Gottlieb v. Samiian
| Decision Date | 05 December 2008 |
| Docket Number | No. 1D08-1751.,1D08-1751. |
| Citation | 999 So.2d 678 |
| Parties | Shari Beth GOTTLIEB, as Personal Representative of the Estate of Martin J. Gottlieb, Deceased, for and on behalf of said Estate and the survivors thereof, Petitioner, v. Mohamad R. SAMIIAN, M.D., individually and doing business as Aesthetic & Plastic Surgery Clinic of Jacksonville; and M. Reza Samiian, M.D., P.A., Respondents. |
| Court | Florida District Court of Appeals |
Stephen J. Pajcic, III, of Pajcic & Pajcic, P.A., Jacksonville; and William A. Bald of Dale, Bald, Showalter, Mercier & Green, P.A., for Petitioner.
Shelley H. Leinicke of Wicker, Smith, O'Hara, McCoy, Graham & Ford, P.A., Ft. Lauderdale; Craig A. Dennis of Dennis, Jackson, Martin & Fontela, P.A., Tallahassee; and Fred Tromberg, Jacksonville, for Respondents.
We have for certiorari review a petition brought by Shari Beth Gottlieb, plaintiff below in a civil action, alleging that medical malpractice caused the wrongful death of her son, Martin J. Gottlieb. The order on review granted a motion to disinter filed by respondents, defendants in the trial court. We view the motion to disinter as a discovery request. We have jurisdiction. See Staman v. Lipman, 641 So.2d 453 (Fla. 1st DCA 1994). Finding that the order on review departs from the essential requirements of law and will cause material harm that cannot be adequately remedied by appeal, we grant relief and quash the order.
This matter arises from a binding arbitration proceeding pursuant to section 766.207, Florida Statutes (2003). See Samiian v. Gottlieb, 958 So.2d 926 (Fla. 1st DCA 2007) (). In the arbitration proceeding, damages only, and not liability, are at issue before the assigned administrative law judge of the Florida Division of Administrative hearings. See § 766.207(7)(h), Fla. Stat. (2003).
On April 13, 2004, Dr. Samiian performed a liposuction procedure on Martin Gottlieb, then age 32. Several hours after the procedure, Mr. Gottlieb suffered a heart attack and died. An autopsy performed the next day identified the cause of death as respiratory insufficiency due to complications of liposuction. No drug testing was performed in conjunction with the autopsy.
In early 2008, during the course of discovery, respondents filed a motion to disinter, seeking an order requiring exhumation of Mr. Gottlieb's remains for purposes of certain testing to "determine what substances were ingested by Mr. Gottlieb during the previous year before his death that could have affected his life expectancy." In an amended motion to disinter, respondents proffered two affidavits as factual support. These affidavits are before this court as appendices to the petition for certiorari. In his affidavit, Dr. Samiian quoted unnamed persons as having claimed that Mr. Gottlieb used "street drugs" and "phentermine," a diet medication. Dr. Samiian stated in the affidavit he would not have operated on Mr. Gottlieb had he known Mr. Gottlieb was using "these drugs." No further references or allegations concerning Martin Gottlieb's alleged drug use appear in the affidavit, which is less than a page long.
Dr. Steven Karch, a forensic pathologist, also signed an affidavit. The pertinent portion of this affidavit states:
4. At the request of counsel for Reza Samiian, M.D., I have been asked whether hair samples from a decedent who has been interred for approximately 3½ years would show evidence of drug use by the decedent if such drug use had occurred. It is my opinion, within a degree of medical certainty that hair samples would continue to show evidence of drug use. Depending upon the drugs that are found, such use may impact on the decedent's life expectancy. This will require a forensic examination of the hair samples before a final opinion can be rendered on this issue.
After a hearing, and upon review of these affidavits, the administrative law judge determined that because Mr. Gottlieb's life expectancy is at issue, "the discovery sought is reasonably calculated to lead to the discovery of admissible evidence." Accordingly, the administrative law judge granted the motion and directed that petitioner's decedent be exhumed in order to facilitate a pathological examination of hair samples.
