Johns Hopkins All Children's Hospital, Inc. v. Kowalski, Kowalski

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

JOHNS HOPKINS ALL CHILDREN'S HOSPITAL, INC.,

Appellant,

v.

MAYA KOWALSKI and JACK KOWALSKI, individually and as

personal representative of the Estate of Beata Kowalski, deceased,

Appellees.

No. 2D2024-0382

October 29, 2025

Appeal from the Circuit Court for Sarasota County; Hunter W. Carroll,

Judge.

Derek M. Stikeleather, Carrie J. Williams, and M. Peggy Chu of Goodell,

DeVries, Leech & Dann, LLP, Baltimore, Maryland; Chris W. Altenbernd

of Banker Lopez Gassler P.A., Tampa; and Eleanor H. Sills of Banker

Lopez Gassler P.A., Tallahassee, for Appellant.

Christine R. Davis of Davis Appeals, PLLC, St. Petersburg, for Amici

Curiae The American Academy of Pediatrics and The Children's Hospital

Association.

Andrew S. Bolin of Bolin Law Group, Tampa, for Amicus Curiae Florida

Hospital Association.

Michael G. Tanner, Kenneth B. Bell, and Justin T. Delise of Gunster,

Yoakley & Stewart, P.A., Jacksonville; Gregory A. Anderson and Jennifer

C. Anderson of Anderson Glenn, LLP, Jacksonville; Seldon J. Childers

and Nicholas P. Whitney of Childers Law, LLC, Gainesville (substituted

as counsel for record); and Raymond T. Elligett, Jr. and Amy S. Farrior of

Buell Elligett Farrior & Faircloth, P.A., Tampa, for Appellees.

BLACK, Judge.

Johns Hopkins All Children's Hospital, Inc. (JHACH), appeals from

the final judgment rendered against it and in favor of Maya Kowalski,

Jack Kowalski, and the Estate of Beata Kowalski (collectively, the

Kowalskis). The final judgment awarded damages to the Kowalskis for

false imprisonment between October 7 and October 13, 2016; intentional

infliction of emotional distress; wrongful death for intentional infliction of

emotional distress; false imprisonment between October 18 and October

20, 2016; false imprisonment on January 6, 2017; medical negligence;

battery on January 6, 2017; battery for unspecified dates; and

fraudulent billing. The trial court's erroneous interpretation and

application of section 39.203(1)(a), Florida Statutes (2016), and the

immunity afforded thereunder, as well as the trial court's erroneous

denial of JHACH's motions for directed verdicts and JHACH's motion for

a new trial require reversal of the final judgment.

I. Background

In the fall of 2015, Maya Kowalski was diagnosed with Complex

Regional Pain Syndrome (CRPS). Beata Kowalski, Maya's mother and a

nurse infusionist, became aware of CRPS prior to Maya's diagnosis

through one of Mrs. Kowalski's patients. CRPS is a central nervous

system disorder; it is characterized by severe regional pain with no

apparent cause. Patients with CRPS experience an array of symptoms

including agonizing pain in the affected region or limb, extreme

sensitivity to touch, light sensitivity, and lesions.

2

Initial treatments for Maya's CRPS included warm water therapy,

physical therapy, nonnarcotic pain medications, and opioids. When the

initial treatments failed to relieve Maya's pain and symptoms, Maya

began receiving ketamine. This included Mrs. Kowalski taking Maya to

Mexico where Maya was placed in a five-day ketamine coma. For a

period of approximately eight months prior to her admission to JHACH in

October 2016, Maya was being treated with ketamine infusions through

a central venous port in her chest. The ketamine infusions were

authorized and overseen by Dr. Ashraf Hanna, a pain management

doctor. Although ketamine had been the longest used and most

successful treatment for Maya's CRPS prior to her admission to JHACH,

Maya's physicians had also prescribed other treatments, including

hyperbaric oxygen and immune system stimulants. During most, if not

the entirety, of her treatment Maya was unable to walk without

assistance and was in a wheelchair.

On the day before Maya's admission to JHACH, Dr. Hanna advised

Mrs. Kowalski that he had given Maya the maximum dosage of ketamine

that could be administered and that it was not helping Maya; Dr. Hanna

advised that Maya be taken to JHACH.1 On October 7, 2016, Mr.

Kowalski brought Maya, then ten years old, to the emergency room of

JHACH. Maya presented with excruciating pain. Upon Mrs. Kowalski's

arrival at JHACH, she was adamant that Maya receive ketamine

infusions, and although JHACH was able to confirm with Dr. Hanna that

Maya had been in his care and had been receiving high dosages of

ketamine, the hospital emergency room notes state that dosages at the

level demanded by Mrs. Kowalski could not be administered in the ER.

1 Dr. Hanna did not testify at trial.

3

Maya was ultimately admitted to the pediatric intensive care unit at

JHACH (PICU).

Concerned about Mrs. Kowalski's demands for ketamine and

perceived inconsistencies between Mrs. Kowalski's recitation of Maya's

medical history and JHACH's own observations, a social worker at

JHACH—in accordance with JHACH policy—called the Department of

Children and Families abuse hotline on October 7, 2016. The following

day, October 8, 2016, JHACH contacted Dr. Sally Smith because of the

suspected abuse. Dr. Smith, who had privileges at JHACH, is a

pediatrician and was the medical director of the Child Protection Team

for Pinellas County at that time.2

On October 9, 2016, a second call from a social worker at JHACH

was made to the Department child abuse hotline. This second call

resulted in an immediate investigation.

On October 13, 2016, Maya remained at JHACH but was taken into

the Department's custody. The Department filed a dependency shelter

petition, requesting that Maya be placed in the shelter care of the

Department because Maya had been abused, abandoned, or neglected or

was in imminent danger of abuse, abandonment, or neglect. The

Department sought medical shelter care for Maya and requested no

contact between Maya and Mrs. Kowalski but supervised visits between

Maya and Mr. Kowalski and Maya's brother. On October 14, 2016,

following a hearing on the Department's petition, Maya was placed in the

shelter care of the Department. The dependency court order provided

that Mrs. Kowalski was to have no contact with Maya pending

2 Child Protective Teams are used "to supplement the assessment

and protective supervision activities of" the Department. § 39.303(3).

4

psychological evaluations of both Mrs. Kowalski and Maya. The order

further provided that the Department would make all efforts to identify

an appropriate person at JHACH to supervise visitations between Mr.

Kowalski and Maya. Additionally, the order provided that in the event

Maya's parents were unwilling, the Department or "the person primarily

responsible of [sic] the care management" of Maya was authorized to

consent to "ordinary and necessary medical"3 examination and treatment

of Maya.

Thus as of October 13, 2016, Maya was in the custody of the

Department, and beginning on October 14, 2016, Maya was under the

jurisdiction of the dependency court.

At trial, Mr. Kowalski testified that at some point between October

8 and 13, 2016, he and Mrs. Kowalski requested that Maya be released

from JHACH and that JHACH subsequently threatened them with arrest

if Maya were to leave the hospital against medical advice. Mr. Kowalski

testified that JHACH advised him that Maya could not leave the hospital

because Maya had to be safely weaned off medications, including

ketamine. Evidence at trial established that JHACH attempted to

transfer Maya to another hospital but that the Kowalskis would not

consent to the transfer because the insurance codes on the transfer form

indicated that Maya had Munchausen syndrome or conversion disorder

or was the target of Munchausen syndrome by proxy and did not indicate

that Maya was suffering with CRPS. Mr. Kowalski testified that he and

3 Section 39.01(43) defined "[n]ecessary medical treatment" as the

"care which is necessary within a reasonable degree of medical certainty

to prevent the deterioration of a child's condition or to alleviate

immediate pain of a child."

5

Mrs. Kowalski would not sign the transfer form because they believed it

would mean admitting guilt or blame.4

Without referencing the limitations and requirements of the

dependency court orders, Mr. Kowalski testified that anything that he

brought into the hospital had to be approved, whether it was clothing,

food, or letters. Food was required to be prepackaged and could not be

homemade.

Mr. Kowalski testified that during one of his visits Maya had asked

him whether Mrs. Kowalski was in a mental institution. When Mr.

Kowalski asked why Maya would say that, Maya told him that a JHACH

social worker assigned to Maya, Catherine Bedy, had told Maya that Mrs.

Kowalski was receiving mental health treatment.

Mr. Kowalski testified to additional statements made to him by

Maya, including instances where nurses had told Maya that her illness

was all in her head and where Ms. Bedy had told Maya that "she could

be [Maya's] mother while [Maya is] there at the hospital."

Mr. Kowalski also testified regarding his own interaction with Ms.

Bedy, wherein she asked him, "Did you ever consider divorcing your

wife?" He responded, "What are you talking about?" and Ms. Bedy said,

"Oh, forget it," and walked away. Mr. Kowalski relayed to Mrs. Kowalski

what had happened during his visits with Maya and the information he

had learned.

4 Evidence established that prior to Maya's admission to JHACH in

October 2016, concerns had been raised about psychological factors

affecting Maya's physical condition by medical professionals who had

treated Maya at Tampa General Hospital and Lurie Children's Hospital of

Chicago.

6

Although he was aware that Maya had been moved to a new room

on October 18, 2016, Mr. Kowalski testified that he was unaware that

the new room—identified by JHACH staff as the EEG room—was under

video surveillance until many years after the fact.5 He testified that he

never saw Maya mistreated; likewise, he never saw nurses taking actions

that he considered to be cold or unusual.

Maya testified at trial that the commode in the EEG room was far

enough from the bed that she would have to stand up and walk to use it,

which she could not do. Maya believed that the nurses wanted to

provoke her in order to prove that she could walk.

