CHARLES HAMMER, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF IRVING ISIDORE HAMMER, DECEASED, APPELLANT,
v.
ROSENTHAL JEWELERS SUPPLY CORPORATION, ET AL., AND BERNICE RHEA HAMMER, APPELLEES
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Charles Hammer, as personal representative of his deceased father Irving's estate, appealed the dismissal of a mesothelioma wrongful death action against asbestos manufacturers. The trial court dismissed the case as a sanction for failure to comply with a discovery order requiring exhumation and autopsy, which Irving's widow Bernice opposed on religious grounds. The appellate court affirmed the trial court's authority to order the autopsy but remanded to give the widow ten days to comply and avoid dismissal.
The trial court properly ordered the autopsy because the defendants had a right to access medical information necessary to defend the claim, and the medical evidence showed the autopsy would likely provide relevant information. However, given the delicate sensitivities and severity of dismissal as a sanction, the appellate court remanded to allow Mrs. Hammer ten days to comply with the autopsy order before dismissal would be imposed.
[1] A trial court may order an exhumation and autopsy to obtain necessary medical evidence for a personal injury claim, even when faced with religious objections, if the need…
[2] Dismissal of a lawsuit with prejudice is a severe sanction that should be employed cautiously, particularly when sensitive religious beliefs are involved.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The trial court was faced with a difficult balancing decision between the rights of appellees to have access to medical information with which to attempt to defend the claim and perhaps promote settlement, which could only be obtained by exhumation and autopsy, against Mrs. Hammer's well-founded religious objections.”
Establishes the competing interests the court had to balance in deciding whether to order the autopsy.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceIrving Hammer, a jeweler, allegedly contracted mesothelioma from prolonged occupational exposure to asbestos dust. He died shortly after filing his co…
The full statement of facts, procedural history, and disposition for this case are member content.
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[*461] PER CURIAM.
Appellant seeks review of the trial court’s order of dismissal in this personal injury action, entered as a sanction for failure to comply with discovery. We affirm; however, we remand to the trial court with directions.
The action was initiated by the Hammers based on the allegation that Mr. Hammer, a jeweler, allegedly contracted mesothelio-ma, a form of lung cancer, due to prolonged occupational exposure to asbestos dust from products manufactured by appel-lees. Mr. Hammer died, allegedly from mesothelioma, shortly after filing his complaint.
An emergency motion to enjoin burial and compel autopsy was filed and several hearings set. Mrs. Hammer objected to the exhumation and autopsy for religious reasons. The genuineness of her belief is not in controversy. During the hearings there was medical testimony that to link a diagnosis of mesothelioma to asbestos exposure a tissue diagnosis was necessary because not all mesothelioma is caused by asbestos exposure. The tissue samples taken from Mr. Hammer, while alive, were of a different type than those preferred in making a diagnosis of this type. They were pleural tissue samples, taken from the membrane surrounding the lungs, not lung tissue samples. An ore terms motion for sanctions and dismissal with prejudice was granted. A rehearing and the filing of an amended complaint for wrongful death had the same result.
The trial court was faced with a difficult balancing decision between the rights of appellees to have access to medical information with which to attempt to defend the claim and perhaps promote settlement, which could only be obtained by exhumation and autopsy, against Mrs. Hammer’s well-founded religious objections. Although the medical opinions were inconclusive, as they tended to show an autopsy would likely provide relevant information, the ordering of the autopsy was warranted. Esgro v. Trezza, 492 So. 2d 422 (Fla. 4th DCA 1986), rev. denied, 501 So. 2d 1281 (Fla.1986). We therefore affirm the trial court’s order. At that point, Mrs. Hammer chose to value protection of her husband’s memory and her religious beliefs over going forward with the suit.
However, in view of the delicate sensitivities involved and the severity of dismissal as a sanction tool, we remand to allow Mrs. Hammer ten days from issuance of this mandate in which to comply with the trial court’s order and assent to autopsy, thereby preventing dismissal of the action.
DELL, WALDEN and POLEN, JJ., concur.
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Gottlieb v. Mohamad R. Samiian, M.D., 999 So. 2d 678 (Fla. 1st DCA 2008)…h petitioner seeks review. Although Florida has no disinterment statute, case law has allowed such a vehicle for discovery in a civil proceeding. See Ullendorff v. Brown, 156 Fla. 655, 24 So. 2d 37 (1945); Hammer v. Rosenthal Jewelers Supply Corp., 558 So. 2d 460 (Fla. 4th DCA 1990); Esgro v. Trezza, 492 So. 2d 422 (Fla. 4th DCA 1986); cf. Landrum v. Armstrong World Indus., Inc., 535 So. 2d 656 (Fla. 3d DCA 1988) (denying certiorari review of order for autopsy entered while plaintiff still alive). Because th…
Authorities Cited
- Esgro v. James T. Trezza, M.D., 492 So. 2d 422 (Fla. 4th DCA 1986)