# Morrison, M.D. v. Delray Medical Center, Inc

> District Court, S.D. Florida · April 19, 2024

URL: https://www.frixlaw.com/law-library/cases/10123221

## Case

- **Court:** District Court, S.D. Florida
- **Decided:** April 19, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10123221

## How later opinions describe it (automated extraction)

- explaining that Rule 8(a)(2) “demands more than an unadorned, the-defendant- unlawfully-harmed-me accusation”

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 23-CV-80512-BER

JOHN F. MORRISON, M.D. and
MORRISON CLINIC, P.A.,

Plaintiffs,

v.

DELRAY MEDICAL CENTER, INC., et. al.

Defendants.
__________________________________________/

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS (ECF No. 117)

Plaintiffs Dr. John Morrison and his medical practice, Morrison Clinic, P.A.,
(collectively “Dr. Morrison”) sue Delray Medical Center, Inc. (“the Hospital” or
“DMC”) for breach of contract (Count I), FDUTPA (Count II), breach of implied
covenant of good faith and fair dealing (Count III), tortious interference with
prospective business relationships (Counts IV and V), unfair competition (Count
VIII), defamation (Count IX), injurious falsehood (Count X), fraudulent inducement
(Count XI), fraud (Count XII), civil conspiracy (Count XIII), and retaliation for
protected activity under the False Claims Act (Count XIV). ECF Nos. 52 (redacted
Amended Complaint), 166 (revised redactions), 57 (sealed, unredacted).1

1 On April 12, 2024, I reconsidered my prior orders allowing the parties to file certain
documents under seal, which resulted in some filings being unsealed entirely and for
those that remained sealed, significantly reducing the scope of the information that
could be redacted. ECF Nos. 156, 157. In accordance with my order, counsel refiled
The Hospital’s Answer to the Amended Complaint asserted 38 affirmative
defenses. ECF Nos. 65 (redacted Answer), 161 (revised redactions), 69 (sealed,
unredacted). As relevant here, the Twenty-Fifth Affirmative Defense says, “Plaintiffs’

claims are barred, in whole or in part, by the release of such claims in a Settlement
Agreement.” ECF No. 65 at 48. Without waiving its argument that Dr. Morrison’s
claims were released under the Settlement Agreement, the Hospital asserted, in the
alternative, counterclaims against Dr. Morrison for fraudulent inducement and
fraudulent misrepresentation. ECF No. 65 at 51-65.
The Hospital moves for judgment on the pleadings on Counts II, IV, V, VIII,

IX, X and XIII of the Amended Complaint. ECF Nos. 117 (redacted), 162 (revised
redactions), 119-1 (sealed, unredacted). The Hospital says that Dr. Morrison released
these claims as part of a settlement agreement in July 2022.
Dr. Morrison says the Hospital fraudulently induced him into the settlement
agreement, so it should be rescinded. Alternatively, he argues that the settlement
agreement is unenforceable because there was no consideration for the release.
Finally, he says issues of fact preclude a judgment on the pleadings. ECF Nos. 121

(redacted), 168 (revised redactions), 124 (sealed, unredacted).
The Hospital says Dr. Morrison’s assertion that he was fraudulently induced
to sign the settlement agreement fails as a matter of law and as a matter of fact, that

these documents with limited redactions. ECF Nos. 159-163, 165-168.
2
Dr. Morrison is estopped from seeking rescission, that there was valid consideration
for the settlement agreement, and that there are no disputed material facts.
I have reviewed the Amended Complaint, the Answer, the Motion, the

Response, the Reply [ECF No. 133-1], the Sur-Reply [ECF No. 137] and the Sur-Sur-
Reply [ECF No. 140]. I held an oral argument on March 20, 2024. I am fully advised
and this matter is ripe for decision. For the following reasons, the Motion for
Judgment on the Pleadings is GRANTED IN PART.
JUDGMENT ON THE PLEADINGS
In ConSeal Int'l Inc. v. Neogen Corp., Judge Bloom thoroughly explained the

law that applies to a Motion for Judgment on the Pleadings:
Federal Rule of Civil Procedure 12(c) states that: “After the pleadings
are closed — but early enough not to delay trial — a party may move for
judgment on the pleadings.” Fed. R. Civ. P. 12(c). “Judgment on the
pleadings is appropriate where there are no material facts in dispute
and the moving party is entitled to judgment as a matter of law.”
Cannon v. City of W. Palm Beach, 250 F.3d 1299, 1301 (11th Cir. 2001);
see also Perez v. Wells Fargo N.A., 774 F.3d 1329, 1335 (11th Cir. 2014);
Palmer & Cay, Inc. v. Marsh & McLennan Cos., 404 F.3d 1297, 1303
(11th Cir. 2005); Riccard v. Prudential Ins. Co., 307 F.3d 1277, 1291
(11th Cir. 2002). “A motion for judgment on the pleadings admits the
plaintiff's factual allegations and impels the district court to reach a
legal conclusion based on those facts.” Gachette v. Axis Surplus Ins. Co.,
No. 19-cv-23680, 2020 WL 2850587, at *1 (S.D. Fla. Apr. 1, 2020)
(quoting Dozier v. Prof'l Found. for Heath Care, Inc., 944 F.2d 814, 816
(11th Cir. 1991)).