Maya testified that she was not permitted to speak with her mother

and that this infuriated her. Although Maya was told that her pain was

in her head and that she was making it up, Maya testified that she was

not told that physicians believed she had conversion disorder or

Munchausen syndrome. One instance Maya relayed involved a specific

nurse verbally accosting her for not moving during a bed change.

Despite Maya advising the nurse that she could not walk, stand, or roll,

the nurse said, "If you don't move right now or else." She recalled that

the nurse yelled at her for quite a while, saying: "I know you can move. I

know you're faking it. Just stand up. We all know."

The Kowalskis are Catholic, and Maya testified that she was not

permitted to receive communion from her parish priest; she did receive

communion from a priest associated with JHACH. Maya believed that

outside food, including the communion wafer, was not permitted because

there was a fear that Mrs. Kowalski would tamper with it or somehow

5 JHACH's admission form includes the following language: "I

understand that . . . closed circuit television monitoring of patients care,

may be used during the course of treatment."

7

add ketamine to it. She did not testify to the requirements of the

dependency court orders in this regard.

Maya reiterated in her own testimony that Ms. Bedy had told her

that Mrs. Kowalski was in a mental institution. Maya quickly learned

that Ms. Bedy's statement was false, and Maya believed the statement

was intended to manipulate Maya into thinking that her mother was sick

and therefore making Maya sick. Maya also reiterated that Ms. Bedy told

her, "I'm not trying to be your mother, but I can be."

Mrs. Kowalski was born in Poland, and Maya often spoke in Polish

with her mother before her admission to JHACH. Although the

dependency court eventually permitted Mrs. Kowalski to have supervised

phone and FaceTime calls with Maya, Maya was not permitted to speak

Polish with her mother, and the calls were limited to basic and

insignificant things. An audio recording was played of one conversation

wherein a female voice advised Mrs. Kowalski that "[w]e are not allowed

to talk about the [dependency] case" after Mrs. Kowalski told Maya that

as soon as the judge makes the decision she would be able to see Maya

again.6

A final instance involving Ms. Bedy occurred when Ms. Bedy took

photographs of Maya before Maya left the hospital for a dependency

court hearing on January 6, 2017. Maya testified that Ms. Bedy came to

Maya's room and told Maya that if Maya wanted to go to court, she was

going to have to be "stripped naked and photographed." Ms. Bedy and a

6 Maya recalled that this was Ms. Bedy redirecting the

conversation; however, JHACH introduced into evidence an email from

Charlotte LaPorte, a Department social worker assigned to Maya's case,

stating that Ms. LaPorte redirected Mrs. Kowalski during that

conversation.

8

nurse did photograph Maya before court; Maya was wearing a training

bra and shorts in the photographs. She understood that the photos were

for purposes of the dependency case.

Maya testified that she was in worse condition when she was

released from JHACH in January 2017 than when she was admitted.

She also testified that by her seventh- and eighth-grade years in school,

August 2018 through May 2020, she was participating in physical

activities without restrictions.

Ms. Bedy's deposition was played for the jury. She testified that

she was a licensed clinical social worker at JHACH at the time of Maya's

admission. Ms. Bedy testified that she was required to follow the

dependency court shelter orders and that it was the dependency court

that determined who Maya could see and when. She also testified that

court orders provided general parameters but that the Department and

JHACH, to some extent, determined how to implement those parameters.

Ms. Bedy testified concerning the initial calls to the Department abuse

hotline and the rationale behind those calls. 7 She also testified that

"95% of the time that [she] saw [Maya], [Maya] was up in her wheelchair.

And the times that she would report extraordinary pain would be when

she was prompted by her mother" or "if somebody asked her if she was

having pain." She further testified that

JHACH noted on several occasions where [Maya] was moving

her legs, moving her hands without any pain. [Maya] was

engaging in activities such as foosball, cutting out and

making crafts in the craft room. She was out playing the

piano downstairs and often moved herself around the

7 Much of Ms. Bedy's testimony concerned actions authorized or

required by chapter 39 and responses to questions mischaracterizing

JHACH's continued involvement as "taking this child away from her

parents."

9

hospital. It was only after we gave that information to [the

Department] that [Maya] then decided—or quit moving herself

around the hospital for a few days.

In one of her case notes, Ms. Bedy wrote: "[Maya] told me she was

furious, angry, and in pain. She told me she can't talk or trust anyone,

that she knows there is court on Monday, and it's all lies."

Ms. Bedy testified that JHACH has a policy against recording phone

calls and that she therefore objected to Mrs. Kowalski recording calls

with Ms. Bedy. She also testified that whether Maya was permitted to

see her priest was up to the dependency court. Ms. Bedy testified that

the Department asked that JHACH monitor Maya's calls and that at

times calls came through Ms. Bedy's phone and she would put her phone

on speaker to allow Maya to have the conversation. Ms. Bedy supervised

phone calls between Maya and Mrs. Kowalski once the dependency court

authorized supervised limited contact. At no time did the dependency

court authorize in person visitation between Maya and Mrs. Kowalski.

Ms. Bedy testified that in January 2017, JHACH's risk

management department asked Ms. Bedy and another person to take

photographs of Maya before she was taken to a January 6 dependency

court hearing; the request for photographs had been made by an

attending physician at JHACH. Ms. Bedy testified that "in the

professional context" and "in the foster care program" photographs are

taken "if there [are] injuries." She confirmed that at the time of the

photographs Maya was in the custody of the Department and that the

Department was "getting ready to take their own pictures" as well. No

one explained to Ms. Bedy why she was taking photographs of Maya.

Ms. Bedy noted that the email she received addressed concerns that

Maya was "self-mutilating" and had scratches on her body.

10

On January 6, 2017, the dependency court ordered that Maya

would remain sheltered at JHACH and set a February 2017 trial date.

Mrs. Kowalski committed suicide the following day, January 7, 2017,

leaving two suicide notes. Those notes reflect Mrs. Kowalski's sadness

and frustration with the dependency court proceedings and those

involved with the dependency proceedings, including JHACH, the

Department, and Dr. Smith.

One week after Mrs. Kowalski's suicide, on January 13, 2017, the

dependency court allowed Maya to be released from JHACH and to

resume living with Mr. Kowalski. The dependency case was ultimately

dismissed. During the months that Maya was sheltered at JHACH, she

was weaned off ketamine, and the dependency court order releasing

Maya from JHACH prohibited additional ketamine treatments. Maya had

been admitted to JHACH in severe pain, unable to walk, and receiving

high doses of ketamine; when she was discharged from JHACH, she was

still in significant pain and unable to walk. At the time of trial, the only

medications she routinely took were Claritin, Flonase, and a sleep aid;

she had been able to walk, run, and ice skate. Maya testified that she

had experienced no CRPS flare-ups in the three years following her

January 2017 discharge from JHACH.

The Kowalskis filed their lawsuit on October 5, 2018. The operative

eighth amended complaint was filed on January 24, 2023. More than

fifty pretrial motions were litigated and resolved before this legally

complex and emotionally charged case was heard by a jury beginning on

September 14, 2023. During the two-month trial, additional motions

were filed and resolved, including multiple motions for directed verdicts.

On November 9, 2023, the jury returned a verdict in favor of the

Kowalskis on all remaining claims. Postverdict, JHACH filed an omnibus

11

renewed motion for directed verdict, motion for new trial, and motion for

remittitur. The court denied, largely without elaboration, the renewed

motion for directed verdict and motion for new trial. It granted in part

the motion for remittitur. The court then entered the final judgment.

II. Analysis

A. Standards of review

Issues of statutory interpretation are reviewed de novo. M.K. v.

Dep't of Child. & Fams., 380 So. 3d 469, 472 (Fla. 4th DCA 2023) (citing

B.Y. v. Dep't of Child. & Fams., 887 So. 2d 1253, 1255 (Fla. 2004)).

"A trial court's decision on a motion for directed verdict presents a

question of law—the sufficiency of a party's evidence—that we review de

novo." Kim v. Jung Hyun Chang, 249 So. 3d 1300, 1305 (Fla. 2d DCA

2018) (citing Fell v. Carlin, 6 So. 3d 119, 120 (Fla. 2d DCA 2009)). When

considering whether the trial court should have granted a directed

verdict, we "must evaluate the testimony in the light most favorable to

the nonmoving party and every reasonable inference deduced from the

evidence must be indulged in favor [of] the nonmoving party." Winter

Haven Hosp., Inc. v. Liles, 148 So. 3d 507, 515 (Fla. 2d DCA 2014)

(alteration in original) (quoting GEICO Gen. Ins. v. Hoy, 136 So. 3d 647,

651 (Fla. 2d DCA 2013)).

Our review of the denial of a motion for new trial is for an abuse of

discretion. Edwards v. Rosen, 189 So. 3d 177, 182 (Fla. 2d DCA 2016).

"In reviewing an order on a motion for a new trial, an appellate court

should consider the totality of all errors and improprieties." Id. at 182-

83 (citing Manhardt v. Tamton, 832 So. 2d 129, 132-33 (Fla. 2d DCA

2002)).

B. Section 39.203(1)(a) immunity

12

Pretrial, JHACH moved for partial summary judgment based on the

immunity afforded pursuant to section 39.203(1)(a). JHACH argued, as

relevant to this appeal, that every claim against it, except the battery

claims, was precluded as a matter of law because JHACH had reasonable

cause to report suspected child abuse and was otherwise participating in

chapter 39 proceedings. The trial court granted in part and denied in

part the motion based on its interpretation and application of section

39.203(1)(a) to the Kowalskis' claims. JHACH argued in its postverdict

motions that a new trial is warranted based on the trial court's narrow

interpretation and erroneous application of the statutory immunity. On

appeal, JHACH again seeks a new trial based on the court's erroneous

rulings with regard to section 39.203(1)(a) and their pervasive impact on

the trial.

