were both insurance agents of Amedex and Cincinnati Equitable; and these agents were authorized to transact insurance business on behalf of Amedex and Cincinnati Equitable.

In 1991, Magali Romo and her husband, Jesus Fernandez Romo, Sr. (collectively referred to as “the Romos”), applied for a family health insurance policy through Cincinnati Equitable. In applying for insurance, the Romos were presented with an application , for insurance, which was filled out and signed by Mr. Romo. The application contains the following merger clause, which has been translated from Spanish to English:

I understand that no agent is authorized to change or modify in any way these contracts or waive one or some of the requirements [sic] this company, or are they able to bind the company by way of promises, representations or information unless placed in writing and form part of an insurance contract or in favor of this application.

Cincinnati Equitable issued to the Romos an insurance policy, effective February 15, 1991, bearing a policy number of B91-2217-13. This policy provided for liability limits of $2,000,000, a deductible of $500, and coverage for organ transplants. The Romos renewed this policy for numerous years. As to the sale of the initial policy and the subsequent renewals of this policy, Martinez acted as an agent for Nava and Cincinnati Equitable; Nava acted as an agent for Cincinnati Equitable; and Ame-dex acted as Cincinnati Equitable’s sales representative in Florida.

In December 1995, the Romos once again discussed the renewal of the policy with Martinez. He represented to the Ro-mos that they could reduce their insurance premiums and still renew their policy if they would agree to a reduction of the policy limits from $2,000,000 to $1,000,000 and an increase of the deductible from $500 to $1,000. Martinez represented to the Romos that, except for the changes in the policy limit and the deductible, these policies would provide the same coverage and benefits as provided in the prior insurance policies that had been issued to them from 1991 through 1995. In reliance upon Martinez’s representations, the Romos purchased the Plan Select Worldwide renewal policy from Cincinnati Equitable and Amedex. Mr. Romo forwarded the premium check and a letter to Amedex which states, as translated, as follows: “THIS IS TO INFORM YOU THAT I WISH TO CHANGE FROM “PLAN B” TO THE NEW PLAN NAMED WORLDWIDE SELECT PLAN ... WITH THE UNDERSTANDING THAT I WILL NOT LOSE SENIORITY, I AM ENCLOSING A CHECK FOR $1,793.00 TO COVER THE ANNUAL CHARGES.”

In February 1996, the policy in question was issued under policy number PSW91-2217-13, with the original effective date of February 15, 1991. The Romos did not read this policy to confirm Martinez’s representations because they accepted his representations as true.

Following the issuance of the Plan Select Worldwide policy in 1996, Amedex issued subsequent renewals. In 1998, Mrs. Romo became ill and notified Amedex and Cincinnati Equitable that she needed a liver transplant. Initially, Amedex and Cincinnati Equitable advised Mrs. Romo’s medical providers that they would provide coverage for the liver transplant; however, shortly thereafter, they advised the medical providers that Mrs. Romo’s current policy did not provide coverage for liver transplants. Magali Romo died on September 13, 2002, and Amedex and Cincinnati Equitable have refused to reimburse the Romo family for the medical expenses incurred for the treatment of Mrs. Romo.

MOTION TO DISMISS

Amedex and Cincinnati Equitable filed a motion to dismiss the Complaint, which was joined by Nava, but not Martinez. Based primarily upon the merger clause contained in the 1991 insurance application, the trial court granted the motion to dismiss with prejudice.

The plaintiff contends that the trial court erred by granting the motion to dismiss. We agree.

A trial court’s ruling on a motion to dismiss for failure to state a cause of action is an issue of law, thereby mandating de novo review. Roos v. Morrison, 913 So.2d 59 (Fla. 1st DCA 2005); Susan Fixel, Inc. v. Rosenthal & Rosenthal, Inc., 842 So.2d 204, 206 (Fla. 3d DCA 2003). When ruling on a motion to dismiss for failure to state a cause of action, the trial court must “treat as true all of the ... complaint’s well-pleaded allegations, including those that incorporate attachments, and to look no further than the ... complaint and its attachments.” City of Gainesville v. State, Dep’t of Transp., 778 So.2d 519, 522 (Fla. 1st DCA 2001). Moreover, the “reviewing court operates under the same constraints.” Id. (quoting Andrews v. Fla. Parole Comm’n, 768 So.2d 1257, 1260 (Fla. 1st DCA 2000)) (citations omitted). As each of the ten counts state a cause of action, we conclude that it was error to dismiss the Complaint.

COUNT I — DECLARATORY JUDGMENT

Count I of the Complaint is an action for declaratory judgment filed pursuant to Chapter 86, Florida Statutes, against defendants Amedex and Cincinnati Equitable. “ ‘A motion to dismiss a complaint for declaratory judgment is not a motion on the merits. Rather, it is a motion only to determine whether the plaintiff is entitled to a declaration of its rights, not to whether it is entitled to a declaration in its favor.’ ” Royal Selections, Inc. v. Fla. Dep’t of Revenue, 687 So.2d 893, 894 (Fla. 4th DCA 1997); see also Smith v. City of Fort Myers, 898 So.2d 1177, 1178 (Fla. 2d DCA 2005)(“In determining the sufficiency of a complaint for declaratory judgment, the question is whether the plaintiff is entitled to a declaration of rights, not whether the plaintiff will prevail in obtaining the decree he or she seeks.”). To state a cause of action for declaratory relief, a complaint must allege that

there is a bona fide dispute between the parties and that the moving party has a justiciable question as to the existence or non-existence of some right, status, immunity, power or privilege, or as to some fact upon which the existence of such right, status, immunity, power or privilege does or may de[p]end, that plaintiff is in doubt as to the right, status, immunity, power or privilege, and that there is a bona fide, actual, present need for the declaration.

Smith, 898 So.2d 1177, 1178 (Fla. 2d DCA 2005)(quoting Bell v. Associated Indeps., Inc., 143 So.2d 904, 908 (Fla. 2d DCA 1962) (citations omitted)); see Floyd v. Guardian Life Ins. Co., 415 So.2d 103, 105 (Fla. 3d DCA 1982).

In the instant case, the order under review indicates that the trial court did not determine whether the Complaint contains sufficient allegations entitling the plaintiff to a declaration of her rights. Rather, the trial court erroneously treated the motion to dismiss as a motion on the merits by concluding that Amedex and Cincinnati Equitable were not required to provide coverage to Mrs. Romo for an organ transplant because the insurance policy does not provide such coverage.

To determine whether the plaintiff is entitled to a declaration of her rights, we must examine the allegations of the Complaint. The Complaint alleges that the plaintiff is in doubt as to whether Mrs. Romo was entitled to coverage by Amedex and Cincinnati Equitable for a liver transplant; that Amedex and Cincinnati Equitable have refused to provide such coverage; and that there is a present controversy between the plaintiff and Amedex and Cincinnati Equitable as a result of their refusal to provide coverage. The Complaint indicates that the plaintiff is asserting a right to coverage based upon Florida law governing the issuance of renewal policies; the representations made by the agents of Amedex and Cincinnati Equitable; and that, allowing Amedex and Cincinnati Equitable to deny coverage, would allow them to perpetrate a fraud. As these allegations were sufficient to entitle the plaintiff to a declaration of her rights, we reverse the portion of the order dismissing Count I of the Complaint.

