final until disposition of timely filed motion for rehearing.
and cross-appeal from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Stephen A. Rapp and
Cheryl Caracuzzo, Judges; L.T. Case No. 502009CA034380XXXXMB.
Rodolfo Sorondo, Jr., Christopher N. Bellows, and Ilene L.
Pabian of Holland & Knight LLP, Miami, for appellant.
E. Terry and Jack Scarola of Searcy Denney Scarola Barnhart
& Shipley, P.A., West Palm Beach, and Daniel R. Hoffman
and David J. Sales of David J. Sales, P.A., Jupiter, for
case involves claims against a self-described
"personalized healthcare program" for both fraud
and negligence related to alleged medical malpractice
attributable to one of the program's affiliated
physicians. This purported medical malpractice resulted in
serious permanent injury to one of the original plaintiffs.
We hold that the trial court made several errors in its
consideration of motions for directed verdict made by both
parties, and we therefore reverse for a new trial on limited
grounds, as set forth below.
is in the "concierge medicine market" and provides
members with certain medical-care benefits in exchange for an
annual fee. In its initial brief, MDVIP explains that a
concierge practice gives physicians more time to provide
personalized service to patients through greater
accessibility and availability and, in exchange for a $1, 500
annual membership fee, patients were provided with "a
comprehensive annual wellness exam as well as certain
convenience factors, including same or next-day appointments,
24/7 access to physicians, smaller physician practices and a
personalized wellness plan." MDVIP does not engage in
any actual practice of medicine and does not tell its
affiliated physicians how to practice medicine, how to
diagnose and treat a patient, what medication to prescribe,
or whether to refer a patient to a specialist. At all times
relevant to this appeal, a physician named Dr. Metzger was
affiliated with MDVIP. Neither Dr. Metzger nor any other
physician is a party to the lawsuit at issue here, though he
and several other health care providers had been original
defendants and were voluntarily dismissed from the suit as a
result of pre-trial settlements, leaving MDVIP as the sole
defendant at trial.
plaintiff Joan Beber ("Plaintiff") was a patient of Dr. Metzger's before
he was affiliated with MDVIP. When Dr. Metzger made the
decision to affiliate with MDVIP, some of his patients,
including Plaintiff, attended a presentation about the
concierge program offered by MDVIP. At the presentation,
prospective patients were told about MDVIP, including how
doctors were selected, what hospitals MDVIP worked with, and
how a study showed that MDVIP members were sixty-five percent
less likely to be hospitalized. MDVIP also provided the
audience with a Frequently Asked Questions booklet, which
included an explanation of the relationship between MDVIP and
Dr. Metzger. This booklet was also mailed to Plaintiff.
deposition, Plaintiff described three reasons why she chose
to join MDVIP: "I think the major reason [for joining
MDVIP] was the accessibility of other doctors and other
hospitals. That would be number one. [Maintaining a
relationship with] Dr. Metzger would be number two, and quick
services would be number three, if you want that rated."
Plaintiff's husband also testified that the reason the
two joined was because of the offer of "the finest
doctors, exceptional doctors."
events leading to Plaintiff's injury need not be
described at length. To summarize, she began to experience
pain in her leg which, through what the jury determined was
Dr. Metzger's negligence, went undiagnosed and
misdiagnosed, until Plaintiff was forced to undergo an
above-the-knee amputation. Of particular note, however, are
the fact that the main contact Plaintiff had at Dr.
Metzger's office was a nurse, not Dr. Metzger, and the
fact that Plaintiff was told that Dr. Metzger did not have
admitting privileges at any nearby hospital other than at the
then-named Boca Raton Community Hospital.
sued a variety of parties, including Dr. Metzger, but by the
time of trial only MDVIP remained as a defendant.
Plaintiff's theories against MDVIP were for vicarious
liability for Dr. Metzger's negligence, turning on
apparent agency, joint venture, and actual agency, and for
misleading advertising and fraudulent misrepresentation
related to its marketing statements (collectively, these
latter theories are referred to as "the fraud
claims"). There were no independent allegations of
negligence against MDVIP. Prior to trial, Plaintiff died of
cancer unrelated to the alleged negligence, and her husband
was substituted as the main plaintiff as personal
representative of her estate.
trial, MDVIP moved for a directed verdict on the fraud
claims, which the trial court denied. On the other hand, the
trial court granted Plaintiff's motions for directed
verdicts on apparent agency and joint venture. In closing,
Plaintiff told the jury that the issues of apparent agency
and joint venture "[were] not  issue[s] for you to
determine, it's already been determined by the
Court." The trial court's instructions to the jury
included telling it that it was obligated to decide each
claim it was considering separate from the others.
jury found in favor of Plaintiff on all claims. It awarded a
total of $8, 539, 289 for mostly non-economic damages: $1,
036, 288 attributable to the negligence claims and $7, 503,
001 on the fraud claims. On MDVIP's motion, the trial
court reduced the amount of the final award based on the
non-economic damages caps created by section 766.118, Florida
Statutes, which this Court has since determined are
unconstitutional. N. Broward Hosp. Dist. v. Kalitan,
174 So.3d 403, 411 (Fla. 4th DCA 2015); see also Go v.
Normil, 184 So.3d 554, 557 (Fla. 4th DCA 2016).
parties appealed, with Plaintiff's cross-appeal limited
to the Kalitan unconstitutional caps issue.
MDVIP's motions for directed verdict on the fraud
Court reviews motions for directed verdict de novo. Henry
v. Hoelke, 82 So.3d 962, 965 (Fla. 4th DCA 2011).
"When an appellate court reviews the trial court's
denial of a motion for directed verdict, it must 'view
the evidence and all inferences in a light most favorable to
the non-movant, and should reverse if no proper view of the
evidence could sustain a verdict in favor of the
non-movant.'" Conrad v. Young, 10 So.3d
1154, 1157 (Fla. 4th DCA 2009) (quoting Weinstein Design
Grp., Inc. v. Fielder, 884 So.2d 990, 997 (Fla. 4th DCA
moved for directed verdicts on Plaintiff's fraud claims,
and the trial court denied those motions. As set forth below,
we hold that there is no view of the evidence sufficient to
sustain a verdict on the fraud claims and thus reverse the
trial court's denial of MDVIP's motions for directed
The phrase "misleading advertising" includes any
statements made, or disseminated, in oral, written, or
printed form or otherwise, to or before the public, or any
portion thereof, which are known, or through the exercise of
reasonable care or investigation could or might have been
ascertained, to be untrue or misleading, and which are or
were so made or disseminated with the intent or purpose,
either directly or indirectly, of selling or disposing of
real or personal property, services of any nature whatever,
professional or otherwise, or to induce the public to enter
into any obligation relating to such property or services.
§ 817.40(5), Fla. Stat. (2009). "A claim of
fraudulent misrepresentation is not actionable if premised on
a mere opinion, rather than a material fact." Thor
Bear, Inc. v. Crocker Mizner Park, Inc., 648 So.2d 168,
172 (Fla. 4th DCA 1994). It is the responsibility of the
buyer of a product or service to investigate the truth of any
"puffing" statements, as such declarations "do
not constitute fraudulent misrepresentations."
Wasser v. Sasoni, 652 So.2d 411, 412 (Fla. 3d DCA
1995). A promise to deliver an "exceptional"
product or service is a matter of opinion rather than fact,
and constitutes non-actionable puffery. See Heath v.
Palmer, 915 A.2d 1290, 1296 (Vt. 2006) ...