Filing # 38536094 E-Filed 03/02/2016 05:41:08 PM

IN THE CIRCUIT COURT OF THE SIXTH

JUDICIAL CIRCUIT, IN AND FOR PINELLAS
COUNTY, FLORIDA
CASE NO.: 15-007645-CI

MARK FLOOD,
Plaintiff,
v.
BLAKE TAYLOR, a/k/a BLAKE TAYLOR
FLOOD,
Defendant.
________________________________________/
DEFENDANT BLAKE TAYLORS
ANSWER AND AFFIRMATIVE DEFENSES TO THE AMENDED COMPLAINT
Defendant Blake Taylor (Taylor or Defendant), by and through undersigned counsel,
and pursuant to Rule 1.140 of the Florida Rules of Civil Procedure hereby answers the Amended
Complaint and asserts various affirmative defenses:
ANSWER TO THE AMENDED COMPLAINT
Jurisdiction and Venue
1.

Defendant admits the allegations contained in paragraph 1.

2.

Defendant admits the allegations contained in paragraph 2.

3.

Defendant admits that Plaintiff has alleged the requisite jurisdictional amount for

this Court, but Defendant denies that Plaintiff is entitled to any damages.
4.

Defendant admits that venue is proper in this Court, but Defendant denies any

wrongdoing or actionable conduct.

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Nature of the Proceedings

5.

Defendant admits that Plaintiff is a spine surgery, but Defendant denies that

Plaintiff has an excellent professional reputation.

6.

Defendant admits the allegations contained in paragraph 6.

7.

Defendant admits the allegations contained in paragraph 7.

8.

Defendant admits the allegations contained in paragraph 8.

9.

Defendant admits the allegations contained in the first sentence of paragraph 9.

Plaintiff denies that she uses the Websites to direct traffic to the Twitter Account.
10.

Defendant can neither admit or deny the overbroad and compound statements in

paragraph 10 of the Amended Complaint, which uses vague, non-specific references such as in
a variety of ways and numerous photographs without meaningful limitation or description.
As phrased, Defendant is without sufficient information or knowledge to admit or deny the
allegations contained in paragraph 10; therefore, the allegations are denied.
11.

Defendant denies the allegations contained in paragraph 11.

(a)

Defendant admits that the statement was made, which speaks for itself, but

Defendant denies the second sentence of paragraph 11(a).

(b)

Defendant admits that the statement was made, which speaks for itself.

(c)

Defendant admits that the statement was made, which speaks for itself.

(d)

Defendant admits that the statement was made, which speaks for itself.

12.

Defendant is without sufficient information or knowledge to admit or deny the

allegations contained in paragraph 12; therefore, the allegations are denied.

13.

Defendant is without sufficient information or knowledge to admit or deny the

allegations contained in paragraph 13; therefore, the allegations are denied.

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14.

Defendant denies the allegations contained in paragraphs 14.

COUNT I
DEFAMATION

15.

Defendant restates her responses to paragraphs 1 through 10, and 11(b) (d), and

12 through 14.
16.

Defendant denies the allegations contained in paragraph 16.

17.

Defendant denies the allegations contained in paragraph 17.

18.

Defendant denies the allegations contained in paragraph 18.

19.

Defendant denies the allegations contained in paragraph 19.

20.

Defendant is without sufficient information or knowledge to admit or deny the

allegations contained in paragraph 20; therefore, the allegations are denied.

21.

Defendant denies the allegations contained in paragraph 21.

22.

Defendant denies the allegations contained in paragraph 22.

Defendant denies that Plaintiff is entitled to damages or relief as requested in the

WHEREFORE clause.
COUNT II
INVASION OF PRIVACY PUBLIC DISCLOSURE OF PRIVATE FACTS
23.

Defendant restates her responses to paragraphs 1 through 11(a) and 12 through

24.

Defendant denies the allegations contained in paragraph 24.

25.

Defendant denies the allegations contained in paragraph 25.

26.

Defendant denies the allegations contained in paragraph 26.