COUNT II — REFORMATION and COUNT VIII — BREACH OF CONTRACT

Count II of the Complaint seeks a reformation of the insurance contract to include coverage for organ transplants. To state a cause of action for reformation of a contract, the complaint must allege that, as a result of a mutual mistake or a unilateral mistake by one party coupled with the inequitable conduct of the other party, the insurance contract fails to express the agreement of the parties. See Kolski v. Kolski, 731 So.2d 169 (Fla. 3d DCA 1999)(holding that allegations of complaint were sufficient to withstand a motion to dismiss where the complaint alleged that writing did not contain the entire agreement of the parties due to a unilateral mistake by one party and the inequitable conduct of the other party); Circle Mtg. Corp. v. Kline, 645 So.2d 75, 78 (Fla. 4th DCA 1994)(“The rationale for reformation is that a court sitting in equity does not alter the parties’ agreement, but allows the defective instrument to be corrected to reflect the true terms of the agreement the parties actually reached.”); Providence Square Assoc. v. Biancardi, 507 So.2d 1366, 1369-72 n. 3 (Fla.l987)(stating that a contract may be reformed due to a mutual mistake or a unilateral mistake by one party coupled with the inequitable conduct of the other party to the agreement); Am. Fire & Indem. Corp. v. State Farm Auto. Ins. Co., 483 So.2d 122, 123 (Fla. 1st DCA 1986)(holding that “contract cannot be reformed in the absence of mutual mistake”); Canal Ins. Co. v. Hartford Ins. Co., 415 So.2d 1295, 1297 (Fla. 1st DCA 1982)(hold-ing that a contract may be reformed based upon a mutual mistake); Samet v. Prudential Ins. Co. of Am., 294 So.2d 35, 36 (Fla. 3d DCA 1974)(“For reformation of an insurance contract for fraud or mutual mistake it must be shown that the policy failed to express or conform to the contemplation of the parties, by evidence sufficient to overcome a presumption arising from the policy that it correctly expressed the intention of the parties.”).

In the instant case, the count for reformation alleges that the parties to the insurance contract believed that the insur-anee policy contained coverage for liver transplants, and that the failure of the policy to provide this coverage was as a result of a mutual mistake. The Complaint alleges in the alternative that, if the mistake was not a mutual mistake, it was a unilateral mistake on the part of the Ro-mos, as a result of the inequitable conduct of Amedex and Cincinnati Equitable’s agents. Based on these well-pled allegations, we conclude that the Complaint states a cause of action for reformation. Moreover, we note that the merger clause contained in the 1991 application does not automatically bar the plaintiff from seeking the reformation of the insurance contract. See Providence Square, 507 So.2d at 1371 (“In a reformation action in equity, ... parol evidence is admissible for the purpose of demonstrating that the true intent of the parties was something other than that expressed in the written instrument. Similarly, the doctrine of merger in deed, under which preliminary understandings, negotiations, and agreements regarding a conveyance are held to merge in the deed leaving it as the sole expositor of the parties’ intent, is inapplicable in an action seeking the equitable remedy of reformation.”) (citations omitted); Noack v. Blue Cross & Blue Shield of Fla., Inc., 742 So.2d 433 (Fla. 1st DCA 1999)(holding that a written contract’s merger clause is not a bar to a cause of action for reformation).

COUNT III—PROMISSORY ESTOPPEL

Count III of the Complaint is for promissory estoppel against Amedex and Cincinnati Equitable. To state a cause of action for promissory estoppel, the plaintiff is required to allege three elements: “(1) a representation as to a material fact that is contrary to a later-asserted position; (2) a reasonable reliance on that representation; and (3) a change in position detrimental to the party claiming estoppel caused by the representation and reliance thereon.” FCCI Ins. Co. v. Cayce’s Excavation, Inc., 901 So.2d 248, 251 (Fla. 2d DCA 2005).

In the instant case, the promissory estoppel count alleges that Amedex and Cincinnati Equitable’s representative and agent, Martinez, promised the Romos that the coverage provided in the Plan Worldwide Select renewal policy was the same coverage as provided in their previous policies; that the Romos relied to their detriment on this promise; and that as a result of their reliance on the promise, damages were incurred. Based upon these allegations, we conclude that the Complaint sufficiently pleads a cause of action for promissory estoppel. See Crown Life Ins. Co. v. McBride, 517 So.2d 660 (Fla.1987)(“[T]he form of equitable estoppel known as promissory may be utilized to create insurance coverage where to refuse to do so would sanction fraud or other injustice.”); see also Prof'l Underwriters Ins. Co. v. Freytes & Sons Corp., 565 So.2d 900, 902 (Fla. 5th DCA 1990)(holding that doctrine of promissory estoppel can be used to create insurance coverage, but burden is on plaintiff to establish elements of promissory estoppel by clear and convincing evidence).

COUNT TV—FRAUDULENT MISREPRESENTATION and COUNT VI—FRAUD

Count IV of the Complaint is for fraudulent misrepresentation against Ame-dex, Cincinnati Equitable, Martinez, and Nava. To state a cause of action for fraudulent misrepresentation, a plaintiff is required to allege the following elements in the complaint: (1) a misrepresentation of a material fact; (2) which the person making the misrepresentation knew to be false; (3) that the misrepresentation was made with the purpose of inducing another person to rely upon it; (4) that the person relied on the misrepresentation to his detriment; and (5) that this reliance caused damages. Biscayne Inv. Group, Ltd. v. Guarantee Mgmt. Servs., Inc., 903 So.2d 251 (Fla. 3d DCA 2005); Elders v. United Methodist Church, 793 So.2d 1038 (Fla. 3d DCA 2001); Chino Elec., Inc. v. United States Fid. Guar. Co., 578 So.2d 320, 322 n. 4 (Fla. 3d DCA 1991).

A review of the Complaint indicates that these elements are alleged. Nonetheless, the appellees argue that the trial court correctly granted the motion to dismiss with prejudice because the merger clause contained in the 1991 insurance application automatically defeats the plaintiffs allegation of reliance. As the issue of whether the Romos reasonably relied upon the misrepresentations of Martinez is an issue of fact, we disagree.

In S & S Air Conditioning Co. v. Freire, 555 So.2d 387 (Fla. 3d DCA 1989), the plaintiffs filed a fourth amended complaint for fraudulent misrepresentation against Freire, who was an insurance agent employed by Dardick General Agency (“Dar-dick”); Dardick; and Washington National Insurance Company, who was Dardick’s “employer.” The complaint alleged that Freire proposed a Durham Insurance Company health insurance plan that would cover the employees of S & S. Thereafter, S <& S and its employees submitted insurance applications, and S & S tendered a check to Comprehensive Benefits Administrators, Inc. (“CBAI”) as a binder for the health insurance plan. Freire represented to S & S that its employees would have full coverage as of a specific date. On that specific date, a child of one of S & S’s employees was injured and incurred medical expenses. Upon the employee’s demand for payment from CBAI, CBAI returned the check to S & S and denied coverage. The trial court granted a motion to dismiss with prejudice as to Freire, Dardick, and Washington National.

