Gail Allen v. Beth Israel Outpatient Surgical Center, LLC
CourtDistrict Court of Appeal of Florida
Date FiledOctober 28, 2026
Docket4D2025-1488
StatusPublished
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Full Opinion
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
GAIL ALLEN, TAMONICA ALLEN, WILLIAM BOUE, GEORGE DAVIS,
ROBYN DAVIS, SANFORD IRA GOLDMAN, as personal representative of
the ESTATE OF SUSAN GOLDMAN, deceased, CHEVELLE LEGAMI,
LORENZO PIERCE, JENNIFER PIERRE, JAMIE SANCHEZ, ERIKA
SPENCER, MICHELLE WASHINGTON, JUAN SANTOS, JOHANNA
BERAS, CASSANDRA EVANS, TERRELL HARRIS, JANICE ELLIS,
WAITE ELLIS, ANGELA HADLEY, T’NINA HUITT, SHARNEL IRVING,
JESSICA JOHNSON, TRINA JOHNSON-EDMOND, ENID KHAN,
PATRICK McDONALD, SHIRLEY NELSON, JEAN NEMORIN, ESTEBAN
OBISPO-REYES, GALA RALLS, FRITZ RIMPEL, ANTHONY RIVERA,
ERIKA RIVERA, RAE SALESMAN, DOMINICK SFORZA, SYTRESE
SMITH, GERVENS SOUARIN, SEAN YELLIN, LINFORD JOLLY,
DONICA OLIVER-YOUNG, BERNADETTE ADAMS, andJAMES
JACKSON,
Appellants,
v.
BETH ISRAEL OUTPATIENT SURGICAL CENTER, LLC d/b/a
BROWARD OUTPATIENT SURGICAL CENTER, MERRILL W. REUTER,
M.D., ADVANCED ORTHOPEDICS, INC., BROWARD OUTPATIENT
MEDICAL CENTER, LLC, PALM COAST ANESTHESIA GROUP, LLC,
PREMIER ORTHOPEDIC AND NEUROSURGICAL GROUP, LLC,
CENTRAL SPINE AND ORTHOPEDICS CENTERS, LLC d/b/a
INTEROPERATIVE MONITORING, KENDALL SPINE AND
ORTHOPEDICS, LLC, MEDASSIST SURGICAL, LLC, PRESTIGE
ORTHOPEDICS, LLC, UNIVERSAL MEDIQUIP, INC., BROWARD
OUTPATIENT URGENT CARE, LLC, CENTER FOR NEUROSURGICAL
EXCELLENCE, LLC, BRIAN BAUER, CRAIG BAUER, TWO AND TWO,
LLC, COMPLETE REHAB AND MEDICAL CENTER OF PLANTATION,
INC., ORTHOPEDIC AND SPINE CENTER OF SOUTH FLORIDA, LLC,
COMPLETE REHAB AND MEDICAL CENTERS OF POMPANO, INC.,
COMPLETE REHAB AND MEDICAL CENTERS OF WEST PALM
BEACH, INC., and HOLLYWOOD REHAB AND MEDICAL CENTER,
LLC,
Appellees.
No. 4D2025-1488
[October 28, 2026]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carol-Lisa Phillips, Judge; L.T. Case No.
062021CA019755AXXXCE.
Grace Mackey Streicher and Andrew A. Harris of Harris Appeals, P.A.,
Palm Beach Gardens, for appellant Robyn Davis.
Scott A. Mager of Mager Parúas, PLLC, Hollywood, William D. Zoeller
and Eric C. Hayden of Zoeller, Hayden & Thron, PLLC, West Palm Beach,
and Kevin C. Smith of Lytal, Reiter, Smith, Ivey & Fronrath, West Palm
Beach for appellants.
Dinah S. Stein and Michael J. Byrne of Hicks, Porter & Stein, P.A.,
Miami, for appellees Merrill W. Reuter, M.D., Advanced Orthopedics, Inc.
d/b/a Spine/Orthopedics, Broward Outpatient Medical Center, LLC, Palm
Coast Anesthesia Group, LLC, Premier Orthopedic and Neurosurgical
Group, LLC, Central Spine and Orthopedics Centers, LLC d/b/a
Interoperative Monitoring, Two and Two, LLC, Complete Rehab and
Medical Center of Plantation, Inc., Kendall Spine and Orthopedics, LLC,
Medassist Surgical, LLC, Prestige Orthopedics, LLC, Orthopedic and Spine
Center of South Florida, LLC, Universal Mediquip, Inc., Broward
Outpatient Urgent Care, LLC, Center for Neurosurgical Excellence, LLC,
Complete Rehab and Medical Centers of Pompano, Inc., Complete Rehab
and Medical Centers of West Palm Beach, Inc., Hollywood Rehab and
Medical Center, LLC, Brian Bauer, individually, and Craig Bauer,
individually.
