Opinion

Rodriguez-Bonilla v. Ivey

Court
District Court, M.D. Florida
Filed
Oct 5, 2021
Cited by
0 cases
Authority
More cited than 19.8%

“The expert opinion to be supplied is not one which delineates how the defendants were negligent.” (quoting Kukral v. Mekras, 679 So. 2d 278, 282 (Fla. 1996))

How later courts described this case

  • “The expert opinion to be supplied is not one which delineates how the defendants were negligent.” (quoting Kukral v. Mekras, 679 So. 2d 278, 282 (Fla. 1996))

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

MARGARITA RODRIGUEZ-

BONILLA,

Plaintiff,

Vv. Case No. 6:21-cv-428-JA-GJK

WAYNE IVEY, KELLY HAMAN,

GEORGE FAYSON, RICHARD

ZIMMERMAN, ROBERT

WAGNER, JR., FREDDY

CEDENO, ALLISON

BLAZEWICZ, DEBORA

NADEAU, AYANA ROBINSON,

YOLANDA JONES and ARMOR

CORRECTIONAL HEALTH

SERVICES INC.,

Defendants.

ORDER

Plaintiff Margarita Rodriguez-Bonilla, as personal representative of the

estate of decedent Gregory Lloyd Edwards, originally filed this action in state

court. (Doc. 1-3). Following removal and transfer of the case to this Court (Docs.

2 & 4), Rodriguez-Bonilla filed her First Amended Complaint. (Doc. 26). She

later filed a Second Amended Complaint (the Complaint). (Doc. 42). Defendants

Debora Nadeau, Ayana Robinson, Yolanda Jones, and Armor Correctional

Health Services, Inc. (collectively, the Armor Defendants) now move to dismiss

the bulk of the claims against them and to strike portions of the Complaint as

immaterial, impertinent, or scandalous. (Doc. 57). For the reasons explained

below, the Motion to Dismiss is granted in part and denied in part, while the

Motion to Strike is denied.

I, Background!

This case concerns the treatment and eventual death of Gregory Lloyd

Edwards during his detention at the Brevard County Jail Complex, a facility

serviced by Defendant Armor Correctional Health Services. (Doc. 42 4 161).

Police officers arrested Edwards at a Walmart Supercenter in West Melbourne,

Florida, on December 9, 2018.2 dd. 34-35). Edwards, a military veteran

suffering from Post-Traumatic Stress Disorder (PTSD), had stopped taking his

medication and was in the midst of a “psychotic episode” when he was arrested

just one day before a scheduled appointment at the VA Hospital. (Id. { 36). Upon

arrest, the officers determined that Edwards posed a danger to himself or others

and should be evaluated by mental health professionals. (Id. {| 37-88). But

instead of taking him to a Baker Act receiving facility they transported Edwards

to the county jail. (Id. 7 39).

1 The Background section is derived from the allegations of the Second Amended

Complaint (Doc. 42), which are taken as true for the purpose of ruling on the Rule

12(b)(6) Motion to Dismiss.

2 A separate case in this Court, No. 6:20-cv-2235, concerns the conduct of the

West Melbourne police officers who arrested Edwards. These cases have been

consolidated solely for the purposes of discovery and mediation.

The Brevard County Jail Complex, fully aware of Edwards’s mental state,

agreed to take custody of him, even though it was not “equipped or staffed to

provide the immediate emergency medical care authorized by the Baker Act” at

that time. (Id. 9] 48-44). Once in detention, Edwards’s mental health continued

to deteriorate as he sat alone in his cell without a psychological evaluation. (Id.

{{ 51-56). Later, when someone came to retrieve Edwards and continue the

booking process, an altercation broke out between Edwards and a number of

deputies, including Defendants Wagner, Zimmerman, Cedeno, Fayson, Haman,

and Blazewicz. (id. 57-65). During this scuffle, the Complaint alleges, the

deputies repeatedly used excessive force against Edwards, including pepper-

spraying his face, “crushing twisting, and striking his body and extremities,”

and tasing him multiple times. (id. 4[ 66—80). When the altercation concluded,

the deputies handcuffed Edwards, hoisted his limp body into a restraint chair,

and covered his head with a spit-mask. (Id. 7 82-90). Without removing the

taser barbs from his back, decontaminating his face from the pepper spray, or

performing a medical evaluation, the deputies then wheeled Edwards into a

holding cell. dd. 4] 91-99). There, he “visibly struggled to breathe—like a fish

out of water—his mouth open and pressed against the spit-mask material.” (Id.