On appeal, this court noted that the application for insurance, established that Freire “acted as an agent for the insured, that Freire had no right to bind coverage, and that insurance would not be effective until Durham or CBAI approved the application.” S & S, 555 So.2d at 388. Dardick and Freire argued that these recitals in the insurance application “vitiate the allegations of agency and reasonable reliance on Freire’s representations,” and therefore, the plaintiffs’ claim for fraud was defeated. Id. This court disagreed, finding that the complaint pled a cause of action against Dardick and Freire based upon the complaint’s allegation that Freire, as an agent of Dardick, knowingly made misrepresentations of fact and that these misrepresentations were reasonably relied upon to the detriment of the plaintiffs. Id. at 387-88. In reversing as to Dardick and Freire, we specifically held that “[t]he terms of the written application do not preclude an action against the insurer and its agent where the agent misrepresents the coverage of the insurance contract and the insured reasonably relies thereupon to his detriment,” id. at 388, and that issues regarding the existence of an agency relationship and reliance on misrepresentation of fact are questions of fact. Id. at 388 n. 1-2. Although we reversed the dismissal as to Dardick and Freire, this court affirmed the dismissal as to Washington National because, while Dardick General Agency was Washington National’s Florida agent, Washington National had no authority over or connection with Freire.

In both the instant case and in S & S, the insurance applications state that the agent does not have the authority to bind the insurer. As we concluded in S & 5 that the complaint stated a cause of action for fraudulent misrepresentation against the agent, Freire, and his employer, Dardick, despite the language contained in the insurance application, we likewise conclude that the Complaint in the instant case states a cause of action for fraudulent misrepresentation against Martinez and his employer, Nava.

Amedex and Cincinnati Equitable argue that, even if we were to conclude that the Complaint states a cause of action as to Martinez and his employer, Nava, based upon our holding in S & S, we must affirm the dismissal as to them. We disagree. Amedex and Cincinnati Equitable correctly note that, in S & S, this court affirmed the dismissal of the insurer, Washington National, even though we concluded that Washington National was “Dardick’s employer” and that Washington National had appointed Dardick as its Florida agent. A thorough reading of S & S, however, reveals an important distinction between S & S and the instant case. In S & S, we affirmed the dismissal as to Washington National because there “were no allegations connecting Washington with Freire’s misrepresentations.” Unlike S 6 S, the Complaint in the instant case contains numerous allegations connecting Amedex and Cincinnati Equitable with the misrepresentations made by Martinez, who the Complaint alleges is an agent of Nava, Amedex, and Cincinnati Equitable. For example, the Complaint alleges, in part, that the “representations made by Amedex and Cincinnati Equitable’s agents and representatives were fraudulent;” “Amedex and Cincinnati Equitable and their agents and representatives knew the representations were false when they made the representations;” and “Amedex and Cincinnati Equitable and their agents and representatives made the false representations with the intent that Plaintiffs mother and father would rely upon these false representations.” Based upon the allegations in the Complaint, which if proven, would establish an agency relationship between Martinez and Nava, between Nava and Amedex and Cincinnati Equitable, and between Martinez and Amedex and Cincinnati Equitable directly, coupled with the allegations of the misrepresentations of Martinez (their agent) which were false and which upon the Romos relied to their detriment, we conclude that the Complaint contains sufficient allegations to state a cause of action for fraudulent misrepresentations against Amedex and Cincinnati Equitable. See Mejia v. Jurich, 781 So.2d 1175 (Fla. 3d DCA 2001)(“The existence of a merger or integration clause, which purports to make oral agreements not incorporated into the written contract unenforceable, does not affect oral representations which are alleged to have fraudulently induced a person to enter into the agreement.”); Martin v. Principal Mut. Life Ins. Co., 557 So.2d 128, 129 (Fla. 3d DCA 1990)(holding that where complaint alleges all elements of a cause of action for fraudulent misrepresentation, the “terms of an insurance policy do not preclude an action against the insurer or its agent where the agent misrepresents the coverage of the insurance contract and the insured reasonably relies on the misrepresentation to his detriment”).

The issue of whether the Romos’ reliance on the representations allegedly made by Martinez was reasonable, is an issue of fact which may not be resolved at this stage of the proceedings. See FCCI Ins., 901 So.2d at 251 (summary judgment reversed because “whether reliance was ‘reasonable’ involves the resolution of factual issues”); Williams v. Bear Stearns & Co., 725 So.2d 397 (Fla. 5th DCA 1998)(stating that issue of reasonable reliance on fraudulent representation is to be decided by the jury); Thor Bear, Inc. v. Crocker Mizner Park, Inc., 648 So.2d 168 (Fla. 4th DCA 1994)(holding that “determination of reliance is typically left to the trier of fact”). A trier of fact could determine that, based upon what Martinez told the Romos in December of 1995, the Romos reasonably relied upon his misrepresentations, despite the disclaimer contained in the 1991 application.

COUNT V—NEGLIGENT MISREPRESENTATION

Count V of the Complaint is for negligent misrepresentation. To state a cause of action for negligent misrepresentation, a plaintiff must allege that:

(1) the defendant made a misrepresentation of material fact that he believed to be true but which was in fact false; (2) the defendant was negligent in making the statement because he should have known the representation was false; (3) the defendant intended to induce the plaintiff to rely ... on the misrepresentation; and (4) injury resulted to the plaintiff acting in justifiable reliance upon the misrepresentation.

Simon v. Celebration Co., 883 So.2d 826, 832 (Fla. 5th DCA 2004)(citing Johnson v. Davis, 480 So.2d 625 (Fla.1985)); see Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 So.2d 334, 337-38 (Fla.1997); Ragsdale v. Mount Sinai Med. Ctr. of Miami, 770 So.2d 167, 169 (Fla. 3d DCA 2000).

The Complaint alleges that Martinez and Nava, as agents of Amedex and Cincinnati Equitable, represented to the Romos that, except for the change in the policy limits and the deductible, the “renewal” policy would contain the same coverage as the initial policies; that Amedex and Cincinnati Equitable were aware of these representations; that Martinez “believed that the renewal policy provided coverage for the liver transplant;” and that “as a direct and proximate result of these negligent misrepresentations,” injury resulted. Based upon these allegations, we conclude that the Complaint sufficiently pleads a cause of action for negligent misrepresentation against the appellees. See Warren v. Dairyland Ins. Co., 662 So.2d 1387 (Fla. 4th DCA 1995)(holding that insurer can be held liable for the negligent misrepresentations made by insurance agent of insurer; determination of whether insurance agent is agent of insurer “cannot be made at the initial pleading stage”).

COUNT X—NEGLIGENCE

Count X of the Complaint is for negligence against the defendants. This Count alleges that Martinez and Nava, who are alleged to be agents of Amedex and Cincinnati Equitable, knew or should have known that the Romos “wanted to purchase a health insurance policy that provided the same coverages that the initial policies sold to them provided;” that Martinez and Nava owed a duty to the Romos to procure such an insurance policy; that Martinez and Nava were negligent in failing to procure such an insurance policy; and as a result of Martinez and Nava’s negligence, damages were suffered. As these allegations state a cause of action for negligent procurement of insurance, we also reverse the dismissal of Count X. See Klonis for Use & Benefit of Consol. Am. Ins. Co. v. Armstrong, 436 So.2d 213 (Fla. 1st DCA 1983)(“[W]here an insurance agent or broker undertakes to obtain insurance coverage for another person and fails to do so, he may be held liable for resulting damages to that person for breach of contract or negligence.”); Bennett v. Berk, 400 So.2d 484, 485 (Fla. 3d DCA 1981)(“An insurance broker may be liable for damages where there is an agreement to procure insurance and a negligent failure to do so.”); Caplan v. La Chance, 219 So.2d 89 (Fla. 3d DCA 1969)(holding that an insurance .agent’s negligence in failing to procure the proper insurance coverage requested by the insured is a recognized cause of action).

THE REMAINING COUNTS

We conclude that the remaining counts also state a cause of action, but do not merit discussion.