“Judgment on the pleadings is appropriate only when a party ‘fails to
offer any pertinent defense,’ not when one defense out of many is
challenged.” Pete Vicari Gen. Contractor LLC v. Ohio Cas. Ins. Co., No.
17-23733-CIV, 2018 WL 6308695, at *1 (S.D. Fla. Sept. 27, 2018)
(quoting Vann v. Inst. of Nuclear Power Operations, Inc., No. 1:09-cv-
1169-CC-LTW, 2010 WL 11601718, at *2 (N.D. Ga. July 15, 2010)).
Indeed, “federal courts are unwilling to grant a judgment under Rule
3
12(c) unless it is clear that the merits of the controversy can be fairly
and fully decided in this summary manner.” Id. (internal quotation
marks omitted). However, “[i]f it is clear from the pleadings that the
plaintiff is not entitled to relief under any set of facts consistent with the
complaint, the district court should dismiss the complaint.” King v.
Akima Glob. Servs., LLC, 775 F. App'x 617, 620 (11th Cir. 2019) (citing
Horsley v. Rivera, 292 F.3d 695, 700 (11th Cir. 2002)); cf. United States
v. Khan, No. 3:17-cv-965-J-PDB, 2018 WL 6308678, at *1 (M.D. Fla.
Sept. 26, 2018) (“A court must deny a motion for judgment on the
pleadings if a ‘comparison of the averments in the competing pleadings
reveals a material dispute of fact.’ ” (quoting Perez, 774 F.3d at 1335)).

In rendering judgment, a court may consider the substance of the
pleadings and any judicially noticed facts. Cunningham v. Dist.
Attorney's Office for Escambia Cty., 592 F.3d 1237, 1255 (11th Cir.
2010); see also Melendez v. Bank of Am. Corp., No. 17-cv-60542, 2018
WL 1092546, at *1 (S.D. Fla. Feb. 2, 2018) (“The Court may consider all
of the pleadings, including the complaint, answer, counterclaim, and
answer to the counterclaim.” (citing Fla. Evergreen Foliage v. E.I.
DuPont de Nemours & Co., 165 F. Supp. 2d 1345, 1350 (S.D. Fla. 2001))).
“Pleadings include the complaint and answer. Written instruments that
are exhibits to a pleading are considered a part of the pleading.” Pyure
Brands, LLC v. Nascent Health Sci. LLC, No. 1:18-cv-23357, 2019 WL
7945226, at *2 (S.D. Fla. Mar. 4, 2019) (citing Fed. R. Civ. P. 7(a); Fed.
R. Civ. P. 10(c)). “A court may consider documents attached to the
complaint or incorporated by reference without converting the motion
into a motion for summary judgment if the documents are: (1) central to
the complaint, and (2) the documents’ authenticity is not in dispute.”
Eisenberg v. City of Miami Beach, 54 F. Supp. 3d 1312, 1319 (S.D. Fla.
2014) (citing Day v. Taylor, 400 F.3d 1272, 1275-76 (11th Cir. 2005)). “In
particular, the Court may ‘take judicial notice of and consider documents
which are public records.’” Id. (citing Day, 400 F.3d at 1275-76).
Moreover, where a movant relies on or sets forth allegations [that] “were
not presented or contained in the pleadings, including new exhibits, the
Court cannot consider them without converting the motion into a motion
for summary judgment.” Bernath v. Seavey, No. 2:15-cv-358-FtM-99CM,
2015 WL 13805064, at *1 (M.D. Fla. Sept. 29, 2015).

“A motion for judgment on the pleadings is governed by the same
standard as a Rule 12(b)(6) motion to dismiss.” Guarino v. Wyeth LLC,
823 F. Supp. 2d 1289, 1291 (M.D. Fla. 2011). “In determining whether a
party is entitled to judgment on the pleadings, [courts] accept as true all
material facts alleged in the non-moving party's pleading, and [ ] view
4
those facts in the light most favorable to the non-moving party.” Perez,
774 F.3d at 1335 (citing Hawthorne v. Mac Adjustment, Inc., 140 F.3d
1367, 1370 (11th Cir. 1998)). A complaint must provide “more than
labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining
that Rule 8(a)(2) “demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation”). Nor can a complaint rest on
“‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 557). “To survive a 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).

ConSeal Int'l Inc. v. Neogen Corp., No. 19-CV-61242, 2020 WL 4736203, at *2–3 (S.D.
Fla. Aug. 14, 2020) (brackets in original).
When a document appended to a pleading conflicts with the allegations in the
Complaint, the document controls. Int'l Star Registry of Illinois v. Omnipoint Mktg.,
LLC, 510 F. Supp. 2d 1015, 1022 (S.D. Fla. 2007) (citing Fayetteville Investors v.
Commercial Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991)).2
FACTS3
Dr. Morrison applied for, and received, clinical privileges at the Hospital in
2019. Over the next year, he asked repeatedly to be included in the trauma call. The

