Walgreen Co. and Holiday Cvs, LLC v. Rubin

Third District Court of Appeal
State of Florida
Opinion filed October 4, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-282
Consolidated: 3D17-273
Lower Tribunal No. 14-29542
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Walgreen Co. and Holiday CVS, LLC,
Petitioners,
vs.
Jonathan L. Rubin,
Respondent.
On Petitions for Writs of Certiorari from the Circuit Court for Miami-Dade
County, Antonio Arzola, Judge.
Hinshaw & Culbertson, LLP, and James H. Wyman, for petitioner Walgreen
Co.
Fowler White Burnett P.A., and Marc J. Schleier and Christopher E. Knight,
for petitioner Holiday CVS, LLC.
Goldberg & Rosen, P.A., and Brett M. Rosen and Mustafa H. Dandashly, for
respondent.
Before LAGOA, SCALES, and LUCK, JJ.
LAGOA, J.
In this wrongful death suit, the defendants below, Walgreen Co.
(“Walgreens”) and Holiday CVS, LLC (“CVS”), petition this Court for writs of
certiorari, seeking to quash the trial court’s order denying their requests to shift to
the plaintiff the defendants’ cost of reviewing documents responsive to the
plaintiff’s request for production.1 Because neither petitioner has met the threshold
jurisdictional requirement that the trial court’s order creates irreparable harm, we
dismiss the petitions for lack of jurisdiction.
I. FACTUAL AND PROCEDURAL BACKGROUND
Respondent, the plaintiff below, Jonathan L. Rubin (“Rubin”), as the
personal representative of the Estate of Sharon R. Rubin, brought suit against
Walgreens and CVS alleging that Ms. Rubin died of multiple-drug toxicity due to
the alleged negligence of the pharmacies in dispensing prescription medications.
The first amended complaint alleged that in the three years or so leading up to Ms.
Rubin’s death, Walgreens filled approximately 275 different prescriptions issued
by eighteen different physicians and CVS filled approximately 95 different
prescriptions issued by ten different physicians. Many of the prescriptions at issue
in the complaint appear to be narcotics.
1 For appellate purposes, the Court consolidates case numbers 17-282 and 17-273
as they involve the same trial court order.
2
Shortly after filing suit, Rubin propounded document requests on Walgreens
requesting the “personnel files of all persons actually working in the pharmacies of
the Walgreens Pharmacy where the prescriptions were filled at the time of the fills
at issue in this lawsuit.” Rubin propounded a similar document request on CVS.
Walgreens moved to have Rubin bear the costs of its counsel reviewing and
redacting financial and health information from the personnel files of the forty-five
pharmacists it had identified. CVS moved to have Rubin make appropriate
arrangement for payment, in advance, for unspecified costs associated with
assembling the personnel files of the eighteen pharmacists it had identified. Rubin,
while not objecting to that information being redacted, opposed the attempt to shift
the cost of reviewing and redacting the files and cross-moved to compel
production.
In support of its motion, Walgreens submitted to the trial court the unsworn
statement of its in-house paralegal stating that it would take Walgreens employees
283 hours to pull and prep the 45 files at an average hourly pay of $20.34, and that
it would take 90 hours for a junior associate from outside counsel to review and
redact the files at an hourly rate of $175. Walgreens asserted that it would cost
over $21,000 to produce the documents. In contrast, CVS did not provide a cost
estimate or any other information regarding time needed to compile the responsive
documents, in support of its motion.
3
The trial court granted Rubin’s motion to compel, directed Walgreens and
CVS to produce the files for an in camera inspection to address ancillary privacy
issues not relevant here, and declined to have Rubin, at that time, bear the fees and
costs of production. Walgreens and CVS separately and timely petitioned for writs
of certiorari.
II. ANALYSIS
The requirements for a writ of certiorari are familiar:
A writ of certiorari is an extraordinary type of relief that
is granted in very limited circumstances. To be entitled to
certiorari, the petitioner is required to establish the
following three elements: (1) a departure from the
essential requirements of the law, (2) resulting in material
injury for the remainder of the case (3) that cannot be
corrected on postjudgment appeal. The last two elements,
often referred to as “irreparable harm,” are jurisdictional.
If a petition fails to make a threshold showing of
irreparable harm, this Court will dismiss the petition.
Coral Gables Chiropractic PLLC v. United Auto. Ins. Co., 199 So. 3d 292, 294
(Fla. 3d DCA 2016), reh’g denied (Aug. 17, 2016) (citations and internal
quotations marks omitted) (quoting Rousso v. Hannon, 146 So. 3d 66, 69 (Fla. 3d
DCA 2014); Williams v. Oken, 62 So. 3d 1129, 1132 (Fla. 2011); Nucci v. Target
Corp., 162 So. 3d 146, 151 (Fla. 4th DCA 2015)). As discussed below, petitioners
failed to satisfy their burden of establishing irreparable harm.
We first note that the trial court correctly disregarded the unsworn statement
from Walgreens’s paralegal, as an unsworn statement does not constitute evidence.
4
Topp Telecom, Inc. v. Atkins, 763 So. 2d 1197, 1199 (Fla. 4th DCA 2000) (“There
is obviously no error in overruling this kind of objection when it is not supported
by record evidence, such as an affidavit detailing the basis for claiming that the
onus of supplying the information or documents is inordinate.” (citing Allstate Ins.
