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Marques v. Garcia

Florida Court of Appeals, Third District

April 18, 2018

Romilio F. Marques, M.D., Romilio F. Marques, M.D., P.A., Naples HMA, LLC, d/b/a Physicians Regional Medical Center, Ofelia Marin, M.D., KIDZ Medical Services, Inc., Jorge Mujica, M.D., and Quail Emergency Physicians, LLC, Appellants,
v.
Pedro Garcia, a minor, by and through his parents, Jesus Garcia and Norma Cisneros, and Jesus Garcia, and Norma Cisneros, individually, Appellees.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from a non-final order from the Circuit Court for Miami-Dade County Lower Tribunal No. 16-9133, Rosa I. Rodriguez, Judge.

          Benito H. Diaz, P.A., and Benito H. Diaz; Hicks, Porter, Ebenfeld & Stein, and Dinah Stein and Mary Gniadek, for appellants

          Romilio F. Marques, M.D., and Romilio F. Marques, M.D., P.A.; Falk, Waas, Hernandez, Cortina, Solomon & Bonner, P.A., and Scott E. Solomon, for appellants

          Ofelia Marin, M.D., and KIDZ Medical Services, Inc.; Foley & Mansfield, and Kevin O'Connor, for appellants Jorge Mujica, M.D., and Quail Emergency Physicians, LLC; Wicker, Smith, O'Hara, McCoy & Ford, P.A., and Michael D'Lugo and Robert Baron Ringhofer (Naples), for appellant Naples HMA, LLC, d/b/a Physicians Regional Medical Center.

          Zebersky & Payne, LLP, and Edward H. Zebersky (Fort Lauderdale); Grossman Roth Yaffa Cohen, P.A., and Andrew B. Yaffa and Rachel Wagner Furst, for appellees.

          Before LAGOA, SALTER and FERNANDEZ, JJ.

          LAGOA, J.

         Appellants, Romilio F. Marques, M.D., Romilio F. Marques, M.D., P.A., Naples HMA, LLC, d/b/a Physicians Regional Medical Center, Ofelia Marin, M.D., KIDZ Medical Services, Inc., Jorge Mujica, M.D., and Quail Emergency Physicians, LLC, defendants below (collectively, "the Appellants"), appeal from a non-final order denying their motion to transfer venue pursuant to section 47.122, Florida Statutes (2016). We affirm.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On November 5, 2014, Pedro Garcia ("Pedro"), a six-day old infant, developed a serious intestinal condition that caused him to vomit green bile. His mother, Norma Cisneros ("Cisneros"), took him to the emergency room at Physicians Regional Medical Center ("Physicians Regional"), a hospital operated by Naples HMA, LLC ("Naples HMA"). At that initial visit, Pedro was seen by Dr. Jorge Mujica ("Mujica"), an emergency room physician. Mujica discharged Pedro less than two hours after Pedro and Cisneros had arrived.

         When Pedro's symptoms persisted, Cisneros took her son on November 24, 2014, to see Dr. Romilio Marques ("Marques"), a pediatrician in Naples, who in turn referred Cisneros to a local specialist, Dr. Ofelia Marin ("Marin"). Marin saw Pedro multiple times over the course of several weeks. On December 20, 2014, Cisneros brought Pedro back to the emergency room at Physicians Regional, where he was again seen by Mujica. Mujica diagnosed Pedro with colic and discharged him. The following morning, Pedro's condition worsened, and Cisneros again returned to Physicians Regional. On this visit, Dr. Michael Ropele, a different emergency room doctor at Physicians Regional, saw Pedro and ordered an X-ray that revealed Pedro suffered from a volvulus, a twisting of the intestine. Pedro was then airlifted to Joe DiMaggio Children's Hospital in Broward County for treatment. At Joe DiMaggio Children's Hospital, Pedro received life-saving treatment, including five surgeries, and remained there for close to two and a half months.

