ERLACHER v. FLORIDA WOMAN CARE LLC LLC (2025)

This is an appeal from a final summary judgment entered in favor of Unified Physician Management, LLC; OBYGN Associates of St. Augustine, P.A.; Eric Pulsfus, M.D.; and Kelly Jago, M.D. (“Appellees”) in an action for medical negligence brought by Kellie and Ryan Erlacher (“Appellants”). Appellants assert that the trial court erred in granting Appellees’ summary judgment motion because (1) the motion was premature; and (2) the trial court improperly found that Appellants’ pre-suit expert affidavit filed in opposition to the motion was inadmissible under section 766.205(4), Florida Statutes (2024). That section provides in pertinent part: “No statement, discussion, written document, report, or other work product generated solely by the presuit investigation process is discoverable or admissible in any civil action for any purpose by the opposing party.” Id. (emphasis added).

It is unnecessary to address Appellants’ first argument because their second argument is dispositive. In Scalice v. Orlando Regional Healthcare, 120 So. 3d 215 (Fla. 5th DCA 2013), this court held that a plaintiff's pre-suit expert affidavit is admissible under section 766.205(4) to oppose the defendant's motion for summary judgment in a medical malpractice action, explaining that “[t]he plain language of section 766.205(4) only precludes ‘the opposing party’ from admitting pre-suit documents; it does not preclude a party from using its own pre-suit documents.” Scalice, 120 So. 3d at 217. Because Appellants’ pre-suit expert affidavit created a genuine issue of material fact concerning whether Appellees’ breach of the standard of care proximately caused the still-born deaths of Appellants’ twin children, the trial court erred in entering summary judgment for Appellees. Accordingly, we reverse and remand for further proceedings.

Reversed and Remanded.

Per Curiam.

Jay, C.J., and Makar and Soud, JJ., concur.