i. IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALMEEACH COUNTY, FLORIDA MARC E. BROCKMAN, we?; CASE NO. A1: Plaintiff, V. DR CARMEN PULLAPITO a?nd UNIVERSITY OF MIAMI Vd/b/a BASCOM PALMER EYE and ,d/b/a BASCOM PALMER OF THE PALM BEACHES, Defendants. I 5?3- w: r? UNIVERSITY OF (7 MOTION FOR SUMMARY JUDGMENT .: T, is? E: Ff. Defendant the University ofMiami (?the University? by and through und5?51 gned Counsel, and pursuant to Fla. R. Civ. P. 1. 510, moves for summary judgment as to Count II (Negligent the one claim asserted against it by-Plaintiff Marc .E. .B'rockm?an?, on the ground that there are no genuIne Issues of material fact that would Support a jury verdict In favor of the P1a1nt1ff (STATEMENT OF MATERIAL TheParties. 1 P1a1nt1ff Marc Brockman was emplOyed by the University as an optometrist workmg in the Palm BeachGardens Clinic Of theBascorn Palmer Institute (?the ClinIc?) from 1996 mm lay off on April 23 2003. (Brockman D'ep. 1; App. Exh. 9) 1In support of this motion, the University is submitting an appendlx of relevant ethbItS Included. inthe appendix is a copy Of a' deposition taken in the matter of Marc E. Brockman UniverSity .of Miami, Case No. 05-0928, ?led in the State .Of Florida Division of Administrative The Court may take judicial notice of this prior testimony. Fla. Stat. Sec. 90.202. . 2. Dr. Carmen A. Pulia?'to is the. Chair of the University of Miami Medical School?s Department of Ophthalmology? and the Director of ?the Bascom Palmer Institute. He was hired by the University inluly of 2001.. (Clarkson Aff. 1] 3, App. Exh. 3) Hiring Dr. Puliafito 3. In or aboutj2000, a search committee was formed to identify and recommend the hire of a new Chair of Ophthalmology. Dr. Laurence Gardner, the-then Chair of the Department of Medicine, was appointed the Chair of the search committee. (Clarkson Aff. 1] 2, App. Exh. 3; Gardner Aff. 1] 2, App. Exh. The Search committee considered a number of candidates, including Dr. Carmen Pulia?to. The committee unanimously recommended the hire of Dr. iPulia?to, Which recommendation was forwarded to the-then Dean of the Medical School, Dr, John Clarkson, who. apprOved the recommendation- (Gardner Aff. 1] 2, App. Exh. 4; Clarkson Aff. 1] 2, App. Exh. 3) 5. Prior to his employment with the University, Dr. Pulia?to was the Chair of the Department of Ophthalmology at Tufts University SchOol of Medicine-and. was the founding Director of the New England Center. (Gardner Aff.? 1] 2, App._ Exh. .4) 6. Prior to his hire, neither Dr. Clarkson nor the Search Committee had any information that Dr. Pulia?to had assaulted or committed an act of violence an employee or any Other individual at Tu?s or. at any other previous employer. (Gardner Aff. 4, App. Exh. 4; Clarkson Aff.1] 4, App. Exh. 3) 7. Plaintiff has no personal knowledge about any misconduct by Dr. ,Pulia?to committed at his previous employer. (Brockman Dep. at 169-72, App. Exh. The Assault. 8. On April 4, 2002, Plaintiff alleges that?Dr. Pulia?to grabbed him by the lapels, pulled him up by the collar andyelled Obscenities at him. Dr. Brockman sUstained no physical injuries and he did not consult a physician. He did not, take any time off from work fellowing the incident. (Brockman? Dep at 38, 42, 49-50, 61, App. Exh. 1) 9. Plaintiff d1d not report the incident to Dr. Pulia?to? sUpervisOr until several months after it had occurred (BrocMan Dep. at 56, 397- 98, 403- 04 ,App. Exh. 1) 10. One year later, on March 31, 2003, Plaintiff ?led a policereport about the incident. The State Attorney?s of?ce declined to prosecute the matter dile to the delay in reporting the incident. Plaintiff testi?ed that he ?led the police report in an attempt to save his job. (Brockman iDep. at 68-70, App. Exh.1) The Lay Offs 11. In July of 2002, the Clinic was operating withan approximate $626,000.00 de?cit. This de?cit continued through ?scal year 2003. (Lee Dep. at 15, App. Exh. 2; Rodgers Aff, 11 3, App. Exh. 8) 12. In early 2003, the Department of