Goines v. Lee Memorial Health System

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

DONIA GOINES,

Plaintiff,

v. Case No: 2:17-cv-656-FtM-29NPM

LEE MEMORIAL HEALTH SYSTEM

and JEOVANNI HECHAVARRIA,

Defendants.

OPINION AND ORDER

This matter comes before the Court on plaintiff’s Motion for

Summary Judgment Related to the Criminal Conviction of Defendant,

Jeovanni Hechavarria (Doc. #225) filed on March 5, 2020.

Defendant Hechavarria filed a Response in Opposition (Doc. #227)

on March 10, 2020, and defendant Lee Memorial Health System filed

an Opposition (Doc. #228) on March 12, 2020. With the permission

of the Court, plaintiff filed a Reply (Doc. #232) on March 17,

2020. The Court heard oral arguments on March 18, 2020.

For the reasons set forth below, the Court will grant

plaintiff’s oral motion made at the end of oral argument

withdrawing the Motion for Summary Judgment Related to the Criminal

Conviction of Defendant, Jeovanni Hechavarria (Doc. #225).

I.

The basic facts of this case have been described in detail in

a prior Opinion and Order of this Court. (Doc. #150, pp. 2-8);

Goines v. Lee Mem’l Health Sys., 2019 WL 497706 (M.D. Fla. Feb. 8,

2019). Briefly stated, plaintiff Donia Goines (plaintiff or

Goines) filed suit against defendants Jeovanni Hechavarria

(Hechavarria) and Lee Memorial Health System (Lee Memorial)

alleging she was sexually assaulted by Hechavarria while she was

a patient, and Hechavarria was a nurse, in a hospital operated by

Lee Memorial. (Doc. #31.) In October 2019, the Court granted

Hechavarria’s motion to stay further civil proceedings pending

resolution of criminal charges. (Doc. #204.) Hechavarria was

convicted of Sexual Battery When Victim Helpless (Sexual Battery),

in violation of Section 794.011(4)(a), Florida Statutes, after a

jury trial in the Twentieth Judicial Circuit in and for Lee County,

Florida. (Doc. #225-2; Doc. #225-3.) Following Hechavarria’s

conviction, the Court lifted the stay. (Doc. #211.) Hechavarria

has now been sentenced to thirty years imprisonment, and his direct

appeal is pending.

All parties agree that whether Hechavarria sexually battered

plaintiff is an issue in each pending claim. In the current

motion, plaintiff requests the Court to make a conclusive factual

determination that Hechavarria sexually battered her, and to

preclude both defendants from asserting otherwise in the upcoming

civil trial. Plaintiff argues that such a determination and re-

litigation bar are required by collateral estoppel principles

after Hechavarria’s criminal conviction. Alternatively,

plaintiff requests the Court “take judicial notice of the criminal

conviction of Defendant, Hechavarria, and enter a jury

instruction/stipulation that Hechavarria is guilty of sexual

battering/raping the Plaintiff.” (Doc. #225, p. 7.)

II.

The motion essentially seeks a partial summary judgment, or

the taking of judicial notice, that a Sexual Battery was committed

by Hechavarria against plaintiff. Both avenues seek to preclude

both defendants from denying that Hechavarria raped plaintiff in

the Lee Memorial hospital and from re-litigating that issue. The

Court has set forth the general summary judgment principles in a

prior Opinion and Order (Doc. #150, pp. 9-10), which the Court

adopts without repeating. As to the request for judicial notice,

The court may judicially notice a fact that is

not subject to reasonable dispute because it:

(1) is generally known within the trial

court’s territorial jurisdiction; or (2) can

be accurately and readily determined from

sources whose accuracy cannot reasonably be

questioned.

Fed. R. Evid. 201(b). “Since the effect of taking judicial notice

under Rule 201 is to preclude a party from introducing contrary

evidence and in effect, directing a verdict against him as to the

fact noticed, the fact must be one that only an unreasonable person

would insist on disputing.” United States v. Jones, 29 F.3d 1549,

1553 (11th Cir. 1994).

III.

