Pavic v. Laser Spine Institute, LLC et al

Filing 21

ORDER denying 7 motion to dismiss; denying 7 Motion to Strike. The Defendants shall answer this complaint within ten days of this date. Signed by Judge Elizabeth A. Kovachevich on 6/13/2014. (SN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

SANDRA V. PAVIC, D.O.,
Plaintiff,
vs.

CASE NO. 8:13-cv-02578-EAK-EAJ

LASER SPINE INSTITUTE, LLC
and CRAIG R. WOLFF, M.D.,
Defendants.

/
ORDER
This cause is before the Court on Defendants’ Motion to Dismiss Plaintiff’s Complaint
and Alternative Motion to Strike (Doc. 7), and Plaintiff’s Response (Doc. 8). For the reasons set
forth below, Defendants’ Motion to Dismiss and Alternative Motion to Strike are DENIED.
PROCEDURAL HISTORY AND BACKGROUND
Plaintiff filed a Complaint (Doc. 1) against Defendants on October 7,2013. Plaintiff’s
Complaint alleges two counts of medical negligence pursuant to Florida Statutes Chapter 766:
Count I consists of a medical negligence claim against Defendant Craig R. Wolff, M.D., and
Count II consists of a vicarious liability claim against Defendant Laser Spine Institute, LLC.
(Doc. 1). Defendants filed a Motion to Dismiss and Alternative Motion to Strike (Doc. 7) on
October 24,2013. Plaintiff filed a Response to Defendants’ Motion to Dismiss (Doc. 8) on
October 28,2013.
Plaintiff alleges that she came under the care of Defendants in August 2011 (Doc. 1 at f 6)
and sustained injuries from a spinal surgery performed by Dr. Wolff on August 31,2011 (Doc. 1
at

7,11). In Count I, Plaintiff claims that—based on her medical history, diagnostic test

results, and imaging studies—the surgery was not medically indicated (Doc. 1 at ^ 8). Plaintiff
also alleges that, in choosing to perform the surgery, Dr. Wolff breached the prevailing
professional standard of care because he “knew or should have known that the surgery was not
indicated, but chose to perform such surgery for financial gain and with utter disregard for the
safety and well being of his patient” (Doc. 1 at |Tf 9-10). In Count II, Plaintiff further alleges that
Laser Spine Institute is vicariously liable for Dr. Wolffs conduct because Dr. Wolff performed
this surgery within the course and scope of his employment with Laser Spine Institute, and Laser
Spine Institute allegedly “participated in, ratified, and condoned” Dr. W olffs actions (Doc. 1 at
13).
STANDARD OF REVIEW
I. MOTION TO DISMISS
To properly state a claim, Federal Rule of Civil Procedure 8(a)(2) calls for “a short and
plain statement of the claim showing that the pleader is entitled to relief.” This is to ensure fair
notice of what the claim alleges and the grounds upon which it is based. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 545 (2007) (citing Conley v. Gibson, 355 U.S. 41,47 (1957)). Rule 9
further requires any complaint alleging fraud or mistake to “state with particularity the
circumstances constituting the mistake or fraud.” However, “[mjalice, intent, knowledge, and
other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b).
In order to withstand a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),
“a complaint must contain sufficient factual material, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662,678 (2009) (quoting Twombly, 550
U.S. at 570). Twombly's plausibility standard requires that the allegations be more than merely
conceivable. Id. A factually sufficient complaint “allows the court to draw the reasonable

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inferences that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
Application of this standard follows two analytical principles. First, the court will not presume
the truth of a complaint’s legal conclusions. Second, a complaint’s well-pleaded factual
allegations must allow the court to infer the plausibility, rather than the mere possibility, that the
plaintiff is entitled to the relief sought. Id. at 678-79.
II. MOTION TO STRIKE
Federal Rule of Civil Procedure 12(f) provides that a court may, upon motion by a party or
sua sponte, order stricken from a pleading any “redundant, immaterial, impertinent, or
scandalous matter.” A motion to strike will “usually be denied unless the allegations have no
possible relation to the controversy and may cause prejudice to one of the parties.” Scelta v.
Delicatessen Support Services, Inc., 57 F.Supp.2d 1327,1347 (M.D. Fla. 1997) (citing Seibel v.
Society Lease, Inc., 969 F.Supp. 713, 715 (M.D. Fla. 1997)). When deciding a motion to strike,
“a court must accept the truthfulness of well-pleaded facts and ‘cannot consider matters beyond
the pleadings.’” Thompson v. Kindred Nursing Centers East, LLC, 211 F.Supp.2d 1345,1348
(M.D. Fla. 2002) (citing Carlson Corp./Southeast v. School Bd. o f Seminole County Fla., 778
F.Supp. 518 (M.D. Fla. 1991)).
DISCUSSION
I. MOTION TO DISMISS
Defendants argue that this Court should dismiss the Complaint because Plaintiff fails to
state a claim in violation of Federal Rule of Civil Procedure 8(a), fails to state a claim upon
which relief can be granted in violation of Rule 12(b)(6), and violates the rules of pleading
articulated in Rule 9(b). Defendants further argue that the Complaint should be dismissed
because Plaintiffs prayer for punitive damages does not “plead sufficient facts to satisfy Florida