27.

Defendant denies the allegations contained in paragraph 27.

28.

Defendant denies the allegations contained in paragraph 28.

14.

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 2nd day of March, 2016, a true and correct copy of the
foregoing was electronically filed with the Clerk of the Court using ECF. I also certify that the
foregoing document is being served on this day via E-Mail to the following: David A. Maney,
Esq., (denise.mdjk@gmail.com; Davidm9356@aol.com; eserviceMDJK2@gmail.com), Maney,
Damsker, Jones & Kuhlman, P.A., P.O. Box 172009, Tampa, FL 33672-2009.
/s/ Jeremy M. Colvin
Jeremy M. Colvin

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Third Affirmative Defense

Failure to State a Cause of Action Statements of Pure Opinion are Not Actionable and
are Constitutionally Protected Free Speech
Plaintiff cannot state a valid cause of action for defamation because statements of pure
opinion are not actionable. White v. Fletcher, 90 So.2d 129, 131 (Fla. 1956) (noting that opinion
or inference from facts assumed to be true are immune from liability for defamation); Demby v.
English, 667 So.2d 350, 355 (Fla. 1st DCA 1996) (finding that an expression of pure opinion is
not actionable defamation). Pure opinions are protected as free speech under the United States
Constitution. See e.g. Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-340 (1974) (Under the
First Amendment there is no such thing as a false idea. However pernicious an opinion may
seem, we depend for its correction not on the conscience of judges and juries but on the
competition of other ideas.).
Similarly, the Constitution of the State of Florida affords its citizens the right to free
speech, which includes the right to express personal opinions:
Every person may speak, write and publish sentiments on all subjects but shall be
responsible for the abuse of that right. No law shall be passed to restrain or
abridge the liberty of speech or of the press. In all criminal prosecutions and civil
actions for defamation the truth may be given in evidence. If the matter charged
as defamatory is true and was published with good motives, the party shall be
acquitted or exonerated.
Fla. Const. Art. 1 4. The foregoing constitutionally protected right to discuss, comment upon,
criticize, and debate, indeed, the freedom to speak on any and all matters is extended not only to
the organized media but to all persons. Nodar v. Galbreath, 462 So.2d 803, 808 (Fla. 1985),
superseded by Fla. Stat. 768.095 on other grounds.

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Fourth Affirmative Defense

Failure to State a Cause of Action - Failure to Plead Special Damages
Plaintiff has not stated a valid cause of action for defamation because he has not alleged
any special damages as a result of the allegedly defamatory tweets, and the Complaint should be
dismissed. Piver v. Haberman, 220 So. 2d 408, 409 (Fla. 3d DCA 1969) (motion to dismiss
granted because [a]n allegation of special damages is an indispensable element of a complaint if
the cause of action alleged is libel per quod.).
Special damages are the natural result of harm caused by another that require specific
proof because they are not presumed by the law. Precision Tune Auto Care, Inc. v. Radcliffe,
804 So. 2d 1287, 1292 (Fla. 4th DCA 2002) (Special damages are considered to be the natural
but not the necessary result of an alleged wrong or breach of contract. In other words, they are
such damages as do not follow by implication of law merely upon proof of the breach.), quoting
Augustine v. S. Bell Tel. & Tel. Co., 91 So. 2d 320, 323 (Fla. 1956).
The vague references in the Complaint to severe injury to his personal and professional
reputation, extreme personal stress, mental anguish, embarrassment, and lost future
potential employment and/or earning capacity are insufficient to demonstrate special damages.
Fla. R. Civ. P. l.120(g) (When items of special damages are claimed, they shall be specifically
stated.) (Emphasis added).
Fifth Affirmative Defense
Failure to State a Cause of Action Failure to Demonstrate the Invasion of Privacy is
Highly Offensive to a Reasonable Person
Plaintiff cannot state a valid cause of action against Defendant for invasion of privacy
because Plaintiff cannot demonstrate that the statements and photograph are highly offensive to a
reasonable person. Post-Newsweek Stations Orlando, Inc. v. Guetzloe, 968 So. 2d 608, 613 (Fla.