{| 102).

After almost twenty minutes in the holding cell, Edwards suffered a

medical emergency. (id. § 113). When they noticed that Edwards’s body had

again gone limp, jail personnel—including Defendants Nadeau, Robinson, and

Jones—entered the cell and attempted to revive him, first with sternum rubs

and then with oxygen. (Id. {] 115-19). Although Edwards remained

unresponsive, laboring to breathe, Defendants sent him to the medical unit at

the jail for further evaluation rather than transferring him to the hospital for

emergency medical care. (Id. § 125). But when Edwards arrived at the medical

unit the charge nurse “recogniz[ed] the dire situation” and “immediately advised

a Sergeant to call 911.” dd. 4 131). Within minutes, Edwards went into

respiratory arrest and was given CPR. (id. J 133-35). He arrived at the

hospital with a hypoxic brain injury, and hospital personnel placed him on life

support. (Id. {J 144-45). The following day, Edwards was dead. (Id. { 146).

II. Legal Standards

Under Federal Rule of Civil Procedure 12(b)(6), parties may move to

dismiss claims brought against them by asserting that the relevant pleading

“failfed] to state a claim upon which relief can be granted.” “Generally, federal

civil complaints need only state ‘a short and plain statement of the claim

showing that the pleader is entitled to relief.” United States ex. rel. Clausen v.

Lab. Corp. of Am., Inc., 290 F.3d 1301, 1308 (11th Cir. 2002) (quoting Fed. R.

Civ. P. 8(a)). “[D]etailed factual allegations” are not required, but “[a] pleading

that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a

cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “To survive a [Rule

12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.” Id.

(quoting Twombly, 550 U.S. at 570).

In lieu of outright dismissal, Federal Rule of Civil Procedure 12(f)

empowers the court to “strike from a pleading an insufficient defense or any

redundant, immaterial, impertinent, or scandalous matter.” Such action,

however, is a “drastic remedy,” disfavored by the courts, Augustus v. Bd. of Pub.

Instruction of Escambia Cnty., Fla., 306 F.2d 862, 868 (5th Cir. 1962) (quoting

Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir.

1953)), that will only be granted if the matter sought to be stricken “has no

possible relationship to the controversy, may confuse the issues, or otherwise

prejudice a party,” Adams v. JP Morgan Chase Bank, N.A., No. 3:11-cv-337-J-

37MCR, 2011 WL 2938467, at *1 (M.D. Fla. July 21, 2011) (quoting Florida

Software Sys., Inc. v. Columbia/HCA Healthcare Corp., No. 97-2866-CIV-T-17B,

1999 WL 781812, at *1 (M.D. Fla. Sept. 16, 1999)).

III. Discussion

The Armor Defendants move this Court to dismiss the bulk of the claims

against them and to strike various factual allegations from the Complaint. The

Armor Defendants raise three arguments in their Motion to Dismiss: first, they

say, Count I should be dismissed against Nadeau, Robinson, and Jones because

the Complaint fails to allege that they were personally involved in any

unreasonable use of force against Edwards; second, Count V should be

dismissed against Armor Correctional Health Services, as the Complaint fails

to plead policies, practices, or customs sufficient to bring a § 1983 claim against

a government entity under Monell v. Department of Social Services, 436 U.S.

658 (1978); and third, the medical negligence claims contained in Counts VITI-—

X should be dismissed against all of the Armor Defendants, as Rodriguez-

Bonilla failed to comply with state law pre-suit requirements. The Armor

Defendants also move the Court to strike paragraph 162, subparagraphs (d)—(x)

from Rodriguez-Bonilla’s Complaint, alleging that they contain immaterial,

impertinent, and scandalous statements.

