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MDVIP, Inc. v. Beber

Florida Court of Appeals, Fourth District

May 31, 2017

MDVIP, INC., Appellant,
ROBERT BEBER, as Personal Representative of the Estate of JOAN P. BEBER, deceased, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal 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.

          Karen 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 appellee.

          Forst, J.

         This 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.[1]


         MDVIP 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.

         Original plaintiff Joan Beber ("Plaintiff")[2] 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.

         In a 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."

         The 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.

         Plaintiff 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.

         During 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.

         The 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).

         Both parties appealed, with Plaintiff's cross-appeal limited to the Kalitan unconstitutional caps issue.


         A. MDVIP's motions for directed verdict on the fraud claims.

         This 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 2004)).

         MDVIP 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 verdict.

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) ...

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