United States District Court, M.D. Florida, Fort Myers Division
LESLEY HOLMAN, DOMINGO PEREZ TROY and MARIA PEDRO RUPERTO, as plenary guardian of Viviana Pedro, Plaintiffs,
LEE MEMORIAL HEALTH SYSTEM and UNITED STATES OF AMERICA, Defendants.
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE
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'
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.
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-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
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).
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. 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)).
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.
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 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. 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.
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.
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
Negative Effect on the Judicial ...