The trial court considered two sections of chapter 39 and applicable

precedent addressing the statutory language. Section 39.201(1)(a)

addresses mandatory reporting of child abuse and provides, in relevant

part: "Any person who knows, or has reasonable cause to suspect, that a

child is abused, abandoned, or neglected by a parent . . . shall report

such knowledge or suspicion to the [D]epartment in the manner

prescribed by subsection (2)." Physicians, nurses, and "hospital

personnel engaged in the admission, examination, care, or treatment of

persons," as well as other "health or mental health professional[s]," are

required to provide their names to the abuse hotline when making a

report. § 39.201(1)(d)1-2. Suspected child abuse by a parent must be

reported "immediately." § 39.201(2)(a).8 And any person who is required

8 Notably, the Department also bears responsibility under section

39.201:

13

to report "known or suspected child abuse" and who fails to do so

commits a felony. § 39.205(1).

Section 39.203(1)(a) addresses actions authorized or required by

chapter 39, as well as reporting child abuse, and provides:

Any person, official, or institution participating in good faith

in any act authorized or required by this chapter, or reporting

in good faith any instance of child abuse, abandonment, or

neglect to the [D]epartment or any law enforcement agency,

shall be immune from any civil or criminal liability which

might otherwise result by reason of such action.

In construing section 39.201(1)(a), the trial court also considered

Urquhart v. Helmich, 947 So. 2d 539 (Fla. 1st DCA 2006), and Ross v.

Blank, 958 So. 2d 437 (Fla. 4th DCA 2007). Both cases address only

reports of suspected child abuse and the immunity afforded thereto. In

Urquhart, the court concluded that

there are two ways in which a doctor can be immune from

civil liability for making an incorrect report of child abuse.

Immunity exists as a matter of law if the doctor has

reasonable cause to suspect that the child has been abused

and makes a report of the abuse as required by law. In that

event, there is no need to determine whether the doctor acted

in good faith. . . . [O]nce reasonable cause has been shown,

"a reporter complying with the statutory mandate to make a

If it appears that the immediate safety or well-being of a child

is endangered, that the family may flee or the child will be

unavailable for purposes of conducting a child protective

investigation, or that the facts otherwise so warrant, the

[D]epartment shall commence an investigation immediately,

regardless of the time of day or night. In all other child

abuse, abandonment, or neglect cases, a child protective

investigation shall be commenced within 24 hours after

receipt of the report.

§ 39.201(5). The shelter petition in this case alleged—and the

dependency court found—that shelter was appropriate based on evidence

of abuse and imminent danger.

14

report is, by definition, operating, in good faith." However,

the absence of reasonable cause does not prove liability; it

merely removes the immunity that would otherwise apply as a

matter of law. If the objective evidence does not support a

conclusion that the doctor had reasonable cause to make the

report, the doctor may nevertheless claim immunity from civil

liability by showing that the report was made in good faith.

947 So. 2d at 542 (citations omitted) (quoting O'Heron v. Blaney, 583

S.E.2d 834, 836 (Ga. 2003)).9 Citing Urquhart, the court in Ross likewise

concluded that if a reasonable basis existed to report child abuse, the

motive in making the report is irrelevant. 958 So. 2d at 441.

Based on the facts before it and the above-cited precedent, the trial

court determined—"very easily"—that JHACH had reasonable cause to

report suspected child abuse to the Department hotline. Accordingly, the

trial court found that JHACH was "entitled to section 39.203(1)(a)

immunity from any civil claim 'which might otherwise result by reason of'

the report[s]." But the court said nothing of immunity for claims

resulting from "participat[ion] in good faith in any act authorized or

required by [chapter 39]." See § 39.203(1)(a).

The facts of this case are unusual in that the reporter for purposes

of sections 39.201 and 39.203 remained a participant in Maya's care

beyond the initial shelter hearing and was required to comply with the

dependency court orders by virtue of the Department designating Maya's

9 The trial court expressed trepidation in applying the Urquhart

analysis insofar as Urquhart concluded that "the immunity that is

afforded to a medical doctor . . . is not the same as that afforded to an

ordinary citizen," see 947 So. 2d at 542, where neither section 39.201

nor section 39.203 differentiate between doctors and ordinary citizens

except that the former are required to give their names when making a

report while the latter may remain anonymous. While we might agree

with the trial court on that narrow issue, application of the statutory

immunity as between doctors and ordinary citizens is not before us.

15

placement with JHACH. As the shelter placement, JHACH was required

to implement the dependency court orders. Those orders required

JHACH to comply with visitation guidelines set forth in the orders, as

well as to manage correspondence between Maya and Mrs. Kowalski.10

Moreover, the orders directed that the court would not micromanage or

countermand JHACH's policies and that absent "clear and compelling

reasons," JHACH's staff was to "be free to address the medical needs of

their patients without the court, the parents, or others interfering with

their professional judgment."

JHACH was required to take part in the sheltering of Maya by

virtue of the shelter order entered October 14, 2016. The Department

sought to have Maya sheltered based on ongoing abuse and imminent

danger; the dependency court sheltered Maya, and the Department was

authorized to determine her placement. The Department placed Maya at

JHACH for ongoing medical treatment, including psychological

evaluation and weaning off ketamine.

Within the text of chapter 39, the legislature established its intent

expressly: "The purposes of this chapter are . . . [t]o provide for the care,

safety, and protection of children . . . and to prevent the occurrence of

child abuse, neglect, and abandonment." § 39.001(1)(a). The legislature

further stated its intent that chapter 39 "be liberally interpreted and

construed in conformity with its declared purposes." § 39.001(12).

"[C]ourts may not extend, modify, or limit the statute's express

terms or its reasonable or obvious implications because to do so would

be an abrogation of legislative power." Searcy, Denney, Scarola, Barnhart

10 The dependency court orders included directives on screening

visitors through the Department and who specifically would be permitted

visitation.

16

& Shipley v. State, 209 So. 3d 1181, 1189 (Fla. 2017). "Moreover, 'all

parts of a statute must be read together in order to achieve a consistent

whole.' " Id. (quoting Borden v. E.–Eur. Ins., 921 So. 2d 587, 595 (Fla.

2006)). Effect must be given to every clause of the statute and meaning

given to all of its parts. See Alvarez-Sowles v. Pasco County, 386 So. 3d

224, 229 (Fla. 2d DCA 2024) (quoting Larimore v. State, 2 So. 3d 101,

106 (Fla. 2008)).

Here, the trial court erred by not considering the entirety of section

39.203(1)(a) and its application to the facts of this case beyond JHACH's

immunity from claims premised on or immediately resulting from the

reports of suspected child abuse. And nothing in the record suggests

that JHACH's participation in implementing the dependency court

orders, as it was required to do, was not done in good faith. Cf. Dep't of

Health & Rehab. Servs. v. Dougherty, 700 So. 2d 77, 79 (Fla. 2d DCA

1997) ("Although the process was unfortunately slow and painful for the

Doughertys, nothing reveals that the investigation was not instituted and

conducted in good faith after a legitimate report of abuse . . . . As such,

the Department, as an 'institution participating in good faith' in acts

'authorized or required by ss. 415.502-415.514,' was 'immune from civil

. . . liability which might otherwise result by reason of its action.' "

(quoting § 415.511(1)(a), Fla. Stat. (1995) (current version at §

39.203(1)(a), Fla. Stat.))); Pope v. State, 246 So. 3d 1282, 1283 (Fla. 1st

DCA 2018) ("The State argues (correctly) that Pope could have and

should have done more. But the [l]egislature did not condition immunity

on doing more than seeking medical assistance in good faith. The

[l]egislature could have imposed more conditions."). The statutory

scheme at issue is "intended to protect those who might be overzealous

in protecting children from potential abuse." See Floyd v. Dep't of Child.

17

& Fams., 855 So. 2d 204, 206 (Fla. 1st DCA 2003) (discussing section

425.511(1)(a), a predecessor to section 39.203(1)(a)). This is not to

suggest that section 39.203(1)(a) provides absolute immunity. It provides

immunity from liability that might otherwise result from good faith

reporting or good faith participation in acts authorized or required by

chapter 39. Cf. Dep't of Health & Rehab. Servs. v. Yamuni, 529 So. 2d

258, 262 (Fla. 1988) ("Section 827.07(7)[, Florida Statutes (1979),]

protects against liability for carrying out the protective measures of

chapter 827 on behalf of the protected class, it does not protect against

failing to carry out the protective measures." (citing § 827.07, Fla. Stat.

(1979) (current version at § 39.203, Fla. Stat.))).

There are complexities created by the interplay of chapter 39 with

the claims raised in this case. We are aided in interpreting and applying

chapter 39 by the amicus curiae briefs filed by the American Academy of

Pediatrics, the Children's Hospital Association, and the Florida Hospital

Association. The Florida Hospital Association (FHA) articulated its

concerns with the trial court's ruling in this case:

[T]he trial court found as a matter of law that [JHACH] had a

reasonable basis for suspecting that their patient was the

subject of child abuse; that [JHACH] acted in good faith in

reporting that suspicion; and that [JHACH] could not be held

liable for any cause of action directly arising from sheltering

the child pursuant to a court order. Unfortunately, these

findings were rendered meaningless at the trial itself when

the court permitted [the Kowalskis] to attack [JHACH's] basis

for suspecting abuse, its motives for reporting that suspicion,

and present evidence to the jury of the psychological impact

of the court-ordered sheltering period. . . . [T]he actions of

[JHACH] with respect to their good faith, mandatory reporting

were repeatedly called into question and leveraged by the

[Kowalskis] in their effort to secure a finding of civil liability

and an award for damages.

