GLORIA PATRICIA SANCHEZ and BODY & SOUL RETREAT, LLC, a Florida Limited Liability Company, Appellants,
JOHANA CINQUE and VINCENT CINQUE, Appellees.
final until disposition of timely filed motion for rehearing.
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.
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.
B. Stewart, Walter G. Campbell Jr., and Brent M. Reitman of
Krupnick Campbell Malone Buser Slama Hancock Liberman, P.A.,
Fort Lauderdale, for appellees.
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
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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
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