IN THE SUPREME COURT OF FLORIDA CASE NO. SC KHOSROW MAKEKI, M.D., and KHOSROW MALEKI, P.A., a Florida professional association,

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC KHOSROW MAKEKI, M.D., and KHOSROW MALEKI, P.A., a Florida professional association, Petitioners, vs. M.A. HAJIANPOUR, M.D., M.A. HAJIANPOUR, M.D., P.A. a Florida professional association and ZOYA PHYSICAL THERAPY AND REHABILITATION CENTER, INC., Respondents. RESPONSE TO JURISDICTIONAL BRIEF CYNTHIA E. GUNTHER BRUCE S. ROGOW, P.A. Broward Financial Centre, Ste East Broward Blvd. Fort Lauderdale, FL (954) BRUCE S. ROGOW BRUCE S. ROGOW, P.A. Broward Financial Centre, Ste East Broward Blvd. Fort Lauderdale, FL (954)

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10 TABLE OF CONTENTS Page TABLE OF CITATIONS... ii STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT... 3 THERE IS NO CONFLICT;... THERE IS NO JURISDICTION 3 CONCLUSION... 7 CERTIFICATE OF SERVICE... 8 CERTIFICATE OF COMPLIANCE... 9 x

11 TABLE OF CITATIONS CASES Page Florida Dep t of Transportation v. Armadillo Partners, So. 2d 279 (Fla. 2003) 2, 3, 5 Hajianpour v. Maleki, 932 So. 2d 459 (Fla. 4 th DCA 2006)...1, 3, 4, 7 H.K. Corp. v. Estate of Miller, 405 So. 2d 218 (Fla. 3d DCA 1981)... 6 Orpe v. Carnival Corp., 909 So. 2d 929 (Fla. 3d DCA 2005)... 6 Rochelle v. State Road Department, 196 So. 2d (Fla. 2d DCA 1967) 5 State Road Department v. Falcon, Inc., 157 So. 2d (Fla. 2d DCA 1963) 5, 6 xi

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13 STATEMENT OF THE CASE AND FACTS The Petitioner s Statement of the Case and Facts (as set out in the district court s decision) (Petitioner s Brief, p. 2) is accurate to the extent that it restates the case and facts from the decision below. The sum and substance of the decision below is that Petitioner s expert testimony that two doctors who had no obligation to practice together, who had been in litigation since 1992, who had no buyer for a practice, who had in the ensuing twelve years never made more than $600,000 a year, would be grossing $18.7 million in 2012 and earn $5 million a year after taxes was conjecture and speculation and should have been stricken. Hajianpour v. Maleki, 932 So. 2d 459, 462 (Fla. 4 th DCA 2006). As we demonstrate below, the decision below posed no conflict with this Court s decisions and no disharmony with the decisions of any other court. 1

14 Therefore review should be denied. 2

15 SUMMARY OF THE ARGUMENT There is no express and direct conflict with Florida Dep t of Transportation v. Armadillo Partners, 849 So. 2d 279 (Fla. 2003) or any other cases and therefore there is no basis for the exercise of jurisdiction. The District Court of Appeal decision was based on established case law that requires the striking of expert testimony that is conjectural and speculative and unsupported by facts or recognized methodology. That is all that happened here. Neither Armadillo nor its predecessors and progeny (Petitioner s Brief, p. 6) were, or are, implicated by the decision below. 3

16 ARGUMENT THERE IS NO CONFLICT; THERE IS NO JURISDICTION Petitioner asserts that the decision below establishes a direct, express, and flagrant departure from the Armadillo directive that an expert s evaluation method is not a matter that relates to the competency of his testimony unless the method used by the witness is so totally inadequate or improper that adoption of the method would require departing from all common sense and reason.... Petitioner s Brief, p. 6. The Petitioner, after quarreling with what the District Court of Appeal did find and did not do (id. at 8) (emphasis in original), concludes its conflict argument with the Armadillo doctrine contemplates that juries are fully capable of weighing the opinions of competing experts subjected to the crucible of cross-examination. Id. at 9. 4

17 Petitioner s zeal in disagreeing with the opinion below glosses over the reasons why the court found the McNulty opinion to be based on speculation and conjecture, not supported by the facts, or not arrived at by recognized methodology.... Hajianpour v. Maleki, 932 So. 2d at 464. Indeed, those reasons actually meet the Armadillo totally inadequate or improper caveat. Armadillo, 849 So. 2d at 287. The court below wrote: McNulty assumed that these two physicians would continue in practice for twenty years, despite the fact that neither one of them had a long term employment agreement or a non-compete agreement with the P.A. He was unable to explain any factual basis for his assumption that they would practice together for twenty years. * * * On cross-examination McNulty admitted that he assumed in his evaluation an ongoing business even though he knew there was not one because the litigation began in July He assumed no breach and did not consider whether a buyer would buy a business in litigation. McNulty did not consider the present or future impact of 5