2 At oral argument, the parties agreed that the Court could consider any documents
appended to the pleadings or the motion papers. Despite this agreement, and to avoid
converting the pending Motion into a Motion for Summary Judgment, I have only
considered the Amended Complaint, the Hospital’s Answer and Affirmative Defenses,
and the documents attached to them.
3 Unless otherwise noted, these facts are taken from the Amended Complaint and are
viewed in the light most favorable to Dr. Morrison. Citations to paragraphs (“¶”) refer
to the Amended Complaint, ECF No. 52.
5
Hospital and others gave multiple, conflicting, and false reasons to keep him off the
trauma call.
Meanwhile, Dr. Morrison “observed that [other neurosurgeons] engaged in a

practice of diverting patients covered by Medicaid” because those patients were less
lucrative. ¶50. “Dr. Morrison reported these concerns to several [Hospital]
representatives, including but not limited to,” the Chief Medical Officer and the Chief
of the Medical Staff. Id. He also “made reports regarding an inappropriate
relationship between [the Hospital’s] preferred neurosurgery medical device
distributor and the Zucker Defendants.” ¶59. Specifically, he “reported his concerns

that [the Hospital] was submitting false claims for payment to the federal
government to several of his supervisors at [the Hospital], including, but not limited
to the DMC Operating Room Director,” the Chief Medical Officer, the Chief of the
Medical Staff, and the Chief Operating Officer. ¶76.
On June 2, 2022, the Chief of the Medical Staff sent Dr. Morrison an email
declining to meet about Dr. Morrison’s being excluded from trauma call. ¶78. That
same day, Dr. Morrison responded by lodging a report to the Chief of the Medical

Staff and the Chief Medical Officer that he was being unfairly targeted and to report
“Dr. Zucker’s illegal and unethical practices.” ¶81. At that time, Dr. Zucker was the
Hospital’s Chief of Neurosurgery. ¶79.
On or about June 24, 2022, the Hospital sent Dr. Morrison a letter notifying
him that the previous day the Medical Executive Committee (MEC) had imposed a
summary suspension of his Hospital privileges under Section 10.9.1 of the Medical
6
Staff Bylaws, based in part on patient care issues. ¶¶83, 85, 86; ECF No. 69-6 at 2-3.
The letter said:
This summary suspension of your clinical privileges is temporary and
effective until the MEC takes action to either terminate, modify, or
continue the suspension, which it will do within 29 days (on or before
Saturday July 23, 2022), pursuant to Sections 10.9.2 and 10.9.4 of the
Bylaws. Consistent with Section 10.9.3 of the Bylaws, you are entitled
to an informal interview with the MEC during and related to your
suspension, where you can provide your position with regard to the
conduct and circumstances at issue.

ECF No. 69-6 at 3. Bylaws Sections 10.9.2 and 10.9.4 had to do with deadlines and
notice. ECF No. 52-1 at 42-43. Section 10.9.3 is captioned “Investigation.” It says:
The MEC, before taking further action, shall conduct the investigation
it deems necessary, which shall include offering the Practitioner an
opportunity to meet with the MEC to respond to the suspension or
restriction and explain his or her position with regard to the conduct or
circumstances at issue. Neither the investigation nor any other
activities of the MEC in determining whether to terminate, modify or
continue the summary suspension or restriction shall constitute a
hearing; they shall be informal, and none of the fair hearing rights under
the Bylaws shall apply. In the event the affected Practitioner resigns his
or her Medical Staff membership or privileges during the course of an
investigation, such resignation shall be reported to the required
regulatory authorities in accordance with state and federal law.

Id. at 42. The letter also said that one basis for the suspension was that the Hospital
had learned material information that Dr. Morrison had not previously disclosed.
¶86, ECF No. 69-6 at 2-3.
On July 7, 2022, DMC’s lawyer “engaged in discussions with” Dr. Morrison’s
lawyer. She said Dr. Morrison was under investigation, and “suggested that the
outcome of the investigation was predetermined against Dr. Morrison, and as a
result, Dr. Morrison should accept a settlement.” ¶89. DMC’s lawyers also sent an e-
7
mail to Dr. Morrison’s lawyer, which said “the Medical Executive Committee began
an investigation for issues related to professional competence.” ¶89.
On July 8, 2022, the Chief of Staff invited Dr. Morrison to an informal meeting

with the MEC “to respond to the suspension of your medical staff privileges and to
explain your position with regard to the conduct and circumstances at issue.” ¶91,
ECF No. 69-9 at 2. The letter also said, “Additionally, as part of the MEC’s
investigation pursuant to Section 10.9.3 of the Medical Staff Bylaws, the MEC is
reviewing [an additional patient care issue].” Id.
After the July 8, 2022, invitation to informally respond to the summary

suspension, the Hospital “never corrected the false statements made by [its lawyers].”
¶92. Rather, on July 14, DMC’s lawyer “engaged in another discussion with Mr.
Monaghan in which she continued to press the false premise that Dr. Morrison was
under Investigation.” ¶¶92, 244.
On July 15, 2022, the parties signed a Settlement Agreement. ¶93. The terms
of the agreement included:
• Dr. Morrison waived any rights to hearings or other relief under the