3

substantive law regarding entitlement to punitive damages” (Doc. 1 at 6). Finally, Defendants
claim that the Complaint should be dismissed because “it is without doubt that the Plaintiff is
forum shopping” (Doc. 7 at 11). For the foregoing reasons, Defendants’ Motion to Dismiss is
DENIED.
a. Factual Sufficiency of the Complaint
Defendants argue that Plaintiffs Complaint does not contain sufficient factual allegations
to state a plausible claim of negligence under the Twombly pleading standard. Specifically,
Defendants argue that both Count I and Count II of the Complaint contain “nothing more than
conclusory statements unsupported by a scintilla of ultimate facts and thus do not meet the
pleading requirements of Rule 8(a) and fail to state a claim . . . under Rule 12(b)(6)” (Doc. 7 at
2). In Twombly, the Court held that a plaintiff need not include in his complaint “‘specific facts’
beyond those necessary to state his claim and the grounds showing entitlement to relief.” 550
U.S. at 570. A Plaintiff must only allege “enough facts to state a claim to relief that is plausible
on its face.” Id. However, to survive a motion to dismiss, a complaint must contain more than
“threadbare recitals of a cause of action's elements, supported by mere conclusory statements.”
Id. at 555. This Court finds that both Count I and II of Plaintiff s Complaint are supported by
sufficient factual allegations; Defendants’ Motion to Dismiss is, therefore, DENIED.
Count I of Plaintiff s Complaint meets the requirements of the Twombly pleading standard
because it specifically alleges facts to support Plaintiffs medical negligence claim against Dr.
Wolff. Plaintiff describes the type of surgery performed by Dr. Wolff, states the date Dr. Wolff
performed the surgery, and claims that—based on her “presentation, including her history,
diagnostic test results, and imaging studies”—the surgery was not medically indicated and would
“unnecessarily expose her to injury and damages” (Doc. 1 at If 8). Plaintiff further alleges that

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Dr. Wolff “knew or should have known that the surgery he performed on [Plaintiff] was not
indicated” and his decision to perform the surgery constitutes a breach of the prevailing
professional standard of care (Doc. 1 at

9-10). Finally, Plaintiff claims that she suffered bodily

injuries and other damages as the direct and proximate result of this breach (Doc. 1 at f 11).
These facts, accepted as true, nudge Plaintiffs medical negligence claim “across the line from
conceivable to plausible.” Twombly, 550 U.S. at 570.
With regards to Count II, this Court finds that Plaintiff alleges sufficient factual material
to state a plausible vicarious liability claim against Laser Spine Institute. Plaintiff specifically
alleges that she came under the care of both Dr. Wolff and Laser Spine Institute in August 2011
(Doc. 1 at U6). Plaintiff further claims that Dr. Wolffs alleged wrongful conduct “occurred
within the course and scope of Dr. Wolffs employment” with Laser Spine Institute and Laser
Spine Institute “participated in, ratified, and condoned [Dr. Wolffs] wrongful acts or omissions”
(Doc. 1 at f 13). These allegations form a factual basis for a plausible vicarious liability claim.
Accordingly, the allegations articulated in Count II of Plaintiff s Complaint are factually
sufficient to survive Defendants’ Motion to Dismiss,
b. Prayer for Punitive Damages
Defendants further argue that this Court should dismiss the Complaint because Plaintiff
fails to “plead sufficient facts to satisfy Florida substantive law regarding the entitlement to
punitive damages” (Doc. 7 at 6). Plaintiffs only burden when claiming punitive damages in her
pleading is to state the relief to which she believes she is entitled. Plaintiffs Complaint complies
with Federal Rule of Civil Procedure Rule 8 insofar as it states the grounds for this Court’s
jurisdiction, alleges wrongful conduct on the part of the Defendants, and claims that such
conduct entitles Plaintiff to the relief requested. Questions regarding Plaintiffs entitlement to

