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September 18, 2015 by admin

Torts — Damages — Discovery — Under unusual facts of case, certiorari review of order sustaining plaintiff’s objections to defendant’s third-party subpoenas duces tecum is appropriate

40 Fla. L. Weekly D2115aof Form
Torts
— Damages — Discovery — Under unusual facts of case, certiorari review of
order sustaining plaintiff’s objections to defendant’s third-party subpoenas
duces tecum is appropriate — Where hospital’s billing supervisor could not
explain why two invoices for plaintiff’s hospital care were paid by two
separate entities, trial court erred in sustaining objections to subpoenas
duces tecum issued to record custodians of the two entities
PUBLIX SUPER MARKETS, INC., Petitioner, v. LUZ HERNANDEZ, Respondent. 3rd
District. Case No. 3D14-2858. L.T. Case No. 12-7309. September 9, 2015. A Writ
of Certiorari to the Circuit Court for Miami-Dade County, Abby Cynamon, Judge.
Counsel: Weiss Serota Helfman Cole Bierman & Popok, P.L., and Edward G.
Guedes and Laura K. Wendell, for petitioner. Wasson & Associates,
Chartered, and Roy D. Wasson and Erin Newell, for respondent.
(Before SALTER, FERNANDEZ, and LOGUE, JJ.)
(LOGUE, J.) Publix Super Markets, Inc., seeks certiorari review of the
trial court’s order sustaining Luz Hernandez’s objections to Publix’s
third-party subpoenas duces tecum. We grant the petition and quash the trial
court’s order.
Ms. Hernandez sued Publix for personal injuries she sustained as a result
of a slip and fall accident at a Publix supermarket. Included in the claim are
past and future medical expenses. Ms. Hernandez was treated by a physician at
Performance Orthopedics & Neurosurgery (“Performance”), which later became
known as Calhoun Orthopedics & Neurosurgery (“Calhoun”). The physician
performed spinal surgery on her at Palm Springs General Hospital (“the
Hospital”). During the course of discovery in the underlying case, Publix
obtained two conflicting invoices for Ms. Hernandez’s hospital care.
One hospital invoice indicated that the total hospital bill was $18,708.70
and was paid in full by a payment of $6,490 from an entity identified as
“Performance Orthopedics.” A second hospital invoice indicated that the total
hospital bill was $54,233.22 and was paid in full by a payment of $12,384.00
from an entity identified as “Peachtree Funding.” At a deposition, the
Hospital’s billing supervisor testified that the $18,708.70 invoice and the
$54,233.22 invoice were for the same services. She testified that the
$18,708.70 invoice was the correct one, but could not explain how or why the
$54,233.22 invoice was generated. Following the deposition, Publix issued two
subpoenas duces tecum for deposition to the records custodians at Performance
and Calhoun. The subpoenas requested documents pertaining to dealings with
various Peachtree entities relating to the medical treatment of Ms. Hernandez.
In response, Ms. Hernandez filed objections arguing, in pertinent part, that
the subpoenas were “not calculated to lead to the discovery of admissible
evidence.” Neither Calhoun nor Performance filed objections. Following a
hearing, the trial court sustained the objections and Publix filed its
petition.
Common law certiorari is an extraordinary remedy. For this reason,
“[c]ertiorari is rarely available to review orders denying discovery because in
most cases the harm can be corrected on appeal.” Giacalone v. Helen Ellis
Mem. Hosp. Found., Inc.
, 8 So. 3d 1232, 1234 (Fla. 2d DCA 2009).
Nonetheless, “an order denying discovery will be reviewed by petition for writ
of certiorari when the order will cause irreparable harm.” Criswell v. Best
Western Int’l, Inc.
, 636 So. 2d 562, 563 (Fla. 3d DCA 1994); see also
Somarriba v. Ali, 941 So. 2d 526, 527 (Fla. 3d DCA 2006) (“An order
denying discovery is not ordinarily reviewable by certiorari. However, we have
found that an order prohibiting the taking of a material witness’ deposition inflicts
the type of harm that cannot be remedied on final appeal.”) (internal quotation
and citation omitted); Power Plant Entm’t, LLC v. Trump Hotels & Casino
Resorts Dev. Co.
, 958 So. 2d 565, 566 (Fla. 4th DCA 2007) (“We have now
concluded that we should take this opportunity to recede from the cases
indicating we have a hard and fast rule against reviewing orders denying
discovery, and join our sister courts which have occasionally, but not
routinely, granted review.”).
We believe this narrow exception applies here. The discovery concerns the
evidence the opposing party intends to use to establish an essential element of
its cause of action. The evidence constitutes a major part of the proof of that
element. Prior discovery has cast a shadow of fraud over that evidence, calling
into question its integrity in a substantial way. In light of the massive
contradictions between the two hospital bills, which remain inexplicable even
after the deposition of the Hospital’s billing supervisor, Publix’s ability to defend
against the damages element of Ms. Hernandez’s cause of action would be
eviscerated without basic, narrowly drawn discovery to test what figure, if
any, reflects Ms. Hernandez’s reasonable surgery bills. In the case before us,
“there is no substitute for the information [Publix] seeks.” Criswell,
636 So. 2d at 563. As such, given the unusual facts of this case, we grant the
petition, quash the trial court’s order, and remand for further proceedings
consistent with this opinion.
Order quashed and petition granted.

* * *

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