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5th DCA 2007) (noting that to prove the tort of invasion of privacy by publication of private
facts, publication must be highly offensive to a reasonable person.); Cape Publications, Inc. v.
Bridges, 423 So. 2d 426, 427 (Fla. 5th DCA 1982) (In determining the extent of the right of
privacy, the standard by which the right is measured is based upon a concept of the person of
reasonable sensibility; the hypersensitive individual will not be protected.).
Sixth Affirmative Defense
Failure to State a Cause of Action Failure to Demonstrate
Publicity for the Invasion of Privacy Claim
Plaintiff cannot state a cause of action for invasion of privacy because Plaintiff is unable
to establish enough publicity to make Defendants alleged conduct actionable for public
disclosure of private facts. Williams v. City of Minneola, 575 So. 2d 683, 689 (Fla. Dist. Ct.
App. 1991) (. . .[T]the publicity given to private facts must be to the public at large or to so
many persons that the matter must be regarded as substantially certain to become public
knowledge.); citing Restatement (Second) of Torts 652D, Comment a.; Bilbrey v. Myers, 91
So. 3d 887, 892 (Fla. 5th DCA 2012).
Seventh Affirmative Defense
Failure to State a Cause of Action Republication of Facts
Plaintiff cannot state a valid cause of action against Defendant for invasion of privacy
because the statements and photograph are facts that have been publicized elsewhere.
Republished facts cannot serve as the basis for a claim for invasion of privacy. Heath v. Playboy
Enterprises, Inc., 732 F. Supp. 1145, 1149 (S.D. Fla. 1990).
Eighth Affirmative Defense
Comparative Negligence
Plaintiff was guilty of negligence, which was the sole and legal cause of the incident(s)
described in the Amended Complaint, thereby barring all claims arising therefrom, or in the
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alternative, such negligence contributed to the accident and alleged damages, thus requiring an
apportionment of Plaintiffs damages according to Plaintiffs degree of fault. Plaintiff failed to
take ordinary and reasonable care in conducting himself personally and professionally and in
protecting his image and reputation. Plaintiffs failure to use all ordinary and reasonable care
was the direct and proximate cause of the Plaintiffs damages.
Ninth Affirmative Defense
Estoppel
By his own action and inaction in addressing the statements and photograph, Plaintiffs
claims are barred by the doctrine of estoppel.

Plaintiffs failure to use all ordinary and

reasonable care was the direct and proximate cause of the Plaintiffs damages. Plaintiff is
estopped from claiming that Defendant is responsible for injuries and damages.
Tenth Affirmative Defense
Laches
By his own action and inaction in addressing the statements and photograph, Plaintiffs
claims are barred by the doctrine of laches. Plaintiffs failure to use all ordinary and reasonable
care was the direct and proximate cause of the Plaintiffs damages. Plaintiff is estopped from
claiming that Defendant is responsible for injuries and damages.
Eleventh Affirmative Defense
Intervening and Superseding Causes
There were sufficient intervening and superseding causes, including the negligence of
other persons, parties, or entities over which this Defendant had no control. At the time and
place described in the Amended Complaint, person or persons not operating under the control
and consent of this Defendant may have carelessly and negligently conducted themselves so as to