Hospital Bylaws.
• Dr. Morrison agreed to resign from the Hospital Staff by July 20, and
the Hospital agreed to promptly accept the resignation.
• The parties agreed to keep the terms of the settlement and all related
documents confidential from third parties.
• Neither party admitted fault or liability.
8
• Dr. Morrison was given an advance copy of a letter that the Hospital
was required to send to government authorities.
• The parties mutually released all claims “known or unknown, in law or

in equity, which [they] ever had, now has, or hereafter can, shall or may
have against [each other], directly or indirectly, from the beginning of
time to the present, solely regarding” Dr. Morrison being given and
potentially losing Hospital privileges and any reporting to governmental
authorities.
• “[N]o promises, representations or warranties of any nature or kind

whatsoever, other than those that maybe specifically set forth herein,
have been made by any Party to any other Party in connection with the
negotiation and execution of this Settlement Agreement.”
ECF No. 69-11 at 3-4. That same day, Dr. Morrison resigned his Hospital privileges.
¶93. On July 21, 2022, the Hospital notified the NPDB that Dr. Morrison had
voluntarily surrendered his privileges. ECF No. 69-2.

DISCUSSION
Fraudulent Inducement
Under Florida law, fraudulent inducement occurs when a party: (1) makes a
false statement of material fact; (2) that it knew or should have known was false, (3)
intending that another person rely on the false statement, and (4) the other party
justifiably relied on the false statement to its detriment. E.g., Prieto v. Smook, Inc.,
97 So. 3d 916, 917 (Fla. Dist. Ct. App. 2012). Fraudulent inducement excuses a party
9
from its obligations under a contract. Mazzoni Farms, Inc. v. E.I. DuPont De Nemours
& Co., 761 So. 2d 306, 313 (Fla. 2000) (“It is axiomatic that fraudulent inducement
renders a contract voidable, not void.”).

Dr. Morrison alleges he justifiably and detrimentally relied on three Hospital
misrepresentations:
• DMC stated that Dr. Morrison was under an Investigation pursuant to
the Bylaws when he was not (FAC ¶¶89-93, 242, 244; Morrison Answer
¶42, Exhs. C, F);
• DMC falsely stated that the outcome of any proceeding would be
predetermined against him, when in reality DMC possessed evidence
exonerating Dr. Morrison (FAC ¶¶89-93, 242, 244; Morrison Answer
¶42, Exhs. C, D, F); and
• DMC was in possession of an independent peer review medical report
clearing Dr. Morrison of any alleged wrongdoing, yet fraudulently
omitted the report to induce Dr. Morrison to sign the Settlement
Agreement (FAC ¶¶89-93, 242, 244; Morrison Answer ¶42, Exhs. C, D,
F).
ECF No. 124 at 13-14. The Hospital denies making any false statement, but says in
the alternative that Dr. Morrison could not have justifiably relied on these
statements, as a matter of law.
Because any reliance on the other party’s false statement must be justifiable,
“[t]o be remediable, a representation must have been of such a nature and made
under such circumstances that the injured party had a right to rely upon it.”
Columbus Hotel Corp. v. Hotel Management Co., 116 Fla. 464, 485-86 (1934)
(emphasis in original).
There can be no ground for complaint against representations where the
hearer lacked the right to rely thereon, because he had reason to doubt
the truth of the representation, as where the transaction was entered
10
into upon the express understanding of both parties that a material fact
might exist of which one of them was ignorant, or where a party has
expressly said that he would not be bound by his representations, or was
obviously hostile to the hearer and interested in misleading him. 12
Ruling Case Law, 352; 26 Corpus Juris, 1141, 1142; Smith v.
Hollingsworth, 85 Fla. 431, 96 So. 394. Even where a representation is
made, if at the time thereof it is accompanied by a qualified statement
which shows that the person making it does not intend that it shall be
relied on, and which is reasonably calculated to suggest independent
inquiry on the part of the person to whom it is made, the latter has no
right to rely on it, and, on being deceived, claim that it was fraud. Am.
& Eng. Ency. of Law, vol. 14, p. 117.

Misrepresentation amounting to fraud that will invalidate a contract
must be made by one contracting party to another in reference to a
matter affecting the contract. The person to whom it is made must not
only believe the false representation to be true, but must be so situated
with respect to what is represented that he, at the time, has the right to
rely upon the truth of the representation as made. This is so, because
the false representation must be material to the contract and must have
induced the contract to be made. When dehors the contract, a false
representation cannot be said to have induced its making, when it was
so made as to carry on its face no right on the part of any one to rely on
its credence. Zavala Land & Water Company v. Tolbert (Tex. Civ. App.)
165 S. W. 28.

Id. at 486–87.4
The Hospital says the Columbus Hotel principle applies to a settlement of any
dispute or controversy. ECF No. 132 at 7. Dr. Morrison says it applies only where
there was actual or threatened litigation. And, Dr. Morrison says there is no evidence
that he threatened the Hospital with litigation involving fraudulent or dishonest
conduct:

4 “Dehors” means “outside the scope of.” DEHORS, Black's Law Dictionary (11th ed.
2019).

11
There is not a single allegation in the FAC (or any of Dr. Morrison’s
pleadings) of any pending or threatened litigation that was settled as
part of the Settlement Agreement, let alone litigation that specifically
involved fraud or dishonesty. The FAC clearly alleges that the
Settlement Agreement arose out of DMC’s purported investigation of Dr.
Morrison’s performance as a doctor—and not anything to do with fraud,
dishonesty, or threatened litigation. (FAC ¶¶ 83- 86, 93).

