Hammer v. Rosenthal Jewelers Supply Corp., 88-2074

• Decision Date: 07 March 1990
• Docket Number: No. 88-2074,88-2074
• Citation: 558 So.2d 460
• Parties: 15 Fla. L. Weekly D634 Charles HAMMER, as Personal Representative of the Estate of Irving Isidore Hammer, deceased, Appellant, v. ROSENTHAL JEWELERS SUPPLY CORPORATION, et al., and Bernice Rhea Hammer, Appellees.
• Court: Florida District Court of Appeals

Page 460

558 So.2d 460

15 Fla. L. Weekly D634

Charles HAMMER, as Personal Representative of the Estate of Irving Isidore Hammer, deceased, Appellant, v. ROSENTHAL JEWELERS SUPPLY CORPORATION, et al., and Bernice Rhea Hammer, Appellees.

No. 88-2074.

District Court of Appeal of Florida Fourth District.

March 7, 1990.

Rehearing and Certification Denied April 12, 1990.

Reed A. Bryan and Asela M. Cuervo of McCune, Hiaasen, Crum, Gardner & Duke, P.A., Fort Lauderdale, for appellant.

Joseph H. Lowe of Marlow, Shofi, Connell, Valerius, Abrams, Lowe & Adler, Miami, for appellee-Rosenthal Jewelers.

Shelley H. Leinicke of Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham & Lane, Fort Lauderdale, for appellee-Janos Indus. Insulation Corp.

Raymond T. Elligett, Jr. of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for appellees-Celotex Corp. and GAF Corp.

PER CURIAM.

Appellant seeks review of the trial court's order of dismissal in this personal injury action, entered as a sanction for failure to comply with discovery. We affirm; however, we remand to the trial court with directions.

The action was initiated by the Hammers based on the allegation that Mr. Hammer, a jeweler, allegedly contracted mesothelioma, a form of lung cancer, due to prolonged occupational exposure to asbestos dust from products manufactured by appellees. Mr. Hammer died, allegedly from mesothelioma, shortly after filing his complaint.

An emergency motion to enjoin burial and compel autopsy was filed and several hearings set. Mrs. Hammer objected to the exhumation and autopsy for religious reasons. The genuineness of her belief is not in controversy. During the hearings there was medical testimony that to link a diagnosis of mesothelioma to asbestos exposure a tissue diagnosis was necessary because not all mesothelioma is caused by asbestos exposure. The tissue samples taken from Mr. Hammer, while alive, were of a different type than those preferred in making a diagnosis of this type. They were pleural tissue samples, taken from the membrane surrounding the lungs, not lung tissue samples. An ore tenus motion for sanctions and dismissal with prejudice was granted. A rehearing and the filing of an amended complaint for wrongful death had the same result.

The trial court was faced with a difficult balancing decision between the rights of appellees to have access to medical information with which to attempt to defend the claim and perhaps promote settlement, which could only...