Third District Court of Appeal
State of Florida
Opinion filed July 2, 2014.
Not final until disposition of timely filed motion for rehearing.
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No. 3D13-2291
Lower Tribunal No. 09-35784
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Yuri Bery, as personal representative of the estate of Juliana Bery,
et al.,
Appellants,
vs.
Ghassan Fahel, D.O.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Antonio Arzola,
Judge.
Austin & Laurato, P.A., and Laura Datz and Michael V. Laurato (Tampa),
for appellants.
Fann & Petruccelli, P.A., and Michael A. Petruccelli, and Steven A. Osher
(Fort Lauderdale); Hicks, Porter, Ebenfeld & Stein, P.A., and Dinah Stein and Erik
P. Bartenhagen, for appellee.
Before WELLS, LOGUE, and SCALES, JJ.
LOGUE, J.
Yury Bery, as personal representative of the estate of Juliana Bery, and
others (collectively, “the estate”) appeal a final order of dismissal for failure to
comply with medical malpractice presuit requirements. As part of its presuit
investigation, the estate submitted an affidavit of Mark Khilnani, M.D., to serve as
the required medical expert opinion corroborating its claims against Ghassan
Fahel, D.O. See § 766.203, Fla. Stat. (2008). This court reversed the trial court’s
initial order of dismissal for failure to comply with presuit requirements and
remanded for an evidentiary hearing to determine “whether Dr. Khilnani qualifies
to act as an expert witness against Dr. Fahel, in light of Dr. Khilnani’s
qualifications and his attempt to withdraw his affidavit . . . .” Bery v. Fahel, 88 So.
3d 236, 238 (Fla. 3d DCA 2011). Upon remand, the trial court held an evidentiary
hearing and then entered a final order of dismissal on the basis that Dr. Khilnani is
unqualified to act as an expert witness against Dr. Fahel. We affirm because
competent, substantial evidence supports the trial court’s conclusion.
Affirmed.
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