Ophthalmology was advised that it would not be receivinga tax rebate in the amount of $200,000 to $300,000. (Lee, Dep?. at 50-51, App. Exh. Rodgers Aff. 117, App. Exh. 8) 13. In early 2003,. the Department learned, together with the rest of the University?s medical school, that malpractice premiums would be signi?cantly inereased. (Lee Dep. at 51, App. Exh. 2; Rodgers Aff. 11 7, App. Exh. 8) 14. On April 1, 2003, Tom Fitzpatrick, the Chief Financial Of?cer for the University?s School of Medicine, sent an Email message to all School of Medicine departments informing they they needed to make ?nal adjustments to their budgets byApril 9, 2003. (Rodgers Aff. 118, App. Exh. 8) 1.5.. BaSed upon. these ?nancial concerns, Dr. Yunhee Lee, the Medical Director of the Clinic and Coreen Rodgers, the Assistant Chair of the Department, were directed to cut $200,000 from. the Clinic?s budget. Dr. Pulia?to did not direct h0w the budget cuts should be made. (Lee Dep. at25, App. Exh. 2;.Rodgers Aff. 119, App. Exh. 8) 16. In or about January of 2.003, the Department hired Ilene, Knopping, of Pointed Communications, who are health, care management consultants, to be- the interim administrative manager of the Clinic and to assist inthe review and evaluation of Clinic operations. As part of her duties, she conducted an analysis of the staffing andoperations of the clinic, which notes areas where there was overstaf?ng and areas where there was a lack of specialized staf?ng. Inher- report, Ms. Knopping speci?cally referenced Dr. Brockman?s position and stated that: major staf?ng ef?ciency is how thepractice is using optometrist Machrockman as a technician and clinical manager. More than half his time is spent serving as a technician and on issues related to?patient care or functions that can be more appropriately done by others at ailower cost to the practice.- Currently the opto?metric? patient Volume does not require a full time optometrist. (Rodgers Aft-114, App. Exh. 8) (emphasis added) 17. Dr. Charles Pappas, the Director of Patient CliniCaI Services for the Anne- Bates Leach Hospital, reached a similar conclusion when he conducted a review of the clinical! operations of the Palm Beach Clinic in April of 2003: 3 ?*Clarify Dr. Brockmau?s role and value-to facility. 5. Therefore, consider layoff at this time, unless he is generating a substantical financial contribution which-is unlikely given his small patient volume.? (Rodgers Aff. 116, App. Exh.8) 18. As part of then analysis of the clinic? soperations, the 1nter1m administratiVe manager and Medical Human Resources met with each person werking at the clinic to review their job description. (Brockman Dep. at 76 App Exh. 1; Rodgers Aff. 115, App. Bath 8) 19. On April 23, 2003, Rlain'tiff, tOgethe'r with four other University employees who worked at the Clinic, were laid off due to budgetary and ?nancial constraints. (BrockmanDep. at 278- 79, App. Exh. 1; Lee Dep. at 22 25, App. Exh. 2, Rodgers Aff. 111, App. Exh. 8; App. Exh. 9) The lay offs were recommended by the Department of Ophthalmology, and approved, pursuant to University policy, by Medical Human Resources. (Brockman Dep. at 163, App. Exh. 1,Rodgers Aff. 111, App. Exh. The net Savings to the Clinic of. these cost-cutting measures was approximately $200,000.00. 20. Pursuant to University policy, Dr]. Brockman was given two months? severance and was eligible for rehire. (Brockman Dep. at 270285, App. Exh. 1; App. Exh. 9) 21. Dr. Brockman has not?been- replaced and his administrative duties were redistributed to existing personnelatthe clinic. (Brockman Dep. at 284, 385, App. Exh. 1;.Lee Dep. at 25-26, App. Exh. 2; Rodgers Aff._1112, App. Exh. 8) 22. None of the other four individuals who were laid offhhad complained about Dr. Pulia?to 'or were involved in the April 4,2002 incident. (Brockman Dep. at 281, App- E-xh. 1) 23. At the time Dr. Brockman was laid off, he was the highest'paid men?physician at the Clinic. He only spent apprOximatelyi 50% of his