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Bistline v. Rogers

Florida Court of Appeals, Fourth District

March 29, 2017

JANE BISTLINE M.D., and JANE E. BISTLINE, M.D., P.A. Petitioners,
v.
ANTHONY ROGERS, M.D. and PALM BEACH PAIN MANAGEMENT, INC., and GARY CARROLL, Respondents.

         Not final until disposition of timely filed motion for rehearing.

         Petition for writ of certiorari to the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Meenu T. Sasser, Judge; L.T. Case No. 50-2005-CA-003662-XXXX-MB.

          Amy D. Shield and Roger Levine of Shield & Levine, P.A., Boca Raton, and Louis M. Silber of Silber & Davis, West Palm Beach, for petitioners.

          Sharon Bidka Urbanek of Sonneborn Rutter Cooney Viergever Burt & Lury, P.A., West Palm Beach, for respondents Anthony Rogers, M.D. and Palm Beach Pain Management, Inc.

          CONNER, J.

         Petitioners Jane Bistline, M.D. and Jane Bistline, M.D., P.A. seek certiorari review of the trial court's order granting Respondent Anthony Rogers's motion to amend his fourth amended complaint to assert claims for punitive damages. Having determined that we have jurisdiction, we grant relief because it appears from the order under review that the trial court applied the wrong legal standard.

         Factual Background and Trial Court Proceedings

         Respondent Rogers is a medical doctor with an ownership interest in a medical practice, Palm Beach Pain Management Clinic (PBPMC). In 2002, Rogers and Respondent Carroll jointly owned PBPMC. In 2003, Rogers and Carroll entered into an agreement for Rogers to buy out Carroll's interest in the practice; however, Carroll retained fifty percent of the voting rights and remained as the president, chief executive officer, and chairman of the board until he was fully paid for his interest. PBPMC hired Bistline to work in the practice. Allegedly, in 2004, Carroll and Bistline decided to open a competing practice together.

         As the plaintiff below, Rogers sued Petitioners and the other respondents, alleging Petitioners stole patients from PBPMC and improperly used and copied patient data and appointment schedules from a database owned by PBPMC. Eventually, Rogers sought leave to amend the complaint to add a claim for punitive damages against Petitioners as to separate counts for unfair competition, conversion, and tortious interference. Rogers submitted a proposed amended complaint and a written proffer of evidence in support of his motion to amend, which consisted largely of excerpts from transcripts of witness testimony in depositions and at various hearings.

         Petitioners asserted various arguments and contentions for denying the motion, the primary contentions being that (1) Rogers's proffer of evidence was insufficient to support a punitive damages award because it failed to identify a single patient that had been improperly diverted from Rogers, and (2) because the trial court had previously stricken certain allegations of fraud in diverting the patients, there was no support for a punitive damages award under the three counts at issue.

         After a hearing, the trial court granted the motion to amend. Petitioners now seek review.

         Certiorari Analysis

         "Certiorari review is available to determine whether a trial court has complied with the procedural requirements of section 768.72, [Florida Statutes (2016), ] but not to review the sufficiency of the evidence." Tilton v. Wrobel, 198 So.3d 909, 910 (Fla. 4th DCA 2016) (citing Globe Newspaper Co. v. King, 658 So.2d 518, 520 (Fla. 1995)).

         Section 768.72(1), Florida Statutes (2016), provides in relevant part: "In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." ยง 768.72(1), Fla. Stat. (2016) (emphases added). Subsection (2) sets forth the burden of proof at trial and provides: "A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the ...


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