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cause the alleged accident, injuries and damages, and such negligence was the sole and
proximate cause of the accident, thus barring all claims for damages against this Defendant.
Twelfth Affirmative Defense
Liability of Third Parties
This Defendant is entitled to have its liability reduced on a pro rata basis for the
negligence of any and all persons or entities not parties to this litigation. In accordance with
section 768.81, Florida Statutes, this Defendant is entitled to an apportionment of fault and an
apportionment of damages as the Doctrine of Joint and Several Liability has been abolished.
Defendant is entitled to a reduction of any award or judgment in the amount for which it
may be liable to the Plaintiff to the fullest extent available under the laws of indemnity,
comparative negligence, and contribution.
Thirteenth Affirmative Defense
Collateral Sources, Set-Off, and Recoupment
This Defendant is entitled to a set-off, under any other applicable Florida Statutes, for
benefits the Plaintiff has received, or is entitled to receive payment under, from a collateral
source or potential tortfeasor. This Defendant does not intend the term collateral sources to be
only as defined by Chapter 768. By the use of this term, this Defendant intends to assert its right
to be entitled to or given a reduction, set-off, remittitur, or other credit for any medical expense
charges which were not actually paid by the Plaintiff, which constitutes a write-off by any third
party payor, or for which no right of subrogation or reimbursement exists or is claimed. This
includes but is not limited to reduction of medical bills to liens.
Defendant asserts that it is entitled to a set-off of any contractual discount of medical bills
or expenses, negotiated write off of medical bills or expenses or negotiated agreement to pay
medical bills or other expenses in the future pursuant to the law of collateral source set-offs and
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Goble v. Frohman, 901 So.2d 830 (Fla. 2005). Alternatively, Plaintiff is not entitled to claim
bills, costs, or expenses incurred but waived or not actually incurred by the Plaintiff.
Defendant asserts that the Plaintiffs past and future damages are reduced or set-off by
the amount of any governmental or charitable benefits available and further, that the Defendant
is entitled to a set-off by any and all payments which have been made or will be made to the
Plaintiff as a result of the injuries alleged in the Amended Complaint.
Fourteenth Affirmative Defense
Failure to Mitigate
Plaintiff failed to mitigate damages because the medical bills are not reasonable and/or
necessary; the billing is excessive; the treatment and/or billing was not casually related to the
accident; the medical providers have engaged in conduct (excessive billing or treatment) which
was not reasonably foreseeable; Plaintiff had health insurance and treated under a Letter of
Protection which is void against public policy, and Defendant is entitled to a write-down or
setoff pursuant to Section 641.3154, Florida Statutes; and if Plaintiff is a Medicare beneficiary,
this Defendant is entitled to a write-down or set-off under the Medicare fee schedule.
Additionally, Plaintiff failed to mitigate or minimize his damages and injuries by, among
other things, failing to timely appropriately demand removal of any offending statements or
photographs. Plaintiffs failure to use all ordinary and reasonable care was the direct and
proximate cause of the Plaintiffs damages.
Accordingly, Plaintiffs recovery against this Defendant, if any, should be reduced and/or
precluded to the extent of the Plaintiffs failure to mitigate his damages.

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Fifteenth Affirmative Defense

Pre-Existing and Subsequent Conditions
Any disability, disfigurement, injury, or damage claims alleged by Plaintiff are a result of
pre-existing conditions or were caused by a subsequent injury or injuries and were caused or
aggravated by any alleged acts of negligence of third parties.
WHEREFORE, BLAKE TAYLOR respectfully requests this Court to dismiss the
Amended Complaint in its entirety with prejudice, and to grant any other relief deemed
appropriate and just.
Dated this 2nd day of March, 2016.
Respectfully submitted,
McDonald Hopkins LLC
Attorneys for Blake Taylor
505 South Flagler Drive, Suite 300
Telephone: (561) 472-2121
Facsimile: (561) 472-2122
By:

/s/ Jeremy M. Colvin

Christopher B. Hopkins
Florida Bar Number: 116122
Email: chopkins@mcdonaldhopkins.com
Jeremy M. Colvin
Florida Bar Number 0152226
Email: jcolvin@mcdonaldhopkins.com

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 2nd day of March, 2016, a true and correct copy of the
foregoing was electronically filed with the Clerk of the Court using ECF. I also certify that the
foregoing document is being served on this day via E-Mail to the following: David A. Maney,
Esq., (denise.mdjk@gmail.com; Davidm9356@aol.com; eserviceMDJK2@gmail.com), Maney,
Damsker, Jones & Kuhlman, P.A., P.O. Box 172009, Tampa, FL 33672-2009.
/s/ Jeremy M. Colvin
Jeremy M. Colvin

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