Westerbeke Corp. v. Atherton
| Decision Date | 09 August 2017 |
| Docket Number | Case No. 2D16–5179 |
| Citation | 224 So.3d 816 |
| Parties | WESTERBEKE CORPORATION, Petitioner, v. Michael ATHERTON ; Carrie Atherton; Madie Atherton and Quinn Atherton; Robert Berkstresser; MarineMax, Inc.; MarineMax of Central Florida, LLC ; MarineMax Charter Services, LLC ; MarineMax International, LLC ; MarineMax Motor Yachts, LLC ; MarineMax Motor Yachts, Inc. ; MarineMax of Sarasota, LLC; MarineMax Services, Inc.; MarineMax of Southwest Florida, LLC; MarineMax Yachts, LLC ; MarineMax East, Inc.; MarineMax of Jacksonville, Inc.; MarineMax Realty, LLC ; Gulfwind USA, LLC, d/b/a MarineMax Gulfwind ; Bassett Boat Company, d/b/a MarineMax Bassett Searay ; R.B. Grove, Inc.; George and Nancy Meyer; Brian Meyer; Angela Meyer; Logan Meyer; Brooks Meyer and Abry Meyer, Respondents. |
| Court | Florida District Court of Appeals |
Lawrence E. Burkhalter of Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC, Miami, for Petitioner.
Julie H. Littky–Rubin of Clark, Fountain, La Vista, Prather, Keen & Littky–Rubin, LLP, West Palm Beach, for Respondents Michael Atherton; Carrie Atherton; Madie Atherton and Quinn Atherton; and Brian Meyer.
Stuart C. Markman and Kristin A. Norse of Kynes, Markman & Felman, P.A., Tampa, for Respondents George Meyer and Nancy Meyer.
No appearance for remaining Respondents.
Westerbeke Corporation seeks certiorari review of a nonfinal order denying Westerbeke's motion to compel the unwinding, or disassembling, of a piece of a gas generator that was involved in a boat explosion and that is a key piece of evidence in three personal injury and products liability lawsuits filed by the respondents. Because the trial court applied the incorrect law to Westerbeke's motion to compel, we grant the petition and quash the order.
The boat explosion occurred in May 2009, while several respondents were onboard and operating the boat in Tampa Bay.1 Three separate lawsuits were filed based on injuries suffered during the explosion, and the lawsuits were consolidated for purposes of discovery only.2 Westerbeke is the manufacturer of the gas generator, and newly installed component parts on the gas generator, that was operating on the boat at the time of the explosion. The respondents' theory with regard to Westerbeke's liability is that there was an internal short that caused a sparking event in the windings of the piece of the generator called the "stator," that the sparking event caused the explosion, and that the sparking event was due to manufacturing and design defects. The respondents and Westerbeke agree that there was a short, but they disagree as to when the short occurred and whether the short caused a sparking event in the stator.3
Westerbeke sought to "unwind" or disassemble the stator to look for evidence of a spark or ignition source that caused the explosion. The respondents objected to unwinding the stator on the basis that it would not reveal any probative evidence and that it would destroy evidence and thus prejudice the respondents. The issue of the unwinding was considered at two separate hearings. At the first hearing on August 26, 2016, Westerbeke argued that the unwinding was necessary to see if the stator contains evidence of "sparking, burning, melting, [or] charring," which would indicate if the spark, or ignition source, came from the stator. Westerbeke stated that it did not seek to unwind the stator until it became aware that the respondents would be claiming that the ignition source was in the stator portion of the generator. It also argued that unwinding the stator would not harm the respondents' ability to prove their case because the respondents have thousands of photographs. Westerbeke also questioned "how [the jury's] touching and feeling this generator is going to prove anything" for the respondents. Last, Westerbeke argued that the relevant factors weighed in favor of the unwinding because the unwinding is relevant, reasonable, and necessary; there is no other way to do this; there are adequate safeguards in place; and the respondents' ability to present evidence is not hindered.
The respondents argued that the unwinding would not be probative because a spark in the stator would not necessarily leave any evidence. Thus, if no evidence of a spark was found, it would not affect the respondents' case. The respondents also argued that the unwinding would destroy evidence that they need to present to the jury:
[W]e want to present to the jury ... the generator back end in its current condition where you can show and demonstrate the short, where we can show them the flame patterns, where I can use this product candidly to take the depositions of their expert and respond to them, to rebut them, and to educate the jury about what happened in this.