Jim White of White Russell, P.A., Palm Beach for appellees Merrill W.
Reuter, M.D., and Advanced Orthopedics, Inc.
Ryan M. Sanders of Lubell & Rosen, LLC, Fort Lauderdale, and Rolando
A. Diaz of DLG Lawyers, Miami, for appellee Beth Israel Outpatient
Surgical Center, LLC d/b/a Broward Outpatient Surgical Center.
MAY, J.
The record is 22,060 pages long, not counting the supplemental record,
and this case has not gotten beyond a motion to dismiss. Forty-one
plaintiffs were given six attempts to plead a cause of action. The forty-one
plaintiffs now appeal the dismissal with prejudice of their 1,492-page
Fourth Amended Complaint, containing 7,803 paragraphs, and alleging
nine causes of action against twenty-two defendants. They argue the trial
court erred in dismissing each count of their complaint with prejudice. We
disagree and affirm.
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• The Facts
o The Background of the Underlying Litigation.
This is a novel piece of litigation spanning over a decade and featuring
three primary chapters. This appeal involves chapter three.
Chapter One
The plaintiffs were involved in a variety of incidents, including car
accidents, slip and falls, and others. They were initially represented by
the Fenstersheib Law Group (“FLG”). The FLG referred the plaintiffs to one
or more of the defendants in connection with their personal injuries,
pursuant to letters of protection. The plaintiffs were treated by one or
more of the defendants.
The plaintiffs pursued their personal injury claims, seeking damages
for, among other things, medical expenses incurred because of their
alleged injuries. Ultimately, the plaintiffs settled their respective personal
injury claims.
Chapter Two
During the resolution of the personal injury claims, an FLG employee
embezzled money from the FLG trust accounts. This resulted in the FLG
failing to pay the medical providers (currently the defendants) for the
services rendered despite the letters of protection. Seventeen medical
entities—all owned by Craig and Brian Bauer—sued the FLG and plaintiffs
to recover payment for services rendered (the “Theft Lawsuits”). 1 The Theft
Lawsuits ultimately settled and were dismissed in May 2021.
1 According to a counterclaim filed in this case, attorney Fenstersheib reported
the employee theft to the Florida Bar, which opened an investigation. The
counterclaim alleged that Fenstersheib and the FLG devised a scheme to pressure
the medical providers to back off their collection efforts by claiming the medical
providers were engaged in fraudulent practices and performed “fake” surgeries.
Specifically, the counterclaim alleged the plaintiffs had injuries requiring
minimally invasive surgical treatment and they sought compensation for the
surgeries in their personal injury litigation. The plaintiffs submitted the bills for
those surgeries and medical care and were paid for those expenses when settling
their claims. But neither the FLG nor the plaintiffs ever paid the medical
providers.
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Chapter Three
This brings us to the current lawsuit and this appeal.
In October 2021, the plaintiffs filed a 325-page, forty-five-count
complaint against the same medical providers that had previously sued
them, including the Bauers individually, Dr. Reuter, the orthopedic
surgeon, and Dr. Reuter’s surgical assistant, Dr. Metzger. The original
complaint alleged medical malpractice claims against all defendants
except the Bauers, and claims for fraud, negligent misrepresentation,
breach of fiduciary duty, accounting, battery, intentional infliction of
emotional distress, negligent infliction of emotional distress, violation of
the Florida RICO statute, civil conspiracy, and deceptive and unfair trade
practices.
The next month, the plaintiffs filed an amended complaint alleging
similar claims. The defendants moved to dismiss.
While those motions were pending, the trial court entered an order on
a motion for leave to amend the complaint in a similar case that had been
filed earlier by a different plaintiff (Harris), alleging similar claims. In that
March 2022 order in the Harris case, the trial court found that the
complaint read “more like an introductory statement of a John Grisham
novel, rather than a legally based short concise statements of facts, with
lack of specificity regarding Counts of Civil RICO, Fraud, IIED, ‘crime
schemes’, etc.”
The plaintiffs, now including Harris, filed a Second Amended
Complaint. The defendants moved to dismiss and sever counts in the
Second Amended Complaint. After a lengthy hearing, the trial court once
again dismissed the complaint without prejudice. The dismissal order
identified numerous deficiencies in each count of the Second Amended
Complaint.
