No Value: BURG, DEBORAH A vs. WEST FLORIDA PHYSICIANS NETWORK, LLC

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                                Filing # 112631127 E-Filed 08/3 1/2020 01:18:53 PM



                                       IN THE CIRCUIT COURTOF THE
                                     20™ JUDICIAL COURT IN AND FOR
                                      CHARLOTTE COUNTY, FLORIDA.

                                                                     CASE NO.       2020-000616 CA

         DEBORAH COOPER BURG, by and
         Through her Court-appointed Guardian
         RICKY BURG; NICOLE BURG, her
         Daughter; and RICKY BURG, her spouse,

                Plaintiffs,

         Vs.

         WEST FLORIDA PHYSICIAN NETWORK, LLC;
         DILENDRA WEERASINGHE; JOHN RIOUX;
         FAWCETT MEMORIAL HOSPITAL, INC., d/b/a
         FAWCETT MEMORIAL HOSPITAL; ABIGAIL
         UTECH; NANDINI KIRI, M.D.; NANDINI KIRI;
         HARBOR MEDICAL GROUP, LLC., AHSAN KAMAL;
         SOVI JOSEPH, M.D.; SOVI JOSEPH; DOMINGO E.
         GALLIANO, JR., P.A.; DOMINGO GALLIANO, JR;
         PUNTA GORDA MEDICAL INVESTORS, LLC d/b/a
         LIFE CARE CENTER OF PUNTA GORDA; LIFE
         CARE PHYSICIAN SERVICES, LLC; and VANCE
         MALONEY, III,
                Defendants.



                                  DEFENDANT,       VANCE     MALONEY       IIl’s,
                                 ANSWER AND AFFIRMATIVE DEFENSE

                Defendant, VANCE MALONEY, III, by and through his undersigned counsel, hereby
         files his Answer and Affirmative Defenses to Plaintiffs’ Complaint, as follows:
                                           Counts I through XXXXV

                   1-573. Paragraphs 1 through 573 of Plaintiffs’ Complaint are not directed to this

           Defendant.   To the extent any of these allegations relate to this Defendant and/or require a

         response, the allegations are denied, and Defendant demands strict proof thereof.
Count XXXXVI_CLAIM ON BEHALF OF DEBORAH COOPER BURG AGAINST
                 DEFENDANT VANCE MALONEY, M.D.


       574.    This Defendant admits that the amount claimed is within the jurisdictional
limits of this Court but denies Plaintiffs’ entitlement to same.
       575.    This Defendant is without knowledge and therefore denies the allegations of
paragraph 575 of Plaintiffs’ Complaint, and demands strict proof thereof.
       576.    This Defendant is without knowledge and therefore denies the allegations of
paragraph 576 of Plaintiffs’ Complaint, and demands strict proof thereof.
       577.    This   Defendant   denies   the   allegations   of paragraph     577   of Plaintiffs’
Complaint and demands strict proof thereof.
       578.    This   Defendant   denies   the   allegations   of paragraph     578   of Plaintiffs’
Complaint and demands strict proof thereof.
       579.    This   Defendant   denies   the   allegations   of   paragraph   579   of   Plaintiffs’
Complaint and demands strict proof thereof.
       580.    This   Defendant   denies   the   allegations   of   paragraph   580   of   Plaintiffs’
Complaint and demands strict proof thereof.
       581.    This   Defendant   denies   the   allegations   of paragraph     581   of Plaintiffs’
Complaint and demands strict proof thereof.
       582.    This   Defendant   denies   the   allegations   of   paragraph   582   of   Plaintiffs’
Complaint and demands strict proof thereof.
       583.    This   Defendant   denies   the   allegations   of   paragraph   583   of   Plaintiffs’
Complaint and demands strict proof thereof.
       584.    This   Defendant   denies   the   allegations   of   paragraph   584   of   Plaintiffs’
Complaint and demands strict proof thereof.
       585.    This   Defendant   denies   the   allegations   of paragraph     585   of Plaintiffs’
Complaint and demands strict proof thereof.
       586.    This   Defendant   denies   the   allegations   of paragraph     586   of Plaintiffs’
Complaint and demands strict proof thereof.
COUNT        XXXXVII-CLAIM        OF NICOLE         BURG AGAINST DEFENDANT                   VANCE
                                            MALONEY, III