A. Count I—Fourteenth Amendment

In Count I of her Complaint, Rodriguez-Bonilla asserts a claim under 42

U.S.C. § 1983 alleging that various Defendants—including Nadeau, Robinson,

and Jones—used objectively unreasonable force against Edwards in violation of

his Fourteenth Amendment right to due process. (Doc. 42 163—68). The basis

for this claim relates to Edwards’s treatment at the Brevard County Jail

Complex, where some of the non-moving Defendants allegedly beat him, tased

him, pepper-sprayed him, placed him in a restraint chair, and forced him to

wear a spit-mask without first washing the lingering pepper spray from his face.

(id. {| 66-91). But none of these actions are attributed to Nadeau, Robinson, or

Jones in the Complaint. Nor is it clear from the Complaint that they were even

present when the actions took place. Instead, the factual allegations against the

trio relate solely to the medical care they provided or failed to provide after the

altercation ended and Edwards became unresponsive in his cell.

The Armor Defendants’ Motion to Dismiss correctly insists that

Rodriguez-Bonilla’s Complaint “has alleged no facts to support liability against

Nadeau, Robinson[,] or Jones” arising from an excessive use of force against

Edwards. (Doc. 57 at 7). Rodriguez-Bonilla apparently agrees, admitting in her

response that she “inadvertently” included Nadeau, Robinson, and Jones among

the other Defendants in Count I and conceding that the excessive force claim

asserted against them “should be dismissed.” (Doc. 70 at 3).

Since it is clear to all involved that the Complaint fails to state a claim

against any of the Armor Defendants for excessive force, Count I is dismissed

against Nadeau, Robinson, and Jones.

B. Count V—Fourteenth Amendment (Monell Claim)

In Count V of her Complaint, Rodriguez-Bonilla asserts a separate § 1983

claim against Armor Correctional Health Services,’ this time relying on the

precedent set in Monell. As the Supreme Court made clear in that case, “a local

3 Count V of the Complaint includes an identical claim against Brevard County

Sheriff Wayne Ivey. Ivey is represented by separate counsel and has not joined this

Motion to Dismiss.

government may not be sued under § 1983 for an injury inflicted solely by its

employees or agents.” Monell, 436 U.S. at 694. A municipality4 may be liable,

however, where a constitutional injury is caused by that entity’s own “policy or

custom.” Id. at 694. While such liability will sometimes spring from a formal,

written policy in direct violation of constitutional rights—as was the case in

Monell—a plaintiff may also succeed by showing that “final policymakers have

acquiesced in a longstanding practice that constitutes the entity’s standard

operating procedure” or that unconstitutional decisions made by subordinates

have been adopted by someone with “final policymaking authority.” Hoefling v.

City of Miami, 811 F.3d 1271, 1279 (11th Cir. 2016).

In their Motion to Dismiss, the Armor Defendants argue that Rodriguez-

Bonilla has “fail[ed] to plead any of the three ways liability can occur” under

Monell. (Doc. 57 at 8). A fair reading of the Complaint belies that claim. In

paragraph 162(c) of her Complaint, Rodriguez-Bonilla alleges that Armor, “with

the knowledge and consent of its policymakers, had a policy, practice, and/or

widespread custom, of providing deficient medical care for the purpose of

increasing corporate profits.” (Doc. 42 § 162(c)). If the Complaint stopped there,

4 Although Armor is a for-profit corporation, not a government entity, the

Eleventh Circuit has held that “[w]hen a private entity ... contracts with a county to

provide medical services to inmates, it performs a function traditionally within the

exclusive prerogative of the state” and thus “becomes the functional equivalent of the

municipality” for the purposes of § 1983. Buckner v. Toro, 116 F.3d 450, 452 (11th Cir.