working time, or two and a half days per week, treating?patients. In 2002 and projected 'for 2003, Dr. Brockman represented a net loss to the Department. (Brockman Dep. at 14, 307-08, 321, 341, App. Exh. 1; Rodgers Aff. 110, App. Exh. 8) ARGUMENT I. The Summary Judgment Standard Under Rule 1.510, summary judgment isapprOpriate when the ?pleadings, depositions, answers to interrogatories, admissions, af?davits, andother materials as would be admissible in 4 evidence on ?le show that there is nogenuine'issue as to any material fact a'nd'kthatthemovingparty is entitled to a judgment as a matter of law.? Fla. R. Civ. P. See-Page?v. Staley, 226 So.2d 129, 130 (Fla.4th DCA .1969) (?the function of summary judgment procedure 'is to determine if there is suf?cient- evidence to justify trial upon the issues made by the pleadings, to expedite litigation, and to obViate expense?); Inc.? v. Pasco County, 660 So.2d 757, 758 (Fla. 19.95) (?The purpose of a motion for summary judgment is to determine whether any genuine issues of material fact exist for resolutionby the trier of fact?). Where, as here,? amotion for summary ud gmen?t'is properly supported, the burden then shifts to the n?on-moving?party to set forth speci?c facts showing that there is? a genuine issue of material fact for trial. See Gay?Bros. Constr. Co. v. la. Power Light 427 So.2d 318, 319-20 (Fla. 5th DCA 1983) (?When the party Who seeks the summary judgment has made an initial shewing' of the absence of any genuine issue of material fact, then the party moved against has the burden of coming forward with eVidence suf?cientlto reveal that such issue exists. It is not'suf??cient to merely assert that an i'sSue does exist?). The Fourth District Court of Appeal of Florida has emphasized the requirement of ?materiality.? In Continental Concrete, Inc. v. Lakes at La Pox Ltd. P?Ship, 758 So.2d 1214, 1217 (Fla.- 4th DCA 2000), the court stated: [T]he ?issue? must be one ofmaterial fact. Issues of nonmaterial facts are irrelevant to the summary judgmentdeterminatiOn. See Fla. R. Civ. P. A?material - fact, for summary judgment purposes, is ?a fact that is essential to the resolution of the legal'questi?on raised in the case. (emphasis original). Standards g0ve'rning summary jud gment"?are to be applied with discriminating care so as not to defeat a. summaryjudgment if the movant is justly entitled to one.? Firestone v. Time, Inc, 231 So.2d 862, 864 (Fla. 4th DCA 1970). II. THE UNIVERSITY Is ENTITLED To SUMMARY JUDGMENT oN? THE NEGLIGENT HIRING CLAIM A. THE UNIVERSITY HAD NO NOTICE OF PRIOR MISCONDUCT BY CARMEN Plaintiff alleges in Count II, entitled ?Negligent Hiring? that the University (1) hired Dr. Carmen Pulia?to? in 2001, (2) prior to his hire, Dr. _Pulia?to ?engaged in Conduct'quite similar to that alleged in Count and (3) ""At the time it hired Dr. Pulia?t'o, the knew or should have known that Dr. Pulia?to ?s violent temper and histoI'y of Outrageous behavior against?employees and/or others.? (Complaint, 111118-20). However, there are?no facts that the University was on notice of any complaintsof violent behavior. toward others prior to its hiring of Dr. Pulia?to. (Facts 11113- 7). Therefore, Plaintiff?s negligent hiring Claim fails as amat'ter of law. A negligent hiring claim permits a plaintiff to recover against an employer for the intentional acts of an employee Which are committed outside the course and scope of employment. Tallahassee Furniture Co., Inc. v.7 Harrison, 583 So. 2d 744, 750 (Fla. 1?St DCA jurisdictions including Florida, recognize that independent of the doctrine of respondeat superior, an employer is liable for the'willful tort of his employee committed against a third person if he knew or should 9? have known that the employee. was a threat to others However, this cause of aetion is nOt unlimited: [O]therwise, anemployer would be an absolute guarantor and strictly liable for any acts committed by his employee against any person under any circumStan?ces. Such [Condition] would be an intolerable-and unfair burden upon employers.?? Total Rehab; Medical Centers, Inc. v. E.B.0., 915 So. 2d 694, 697 (Fla. 3d DCA 2005), quotingGarcia v. Du?jz, 492 So- 2d 435, 439 x, (Fla. 2d DCA 1986). To bring a prima facie case for negligent hiring, a?plaintiff must demonstrate that: the employer was required to make an appropriateinvestigation of the employee and failed to do so; (2) an appropriate investigationWould have revealed the 'unsuitability of the employee for the particular duty to be performed or for employment in general; and (3.) it was unreasonable for the employer to hire the employee in light of the information he knew or should have known. Garcia v. .Da?jz, supra, 492 So. 2d at 440-. inquiry is focused on whether the specific, danger that ultimately manifested itself sexual assault and battery) reasonably?could have been foreseen at the time of hiring.? Malicki v. Doe, 814 So. 2d 347, .362 (Fla. 2002)..2 Absent evidence that an. employer had actual or constructive knowledge that an employee had harmful propensities, the claim must be dismissed. .See Total Rehab Medical Centus, Inc. v. EB. 0., 9.15 So. 2d 694 (defendant entitled to a directed verdict absent evidence that the employer knew, or had reason to know, that the employee wOuld commit battery); Dep ?t of Environmental Protection v. Hardy; 907 So. 2d" 655, 661 (Fla. 5th DCA must be a connection and foreseeability between the employee?s employment history and the current tortcommitted by the employee;? dismissing negligent supervision claim where. there was no evidence thaternployer had prior notice ofthe potential for harm) (emphasis added); Phillips v.1 Edwin P. Stimpson, .588 So. 2d 1071 (Fla. 1991) (employer?s knowledge of prior narcotics conviction insuf?cientnotice that he Would aSsault employee). CounsreView'ing 2The. primary distinction between a: claim for negligent hiring and a claim for negligent retention, concerns the time at which the employer is charged with knowledgeof the employee?s un?tness. Liability in these cases focuseson the'a'dequacy ofithe employer?spre-hire investigation. In contrast, liability for'negligen't retention occurs after emplOyernent begins, Where. the employer knows or should know ?of an employee?s un?tness and fails to take ?rrther action, such as investigating, discharge or reassignment. Malicki v. Doe, supra, 814 So. 2d at 362 n,15. 7 negligent retention claims haVenOt hesitated to diSmiss those claims as a matter of law'where there wasno prior notice of misconduct. See Wei-Mari Store, Inc, v. Caruso: 884.80.2d 102 (Fla 2004) (reversing entry of udgrnent on jury verdict against the employer where there was no evidence that emplOyer knew M. v. Gulf Ridge Council Boy Scouts of America, Inc, 5279 So. 2d .1248 (Fla. 2d DCA 1988)(Boy Scout Council entitled to a directed Verdict on claim for negligent supervision where defendant had no notice that camp ?rst aid attendant Who committed intentional homosexual acts was un?tto work). Neither the Search Committeen?orthe Dean of the Medical School had information from Tufts ?or any Other academic institution?that Dr. Pulia?to had committed a similar assault and battery against an employer'or other third party. (Clarkson Aff. 4, App. Exh. 3; Gardner Aff. 114, App. fExh. 4) Plaintiff testi?ed that'some unidenti?ed faCulty member told him he knew of a prior similar incident that had occurred at Tufts. However, he c?o?uld not identify who provided this information nor whether the-information was based upon personal knowledge. (Brockman Dep. at 176-77, App. Exh. The various faculty members who Plaintiff did identify as individuals who had negative informationabout Dr. Pulia?to, deny having any knowledgeabout complaints of physical altercations lodged against Dr. Pulia?to at Tufts or anywhere else. (Cousins. Aff., App. Exh. Green?eld Aff, App. Exh. 6f; GreenbergAff., App. Exh. 7) Plaintiff cannot refute summary judgment based upon inadmissible hearsay ?'om some unidenti?ed source. Seeln re Forfeiture of1998 Ford Pickups, 779 So. 2d 450 (Fla. 2d DCA 2000). Plaintiff also testi?ed that some faculty members had expressed concern that .Dr. Pulia?to had a bad temper and used profanity; (Brockman Dep. at 180, App.