18

The trial court found that "section 39.203(1)(a) immunity flows for

any civil liability that may result by reason of the [child abuse] report"

and that "[w]ithout question, an investigation, shelter, removal of

custody, and prohibiting visitation all are outcomes that logically could

occur from a report to the abuse hotline." 11 The trial court implicitly

recognized that dependency court orders, that is, those sheltering a child

and restricting or prohibiting visitation, may result from the reporting

and investigation of abuse. Yet the trial court failed to give effect to its

interpretation by permitting the jury to hear significant and inflammatory

testimony concerning the restrictions put in place by the dependency

court and the impacts of those restrictions on the Kowalskis. For

example, Mr. Kowalski testified that Mrs. Kowalski lost consciousness

and fell to the floor upon learning that she was not going to be able to see

Maya and that during the time that she was unable to see Maya, Mrs.

Kowalski deteriorated; she was losing hope. He repeatedly testified to the

profound impacts of the dependency court orders on Mrs. Kowalski.

Maya also testified to the impacts of the dependency court orders on her,

from anger in not being able to speak with or see her mother to feelings

of isolation. Maya testified that she was suspicious about the comments

made to her and the restrictions placed on her; no one ever "directly told

11 Whether the trial court's interpretation is correct in this respect

has not been raised by the parties to this appeal. We note, however, that

the plain language of the statute provides immunity from civil liability

resulting from good faith abuse reports. Whether civil liability results

from, or as the trial court found "flows from," the abuse reports or from

other acts authorized or required by chapter 39 is not a distinction we

must draw in this case because JHACH was required to comply with

dependency court orders as a matter of its good faith participation in the

chapter 39 proceedings regardless of whether its compliance with court

orders flowed from the abuse reports.

19

[her] what was going on," and she had to figure out for herself that she

was being "stripped from [her] family." She testified that JHACH

provided her with a "My Care Journal" and that in it she listed names of

JHACH doctors and nurses with notations and drawings: "I was trying to

get out of the hospital, and I'm 10. So I'm thinking if they think I like

you, then I'll get out."12

The trial court erred by not giving effect to that portion of the

statute to which it assigned meaning, and it further erred by not giving

meaning to all words within the statute. See N. Broward Hosp. Dist. v.

Agency for Health Care Admin., 398 So. 3d 1038, 1043 (Fla. 1st DCA

2024) ("Courts must give significance and effect to every word and phrase

in a statute."). Section 39.203(1)(a) provides immunity from civil liability

"which might otherwise result by reason of" both "reporting in good faith

any instance of child abuse" and "participating in good faith in any act

authorized or required by" chapter 39. Ninety-one of Maya's ninety-

seven days in JHACH were the result of dependency court orders wherein

the Department had been given placement and care responsibility of

Maya while she remained under protective supervision. JHACH argues

12 The closing arguments were also inflammatory: Counsel for the

Kowalskis argued that JHACH "took [Mrs. Kowalski] out of the game" by

"changing its diagnosis" and treating the Kowalskis "like criminals."

Counsel then went through JHACH's defenses because "if we get rid of

the defenses, then all that [is] left is [the Kowalskis'] case." Counsel for

the Kowalskis argued that "something happened [between Mrs. Kowalski

and JHACH] that ticked [JHACH] off," causing JHACH to call the

Department, and that JHACH was not "going to let this brusque lady

with an Eastern European accent come in and tell[] them how to do their

job." They argued that JHACH calling the Department hotline was

retaliatory against Mrs. Kowalski and that she committed suicide

because she knew that if she did not take drastic action Maya would

"end up in some kind of foster care" or die.

20

that the trial court's errors in interpreting and applying section

39.203(1)(a) immunity should result in a new trial for all claims. 13 We

agree that the trial court's rulings on section 39.203(1)(a) immunity

permeated the entire trial; a new trial is required on all counts not

otherwise disposed of by this opinion.

C. False imprisonment: October 7-13, 2016

The trial court denied JHACH's motion for directed verdict as to the

false imprisonment claim for JHACH's actions between October 7 and

October 13, 2016.14 This was error.

"The essential elements of a cause of action for false imprisonment

include: (1) the unlawful detention and deprivation of liberty of a person;

(2) against that person's will; (3) without legal authority or 'color of

authority'; and (4) which is unreasonable and unwarranted under the

circumstances." Mathis v. Coats, 24 So. 3d 1284, 1289-90 (Fla. 2d DCA

2010) (citing Montejo v. Martin Mem'l Med. Ctr., Inc., 935 So. 2d 1266,

13 We note that JHACH has not argued that evidence of good faith

participation in actions authorized or required by chapter 39 is not

admissible because such actions cannot form the basis for liability. The

FHA, however, contends that "[i]f a party is immune from any civil

liability that might otherwise result by reason of certain conduct, then

evidence of such conduct should not be offered as part of an effort to

support a finding of any form of civil liability" and that "[o]ffering such

evidence 'creates an obvious and significant danger of "unfair prejudice,

confusion of issues, [and] misleading the jury." ' " See § 90.403, Fla.

Stat. (2023).

14 Although JHACH sought summary judgment for this false

imprisonment claim, as well as the other false imprisonment claims, on

the basis of section 39.203(1)(a) immunity, JHACH does not challenge

the court's denial of its motion for summary judgment. The only

challenge it raises on appeal as to the October 18 through October 20

and January 6 false imprisonment claims concerns punitive damages.

21

1268 (Fla. 4th DCA 2006)). All elements must be proven for a plaintiff to

recover on a false imprisonment claim. Montejo, 935 So. 2d at 1268.

The October 7 through October 13 allegations stem from JHACH's

refusal to release Maya from the ER and PICU. JHACH argues both that

it had legal authority and that there was no evidence that keeping Maya

in its care was unreasonable and unwarranted under the circumstances,

whether because of Maya's pain levels and overall health at the time or

because of the suspected child abuse.

We need only consider whether the hospital was without legal

authority or color of authority, a question of law, to resolve this issue.

See Whipple v. Dep't of Corr., 892 So. 2d 554, 558 (Fla. 3d DCA 2005);

see also Citizens of State v. Graham, 191 So. 3d 897, 900 (Fla. 2016)

("Whether the [Florida Public Service Commission] has the authority to

act is a question of law, which is subject to de novo review."). JHACH's

legal authority or color of authority stems from section 39.395:

Any person in charge of a hospital or similar institution, or

any physician or licensed health care professional treating a

child may detain that child without the consent of the parents,

caregiver, or legal custodian, whether or not additional

medical treatment is required, if the circumstances are such,

or if the condition of the child is such that returning the child to

the care or custody of the parents, caregiver, or legal custodian

presents an imminent danger to the child's life or physical or

mental health.

(Emphasis added.) We are mindful that section 39.395 also requires that

"[a]ny such person detaining a child shall immediately notify the

[D]epartment" and that "the [D]epartment shall immediately begin a child

protective investigation in accordance with the provision of this chapter."

Beyond the initial detention and reporting to the Department, the

22

legislature has placed no burden on the person detaining the child;

instead, it has placed the burden on the Department:

If the department determines, according to the criteria set

forth in this chapter, that the child should be detained longer

than 24 hours, it shall petition the court through the attorney

representing the Department of Children and Families as

quickly as possible and not to exceed 24 hours, for an order

authorizing such custody in the same manner as if the child

were placed in a shelter.

Id. Certainly, section 39.395 provides color of authority for JHACH's

detention of Maya in the ER and PICU during the period between the first

and second reports to the Department. And following the second report,

on October 9, 2016, the Department instituted its investigation.

Moreover, JHACH's actions were authorized or required by chapter

39, and there is no evidence that its participation was not in good faith,

particularly where the trial court concluded as a matter of law that

JHACH had reasonable cause to suspect child abuse. As such, JHACH

is immune from liability resulting from its detention of Maya between

October 7 and October 13, 2016.

Accordingly, JHACH's motion for directed verdict on the claim of

false imprisonment for the period of October 7 through October 13, 2016,

should have been granted.15

D. Intentional infliction of emotional distress: Beata Kowalski

Two claims of intentional infliction of emotional distress (IIED)

specific to Beata Kowalski were resolved by the jury in favor of the

Kowalskis after the trial court denied JHACH's motions for directed

verdicts. JHACH contends that its motions for directed verdicts should

15 JHACH's issue concerning the corresponding motion for directed

verdict on punitive damages is therefore rendered moot.

23

have been granted because the Kowalskis failed to present evidence of

conduct directed at Mrs. Kowalski and the Kowalskis' evidence was

insufficient as a matter of law. We agree.16

To support a claim for IIED, a plaintiff must prove:

(1) the wrongdoer's conduct was intentional or reckless, that

is, he intended his behavior when he knew or should have

known that emotional distress would likely result;

(2) the conduct was outrageous, that is, as to go beyond all

bounds of decency, and to be regarded as odious and utterly

intolerable in a civilized community;

(3) the conduct caused emotional distress; and

(4) the emotional distress was severe.