Accordingly, we reverse the trial court’s order dismissing with prejudice the Complaint, and remand for further proceedings.

Reversed and remanded.

      . The application was incorporated by reference-into the policy subsequently issued to the Romos in 1991, and was ordered by the trial court to be included as an attachment to the Complaint.

      . The parties dispute whether the 1996 policy was a renewal policy or a new policy, which we will address later in this opinion.

      . In the instant case, the plaintiff alleged that the policy at issue was a "renewal’' policy. The trial court, however, found that the policy was a "new” policy and that the Romos "chang[ed] to a different policy." Whether the policy was a "renewal” policy, as alleged by the plaintiff, or a "new” policy, is an issue of fact that cannot be resolved on a motion to dismiss. As we have already stated, when ruling on a motion to dismiss, the trial court is required to "treat as true all of the ... complaint's well-pleaded allegations, including those that incorporate attachments, and to look no further than the ... complaint and its attachments.” City of Gainesville v. State, Dep't of Transp., 778 So.2d 519, 522 (Fla. 1st DCA 2001). Whether this policy is a renewal policy or a new policy is a key issue of fact, which will directly affect the legal issue presented in this case. For example, if the 1996 policy was a renewal policy, it is arguable that the disclaimer contained in the 1991 insurance application is part of the 1996 policy. However, if the 1996 policy is a new policy, it is arguable that the disclaimer contained in the 1991 application would have no bearing on the 1996 policy. Moreover, the plaintiff has cited to Marchesano v. Nationwide Prop. & Cos. Ins. Co., 506 So.2d 410, 413 (Fla.1987), which provides that "[a]bsent a notice to the contrary, the insured is entitled to assume that the terms of the renewed policy are the same as those of the original contract."

      . Count VIII of the Complaint alleges a breach of contract. Based on the allegations asserted in the Complaint and the fact that we have concluded that the Complaint states a cause of action for reformation, we reverse the dismissal of the breach of contract claim.

      . Based upon our analysis as to the plaintiff’s count for fraudulent misrepresentation, we also conclude that the trial court erroneously dismissed Count VI of the Complaint which alleges, in part, that the defendants, who were acting in concert with each other, fraudulently induced them into purchasing the renewal policy.


text:
    Jermaine Tynell DUHART, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1301.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 2006.
    Rehearing and Rehearing En Banc Denied June 15, 2006.
    Bennett H. Brummer, Public Defender and Howard K. Blumberg, Assistant Public Defender, for appellant.

      Charles J. Crist, Jr., Attorney General and Michele Samaroo, Assistant Attorney General, for appellee.
    Before LEVY, GREEN, and WELLS, JJ.
   PER CURIAM.

This is an appeal from an order sentencing the appellant to twenty years in prison and four years probation as a habitual felony offender. We affirm.

In 1997, the appellant was convicted of four counts of robbery with a deadly weapon or firearm. He was sentenced as a habitual violent felony offender to 40 years imprisonment with fifteen years minimum mandatory. The conviction and sentence were affirmed on appeal. Duhart v. State, 727 So.2d 932 (Fla. 3d DCA 1999).

The appellant filed a Florida Rule of Criminal Procedure 3.800(a) post-conviction relief motion, asserting that the trial court erred in sentencing him as a habitual violent felony offender. Based upon the State’s proper confession of error, we reversed and remanded the case to the trial court “for a new sentencing proceeding, as the defendant was erroneously sentenced as a habitual violent felony offender and he must now be resentenced as a habitual offender.” Duhart v. State, 847 So.2d 497, 497 (Fla. 3d DCA 2003).

On remand, pursuant to our mandate, the trial court removed the “violent” designation and the minimum mandatory term from the appellant’s sentence. This “corrected order” was entered nunc pro tunc to the date of the appellant’s original sentence. This sentence was later reversed and remanded because neither the appellant nor his counsel were present for the resentencing. Duhart v. State, 858 So.2d 1222 (Fla. 3d DCA 2003).

Thereafter, on April 1, 2004, the trial court held a resentencing hearing. The court sentenced the appellant, pursuant to the 1995 sentencing guidelines, to concurrent sentences of twenty-years on each of the four counts followed by four years of probation. The appellant then filed a motion to correct illegal sentence on grounds that the twenty-year sentence had been imposed under the 1995 guidelines, which were held to be unconstitutional in Heggs v. State, 759 So.2d 620 (Fla.2000). The trial court initially denied this motion because it erroneously believed that the appellant had been sentenced as a habitual offender and the guidelines therefore were inapplicable. At a subsequent hearing, however, defense counsel informed the court that the appellant’s resentence had not included a habitual offender designation. The trial court thereafter vacated its order denying the defendant’s motion to correct illegal sentence, and requested defense counsel to prepare a new guideline scoresheet under the constitutional 1994 guidelines.

On April 8, 2005, the court heard arguments on rehearing. Upon the conclusion of this rehearing, the court decided to reimpose the habitual offender designation to the appellant’s sentence and stated:

At the resentencing, this court took into consideration all the matters and since twenty years was within the guidelines, didn’t feel it necessary to sentence him as a habitual offender. It wasn’t necessary to accomplish the purpose of a twenty year sentence and give effect to the court’s intention. On the resentenc-ing today, the court will sentence him as a habitual offender to twenty years state prison followed by four years probation.

Accordingly, the court entered a written order correcting the April 1, 2004, sentence and designated the defendant as a habitual offender. It is this written order that is now the subject matter of this appeal.

The appellant claims that his resentence as a habitual felony offender was improper based upon our opinion in Martinez v. State, 625 So.2d 1306 (Fla. 3d DCA 1993). We disagree.

The facts in this case are clearly distinguishable from those in Martinez. In Martinez, the trial court, at the initial sentencing hearing, specifically declined to sentence the defendant as a habitual felony offender even after the State requested that it do so. On remand, after a successful appeal, the trial court sentenced the defendant as a habitual violent felony offender (a “step up” from the State’s initial request of a habitual felony offender designation). Martinez, 625 So.2d at 1306. Martinez appealed. On the appeal, the State conceded that the defendant’s sentence had to be reversed because the amendment to the habitual violent felony offender statute, which supported the State’s request that the defendant be designated a habitual violent felon, was not in effect on the date that the defendant committed the offense for which he was convicted. Id. The defendant also claimed, on appeal, that upon resentencing the court could not issue him a habitual felony offender sentence but instead the court was limited to giving him a guidelines sentence. We agreed finding that the “initial decision not to sentence the defendant as a habitual offender preclude[d] [the court] from issuing such a sentence on remand.” Martinez, 625 So.2d at 1306 (citing Grimes v. State, 616 So.2d 996, 998 (Fla. 1st DCA 1992)).

In this case, however, the trial court initially, and continually, imposed the habitual offender designation on appellant’s sentences. It was only at the fourth sentencing hearing that the trial court did not include the habitual offender designation finding instead that the twenty-year sentence provided by a 1995 sentencing guidelines scoresheet provided an appropriate sentence for the appellant’s convictions.

We therefore find this case to be more comparable to Plute v. State, 835 So.2d 368 (Fla. 2d DCA 2003). In Piute, the defendant was sentenced, without a habitual offender designation, under the constitutionally infirm 1995 guidelines. On resen-tencing, the trial court imposed habitual offender enhancements to achieve a sentence equivalent to the one originally imposed. In affirming the trial court’s re-sentence, the Second District opined that:

Mr. Piute’s original sentence was illegal, having been imposed in reliance upon an unconstitutional statute that had never been validly enacted. It is well-established that a harsher sentence may be imposed on resentencing in such a context without violating double jeopardy.