A. Judicial Notice

Plaintiff requests that the Court take judicial notice of the

criminal conviction, instruct the jury that Hechavarria is guilty

of Sexual Battery, and preclude either defendant from denying the

existence of the Sexual Battery. (Doc. #225, p. 7.) This request

must be denied.

If it were permissible for a court to take

judicial notice of a fact merely because it

has been found to be true in some other action,

the doctrine of collateral estoppel would be

superfluous. Moreover, to deprive a party of

the right to go to the jury with his evidence

where the fact was not indisputable would

violate the constitutional guarantee of trial

by jury.

. . .

Accordingly, a court may take notice of

another court’s order only for the limited

purpose of recognizing the “judicial act” that

the order represents or the subject matter of

the litigation.

Jones, 29 F.3d at 1553 (citations omitted). The jury’s verdict

in the criminal case is not being offered to establish a “judicial

act,” but to establish the factual existence of the Sexual Battery.

The Court declines to take judicial notice of the Sexual Battery

by Hechavarria against plaintiff for this purpose.

B. Collateral Estoppel

The crux of the motion, and of the legal disputes among the

parties, relate to the application of collateral estoppel.

“Collateral estoppel, also known as estoppel by judgment, serves

as a bar to relitigation of an issue which has already been

determined by a valid judgment.” Stogniew v. McQueen, 656 So. 2d

917, 919 (Fla. 1995).

(1) Florida or Federal Law?

The first issue is whether the Court should apply federal

collateral estoppel principles or Florida collateral estoppel

principles. Plaintiff’s motion relies primarily on federal law

(Doc. #225, pp. 4-10), while defendants assert Florida principles

govern. (Doc. #227, p. 2; Doc. #228, p. 3.) If federal law is

controlling, Hechavarria would be estopped from denying the Sexual

Battery after having been convicted of it in state court. United

States v. Jean-Baptiste, 395 F.3d 1190, 1194 (11th Cir. 2005);

Matter of Raiford, 695 F.2d 521, 523-24 (11th Cir. 1983).

It is clear, however, that federal law does not control the

collateral estoppel issues in this case. Brown v. City of Hialeah,

30 F.3d 1433, 1437 (11th Cir. 1994) (“Federal courts considering

whether to give preclusive effect to state court judgments must

apply the State’s law of collateral estoppel under the Full Faith

and Credit Clause of the United States Constitution.” (citation

omitted)); Tillman v. Orange Cty., Fla., 519 Fed. App’x 632, 637

(11th Cir. 2013) (“In considering whether to give preclusive effect

to a Florida judgment, we apply Florida’s law of collateral

estoppel.”). A federal court gives

preclusive effect to the judgment of a state

court provided that two conditions are met:

(1) the courts of the state from which the

judgment emerged would do so themselves; and

(2) the litigants had a full and fair

opportunity to litigate their claims and the

prior state proceedings otherwise satisfied

the applicable requirements of due process.

Quinn v. Monroe Cty., 330 F.3d 1320, 1329 (11th Cir. 2003). There

is no dispute that Hechavarria had a full and fair opportunity to

litigate the existence of the Sexual Battery in the criminal

proceedings, or that those state proceedings otherwise satisfied

the applicable requirements of due process. The only issue is

whether, and to what extent, Florida courts would give preclusive

effect to the Sexual Battery conviction in a subsequent civil

trial.

(2) Florida Collateral Estoppel Principles

“Under Florida law, collateral estoppel applies if (1) an

identical issue, (2) has been fully litigated, (3) by the same

parties or their privies, and (4) a final decision has been

rendered by a court or component jurisdiction.” Id. The

requirement that the prior litigation involve “the same parties or

their privies” is referred to as the mutuality of parties doctrine,

Ball v. Roar III, LLC, 773 Fed. App’x 546, 549 (11th Cir. 2019),

and is the only element of collateral estoppel in dispute in this

case.

