Key Points

  • The Fourth District Court of Appeal affirmed the with-prejudice dismissal of a 1,492-page, 7,803-paragraph Fourth Amended Complaint brought by 41 plaintiffs against 22 medical-provider defendants.
  • The court held that incorporating all 129 general allegations into each of nine counts for each plaintiff rendered every count defective under Florida Rule of Civil Procedure 1.110(b).
  • The complaint lumped defendants together and failed to plead fraud, negligent misrepresentation, RICO and conspiracy claims with the required specifics.
  • The court found the complaint's most conspicuous void was the lack of causation to any actual damage, because no plaintiff alleged paying a fraudulent bill.
  • The plaintiffs were given six attempts to plead, and the trial court warned them before the final version that it was their last opportunity.

A Florida appeals court on Wednesday upheld the permanent dismissal of a lawsuit in which 41 former personal-injury plaintiffs accused a group of doctors and medical clinics of faking surgeries, ruling that the plaintiffs' 1,492-page complaint never stated a claim the defendants could answer.

A three-judge panel of the Fourth District Court of Appeal affirmed a Broward County circuit judge's order dismissing the complaint with prejudice. Judge May wrote for the court, joined by Judges Gross and Ciklin. The plaintiffs had argued that the trial court erred in dismissing each count with prejudice; the panel disagreed, noting that the record runs 22,060 pages and that "this case has not gotten beyond a motion to dismiss."

The decision turns on Florida Rule of Civil Procedure 1.110, which requires a complaint to contain "a short and plain statement of the ultimate facts showing that the pleader is entitled to relief." The panel held that the plaintiffs violated the rule by folding the same 129 general allegations into every count for every plaintiff and by lumping defendants together.

The court described the dispute as "a novel piece of litigation spanning over a decade." The plaintiffs had been hurt in car accidents, slip-and-falls and other incidents. Their lawyers at the time, the Fenstersheib Law Group, referred them for treatment to the defendant providers under letters of protection. The plaintiffs later settled their injury claims.

According to the opinion, an employee of the law firm embezzled money from its trust accounts, and the firm never paid the providers. Seventeen medical entities owned by Craig and Brian Bauer, whom the opinion describes as chiropractic defendants, then sued the firm and the patients for payment. Those suits settled and were dismissed in May 2021. In a footnote, the court noted a counterclaim in the current case alleging that the firm devised a scheme to pressure the providers to drop their collection efforts by accusing them of fraud and "fake" surgeries.

In October 2021, the patients sued the same providers, including the Bauers, orthopedic surgeon Dr. Merrill W. Reuter and his surgical assistant, Dr. Metzger. The first complaint ran 325 pages and 45 counts. In a similar case brought earlier by a different plaintiff, the trial court wrote in March 2022 that the pleading read "more like an introductory statement of a John Grisham novel, rather than a legally based short concise statements of facts."

The trial court dismissed the Second Amended Complaint without prejudice, identifying deficiencies in every count. The Third Amended Complaint was nearly twice the length of its predecessor and attached more than 400 pages of medical bills. In dismissing it, the trial court warned the plaintiffs that their next filing would be their final opportunity.

The Fourth Amended Complaint alleged medical malpractice, vicarious liability, fraud, negligent misrepresentation, violations of the civil RICO Act and civil conspiracy against 22 defendants. It accused the defendants of having "lied to [p]laintiffs, put them under general anesthesia, and then 'operated' on them by cutting them open and sewing them back up without performing any medically beneficial surgery at all."

Circuit Judge Carol-Lisa Phillips dismissed that complaint with prejudice. The order, quoted in the opinion, said "the allegations repeatedly comingle conclusions against separate individuals and entities without discerning how, or why, or who did what on which occasion."

The appeals court agreed. The plaintiffs incorporated 129 general allegations, covering subjects from corporate structures and billing practices to kickbacks and "faked" surgeries, into each of the nine counts for each of the 41 plaintiffs. "This indiscriminate incorporation of random allegations rendered each count defective under Rule 1.110(b)," Judge May wrote, citing a 2016 Fourth District decision that affirmed a dismissal with prejudice over a complaint that incorporated 33 introductory paragraphs into every count.

The opinion offered plaintiff Tamonica Allen as an example. Her specific allegations appeared on pages 34 through 44 of the complaint, but her medical negligence claim did not appear until page 423. Even then, Judge May wrote, "A reader cannot discern whether the claim is that defendant Reuter negligently recommended and performed a procedure that was not indicated, recommended the correct procedure but performed a different procedure, or was simply negligent in performing the procedure."

The panel also endorsed the trial court's findings on the remaining counts. The fraud and negligent misrepresentation claims lacked "who, what, when and where," the RICO claims "failed to define the timeframe," and the conspiracy claims alleged no agreement between two or more parties. The trial court's order noted that the defendants had identified 328 references to "other members" of a "surgeon group," apart from Dr. Reuter, without saying who they were.

"Perhaps the most conspicuous void in the plaintiffs' complaint is the lack of causation to any actual damage," Judge May wrote. No plaintiff alleged paying a fraudulent bill. The complaint instead indicated that the bills had been used to support the plaintiffs' own injury claims, which then settled. The court held that allegations that Dr. Reuter's surgeries led to additional medical care were "too tenuous to support a claim for civil RICO."

In closing, the court turned to a nautical metaphor. "This is a case where it is impossible to find a life raft," Judge May wrote, describing the missing short and plain statement of facts as lost "in a vast ocean." The trial court, Judge May wrote, "patiently waded multiple times through a sea of allegations in an ocean of pages," and the appeals court "similarly spent days wading through the treacherous waters of this complaint and reached the same conclusion."

Lawyers for the plaintiffs included Grace Mackey Streicher of Harris Appeals, P.A., who represented plaintiff Robyn Davis. Dinah S. Stein of Hicks, Porter & Stein, P.A. represented Dr. Reuter, the Bauers and most of the provider defendants.

The decision is not final until the court disposes of any timely motion for rehearing.