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punitive damages under Florida substantive law are improper during the pleading stage; such
questions are more appropriate in a motion for summary judgment.
c. Fraud
There is no indication that Plaintiff attempts to plead fraud, and therefore, the Complaint
does not violate Federal Rule of Civil Procedure 9(b). Plaintiff s general allegations of gross
negligence are permissible because “[mjalice, intent, knowledge, and other conditions of a
person’s mind may be alleged generally.” Fed. R. Civ. P. 9(b).
d. Forum Shopping
Defendants claim that Plaintiff is forum shopping; this allegation is conclusory and
unsubstantiated. Defendants argue that Plaintiff “has decided to take advantage of diversity
jurisdiction” to “obtain punitive damages discovery without making the necessary showing under
Florida law” (Doc. 7 at 11). Defendants further claim that Plaintiff “is hoping for a tactical
advantage in prosecuting or settling this case, without having to address the merits of her claim.”
Id. Defendants have not articulated any basis upon which these forum-shopping accusations are
founded. This Court finds that Plaintiffs Complaint properly establishes the grounds for this
Court’s jurisdiction pursuant to Federal Rule of Civil Procedure 8(a)(1).
II. MOTION TO STRIKE
Alternatively, Defendants request that this Court strike portions of the Complaint pursuant
to Federal Rule of Civil Procedure 12(f). Specifically, Defendants move to strike paragraphs 6
through 10 in the “Preliminary Allegations” section of the Complaint because they “are totally
unrelated to Plaintiffs medical negligence claims” and contain allegations that are “immaterial,
impertinent and scandalous,” and Defendants move to strike Plaintiffs prayer for punitive
damages (Doc. 7 at 5-6). In order for this Court to grant Defendants’ Motion to Strike,

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Defendants must show that the allegations sought to be stricken have no possible relation to the
controversy at hand and that mention of such allegations will likely prejudice Defendants.
Underwriters at Lloyd’ London v. Osting-Schwinn ex rel. C.O., 2006 WL 1582146 at *2 (M.D.
s,
Fla. 2006). For the foregoing reasons, Defendants’ Alternative Motion to Strike is DENIED.
a. Motion to Strike Punitive Damages
As discussed above, Plaintiff has properly pleaded her prayer for relief, including punitive
damages. Plaintiff does not have the burden of establishing “the necessary ultimate facts to
support a punitive damages claim” in her Complaint, nor is she required to “demonstrate a
reasonable basis for punitive damages based on record or proffered evidence” in her pleadings.
Accordingly, Defendants’ Motion to Strike Plaintiffs prayer for punitive damages is DENIED.
b. Motion to Strike Paragraphs 6 through 10 of “Preliminary Allegations”
With regards to Defendants’ Motion to Strike paragraphs 6 through 10 of the “Preliminary
Allegations” section of the Complaint, Defendants have not met their burden of showing that the
allegations contained in these paragraphs bear no relationship to the controversy at hand, and
they fail to establish that these allegations may cause prejudice to the Defendants. Defendants
only offer conclusory statements that the allegations contained in paragraphs 6 through 10 are
“totally unrelated to Plaintiffs cause of action for medical negligence” and that these allegations
are “immaterial, impertinent and scandalous” (Doc. 7 at 5-6).
The allegations contained in the pertinent paragraphs of the Complaint—that Laser Spine
Institute engaged in deceptive marketing practices and “systematically and intentionally fail[ed]
to provide unbiased, medically accurate, and complete explanations . . . of procedures available
to treat patients” (Doc. 1 at

6-10)—have some possible relation to Plaintiffs vicarious

liability claim against Laser Spine Institute. Laser Spine Institute’s pattern of behavior, as

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alleged in paragraphs 6 through 10 of the Complaint, may support Plaintiff’s claim that Laser
Spine Institute “participated in, ratified, and condoned” Dr. Wolff’s decision to perform surgery
on Plaintiff “for financial gain and with utter disregard for the safety and well being of his
patient.” Since Defendants have not sufficiently shown that the allegations in the pertinent
paragraphs have no possible relation to Plaintiffs vicarious liability claim, and since Defendants
have not shown that prejudice will result from failure to strike, Defendants’ Motion to Strike is
DENIED.
ORDERED that Defendants’ Motion to Dismiss is DENIED, and that Defendants’
Alternative Motion to Strike is DENIED. The Defendants shall answer this complaint within ten
days of this date.
DONE AND ORDERED in Chambers in Tampa, Florida, this 13th day of June, 2014.

Copies to: All parties and counsel of record.