         On April 11, 2016, Pedro's parents, Cisneros and Jesus Garcia ("Garcia"), on behalf of Pedro and themselves individually (collectively "Appellees"), filed a medical malpractice lawsuit in Miami-Dade County against Naples HMA, Drs. Mujica, Marques, and Marin, and the doctors' employers-Quail Emergency Physicians, LLC ("Quail Emergency"), Romilio F. Marques, M.D., P.A. ("Marques P.A."), and KIDZ Medical Services, Inc. ("KIDZ").

         The three individual defendants reside and work in Collier County. Of the four corporate defendants, KIDZ has its principal place of business in Miami-Dade County, Marques P.A. is registered in Collier County, and Naples HMA and Quail Emergency are foreign companies with registered agents in Leon County.[1]

         Appellants, except Naples HMA, filed motions to transfer venue to Collier County pursuant to section 47.122, Florida Statutes (2016) ("the motions"). Naples HMA did not file its own motion to transfer, but instead moved to join in the motions filed by the other Appellants. The motions were substantially similar, and all argued that Miami-Dade County would be inconvenient for the parties and witnesses and that the interests of justice weighed in favor of transferring venue to Collier County. Drs. Mujica, Marin, and Marques each filed affidavits in support of their motions, and each asserted that they lived and worked in Naples, Florida, and that their professional and personal lives would be unduly burdened by a trial in Miami-Dade County. None of the doctors' affidavits addressed or established substantial inconvenience or undue expense that would require a change of venue for the convenience of the anticipated witnesses.

         The affidavit of KIDZ's CFO stated that it would be beneficial for the action to be in Collier County because that is where Pedro received his medical treatment. Naples HMA submitted the affidavit of a risk management officer who stated she would be inconvenienced by having to travel to Miami-Dade County for trial. Marques P.A. and Quail Emergency did not submit affidavits in support of their respective motions.

         None of the Appellants submitted any affidavits or other evidence addressing the identity of the witnesses needed for trial, whether the witnesses were material, or the significance of the witnesses' testimony. Dr. Marin and KIDZ filed an unverified Notice of Filing in support of their motion to transfer that simply listed the date of each of Pedro's treatments, the respective treating physician or hospital, and the location of the physician or hospital. This Notice stated that the list of names and dates was obtained from Pedro's medical files. It did not identify the nature of the treatments, nor did it purport to identify which individuals or entities would be trial witnesses (material or otherwise) or the substance (much less the significance) of their anticipated testimony. Appellees filed responses in opposition to each of the motions to transfer, arguing that venue was proper in Miami-Dade County and that Appellants had not met their burden under section 47.122.

         On July 18, 2016, the trial court held a hearing on the motions to transfer venue. The trial court denied the motions to transfer in a written order dated August 4, 2016. Relying on this Court's decision in R.J. Reynolds Tobacco Co. v. Mooney, 147 So.3d 42 (Fla. 3d DCA 2014), the trial court stated that in order to successfully challenge a plaintiff's forum selection "the burden is upon the defendant to show either substantial inconvenience or that undue expense requires a change for the convenience of the parties or witnesses." Id. at 43 (emphasis in original). The trial court further explained that this Court "has made clear that plaintiffs may select a venue for any reason, " and set forth in its written order the standard articulated by this Court in R.J. Reynolds:

We also cannot agree with any conclusion that plaintiffs should not be able to select an attorney or expert witnesses in a county and maintain suit there simply because they see some procedural advantage or because juries in the chosen forum tend to award larger monetary damages. There is nothing improper in choosing a venue because it is the most advantageous venue procedurally, or otherwise, for the law itself recognizes a plaintiff's privilege in initially selecting a venue irrespective of reason. If, therefore, venue is proper in more than one place, a plaintiff has the privilege of selecting which venue is most favorable to it for any reason and that selection will not be disturbed absent evidence that the chosen venue is either not proper in the place selected or substantially inconvenient to the witnesses or parties.

Id. at 46 (emphasis in original). Applying R.J. Reynolds, the trial court concluded that although the Appellants "presented evidence that there was some inconvenience and expense involved if the trial were to proceed in Miami-Dade County, " the evidence set forth in the affidavits was not "sufficient to establish the substantial inconvenience or undue expense which the law requires [and] [a]ccordingly, a transfer ...


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