Abbey Adams Logo

Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Practice In Illinois
  • Practices
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Bruce D. Burk
    • Robert P. Byelick
    • Jaime Eagan
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Steven A. Ochsner
    • Alexis C. Upton
  • Blog
  • Links
  • Contact Us

April 21, 2017 by admin

Torts — Automobile accident — Rear end collision — Discovery — Depositions — Trial court departed from essential requirements of law by granting plaintiff’s motion for protective order to prohibit deposition of her minor son, who was sitting in front seat at time of accident and a material witness as to circumstances in vehicle at time of impact and to plaintiff’s day-to-day activities and how accident affected plaintiff

42
Fla. L. Weekly D882a
Top of Form

Torts
— Automobile accident — Rear end collision — Discovery — Depositions —
Trial court departed from essential requirements of law by granting plaintiff’s
motion for protective order to prohibit deposition of her minor son, who was
sitting in front seat at time of accident and a material witness as to circumstances
in vehicle at time of impact and to plaintiff’s day-to-day activities and how
accident affected plaintiff

AKHNOUKH A. AKHNOUKH and SIMON
BISHOY AKHNOUKH, Petitioners, v. MICHELLE BENVENUTO, Respondent. 2nd District.
Case No. 2D16-4018. Opinion filed April 19, 2017. Petition for Writ of
Certiorari to the Circuit Court for Pinellas County; John A. Schaefer, Judge.
Counsel: Jeffrey D. Jensen of Unice Salzman Jensen, P.A., Trinity, for
Petitioners. Courtney A. Umberger of Barnes Trial Group, Tampa, for Respondent.

(SILBERMAN, Judge.) In this
negligence action arising from a motor vehicle accident, Akhnoukh A. Akhnoukh
and his son, Simon Bishoy Akhnoukh, the Defendants below (collectively, the
Defendants), seek certiorari review of the trial court’s nonfinal order that
grants Plaintiff Michelle Benvenuto’s motion for a protective order to prohibit
the deposition of a witness, her minor son. We grant certiorari relief and
quash the order that prohibits the deposition.

On May 10, 2014, Benvenuto was
stopped at the exit of a gas station, waiting to turn right onto U.S. 19. While
stopped in the driveway, Benvenuto’s vehicle was rear-ended by a vehicle
operated by Simon Akhnoukh and owned by his father. Benvenuto’s son was the
only passenger in the vehicle with Benvenuto and was sitting in the front
passenger seat. He was eight years old at the time of the accident.

Benvenuto subsequently filed her
negligence action seeking damages for personal injuries. Among the Defendants’
affirmative defenses were that Benvenuto was negligent and that she failed to
use a fully operational seatbelt. The Defendants sought to depose Benvenuto’s
minor son, and Benvenuto filed a motion for protective order. The motion
alleged that the minor was not injured in the accident or a party to the
lawsuit and that he could not contribute any meaningful testimony relevant to
the action. The motion further alleged that to require the minor to submit to a
deposition would “result in unnecessary annoyance, embarrassment, burden, and
expense.”

In her deposition of June 14, 2016,
Benvenuto stated that she and her son lived together. He remembered the details
of the accident, but they had not spoken about it recently. She testified that
she was at a complete stop when her vehicle was rear-ended and that she was
wearing her seatbelt. Benvenuto also described the pain she was experiencing to
her neck and shoulder every day. But, since the accident, she had gone to Busch
Gardens with her son and ridden adult rollercoasters; however, she could not
remember the names of the rollercoasters that she rode.

On August 24, 2016, the trial court
conducted a hearing on the motion for protective order. At the hearing,
Benvenuto’s counsel asserted that the minor was only eight years old at the
time of the accident and was eleven years old at the time of the hearing.
Counsel sought a protective order “just because of his age, lack of maturity,
experience” and argued that “minors are especially susceptible to intimidation
during a deposition.” Counsel further questioned what the minor could “provide
in terms of clarity” in this rear-end crash.

Defense counsel stated that the
minor was an eyewitness to the accident and was sitting in the front passenger
seat. Thus, counsel asserted that the minor could “testify as to the forces of
impact and the moments leading up to the accident.” Also, the minor could
“testify about the state of [his mother’s] general health and the activities
that she does on a day-to-day basis.”

The trial court granted the motion
for protective order and stated the following:

I don’t
think an 11-year-old who was eight at the time should be questioned in this
case, a car accident case, and then get into the state of health of his mom. So
I’m going to grant the motion. That’s without prejudice. If we get close to
trial and you go, Judge, we’ve got to have his testimony because of these
incredible conflicts on this one issue, but I’m not going to have a kid talking
about his mom’s health either.

The trial court did not hear any
evidence concerning the minor’s lack of maturity, experience, or how the
deposition could be detrimental to him. The Defendants seek certiorari review
of the nonfinal order that grants the motion for protective order without
prejudice.

