Disability Law

Late-Filed Petition for Writ of Certiorari Dismissed

By David A. McCranie, Esq.

A pretrial order compelling discovery can be reviewed by way of petition for writ of certiorari  without waiting until the conclusion of the trial so long as the petitioner can show: (1) that the order constitutes a departure from the essential requirements of law; (2) that it would cause material harm; and (3) that the harm caused by the order cannot be adequately remedied by way of a post-trial appeal.  As with an appeal, however, the petition must be filed within 30 days of rendition of the order sought to be reviewed.  Failure to file the petition timely will result in its dismissal.  That's what happened in Caldwell v. Wal-Mart Stores, Inc., decided on 5/5/2008.  Although the petition in Caldwell was filed within 30 days of an order denying the claimant's "Motion for Reconsideration of Order Entered February 28, 2007" the First DCA concluded that the claimant's real challenge was to the February 28 order compelling him to submit to an independent medical examination with a doctor who was allegedly friendly with the insurance industry, not with the much later order denying his "motion for reconsideration."  Because the petition was filed more than 30 days from 2/28/2007, the court dismissed it as untimely.

Full post as published by Florida Workers’ Compensation Law Blog on May 06, 2008 (boomark / email).