ECF No. 124 at 20.

The Hospital replies that Dr. Morrison reads the prior precedent too literally
and that the pre-settlement negotiations here included Dr. Morrison’s claims that the
Hospital was acting dishonestly toward him by denying him trauma privileges and
the Hospital was violating the False Claims Act through its billing practices. ECF
No. 132 at 7-8.
Columbus Hotel announced the legal principle that, in some situations, an
alleged fraud victim cannot, as a matter of law, justifiably rely on the alleged
fraudster. Like any other claim or defense, the lack of justifiable reliance can be
proven by circumstantial evidence. Columbus Hotel said circumstantial evidence of
an alleged victim’s lack of justifiable reliance can include (1) the alleged victim
knowing that material facts have not been disclosed, (2) the adverse party saying not
to rely on any representations, (3) the adverse party having a motive to mislead, (4)
the adverse party saying to conduct an independent investigation. Id., 116 Fla. at
486-87.
Applying the Columbus Hotel rule to settlement agreements, a line of binding
Eleventh Circuit cases holds that, as a matter of law, a person represented by counsel
cannot justifiably rely on a statement made by an adverse party who that person has
12
accused of fraud or dishonesty. See, e.g., Pettinelli v. Danzig, 722 F.2d 706, 710 (11th
Cir. 1984) (“When negotiating or attempting to compromise an existing controversy
over fraud and dishonesty it is unreasonable to rely on representations made by the

allegedly dishonest parties.”); Green Leaf Nursery v. E.I. DuPont De Nemours & Co.,
341 F.3d 1292, 1305 (11th Cir. 2003) (“Because Plaintiffs were represented by
counsel, were in an antagonistic and distrusting relationship with DuPont, and
settled litigation that included accusations of fraud and other dishonest conduct by
DuPont, Plaintiffs could not reasonably or justifiably rely on any of DuPont's
misrepresentations.”); Mergens v. Dreyfoos, 166 F.3d 1114, 1118 (11th Cir. 1999) (no

justifiable reliance where plaintiff was sophisticated litigant represented by counsel,
parties had an adversarial relationship, and parties were settling a potential lawsuit
that would have included allegations of fraud); Affliati Network, Inc. v. Wanamaker,
847 F. App’x 583, 586-87 (11th Cir. 2021) (“[W]hat was central to our analysis in
[Mergens and Green Leaf] was that the plaintiffs were represented by counsel, ‘in an
antagonistic and distrusting relationship’ with the defendants, and had settled
litigation, or threatened litigation, ‘that included accusations of fraud and other

dishonest conduct.’”). These cases looked to circumstantial evidence such as whether
the parties were represented by counsel, the plaintiff was told not to rely on any
representations, the parties had an adversarial relationship, and whether the
settlement agreement included a merger clause. Although they involve litigation,
several cases talk about the parties resolving a “controversy,” Mergens, 166 F.3d at
1118, or a “dispute.” Affliati, 847 Fed. Appx at 586 (quoting Green Leaf).
13
Taken together, these cases stand for an unsurprising proposition — whether
a party justifiably relied on a false representation is evaluated under the totality of
the circumstances and can be established through circumstantial evidence. Accord

M/I Schottenstein Homes, Inc. v. Azam, 813 So. 2d 91, 95 (Fla. 2002) (In deciding
whether justifiable reliance exists, courts should consider “the totality of the
circumstances surrounding the type of information, the nature of the communication
between the parties, and the relative positions of the parties.”). Although pending or
threatened litigation is one piece of circumstantial evidence, it is not required in every
case.

The Eleventh Circuit’s most recent decision, Affliati, provides additional
support for the conclusion that Dr. Morrison reads Columbus Hotel too narrowly. In
Affliati, the parties settled a filed lawsuit in which there had been counterclaims
based on alleged fraudulent advertising practices and misappropriation of
intellectual property. The plaintiff later sued for breach of the confidentiality and
non-disparagement provisions of the settlement agreement. The defendant filed a
counterclaim to void the settlement agreement based on fraudulent inducement, in

particular, allegedly false statements by plaintiff’s counsel during discovery. The trial
court dismissed the counterclaims based on Columbus Hotel.
The Eleventh Circuit affirmed. It reaffirmed “the well-established and common
sense principle of law espoused in Columbus Hotel and its progeny: generally, adverse
parties negotiating a settlement agreement in an attempt to avoid litigation cannot
rely upon the representations of one another.” Affliati, 847 Fed. Appx. at 588 (quoting
14
Moriber v. Dreiling, 194 So. 3d. 369, 374 (Fla. Dist. Ct. App. 2016). Affliati also said
it was not necessary to have “an exact parallel between the fraud claims resolved by
a settlement agreement and those alleged to have induced the settlement.” Id., at

587. It noted, “What was central to our analysis in [Mergens and Green Leaf] was that
the plaintiffs were represented by counsel, ‘in an antagonistic and distrusting
relationship’ with the defendants, and had settled litigation, or threatened litigation,
‘that included accusations of fraud and other dishonest conduct.’” Id. Notably, the
Eleventh Circuit never said that these factors were necessary in all cases; it merely
said they were sufficient in Mergens and Green Leaf.