To be entitled to certiorari relief
from a pretrial discovery order the petitioner must show “(1) a departure from
the essential requirements of the law, (2) resulting in material injury for the
remainder of the trial (3) that cannot be corrected on postjudgment appeal.” Rogan
v. Oliver
, 110 So. 3d 980, 982 (Fla. 2d DCA 2013) (quoting Parkway Bank
v. Fort Myers Armature Works, Inc.
, 658 So. 2d 646, 648 (Fla. 2d DCA
1995)). The second and third prongs are jurisdictional. Id. Certiorari
jurisdiction generally exists to review the denial of a motion to compel the
deposition of a material witness. Id.; Nucci v. Simmons, 20 So.
3d 388, 390 (Fla. 2d DCA 2009).

In
circumstances involving the denial of the right to take testimony of an alleged
material witness, it has been recognized that such a denial cannot be remedied
on appeal since “there would be no practical way to determine after judgment
what the testimony would be or how it would affect the result.”

Nucci, 20 So. 3d at 390 (quoting Medero v. Fla. Power &
Light Co.
, 658 So. 2d 566, 567 (Fla. 3d DCA 1995)).

Benvenuto contends that certiorari
review is premature because the grant of the protective order is without
prejudice and thus does not foreclose a deposition of her son at a later time.
However, the trial court ruled that it would not allow a deposition on issues
of the mother’s health and that, in any event, a deposition would only be
allowed if there were, for example, “incredible conflicts on this one issue.”
Thus, it appears that the trial court would not allow a deposition under
circumstances when the defense would be entitled to take one of a material
witness.

Florida Rule of Civil Procedure
1.310(a) provides that after commencement of the action a party may take a deposition
of any person. Rule 1.280(c) provides that a party or person from whom
discovery is sought may seek a protective order and that the trial court may
issue an order that denies or restricts discovery “for good cause shown.” When
“justice requires,” the court may issue an “order to protect a party or person
from annoyance, embarrassment, oppression, or undue burden or expense.” Id.
The party seeking the protective order has the burden to show good cause. Bush
v. Schiavo
, 866 So. 2d 136, 138 (Fla. 2d DCA 2004).

When a party has been denied the
right to depose an alleged material witness without a finding of good cause to
preclude the deposition, the trial court departs from the essential
requirements of law. See Nucci, 20 So. 3d at 391; Medero,
658 So. 2d at 567. “A material witness is one who possesses information ‘going
to some fact affecting the merits of the cause and about which no other
witness
might testify.’ ” Nucci, 20 So. 3d at 391 (quoting Sardinas
v. Lagares
, 805 So. 2d 1024, 1026 (Fla. 3d DCA 2001)).

Here, it appears that the minor is a
material witness as to the circumstances in Benvenuto’s vehicle at the time of
impact, including the force of impact and whether she was wearing a seat belt.
Benvenuto contends that her son is not a material witness because the
Defendants can obtain the same information from her, essentially forcing the
Defendants to take Benvenuto’s view of the circumstances without the ability to
verify the accuracy of her assertions. This court has found a witness to be
material even when the relevant information could be obtained from a party. See
Nucci, 20 So. 3d at 390. Although Dr. Nucci, the defendant, was aware of
the negotiations between himself and Attorney Tindall regarding a billing
arrangement, this court determined that Tindall met the definition of a
material witness. Id. at 390-91. Similarly, the minor is a material
witness to the circumstances in Benvenuto’s vehicle at the time of the
accident.

In addition, the minor is the only
other person who lives with Benvenuto, and he would have unique knowledge of
his mother’s day-to-day activities and how the accident affected her.
Furthermore, Benvenuto was unable to state at deposition which rollercoasters
she rode after the accident. The Defendants suggest that the minor may know
which rollercoasters he rode with his mother. This would allow the Defendants
to establish that despite her injuries and ongoing pain Benvenuto rode
rollercoasters of specific speeds and G-force intensities.

The trial court did not require
Benvenuto to establish good cause for the protective order. She based her
argument on her son’s age, lack of maturity, and experience but provided no
evidence. She also did not provide any evidence of how the taking of the
deposition may be detrimental to her son. The trial court made no findings of
good cause and departed from the essential requirements of law in prohibiting
the deposition. See Nucci, 20 So. 3d at 391; Medero, 658
So. 2d at 567. Thus, we grant the petition and quash the trial court’s order
granting the motion for protective order. The trial court in its discretion may
take protective measures if necessary for the minor’s well-being, such as
requiring that the deposition take place before the court or a magistrate.

Petition granted and order quashed.
(LaROSE and SLEET, JJ., Concur.)

* * *

Filed Under: Articles

Primary Sidebar

Blog Archives

  • February 2021
  • January 2021
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2021 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Workers' Compensation, Employment Claims and Appeals Since 1982