       Third District Court of Appeal
                                State of Florida

                           Opinion filed October 4, 2017.
          Not final until disposition of timely filed motion for rehearing.

                                ________________

                                 No. 3D17-282
                            Consolidated: 3D17-273
                          Lower Tribunal No. 14-29542
                              ________________


                  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.

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      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.



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       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.


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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.

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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.




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