Third District Court of Appeal
State of Florida
Opinion filed July 14, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-0769
Lower Tribunal No. 13-34287
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Hashem Sultan, M.D., et al.,
Appellants/Cross-Appellees,
vs.
Walgreen Co., et al.,
Appellees/Cross-Appellants.
An appeal from the Circuit Court for Miami-Dade County, Barbara
Areces, Judge.
The Law Office of David H. Pollack, LLC and David H. Pollack; and
Easley Appellate Practice, PLLC and Dorothy F. Easley, for
appellants/cross-appellees.
Kula & Associates, P.A. and Elliot B. Kula, and W. Aaron Daniel, and
William D. Mueller, for appellees/cross-appellants.
Before EMAS, HENDON, and MILLER, JJ.
MILLER, J.
In this defamation and negligence lawsuit, Dr. Hashem Sultan, a
double board-certified anesthesiologist and pain management physician,
challenges a final summary judgment rendered in favor of Walgreen Co.
(“Walgreens”) and its registered manager and pharmacist on the issue of
punitive damages.1 Viewing the evidence in opposition to the motion for
summary judgment de novo and in the light most favorable to Sultan, the
non-moving party, see Williams v. Ryta Food Corp.,
301 So. 3d 339, 341
(Fla. 3d DCA 2020), the pretrial discovery adduced in this case established,
and a jury later found, the pharmacist embarked on an aggressive campaign
to destroy Sultan’s reputation within the medical community, along the way
inculpating him in various criminal acts. Further submissions of record
supported the conclusion that Walgreens was aware of this course of
conduct, as numerous clients raised the alarm, yet it failed to take any
meaningful action. Under these circumstances, the question of punitive
damages presented a question for the jury.2 See Lawnwood Med. Ctr., Inc.
1
A second plaintiff below, Kendall Pain Center, LLC, appeals on other
grounds. We affirm, without discussion, however, as to all other issues
raised in the appeal and cross-appeal.
2
After the trial court rendered final judgment in this case, the Florida
Supreme Court amended Florida Rule of Civil Procedure 1.510 to adopt a
new summary judgment standard. See In re Amends. to Fla. R. Civ. P.
1.510,
309 So. 3d 192, 194-95 (Fla. 2020) (adopting the federal summary
judgment standard). The revised standard, effective as of May 1, 2021, does
not apply here as the final judgment predates amendment. See Wilsonart,
2
v. Sadow,
43 So. 3d 710, 729 (Fla. 4th DCA 2010) (“[W]hen the claim is
defamation per se, liability itself creates a conclusive legal presumption of
loss or damage and is alone sufficient for the jury to consider punitive
damages.”) (citations omitted); S. Bell Tel. & Tel. Co. v. Roper,
482 So. 2d
538, 539 (Fla. 3d DCA 1986) (“[M]alice can be proved in the absence of
direct evidence . . . by proving a series of acts which, in their context or in
light of the totality of surrounding circumstances, are inconsistent with the
premise of a reasonable man [or woman] pursuing a lawful objective, but
rather indicate a plan or course of conduct motivated by spite, ill-will, or other
bad motive.”) (citation omitted); Perry v. Cosgrove,
464 So. 2d 664, 666 (Fla.
2d DCA 1985) (“Generally, a publication is libelous per se if, when
considered alone without innuendo, it tends to subject a person to hatred,
distrust, ridicule, contempt, or disgrace, or tends to injure [them] in [their]
trade or profession, or if it imputes to another conduct, characteristics, or a
condition incompatible with the proper exercise of [their] lawful business,
trade, profession, or office.”) (citations omitted); see also § 768.72(3), Fla.
LLC v. Lopez,
308 So. 3d 961, 964 (Fla. 2020) (stating the amendment to
Florida Rule of Civil Procedure 1.510 is prospective); see also Volusia Cnty.
v. Aberdeen at Ormond Beach, L.P.,
760 So. 2d 126, 130 (Fla. 2000)
(“Summary judgment is proper if there is no genuine issue of material fact
and if the moving party is entitled to a judgment as a matter of law.”) (citation
omitted); Chirillo v. Granicz,
199 So. 3d 246, 249 (Fla. 2016) (reviewing de
novo a trial court's granting of summary judgment).
3
Stat. (“In the case of an employer, principal, corporation, or other legal entity,
punitive damages may be imposed for the conduct of an employee or agent
. . . if . . . [t]he officers, directors, or managers of the employer, principal,
corporation, or other legal entity knowingly condoned, ratified, or consented
to such conduct; or . . . [t]he employer, principal, corporation, or other legal
entity engaged in conduct that constituted gross negligence and that
contributed to the loss, damages, or injury suffered by the claimant.”).
Accordingly, we reverse the summary judgment entered on the issue of
punitive damages and remand for trial upon that issue only.
Affirmed in part, reversed in part, and remanded.
4
