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Date: 04-18-2022
Case Style:
PUBLIX SUPER MARKETS, INC. vs TANIA MOLINA
Case Number: 5D21-1813
Judge: PER CURIAM
Court:
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
On appeal from The Circuit Court for Orange County
Plaintiff's Attorney:
Defendant's Attorney: Kristin A. Norse, Stuart C. Markman,
and Brandon K. Breslow
Description:
Daytona Beach, FL - Personal Injury lawyer represented Petitioner with seeking certiorari review.
Molina sued Publix for personal injuries she allegedly sustained when
her vehicle collided with a vehicle owned by Publix and operated by one of
its employees. She received medical treatment from the five healthcare
providers to whom Publix directed its identical notices of deposition duces
3
tecum. At least one of those health care providers treated her pursuant to a
letter of protection (“LOP”) despite the fact that she had available insurance.
The Discovery That Was Prohibited By Trial Court
Each of the five identical deposition notices set forth eleven topics of
testimony that would be covered in the deposition, along with seven
categories of documents each health care provider was requested to bring
to the deposition. Molina initially objected to every topic and every document
request. The primary basis for Molina’s objections was her claim that the
discovery sought confidential attorney-client communication, further
asserting that Worley v. Central Florida Young Men’s Christian Ass’n, 228
So. 3d 18 (Fla. 2017), prohibited such discovery.1 As additional grounds,
Molina objected to the discovery as being unduly and financially
burdensome, irrelevant, seeking to access the health care providers’ trade
secrets, and in violation of allowable discovery. Molina did not offer any proof
of a financial or other burden nor of protected trade secret information likely
to be disclosed if the discovery were to be allowed.
After hearing argument, the trial court issued an unelaborated order
that simply stated which objections were sustained and which were
1 We do not reach the merits of Molina’s objections or the trial court’s
rulings as we are dismissing the petition based on a lack of jurisdiction.
4
overruled. The court’s order ruled that Molina’s objections to the following
deposition topics and document requests were sustained:
SECTION A: TOPICS TO BE COVERED IN DEPOSITION
. . . .
5. Percentage of practice treating patients using LOPs [letters of
protection] in the past 3 years.
6. Percentage of practice treating patients involved in personal
injury claims/lawsuits in the past 3 years.
7. Information as to how you seek recompense, if at all, from LOP
patients if the patient does not recover any and/or a sufficient
amount to pay LOP at conclusion of civil matter.
8. Statistics as to how much (percentage-wise) you collect on
average on LOP amounts owed over the last 3 years.
9. Relationship with Morgan & Morgan Law Firm [Molina’s
lawyers] and its lawyers and staff, including but not limited to the
number of patients referred, if any, by that law firm and its staff
to your practice in the last 3 years.
. . . .
11. Relationship, if any, between medical providers and facilities
involved in Tania Molina’s treatment.
SECTION B: DOCUMENTS TO BRING
. . . .
5. Any communication with Morgan & Morgan Law Firm,
including its attorneys, paralegals and administration, related to
the treatment or payment for treatment for Tania Molina or the
ongoing litigation.
5
. . . .
7. Payment ledger, 1099 forms, or other documents reflecting the
total amount of money paid to [Provider] in the past 3 years by
Morgan & Morgan, P.A.
Certiorari Jurisdiction
Certiorari is an extraordinary remedy. Moore v. State, 135 So. 3d 462,
463 (Fla. 5th DCA 2014). When conducting certiorari review of a nonfinal
order, the district court must determine whether (1) the lower court departed
from the essential requirements of the law; (2) the petitioner will suffer a
material injury for the rest of the case; and (3) there is no adequate remedy
on post-judgment appeal. See Holmes Reg’l Med. Ctr., Inc. v. Dumigan, 151
So. 3d 1282, 1284 (Fla. 5th DCA 2014) (citing Allan & Conrad, Inc. v. Univ.
of Cent. Fla., 961 So. 2d 1083, 1087 (Fla. 5th DCA 2007)). The last two
requirements are frequently referred to as “irreparable harm.” Id. (citing
Citizens Prop. Ins. Corp. v. San Perdido Ass’n, 104 So. 3d 344, 351 (Fla.
2012)).
Irreparable harm is jurisdictional and must be found before a court may
even consider whether there has been a departure from the essential
requirements of law. Marrero v. Rea, 312 So. 3d 1041, 1047 (Fla. 5th DCA
2021) (citing O’Neill v. O’Neill, 823 So. 2d 837, 839 (Fla. 5th DCA 2002)).
“Only if the petition demonstrates clearly that the appellate court has
6
jurisdiction by virtue of irreparable harm not correctable on plenary appeal
will the court move on to the question of whether the trial court departed from
the essential requirements of law.” Id. (citing AVCO Corp. v. Neff, 30 So. 3d
597, 601 (Fla. 1st DCA 2010); O’Neill, 823 So. 2d at 839).
Certiorari is rarely available to review orders denying discovery. See
Beekie v. Morgan, 751 So. 2d 694, 698 (Fla. 5th DCA 2000). In general,
“trial court orders refusing to compel discovery [or sustaining objections to
discovery] are not reviewed by certiorari because it is believed any harm
caused by the denial can be adequately remedied on appeal from the final
order.” Id. “An adequate remedy [on appeal] does not mean an immediate,
convenient, or economical remedy.” Bill Kasper Const. Co. v. Morrison, 93
So. 3d 1061, 1063 (Fla. 5th DCA 2012) (Torpy, J., concurring) (internal
citation omitted). “An adequate remedy simply means that a plenary appeal
can cure the error.” Id.
Here, Publix has failed to demonstrate irreparable harm because any
error in the trial court’s discovery order can be addressed on plenary appeal,
subject to the harmless error test. See Palmer v. WDI Sys., Inc., 588 So. 2d
1087, 1088 (Fla. 5th DCA 1991) (“If, on plenary appeal, the denied discovery
is deemed to be within the scope of permissible discovery, the petitioners will
have an adequate remedy.”); Special v. West Boca Med. Ctr., 160 So. 3d
7
1251, 1253 (Fla. 2014). Furthermore, we reject Publix’s argument that the
order “effectively eviscerates” its defense on the bias issue. To the contrary,
the trial court permitted discovery of certain financial relationship discovery,
including discovery as to any relevant letters of protection. See Marrero, 312
So. 3d at 1048
Outcome: Based on the foregoing, we conclude that Publix does have a legally
adequate remedy on appeal. Accordingly, we lack jurisdiction to further
analyze the subject petition for the extraordinary writ of certiorari and the
underlying order. We dismiss the petition
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