Opinion
Case No. 4D00-3189.
Opinion filed July 25, 2001.
Petitions for writ of mandamus and certiorari to the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Robert Lance Andrews, Judge; L.T. Case No. 95-9076 09.
Wendy Frank Lumish and Benjamine Reid of Carlton, Fields, Ward, Emmanuel, Smith Cutler, P.A., and R. Layton Mank of Wilson, Elser, Moskowitz, Edelman Dicker, Miami, and Joe G. Hollingsworth, Katharine R. Latimer, Martin C. Calhoun, Cynthia L. Kendrick, and Rebecca A. Womeldorf of Spriggs Hollingsworth, Washington, D.C., for petitioner.
Richard A. Sherman of Law Offices of Richard A. Sherman, P.A., and Wilton L. Strickland of Wilton L. Strickland, P.A., Fort Lauderdale, for respondents Connie and Rene Carnoto, her husband. Loren E. Levy of The Levy Law Firm, Tallahassee, for Amicus Curiae The Academy of Florida Trial Lawyers.
Susan T. Spradley, George N. Meros, Jr., and Chanta G. Combs of Gray, Harris Robinson, P.A., Tallahassee, for Amicus Curiae The TRUE Coalition, and Robin S. Conrad of the National Chamber Litigation Center, Inc., Washington, D.C., for Amicus Curiae Chamber of Commerce of the United States.
Brian S. Dervishi of Weissman, Dervishi, Borgo Nordlund, P.A., Miami, Chilton Davis Varner and Sara Barton O'Dea of King Spalding, Atlanta, Georgia, and Hugh F. Young, Jr., Reston, Virginia, for Amicus Curiae The Product Liability Advisory Council, Inc.
Novartis Pharmaceuticals Corporation has filed this petition for writ of mandamus and certiorari following a Broward Circuit Court order which denied its motion to limit the scope of referral of issues to a special master.
In particular, the trial court referred issues pertaining to the Sunshine in Litigation Act [Sunshine Act], specifically Section 69.081, Florida Statutes, to a special master, and ruled that a determination would have to be made on Sunshine Act issues before the trial court would rule on petitioner's discovery objections in a pending products liability lawsuit. Petitioner Novartis argued that it did not consent to this delegation of Sunshine Act issues to the special master, and that the trial court erred in deciding to defer ruling on petitioner's discovery objections until resolution of the Sunshine Act issues.
We grant the petition for writ of mandamus but deny the petition for certiorari.
Mandamus lies to compel a trial court to resolve issues without a special master when the trial court has referred such issues to resolution by special master without the consent of both sides to a dispute. See, e.g., Pesut v. Miller, 773 So.2d 1185 (Fla. 2d DCA 2000); Hanor v. Hinckley, 584 So.2d 1129 (Fla. 4th DCA 1991); Taylor v. Taylor, 569 So.2d 1389 (Fla. 4th DCA 1990); Bathurst v. Turner, 533 So.2d 939 (Fla. 3d DCA 1988). These authorities are based on rule 1.490(c), Florida Rules of Civil Procedure, which provides that no reference shall be made to a master without the consent of the parties.
We find that the record shows that petitioner did not consent to referral of the Sunshine in Litigation Act issues to the special master. We reject respondents' argument that petitioner waived the issue or invited error in the referral.
Petitioner also argues for certiorari to quash the same order because it provided that the trial court would resolve pretrial public hazard issues raised rather than defer hearing them until after resolution of the pending products liability lawsuit. For certiorari to lie, petitioners must demonstrate a departure from the essential requirements of law which causes irreparable harm. Bared Co., Inc. v. McGuire, 670 So.2d 153 (Fla. 4th DCA 1996).
Even assuming that we were to find that petitioner demonstrated irreparable harm in this case, based on its claims that the order as entered will cause an erroneous deprivation of its property and reputation, we do not find that the trial court departed from the essential requirements of law. We find nothing in the Sunshine Act which precluded the trial court from taking up the issue of whether there was evidence of a public hazard which must be disclosed prior to ruling on petitioner's discovery objections and prior to a determination of petitioner's liability at trial.
We reject petitioner's argument that the Sunshine Act issues must be heard after the verdict or judgment in this case.
Petitioner misplaces reliance on case law such as E. I. DuPont de Demours Co. v. Lambert, 654 So.2d 226 (Fla. 2d DCA 1995). There, the second district reversed a trial court order setting aside a confidentiality order challenged under the Sunshine Act because the trial court's order had denied DuPont's procedural due process rights. No comparable denial of procedural due process is demonstrated herein.
We similarly reject petitioner's argument that the trial court's interpretation of the Sunshine Act violates the Separation of Powers Doctrine in Article II, Section 3 of the Florida Constitution. It did not abolish the authority of courts to enter protective orders in aid of their jurisdiction. Rather, the trial court expressly provided that it intended to conduct an evidentiary hearing on the Sunshine Act issues and that if no hazard is found, it would then enter a protective order if appropriate under the privilege or other grounds asserted for such relief.
Further, since the Sunshine Act provisions are substantive in nature rather than procedural, they do not appear to present a potential violation of the court's right to control procedural matters as provided for in Article V, Section 2(a) of the Florida Constitution. See Hillsborough County Aviation Auth. v. Azarelli Constr. Co., Inc., 436 So.2d 153 (Fla. 2d DCA 1983) (public records law controlled over rule 1.280(b)(2), protecting against discovery of work product, and since the statute was substantive in nature rather than procedural, it did not present constitutional violation of court's right to control procedural matters).
We find petitioner's remaining points to be without merit and decline to entertain the broad range of constitutional challenges to the trial court's order and Sunshine Act advanced in one of the amicus briefs filed in this court. We find those challenges to be premature at best.
PETITION FOR WRIT OF MANDAMUS GRANTED; PETITION FOR WRIT OF CERTIORARI DENIED.
DELL, WARNER and SHAHOOD, JJ., concur.