Glegg v. Van Den Hurk, 379 So. 3d 1171, 1174 (Fla. 4th DCA 2024)

(quoting Brown v. Brown, 800 So. 2d 359, 362-63 (Fla. 4th DCA 2001));

accord Metro. Life Ins. v. McCarson, 467 So. 2d 277, 278-79 (Fla. 1985)

(quoting Restatement (Second) of Torts § 46 (1965)). The trial court must

make the initial determination on a motion for directed verdict that the

evidence presented meets that high standard. Liberty Mut. Ins. v.

Steadman, 968 So. 2d 592, 595 n.1 (Fla. 2d DCA 2007); see Calvert ex.

rel. Est. of Duckett v. Cable News Network LLLP, No. 5:06-CV-444-OC-

10GRJ, 2008 WL 2959753, at *4 (M.D. Fla. July 31, 2008) ("Pleading a

cause of action for intentional infliction of emotional distress is one

thing, avoiding summary judgment or prevailing at trial is quite

another."). And "because the outrageousness test is objective," testimony

as to the plaintiff's beliefs on whether the defendant intended to cause

emotional distress is "of no moment." Mellette v. Trinity Mem'l Cemetery,

Inc., 95 So. 3d 1043, 1049 (Fla. 2d DCA 2012). Likewise, "the subjective

16 We therefore decline to address JHACH's argument that Florida

does not recognize IIED suicide.

24

response of the person who is the target of the actor's conduct does not

control the question of whether the tort of intentional infliction of

emotional distress occurred." Steadman, 968 So. 2d at 595 (citing

Ponton v. Scarfone, 468 So. 2d 1009, 1011 (Fla. 2d DCA 1985)).

As relevant to the Estate's IIED claims, "in order to state a claim for

IIED based on [one's] own emotional distress, a plaintiff must be present

when the alleged extreme and outrageous conducted is directed toward a

third party." Buchanan v. Miami-Dade County, 400 So. 3d 684, 686 (Fla.

3d DCA 2024); see also M.M. v. M.P.S., 556 So. 2d 1140, 1141 (Fla. 3d

DCA 1989) ("Appellants were not present when the alleged mistreatment

of their daughter took place and may not claim emotional distress for her

injurious or offensive treatment."). Otherwise, the conduct alleged to be

outrageous must be directed at the plaintiff. Baker v. Fitzgerald, 573 So.

2d 873, 873 (Fla. 3d DCA 1990) ("Appellant's claim for intentional

infliction of emotional distress fails because there was no showing of

outrageous conduct directed at appellant herself."); Habelow v. Travelers

Ins., 389 So. 2d 218, 220 (Fla. 5th DCA 1980) ("In all cases we have

found in Florida recognizing the tort of intentional infliction of emotional

distress, the plaintiff was the recipient of the insult or abuse, or the

message was clearly directed at the plaintiff through a third person."

(emphasis added)). Stated differently, if the plaintiff is not present to

witness the outrageous conduct, the plaintiff must have been the target

of the outrageous conduct. See Steadman, 968 So. 2d at 595 (citing

Ponton, 468 So. 2d at 1011).

The Kowalskis presented no evidence that Mrs. Kowalski was the

target of any of the conduct alleged to be outrageous; rather, the heart of

the Kowalskis' claim, repeated in various ways throughout multiple

bench conferences and asserted before the jury, was that the "separation

25

of mother from child with knowledge by both and without the ability to

combat it" was outrageous. The Kowalskis argued: "[A] plan that is told

to the mother that we're going to take away your child, and there's

nothing you can do about it"; "the real outrageousness is the systematic

nature of the actions against [Mrs. Kowalski] through this. And

everything—every contact that she had and everything she learned

reenforced that there was a plan to take her daughter away, and that is

outrageous in our society."

The Kowalskis contended that there were concerted efforts to "raise

the pressure" on Mrs. Kowalski—"if this doesn't get her, let's suggest that

[Mr. Kowalski] get a divorce. And if this doesn't get her, let's tell [Maya]

that I'm going to be her mother." The Kowalskis acknowledged that

"these statements were not made directly to [Mrs. Kowalski] because she

wasn't allowed in the hospital but were funneled to [her] through a proxy,

which was her child" or her husband. That Mr. Kowalski or Maya

relayed what they had seen or experienced is not evidence that JHACH's

actions were directed to Mrs. Kowalski. And there was no evidence that

Mrs. Kowalski was somehow the target of statements made to either

Maya or Mr. Kowalski. Cf. De La Campa v. Grifols Am., Inc., 819 So. 2d

940, 943-44 (Fla. 3d DCA 2002); Lashley v. Bowman, 561 So. 2d 406,

409 (Fla. 5th DCA 1990).

Moreover, the trial court recognized that the allegations in the

operative complaint were insufficient when it granted JHACH's pretrial

motion to dismiss the IIED claim as to Mr. Kowalski. With the exception

of actions immune under section 39.203(1)(a) and the assertion that Mrs.

Kowalski suffered from Munchausen syndrome by proxy, there is little

difference between the allegations the trial court found legally insufficient

26

as to Mr. Kowalski's claim and the evidence presented as to the Estate's

claims.

The Kowalskis' evidence was legally insufficient to survive directed

verdict. The motions for directed verdicts on the IIED claims specific to

Mrs. Kowalski should have been granted.

E. Intentional infliction of emotional distress: Maya Kowalski

In denying JHACH's motion for directed verdict specific to Maya's

IIED claim, the trial court considered evidence for which JHACH should

have been immune from liability and evidence of other pleaded torts.

This was error.

We reiterate that the actions for which JHACH should have been

immune pursuant to section 39.203(1)(a) cannot be used to establish

liability. The Department placed Maya with JHACH. JHACH's

participation in the chapter 39 proceedings, as well as its initial reports

of suspected child abuse to the Department, pervaded the Kowalskis'

evidence of intentional infliction of emotional distress against Maya. The

trial court was required to consider which of JHACH's actions should

have been immune from liability and which actions could support the

independently pleaded tort of IIED. Medical professionals' disagreements

about a complex medical case and perhaps overzealous implementation

of dependency court orders are not acts that are "intolerable in a civilized

community." Cf. Gonzalez-Jiminez de Ruiz v. United States, 378 F.3d

1229, 1231 (11th Cir. 2004) ("[T]he rendering of substandard medical

care does not constitute the intentional infliction of emotional distress."

(quoting Gonzalez–Jimenez de Ruiz v. United States, 231 F. Supp. 2d

1187, 1200 (M.D. Fla. 2002))). Good faith actions to protect children are

neither "utterly intolerable in a civilized community" nor "beyond all

possible bounds of decency." Indeed, section 39.203(1)(a) immunity

27

"protect[s] those who might be overzealous in protecting children from

potential abuse." See Floyd, 855 So. 2d at 206. To the extent JHACH

took actions within its legal rights, under chapter 39 or otherwise, it

cannot be liable for IIED. See Canto v. J.B. Ivey & Co., 595 So. 2d 1025,

1028 (Fla. 1st DCA 1992) ("A privilege exists as a matter of law to engage

in reckless or even outrageous conduct if there is sufficient evidence that

shows the defendant 'did no more than assert legal rights in a legally

permissible way.' " (quoting Metro. Life Ins., 467 So. 2d at 279)).

Additionally, IIED conduct must not be "violative of any other

recognized tort." Foshee v. Health Mgmt. Assocs., 675 So. 2d 957, 960

(Fla. 5th DCA 1996). That is, the facts upon which it is based must be

independent of any other alleged tort. See id. ("Because the actions of

the chargeable defendants here can be deemed to fit within the false

imprisonment category those actions will not support a claim of

intentional infliction of emotional distress."); cf. Fridovich v. Fridovich,

598 So. 2d 65, 69-70 (Fla. 1992) ("Obviously, if the sole basis of a

complaint for emotional distress is a privileged defamatory statement,

then no separate cause of action exists. . . . [A] plaintiff cannot

transform a defamation action into a claim for intentional infliction of

emotional distress simply by characterizing the alleged defamatory

statements as 'outrageous.' " (citation omitted)). Where the conduct

alleged to be outrageous is itself a pleaded tort, a claim of IIED cannot

lie. Boyles v. Mid-Fla. Television Corp., 431 So. 2d 627, 636 (Fla. 5th

DCA 1983). Here, the Kowalskis relied upon evidence of other pleaded

torts in order to establish the IIED claim. The law is clear, however, that

the evidence supporting Maya's three false imprisonment claims, as well

28

as her battery claims and medical negligence claim, cannot also be used

to meet the legal threshold for her IIED claim. 17

F. Medical negligence: apparent agency

JHACH contends that the trial court erred in denying its motion for

directed verdict on the narrow issue of apparent agency as it relates to

Dr. Smith and that chapter 39 otherwise immunizes Dr. Smith's actions

such that JHACH cannot be held liable for those actions. We agree.

"An apparent agency exists only if all three of the following

elements are present: (a) a representation by the purported principal; (b)

a reliance on that representation by a third party; and (c) a change in

position by the third party in reliance on the representation." Roessler v.

Novak, 858 So. 2d 1158, 1161-62 (Fla. 2d DCA 2003) (citing Mobil Oil

Corp. v. Bransford, 648 So. 2d 119, 121 (Fla. 1995)).

Mr. Kowalski testified that he was unaware that Dr. Smith was not

a JHACH doctor at the time he first met her, but he could not specify the

date. He testified that she was wearing a white lab coat when she came

into Maya's room and started asking questions. Maya testified that she

17 Further, evidence supporting the negligent hiring and

supervision claim cannot be used. That claim was resolved in favor of

JHACH. And while the Kowalskis argued that "[t]he evidence taken as a

whole indicates that there was a desire and plan on the part of [Ms.]

