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Sanchez v. Cinque

Florida Court of Appeals, Fourth District

February 14, 2018

GLORIA PATRICIA SANCHEZ and BODY & SOUL RETREAT, LLC, a Florida Limited Liability Company, Appellants,

         Not final until disposition of timely filed motion for rehearing.

         Appeal and cross-appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No. CACE-14-6027-12.

          Nancy S. Paikoff of MacFarlane Ferguson & McMullen, Clearwater; Philip J. Crowley of MacFarlane Ferguson & McMullen, Tampa; and Michael B. Kadish of The Kadish Law Group, P.C., Santa Monica, California, for appellants.

          Kelly B. Stewart, Walter G. Campbell Jr., and Brent M. Reitman of Krupnick Campbell Malone Buser Slama Hancock Liberman, P.A., Fort Lauderdale, for appellees.

          Taylor, J.

         A day spa and aesthetician appeal a final judgment entered against them for $814, 694, after a jury found they were negligent in performing a chemical peel on the plaintiff. The plaintiff alleged that the chemical peel resulted in severe and permanent aggravation to her pre-existing skin condition, rosacea. Appellants, the defendants below, argue that the trial court abused its discretion in excluding the testimony of their expert witness. They also argue that the trial court erred in granting the plaintiffs a directed verdict on comparative negligence and denying the defendants' motion for remittitur. Plaintiff cross-appeals, arguing that the trial court erred in denying her motion for attorney's fees after finding a proposal for settlement ambiguous. We affirm the final judgment, but reverse the denial of attorney's fees.

         Plaintiff Johana Cinque and her husband, Vincent Cinque, sued an aesthetician, Gloria Sanchez, and a day spa, Body & Soul Retreat, LLC, for injuries the plaintiff sustained as a result of a chemical peel. The plaintiff alleged that the peel permanently aggravated her rosacea, a pre-existing skin condition. The defendants alleged the plaintiff was comparatively negligent by failing to follow medical advice.

         Testimony during trial revealed that on March 19, 2013, the plaintiff went to Body & Soul for a facial. Before the procedure, the plaintiff completed a form stating that she had rosacea. Rosacea is a chronic inflammatory skin condition of the face. The plaintiff's condition was mild, causing only a rosy flushing of her checks.

         Sanchez performed a chemical peel on the plaintiff. Sanchez admitted she did not read the form before she performed the procedure. Had she known the plaintiff had rosacea, she would have used a different product or done a test sample.

         During the procedure, the plaintiff felt like her face was burning. Immediately after the procedure, her face continued to burn and turned bright red. Her face became blistered, bruised, scabbed, and crusted, and it oozed.

         At the time of the April 2016 trial, the plaintiff's face was bumpy and turned red easily from various triggers, such as the sun and increase in temperatures. The plaintiff is a firefighter paramedic, and wearing her bunker gear also causes her face to turn red. The bumps and redness are in the exact shape of the burn to her face. She gets flare-ups anywhere from two times a week to every day. People often ask if she is okay because her face is red and ask what is wrong with her face.

         The plaintiff testified that before the incident, her rosacea merely gave her cheeks a rosy appearance. She had smooth skin, received compliments all the time, and wore makeup only on special occasions. Two coworker friends confirmed that before the procedure, the plaintiff had a beautiful complexion and never wore makeup. They further testified that as a result of the procedure, the plaintiff is no longer confident and outgoing; she has become shy and antisocial.

         Dr. Peter Wallach, a dermatologist, began treating the plaintiff for rosacea in October 2009. Her condition was mild, and after a visit the following month, Dr. Wallach noted her condition was improving. Dr. Wallach did not see the plaintiff again for rosacea until the day after the chemical peel, when he examined her for facial burns. Dr. Wallach diagnosed the plaintiff with severe irritant contact dermatitis, which is a condition resulting from something that contacted and irritated the skin. A chemical peel could irritate the skin. Dr. Wallach prescribed an antibiotic cream. During follow-up visits, the plaintiff's face was red and hyperpigmented, so he gave her medication to reduce the inflammation. In May 2013, Dr. Wallach noted that the rosacea had decreased but that some hyperpigmentation remained. Dr. Wallach wrote prescriptions for medication and directed her to return in four weeks, but she did not.

         Dr. Thomas Zaydon, a plastic surgeon, examined the plaintiff in May 2014. Dr. Zaydon observed a mixed pattern of rosacea and scarring. The chemical peel had taken away the skin's protective barrier, permanently damaging and injuring the plaintiff's face. He testified that a chemical peel is improper for a person with rosacea because it penetrates the protective barrier of the skin and worsens the inflammatory process. In his opinion, the plaintiff's injuries, scarring, and disfigurement were permanent and she would need a lifetime of dermatological care to control the outbursts; she could never be returned to her pre-peel clinical appearance.

         Dr. Zaydon suggested that the plaintiff might benefit from laser treatment, which would cost $4, 000 to $6, 000 to as much as $100, 000. She also might benefit from stem cell treatment. Such treatments cost $5, 000 each, totaling $10, 000 to $15, 000. A deep tissue facioplasty could also be performed. Dr. Zaydon estimated the plaintiff's future medical bills would be around $20, 000.

         Dr. Quang Le, a dermatologist, treated the plaintiff on five occasions from June 2013 to April 2014. Dr. Le gave her various medications to try to reduce the redness and control her condition, but she continued to experience redness and hyperpigmentation. Dr. Le suggested that her condition could be improved with laser treatment.

         Dr. Le opined that the exacerbation of the plaintiff's rosacea was caused by the chemical peel. He explained that a chemical peel on someone with rosacea causes significant damage. The peel damaged the top and mid-dermal area of the plaintiff's skin and her condition went from very mild to very difficult to control. According to Dr. Le, the redness will likely be persistent, and it will take a lifetime of treatment for the plaintiff to adequately manage and control her condition. Medical bills showed that the plaintiff paid $80 or $95 for each office visit with Dr. Le. A mortality table showed the plaintiff had a life expectancy of forty-eight more years.

         On cross-examination, the plaintiff admitted she had not seen a dermatologist in two years. She had not filled a prescription for her rosacea in two-and-a-half years and was not using any prescribed medication at the time of trial. She last paid for medication in 2013 and stopped using it in the middle of 2014, despite not having been advised by any dermatologist to discontinue the use of medication for her rosacea. She explained that she stopped taking her prescription medications because they did not work and stopped regularly seeing Dr. Wallach and Dr. Le because they only prescribed medication that did not work.

         Before trial, the parties took the deposition of the defendants' expert dermatologist, Dr. Evan Schlam. In his deposition, Dr. Schlam testified that he conducted an independent medical examination on the plaintiff in January 2015, twenty-two months after the chemical peel. Dr. Schlam also reviewed her medical records, including the records of dermatologists Drs. Wallach and Le and the records of the plastic surgeon, Dr. Zaydon. Dr. Schlam's examination of the plaintiff lasted twenty minutes. The plaintiff was on medication at the time of his examination. Dr. Schlam noted mild red patches and mild dilation of the vessels. He diagnosed her with mild rosacea because "there wasn't anything pronounced" when he performed his examination. Dr. Schlam opined that the rosacea he saw was not caused by the chemical peel.

         On cross-examination, Dr. Schlam admitted that he had not reviewed any photos of the plaintiff before the peel. He conceded it would have been helpful to review a photo of what she looked like before, but maintained it was not necessary. Dr. Schlam said did not observe any scarring or anything else that would be a concern as a long-term consequence of the peel. He felt it was not important to review photos taken ...

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