Hammer v. Rosenthal Jew. Sup. Corp. (1990)

Our plain-English summary of Hammer v. Rosenthal Jew. Sup. Corp. (Florida District Court of Appeal, March 7, 1990).

Charles Hammer, as personal representative of the estate of his father Irving Hammer, appealed the dismissal of an asbestos suit against Rosenthal Jewelers Supply Corporation, Janos Industrial Insulation, Celotex and GAF. Mr. Hammer was a jeweler who allegedly developed mesothelioma from long occupational exposure to asbestos dust from the defendants' products, and he died soon after filing suit. The defendants sought an exhumation and autopsy. Medical testimony said a tissue diagnosis was needed to link mesothelioma to asbestos, because not all mesothelioma is caused by asbestos, and the tissue taken during his life was pleural rather than lung tissue. Mrs. Hammer objected on religious grounds, and the court accepted that her belief was genuine. The trial court ordered the autopsy and dismissed the case with prejudice when she refused. The Fourth District affirmed, finding the autopsy order warranted because it would likely provide relevant information. Because dismissal is so severe and the issues were delicate, it sent the case back to give Mrs. Hammer ten days to agree to the autopsy and avoid dismissal.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: Florida District Court of Appeal, 4th District
• Decided: March 7, 1990
• Citation: 558 So.2d 460
• Docket: No. 88-2074
• Stage: Appeal from discovery or evidence ruling
• State: Florida

Outcome. The appeals court affirmed the trial court's dismissal of the Hammer estate's suit against Rosenthal Jewelers Supply and the other defendants as a discovery sanction, but remanded to give Mrs. Hammer ten days to consent to the autopsy and so prevent dismissal.

What the court held. Ordering exhumation and autopsy was warranted despite the widow's sincere religious objection, because it would likely yield relevant information, and dismissal for refusing was upheld. Given the severity of dismissal as a sanction, the widow was allowed a final chance to comply.

Issues decided: Wrongful Death and Survival, Trial Procedure and Discovery.

The people and their exposure

• Irving Isidore Hammer: mesothelioma; died

The defendants

• Rosenthal Jewelers Supply Corporation
• Janos Industrial Insulation Corp.
• Celotex Corp. (manufacturer) · its asbestos trust
• GAF Corp. (manufacturer) · its asbestos trust

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

558 So.2d 460 (1990)

Charles HAMMER, As Personal Representative of the Estate of Irving Isidore Hammer, Deceased,

Appellant,

v.

ROSENTHAL JEWELERS SUPPLY CORPORATION, etal., and Bernice Rhea Hammer, Appellees.

No. 88-2074.

March 7, 1990.

Rehearing and Certification Denied April 12, 1990.

District Court of Appeal of Florida, Fourth District.

Reed A. Bryan and Asela M. Cuervo of McCune, Hiaasen, Crum, Gardner & Duke, P.A., Fort Lauderdale, for appellant. Joseph H. Lowe of Marlow, Shofi, Connell, Valerius, Abrams, Lowe & Adler, Miami, for appellee-Rosenthal Jewelers. Shelley H. Leinicke of Wicker, Smith, Blomqvist, Tutan, O'Hara, McCoy, Graham & Lane, Fort Lauderdale, for appellee-Janos Indus. Insulation Corp.

Raymond T. Elligett, Jr. of Shackleford, Farrior, Stallings & Evans, P.A., Tampa, for appellees-Celotex Corp. and GAF Corp. [*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 mesothelioma, a form of lung cancer, due to prolonged occupational exposure to asbestos dust from products manufactured by appellees. 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 tenus 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.

Sources

• The opinion on Google Scholar
• Florida asbestos laws
• Florida asbestos exposure sites