Roehm v. Department of Professional Regulation, Board of Medical Examiners ( 1987 )

PER CURIAM.

This is an appeal from a nonfinal agency order which reads, for the most part, as follows:

On January 9, 1987, subsequent to a telephonic conference motion hearing in which all pertinent parties hereto participated, the undersigned entered an Order incorporating therein the terms and agreements reached between the parties and specific rulings by the undersigned on other matters in controversy. Among the items agreed upon by counsel for the parties were the taking of depositions including one of Respondent’s expert.

Notwithstanding the purported agreement between counsel which framed the basis for the undersigned’s granting of a continuance to allow this deposition to be taken, Respondent now refuses to make the expert available for deposition as agreed except on advance further agreement to pay a specified sum certain to the expert as a witness fee.

The issue of the amount of witness fee to be paid being the proper subject for resolution by the Hearing Officer in the absence of agreement by the parties, and it being evident that the expert should be made available for deposition in the area of his residence, and Respondent having failed to respond to Petitioner’s Motion for Sanctions, it is, therefore,

ORDERED THAT:.

The Motion for Sanctions is Granted. Counsel for Respondent will work with counsel for Petitioner to make the expert in issue here available for deposition at a mutually convenient time, at his area of residence, sufficiently in advance of hearing to be effective. Failure to comply with the terms of this Order by Respondent will result in the testimony of this expert being excluded.

We dismiss the appeal as premature and hold that appellant neither has shown nor can show harm to him that will arise from the order which cannot subsequently be redressed.

HERSEY, C.J., and LETTS and GLICKSTEIN, JJ., concur.