So, the question before this Court is whether, viewing the pleadings in the light
most favorable to Dr. Morrison, he could have justifiably relied on the Hospital’s
alleged misrepresentations. As a matter of law, he could not.
This case fits squarely within the Mergens/Green Leaf framework. First, Dr.
Morrison was represented by counsel. Second, he was in an antagonistic posture to
the Hospital. Third, a sufficient “dispute” or “controversy” existed. When the
Settlement Agreement was negotiated, Dr. Morrison was clearly in an antagonistic

and distrusting relationship with the Hospital. He had accused the Hospital of
violating the False Claims Act, ¶76, and had told the Hospital that Dr. Zucker was
engaging in illegal and unethical practices, ¶81. Although he had not overtly
threatened to file a qui tam action, the Hospital reasonably could have inferred that
threat.

15
Additionally, the Hospital had initiated a peer review process under its Bylaws
that was analogous to litigation in a court. Dr. Morrison had been formally notified
that his Hospital privileges were at risk. He had been invited to provide evidence at

an informal meeting. Had that process proceeded, it potentially included a hearing
with sworn testimony, a right to be represented by counsel, appeal procedures within
the Hospital, and judicial review. See ECF No. 52-1, Articles 10 and 11; see also, e.g.,
Genchi v. Lower Fla. Keys Hosp. Dist., 45 So. 3d 915, 917 (Fla. Dist. Ct. App. 2010)
(doctor sued hospital for wrongfully terminating staff privileges). This situation
independently was a sufficient “dispute” or “controversy.”

Additional circumstantial evidence also weighs against a finding of justifiable
reliance. The Settlement Agreement contained a non-reliance clause and a merger
clause. Dr. Morrison believed that the Hospital was conspiring to keep him off of
trauma call and was giving him false reasons why he could not have that call. The
Amended Complaint clearly pleads that Dr. Morrison believed the Hospital was
dishonest and was making untruthful statements.
Even when viewed in the light most favorable to Dr. Morrison, the totality of

the circumstantial evidence compels a finding that he had no right to rely on the
Hospital’s alleged false representations. Dr. Morrison cannot rescind the Settlement
Agreement based on fraudulent inducement.
Consideration
Dr. Morrison argues that even if the Settlement Agreement cannot be
rescinded, it is unenforceable because it lacked consideration. He says he has
16
plausibly alleged a lack of consideration. ECF No. 121 at 25-26. In the alternative, he
says the existence (or not) of consideration is a disputed issue of fact that precludes
judgment on the pleadings.

“For there to be an enforceable contract, ‘there must be an offer, an acceptance,
consideration, and sufficient specification of terms so that the obligations involved
can be ascertained.” W. Const., Inc. v. Fla. Blacktop, Inc., 88 So. 3d 301, 304 (Fla.
Dist. Ct. App. 2012) (citation omitted). “A promise, no matter how slight, qualifies as
consideration if the promisor agrees to do something that he or she is not already
obligated to do.” Cintas Corp. No. 2 v. Schwalier, 901 So. 2d 307, 309 (Fla. Dist. Ct.

App. 2005) (further citation omitted). Consideration also exists if a person agrees not
to do something they otherwise would have the right to do, or agrees to modify the
existing legal relationship between the parties. See, e.g., Consideration, Black's Law
Dictionary (11th ed. 2019) (“Something (such as an act, a forbearance, or a return
promise) bargained for and received by a promisor from a promisee; that which
motivates a person to do something, esp. to engage in a legal act.”); Restatement
(Second) of Contracts § 71 (1981) (“The performance may consist of (a) an act other

than a promise, or (b) a forbearance, or (c) the creation, modification, or destruction
of a legal relation.”).
In the Settlement Agreement, Dr. Morrison released
[any claims] which Morrison ever had, now has, or hereafter can, shall
or may have against DMC, directly or indirectly, from the beginning of
time to the present, solely regarding the Credentialing and Peer Review
Activities and the Summary Suspension, and including the expiration of
17
Dr. Morrison's Medical Staff membership and the Hospital's resulting
report(s) to the National Practitioner Data Bank.

ECF No. 69-11 ¶7. The Hospital’s Motion says Dr. Morrison received the following
consideration: (1) the Hospital released any present or future claims against him,
including the claims now asserted as Counterclaims in this litigation,5 (2) he received
an advance copy of the NPDB report, and (3) the Hospital promptly accepted his
resignation. ECF No. 119-1 at 32-38.6
The Amended Complaint makes three arguments why there was no
consideration for this release. It alleges “DMC had no actual or potential claims
against Dr. Morrison that were released or could have been released by virtue of the
Settlement Agreement. In addition, Dr. Morrison received no benefit through the
NPDB reporting process . . . [because] Dr. Morrison had no influence whatsoever over

5 As part of the Settlement Agreement, the Hospital released any past, present, or
future claims it might have against Dr. Morrison:

[DMC releases claims it] ever had, now has, or hereafter can, shall or
may have against Morrison, directly or indirectly, from the beginning of
time to the present, solely regarding the Credentialing and Peer Review
Activities and the Summary Suspension, and including the expiration of
Dr. Morrison's Medical Staff membership and the Hospital's resulting
report(s) to the National Practitioner Data Bank.