Plute, 835 So.2d at 369.

Given that the trial court in this case, unlike the court in Martinez, continually designated the defendant as a habitual offender; and given the fact that the designation here, like that in Piute, was used to align the defendant’s sentence with the one imposed under the 1995 guidelines, we affirm.

Affirmed.

      . Thereafter, the defendant filed a Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief claiming ineffective assistant of counsel, which was denied by the trial court. Again, we affirmed. Duhart v. State, 732 So.2d 1077 (Fla. 3d DCA 1999). Next, the defendant filed a petition for habeas corpus, which was denied in part and granted in part on grounds that are not germane to this appeal. Duhart v. State, 802 So.2d 450 (Fla. 3d DCA 2001).


author: FLETCHER, Judge.

text:
    MANHEIM AUCTIONS GOVERNMENT SERVICES, INC., a foreign corporation, and Florida Auto Auction of Orlando, Inc. d/b/a Daytona Auto Dealers Exchange, a Florida corporation, Appellants, v. Osbaldo MEJIA, etc., et al., Appellees.
    No. 3D04-1967.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 2006.
    Rehearing and Rehearing En Banc Denied June 16, 2006.

      Marlow, Connell and Joel D. Adler and Walter G. Latimer, Coral Gables; Carlton Fields and Robert E. Biasotti and Cristina Alonso and Allison Oasis Kahn, St. Peters-burg, for appellants.
    Kubicki Draper and Caryn L. Bellus and Maria Kayanan, Miami, for appellee David’s Used Cars.
    Neufeld, Kleinberg & Pinkiert and David Kleinberg, for appellee Mejia.
    Before COPE, C.J., and FLETCHER and CORTIÑAS, JJ.
   FLETCHER, Judge.

Manheim Auctions Government Services, Inc. and Florida Auto Auctions of Orlando, Inc., [collectively, Manheim] had a contract with the United States government [GSA] to auction government vehicles. On the occasion we are dealing with here, GSA requested Manheim to relocate a non-auction government vehicle from one government location at Cape Canaveral to another government location in the Keys. Manheim arranged for David’s Used Cars, an independent contractor, to relocate the government-owned container truck. David’s Used Cars then arranged for Daniel Wayne Webb to do the actual driving.

Edwin Mejia was driving on 1-95 with his wife and his daughter, Nelly, when he slowed to approach a slow-moving or stopped car in his lane. Webb was driving the GSA truck behind Mejia and failed to observe Mejia slowing down. The truck rear-ended Mejia’s vehicle and crushed it, killing Mejia’s wife and leaving Mejia significantly brain damaged. Edwin Mejia and his daughter, through their legal guardian Osbaldo Mejia, sued Webb for negligence, and sued Manheim Auctions and David’s Used Cars for vicarious liability for Webb’s negligence.

Prior to trial, the court granted Mejia’s motion for summary judgment and ruled that Manheim was the bailee of the GSA vehicle, and thus was vicariously liable for Webb’s negligence. At trial, the court granted Mejia’s motion for directed verdict finding Webb, the driver, negligent as a matter of law. The trial court denied Manheim’s cross-claim which had sought indemnification against David’s Used Cars.

The jury found against Manheim and awarded Mejia $1 million in non-economic damages over his projected 40-year life expectancy. Upon motion, the trial court awarded a non-economic additur of $1.8 million for past pain and suffering and $7.5 million for future pain and suffering. To Nelly Mejia the court added $100,000 for past pain and suffering, and $500,000 for future pain and suffering. Manheim then rejected the additur and the trial court granted a new trial limited to determining non-economic damages. This appeal ensued.

As the record reflects, Manheim arranged for David’s Used Cars to pick up the vehicle, and David’s Used Cars arranged for Webb to drive it. Manheim was, at the very least, in constructive possession of the vehicle for bailment purposes. We thus affirm the trial court’s pre-trial summary .ruling that Manheim was a bailee and thus liable as a matter of law for Webb’s negligence. We conclude from the facts that are not disputed that David’s Used Cars also was a bailee. Acting pursuant to Manheim’s express instructions and with Manheim’s identification, David’s Used Cars took actual possession of the truck from the GSA and transferred possession to the driver Webb to carry out the GSA/Manheim agreement. Manheim and David’s Used Cars, acting in concert, together became a conduit of the vehicle from GSA to Webb. As such each is vicariously liable for Webb’s negligence. We thus reverse the trial court’s order denying Manheim’s motion for a directed verdict on its cross-claim for indemnification against David’s Used Cars.

We have reviewed the record and find no abuse of discretion in the trial court’s thoroughly considered order granting an additur for the plaintiffs’ non-economic damages pursuant to section 768.043, Florida Statutes (2003). We thus affirm the additur order. We also affirm the trial court’s decision to set a new trial for the determination of non-economic damages suffered by the Plaintiffs because Manheim rejected the additur, see ITT Hartford, Ins. Co. of the Southeast v. Owens, 816 So.2d 572 (Fla.2002); Brant v. Dollar Rent A Car Sys., Inc., 869 So.2d 767 (Fla. 4th DCA 2004), and we remand accordingly.

Affirmed in part, reversed in part and remanded.

      . Driven by Carloe Levy Johnson, who was found by the jury to be negligent and had attributed to her 10% of Edwin Mejia’s injuries.

      . The plaintiffs settled with David's Used Cars prior to trial.

      . The jury attributed 90% of the cause of Edwin Mejia's damages to Webb.

      . The jury awarded Edwin Mejia $21 million in future medical expenses (present value).

      . We affirm the trial court's directed verdict finding Webb negligent as a matter of law.

      . See Sunshine Dodge, Inc. v. Ketchem, 445 So.2d 395 (Fla. 5th DCA 1984) as to the conduit from owner to negligent driver.


author: RAMIREZ, J.

text:
    Ira POSNER, M.D., Ira Posner, M.D., P.A., Appellants, v. William Leslie WALKER, etc., et al., Appellees.
    No. 3D04-1796.
    District Court of Appeal of Florida, Third District.
    Feb. 22, 2006.
    Rehearing Denied June 27, 2006.

      Hicks & Kneale, and Mark Hicks, and Dinah Stein, Miami, for appellants.
    Ginsberg & Schwartz, and Arnold R. Ginsberg; Goldberg & Hirsh, and Jeffrey Stephen Hirsh, Miami, for appellees.
    Before, LEVY, RAMIREZ, and SUAREZ, JJ.
   RAMIREZ, J.

Ira Posner, M.D. and Ira Posner, M.D., P.A. appeal the trial court’s final judgments in the amount of $1,925,000.00 entered on a jury verdict in favor of William Leslie Walker and Gregory Keith Strickland. During more than ten years, Dr. Posner treated Patsy Walker for various ailments and wrote numerous prescriptions for pain. She died from a drug overdose from medication prescribed by a different doctor. We reverse because we conclude that the plaintiffs failed to establish any breach of Dr. Posner’s standard of care in his treatment of Walker.

I. The Treatment

Dr. Posner, a board-certified orthopedic surgeon, had been treating Patsy Walker since January 1985, initially for a back injury she suffered at her nursing job. Dr. Posner observed that Walker was suffering from recurring blood clots in her right leg and a pinched lumbo-sacral nerve root. He restricted Walker’s lifting and prescribed anti-inflammatory medications. Walker’s pain worsened, and she was hospitalized to receive stronger, intravenous pain medications. She was discharged and again hospitalized for the pain in October.