1997) (per curiam).

it may be harder to say that it offered more than mere “naked assertion|[s]’

devoid of ‘further factual enhancement.” Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 557). But Rodriguez-Bonilla goes further, pointing to

specific instances in Armor’s “decade long history” of government investigations,

cancelled contracts, and wrongful death lawsuits related to deficient policies,

practices, or customs. (Doc. 42 { 162). Specifically, Rodriguez-Bonilla alleges

that Armor “failed to provide medical intake, medical assessments, mental

health services, physician involvement, and hospital referrals, in accordance

with industry standards, resulting in injuries and/or death.” (Id. 162(y)). The

Complaint then links these very policies to Edwards’s own constitutional injury,

suggesting that Nadeau, Robinson, and Jones were adhering to these policies

and practices when Edwards died and that they were a “proximate cause” of his

death. (Id. § 162(cc)).

Despite this, the Armor Defendants maintain that Rodriguez-Bonilla’s

Monell claim must fail because she “does not plead any sort of specific

widespread practice or custom ... that existed at the facility where the

occurrence took place.” (Doc. 57 at 9) (emphasis added). The Armor Defendants

cite no authority for their suggestion that a practice or custom giving rise to a

Monell claim must be widespread not only within the entity itself but also at the

very facility where the injury took place. Regardless, Rodriguez-Bonilla does

allege just that. Prior to Edwards’s death, the Complaint says, Armor and its

“final policymaker,” Dr. Jose Armas, were on notice that the organization’s

“policy, practice, and/or custom of failing to provide medical intake, medical

assessments, mental health services, physician involvement, and hospital

referrals ... was occurring at the Jail.” (Doc. 42 § 162(aa) (emphasis added)).

Read in its entirety, the Complaint alleges facts sufficient to state a

plausible claim for relief under Monell. Rodriguez-Bonilla points to specific

policies and practices related to Armor’s medical intake, assessment, and

treatment of individuals under their care. She then alleges facts supporting a

plausible inference that these policies, whether formal or informal, were

widespread at facilities serviced by Armor and that final policymakers at Armor

either acquiesced to or adopted those policies. Finally, Rodriguez-Bonilla alleges

that these policies were present at the facility where Edwards was held and

were a proximate cause of his death. All of these allegations are currently

unproven, and Rodriguez-Bonilla will need to prove them to ultimately succeed

at trial. At this stage of litigation, however, a plaintiff must only allege

“sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.” Iqbal, 556 U.S. 678 (quoting Twombly, 550 U.S. at 570).

Rodriguez-Bonilla has met that burden. Accordingly, the Armor Defendants’

Motion to Dismiss Count V of the Complaint is denied.

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C. Counts VIII-X—State Law Claims

In Counts VIII—X, Rodriguez-Bonilla alleges a series of state law

violations, including medical malpractice under section 766.102, Florida

Statutes (2013), and wrongful death under section 768.16, Florida Statutes

(2003). The Armor Defendants argue that these claims should be dismissed

because Rodriguez-Bonilla failed to comply with various pre-suit requirements

mandated by Florida law. The Court finds that Rodriguez-Bonilla has satisfied

the pre-suit requirements and thus denies the Armor Defendants’ Motion to

Dismiss Counts VITI-X.

Under Florida law, plaintiffs suing for medical malpractice must first

complete a series of steps outlined in Chapter 766, Florida Statutes, the purpose

of which is to “eliminate frivolous claims,” Barlow v. N. Okaloosa Med. Ctr., 877

So. 2d 655, 657 (Fla. 2004), and “promote the settlement of meritorious claims

early in the controversy,” Patry v. Capps, 633 So. 2d 9, 11 (Fla. 1994). Before

prospective plaintiffs may file a complaint, for example, they must investigate

the claim and find “reasonable grounds” to believe that the defendants were

“negligent in the care or treatment of the claimant” and that the claimant was

injured as a result of this negligence. § 766.203(2), Fla. Stat. (2004). The

plaintiffs must then “notify each prospective defendant by certified mail . . . of

intent to initiate litigation for medical negligence,” § 766.106, Fla. Stat. (2013),

and attach a “verified written medical expert opinion” corroborating that

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“reasonable grounds” exist to pursue the claim, § 766.203(2), Fla. Stat. Finally,

the plaintiffs’ lawyers must certify in the complaint that the their own

“reasonable investigation” has given rise to a “good faith belief that grounds

exist for an action against each named defendant.” § 766.104(1), Fla. Stat.

(2019).

