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Publix Super Markets, Inc. v. Luz Hernandez, Case No. 3D14-2858 (3rdDCA)

In Hernandez, the defendant, Publix, sought certiorari review of a trial court order sustaining the plaintiff’s objections to certain third party subpoenas duces tecum. The plaintiff filed suit after suffering injuries sustained after slipping and falling at a Publix store. The plaintiff was treated by a certain orthopedic and neurosurgery physician, who performed spinal surgery at Palm Springs General Hospital. During the course of discovery, Publix obtained two conflicting invoices for the plaintiff’s hospital care. One invoice showed a total bill amount of about $18,000 and a payment in full, of a lower amount, by the orthopedic group, and the second invoice showed a total bill amount of about $54,000 and a payment in full, of a lower amount, by Peachtree Funding. At deposition, a hospital representative said the two invoices were for the same services, but could not explain the second invoice or the payment by Peachtree Funding. Publix later issued subpoenas duces tecum to the orthopedic group requesting documents pertaining to the group’s dealings with Peachtree Funding entities relating to the medical treatment of the plaintiff. The plaintiff objected, and the trial court sustained those objections.

Ordinarily, orders denying discovery are not reviewable certiorari because in most cases the harm can be corrected on appeal. However, such an order will be reviewed by a petition for writ of certiorari when the order will cause irreparable harm. The Third District ruled that the narrow exception applied in this case. It found the discovery pertained to evidence the plaintiff intended to use to establish damages, an essential element of his claim. The court additionally noted that the prior discovery in the case “cast a shadow of fraud over that evidence, calling into question its integrity in a substantial way.” The court found that the “massive” and “inexplicable” contradictions between the two hospital bills “eviscerated” Publix’s ability to defend against the damages element of the plaintiff’s claim. Therefore, basic, narrowly drawn discovery to test what figure reflects the plaintiff’s reasonable surgery bills was warranted. As such, the petition was granted and the trial order was quashed.

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