Co. v. Boecher, 733 So. 2d 993, 994 (Fla. 1999))); cf. State ex rel. Hawkins v. Bd.
of Control, 53 So. 2d 116, 118–19 (Fla. 1951) (“[M]otion is not in and of itself
proof of the averments therein contained.”); Waliagha v. Kaiser, 989 So. 2d 660,
661 (Fla. 2d DCA 2008) (“Documents attached as exhibits to a motion are not
evidence.”); Eight Hundred, Inc. v. Fla. Dep’t of Revenue, 837 So. 2d 574, 576
(Fla. 1st DCA 2003) (“Representations by an attorney for one of the parties
regarding the facts, and documents attached as exhibits to a motion, do not
constitute evidence.”); Viking Superior Corp. v. W.T. Grant Co., 212 So. 2d 331,
334 (Fla. 1st DCA 1968) (“It appears to be the settled law of this state that unless a
motion is grounded on facts that are either apparent from the face of the record or
papers filed in the case, or within the judicial knowledge of the court, it must be
supported by affidavits or other proofs.”). The record therefore does not contain
evidence supporting Walgreens’ position and is insufficient to establish irreparable
harm.
Even if the unsworn statement constituted evidence which could be properly
considered by the trial court or this Court, the record still fails to establish
5
irreparable harm to Walgreens in order to obtain certiorari jurisdiction.2 Florida’s
courts are consistent in holding that undue burden or expense arising from a
discovery order does not constitute irreparable harm. Allstate Ins. Co. v. Hodges,
855 So. 2d 636, 639–40 (Fla. 2d DCA 2003) (“Most economic concerns regarding
the cost of litigation do not involve the essential requirements of the law or a
violation of a clearly established principle of law resulting in a miscarriage of
justice.”); Topp Telecom, 763 So. 2d at 1200 (citing Haines City Cmty. Dev., 658
So. 2d 523, 530-31 (Fla. 1995)) (“The fact that a party may be forced to furnish
discovery when the cost to do so is deemed inordinate does not involve a failure ‘to
afford procedural due process’ and ‘whether the circuit court applied the correct
law.’ An erroneous order compelling discovery when the cost and effort to do so is
burdensome but not destructive is simply not ‘sufficiently egregious or
fundamental to merit the extra review and safeguard provided by certiorari.’”); cf.
Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1100 (Fla. 1987) (“Litigation of
a non-issue will always be inconvenient and entail considerable expense of time
and money for all parties in the case. The authorities are clear that this type of
harm is not sufficient to permit certiorari review.”). The usual remedy available to
a party that has incurred burdensome discovery costs is to recoup them through
2 A fortiori, CVS, which failed to present any evidence or even an unsworn
statement to the trial court regarding its burden, failed to establish irreparable
harm.
6
taxation of costs, not via certiorari. See Topp Telecom, 763 So. 2d at 1201 n.5.
(“Of course the mere fact that a trial judge has allowed burdensome discovery to
proceed does not forestall later reallocation of the costs incurred when the
prevailing party seeks to tax costs at the end of the case.”).3
Walgreens relies on the recent Florida Supreme Court opinion, Worley v.
Central Florida Young Men’s Christian Association, Inc., 42 Fla. L. Weekly S443
(Fla. Apr. 13, 2017), timely mtn. for reh’g filed (Apr. 28, 2017), to support its
arguments that: (1) the trial court’s order causes irreparable harm, and (2) the
“financial ruin test” of Topp Telecom and its progeny is no longer the test for
certiorari review of discovery orders. Walgreens’s arguments fail, and we address
each one separately.
With respect to the first argument, the facts of Worley are distinguishable
from the facts of this instant case. In Worley, the Supreme Court found as unduly
burdensome a discovery order in a routine slip-and-fall case which would have
imposed over $90,000 in costs while the damages sought totaled $66,000. Id. at
S446 (“[W]e find that 200 hours and over $90,000 in costs to discover the
3 Walgreens and CVS argue that even if they prevail against Rubin, they
would be unable to recover document production costs under the Statewide
Uniform Guidelines for Taxation of Costs in Civil Actions. Those Guidelines are
advisory, and the petitioners have not cited to any cases holding that the
Guidelines would preclude recovery. Based on the record before this Court,
Walgreens and CVS’s legitimate complaints about the costs of discovery do not
establish certiorari jurisdiction.
7
collateral issue of bias in a case where the damages sought total $66,000 is unduly
burdensome.”) (emphasis added).4 Moreover, unlike in Worley, the instant case is
a wrongful death action, and, though no specific demand for damages was made in
the complaint, we presume that the damages sought by respondent will be
significantly higher than those in Worley. Additionally, the discovery at issue in
Worley related to a collateral issue; here, no such argument can be made, as the
discovery sought from Walgreens and CVS relates to the question of negligence.
With respect to the second argument raised by Walgreens, Worley did not
explicitly overrule the “financial ruin test” or otherwise question its applicability.
As such, this Court declines to hold that Worley, explicitly or implicitly, overruled
the “financial ruin test” articulated in Topp Telcom.
Based on the proposition that in Florida jurisprudence undue burden or
expense normally are insufficient to establish the irreparable harm needed for
certiorari jurisdiction, the “financial ruin test” simply refers to an exception to that
general rule, i.e., the extraordinary case where the undue burden or expense of
discovery are so great as to cause irreparable harm and warrant certiorari
jurisdiction.
III. CONCLUSION
4 Unlike the instant case, the record in Worley contained sworn affidavits regarding
the costs. Id.
8
Because neither petitioner has met the threshold jurisdictional requirement
establishing that the trial court’s order creates irreparable harm, we dismiss the
petitions for lack of jurisdiction.
Petitions dismissed.
9