# Third District Court of Appeal

State of Florida

Opinion filed September 9, 2015.

Not final until disposition of timely filed motion for rehearing.

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No. 3D14-2858

Lower Tribunal No. 12-7309

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### Publix Super Markets, Inc.

,

Petitioner,

vs.



### Luz Hernandez

, Respondent.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Abby

Cynamon

, Judge.

Weiss Serota Helfman Cole Bierman & Popok, P.L., and Edward G. Guedes

and Laura K. Wendell

, for petitioner.

Wasson & Associates, Chartered, and Roy D. Wasson and Erin Newell, for

respondent.

Before SALTER, FERNANDEZ, and LOGUE, JJ.

LOGUE, J.Publix Super Markets, Inc., seeks certiorari review of the trial court’s order

sustaining Luz Hernandez’s objections to Publix’s third-party subpoenas duces

tecum. We grant the petition and quash the trial court’s order.

Ms. Hernandez sued Publix for personal injuries she sustained as a result of

a slip and fall accident at a Publix supermarket. Included in the claim are past and

future medical expenses. Ms. Hernandez was treated by a physician at Performance

Orthopedics & Neurosurgery (“Performance”), which later became known as

Calhoun Orthopedics & Neurosurgery (“Calhoun”). The physician performed

spinal surgery on her at Palm Springs General Hospital (“the Hospital”). During

the course of discovery in the underlying case, Publix obtained two conflicting

invoices for Ms. Hernandez’s hospital care.

One hospital invoice indicated that the total hospital bill was $18,708.70 and

was paid in full by a payment of $6,490 from an entity identified as “Performance

Orthopedics.” A second hospital invoice indicated that the total hospital bill was

$54,233.22 and was paid in full by a payment of $12,384.00 from an entity

identified as “Peachtree Funding.” At a deposition, the Hospital’s billing

supervisor testified that the $18,708.70 invoice and the $54,233.22 invoice were

for the same services. She testified that the $18,708.70 invoice was the correct one,

but could not explain how or why the $54,233.22 invoice was generated.

Following the deposition, Publix issued two subpoenas duces tecum for deposition

2to the records custodians at Performance and Calhoun. The subpoenas requested

documents pertaining to dealings with various Peachtree entities relating to the

medical treatment of Ms. Hernandez. In response, Ms. Hernandez filed objections

arguing, in pertinent part, that the subpoenas were “not calculated to lead to the

discovery of admissible evidence.” Neither Calhoun nor Performance filed

objections. Following a hearing, the trial court sustained the objections and Publix

filed its petition.

Common law certiorari is an extraordinary remedy. For this reason,

“[c]ertiorari is rarely available to review orders denying discovery because in most

cases the harm can be corrected on appeal.” Giacalone v. Helen Ellis Mem. Hosp.

Found., Inc.

, 8 So. 3d 1232, 1234 (Fla. 2d DCA 2009). Nonetheless, “an order

denying discovery will be reviewed by petition for writ of certiorari when the order

will cause irreparable harm.” Criswell v. Best Western Int’l, Inc.

, 636 So. 2d 562,

563 (Fla. 3d DCA 1994); see also Somarriba v. Ali

, 941 So. 2d 526, 527 (Fla. 3d

DCA 2006) (“An order denying discovery is not ordinarily reviewable by

certiorari. However, we have found that an order prohibiting the taking of a

material witness’ deposition inflicts the type of harm that cannot be remedied on

final appeal.”) (internal quotation and citation omitted); Power Plant Entm’t, LLC

v. Trump Hotels & Casino Resorts Dev. Co.

, 958 So. 2d 565, 566 (Fla. 4th DCA

2007) (“We have now concluded that we should take this opportunity to recede

3from the cases indicating we have a hard and fast rule against reviewing orders

denying discovery, and join our sister courts which have occasionally, but not

routinely, granted review.”).

We believe this narrow exception applies here. The discovery concerns the

evidence the opposing party intends to use to establish an essential element of its

cause of action. The evidence constitutes a major part of the proof of that element.

Prior discovery has cast a shadow of fraud over that evidence, calling into question

its integrity in a substantial way. In light of the massive contradictions between the

two hospital bills, which remain inexplicable even after the deposition of the

Hospital’s billing supervisor, Publix’s ability to defend against the damages

element of Ms. Hernandez’s cause of action would be eviscerated without basic,

narrowly drawn discovery to test what figure, if any, reflects Ms. Hernandez’s

reasonable surgery bills. In the case before us, “there is no substitute for the

information [Publix] seeks.” Criswell

, 636 So. 2d at 563. As such, given the

unusual facts of this case, we grant the petition, quash the trial court’s order, and

remand for further proceedings consistent with this opinion.

Order quashed and petition granted.

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