The Armor Defendants argue that Rodriguez-Bonilla failed to satisfy

these pre-suit requirements for two reasons: first, because her initial complaint

did not include the necessary certificate from her lawyer and, second, because

the medical expert opinions she sent to the Armor Defendants were “wholly

insufficient” to corroborate a reasonable basis for her claims. (Doc. 57 at 11). As

a result of these deficiencies, the Armor Defendants say, Counts VIII—-X should

be dismissed.

1. Certificate of Counsel

As noted above, section 766.104(1), Florida Statutes, instructs that:

No action shall be filed for personal injury or wrongful death arising

out of medical negligence .. . unless the attorney filing the action

has made a reasonable investigation as permitted by the

circumstances to determine that there are grounds for a good faith

belief that there has been negligence in the care or treatment of the

claimant.

The burden placed on plaintiffs’ lawyers by section 766.104(1) is separate from

the plaintiffs’ own responsibility to conduct a pre-suit investigation under

section 766.203(2) and comes with the additional requirement that the

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“complaint or initial pleading shall contain a certificate of counsel that such

reasonable investigation gave rise to a good faith belief that grounds exist for

an action against each named defendant.” § 766.104(1), Fla. Stat.

Defendants point out that Rodriguez-Bonilla’s initial complaint failed to

include the certificate from her lawyer required under section 766.104(1). (Doc.

57 at 13). This is true, and Rodriguez-Bonilla acknowledges as much in her

response. (Doc. 70 at 12). At least a month before Defendants filed this Motion

to Dismiss, however, Rodriguez-Bonilla filed her Second Amended Complaint,

which included the required certificate from her lawyer, Devon M. Jacob.

(Doc.42 | 4—6). At least one Florida district court of appeal has acknowledged

that “the requirement of the good faith certificate is neither jurisdictional nor

an essential element of the cause of action.” Nash v. Humana Sun Bay Cmty.

Hosp.., Inc., 526 So. 2d 1036, 1039 (Fla. 2d DCA 1988). Thus, while the lawyer’s

pre-suit investigation is “clearly a condition precedent to filing a medical

malpractice action,” that condition precedent “has been fulfilled” so long as the

lawyer actually conducted the investigation and certifies to that effect before

the court hears a motion to dismiss. Id. at 1038.

In Nash, as here, the plaintiff failed to include a lawyer’s certificate in the

first two complaints. Id. at 1037. Rather than amending the complaint, however,

Nash filed a standalone certificate in response to the defendants’ motion to

dismiss, before that motion was heard by the court. Id. The district court of

13

appeal held that, while the trial court was “not required to accept the certificate

... without a motion to amend,” the absence of the certificate in the complaint

was “not fatal” to the action, as the lawyers were willing to certify that a pre-

suit investigation had taken place. Id. at 1038-39. At worst, the court held, the

trial court should have dismissed the complaint with leave to amend. Id. at 1039.

In this case, by comparison, there is no need to amend—the Complaint

that the Armor Defendants seek to dismiss already contains the certificate

required by section 766.104(1). While Rodriguez-Bonilla should have included

this certificate in her initial complaint, her failure to do so is not fatal to her

state law claims. The purpose of the certificate is to ensure that the plaintiffs

lawyer conducts a reasonable pre-suit investigation and develops a good faith

belief in the merits of any malpractice claim before they file a complaint.

Rodriguez-Bonilla’s Complaint confirms that such an investigation took place.

Thus, the purpose of certification has been served.

2. Medical Expert Opinion

The Armor Defendants also contend that Counts VIII—X should be

dismissed because Rodriguez-Bonilla “failed to submit a proper medical expert

opinion” pursuant to section 766.203(2), Florida Statutes. (Doc. 57 at 14). That

section can be divided into two parts. The first part, like section 766.104(1),

mandates a pre-suit investigation, this time by the claimant rather than the

claimant’s lawyer:

14

Prior to issuing notification of intent to initiate medical negligence

litigation. pursuant to s. 766.106, the claimant shall conduct an

investigation to ascertain that there are reasonable grounds to

believe that:

(a) Any named defendant in the litigation was negligent in the care

or treatment of the claimant; and

(b) Such negligence resulted in injury to the claimant.