The court asked whether videotaping could be conducted during the experts' depositions before the trial court allowed the unwinding, but respondents argued that they would lose their trial dates. Counsel for the Meyers mentioned getting an agreement in all three cases from Westerbeke and the issue of "collateral estoppel."
He also argued that they would not be able to keep the first trial date. Westerbeke argued that the unwinding would not delay the trial. Westerbeke agreed that if no evidence of a spark is found as a result of the unwinding, the respondents are in no worse of a position, but under Westerbeke's theory, a spark would have left evidence in the stator.
The trial court was concerned about the issue of "collateral estoppel" and whether the unwinding would potentially harm the cases that had not yet been set for trial. The trial court indicated it wanted to treat all three cases similarly and that an agreement would be necessary before the trial court would allow unwinding.
A second hearing was held on Westerbeke's motion to compel on October 26, 2016, and the trial court remained concerned that the respondents would be affected differently if the trial court allowed the unwinding. This was because the first trial—in the Athertons' case—was scheduled for April 2017 and the trial court was under the impression that the unwinding would not be completed by then and admissible at that first trial. Westerbeke's counsel did not understand how the unwinding "would have any adverse bearing on the subsequent cases if it's going to be applicable to all the cases." Counsel for the Meyers again mentioned the doctrine of collateral estoppel, saying that they would agree to the unwinding if Westerbeke was willing to accept the liability verdict in the Athertons' case and apply it to the remaining two cases. The trial court agreed and was concerned that if Westerbeke won in the Athertons' litigation, there would still be two more liability cases and the respondents would claim that the stator has been destroyed. Westerbeke then argued that the case should be bifurcated for liability. The trial court referred to collateral estoppel and asked Westerbeke if it would be willing to be bound by the liability determination in the first trial. If so, the trial court would consider granting the unwinding. The trial court denied the request for unwinding unless Westerbeke agreed to "be bound by whatever is the finding in regards to liability on the first trial as to all plaintiffs." Westerbeke stated that if it would be bound by the liability finding, the remaining respondents would also need to be bound by it. The Meyers' counsel objected to that.
Counsel for the Meyers also argued that the unwinding would be prejudicial. Westerbeke argued that several other pieces of evidence had been disassembled and destroyed and that the requested unwinding should not be treated any differently. Counsel for the Athertons argued that the unwinding is not necessary for Westerbeke's defense and that they had not shown that it would be probative. He also contended that Westerbeke waited until the "9th hour" to request the unwinding. The hearing ended with all parties understanding that the trial court had denied the motion to unwind. The trial court entered an unelaborated order on November 7, 2016, simply denying Westerbeke's motion to compel unwinding.
In its petition for certiorari review, Westerbeke argues that the trial court departed from the essential requirements of law in denying its motion because the proposed unwinding is necessary to its defense as it is the only way the parties will be able to determine if there was a short in the stator at the time of the explosion. It contends that if it is prevented from conducting the unwinding, its defense that the stator did not cause the explosion "is essentially eviscerated."
"A party seeking review of a pretrial discovery order must show that the trial court's order departed from the essential requirements of law and caused 'material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal.' " Giacalone v. Helen Ellis Mem'l Hosp. Found., Inc., 8 So.3d 1232, 1234 (Fla. 2d DCA 2009) (quoting Martin–Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla. 1987) ). Generally, certiorari is not available "to review orders denying discovery because in most cases the harm can be corrected on appeal." Id. (citing State Farm Mut. Auto. Ins. Co. v. Peters, 611 So.2d 597, 598 (Fla. 2d DCA 1993) ). But certiorari relief may be appropriate "when the requested discovery is relevant or is reasonably calculated to lead to the discovery of admissible evidence and the order denying that discovery effectively eviscerates a party's claim, defense, or counterclaim." Id. (footnote omitted). "The harm in such cases is not remediable on appeal because there is no practical way to determine after judgment how the requested discovery would have affected the outcome of the proceedings." Id. at 1234–35.
Westerbeke's defense is that a spark did not occur in the stator and that the short that was detected in the stator occurred after the explosion when...
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...So. 3d 315 (Fla. 3d DCA 2013); JA & M Developing Corp. v. Perez, 114 So. 3d 410 (Fla. 3d DCA 2013) (mem.). (10) Westerbeke Corp., 224 So. 3d at 816 (disassembly of piece of allegedly defective generator, the condition of which was key to defense theory, in personal injury and product li......