       587.     This Defendant admits that the amount claimed is within the jurisdictional
limits of this Court but denies Plaintiffs’ entitlement to same.
       588.     This Defendant is without knowledge and therefore denies the allegations of
paragraph 588 of Plaintiffs’ Complaint and demands strict proof thereof.
       589.     This   Defendant   denies     the   allegations   of paragraph     589   of Plaintiffs’
Complaint, and demands strict proof thereof.
       590.     This   Defendant   denies     the   allegations   of paragraph     590   of Plaintiffs’
Complaint and demands strict proof thereof.
       591.     This   Defendant   denies     the   allegations   of   paragraph   591   of   Plaintiffs’
Complaint and demands strict proof thereof.
       592.     This   Defendant   denies     the   allegations   of   paragraph   592   of   Plaintiffs’
Complaint and demands strict proof thereof.
       593.     This   Defendant   denies     the   allegations   of paragraph     593   of Plaintiffs’
Complaint and demands strict proof thereof.
       594.     This   Defendant   denies     the   allegations   of   paragraph   594   of   Plaintiffs’
Complaint and demands strict proof thereof.
       595.     This   Defendant   denies     the   allegations   of   paragraph   595   of   Plaintiffs’
Complaint and demands strict proof thereof.
       596.     This   Defendant   denies     the   allegations   of   paragraph   596   of   Plaintiffs’
Complaint and demands strict proof thereof.
       597.     This   Defendant   denies     the   allegations   of paragraph     597   of Plaintiffs’
Complaint and demands strict proof thereof.
       598.     This   Defendant   denies     the   allegations   of paragraph     598   of Plaintiffs’
Complaint and demands strict proof thereof.
COUNT XXXXVIII-CLAIM OF RICKY BURG AGAINST DEFENDANT                                      VANCE
                         MALONEY, II.

       599.   This   Defendant    denies   the   allegations   of paragraph     599   of Plaintiffs’
Complaint and demands strict proof thereof.
       600.   This Defendant is without knowledge and therefore denies the allegations of
paragraph 600 of Plaintiffs’ Complaint and demands strict proof thereof.
       601.   This   Defendant    denies   the   allegations   of paragraph     601   of Plaintiffs’
Complaint and demands strict proof thereof.
       602.   This   Defendant    denies   the   allegations   of paragraph     602   of Plaintiffs”
Complaint and demands strict proof thereof.
       603.   This   Defendant    denies   the   allegations   of paragraph     603   of Plaintiffs’
Complaint and demands strict proof thereof.
       604.   This   Defendant    denies   the   allegations   of   paragraph   604   of   Plaintiffs’
Complaint and demands strict proof thereof.
       605.   This   Defendant    denies   the   allegations   of   paragraph   605   of   Plaintiffs’
Complaint and demands strict proof thereof.
       606.   This   Defendant    denies   the   allegations   of paragraph     606   of Plaintiffs’
Complaint and demands strict proof thereof.
       607.   This   Defendant    denies   the   allegations   of   paragraph   607   of   Plaintiffs’
Complaint and demands strict proof thereof.
       608.   This   Defendant    denies   the   allegations   of   paragraph   608   of   Plaintiffs’
Complaint and demands strict proof thereof.
       609.   This   Defendant    denies   the   allegations   of   paragraph   609   of   Plaintiffs’
Complaint and demands strict proof thereof.
       610.   This   Defendant    denies   the   allegations   of paragraph     610   of Plaintiffs’
Complaint and demands strict proof thereof.


                                 AFFIRMATIVE         DEFENSES
       As a First Affirmative Defense, this Defendant affirmatively asserts that Plaintiffs are
barred from recovering from these Defendants any damages for losses sustained, which have
been paid or are payable by any collateral sources of indemnity available to Plaintiffs,
including but not limited to those set forth in Fla. Stat. §768.76.


         As a Second Affirmative Defense, this Defendant asserts that pursuant to Fabre v.
Marin, 623 So.2d 1182 (Fla 1993), any damages awarded to Plaintiff are subject to the
apportionment by the jury of the total fault of all participants, whether parties or non-parties.
At this time, it is unknown whether or not there are any potential non-party tortfeasors
inasmuch as there has been no discovery.            However, in the event any of the Co-Defendants
settle or are dismissed, these Defendants            reserve the right to name    the settling and/or
dismissed Co-Defendant(s) as a Fabre non-party defendant. Additionally, if any potential
non-party tortfeasors are identified, this Defendant reserves the right to supplement this
Affirmative Defense as discovery reveals the identity of potentially responsible third parties.
Nash v. Wells Fargo Guard Services, Inc., 678 So. 2d 1262 (Fla. 1996).


         As a Third Affirmative Defense, this Defendant asserts that it is entitled to the rights
and   privileges   under   Fla.   Stat.   §768.81    requiring   apportionment   of fault   among   all
responsible parties, including all potential non-party tortfeasors as well as each and every
party who has been named as a Co-Defendant for the acts alleged against them by Plaintiff,
regardless of whether they remain parties to the suit at the time of trial.