The plaintiffs’ Third Amended Complaint was nearly twice the length of
the Second Amended Complaint and attached over 400 pages of medical
bills. The defendants again moved to dismiss. The trial court held another
lengthy hearing and dismissed the Third Amended Complaint without
prejudice. This time the trial court warned the plaintiffs that it was their
final opportunity to plead their case.
o The Fourth Amended Complaint
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After five attempts to plead their claims, all of which resulted in
dismissals, the plaintiffs filed their Fourth Amended Complaint, alleging
medical malpractice, vicarious liability for medical malpractice, fraud,
negligent misrepresentation, violation of the civil RICO Act, and civil
conspiracy.
The complaint now contained 129 paragraphs of general allegations,
followed by 1,763 paragraphs of plaintiff-specific allegations. The plaintiffs
incorporated all 129 general allegations into each of the nine counts for
each of the 41 plaintiffs, regardless of whether the allegations were
connected to the claim or the defendant named in the count. The
defendants filed motions to dismiss, which the trial court granted. In
doing so, the trial court noted this was the sixth complaint and “attempt
to adequately and sufficiently state a cause of action.”
In essence, the Fourth Amended Complaint alleged the plaintiffs were
“all involved in either a motor vehicle accident, slip and fall, or other such
event” and sustained injuries. The plaintiffs presented to the chiropractic
Bauer defendants (Brian and Craig Bauer) and their entities 2 as well as
medical defendants (Reuter and Metzger) for treatment of these injuries.
The plaintiffs alleged the defendants “worked together to fake the
performance of a medically necessary and beneficial surgical procedure for
the purpose of collecting extra monies from [p]laintiffs’ personal injury
settlements.” According to the complaint, the defendants were alleged to
have “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.”
The dismissal order stated, in part, “[t]he convoluted nature of the
pleading renders it impossible for [d]efendants to adequately frame an
Answer [because] the allegations repeatedly comingle conclusions against
separate individuals and entities without discerning how, or why, or who
did what on which occasion that would subject each to collective or
vicarious liability under any” cause of action alleged. The plaintiffs filed
two motions for rehearing and reconsideration. Both were denied.
2 Defendant entities included Beth Israel, Broward Medical, Palm Coast
Anesthesia, Central Spine, Premier Orthopedic, Two and Two, Complete Rehab
Plantation, Kendall Spine, MedAssist, Prestige, Orthopedic and Spine, Universal
Mediquip, Broward Urgent, Neurosurgical Excellence, Complete Rehab Pompano,
Complete Rehab West Palm, and Hollywood Rehab.
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From the dismissal order and the orders denying the motions for
rehearing and reconsideration, the plaintiffs now appeal.
• The Analysis
We begin with Florida Rule of Civil Procedure 1.110, which provides
that “[a] pleading which sets forth a claim for relief . . . must state a cause
of action and must contain: . . . (2) a short and plain statement of the
ultimate facts showing that the pleader is entitled to relief.”
Subsection (f) provides “[e]ach claim founded on a separate transaction
or occurrence” must “be stated in a separate count . . . when a separation
facilitates the clear presentation of the matter set forth.” Fla. R. Civ. P.
1.110(f). “[G]eneral, vague and conclusory statements are insufficient to
satisfy the requirement that a pleader allege ‘a short and plain statement
of the ultimate facts showing the pleader is entitled to relief. . . .’” Jordan
v. Nienhuis, 203 So. 3d 974, 976 (Fla. 5th DCA 2016) (quoting Fla. R. Civ.
P. 1.110(b)).
“The complaint must [also] set out the elements and the facts that
support them so that the court and the defendant can clearly determine
what is being alleged.” Barrett v. City of Margate, 743 So. 2d 1160, 1162
(Fla. 4th DCA 1999). “It is not permissible for any litigant to submit a
disorganized assortment of allegations and argument in hope that a legal
premise will materialize on its own.” Id. at 1163.
Despite these pleading requirements, the plaintiffs’ attempts to comply
with the trial court’s direction and the rules of civil procedure ran afoul of
both. As the trial court’s August 2023 dismissal order correctly observed,
the complaint failed to allege who “made the initial referral and who (which
defendants) referred plaintiffs to Dr. Reuter. . . . There are many
conclusory statements lumping multiple defendants together with no
connectivity.”
Regarding the fraud and negligent misrepresentation claims, the trial
court commented: “the complaint suffers from a lack of specificity (ie: who,
what, when and where).” The complaint failed to describe what false
statement was made, what reliance had occurred, and what damages
patients had sufferred.