Bedy to separate [Maya] from [Mrs. Kowalski]" and that "[t]here was a

plan by the hospital to force [Mrs. Kowalski] and [Maya] . . . and [Mr.

Kowalski] to change their story," to the extent that such evidence is not

subject to section 39.203(1)(a) immunity, there is no evidence of any

such concerted effort. Cf. Mellette, 95 So. 3d at 1049 (concluding that

plaintiff's testimony as to her beliefs on whether defendant intended to

hurt her was "of no moment"); Ponton, 468 So. 2d at 1011 ("[T]he

subjective response of the person who is the target of the actor's conduct

is not to control the question of whether the tort [of IIED] occurred.").

Moreover, the trial court granted summary judgment in favor of JHACH

on the Kowalskis' conspiracy claim pretrial.

29

was unaware of who Dr. Smith was or in what capacity she questioned

Maya's father. An email dated October 12, 2016, from Mrs. Kowalski's

email address was entered into evidence. In the email, Mrs. Kowalski

reported that on October 11, 2016, she and Dr. Sally Smith, "who was

sent by [the Department] to investigate th[e] possible child

abuse/neglect," had a second visit at which Mrs. Kowalski described

Maya's illness and the doctors involved in Maya's care.

Thus no later than October 11, 2016, Mrs. Kowalski was aware

that Dr. Smith was acting in her capacity as a Child Protective Team

(CPT) physician. And certainly, by the October 14 shelter hearing, Mr.

Kowalski was also aware. The Kowalskis presented no evidence that they

materially changed their position prior to October 11 or October 14 on

the basis of Dr. Smith being an apparent agent of JHACH. Rather, the

Kowalskis acknowledge that they were unaware that JHACH had given

Dr. Smith full access to Maya's medical records at the time such access

was provided. The apparent agency theory should have been rejected as

a matter of law by the trial court, and a directed verdict as to that

specific claim should have been granted.

Nonetheless, even were Dr. Smith an apparent agent of the

hospital, because Dr. Smith was the CPT medical director, she was

authorized by chapter 39 to take the actions that she took. See generally

§§ 39.303, .407. Her actions would not subject JHACH to liability unless

JHACH was not participating in good faith in acts authorized by chapter

39. It was the Kowalskis' burden to prove either that JHACH was not

participating in good faith in authorized or required acts or that Dr.

Smith was not acting in her capacity as the CPT medical director. In

admitting evidence of Dr. Smith's actions without proper consideration of

30

the statutory immunity, the trial court relieved the Kowalskis of their

burden.

G. Punitive damages

JHACH contends that the trial court erred in denying its motion for

directed verdict on the issue of punitive damages as to the false

imprisonment and battery claims.18

"In all civil actions, the plaintiff must establish at trial, by clear and

convincing evidence, its entitlement to an award of punitive damages."

§ 768.725, Fla. Stat. (2023). And "[a] defendant may be held liable for

punitive damages only if the trier of fact, based on clear and convincing

evidence, finds that the defendant was personally guilty of intentional

misconduct or gross negligence." § 768.72(2). Clear and convincing

evidence, an intermediate burden of proof,

requires that the evidence must be found to be credible; the

facts to which the witnesses testify must be distinctly

remembered; the testimony must be precise and explicit and

the witnesses must be lacking in confusion as to the facts in

issue. The evidence must be of such weight that it produces

in the mind of the trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the allegations sought to

be established.

S. Fla. Water Mgmt. Dist. v. RLI Live Oak, LLC, 139 So. 3d 869, 872 (Fla.

2014) (emphasis added) (quoting Inquiry Concerning a Judge, 645 So. 2d

398, 404 (Fla. 1994)).

18 Although our reversal of the judgment as to the October 7

through October 13 false imprisonment claim moots the issue specific to

that claim, we would have otherwise concluded that directed verdict was

warranted as to punitive damages because JHACH's actions during that

period do not meet the definition of either intentional misconduct or

gross negligence.

31

"In the case of an employer, principal, corporation, or other legal

entity, punitive damages may be imposed for the conduct of an employee

or agent only if the conduct of the employee or agent" constitutes

intentional misconduct or gross negligence and

(a) The employer, principal, corporation or other legal entity

actively and knowingly participated in such conduct;

(b) The officers, directors, or managers of the employers,

principal, corporation, or other legal entity knowingly

condoned, ratified, or consented to such conduct; or

(c) The employer, principal, corporation, or other legal entity

engaged in conduct that constituted gross negligence and

that contributed to the loss, damages, or injury suffered by

the claimant.

§ 768.72(3).

"Intentional misconduct" is defined as a "defendant ha[ving] actual

knowledge of the wrongfulness of the conduct and the high probability

that injury or damage to the claimant would result and, despite that

knowledge, intentionally pursu[ing] that course of conduct, resulting in

injury or damage." § 768.72(2)(a). "Gross negligence" is defined as

conduct "so reckless or wanting in care that it constituted a conscious

disregard or indifference to the life, safety, or rights of persons exposed to

such conduct." § 768.72(2)(b).

As to the January 6 battery and false imprisonment claims, Ms.

Bedy testified that she was told to take photographs of Maya before Maya

could leave the hospital for the dependency court hearing. The

Kowalskis presented evidence that a risk management analyst within the

risk management department of JHACH directed the actions on January

6. Evidence established that it was JHACH's policy that the risk

management department reports to senior counsel and then senior

32

counsel reports to the president of JHACH.19 Cf. Fla. Power & Light Co.

v. Dominguez, 295 So. 3d 1202, 1206 (Fla. 2d DCA 2019) (noting that a

midlevel employee had a manager of his own to whom he reported);

Fetlar, LLC v. Suarez, 230 So. 3d 97, 100 (Fla. 3d DCA 2017)

("[C]onstruction managers, superintendents, [and] construction workers .

. . were not, on the record before us, officers or managing members of the

limited liability companies . . . .").

There was no clear and convincing evidence that JHACH actively

and knowingly participated in or engaged in intentional misconduct or

gross negligence. See Dominguez, 295 So. 3d at 1205 ("[A] managing

agent is an individual like a 'president [or] primary owner' who holds a

'position with the corporation which might result in his acts being

deemed the acts of the corporation.' " (second alteration in original)

(quoting Taylor v. Gunter Trucking Co., 520 So. 2d 624, 625 (Fla. 1st DCA

1988))); cf. Fed. Ins. v. Perlmutter, 376 So. 3d 24, 38 (Fla. 4th DCA 2023)

(plaintiff failed to present evidence establishing that defendant's

employees held positions as corporate policymakers "which might result

in conduct deemed to be" the defendant corporation's acts), review

granted, No. SC2024-0058, 2024 WL 4948685 (Fla. Dec. 3, 2024); Grove

Isle Ass'n v. Lindzon, 350 So. 3d 826, 831 (Fla. 3d DCA 2022) (identifying

officer, director, or managing member as the requisite position in order

for the action to have been taken by the corporation).

Likewise, there was no clear and convincing evidence that the

actions in question in this case were relayed to senior counsel or to the

CEO, much less that anyone ratified or condoned the actions other than

19 There was also evidence that JHACH's risk management

committee does not "function in real-time decisions" and meets only

quarterly.

33

the risk management analyst. " '[B]efore one may infer that a principal

ratified an unauthorized act of his agent, the evidence must demonstrate

that the principal was [f]ully informed'—beyond having simple

constructive knowledge—'and that he approved of the act.' " Cleveland

Clinic Fla. Health Sys. Nonprofit Corp. v. Oriolo, 357 So. 3d 703, 707 (Fla.

4th DCA 2023) (second alteration in original) (quoting Bach v. Fla. State

Bd. of Dentistry, 378 So. 2d 34, 36 (Fla. 1st DCA 1979)); cf. Orlando

Health, Inc. v. Mohan, 387 So. 3d 477, 481 (Fla. 5th DCA 2024). And

there was no evidence that a risk management analysist satisfies the

statutory requirement of "officer, director, or manager of employees."

Finally, to the extent that the Kowalskis argued ratification after the fact,

"actions taken after the happening of a tortious act are not admissible on

the issue of punitive damages, nor can those subsequent actions form

the basis for bringing such a damage claim." Oriolo, 357 So. 3d at 707.

In the absence of clear and convincing evidence, the issue of punitive

damages should not have gone to the jury.

As to the October 18 through October 20 false imprisonment claim,

there was no evidence that the physicians involved in moving Maya to

the EEG room had actual knowledge of the wrongfulness of the conduct

or that moving Maya into the room with video monitoring was reckless or

wanting in care. Further, like the claims for the January 6 false

imprisonment and battery, there was no evidence presented that JHACH

participated in the actions or that the officers, directors, or managers of

JHACH condoned or ratified the conduct. Cf. McLane Foodservice Inc. v.

Wool, 400 So. 3d 757, 763 (Fla. 3d DCA 2024) ("[T]he admission that

Wool has no idea if management (at any level) was ever notified of the

calls and emails destroys any basis to ground a claim for punitive

damages against McLane Foodservice. . . . Wool makes no allegation that

34

any managing agent of the employer was aware of customer complaints

regarding the stacking of boxes at her restaurant location, let alone that

they endorsed, approved, or willfully disregarded any unreasonable

risk."); Hosp. Specialists, P.A. v. Deen, 373 So. 3d 1283, 1290 (Fla. 5th

DCA 2023) (concluding that there was insufficient record evidence to

establish that treating physician "knew that there was a high probability

that additional injury or damage" would result to patient or that treating

physician, as president of hospital, condoned or ratified actions taken).

The trial court erred in submitting the punitive damages claims to

the jury.