Walker’s hospitalizations were helpful at first, but the pain returned, so she continued to see Dr. Posner. By January 1986, Walker was having terrible pain again in her back. Dr. Posner performed a myelo-gram, which was negative. He gave Walker epidural steroid injections to treat the pain in her sciatic nerve. In 1986, Walker underwent a hemorrhoidectomy, which improved her pain. In June 1986, Dr. Pos-ner gave her a final, 30-day prescription for Tylenol No. 3, a short-acting opioid, and discharged her from his care.

Dr. Posner did not hear from Walker again until November 1986, when, after reinjuring herself at work, she returned to him with pain. When Walker failed to respond to Dr. Posner’s treatments, she was hospitalized for her pain again in December 1986.

During this period, Dr. Posner prescribed physical therapy for Walker, which she received many times over the years, not always helping her and sometimes worsening her pain. In December 1987, Dr. Posner again discharged her from his care.

In March 1988, Walker fell in the shower and was taken to an emergency room, where she was diagnosed with a compression fracture of one of her vertebrae. Dr. Posner treated her again. Although the fracture resolved, the pain persisted, and Dr. Posner prescribed therapy and Tylenol No. 3.

In March 1989, Dr. Posner recommended to Walker that she seek treatment at a pain clinic run by Dr. Hubert Roso-moff at the University of Miami. Walker refused. Dr. Posner gave her a prescription for 30 more Tylenol No. 3 and discharged Walker from his care.

In April 1989, Walker fell and fractured three ribs. Although the ribs healed, Walker returned in May because of a reex-acerbation of the pain in her back and leg. She continued to see Dr. Posner from time to time. During this period, Dr. Posner treated her pain with Percocet (a pain narcotic), Tylenol No. 3 or an anti-inflammatory.

In October 1990, Walker called Dr. Pos-ner and told him that she had run out of Percocet, had not taken any for four days, and was in unbearable pain. Dr. Posner sought another opinion. Dr. Basil Yates, a neurosurgeon, repeated all of the studies on Walker, and in January 1991, determined that Walker did not have any reason to hurt and thus did not need treatment.

Due to Walker’s physical manifestations of pain, Dr. Posner disagreed with Dr. Yates’ conclusion that Walker did not require treatment. Dr. Posner also rejected a request by a claims examiner that he stop prescribing narcotics for Walker, concluding that the decision involved medical judgment and that Walker needed medication to control her pain.

In March 1991, Dr. Posner again suggested to Walker that she obtain alternative treatment at the pain clinic. Walker again refused. Dr. Posner then had Walker evaluated by Dr. Lebwohl, an orthopedist at the University of Miami, for another opinion. Dr. Lebwohl evaluated Walker in July and September. Although he found a vascular abnormality in her spine, he did not believe it was contributing to the pain. Thus, he could not help her surgically. Dr. Lebwohl did conclude, however, that Walker was suffering from chronic pain. He also noted the same injuries to Walker’s nerve roots that Dr. Posner had seen in 1985.

Dr. Posner continued to treat Walker for her pain and prescribed Percocet for her in 30-pill dosages. Walker was injured again in August 1991; her leg and back pain returned and her calf contrac-ture worsened. Dr. Alvin Stein, an orthopedic surgeon, observed that Walker’s contracture was in a locked position and diagnosed Walker as showing classic symptoms for reflex sympathetic dystrophy.

In April 1992, Walker again had to be hospitalized so that she could be given stronger drugs to control her pain. Walker’s pain was brought under control, but a month later her muscle contracture worsened to the point where she was walking on her toes. Dr. Posner operated on Walker’s leg, which was successful and she was able to walk normally again, but her pain continued.

In October 1992, Dr. Posner learned that Walker was obtaining opioid medications from two physicians other than himself. Dr. Posner spoke to the other two physicians about not prescribing any pain medication to Walker and was told that they would not. Dr. Posner told Walker that she would have to stop seeking medication from other doctors.

Walker’s pain continued, so Dr. Posner suggested to Walker that she be seen by a pain management team that he had formed. Dr. Posner’s team consisted of himself, an anesthesiologist for interven-tional pain treatment, physical therapists for biofeedback and exercises, a psychologist to treat patients for the stress, an addictionologist to deal with withdrawals from pain medications, and a physiatrist to address rehabilitation. At that time, the only other pain clinic in South Florida was the one run by Dr. Rosomoff at the University of Miami. As part of her treatment, Walker was evaluated by the Dr. Posner’s team addictionologist, Dr. Richard Weiss.

In July 1993, the pain team received a report from a pharmacist that Walker was misusing her prescription injectable morphine by directly injecting it instead of putting it in the pump. Also, Walker’s family reported that Walker was becoming incoherent. The team decided they needed to get Walker off of the medications so that they could see what her level of pain was. The pain team ceased all medications and told Walker that that they would no longer provide her with medication unless she agreed to hospitalization and detoxification.

Following an automobile accident, Walker was admitted to a detoxification center on July 10, 1993. However, Walker left the center the next day against the advice of the admitting physician. Walker subsequently informed the pain team that she had ceased all medications on her own and had gone through withdrawal, thus detoxifying herself. However, Walker soon returned to having terrible, intractable pain. The pain team met again to discuss how to continue Walker’s treatment. Dr. Weiss determined that she was probably addicted to her medications, but that she had a chronic pain syndrome that was causing her to use high doses of medication. Dr. Weiss concluded that Walker required continued narcotics to control her pain.

One of the pain team doctors then proposed placing Walker on MS Contin, an opioid analgesic that was new to the practitioners. MS Contin differed from the other drugs Walker had used in that it would last eight to twelve hours. The pain team believed it would more effectively control Walker’s pain. At the next pain team meeting in August 1993, Dr. Weiss advised that he was prescribing Walker MS Contin at the rate of two pills per day. She was also receiving Percocet from Dr. Posner. Dr. Posner concluded that Walker was obtaining the medications from both doctors because one medication alone was not working adequately and she was attempting to control her pain with additional medication.

In September 1993, the pain team decided that they could not treat Walker without narcotics because of her severe levels of pain. By November 1993, the MS Con-tin had improved Walker’s pain. Both Walker and the pain team were satisfied with her treatment. By December, however, Walker started to experience more pain in her body, which the pain team believed was caused by the spread of her reflex sympathetic dystrophy.

In September 1994, Walker’s insurance company obtained a second opinion from Dr. Halperin, a hand surgeon, who concluded that Walker did not require treatment for her dystrophy. The entire pain team disagreed with Dr. Halperin, but they were willing to try his approach, which was to take Walker off all opioid medications. Walker was again referred to Dr. Weiss, the addictionologist. By October 16,' Dr. Posner noted that Walker’s pain was worsening as her medication levels were decreased.

Walker then started to obtain prescriptions for MS Contin from Dr. Barbara Mazzella, a physician with whom Walker had become acquainted through a support group. Dr. Posner was completely unaware of Dr. Mazzella. Walker did not tell Dr. Posner about Dr. Mazzella, and Dr. Mazzella never contacted him. Dr. Maz-zella was providing Walker with prescriptions for other medications as well, such as Valium, injectable morphine ampoules, and a morphine syringe. These medications were not, in Dr. Posner’s opinion, medically appropriate and were “extremely dangerous.”