In contrast to federal law, the Florida Supreme Court has

steadfastly and repeatedly declined to recede from the mutuality

of parties requirement. Trucking Emps. of N. Jersey Welfare Fund,

Inc. v. Romano, 450 So. 2d 843, 845 (Fla. 1984) (“However, the

well established rule in Florida has been and continues to be that

collateral estoppel may be asserted only when the identical issue

has been litigated between the same parties or their privies.”);

Stogniew v. McQueen, 656 So. 2d 917, 919 (Fla. 1995) (“Florida has

traditionally required that there be a mutuality of parties in

order for the doctrine to apply. Thus, unless both parties are

bound by the prior judgment, neither may use it in a subsequent

action.” (citations omitted)); Gentile v. Bauder, 718 So. 2d 781,

783 (Fla. 1998) (“Under Florida law, collateral estoppel, or issue

preclusion, applies when ‘the identical issue has been litigated

between the same parties or their privies.’”); E.C. v. Katz, 731

So. 2d 1268, 1270 n.1 (Fla. 1999) (“This Court expressly parted

with federal law on this issue . . . . We reaffirm our stated

rationale for the departure from federal law . . . .”); Kumar v.

Patel, 227 So. 3d 557, 560 (Fla. 2017) (“And, even where a criminal

immunity determination is made prior to the filing of a civil suit,

that determination cannot bind a potential civil plaintiff who is

not a party to the criminal proceeding . . . .”).

Plaintiff argues that she comes within the Florida general

rule because privity existed with the parties in the criminal case.

Hechavarria was obviously a party as the Defendant in the criminal

trial. Plaintiff asserts that Lee Memorial was in privity to the

State of Florida because it “has asserted that it is a sovereign

hospital which is a branch of the State of Florida.” (Doc. #225,

p. 6.) Plaintiff also argues that she was in privity to the State

of Florida in the criminal case because of her interest in the

outcome of the case, i.e., her receiving “victim rights” and being

awarded restitution from Hechavarria. (Doc. #232, pp. 2-3.)

“To be in privity with one who is a party to a lawsuit, one

must have an interest in the action such that she will be bound by

the final judgment as if she were a party.” Gentile, 718 So. 2d

at 781 (citing Stogniew, 656 So.2d at 920). Neither Lee Memorial

nor plaintiff were in privity with the State of Florida for

purposes of collateral estoppel mutuality.

It is clear under Florida law that the State of Florida,

acting through the local State Attorney’s Office, controls a

criminal case. Id. at 783 (“Prosecutors represent the interests

of the people of the State of Florida . . . .”); State v. Greaux,

977 So. 2d 614, 615 (Fla. 4th DCA 2008) (“The prosecutor has the

sole discretion to charge and prosecute criminal acts. This

discretion is not affected by a victim’s change in desire to

prosecute. It is not altered by a victim’s refusal to testify.

This discretion is inviolate ‘[n]otwithstanding the court’s belief

that the best interests of the public and the parties would be

served by dismissal.’” (citations omitted)); State v. Brosky, 79

So. 3d 134, 135 (Fla. 3d DCA 2012) (“Florida case law clearly

provides that, in the absence of statute or motion to dismiss, the

decision whether to prosecute or to dismiss charges is a

determination to be made by solely the State.”); Barnett v.

Antonacci, 122 So. 3d 400, 404 (Fla. 4th DCA 2013) (“[A]

prosecutor’s decision to file charges or to discontinue

prosecution is not a ‘stage’ of a criminal proceeding within the

meaning of [Article I] Section 16(b).”).

Another agency of the State of Florida does not itself become

a party simply because of its status as a state entity or a victim.

Bd. of Regents of State of Fla. By & Through Univ. of S. Fla. v.

Taborsky, 648 So. 2d 748, 754 (Fla. 2d DCA 1994) (“USF is not a

party to the criminal action and must channel any requests as

victim through the state attorney’s office.”). It continues to

be the rule that a victim of a criminal offense is not in privity

with the State of Florida by virtue of the status as a victim.

Prof’l Roofing & Sales, Inc. v. Flemmings, 138 So. 3d 524, 527

(Fla. 3d DCA 2014) (State of Florida, not the alleged victim, was

the opposing party to defendant in the criminal prosecution).