H. Fraudulent billing

The trial court denied JHACH's motion for directed verdict on Mr.

Kowalski's claim that JHACH fraudulently billed the Kowalskis' health

insurance carrier by using a billing code for CRPS. To survive directed

verdict, Mr. Kowalski had to establish that JHACH made a false

statement concerning a material fact in the bills to Mr. Kowalski and his

insurance company, that JHACH knew the statement was false when it

made it, that JHACH intended that Mr. Kowalski or his insurer would

rely upon the false statement, and that Mr. Kowalski or his insurer was

injured as a result of that reliance. See Butler v. Yusem, 44 So. 3d 102,

105 (Fla. 2010) ("[T]here are four elements of fraudulent

misrepresentation: (1) a false statement concerning a material fact; (2)

the representor's knowledge that the representation is false; (3) an

intention that the representation induce another to act on it; and (4)

consequent injury by the party acting in reliance on the representation."

(quoting Johnson v. Davis, 480 So. 2d 625, 627 (Fla. 1985))). "Generally

speaking, to satisfy the element of an injury, the claimant must establish

that he or she has sustained pecuniary damage or injury by which he or

35

she has been placed in a worse position than he or she would have been

absent the fraud." Hoy, 136 So. 3d at 651 (citing 37 C.J.S. Fraud § 68

(2013)).

JHACH contends that the trial court erred in denying its motion for

directed verdict where Mr. Kowalski presented no evidence that JHACH

made a false statement of material fact in billing Mr. Kowalski's

insurance carrier under a code for CRPS and he presented no evidence of

damages. We agree.

There is no dispute that Maya was admitted to JHACH having

already been diagnosed with CRPS by another physician. The dispute

concerns JHACH's billing of the Kowalskis' insurer where, according to

Mr. Kowalski, the hospital did not believe that Maya had CRPS and did

not treat Maya for CRPS. Evidence of JHACH's billing was introduced, as

was evidence of payments by the insurer. However, Mr. Kowalski

presented no evidence that JHACH's bills included false statements.

That is, Mr. Kowalski presented no evidence that JHACH billed for

services or treatments it did not perform or that it billed under a

diagnosis that Maya did not have. JHACH's bills included as many as

twelve diagnosis codes, and Mr. Kowalski was unable to testify what

percentage of the insurer reimbursement was for CRPS versus the other

codes, including nutrition, endoscopy, and child neglect/abandonment.

Further, Mr. Kowalski presented no evidence that he suffered

pecuniary injury for the alleged fraudulent billing; he presented no

evidence that he was billed for treatment, whether as deductible, copay,

or balance payment, that was associated with a CRPS diagnosis. In fact,

Mr. Kowalski concedes in this appeal that "[n]o damages in the form of

increased co-pays, premiums or deductibles were proven at trial."

36

Moreover, in closing argument, counsel for Mr. Kowalski suggested

that the jurors award $1 in nominal damages for this claim unless they

found evidence of an increase in insurance costs or copays. Postverdict,

Mr. Kowalski agreed to remit the jury award to $2 because Mr. Kowalski

requested damages only for "deductibles or co-pays incurred" and

"difficulty of finding insurance in the future" in the operative complaint

and such damages were not proven. Where the claimant "is unable to

prove that he or she was injured by the alleged misrepresentation, the

trial court must grant a directed verdict on the claim." Hoy, 136 So. 3d

at 651.20

The trial court erred in denying JHACH's motion for directed verdict

on this claim.

I. New trial

The complexities in this case are only more complicated by the

existence of immunity pursuant to section 39.203(1)(a). JHACH

contends, as it did below, that the trial court's error in interpreting

section 39.203 pervades not only the court's evidentiary rulings but the

trial itself such that a new trial on all remaining counts is necessary. 21

20 Despite the concession that no pecuniary damages for fraudulent

billing were proven at trial, counsel for the Kowalskis suggests that the

trial court correctly denied the motion for directed verdict because "[t]he

jury was entitled to consider Mr. Kowalski's loss of Mrs. Kowalski as

billing fraud damages" and "Mr. Kowalski's loss of Mrs. Kowalski would

have reasonably supported a verdict of five million dollars for billing

fraud." No authority is cited for this argument, and we have found no

basis in the law to support it.

21 We do not address whether those claims survive on remand

under a correct application of section 39.203(1)(a) immunity or

otherwise. We would exceed our function were we to give an opinion on

the merits of any of the claims for which a new trial is required; it is

incumbent upon the parties to present the case anew and for the trial

37

As discussed herein, we agree. Moreover, "[t]he totality of all errors and

improprieties, including those not discussed herein, was pervasive

enough to raise doubts as to the overall fairness of the trial court

proceedings." Manhardt, 832 So. 2d at 132.22

III. Conclusion

The final judgment in favor of the Kowalskis is reversed. On

remand, only the IIED claim brought on behalf of Maya and the

remaining false imprisonment, battery, and medical negligence claims

may be retried.

Reversed and remanded with instructions.

LaROSE, J., Concurs.

SMITH, J., Concurs specially.

SMITH, Judge, Specially concurring.

I concur in the majority opinion but write separately to elaborate on

the discrete issue of whether JHACH was entitled to judgment as a

matter of law on the threshold issue of "outrageousness" on Maya's claim

for intentional infliction of emotional distress (IIED).

Maya, age ten, presented to the hospital with a pain score of ten

out of ten. Ms. Bedy, a licensed clinical social worker employed by the

court to rule on the evidence and issues arising therefrom and presented

to it. Cf. DiMare, Inc. v. Robertson, 758 So. 2d 1193, 1194 (Fla. 3d DCA

2000) ("We decline to address events which may or may not occur at the

retrial of this case."); Marsh v. State, 112 So. 2d 60, 63 (Fla. 1st DCA

1959) (Sturgis, C.J., concurring) ("The new trial, which our action

envisions, should be neither prejudiced nor watered down by . . . obiter

dicta . . . .").

22 We need not address every argument raised by JHACH on appeal

in order to reverse for a new trial, and nothing in this opinion should be

construed as a determination on the merits of the unreached issues.

38

hospital, was in charge of overseeing and making sure that JHACH

followed the dependency court orders, including the monitoring of

hospital visits and phone conversations with Maya's friends and family,

including her mother. Ms. Bedy spent considerable time with Maya,

overseeing her care, including her physical therapy and taking Maya to

the hospital chapel. She testified that Maya was in her wheelchair

ninety-five percent of the time that she saw her. She also testified that

Maya told her that "she was furious, angry, and in pain. She told Ms.

Bedy she can't talk [to] or trust anyone." Ms. Bedy was privy to emails

that highlighted the hospital's concerns that Maya was "self-mutilating."

Maya maintained throughout her stay in the hospital that she was in

debilitating pain and testified that she was worse off at the time of her

discharge than when she presented to the hospital. Maya also

complained that her CRPS lesions returned while she was in the hospital

and were causing her pain. This is all to say that Maya was a patient, in

pain, in a vulnerable state—not only because she was a patient dealing

with debilitating pain, but also because of her tender age of ten.

From this evidence, a case was made by Maya that Ms. Bedy took

advantage of Maya's circumstances and her vulnerable state; she lied to

Maya that Maya's mother was getting mental health treatment, telling

Maya that she may have to go into medical foster care and that Ms. Bedy

could be her mother while she was in foster care. She further lied to

Maya and used things that Maya enjoyed to encourage Maya to do better

at physical therapy, but instead of rewarding her she would stomp and

leave the room saying that Maya did not do well enough.

Maya also established at trial, through her own testimony, that the

nurses spoke loud enough for Maya to overhear that they believed that

her mom was causing her symptoms. Maya testified that the nurses

39

berated her and accused her of faking her ailments. She stated that a

bedside toilet was placed far from her bed so that she could not reach it

without walking—which she could not do. Maya would call for help to go

to the bathroom, but no one would come in and take her, so she was

forced to wet or soil herself in bed or otherwise fall and injure herself.

Maya testified that the statements and actions of the nurses and Ms.

Bedy were done to break her down and prove and/or force her to admit

that she was faking her symptoms.

Maya pleaded, in her eighth amended complaint, an IIED claim,

alleging these behaviors caused severe emotional distress and bodily

harm. The complaint specifically referenced Maya's vulnerability as a

minor while she was a patient at JHACH, alleging: "The Defendants'

offenses are aggravated by the fact that Maya was a minor during the

time of this outrageous conduct."

The tort of IIED was first recognized by the Florida Supreme Court

in Metropolitan Life Insurance v. McCarson, 467 So. 2d 277, 278 (Fla.

1985). In Metropolitan, the court set out the four-part test as defined by

section 46, Restatement (Second) of Torts (1965): (1) deliberate or

reckless infliction of mental suffering; (2) outrageous conduct; (3) the

conduct caused the emotional distress; and (4) the distress was severe.

This appeal concerns prong two as discussed in the initial brief and

majority opinion, and so I only address this prong.

Florida courts have long recognized severe emotional distress

claims by vulnerable individuals under section 46, Restatement (Second)

of Torts (1965). Prior to Metropolitan, the Third District recognized that

statements to a child of "tender years" can cause severe emotional

distress under section 46. See Korbin v. Berlin, 177 So. 2d 551, 553 (Fla.

3d DCA 1965). In Korbin, the court reversed the dismissal of a severe

40

emotional distress claim brought under section 46 of the Restatement of

the Law of Torts (1948 supplement) by a guardian on behalf of a six-year-

old child against the defendant. Id. at 552-53. The defendant was

alleged to have approached the child and said "Do you know that your

mother took a man away from his wife? Do you know God is going to

punish them? Do you know that a man is sleeping in your mother's

room? . . . God will punish them." The question posed by the court was

"whether what was said to the child was intended or reasonably

calculated to cause the child 'severe emotional distress.' " Id. at 553.

