“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.
10
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
11
“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
12
“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
20