Nothing in the 2018 victim’s rights amendment to the Florida

Constitution, Article I, Section 16(b), nor plaintiff’s

entitlement to restitution, creates privity between a victim and

the prosecution. Plaintiff has not identified any Florida

appellate case which has found a victim to be in privity with the

State of Florida in a criminal prosecution for collateral estoppel

purposes.

Because there is a lack of mutuality of parties, plaintiff

has not shown that she comes within Florida’s general collateral

estoppel rule. The general rule in Florida still prohibits use

of a criminal conviction as conclusive proof of the facts

underlying the conviction in a civil suit arising from those same

facts. Romano, 450 So. 2d at 845 (citing Boshnack v. World Wide

Rent-a-Car, Inc., 195 So. 2d 216 (Fla. 1967); Moseley v. Ewing, 79

So. 2d 776 (Fla. 1955); Stevens v. Duke, 42 So. 2d 361 (Fla.

1949)). Plaintiff cannot rely upon collateral estoppel because

neither she nor Lee Memorial were parties or in privity to parties

in the criminal case against Hechavarria. See Velasquez Andres

v. Keyser, 777 Fed. App’x 392, 396 (11th Cir. 2019) (“At least one

essential element is missing here: the parties are not identical.

. . . Because the actions involved different parties, issue

preclusion cannot apply here.”). Unless an exception applies,

plaintiff is not entitled to apply collateral estoppel against

either defendant in this case.

(3) Exceptions to Mutuality of Parties Requirement

Plaintiff asserts that two statutory exceptions to the

mutuality of parties requirement for collateral estoppel apply

here. Defendants respond that neither applies, and Lee Memorial

further asserts that even if either applies to Hechavarria, they

do not apply to Lee Memorial.1

There is no doubt that the Florida Legislature can, and has,

modified collateral estoppel principles articulated by the Florida

Supreme Court.

The Legislature knows how to modify the

doctrine of collateral estoppel when that is

its intent. For example, sections 772.14 and

775.089(8), Florida Statutes, expressly

restrict the doctrine of mutuality of parties

in order to estop defendants convicted of

civil theft from challenging certain issues

adjudicated in criminal actions when sued

civilly. See Stogniew, 656 So. 2d at 920.

Kumar, 227 So. 3d at 561; see also Starr Tyme, Inc. v. Cohen, 659

So. 2d 1064, 1067 (Fla. 1995); J & P Transp., Inc. v. Fid. & Cas.

1 The Florida Supreme Court has recognized an exception to

the mutuality requirement when a criminal defendant sues his or

her attorney for ineffective assistance of counsel. Zeidwig v.

Ward, 548 So. 2d 209, 214 (Fla. 1989). This exception clearly

does not apply here. Additionally, the existence of this

exception does not undermine the mutuality requirement. Stogniew,

656 So. 2d at 919 (“We reject Stogniew’s contention that as a

result of Zeidwig there is no longer a requirement of mutuality

for purposes of collateral estoppel. Zeidwig constituted a narrow

exception in which collateral estoppel was permitted in a defensive

context and then only under the compelling facts of that case.”).

Co. of N.Y., 750 So. 2d 752, 753 (Fla. 5th DCA 2000). The issue

is whether either of these two exceptions apply in this case.

(a) Florida Statute § 772.14

Plaintiff asserts that collateral estoppel may be applied to

both defendants because this case qualifies under Section 772.14,

Florida Statutes. This statute provides:

A final judgment or decree rendered in favor

of the state in any criminal proceeding

concerning the conduct of the defendant which

forms the basis for a civil cause of action

under this chapter, or in any criminal

proceeding under chapter 895, shall estop the

defendant in any action brought pursuant to

this chapter as to all matters as to which

such judgment or decree would be an estoppel

as if the plaintiff had been a party in the

criminal action.

§ 772.14, Fla. Stat. As Starr Tyme, Inc. stated:

Section 772.14 abrogates the requirement of

mutuality of parties in the context of civil

actions brought by crime victims under chapter

772. The statute abrogates the requirement

by allowing a plaintiff in a chapter 772 civil

suit to use as an estoppel a “final judgment

or decree rendered in favor of the state” in

a prior criminal proceeding that concerned the

conduct at issue in the civil action.