Concerning the RICO allegations, the trial court found the plaintiffs had
“failed to define the timeframe” and which defendants were engaged and
at what times. Regarding the civil conspiracy claim, the trial court found
the complaint failed to allege an agreement between two or more parties
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and each defendant’s role in the conspiracy. The trial court refused to
“take notice of what may or may not be found in discovery.” Because the
trial court determined the plaintiffs had failed to sufficiently plead an
actionable underlying tort or wrong, dismissal of the conspiracy claims
was required as well. See City of Miami v. Alvarez, 421 So. 3d 802, 806
(Fla. 3d DCA 2025) (citing Raimi v. Furlong, 702 So. 2d 1273, 1284 (Fla.
3d DCA 1997)).
The trial court provided an example in the order dismissing the Fourth
Amended Complaint. “[I]n reference to the allegations of taking kickbacks
or engaging in other acts by the ‘surgeon group’, [d]efendants identify 328
references to possibly ‘other members’ thereof (not Dr. Reuter) without
identifying which ‘other’ [d]efendants or possibly non-party persons they
are alleging engaged in such conduct.”
In each count, the plaintiffs incorporated 129 general allegations,
ranging from a description of corporate structures to billing practices, self-
referrals and kickback violations, “faked” surgeries, and battery, into each
of the nine counts for each of the forty-one plaintiffs. This indiscriminate
incorporation of random allegations rendered each count defective under
Rule 1.110(b). See Gerstein v. Int’l Asset Value Grp., LLC, 199 So. 3d 979,
981―82 (Fla. 4th DCA 2016) (affirming dismissal with prejudice where trial
court took issue with complaint’s incorporation of thirty-three
introductory paragraphs into all counts).
We also note that plaintiff Tamonica Allen’s specific allegations appear
on pages thirty-four to forty-four of the complaint (at pages 14792 to
14802 of the record), but the allegations of Allen’s medical negligence claim
do not appear until page 423 of the complaint, 361 pages later. And even
then, they shed little light on plaintiff Allen’s theory.
In the specific section, plaintiff Allen alleges that she “underwent . . .
orthopedic spine ‘surgery,’” and that defendant Reuter concealed the “true
nature” of the surgery, which had no medical benefit. 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.
Perhaps the most conspicuous void in the plaintiffs’ complaint is the
lack of causation to any actual damage. The complaint fails to allege how
the plaintiffs suffered any damage from the alleged fraudulent medical
bills. No plaintiff was alleged to have paid a fraudulent bill. In fact, the
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complaint indicates the bills were used to corroborate the plaintiffs’ claims
in their personal injury actions, which were then settled.
The complaint also failed to identify any claimed injuries from alleged
felonious touching as opposed to medical malpractice. The plaintiffs’
allegations that defendant Reuter’s surgeries caused them to have
additional medical care are too tenuous to support a claim for civil RICO.
See Bortell v. White Mountains Ins. Grp., Ltd., 2 So. 3d 1041, 1047 (Fla. 4th
DCA 2009) (plaintiff who suffered financial harm through lost
commissions due to defendants’ unauthorized sale of insurance was
precluded from asserting RICO claims because illegal activity was directed
toward the state, and plaintiff’s lost commission was only indirectly related
to the improper conduct).
As the trial court appropriately noted, “damages are not fungible when
there are approximately forty individual [p]laintiffs alleging approximately
forty separate and individual claims resulting from separate and distinct .
. . facts.” Because the complaint failed to articulate the causal link
between the alleged misrepresentations and any specific injury, dismissal
of those claims was warranted.
• Conclusion
This is a case where it is impossible to find a life raft―“a short and plain
statement of the ultimate facts showing that the pleader is entitled to
relief”―in a vast ocean. One thing is certain: the trial court here patiently
waded multiple times through a sea of allegations in an ocean of pages
and provided the plaintiffs with numerous opportunities to state a claim
that could be answered by the defendants. The plaintiffs simply failed to
do so.
We have similarly spent days wading through the treacherous waters
of this complaint and reached the same conclusion. The Fourth Amended
Complaint neither complies with the Florida Rules of Civil Procedure nor
the trial court’s direction. As the trial court’s order stated: “[t]here is
simply a point in litigation when defendants are entitled to be relieved from
the time, effort, energy, and expense of defending themselves against
seemingly vexatious claims.” Kohn v. City of Miami Beach, 611 So. 2d 538,
539 (Fla. 3d DCA 1992) (citing Feigin v. Hosp. Staffing Servs., Inc., 569 So.
2d 941 (Fla. 4th DCA 1990)).
Affirmed.
GROSS and CIKLIN, JJ., concur.
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* * *
Not final until disposition of timely-filed motion for rehearing.
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