DePuy, Inc. v. Eckes, 82-1850

• Court: Florida District Court of Appeals
• Writing for the Court: NESBITT
• Citation: DePuy, Inc. v. Eckes, 427 So.2d 306 (Fla. App. 1983)
• Decision Date: 22 February 1983
• Docket Number: No. 82-1850,82-1850
• Parties: DePUY, INC. and St. Paul Fire & Marine Insurance Company, Appellants, v. Ruby V. ECKES and John Eckes, her husband, Appellees.

Page 306

427 So.2d 306

DePUY, INC. and St. Paul Fire & Marine Insurance Company, Appellants, v. Ruby V. ECKES and John Eckes, her husband, Appellees.

No. 82-1850.

District Court of Appeal of Florida Third District.

Feb. 22, 1983.

Carey, Dwyer, Cole, Eckhart, Mason & Spring and Michael Spring, Miami, for appellants.

Horton, Perse & Ginsberg and Arnold Ginsberg; Hawkesworth & Schmick, Miami, for appellees.

Before HUBBART, NESBITT and BASKIN, JJ.

NESBITT, Judge.

The appellants seek review of an order striking their defenses and entering a default as to liability. We have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv).

In 1971, Mrs. Eckes underwent an operation to have a hip prosthesis implanted. In 1973, she allegedly sustained an injury caused by the breakage of the surgical device. The Eckes sent the broken pieces to an expert for testing; however, for some reason, one test, an electron microscopic examination, was not done. Subsequently, the Eckes filed suit against several parties, including the appellants, DePuy, Inc., who distributed the prosthesis, and their insurer, St. Paul Fire and Marine Insurance Co. The complaint was premised upon the theories of negligence, strict liability, and breach of implied warranty. The appellants answered the complaint admitting having sold the device, denying all other allegations, and raising several affirmative defenses.

Upon an agreed order not to destroy the fracture site, the plaintiffs turned the prosthesis over to the appellants. After extensive testing by appellants' expert, including an electron microscopic examination (the test not performed by the Eckes' expert), the pieces were mailed back to appellants' counsel, but the package containing the fracture site was missing. The plaintiffs filed a motion for sanctions supported by an affidavit of another of plaintiffs' experts. At an evidentiary hearing, the expert testified that he could not render an opinion without actual examination of the fracture situs. The trial court concluded that the plaintiffs would be unable to go forward in establishing liability without the critical piece of physical evidence. It therefore entered a default in favor of the plaintiffs on liability.

Florida Rule of Civil Procedure 1.380(b)(2)(C) authorizes the imposition of sanctions for failure to comply with discovery orders. The decisions under this rule clearly establish that the sanctions should be commensurate with the offense and the ultimate sanction should be visited upon a party only under exceptional circumstances. Santuoso v. McGrath & Associates, Inc., 385 So.2d 112 (Fla. 3d DCA 1980); Travelers Insurance Co. v. Rodriguez, 357 So.2d 464...