659 So. 2d at 1067 (citation omitted).

Chapter 772 is the “Civil Remedies for Criminal Practices

Act,” § 772.101, Fla. Stat., and is limited to certain “criminal

activity.” § 772.102(1), Fla. Stat. This statutory definition

of “criminal activity” does not include a Sexual Battery charge,

which is brought under Chapter 794. Additionally, the Sexual

Battery charge was not “any criminal proceeding under chapter 895”

since that Chapter deals only with “Offenses Concerning

Racketeering and Illegal Debts.”

Because the underlying criminal case involved neither

proceedings under Chapter 772 nor under Chapter 895, plaintiff

cannot successfully invoke Section 772.14 to avoid the mutuality

requirement of collateral estoppel under Florida law.

(b) Florida Statute § 775.089(8)

Plaintiff also asserts that collateral estoppel may be

applied to both defendants because this case qualifies under

Section 775.089(8), Florida Statutes. This statute provides:

The conviction of a defendant for an offense

involving the act giving rise to restitution

under this section shall estop the defendant

from denying the essential allegations of that

offense in any subsequent civil proceeding.

An order of restitution hereunder will not bar

any subsequent civil remedy or recovery, but

the amount of such restitution shall be set

off against any subsequent independent civil

recovery.

§ 775.089(8), Fla. Stat. Defendants respond that this statute

does not apply because restitution has not yet been imposed on

Hechavarria.

It is not entirely clear that Section 775.089(8) requires the

actual imposition of restitution. Rather, the statute only

requires conviction for an offense “involving the act giving rise

to restitution under this section.” Absent clear and compelling

reasons not to do so, a trial court “shall” order a defendant to

make restitution to his or her victim. § 775.089(1)(a). Thus,

Sexual Battery “gives rise” to restitution under Section 775.

Assuming that actual imposition of restitution is a required

predicate to trigger the application of this statute, plaintiff

has established that such restitution has been imposed. The

Minutes of the sentencing hearing (Doc. #232-1), signed by the

judge, checks a pre-printed line which states, “Court Orders

Restitution & Reserves on Amount,” followed by writing stating

“and D is to pay for victims cost of therapy.” While the

sentencing court did not determine the amount of restitution, and

apparently cannot now do so because the notice of appeal divested

it of jurisdiction2, the statute at most only requires imposition

of restitution, not the calculation of the amount of restitution.

Because restitution has been ordered against Hechavarria, he is

estopped from denying “the essential allegations of that offense

in any subsequent civil proceeding.” § 775.089(8), Fla. Stat.

While Hechavarria is estopped, the Court agrees with Lee

Memorial that this estoppel cannot be applied against Lee Memorial

because it was not a defendant in the criminal case.

This statute applies to a criminal defendant

only, and estops him from denying the

2 Nguyen v. State, 655 So. 2d 1249, 1249-50 (Fla. 1st DCA

1995).

essential elements of his criminal offense in

a later civil proceeding.

. . .

The personal representative’s argument that

Rodriguez’s guilty plea barred Sun Chevrolet’s

defenses is an attempt to exercise collateral

estoppel offensively. However, the well

established rule in Florida has been, and

continues to be, that a prerequisite to the

offensive use of collateral estoppel is that

the identical issue has been litigated between

the same parties. Here, Sun Chevrolet did not

enter the guilty plea in the criminal trial

and was not a party to that trial. Sun

Chevrolet has had no opportunity to fully and

fairly litigate its vicarious liability for

the actions alleged in the instant case, and

thus cannot be collaterally estopped from

introducing evidence that Rodriguez was not

negligent, a necessary element for recovery

under the dangerous instrumentality doctrine.

Sun Chevrolet, Inc. v. Crespo, 613 So. 2d 105, 107–08 (Fla. 3d DCA

1993) (citations omitted). Accordingly, plaintiff must prove the

Sexual Battery in its case against Lee Memorial, and Lee Memorial

is not precluded from disputing the existence of the Sexual

Battery.