In the meantime, the pain team was increasing Walker’s MS Contin dosages to respond to her increasing pain. Walker and her insurer were refusing to use and pay for an implantable pump. However, by May 15, 1995, it seemed that Walker’s pain stabilized. Dr. Posner believed the treatment was going well.

Dr. Posner saw Walker for the last time on June 9, 1995. He advised her to decrease her medications. He was not aware that, three days earlier, Dr. Mazzella had prescribed Walker injectable morphine, Valium, Percocet, and a syringe, and did not suspect that Walker had failed to follow his instruction to only obtain medication from him. During that visit, Dr. Posner gave Walker a prescription for 180 MS Contin pills for her pain.

Later that day, Walker was involved in an automobile accident and treated in an emergency room for bruises. The hospital apparently gave Walker more MS Contin and discharged her. Dr. Posner was not notified of the accident. On the night of June 12, 1995, Walker fell asleep while watching television and died the next morning in her- sleep. The coroner determined that Walker died from acute broncho-pneumonia due to or as a consequence of a combined overdose of morphine sulfate, diazepam (Valium), and phenobarbital. At the time of her death, the bottle of 180 pills that Dr. Posner had prescribed was completely full. Of the 120 tablets of Valium that Dr. Mazzella had prescribed for her a week earlier, 22 were left. None of the ten vials of injectable morphine that Dr. Mazzella had prescribed were found.

II. The Lawsuit

William Leslie Walker, as personal representative and the surviving spouse of Walker’s estate, and Gregory Keith Strickland, Walker’s surviving son, sued Dr. Pos-ner and his professional association for damages resulting from Walker’s overdose death. Plaintiffs claimed Walker’s death was caused in part by Dr. Posner’s failure to wean her from pain narcotics that she had been taking for chronic pain. Plaintiffs did not contend at trial that Dr. Pos-ner provided Walker with the drugs that allegedly killed her, but asserted that in allowing Walker to become “addicted” to morphine, it was foreseeable that she would seek out and obtain the lethal doses of illegally prescribed narcotics from Dr. Mazzella.

At trial, plaintiffs provided standard of care and causation testimony through only one expert witness, Dr. Arthur Fournier, an internal medicine practitioner at the University of Miami School of Medicine. Dr. Fournier testified that Dr. Posner fell below his standard of care in his treatment of Walker by (a) failing to have an exit strategy so that she would not have to take pain medicines forever; (b) continuing to prescribe pain medicine; and (c) not referring Walker to people who could help her with her addictions. He testified that, within reasonable medical probability, Walker died of complications of her addiction, and that had her addiction been treated, she would have most likely survived. He also testified that, had Dr. Posner met the standard of care and weaned Walker using an alternative such as Dr. Roso-moffs program, it was more likely than not that Walker would not have been seeking medicines.

Although those were the only theories of negligence asserted by Dr. Fournier, at trial plaintiffs also introduced excerpts from Dr. Posner’s deposition where he testified that he did not order a urinalysis on Walker to see if she was still on drugs when she told the pain team that she had been detoxified, and that in retrospect, he should have ordered one. No witness gave an expert opinion on Dr. Posner’s failure to order a urinalysis.

After the court denied Dr. Posner’s motion for a directed verdict, the jury found Dr. Posner 70% responsible for Walker’s death, with the remaining fault attributed to Walker, and awarded plaintiffs total damages of $2,750,000. Dr. Posner filed a renewed motion for directed verdict, motion for judgment notwithstanding the verdict, or, alternatively, motion for new trial, contending in part that plaintiffs failed to establish that Dr. Posner’s conduct fell below his standard of care; and that there was any causal link between Dr. Posner’s alleged negligence and Walker’s death. Alternatively, Dr. Posner contended that the verdict was against the manifest weight of the evidence and required a new trial. He also filed a motion for remittitur. The trial court did not overturn the jury’s decision. Judgment was entered in the amount of $1,925,000, and this appeal followed.

III. The Appeal

Dr. Posner contends that the jury’s verdict was improper and cannot stand due to plaintiffs’ failure to establish a causal link between their several theories of negligence and Walker’s death. He further contends that the jury’s verdict was contrary to the manifest weight of the evidence. Finally, he contends that plaintiffs’ counsel’s argument was improper. We agree with Dr. Posner that the verdict against him cannot stand due to the plaintiffs’ failure to establish a causal link between their several theories of negligence and Walker’s death.

In reviewing a trial court’s denial of a motion for directed verdict, an appellate court must evaluate the evidence in the light most favorable to the non-moving party, and should grant the motion if there is “no evidence upon which the jury could legally base a verdict” in favor of the non-moving party. Floyd v. Video Barn, Inc., 538 So.2d 1322, 1325 (Fla. 1st DCA 1989). Dr. Posner is entitled to judgment as a matter of law because plaintiffs failed to establish that any alleged breach in his standard of care more likely than not caused or contributed to Walker’s death. Gooding v. University Hosp. Bldg., Inc., 445 So.2d 1015 (Fla.1984).

Plaintiffs’ alleged theories of negligence were that Dr. Posner fell below his standard of care in his treatment of Walker by (a) failing to have an exit strategy “so that the patient will not have to take pain medicines forever”; (b) continuing to prescribe pain medicine; (c) not referring Walker “to people who could assist her with her addiction”; (d) failing to order a urinalysis on Walker; (e) failing to elicit support from Walker’s family; and (f) failing to contact the pharmacies that Walker may have been using to fill her prescriptions.

a. Exit Strategy

First, with respect to plaintiffs’ exit strategy argument, although they asserted that Dr. Posner’s alleged negligent failure to implement an “exit strategy” caused Walker’s death, the undisputed evidence shows that an exit strategy was tried and failed. Thus, an exit strategy would not have “more likely than not” prevented Walker from seeking additional narcotics from Dr. Mazzella. Gooding, 445 So.2d at 1018 (stating that “Florida courts follow the more likely than not standard of causation.”).

The Florida Supreme Court stated long ago that “[t]he opinion of an expert is not sufficient to eliminate the necessity of proving the foundation facts necessary to support the opinion.” Harris v. Josephs of Greater Miami, Inc., 122 So.2d 561, 562 (Fla.1960). Here, the expert’s testimony assumed that (1) Dr. Posner had no exit strategy; (2) had Dr. Posner had an exit strategy, it would have been successful; (3)had a successful exit strategy been implemented, Walker would not have obtained drugs elsewhere to cause her to overdose. None of these assumptions were proven.

Walker’s severe, chronic pain was undisputed. Over the years, Dr. Posner treated Walker with anti-inflammatories, physical therapy, steroid injections, non-narcotic medications and surgery. None of these methods worked, and Walker’s pain became so intolerable that she had to be hospitalized on many occasions. The evidence reflects that throughout his ten years of care and treatment of Walker, Dr. Posner continuously tried to determine the source of Walker’s pain through testing and referrals to other physicians.

Dr. Posner indeed had an exit strategy: he repeatedly discharged Walker from his care when he believed she had reached maximum medical improvement. But Walker would always return to him in unbearable pain. When Dr. Posner’s pain team temporarily withdrew all of Walker’s pain medication in an attempt to wean her from it, Walker suffered from intractable pain that continued to escalate after that point.

Dr. Posner arranged to have Walker treated by a psychologist to learn how to control her pain with the medications appropriately. The pain team again tried to treat Walker without narcotics, but again was unable to do so because of her pain. In fact, it was during the pain team’s second attempt to reduce Walker’s level of drugs that Walker began to obtain MS Contin from Dr. Mazzella.

