JANE BISTLINE M.D., and JANE E. BISTLINE, M.D., P.A. Petitioners,
ANTHONY ROGERS, M.D. and PALM BEACH PAIN MANAGEMENT, INC., and GARY CARROLL, Respondents.
final until disposition of timely filed motion for rehearing.
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.
Shield and Roger Levine of Shield & Levine, P.A., Boca
Raton, and Louis M. Silber of Silber & Davis, West Palm
Beach, for petitioners.
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.
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.
Background and Trial Court Proceedings
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.
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.
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
hearing, the trial court granted the motion to amend.
Petitioners now seek review.
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)).
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." § 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