In arguing Lee Memorial should be estopped, plaintiff relies

on the Florida Fifth District’s opinion in J & P Transportation,

Inc. v. Fidelity and Casualty Company of New York, 750 So. 2d 752

(5th DCA 2000). In that case, the vice president of J & P

Transportation lied regarding the company’s payroll when applying

with Fidelity for workers compensation coverage. Id. at 752-53.

When Fidelity learned of the misrepresentation, it cancelled

coverage and sued J & P to recover the additional premiums the

company should have paid based on its actual payroll. Id. at 753.

While the case was pending, the vice president was criminally

charged with grand theft, pled guilty, and was ordered to pay

Fidelity restitution. Id. Fidelity subsequently moved for

partial summary judgment against J & P based on the restitution

judgment, which the lower court granted. Id. On appeal, the

Fifth District reviewed sections 772.14 and 775.089(8), concluding

Fidelity was “not required to relitigate the issues resolved in

the criminal case and partial summary judgment was properly entered

in this proceeding.” Id.

The Court is not convinced that J & P Transportation compels

a holding that collateral estoppel can be applied against Lee

Memorial. The Fifth District did not address the appropriateness

of collateral estoppel being applied against a third party, as

that does not appear to have been an issue raised by the parties.

See id. (“In this case, the appellants argue Fidelity’s complaint

for civil theft sought damages for the theft of insurance premiums,

but the criminal charges concerned theft of insurance coverage.”).

Regardless, even if that was the intended holding of the Fifth

District, it would be in conflict with the Third District’s holding

in Sun Chevrolet, and the Court believes the Florida Supreme Court,

based on the previously discussed case law, would resolve the

conflict in favor of the Third District. See Glass v. Captain

Katanna’s, Inc., 950 F. Supp. 2d 1235, 1242 (M.D. Fla. 2013)

(noting that when Florida’s District Courts of Appeal are in

disagreement concerning an issue, the federal court “must predict

how the Florida Supreme Court would resolve the disagreement”).

(4) Severance of Defendants’ Case/Withdrawal of Motion

The posture of the case now is that a key component of the

case has been conclusively determined as to Hechavarria, but not

as to the other defendant. The jury would be instructed that in

considering plaintiff’s case against Hechavarria, they must find

the Sexual Battery was committed by Hechavarria. But in

considering the plaintiff’s case against Lee Memorial, the jury

would be told it cannot give preclusive effect to the Sexual

Battery conviction, and Lee Memorial may dispute the existence of

such an event.

The Court has been continually impressed with a jury’s ability

to conscientiously follow jury instructions. But in some

situations, we ask too much of a jury to segment evidence they

have heard and apply it against one but not the other defendant.

E.g., Bruton v. United States, 391 U.S. 123, 135 (1968)

(“Nevertheless, as was recognized in Jackson v. Denno, supra, there

are some contexts in which the risk that the jury will not, or

cannot, follow instructions is so great, and the consequences of

failure so vital to the defendant, that the practical and human

limitations of the jury system cannot be ignored.”). It is not

the jury’s knowledge of the conviction which is problematic.

Rather, it is instructing the jury that the conviction conclusively

establishes the underlying conduct as to Hechavarria, while also

instructing the jury that plaintiff must independently prove the

underlying conduct for purposes of the case against Lee Memorial

without consideration of the conviction. The Court concludes that

this asks too much of a jury.

Plaintiff, while opposing any severance of the case for

separate trials, requested to withdraw the collateral estoppel

motion if the Court were inclined to have separate trials. This

will relieve the victim of the added expense, time and mental

anguish of two trials. The Court agrees with plaintiff’s request.

Accordingly, it is now

ORDERED:

Plaintiff's Motion for Summary Judgment Related to the

Criminal Conviction of Defendant, Jeovanni Hechavarria (Doc. #225)

is WITHDRAWN by plaintiff.

DONE AND ORDERED at Fort Myers, Florida, this 30th day

of March, 2020.

if aw (OL

: | hy >» ZAK Loeb

adi EF. STEELE

SHNIOR UNITED STATES DISTRICT JUDGE

Copies: Counsel of record