§ 766.203(2), Fla. Stat. The second part requires that the findings of this pre-

suit investigation be corroborated by a qualified medical expert:

Corroboration of reasonable grounds to initiate medical negligence

litigation shall be provided by the claimant's submission of a

verified written medical expert opinion from a medical expert... at

the time the notice of intent to initiate litigation is mailed, which

statement shall corroborate reasonable grounds to support the

claim of medical negligence.

Id. In this case, Rodriguez-Bonilla sent two separate corroborating opinions by

a medical expert. The first opinion was contained in an affidavit and delivered

to the Armor Defendants with a notice of intent to initiate litigation on

December 7, 2020. (Doc. 42 § 6). In it, Nurse Ashley N. Taylor reviews

Edwards’s medical records and jail security footage from the day he became

unresponsive, outlines deficiencies in Edwards’s care and treatment, and

concludes that “Nadeau, Jones, and Robinson|] failed to advocate in [Edwards’s]

best medical interest.” (Doc. 57-4 at 3).

The Armor Defendants argue that this opinion does not satisfy

section 766.203(2) because it simply lists “actions or inactions of Nadeau,

Robinson, and Jones that [Nurse Taylor] believe[s] violated the standard of care”

15

without “establish[ing] that any such negligence caused injury and/or death to

Mr. Edwards.” (Doc. 57 at 14). They are correct. Nurse Taylor clearly believes

that the Armor Defendants’ actions fell below the applicable standard of care

and ends her opinion by noting that Edwards died the next day. Nowhere in this

first affidavit, however, does she explicitly link these two things and confirm

that there are reasonable grounds to believe that the Armor Defendants’

negligence caused that death.

Section 766.203(2), Florida Statutes, states that the expert medical

opinion must “corroborate reasonable grounds to support the claim of medical

negligence.” The first part of that section suggests that these “reasonable

grounds” should include some reason to believe that (a) the defendants were

“negligent in the care or treatment of the claimant” and (b) the claimant was

injured as a result of that negligence. Id. Although the text of the statute could

conceivably allow for a more permissive reading, Florida courts have

consistently held that section 766.203(2) “calls for medical corroboration not

only of negligence but also of injury in consequence,” finding that “[w]ithout

corroboration that ‘[s]uch negligence resulted in injury to the claimant’... the

statutory requirements have not been met.” Archer v. Maddux, 645 So. 2d 544,

546 (Fla. Ist DCA 1994) (citations omitted); see also Howell v. Balchunas, 284

So. 3d 1180, 1183 (Fla. 1st DCA 2019); Baptist Med. Ctr. of the Beaches, Inc. v.

Rhodin, 40 So. 3d 112, 118-19 (Fla. 1st DCA 2010). Because Nurse Taylor's first

16

affidavit failed to corroborate that the Armor Defendants’ negligence had any

causal connection to Edwards’s injury or death, it did not satisfy Rodriguez-

Bonilla’s obligations under section 766.203(2).

But the Court’s inquiry does not end there. On May 24, 2021, apparently

in response to letters from Defendants’ lawyers suggesting that the first

affidavit was deficient, Rodriguez-Bonilla sent a second expert opinion from

Nurse Taylor. (See Doc. 57-6). In it, Nurse Taylor suggests that Defendants

“were confused by the conclusions” stated in her first affidavit and that they

improperly read it as “merely listing negligent conduct that had absolutely

nothing to do with causing injury.” (id. at 1). To rectify this, Nurse Taylor

repeats her findings from the first affidavit, this time with additional, bolded

sentences linking the Armor Defendants’ negligent conduct with Edwards’s

death. After stating again that Jones and Robinson failed to perform a necessary

medical assessment of Edwards, for example, and that Nadeau failed to tell the

charge nurse what had happened to Edwards before he arrived at the medical

unit, Nurse Taylor concludes that these failures “delayed [Edwards’s] ability to

receive timely emergency medical care [and] directly caused [Edwards’s]

medical condition to needlessly deteriorate.” (id. at 2). Similar statements are

added throughout the second affidavit.