There was no dispute at trial that Dr. Posner and the pain team unsuccessfully attempted to wean Walker from narcotics. Given the substantial, undisputed evidence of the impossibility of implementing a successful exit strategy, any alleged failure to have such a strategy did not cause or contribute to Walker’s death. McKeithan v. HCA Health Servs. of Fla., Inc., 879 So.2d 47 (Fla. 4th DCA 2004)(finding that the plaintiffs presented no competent testimony as to causation); Ewing v. Sellinger, 758 So.2d 1196 (Fla. 4th DCA 2000); Paddock v. Chacho, 522 So.2d 410 (Fla. 5th DCA 1988).

B. Continuing to Prescribe Medications

With regard to plaintiffs’ continuing to prescribe medication argument, it is similar to plaintiffs’ lack of “an exit strategy” argument. Both arguments are based on Dr. Posner’s continued provision of prescription pain narcotics. For the same reasons discussed regarding the lack of an exit strategy, the undisputed evidence shows that there can be no causal connection between Dr. Posner continuing to prescribe Walker medications and her death.

Dr. Posner’s continuation of Walker’s medication could not have provided an independent basis for a finding of liability because the evidence was undisputed that Dr. Posner’s drug prescriptions themselves did not cause or contribute to Walker’s death. The drugs that killed Walker were the ones provided by Dr. Mazzella. The record demonstrates that during opening statements at trial, Walker’s counsel admitted that they would not be able to prove that Walker died from ingesting medicine prescribed by Dr. Posner.

C. Failure to Refer

Turning next to plaintiffs’ allegation that Dr. Posner failed to refer Walker to a pain clinic such as the one run by Dr. Rosomoff at the University of Miami, this theory fails because Walker expressly rejected Dr. Posner’s repeated attempts to send her to a pain clinic. The only way Dr. Posner could force Walker into the pain clinic would be through involuntary hospitalization. Dr. Fournier never testified that Walker met the criteria for such action. As a physician, Dr. Posner cannot make his patients do exactly as he tells them. He can only give advice and treatment alternatives, then let them make choices. Further, the undisputed evidence shows that Dr. Posner tried all of the methods that were being used at the pain clinic. None of them were successful with Walker. Dr. Posner testified that alternative treatment forms tried on Walker were physical therapy, injections, biofeedback, anti-inflammatory medications, as well as anti-seizure and anti-depressant drugs. None of these succeeded.

In addition, Dr. Posner sent Walker to Dr. Lebwohl at the University of Miami on more than one occasion to explore surgical treatments for her pain. Dr. Lebwohl tested Walker and reported that surgery was not an option. In sum, the record was void of any evidence indicating that the pain clinic could have offered additional treatment methods that had already been tried unsuccessfully on Walker.

It was further undisputed at trial that Dr. Posner told Walker not to seek narcotics from any other sources and that Walker failed to heed his warnings. The record does not support a finding that Walker would have followed this advice had it been given by the University of Miami Pain Treatment Center instead of by Dr. Pos-ner. As such, because the methods being used by the pain clinic had been tried on Walker and failed, because Walker rejected Dr. Posner recommendations that she attend a pain clinic, and because Walker was told by Dr. Posner not to seek narcotics from other sources, plaintiffs failed to establish legal causation under this theory of liability. Paddock, 522 So.2d at 413 (questioning how legal causation could exist for defendant’s failure to hospitalize plaintiff where defendant recommended hospitalization and his recommendation was rejected).

D. Not Ordering a Urinalysis

Plaintiffs further contend that Dr. Posner was negligent in not ordering a urinalysis. There is no support for this theory of negligence. Here, there was no trial testimony that Dr. Posner’s failure to perform a urinalysis in July 1993 fell below his standard of care. Dr. Fournier did not testify regarding Dr. Posner’s failure to order a urinalysis. What Dr. Fournier did testify to was that Dr. Posner was entitled to take Walker’s word that she had detoxified herself, but that he should have stopped prescribing the narcotics after that time. Because there was no testimony elicited that Dr. Posner’s failure to order a urinalysis fell below his standard of care, this theory should not have been submitted to the jury. Moisan v. Frank K. Kriz, Jr., M.D., P.A., 531 So.2d 398, 399 (Fla. 2d DCA 1988); Marsh v. City of St. Petersburg, 106 So.2d 567 (Fla. 2d DCA 1958).

In addition, there was no causation testimony concerning Dr. Posner’s alleged failure to order a urinalysis. He testified that even if he had ordered a urinalysis, “it may or may not have been helpful.” Furthermore, a review of the record actually indicates that it probably would not have made a difference because the physicians on Dr. Posner’s pain team put Walker back on narcotics after she stated she had detoxed herself because her intractable pain had returned. Thus, the failure to order a urinalysis does not support an independent basis for a finding of liability. Gooding v. University Hosp. Bldg., Inc., 445 So.2d at 1015 (Fla.1984).

E. Failure to Elicit Family Support or Contact Pharmacies

Finally, the plaintiffs’ contention that Dr. Posner failed to get Walker’s family’s help or contact her pharmacies does not support finding Dr. Posner liable. Here, there was no testimony at trial that a physician’s standard of care required Dr. Posner to find out from which pharmacies Walker was getting the drugs. Dr. Posner testified that this would be impossible due to the large number of pharmacies in South Florida and Walker could have gone to any of them.

Plaintiffs contend that Dr. Posner could have contacted Walker’s family to find out where she was filling her prescriptions. However, there was no evidence regarding what Dr. Posner could have done had he contacted Walker’s family. The record reveals no testimony regarding what Walker’s family would have done or whether they would have assisted Dr. Posner in any way. Walker’s husband testified that Walker, a nurse by training, was “very private” about her medical condition and “[p]rivate with the medication she was taking.”

Moreover, Dr. Strauss, the only witness who suggested that not contacting a patient’s family could be a breach of a doctor’s standard of care, testified that he did not have enough information to give an opinion on Dr. Posner’s standard of care with regard to this issue. He further clarified on redirect that family involvement is not necessary if it appears that the patient understands the treatment. And even if Strauss’ testimony was found competent on standard of care, this theory still should not have gone to the jury because no causal connection was established between Dr. Posner’s failure to get help from Walker’s family and Walker’s death.

IV. Conclusion

Based on the foregoing reasons, Dr. Posner is entitled to judgment as a matter of law because the plaintiffs failed to establish legal causation in this case. Accordingly, the final judgment rendered in favor of the plaintiffs is reversed and the case is remanded for the entry of a judgment in favor of Dr. Posner and his professional association. Our disposition on this issue has rendered our consideration of the remaining two issues on appeal unnecessary.

Reversed and remanded.


text:
    Derek Lorenzo JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2637.
    District Court of Appeal of Florida, Third District.
    March 8, 2006.
    Rehearing Denied June 15, 2006.
    Paul Morris, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
    Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Ehrlich v. State, 742 So.2d 447 (Fla. 4th DCA 1999); Silvestri v. State, 332 So.2d 351 (Fla. 4th DCA 1976), approved, 340 So.2d 928 (Fla.1976); State v. DiGuilio, 491 So.2d 1129 (Fla.1986); Brown v. State, 790 So.2d 389 (Fla.2000); Perkins v. State, 576 So.2d 1310 (Fla.1991); § 777.011, Fla. Stat. (2002); cf. Clines v. State, 912 So.2d 550 (Fla.2005).