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,
Pedro Garcia, a minor, by and through his parents, Jesus Garcia and Norma Cisneros, and Jesus Garcia, and Norma Cisneros, individually, Appellees.
final until disposition of timely filed motion for rehearing.
Appeal from a non-final order from the Circuit Court for
Miami-Dade County Lower Tribunal No. 16-9133, Rosa I.
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
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.
LAGOA, SALTER and FERNANDEZ, JJ.
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
FACTUAL AND PROCEDURAL BACKGROUND
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.
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
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.
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.
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.
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
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.
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