The Armor Defendants maintain that the second affidavit is still deficient

under section 766.203(2), despite these additions, because Nurse Taylor “fails to

17

establish how such negligence caused [Edwards’s] injury and/or death.” (Doc. 57

at 15) (emphasis in original). Here, the Court does not agree. Nothing in the text

of section 766.203(2) suggests that the expert medical opinion must articulate

exactly how a defendant’s negligence caused injury to the claimant, and the

Armor Defendants cite no authority for such a reading. In fact, Florida courts

have repeatedly held that the expert opinion need not even explain how the

defendant was negligent. See, e.g., Michael v. Med. Staffing Network, Inc., 947

So. 2d 614, 620 (Fla. 3d DCA 2007) (“The expert opinion to be supplied is not

one which delineates how the defendants were negligent.” (quoting Kukral v.

Mekras, 679 So. 2d 278, 282 (Fla. 1996))). What matters for the purpose of

section 766.203(2) is that the expert opinion “corroborate[s] reasonable grounds

that negligence occurred and caused injury.” Holmes Reg’l Med. Ctr. v. Wirth,

49 So. 3d 802, 806 (Fla. 1st DCA 2010). Nurse Taylor’s second affidavit does so.

Thus, Rodriguez-Bonilla has satisfied the pre-suit requirements under Chapter

766.

D. Motion to Strike

The Armor Defendants also move the Court to strike paragraph 162,

subparagraphs (d)—-(x) from the Complaint. These subparagraphs, according to

the Armor Defendants, contain “immaterial, impertinent, and scandalous

statements,” “unsupported by any evidence,” that will lead to an “unnecessary

18

foray” into issues unrelated to the claims pleaded in the Complaint. (Doc. 57 at

16).

The Court disagrees. The subparagraphs in question, found under the

heading “Policy, Practice and Custom of Deliberate Indifferences to Health and

Safety of Inmates,” outline a series of past lawsuits, investigations, and

preventable deaths associated with Armor’s provision of healthcare services.

Whether or not these allegations are proven at trial, their relevance to

Rodriguez-Bonilla’s Monell claim is quite clear. In fact, some of the very

statements that the Armor Defendants seek to strike were referenced by this

Court above in its determination that Rodriguez-Bonilla sufficiently pleaded

“policies, practices, or customs” necessary to deny the Motion to Dismiss.

The Armor Defendants cannot have it both ways. They cannot argue, on

the one hand, that Rodriguez-Bonilla has failed to allege a widespread practice

of constitutional violations while simultaneously moving to strike such

allegations as immaterial, impertinent, or scandalous. Nor can they maintain

in earnest that the inclusion of these allegations will “confuse the issues,” or

“otherwise prejudice” Armor. See Adams, 2011 WL 2938467, at *1. Given the

nature of a Monell claim, allegations of repeated past misconduct by Armor do

not confuse the issue; they are essential to the issue, as “isolated incidents are

19

insufficient to establish a custom or policy” under Monell. Depew v. City of St.

Mary’s, 787 F.2d 1496, 1499 (11th Cir. 1986). Such allegations are only

prejudicial to Armor insofar as they bolster Rodriguez-Bonilla’s claim that it

was engaged in a “persistent and widespread practice” of providing deficient

medical care to inmates, rather than a single, isolated incident with respect to

Edwards. Id. However inconvenient this may be for Armor’s defense, it is not a

sufficient reason to strike the allegations under Federal Rule of Civil Procedure

12(f).

IV. Conclusion

Accordingly, it is ORDERED as follows:

1. The Motion to Dismiss (Doc. 57) is GRANTED in part and

DENIED in part. The motion is GRANTED as to Count I with respect to

Nadeau, Robinson, and Jones. Count I of the Second Amended Complaint (Doc.

42) is DISMISSED with prejudice insofar as it is brought against Defendants

Nadeau, Robinson, and Jones only. The motion is DENIED in all other respects.

2. The Motion to Strike (Doc. 57) is DENIED.

DONE and ORDERED in Orlando, Florida;on October , 2021.

C

“ United States District Judge

Copies furnished to:

Counsel of Record

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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