- Exh.. 1) Apart from the fact that this is hearsay, =such'knowledge would not impose prior notice to the University that Dr. Pulia?to might physically assault. someone. The case law is clear that there must be'a connection betweenthe prior employment history'andthe underlying tort. Phillips, supra, 588 So. 2d at 11073-1074; see Dickinson v. Gonz?alez,839 So. 2d 709 (Fla. 3d DCA 2003). 'In the absence of any facts that Dr. Pulia?to had assaulted "an employee at aprior employer and that the individuals responsible for his hiring had any knowledge of such infermation, Plaintiff?snegligent hiring claim against the University should be diSmi'ssed. B. Plaintiff?s Negligent Hiring Claim is Barred by the'Impa?ct Rule Moreover, to theextent that Plaintiff seeks damages for emotional distress allegedly caused by the University?s negligent hiring, such damages are barred by the; impact rule. Absent any evidence that the alleged emotiOnal distress ?owed from physical injuries'Plaintiff sustained in an impact, his negligent hiring claim will not support a claim for emotional distress damages. See Southern Baptist of 1a., Inc. v. Welker, 908 So. 2d 317, 320 (Fla. 2005); Woodard v. Jupiter Christian School, Inc, 913 So. 2d 1188, 1191 (Fla. 4th DCA 2005)(refusing to recognize another exception to the rule, noting that the Supreme Court has consistently adhered to therule, ?carving out limited exceptions in extraordinary circumstances?) rev. denied, 924 So. 2d 812 (Fla. 2006). underlying, basis for the rule .is that allowing recovery for injuries resulting from purely emotional distress would open the ?oodgates for ??ctitious 0r Speculative-claims. WoodWard Jupiter Christian School, supra, 913 So. 2d at 1190 (quOting Southern BaptiSt Hosp. of Fla; Welker, 908 So. 2d at 362). Plaintif?-has admitted he did not suffer "any physical injuries in connectiOn with the alleged battery. (BrOckman Dep. ?at 49, 92,. App. Exh. 1) He did not take any time off from work or consult a physician. (Brookman Dep, at 61,, 92, App. Exh. 1) Therefore, the impact rule precludes. Plaintiff 5 claim in negligence. For all of the foregoing reasons, the University is entitled?to summary judgment on Count of the Complaint. THE UNIVERSITY IS ENTITLED To DISMISSAL 0F FOR ECONOMIC. DAMAGES Even if the Court denies the University?s motion, the Court Should. nonetheless dismiss Plaintiff?s claim for economic damages because there is no causal link betWeen the April 4, 2002, incident and the layoffs of ?ve employees at the clinic Over one year later on April 23, 2003. Plaintiff alleges that, as a resultof the negligent hiring, Plaintiff suffered a ?loss of earnings and loss ofability to earn money? (Complaint 1123), which apparently is a reference to the lay off that occurred 'on April 23, 2003. Economic damages flowing from the alleged negligenthiring cannot be recovered because there are no facts to Support causation. See Watson v. Hialeah, 552 So. 2d 1 146, 1 149 (Fla- 3d DCA 1989) (proximate cause-is an essential element ofa negligent hiring claim and therefore Plaintiff injuriesmust be shown to have been brought by reason of employment of the incompetent servant); rembath v. Beach Club, Inc, 860 So. 2d 512, 515 (Fla. 4th DCA 2003) (before an oCcurrence' can be a proximate cause of the injury, it must be determined to be the cause in? fact of the injury). While the claim against- the University is unclear, the allegations against Dr. Pulia?to .state that Plaintiff lost?his job at the University because he complained about the incident set forth in Count I. There are no facts to support this theory. Over one year after the incident allegedin Count I of the Complaint, Dr; Brockrhan, together with, four other individuals employed at the Palm Beach Gardens clinic, were, advised that they had been laid off as a result of ?nancial. constraints and budgetary concerns. (Facts 18-19) That decision was made by Medical Human Resources, based upon a? recommendation from. the '10 x572?" Dep'art'rnent'of Ophthalmology. The decision was based upon recommendationsmade by? analyses of Clinic operations and ?nances performed by the interim administrative manager of the Clinic, the chief administrator for the Department, and an optometrist from Bascom Palmer. (Facts 1]1] 9-, 16?