20-004950MA Keiry Garay And Keiry Garay, As Co-Personal Representatives Of The Estate Of Gladis Garay, Deceased, On The Behalf Of The Estate Of Gladis Garay And On Behalf Of Jose Garay, Individually, And On Behalf Of Beverly Garay, Jeffrey Garay, Jose Garay, Jr., And Kase Garay vs. Margaret Mgbemena, M.D. Status: Closed DOAH Final Order on Tuesday, July 20, 2021.

Summary: Amended Arbitration Award Including Periodic Payments

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

K EIRY G ARAY A ND K EIRY G ARAY , A S

C O - P ERSONAL R EPRESENTATIVES OF T HE

E STATE OF G LADIS G ARAY , D ECEASED , O N

T HE B EHALF OF T HE E STATE OF G LADIS

G ARAY A ND O N B EHALF OF J OSE G ARAY , Case No. 20 - 4950MA

I NDIVIDUALLY , A ND O N B EHALF OF

B EVERLY G ARAY , J EFFREY G ARAY ,

J OSE G ARAY , J R ., A ND K ASE G ARAY ,

Claimants ,

vs.

M ARGARET M GBEMENA , M.D. ,

Defendant .

/

A MENDED A RBITRATION A WARD

The final arbitration hearing in this case was held before June C.

McKinney, Chief Arbitrator; David Halberg, Arbitrator; and Ilisa Hoffman,

Arbitrator, on June 16 through 18, 2021, by Zoom conference.

For Claimants : Nancy La Vista, Esquire

Clark Fountain La Vista Prather

Keen & Littky - Rubin

1919 North Flagler Drive, Second Floor

West Palm Beach, Florida 33407

For Defendant : Steven M. Lury, Esquire

La Cava Jacobson & Goodis

701 Northpoint Parkway, Suite 330

West Palm Beach, Florida 33407

At the conclusion of the arbitration hearing and presentation of all

evidence, the following award was agreed to by a majority vote of the

arbitrators on June 18, 2021, and announced to the parties the same day:

1. Past Economic Damages:

a. Jose Garay, Sr. Past Loss of Services $29,613.00

2. Future Economic Damages Reduced to Present Money Value:

a. Jose Garay, Sr. Loss of Services $1,390,980.00

b. Beverly Garay Loss of Services $97,613.00

Set - off for Social Secur ity $ (48,160.00)

Total $49,453.00

b. Kasey Garay Loss of Services $57,801.00

Set - off for Social Security $ (48,160.00)

Total $9641.00

3. Estate Funeral Expenses Claim: $6,878.00

4. Medical Bills: $457,401.33

Set - off for lien $ (114,000.00)

Total $343,401.33

4. Non - economic damages for 100% Loss of Capacity to Enjoy Life:

a. Jose Garay, Sr. $250,000.00

b. Beverly Garay $250,000.00

c. Jeffrey Gara y $250,000.00

d. Jose Garay , Jr. $250,000.00

e. Kasey Garay $250,000.00

Total Arbitration Award: $3,079,966.33

The parties have agreed to pay Arbitrator s Halberg and Hoffman at the

rate of $750.00 per hour. Accordingly, no later than 30 days from the date of

this Arbitration Award, Defendant Margaret Mgbemena, M.D. , shall pay

each arbitrator other than the Chief Arbitrator. Defendant shall also pay for

the costs of the arbitration proceeding.

The Arbitration Panel determined that the reasonable attorneyÔs fees to

be paid by Defendant for Claimant s Ô attorneyÔs fees s hall be 15 percent of the

present value of the total award, in the sum of $461,994.95.

In the original Arbitration Award dated June 24, 2021, jurisdiction was

reserved to address provisions for periodic payments. Each party responded

unilaterally. Claiman tsÔ Unilateral Notice of Compliance with Arbitration

Award Regarding Periodic Payments maintained that ÑClaimants are not

requesting periodic payments of the Arbitration Award pursuant to

§766.207(7)(c), Florida Statutes (2020) and as defined in §766.202(9 ), Florida

Statutes (2020).Ò Defendant contends in [DefendantÔs] Unilateral Notice of

Compliance with Arbitration Award Regarding Periodic Payments that

Ñ[Defendant] proposes that pursuant to § 766.207(7) (c) , Florida Statutes, that

all damages awarded for future economic losses shall be paid by periodic

payments as provided for in £ 766.202(9), Florida Statutes.Ò

Section 766.207 provides that Ñdamages for future economic losses shall

be awarded to be paid by periodic payments pursuant to s. 766.202(9).Ò

Se ction 766.202(9)(c) provides that Ñthe provision for payment of future

damages by periodic payments shall specify the recipient or recipients of the

payments, the dollar amounts of the payments, the interval between

payments, and the number of payments or the period of time over which

payments shall be made.Ò No schedule was provided to aid in the

undersignedÔs decision - making regarding periodic payments pursuant to

section 766.202(9)(c). Therefore, the future economic damages from this

award, $1,450,074.00 , shall be paid to Claimants by periodic payments over

the next year in quarterly installments. All other damages shall be paid

within 30 days.

D ONE A ND O RDERED this 2 0th day of Ju ly , 2021 , in Tallahassee, Leon

County, Florida.

S

J UNE C. M CKINNEY , Chief Arbitrator

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 0th day of Ju ly , 2021.

C OPIES F URNISHED :

Nancy La Vista, Esquire Steven M. Lury, Esquire

Clark Fountain La Vista Prathe r La Cava Jacobson & Goodis

Keen & Littky - Rubin 701 Northpoint Parkway , Suite 330

1919 North Flagler Drive, Second Floor West Palm Beach, Florida 33407

West Palm Beach, Florida 33407

Ilisa W. Hoffman, Esquire

David J. Halberg, Esquire Hoffman Law Group, P.A.

David J. Halberg, P.A. 4601 Ponce de Leon Boulevard , Suite 350

1615 Forum Place , Suite 3 - B Coral Gables, Florida 33146

West Palm Beach, Florida 33401

N OTICE OF R IGHT T O J UDICIAL R EVIEW

A party who is adversely affected by this Final Order is entitled to judicial

review pursuant to section 120.68, Florida Statutes. Review proceedings are

governed by the Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing the original notice of administrative appeal with the

agency clerk of the Division of Administrative Hearings within 30 days of

rendition of the order to be reviewed, and a copy of the notice, accompanied

by any filing fees prescribed by law, wi th the clerk of the District Court of

Appeal in the appellate district where the agency maintains its headquarters

or where a party resides or as otherwise provided by law.