The court answered that question in the affirmative, holding:

The alleged statements and the manner and circumstances

under which they were communicated . . . to the child leave

little room to doubt they were made with a purpose and intent

to shame her, and to shock the sensibilities of this child of

tender years. Relating, as they did, to the child's mother, the

content and import of the statements were such that it

cannot be said as a matter of law that this alleged deliberately

harmful act was not one "calculated to cause 'severe

emotional distress' to a person [child] of ordinary

sensibilities."

Id. (alteration in original).

Following Metropolitan, the Fifth District, in McAlpin v. Sokolay, 596

So. 2d 1266 (Fla. 5th DCA 1992), recognized an IIED claim by a

vulnerable patient against a health care provider. In McAlpin, the

complaint alleged that the adult patient went to the hospital for an x-ray

for her swallowing condition that caused speech difficulty and panic

during attacks. Id. at 1267. Upon entering the x-ray area, the patient

was verbally assaulted by a hospital physician who claimed that because

the patient owed the physician's friend money, the patient would not pay

the hospital bill; the physician threatened to have the patient removed

from the hospital. Id. The complaint further alleged that the "actions of

41

[the physician] were designed and did take advantage of the vulnerability

of [the patient], submitting as she was to diagnostic tests while in fear for

her health and depending for comfort and solace upon the caring and

supporting atmosphere to be generated by [the hospital]." Id. at 1268.

The trial court in McAlpin granted the physician's motion to dismiss

with prejudice, finding that the physician's demand for the patient to pay

the friend's bill, while "albeit not a favored method," was not sufficiently

outrageous to rise to the level of an IIED claim. Id. at 1269. The Fifth

District disagreed, holding that "the allegations of the complaint, if

proved, support [the patient's] argument that a jury as the trier of fact

could find that the [physician's] conduct was reckless and utterly

outrageous in a civilized community. . . . [The physician] acted in

deliberate disregard of the high degree of probability that emotional

distress would follow." Id. at 1269 (citing Restatement (Second) of Torts

§ 46 comment I (1965)). In so holding, the district court reversed the

dismissal of the IIED claim, recognizing the special relationship between

a physician and a patient and that the actions of the physician met "the

threshold test of extreme conduct which would cause an average member

of the community to exclaim, 'Outrageous!' " Id. at 1270.

This court has indeed held that "[t]he extreme and outrageous

character of the conduct may arise from the actor's knowledge that the

other is peculiarly susceptible to emotional distress, by reason of some

physical or mental condition or peculiarity." Liberty Mutual Insurance v.

Steadman, 968 So. 2d 592, 595 (Fla. 2d DCA 2007) (quoting Restatement

(Second) of Torts § 46 comment f). In Steadman, this court found

instructive comment "f" to section 46 of the Restatement (Second) of

Torts, "because it explains how knowledge of a person's particular

susceptibility to emotional distress is relevant to determining whether

42

the conduct is sufficiently extreme and outrageous to constitute

intentional infliction of emotional distress." Id.; see also Anderson v.

Prease, 445 A.2d 612, 613 (D.C. 1982) (affirming judgment for plaintiff

following a bench trial where physician cursed and screamed at patient,

who was known by the physician to be susceptible to emotional distress).

Comment "f" reads:

The extreme and outrageous character of the conduct may

arise from the actor's knowledge that the other is peculiarly

susceptible to emotional distress, by reason of some physical

or mental condition or peculiarity. The conduct may become

heartless, flagrant, and outrageous when the actor proceeds

in the face of such knowledge, where it would not be so if he

did not know. It must be emphasized again, however, that

major outrage is essential to the tort; and the mere fact that

the actor knows that the other will regard the conduct as

insulting, or will have his feelings hurt, is not enough.

Steadman, 968 So. 2d at 595-96. The Steadman court viewed the facts

of that case collectively and not in isolation, holding that the actions of

the insurance company delaying the authorization of the insured's

double lung transplant was outrageous where it was ordered by the

Judge of Compensation Claims to pay the claim but delayed payment

knowing that the insured would not outlive the delay, and it would not

have to pay. Id. at 595.

We must acknowledge that the "unequal position of the parties in a

relationship, where one asserts and has the power to affect the interests

of the other, may also supply the heightened degree of outrageousness

required for a claim of" IIED. Id. at 596. IIED claims exist where one is

susceptible to emotional distress or due to the unequal positions of the

parties and this was raised by the Kowalskis in the eighth amended

complaint. Specifically, the complaint asserted that Maya, aged ten, was

sheltered and placed in the care and custody of JHACH, that JHACH was

43

charged with "looking out for the best interests of Maya while in their

care," and that Maya was isolated from her family, friends, schoolmates,

and priest. I believe the allegations pleaded in the eighth amended

complaint, and as more fully developed at trial, support Maya's theory of

recovery for IIED under both comment "f" and "i" of section 46,

Restatement (Second) of Torts. What is "odious and utterly intolerable in

a civilized community" about the conduct here is that a licensed social

worker in charge of the care of her patient should not lie and tell her

patient, especially a patient of such a young age, that her mother, who

has cared for her, is getting mental health treatment and will not be able

to care for her in the near future, instead consoling the child that she

will be fine in foster care where that social worker can be her mother.

Further, the berating by the nurses that Maya was faking her symptoms

is equally "odious and utterly intolerable in a civilized community,"

especially given Maya's physical condition and their knowing that Maya

believed herself to be suffering from CRPS.

Just as the patient in McAlpin went to the physician for an x-ray for

her medical problems and instead received verbal abuse, Maya too went

to the hospital for debilitating pain and treatment, only to be broken

down, mentally abused, and berated by Ms. Bedy and the hospital

nurses who were in a position to facilitate her care and treatment. Based

upon Maya's mental and physical condition, Ms. Bedy and the nurses

acted in deliberate disregard of the high degree of probability that

emotional distress would follow. The common thread amongst the cases

upholding the "outrageousness" prong is the shockingness of the

statement(s) given the unique circumstances in which those statements

were made.

44

It is my opinion the trial judge will have to weigh whether or not

some of the facts that fall within the chapter 39 immunity would be

relevant and admissible on retrial as they relate to Maya's IIED claims.

When considering a claim for IIED, the facts of that specific case must be

considered. See Thomas v. Hosp. Bd. of Directors of Lee Cnty., 41 So. 3d

246, 256 (Fla. 2d DCA 2010) (applying the facts of that specific case to

reverse the dismissal of an IIED claim, holding "in a situation where a

person's loved one has died, it would be apparent to anyone that the

person would be susceptible to emotional distress and, therefore, that

the action of providing false information concerning the loved one's cause

of death meets the standard for" an IIED claim); see also Williams v. City

of Minneola, 575 So. 2d 683, 691 (Fla. 5th DCA 1991) (noting that there

are times where "behavior which in other circumstances might be merely

insulting, frivolous, or careless becomes indecent, outrageous and

intolerable").

While I agree that some of the actions taken by Ms. Bedy, the

nurses, and others related to JHACH are entitled to immunity under

chapter 39 and that the battery, false imprisonment, and medical

malpractice claims cannot be used to meet the legal threshold for Maya's

IIED claim, I also agree with the argument raised by Maya in her brief

that "[c]hapter 39 did not authorize or protect [acts of intentional

infliction of emotional distress]—especially when committed by

healthcare provider, to whom vulnerable people look for care."

(Emphasis added.) And I believe that some of the information related to

Maya's shelter and the dependency court's orders would be relevant and

admissible to the extent that information is required to give the jury a

full picture of the circumstances at the time. It is hard to imagine a

civilized community that accepts the actions of Ms. Bedy, a licensed

45

social worker, and the nurses as "good faith" participation in the

requirements of chapter 39. To be sure, JHACH makes no attempt to

cast such a broad net to include these actions as privileged under

chapter 39, and, in fact, agreed at oral argument that the chapter 39

immunity was not absolute.

However, even after stripping Maya's IIED allegations of the

offending claims and immunity-entitled evidence, there remains

competent substantial evidence supporting the trial court's finding that

Maya's IIED claim met the high bar of "outrageousness."23

These health care providers were in charge of caring for and

treating Maya. Instead, they exploited their positions with full knowledge

that Maya, a ten-year-old child, would not be able to endure such

outrageous conduct and undoubtedly suffer severe emotional distress as

a result.

The cases finding conduct outrageous are no different than the

actions taken in Maya's case. In fact, Maya's case, given her vulnerable

age paired with her special relationship as a patient under the care of

Ms. Bedy and the nurses, is a more compelling one "which would cause

an average member of the community to exclaim, 'Outrageous!' " See

McAlpin, 596 So. 2d at 1270.

23 JHACH counters some of this evidence, but weighing that

evidence against Maya's evidence is a jury question not to be resolved on

a directed verdict motion or, for that matter, in determining whether the

alleged actions and statements met the threshold inquiry. Moisan v.

Frank K. Kriz, Jr., M.D., P.A., 531 So. 2d 398, 399 (Fla. 2d DCA 1988) ("In

ruling on [a motion for directed verdict], the trial court may not weigh the

evidence or assess a witness's credibility and must deny the motion if the

evidence is conflicting or if different conclusions and inferences can be

drawn from it.").

46

For these reasons, I agree that Maya's IIED claim should be retried

with the remainder of the counts.

Opinion subject to revision prior to official publication.

47