ECF No. 69-11 ¶8.
6 At oral argument, the Hospital said other consideration existed beyond what was
listed in the Motion. The Court will not consider these additional alleged
considerations because they were not raised in the Hospital’s briefing. See Lanier v.
City of Miami, No. 23-CV-22510, 2023 WL 8527177, at *9, n.4 (S.D. Fla. Dec. 8, 2023)
(declining to consider arguments raised for the first time in post-briefing hearing).

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the content of any report to the NPDB.” ¶94. It further pleads, “Dr. Morrison also did
not gain the benefit of avoiding Investigation by the Settlement Agreement. Had Dr.
Morrison simply resigned on July 15 without an accompanying Settlement

Agreement, further administrative action under the Bylaws would have stopped and
the same NPDB reporting requirements would have applied.” ¶95.
Dr. Morrison also points to the following statements in Paragraph 94 of the
Amended Complaint:
• “the Settlement Agreement does not provide Dr. Morrison with any
consideration and is thus unenforceable for lack of consideration.”

• “DMC had no actual or potential claims against Dr. Morrison that were
released or could have been released by virtue of the Settlement
Agreement.”
ECF No. 121 at 25 (quoting FAC ¶94). He says the latter statement creates a disputed
issue of fact that precludes judgment on the pleadings. He also notes the Hospital did
not allege its current Counterclaims during the settlement negotiations. Id. at 26. He
further argues that the Hospital’s counterclaims lack merit. ECF No. 121 at 26-27.

Finally, Dr. Morrison says that seeing the NPDB report beforehand is not
consideration because that action predated the Settlement Agreement. As such, “Dr.
Morrison already had the alleged ‘benefit’ before even signing the Settlement
Agreement and such benefit could not, therefore, constitute consideration for entering
into the Settlement Agreement.” ECF No. 124 at 28.

19
In its Reply, the Hospital says (1) the allegations in paragraph 94 of the
Amended Complaint are legal conclusions not entitled to the assumption of truth, (2)
its potential claims against Dr. Morrison were objectively colorable, so agreeing to

forego them was sufficient consideration, (3) “purchasing peace” by extinguishing any
past and future claims is sufficient consideration, and (4) the timing of the benefit is
irrelevant if it is understood by the parties to be part of the negotiated bargain. ECF
No. 132 at 12-17.
The allegation in Paragraph 94 of the Amended Complaint that “the
Settlement Agreement does not provide Dr. Morrison with any consideration and is

thus unenforceable for lack of consideration” is a legal conclusion not entitled to the
assumption of truth. I need not resolve whether the other allegation in Paragraph 94
creates a disputed issue of fact because there is consideration even if the Hospital has
no current claims against Dr. Morrison.
It is irrelevant to the consideration question whether the Hospital has current
actual or potential claims against Dr. Morrison. The parties negotiated a broader
release. The Hospital gave up its right to sue Dr. Morrison for any claim it “ever had,

now has, or hereafter can, shall or may have . . . solely regarding the Credentialing
and Peer Review Activities and the Summary Suspension, and including the
expiration of Dr. Morrison's Medical Staff membership and the Hospital’s resulting
report(s) to the National Practitioner Data Bank.” This release “purchased peace” for
Dr. Morrison because he got the bargained-for right not to have to incur the cost and
time of litigating against the Hospital in the future. For the same reason, I reject Dr.
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Morrison’s argument that there is no consideration because the Hospital’s
counterclaims are meritless. Whether or not they are meritless, Dr. Morrison
bargained for the right not to have to litigate them, which was a benefit to him and

was valid consideration for his release.
The Hospital allowing Dr. Morrison to see the NPDB report before it was filed
was also valid consideration for his release. The Hospital was not required to show
the report to Dr. Morrison in advance.
The fact that Dr. Morrison saw the report before the Settlement Agreement
was finalized does not affect whether seeing it was valid consideration. Dr. Morrison

was notified of his suspension on June 24, 2022. ECF No. 69-6. By July 7, the parties
were negotiating a settlement. ECF No. 69-12 at 5. That day, the Hospital’s counsel
sent Dr. Morrison’s counsel proposed NPDB reporting language. Id. Thereafter, as
part of a thread of settlement negotiation emails, on July 13, the lawyers exchanged
proposed NPDB language. Id. at 4. On July 14, in an email marked “For Settlement
Purposes Only,” the Hospital’s counsel sent Dr. Morrison’s counsel a draft of the
NPDB Report that would be filed if Dr. Morrison resigned. Id. at 7. The Settlement

Agreement was executed the next day, on July 15, and included a term relating to
the NPDB Report:
The Parties agree and understand that the Resignation constitutes a
reportable event to federal and state authorities. The Parties further
understand that the Hospital has solely determined the form and
content of the report and has communicated the language of the report
to Dr. Morrison’s legal counsel in a separate correspondence, which shall
be considered a part of this Settlement Agreement.

