Sardinas v. Lagares
Decision Date | 26 December 2001 |
Docket Number | No. 3D01-2309.,3D01-2309. |
Citation | 805 So.2d 1024 |
Parties | Jose L. Torres SARDINAS, Petitioner, v. Claridania LAGARES, et al., Respondents. |
Court | Florida District Court of Appeals |
Hightower, Rudd, Weiser & Acosta, P.A., and Peter A. Diamond, Miami; Richard A. Sherman, Fort Lauderdale, for petitioner.
Samole & Berger, P.A., and Martin I. Berger, Miami, for respondents.
Before JORGENSON, GREEN, and RAMIREZ, JJ.
The petitioner, the defendant below, seeks certiorari review of an order striking an independent medical examiner, Dr. Glatzer, for failing to produce nonexistent documents. The trial court ordered Dr. Glatzer to produce the documents three times, and each time Dr. Glatzer responded that he did not keep such records. The trial court then struck Dr. Glatzer as a witness. Petitioner seeks certiorari review of the order striking Dr. Glatzer, arguing that the underlying orders1 compelling him to produce nonexistent documents were an abuse of discretion. We deny the petition.
The writ of certiorari is reserved for those situations where the order results in a material injury which cannot be corrected on appeal and departs from the essential requirements of the law. See, e.g., Riano v. Heritage Corp. of South Florida, 665 So.2d 1142, 1143-1145 (Fla. 3d DCA 1996)
(. ) "The first two factors are jurisdictional, and an assessment of jurisdiction must be made prior to reaching the third." Beekie v. Morgan, 751 So.2d 694, 698 n. 4 (Fla. 5th DCA 2000); see also Jaye v. Royal Saxon, Inc., 720 So.2d 214, 215 (Fla.1998) ().
The petitioner has failed to demonstrate that he will suffer irreparable harm if the interlocutory order striking Dr. Glatzer is permitted to stand. In Riano, this court noted that:
665 So.2d at 1145. The possibility of having to try a case twice does not constitute irreparable harm. See Jaye, 720 So.2d at 215
; Riano, 665 So.2d at 1144-1145. Petitioner makes no argument, or even an allegation, that he was irreparably harmed by the order striking Dr. Glatzer, or that any harm cannot be remedied on appeal.2 Accordingly, we lack jurisdiction to review the order striking Dr. Glatzer.
The dissent mistakenly relies on cases holding that "[i]n circumstances involving the denial of the right to take testimony of an alleged material witness,... 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.'" Medero v. Florida Power & Light Co., 658 So.2d 566 (Fla. 3d DCA 1995) (quoting Travelers Indemnity Co. v. Hill, 388 So.2d 648, 650 (Fla. 5th DCA 1980)) (emphasis added); see also Lifemark Hospitals of Florida, Inc. v. Hernandez, 748 So.2d 378, 379 (Fla. 3d DCA 2000)
( ); Sabol v. Bennett, 672 So.2d 93 (Fla. 3d DCA 1996); Ruiz v. Steiner, 599 So.2d 196 (Fla. 3d DCA 1992). 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." Wingate v. Mach, 117 Fla. 104, 157 So. 421, 422 (1934) (emphasis added); see also State ex rel. Slora v. Wessel, 403 So.2d 496 (Fla. 4th DCA 1981) (Hurley, J., concurring specially). As the petitioner has not even alleged that Dr. Glatzer is a material witness, the cases cited by the dissent are inapposite.3
Our denial of the petition is expressly without prejudice to the trial court's reconsideration of its ruling. See Pascual v. Dozier, 771 So.2d 552, 554 (Fla. 3d DCA 2000)
(); Allstate Ins. Co. v. Mazzorana, 731 So.2d 38, 39 (Fla. 4th DCA 1999) (); Cooper v. Lewis, 719 So.2d 944, 945 (Fla. 5th DCA 1998) ( )(emphasis added); see also Consortium for Diagnostics, Inc. v. Cigna Ins. Co., 781 So.2d 1128 (Fla. 3d DCA 2001) ( ).
Petition denied.
I respectfully dissent from our decision denying the petition for certiorari because I disagree that the petitioner failed to demonstrate irreparable harm.
The plaintiff issued a subpoena duces tecum for deposition to the records custodian for Dr. Richard Glatzer, requesting "a list of all cases for which you [Dr. Glatzer] have worked in the years 1998, 1999, 2000, and 2001 up until the date of this subpoena, indicating for each case, whether you were hired by the Plaintiff or by the Defendant in that case, and further list by name[,] address, file number and case number, each case in which you were hired or retained in any capacity by the Defendant's attorneys Hightower & Rudd, P.A., during the same period." Additionally, the plaintiff requested "a list of all cases by parties and case number, for the years 1998, 1999, 2000, and 2001, in which you have testified by deposition or at trial." The defendant moved for a protective order, which the trial court granted in part and denied in part, ordering production of the documents subpoenaed for the year 2000.
Dr. Glatzer filed an affidavit explaining that he did not keep a list of cases that indicated whether a plaintiff or defendant retained him, nor a list indicating which cases involved Hightower & Rudd, nor a list of cases in which he had testified by deposition or at trial. After the plaintiff moved to strike Dr. Glatzer, the court ordered more complete answers within 10 days. When these were not forthcoming, the court struck Dr. Glatzer.
It is clear that the discovery order departed from the essential requirements of law. See Olivas v. Bravo, 795 So.2d 103, 103-104 (Fla. 3d DCA 2001)
().
disapproved on other grounds, Allstate Ins. Co. v. Boecher, 733 So.2d 993 (Fla. 1999); Fortune Ins. Co. v. Santelli, 621 So.2d 546, 547 (Fla. 3d DCA 1993).
In Vega v. CSCS International, N.V., 795 So.2d 164 (Fla. 3d DCA 2001), we granted certiorari where the trial court struck the plaintiff's treating physician because he performed back surgery before the defendant could provide Vega with a second opinion as to whether or not the surgery was necessary. Although the issue of irreparable harm was not discussed, there is ample support in the case law for granting certiorari when a material witness is stricken. Lifemark Hospitals of Florida, Inc. v. Hernandez, 748 So.2d 378, 380 (Fla. 3d DCA 2000) ( ). In Sabol v. Bennett, 672 So.2d 93, 94 (Fla. 3d DCA 1996), we stated...
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