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Holman v. Lee Memorial Health System

United States District Court, M.D. Florida, Fort Myers Division

September 5, 2019

LESLEY HOLMAN, DOMINGO PEREZ TROY and MARIA PEDRO RUPERTO, as plenary guardian of Viviana Pedro, Plaintiffs,

          OPINION AND ORDER [1]


         Here is United States Magistrate Judge Mac R. McCoy's Report and Recommendation (R&R) (Doc. 94), recommending that Plaintiffs' Motion for Leave to File a Second Amended Complaint and Restyle the Case Caption (Doc. 76) be denied. Plaintiffs object to the R&R (Doc. 99), and Defendant Lee Memorial Health System (Lee Health or Defendant) filed a Response (Doc. 100). For the reasons below, the Court accepts and adopts the R&R and overrules Plaintiffs' objections.


         This is a negligence case involving injuries that Viviana Pedro suffered during labor and childbirth at Gulf Coast Medical Center (a Lee Health hospital). The initial Complaint (Doc. 10) and Amended Complaint (Doc. 50) named the anesthesia company and team involved in the labor and delivery (Anesthesia & Pain Consultants of Southwest Florida, Ricardo Bornacelli-Vergara MD, Rosalie Pirrone ARNP) as Defendants before they were dismissed from the case on March 7, 2019 following a settlement (Doc. 70). Lee Health was not released in the settlement.

         On May 6, 2019-two months after the settlement-Plaintiffs moved for leave to file a Second Amended Complaint to include causes of action for vicarious liability against Lee Health under theories of actual and apparent agency because of any negligence attributed to the dismissed anesthesiology Defendants under contract with Lee Health. (Doc. 76). The deadline for filing any motions to add parties or to amend pleadings had passed nearly a year prior-on June 11, 2018[2]-and the discovery deadline has been extended to November 8, 2019. (Doc. 54). The Motion to Amend was referred to Judge McCoy who recommends the Motion be denied because Plaintiffs have not adequately demonstrated either good cause or excusable neglect under Federal Rules 6(b)(l)(B) and 16(b)(4) for their failure to seek timely leave to amend. (Doc. 94). Judge McCoy did not consider whether Plaintiffs satisfy Fed.R.Civ.P. 15(a). See Sosa v. Airprint Systems, Inc., 133 F.3d 1417, 1419 (11th Cir. 1998).


         In reviewing a report and recommendation, a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). When a party makes specific objections to a magistrate judge's report, the district court engages in a de novo review of the issues raise. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3).

         Plaintiffs raise three objections to the R&R-that the Magistrate Judge erred in concluding: (1) Defendant would be prejudiced by the amendment; (2) there would be a negative impact on the judicial proceedings and pretrial and trial-related deadlines; and (3)Plaintiffs had not adequately demonstrated excusable neglect. The third objection is really a catch all as the first two objections are two of the factors that a court should consider when determining whether a party has established excusable neglect.[3] See Estate of Washington v. Carter's Retail, Inc., 3:10-cv-1136-J-32TEM, 2011 WL 2731291, *2 (M.D. Fla. July 13, 2011) (citing Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 388 (1993)).

         After an independent review of the complete record and applicable case law, the Court finds the R&R to be well reasoned, thorough, and legally sound. The Court discusses Plaintiffs' objections below.

         1. Unfair Prejudice

         Plaintiffs first challenge to the R&R argues there would be no prejudice to Defendant if amendment were allowed because the only fact witnesses potentially implicated by Plaintiffs' amendment that might need to be re-deposed are the anesthesiologist, Dr. Bornacelli-Vergara, and the nurse anesthetist, Pirrone, both of whom were deposed in December 2018. Plaintiffs also assert that whether Lee Health is vicariously liable for the anesthesia team is a legal issue, that Lee Health contracted with the anesthesiology team, and therefore Lee Health appreciated the risk of a potential vicarious liability claim throughout this case. Indeed, Lee Health's sixth affirmative defense asserts a Fabre defense[4] in which Lee Health alleges that the actions of third persons should be apportioned accordingly and Lee Health requested that it be included in the release as a party who may be held technically, vicariously, or derivatively liable to the settlement with the anesthesiology Defendants.[5] In sum, Plaintiffs state that Lee Health cannot now argue prejudice when it was on notice that vicarious liability was potentially an issue and Lee Health has made vicarious liability an issue by its own pleadings and actions in the settlement.

         Lee Health responds that allowing Plaintiffs to include vicarious liability claims at this late in the case would require Defendants to seek additional, substantial discovery from the anesthesia providers, Lee Health employees, and Plaintiffs, among others over a long list of issues and require many witnesses to be re-deposed as set forth on pages 5-7 of their Response (Doc. 100). And Defendant points out that correspondence with counsel for the anesthesia providers and Plaintiffs about vicarious liability before the March 2019 settlement served as an opportunity for Plaintiffs' counsel to revisit the allegations in the First Amended Complaint and realize that the allegations about liability were not pled. That said, Plaintiffs waited until May 2019 to file a Motion to Amend.

         After an independent de novo review, the Court agrees that Defendant would suffer undue prejudice if Plaintiffs were granted leave to file a second amended complaint to include vicarious liability claims at this late stage in the case. Although discovery does not close until November 8, 2019, Defendant has identified many issues it would need to explore in discovery, as well as re-deposing many witnesses. Defendant has a right to conduct discovery to mount its defense to the vicarious liability claims and the Court finds there is simply insufficient time to cure these issues before the discovery cut-off without subjecting Defendant to significant, undue expense and burden. The first objection is overruled.

         2. Negative Effect on the Judicial ...

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