In any Florida wrongful death case, the defendant’s goal is to deny liability and eliminate or minimize damages. Many tactics are used by defendants throughout the litigation to pursue this goal, trying to prevent a family from receiving the damages they need and deserve. The Third District Court of Appeal recently issued a ruling in a wrongful death action in which two major drugstore companies asked to quash a trial court order denying a request to shift the cost of discovery to the plaintiff-estate. The appellate court dismissed the petitions for lack of jurisdiction, citing the defendants’ failure to show the order created irreparable harm to the defendants.
The personal representative of the estate filed suit against the two drugstores, alleging they caused the victim’s death of multiple-drug toxicity by their collective negligence in filling the prescriptions. The plaintiff eventually filed an amended complaint that alleged one drugstore company filled 275 different prescriptions by 18 different physicians, and the other filed 95 different prescriptions by 10 different physicians. A majority of the prescriptions were narcotics. Soon after this amendment, the representative sought the personnel files of the employees of each pharmacy at the time the prescriptions at issue were filled.
One company moved for the representative to pay for the time of its counsel to review and redact the financial and health information from the personnel files of 40 identified pharmacists. The other drugstore company moved for the representative to be placed on a payment plan for unspecified costs associated with gathering the personnel files of 18 identified pharmacists. The representative did not contest the need for information to be redacted but objected to both companies’ requests of the court for the estate to pay for the costs of discovery.
Only one of the two companies provided an estimate of the time needed to produce the requested information, submitting the unsworn statement of an in-house paralegal. This party asserted it would cost over $21,000 to produce the documents. The trial court granted the representative’s motion to compel and declined to require the estate to bear the costs of production. Both companies then petitioned the appellate court for writs of certiorari, which is an extraordinary remedy provided by the civil justice system and intended for limited circumstances.
The Court of Appeal listed the requirements for a writ to be granted. The petitioner must establish there was a departure from the essential requirements of the law that resulted in material injury for the remainder of the case. This type of damage must be one that cannot be corrected on post-judgment appeal. In its assessment, the appellate court first looked at whether there was a departure from the law. The court determined the trial court correctly overlooked the unsworn statement from the paralegal because it was not evidence. Statements within a motion to the court are not enough to be considered proof.
The appellate court then determined there was no irreparable harm to the drugstores, and therefore there was no need for a writ of certiorari. The Third District pointed out the numerous Florida rulings that undue expense or burden connected to discovery does not constitute irreparable harm. The typical remedy for burdensome discovery costs is to recoup through taxation costs, if the one requesting recoupment is a prevailing party. One of the drugstore companies argued a recent state Supreme Court opinion applied, which found a discovery order to be unduly burdensome. That case involved a slip-and-fall negligence action seeking damages of $66,000. The discovery request would have cost over $90,000 and 200 hours of work. The appellate court disagreed, distinguishing the wrongful death action from the slip and fall by the amount of damages at hand. While the estate did not have a specific amount of damages listed in the complaint, the court presumed the damages request would be significantly higher than that of the Supreme Court action. The court also differentiated the discovery request in the Supreme Court decision as a collateral issue rather than the heart of the negligence action for the case at hand. The appellate court determined neither company met the threshold jurisdictional requirement, dismissing the petitions and allowing the order in favor of the estate to stand.
The Florida wrongful death attorneys at Donaldson & Weston will aggressively push back against defendants’ attempts to limit damages. For a free, confidential consultation, call 772-266-5555 or 561-299-3999.
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Federal Circuit Court of Appeal Declines to Find Equitable Tolling in Slip and Fall Case, Florida Injury Lawyer Blog, October 21, 2016
Florida Court of Appeal Allows Injured Motorist to Pursue Additional PIP Payments to Medical Providers, Florida Injury Lawyer Blog, May 18, 2017