21
ECF No. 69-11 ¶6. Clearly, the right to see the NPDB Report in advance was
negotiated as part of the overall settlement discussions and was then memorialized
by Settlement Agreement. See Andrade v. Blueware, Inc., No. 6:13-CV-1507-ORL-41,

2015 WL 2415690, at *2 n.3 (M.D. Fla. May 20, 2015).
Valid consideration existed for Dr. Morrison’s release, so that release is
enforceable.
Scope of Release
Although the Release is enforceable, the Amended Complaint plausibly pleads
some claims that fall outside the scope of the Release. To recap, the Release covered:

Dr. Morrison, and his heirs, executors, personal representatives, agents,
attorneys, accountants, successors, assigns, and other representatives
(collectively "Morrison"), for and in consideration of the promises and
mutual agreements contained in this Agreement, received from or on
behalf of the Hospital, and its present and former officers, directors,
employees, agents, attorneys, accountants, auditors, predecessors, and
its Governing Board, Administration, Medical Executive Committee and
Medical Staff (collectively "DMC"), the receipt whereof is hereby
acknowledged, hereby remises, releases, covenants not to sue, acquits,
satisfies, and forever discharges DMC, of and from all, and all manner
of action and actions, cause and causes of action, suits, debts, dues, sums
of money, accounts, reckonings, bonds, bills, specialties, covenants,
contracts, controversies, agreements, promises, variances, trespasses,
damages, judgments, executions, claims and demands whatsoever,
known or unknown, in law or in equity, which Morrison ever had, now
has, or hereafter can, shall or may have against DMC, directly or
indirectly, from the beginning of time to the present, solely regarding
the Credentialing and Peer Review Activities and the Summary
Suspension, and including the expiration of Dr. Morrison's Medical Staff
membership and the Hospital's resulting report(s) to the National
Practitioner Data Bank. This Agreement is not intended to release and
does not release any other claims, causes of action, obligations, rights,
liabilities, statutory or contractual duties and/or obligations of any kind
or nature whatsoever, including, but not limited to, any potential
malpractice claims, liabilities, causes of action, lawsuits, or any other
22
proceedings arising from the care and treatment of patients at the
Hospital, including, without limitation, Dr. Morrison's care and
treatment with respect to Medical Record numbers 671496, 713109,
668176, 687919, and 717126.

ECF No. 69-11 at 3-4. As relevant here, it is limited to matters “regarding the
Credentialing and Peer Review Activities and the Summary Suspension, and
including the expiration of Dr. Morrison's Medical Staff membership and the
Hospital's resulting report(s) to the National Practitioner Data Bank.”
Count II alleges that the Hospital violated FDUTPA by excluding Dr. Morrison
from trauma call, filing a false NPDB Report, retaliating against Dr. Morrison for
filing complaints, fraudulently inducing Dr. Morrison to resign from the Hospital
staff, and not referring certain non-Medicaid patients to Dr. Morrison. ¶133. Any
FDUTPA claim based on the NPDB Report and Dr. Morrison’s resignation were
released. I cannot say on the present record that the remaining FDUTPA claims fall
within the scope of the release. At a minimum, there are disputed issues of fact on
that question.
Counts IV and V allege tortious interference based on fraudulently inducing
Dr. Morrison to resign and filing false reports with the NPDB. ¶¶ 154, 167. These
claims were released.
Count VIII alleges the Hospital and others conspired “to abuse the peer review

process . . . to initiate sham proceedings against Dr. Morrison based on a false premise
and then use fraud to coerce Dr. Morrison to resign.” ¶195. It further alleges that the
Hospital and others falsely told patients that Dr. Morrison was intoxicated in the
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operating room and was arrested for driving while intoxicated. Id. Any unfair
competition claim based on the peer review process and Dr. Morrison’s resignation
were released. I cannot say on the present record that the remaining unfair

competition claims fall within the scope of the release. At a minimum, there are
disputed issues of fact on that question.
Count IX alleges that the Hospital defamed Dr. Morrison by submitting false
reports to the NPDB. ¶201. It further alleges that the Hospital falsely told patients
that Dr. Morrison was intoxicated in the operating room and was arrested for driving
while intoxicated. ¶213. Count X alleges injurious falsehood based on the same facts

alleged in Count IX. ¶¶220, 229. Any defamation or injurious falsehood claim based
on the NPDB reporting was released. I cannot say on the present record that the
remaining defamation and injurious falsehood claims fall within the scope of the
release. At a minimum, there are disputed issues of fact on that question.
Count XIII alleges the Hospital was part of a civil conspiracy. One object of the
alleged conspiracy was to file a false report with the NPDB. ¶258 (incorporating ¶¶
96-104). The other object was to pretextually exclude him from trauma call. Id.

(incorporating ¶¶ 39-66). Any civil conspiracy based on the NPBD reporting was
released. I cannot say on the present record that Dr. Morrison released a civil
conspiracy claim based on being pretextually excluded from trauma call. At a
minimum, there are disputed issues of fact on that question.
Although not entirely clear, it also appears that Count XIII incorporates all
other counts in the Amended Complaint as objects of the conspiracy. To the extent
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Count XIII says that Counts II, IV, V, VIII, IX, and X are objects of the conspiracy,
the rulings above for those Counts apply equally to Count XIII.

CONCLUSION
Judgment on the Pleadings is GRANTED IN PART AND DENIED IN PART
on the Hospital’s 25th Affirmative Defense. Counts IV and V are dismissed with
prejudice.

DONE and ORDERED in Chambers this 19th day of April, 2024, at West
Palm Beach in the Southern District of Florida.

BRUCE E. REINHART
UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10123221. Public record. Not legal advice.