18 competing practices. 932 So. 2d at 462. McNulty, who had never valued a professional association provider of medical services assumed a rapid increase in their practice and concluded that in the year 2012 the two physicians would be together grossing $18.7 million and they would each be earning $5 million a year after taxes. Id. (emphasis supplied). If there were ever a case that cried out for application of the principles striking expert testimony as conjectural, speculative, unfounded and unsupported by recognized methodology, this is the case. This is not a case of an expert not considering all the factors; this is a case of an expert offering an opinion that cannot be applied to the facts. Hajianpour and Maleki were kaput and there was no way to opine that 20 years after their rift they would make $18.7 million dollars. The cases cited by Petitioner as consistent with Armadillo are, indeed, consistent, making them distinguishable from the instant case. Rochelle v. State Road Department, 196 So. 2d 477 (Fla. 2d DCA 1967), involved a dispute about the value of land acquired for the construction of an interchange for the turnpike. Id. at 478. The trial judge excluded expert testimony which compared the land to similar land in different areas where the turnpike passed. Id. On appeal, the second district concluded that despite the remoteness of the properties from one 6

19 another, this was a reasonable comparison given the purpose and design of a turnpike and reversed the admissibility ruling. See id. at The expert in Rochelle did not imagine lands used for turnpikes that did not exist. That would have been analogous to the invented factors used in McNulty s testimony. There is no analogy to be made between the instant case and Rochelle. State Road Department v. Falcon, Inc., 157 So. 2d 563 (Fla. 2d DCA 1963), like Armadillo involved a failure to include a particular factor. Id. at 564. In Falcon, an eminent domain case, experts were utilized to determine the value of the subject land. See id. The trial court granted a new trial based on prejudice caused by the failure of one expert to include in his evaluation a particular sale involving the property. Id. The district court reversed, finding that failure to be too minor to support taking discretion away from the jury. Id. at 566. Falcon does not support the notion that experts can inflate their calculation results with facts not supported in the record. H.K. Corp. v. Estate of Miller, 405 So. 2d 218 (Fla. 3d DCA 1981), and Orpe v. Carnival Corp., 909 So. 2d 929 (Fla. 3d DCA 2005), are equally inapplicable. H.K. Corp. was a personal injury case involving a diving accident. Id. at 219. The purpose of the expert s testimony in that case was to help prove that the hotel pool s inadequate water level was the proximate cause of the 7

20 Plaintiff s injury. Id. The court stated that the testimony of plaintiffs expert witness was properly admitted into evidence on the basis that... the sufficiency of the facts required to form an opinion must normally be decided by the expert himself. There is no dispute that McNulty was entitled to determine the sufficiency of the facts forming the basis of his opinion. His expert opinion did not however, afford him the ability to create facts. Orpe, another personal injury case arising from a cruise ship passenger s injury, dealt with the qualifications of the Plaintiff s sole liability witness to testify as an expert. 909 So. 2d at 930. The instant case is not concerned with issues of expert qualifications. Finally, Petitioner contends that Respondent s expert at trial (Mr. Fishkind) provided evidence on which the jury could have found damages, undermining the district court s decision of no liability. Petitioner has simply ignored that the District Court recognized that [i]n Fishkind s opinion, Maleki had mitigated any and all damages he might have sustained as a result of the breach and was entitled to nothing. Maleki v. Hajianpour, 932 So. 2d 459 (Fla. 4th DCA 2006). Thus, there was no competent evidence to support Maleki s claim. CONCLUSION The decision below posed no conflict with this Court s decisions, nor any disharmony or fear for a slew of inter-district and intra district conflicts. 8

21 Petitioner s Brief, p. 10. Review should be denied. 9

22 Respectfully submitted, BRUCE S. ROGOW Florida Bar No CYNTHIA E. GUNTHER Florida Bar No BRUCE S. ROGOW, P.A. Broward Financial Centre, Suite East Broward Blvd. Fort Lauderdale, FL Ph: (954) Fax: (954) Counsel for Respondents CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished via U.S. Mail this 19th day of September, 2006 to the following persons: JEFFREY P. KAISER, ESQ E. Saint Andrews Drive Hialeah, FL ARTHUR J. ENGLAND, JR. GREENBERG TRAURIG, P.A Brickell Avenue Miami, FL JOHN R. KELSO CATHERINE M. RODRIGUEZ LEVEY, AIRAN, SHEVIN, ET AL. Gables One Tower, PH #

23 1320 South Dixie Highway Coral Gables, FL CYNTHIA E. GUNTHER CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Brief is in compliance with Rule 9.210, Fla. R. App.P., and is prepared in Times New Roman 14-point font. CYNTHIA E. GUNTHER 11