A litigant seeking common law certiorari to review a discovery order must demonstrate both a departure from the requirements of law and material harm that cannot be adequately remedied by appeal. See Staman, 641 So.2d at 454. It can be safely said here that if we find a departure from the requirements of law, the material harm element will follow, without further showing, given the nature of the order for which petitioner seeks review.
Although Florida has no disinterment statute, case law has allowed such a vehicle for discovery in a civil proceeding. See Ullendorff v. Brown, 156 Fla. 655, 24 So.2d 37 (1945); Hammer v. Rosenthal Jewelers Supply Corp., 558 So.2d 460 (Fla. 4th DCA 1990); Esgro v. Trezza, 492 So.2d 422 (Fla. 4th DCA 1986); cf. Landrum v. Armstrong World Indus., Inc., 535 So.2d 656 (Fla. 3d DCA 1988) (). Because the order here arose in the context of discovery, we find it appropriate to turn for guidance to Florida Rules of Civil Procedure 1.280 and 1.360. See Landrum, 535 So.2d at 657 (Jorgenson, J., dissenting); Esgro v. Trezza, 492 So.2d at 423 (Dell, J., dissenting); see also Fla. Prac., Personal Injury and Wrongful Death Actions, § 25.7(k), n. 115, Vol. 6 (2008 ed.).
"Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action...." Fla. R. Civ. P. 1.280(b)(1). A physical examination, in the context of civil litigation, "is authorized only when the party submitting the request has good cause for the examination." Fla. R. Civ. P. 1.360(a)(2). Further, "the condition that is the subject of the requested examination [must be] in controversy." Fla. R. Civ. P. 1.360(a)(1). Finally, "the party submitting the request shall have the burden of showing good cause." Fla. R. Civ. P. 1.360(a)(2). Florida agrees with the federal requirements of "in controversy" and "good cause," as interpreted by the United States Supreme Court. These requirements
are not met by mere conclusory allegations of the pleadings—nor by mere relevance to the case—but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination.
Russenberger v. Russenberger, 639 So.2d 963, 965 n. 4 (Fla.1994) (quoting Schlagenhauf v. Holder, 379 U.S. 104, 118, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964)); see also S.N. v. Dep't. of Health & Rehab. Servs., 529 So.2d 1156 (Fla. 1st DCA 1988); Kristensen v. Kristensen, 406 So.2d 1210 (Fla. 5th DCA 1981). Accordingly, although relevance is a threshold for an examination, and certainly for the exhumation ordered here, what the courts have referred to as "mere relevance" is not sufficient.
To determine the appropriate scope of discovery in this unusual instance, we must examine cases that have set out the type of showing upon which the measure sought here could be properly based. In each earlier civil case allowing a similar measure, the showings made by the party seeking disinterment far exceed the showings in the present case. In Esgro, for instance, a deposition of the Broward County medical examiner revealed a "good possibility" that an autopsy would be probative as to cause of death. 492 So.2d at 423. The same medical expert also stated on deposition that the possibility that the deceased actually died from a heart attack, as alleged in the medical malpractice claim in that case, was "fairly remote." Id.
In Hammer, with the cause of death also at issue, medical evidence before the court "tended to show an autopsy would likely provide relevant information." 558 So.2d at 461. In Landrum, the court, even before death of the plaintiff, entered an order requiring an autopsy. 535 So.2d at 656. In that case, involving asbestos litigation, the order did not specifically require disinterment and, moreover, was tailored to produce tissue in order to allow microscopic analysis. Id. n. 1. Although not directly stated by the court, we find it relatively clear that the autopsy ordered in Landrum was for the purpose of determining the fact and extent of exposure to asbestos, the fulcrum of the entire case.
Our supreme court has addressed a similar question regarding the propriety of disinterment in the context of a probate case. In Ullendorff, the court allowed exhumation to determine heirs to the estate. 24 So.2d at 40. Specifically, the evidence before the court showed that an autopsy would determine whether the decedent had ever even given birth to a child. Id. As respondents point out, any number of Florida cases have allowed disinterment in the context of criminal cases, where cause of death is the primary issue before the court. See, e.g., Buenoano v. State, 527 So.2d 194 (Fla.1988) (); State v. Norris, 168 So.2d 541 (Fla. 1964) (); Coppolino v. State, 223 So.2d 68 (Fla. 2d DCA 1969) ().
The showing in the present case falls short of that...
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