         As a Fourth Affirmative Defense, this Defendant affirmatively asserts that Plaintiffs”
damages, if any, were caused by forces and/or independent intervening acts, including acts
by third parties, for which these Defendants had no control or responsibility.


         As a Fifth Affirmative Defense, this Defendant affirmatively assert that the conduct
or negligence of the Plaintiff caused or contributed to the damages alleged, if any, and that
any such conduct or negligence was the sole proximate cause and/or independent intervening
cause of the alleged injury.      As such, the damages complained of and the recovery, if any,
should   be barred    or reduced      proportionately    pursuant   to the doctrine   of comparative
negligence.
As   a Sixth Affirmative    Defense,   this Defendant   affirmatively    asserts all rights,
privileges, immunities, and benefits of Florida Statutes Chapters 766 and 768, including and
not limited to 766.118 and all applicable statutory damage caps.


       As a Seventh Affirmative Defense, this Defendant affirmatively asserts         that Plaintiff

has failed to mitigate any injury or damage that she may have suffered as a result of any
incident that may be proven herein and Plaintiffs’ recovery must therefore be denied or
reduced in proportion to her failure to mitigate.


       As an Eighth Affirmative Defense, this Defendant states that Plaintiff's injuries were
the result of the natural and inexorable process of human disease, health condition, or injury
and not any act or omission of this Defendant.


       This Defendant further demands trial by jury on all issues so triable.
                                CERTIFICATE OF SERVICE
        WE HEREBY CERTIFY that a true and correct copy of the foregoing was e-filed
with the Clerk of Court through the E-Filing Portal on August 31, 2020 and is to be e-served
by the Court Clerk to: ALL COUNSEL LISTED ON THE ATTACHED SERVICE
LIST.

                                              CHIMPOULIS & HUNTER, P.A.
                                              Attorneys
                                                      for Defendants, PUNTA GORDA
                                              MEDICAL INVESTORS, LLC d/b/a LIFE CARE
                                              CENTER OF PUNTA GORDA, LIFE CARE
                                              PHYSICIAN SERVICES, LLC; and VANCE
                                              MALONEY, III
                                              150 S. Pine Island Road, Suite 510
                                              Plantation, FL 33324
                                              Telephone: 954-463-0033 / Fax: 954-463-9562

                                              By     /s/ Susanne Riedhammer
                                              JAY P. CHIMPOULIS, ESQ.
                                              Florida Bar No: 561533
                                              JChimpoulis@ChimpoulisHunter.com
                                              SUSANNE E. RIEDHAMMER, ESQ.
                                              Florida Bar No: 159638
                                              SRiedbhammer@ChimpoulisHunter.com
SERVICE LIST

COUNSEL FOR PLAINTIFFS
Edward R. Blumberg, Esq.
Deutsch Blumberg & Caballero, P.A.
100 N Biscayne Boulevard, Suite 2802
Miami, FL 33132
ERB@DeutschBlumberg.com
RMitchell@DeutschBlumberg.com
JFlorin@DeutschBumberg.com


Counsel for Defendant, Dr. John Rioux and Gulf Pointe Surgical
Victoria N. Ferrentino, Esq.
Natalie J. Davy, Esq.
Bush, Graziano, Rice & Platter, P.A.
100 S. Ashley Drive, Suite 1400
Tampa, FL 33602-3423
VFerrentino@BGRPlaw.com
NDavy@BGRPlaw.cor

COUNSEL FOR DEFENDANTS. DR. NANDINI KIRI AND NANDINI KIRI,       M.D.
AND HARBOR MEDICAL GROUP, LLC
Richard B. Mangan, Esq.
Rissman, Barrett, Hurt, Donahue, McLain & Mangan, P.A.
1 N. Dale Mabry Hwy, 11th Floor,
Tampa, FL 33609-2764
Richard.Mangan@Rissman.com
Stephanie.     Doyle@Rissman.com

COUNSEL FOR DR. GALLIANO AND HIS PA.
Ralph Marchbank, Esq.
Dickinson & Gibbons, PA
401 N Cattlemen Road, Suite 300
Sarasota, FL
RMarchbank@DGlawyers.com

COUNSEL FOR DR. WEERASINGHE
Richard Bowers, Esquire  RBowers@BankerLopez.com
Janet Ann Durkee, Esquire              JDurkee@BankerLopez.con
Richard M. Sebek, Esquire          RSebek@BankerLopez.com
Banker Lopez Gassler P.A.
501 E. Kennedy Boulevard, Suite 1700
Tampa, FL 33602