- 19). There is no evidence that Dr- Pulia?to ?targeted? Dr. Brockman nor directed anyone to terminate his employment. (Rodgers Aff. 1] 9, App. Exh. In addition, none of the other four individuals: who were laid. off' had had any altercations withDr. .Pulia?to or complained of same.- (Id. at 1] 22) As background, inthe summer of 2002, ?the Palm Beach Gardens clinic was running .an approximate $625,000 de?cit. This de?cit continued to grow during?seal year 2003. (Facts 1] 1 1) In addition to the growing budgetary de?cit at the Clinic, in the early part of 2003,. the Department of OphthalmOIOgy learned that it Was not going to receive a tax rebate in the amountof $200,000?to $300,000. (Id; at 1] 12) Inaddition, the Department learned that the malpractice insurance rates for physicians Was going. to be increased dramatically. (Id. at 1] 13). Based upon these facts, Dr. Pulia?to instructed Dr. ?Yunhee Lee, the Medical Director of the Clinic to determine best to eliminate at least $200,000from the Clinic?s operating. budget. (Id. 1] 15) Dr. Pulia?to did not dictate how the budgetary cutsshould be made. (Rodgers Aff. 1] .9, App. Exh. 8). To make this determination, Dr. Lee, together with the Assistant Chair of the Department, Coreen. Rodgers, analyzed-the Clinic costs, In addition,Dr. Charles Pappas, the Directo'r'of Patient Clinical Services at the Ann Bates Leach Hospital, was asked to visit the clinic and make some suggestiOns at to the ef?cientoper?ation of the optometry practice. Dr. Pappas thereafter submitted a reportsuggesting that the University reevaluate Dr. Brockman?s emplOymentstatus andconsider layoff. (FaCts 1] 17): 11 Inthe spring of 2003, Ilene KnOpping, who had beenappo'inted the Interim administrative manager. of the Clinic, submitted a report to the Department which recommended, based upon poor pro?tability, that the optometrist position be eliminated. (Facts '11 Based upon these recOmmendatio?ns, ?ve individualsswere laid off twoof them were the highest paid individuals at the Clinic. (Id. at 1111 19 and 23). Dr. Brockman wasnot replaced, and the administrative duties he was performing wereredistributed amongst existing personnel. (1d. at 1] '21) In sum, Plaintiff Cannot demonstrate an essential element-of his negligence claim: proximate causation. Because Plaintiff?s layoff was motivated by budgetary concerns unrelated to. his complaints about the incident the year before, there is no causal connection and .no liability. See Goldberg v. FPL, 899 So. 2d 1105 (Fla. 2005). IV, CONCLUSION Based upon the foregoing, the-University respectfully requests that the Court grant summary judgment in its favor, and costs and attorneys" fees as the Court. deems just and proper. Elizabe P. Johnson Florida arNo. 920990 Timothy 0. Schranck Florida Bar No. 0702331 FOWLER WHITE BURNETT P. A. ESpirito Santo Plaza, 14th Floor 1395 Brickell AveriUe Miami, Florida 33131-3302 Telephone; (305) 789-9200 Facsimile: (305) 789-9201 12 rm? - - . - I 2-3. . arm-.1. CASE NO. CERTIFICATE OF SERVICE l-Wk I HEREBY CERTIFY that a?trueand correct copy?of the foregoing was mailed, this ?gvday of January, 2007, 'to: Alan C. Espy, Esq., Counsel for Plaintiff Marc E. Brockman, 3300 PGA Boulevard, Suite 630, Palm Beach Gardens, Florida 33410; and Jane MOScowitz, Esq,, Moscowitz, Moscowitz Magolnick, P.A., Counsel for'DefendantDr Carmen Puliaf to 111 Brickell Avenue a, Eli abethP. Johnson Suite 2050, Miami, Florida 33131. j[ecd] 1/10/7-1 5:55 13