August 18, 2014
Jane Doe I and Jane Doe II v. Sean Adam Simon, M.D. and Coral Gables Cosmetic Center
Response to a Motion to Dismiss
The personal injury lawyers at Lipcon, Margulies & Winkleman, P.A. specialize in maritime injury cases, but are equally capable of handling land based injury claims as well. In this case, a pair of women who received plastic surgery had their private before and after images posted online against their wishes. The Plaintiffs sued and the doctor and plastic surgery center moved to dismiss their complaint. In this response, one of our skilled personal injury lawyers explains via a memorandum to the court why the case cannot be dismissed.
IN THE CIRCUIT COURT OF THE 11TH
JUDICIAL CIRCUIT IN AND FOR
MIAMI-DADE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
CASE NO.: 12-07126 CA 09
JANE DOE I
JANE DOE II,
SEAN ADAM SIMON, MD, an Individual,
CREART, LLC, and
CORAL GABLES COSMETIC CENTER
PLAINTIFFS’ RESPONSE IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT
Plaintiffs, JANE DOE I and JANE DOE II, by and through their undersigned counsel, hereby file their response to Defendants SEAN ADAM SIMON, MD and CORAL GABLES COSMETIC CENTERS’ MotionS to Dismiss, and for good cause rely on the following:
This case involves the publishing of private nude photographs taken of the Plaintiffs for medical purposes. These photographs were not published in a medical journal or textbook, they were published on Dr. Simon’s and Coral Gables Cosmetic Center’s (“Defendants”) websites for purposes of advertising, self-promotion, and profit.
As pled in Plaintiffs’ second amended complaint, the Defendants told the Plaintiffs that their photographs would not be published on the web. Despite telling the Plaintiffs that these photographs would not be put on the web, the Defendants surreptitiously had the Plaintiff’s sign an ambiguous consent form and then posted the photographs against Plaintiffs’ wishes and for the Defendants’ personal gain.
As Plaintiffs set forth below, there is no merit to the Defendants’ contentions that the Plaintiffs’ claims are barred by the consent forms attached to the second amended complaint, and as such the Defendants’ motion to dismiss should be denied in its entirety.
2. The validity and enforceability of a waiver is a question of fact not appropriately decided upon a motion to dismiss.
The overall thrust of the Defendants’ entire motion to dismiss is that the Plaintiffs’ claims are barred by the waivers attached to the Plaintiffs’ second amended complaint. This argument fails for the pure and simple reason that whether a waiver is valid is a question of fact. See Rutig v. Lake Jem Land Co., 20 So.2d 497, 499 (Fla. 1945). As this Honorable Court is well aware, a motion to dismiss is designed to test the legal sufficiency of a complaint, not determine any factual issues. See The Fla. Bar v. Greene, 926 So.2d 1195, 1199 (Fla. 2006). Accordingly, the Defendants’ claim that the waivers are valid and act as a bar to Plaintiff’s claims fails and their motions to dismiss should be denied.
a. Even if this Honorable Court could consider the validity of the waivers when deciding this motion to dismiss, the Defendants’ arguments would fail because it is clear the waivers were not given with full knowledge and consent. At best the waivers are ambiguous and thus construed against their drafters.
The Defendants claim that the Plaintiff’s provided “full and knowledgeable consent” for the publication of their private nude photographs/medical records. The Defendants stress this point because the alleged waivers would be enforceable only to the extent that the intention of the waiver be clear and unequivocal; the wording must be so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away. See Gayon v. Bally’s Total Fitness Corp., 802 So.2d 420 (Fla. 3d DCA 2001).
The language in the waivers is certainly not such that an ordinary and knowledgeable person would be aware that they were consenting to the publication of their private medical records on a website. Nowhere in the waiver is there a mention made of publication on either Dr. Simon’s or Coral Gables Cosmetic center’s website. Coupled with the allegations in the complaint that the Plaintiffs were specifically told their private nude photographs/medical records would not be published on the websites, it is clear that the Plaintiffs did not give full and knowledgeable consent.  At best, the language in the waivers is ambiguous and would thus be construed against the Defendants to find that the Plaintiffs had not consented to the use of their photographs on the Defendants’ webpage. See Planck v. Traders Diversified, Inc., 387 So.2d 440 (Fla. 4th DCA 1980).
3. Even if the waivers could be considered at this stage and were found to be valid and enforceable, they would still not bar Plaintiffs’ claims as the terms of the waivers were violated.
Again, all of the issues regarding the waivers attached to the second amended complaint are factual issues that cannot be decided upon a motion to dismiss. However, if the Court were to consider the waivers they would still not bar Plaintiffs’ claims as the Defendants clearly violated the terms therein.
The waivers specify that “IN ANY SUCH PUBLICATION OR USE. I SHALL NOT BE IDENTIFIED BY NAME.” As alleged in the second amended complaint, the Plaintiffs’ photographs were posted on the Defendants’ websites with their names attached to the photographs as metadata. Metadata is information attached to an electronic document. As the Defendants explained, this data is not necessarily visible on the document itself and thus the Defendants argue that the waivers were not violated. As stated above, this is a factual issue inappropriate for determination upon a motion to dismiss. Nonetheless, the Plaintiffs address this argument for the record.
Notably, the Defendants do not deny that identifying information was attached to the photographs and further that this information was both searchable and visible next to the Plaintiffs’ nude photos/medical records when viewed on google. Boiled down to its simplest form, the Defendants are arguing that the Plaintiffs were identified by name, but only in the fine print. Since the Defendants did not plaster Plaintiffs’ names in big bold letters atop their nude bodies, they hope to be absolved of liability.
This argument does not hold water as the clear purpose of this portion of the waiver is to assure the consenting party that even if the photographs are used for medical purposes, no one viewing the photographs will ever be able to identify the photographed individual. The metadata attached to the photographs made the Plaintiffs’ photographs identifiable and thus it violated the terms of the waiver.
The Defendants have filed three motions to dismiss in an effort to delay the Plaintiffs’ claims. This most recent motion is devoid of merit as all of the arguments raised cannot be decided on a motion to dismiss as they are factually based. This Honorable Court should deny the Defendants’ motions so this case can move forward to trial.
WHEREFORE, Plaintiffs respectfully requests this Honorable Court Deny the Defendants’ Motions to Dismiss in their entirety.
 Both Defendants Sean Adam Simon, MD and Coral Gables Cosmetic Center have moved to dismiss Plaintiffs’ second amended complaint. Although these motions were filed separately, they rely on identical arguments and thus Plaintiff files this singular response to both motions.
 Again, these are all factual issues that cannot be determined upon a motion to dismiss.