Glades General Hospital v. Louis ex rel. Louis
Glades General Hospital v. Louis ex rel. Louis
Opinion of the Court
This is a petition for common law certio-rari filed as an emergency seeking to overturn a trial court’s order regarding discovery.
A pretrial conference occurred in the matter on July 9, 1981. At that time, by
We are sympathetic with defense counsel, but the question is not whether the members of this panel would have granted a continuance under similar circumstances but rather whether the trial judge abused his discretion in failing to grant the continuance. The grant or denial of a continuance is a matter within the sound discretion of a trial judge. State v. Florida State Turnpike Authority, 134 So.2d 12 (Fla. 1961). We feel this is particularly true in regard to pretrial discovery scheduling matters. The trial court has a far superior vantage point as to prior discovery which has gone on, the necessity for further discovery, and the many considerations which go into managing a trial docket and granting continuances. The action of the trial court will not be disturbed by the appellate court unless there is clearly shown to have been a palpable abuse of judicial discretion. Edwards v. Pratt, 335 So.2d 597 (Fla.3d DCA 1976); Williams v. Gunn, 279 So.2d 69 (Fla.1st DCA 1963). The burden of establishing abuse of discretion is on the party complaining of the trial court’s action. Aeree v. State, 153 Fla. 561, 15 So.2d 262 (1943).
Several matters support the exercise of the trial court’s discretion herein. Initially, the transcript of the pretrial conference shows all counsel stipulated that additional witnesses could be added at the time of the conference. When counsel stipulate to the addition of new witnesses two weeks prior to trial, there is a clear implication that these witnesses should be subject to discovery, at least in the absence of a stipulation to the contrary. Defendants also wanted to add additional witnesses and we certainly cannot fault the trial judge for allowing plaintiffs to proceed with discovery of these additional defense witnesses.
On petition before this Court, the defendants complain that plaintiff had not answered certain expert witness interrogatories propounded under Rule of Civil Procedure 1.280(b)(3)(A). Defendants contend they were surprised by plaintiff’s new expert since these expert witness interrogatories had not been answered. The transcript of the pretrial conference indicates absolutely no mention of plaintiffs’ failure to answer these interrogatories. Since this matter was not brought to the trial court’s attention, we cannot consider it.
As we see it, the stipulation to add witnesses late and the total unavailability of both defense counsel during the crucial two-week period prior to the trial presents a dilemma. On the one hand, the plaintiffs’ medical expert may appear and testify at trial with defendants having absolutely no idea what that testimony would be. On the other hand, the doctor would testify in a videotaped deposition prior to trial, and the cross-examination would be handled by another lawyer from defense counsel’s firm who would be less knowledgeable than trial counsel. Even though a continuance of the entire case is an appealing third alternative, we cannot conclude that the trial judge, in his superior vantage point, clearly abused his discretion in choosing to allow the deposition to proceed with substitute counsel rather than trial counsel.
We, therefore, deny the emergency petition for certiorari with a note of caution that the admissibility at trial of the videotaped deposition has obviously not yet been ruled upon.
CERTIORARI DENIED.
. We previously ruled upon this matter by denial of the writ with opinion to follow.
. We recognize the failure to answer interrogatories was mentioned in a later hearing on another matter.
Concurring Opinion
concurring specially:
I also write separately to suggest a possible solution for resolution of similar future problems. Rule of Civil Procedure 1.300(c) states that the parties may stipulate that a deposition may be taken “in any manner.” Even if trial counsel must send substitute counsel to pinch hit at this deposition, a telephone conference hookup would allow trial counsel to remain in Florida, hear the deposition as it occurs, and confer with substitute counsel privately by phone during his cross-examination of the witness. I see no reason why the telephone and various other electronic means should not be employed in conjunction with and in addition to videotaped depositions.
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