final until disposition of timely filed motion for rehearing.
Petition for Writ of Certiorari from the Circuit Court for
Miami-Dade County Lower Tribunal No. 18-30982, David C.
Smith LLP, and Edward M. Mullins, Lisa M. Baird, David J. de
Jesus and Christina Olivos, for petitioners.
Recovery Law Firm, and John H. Ruiz, Michael O. Mena, Gino
Moreno and Christine M. Lugo, for respondents.
Patton Boggs (US) LLP, Andrew R. Kruppa and Amanda E.
Preston; Rumberger, Kirk & Caldwell, P.A., and Joshua D.
Lerner, for Ethicon, Inc. and Boston Scientific Corporation,
as amici curiae.
Brisbois Bisgaard & Smith LLP, and Kathryn L. Ender,
Joelle C. Sharman and Brian S. Goldenberg, for ALN
International, Inc. and ALN Implants Chirurgicaux, as amici
EMAS, C.J., and LOGUE and SCALES, JJ.
Medical Systems, LLC, f/k/a American Medical Systems, Inc.,
American Medical Systems Holdings, Inc., Endo
Pharmaceuticals, Inc., and Endo Health Solutions, Inc. f/k/a
Endo Pharmaceuticals Holdings, Inc. (collectively
"Petitioners"), the defendants below, seek a writ
of certiorari to quash the trial court's non-final order
denying their motion to dismiss the amended complaint for a
pure bill of discovery filed by the plaintiffs below, MSP
Recovery Claims, Series, LLC, MSPA Claims 1, LLC, and Series
PMPI, a Designated Series of MAO-MSO Recovery II, LLC
(collectively "Respondents"). Because Petitioners
have failed to demonstrate the requisite irreparable harm, we
lack jurisdiction to hear, and therefore dismiss, the instant
petition. See Villella v. Ansin, 263 So.3d 823, 825
(Fla. 3d DCA 2019) ("On this record, where the trial
court has not finally resolved whether [the petitioner] may
obtain the discovery he seeks . . . we conclude that [the
petitioner] has failed to demonstrate the requisite
irreparable harm that is required for us to have jurisdiction
over this petition."); Lee v. Condell, 208
So.3d 253, 256 (Fla. 3d DCA 2016) ("[I]rreparable harm
is a condition precedent to invoking certiorari jurisdiction
that should be considered first." (quoting Lacaretta
Rest. v. Zepeda, 115 So.3d 1091, 1092 (Fla. 1st
DCA 2013))); CQB, 2010, LLC v. Bank of N.Y.Mellon,
177 So.3d 644, 645 (Fla. 1st DCA 2015) ("The requirement
of material, irreparable harm is jurisdictional. We must
dismiss the petition if it is not met.").
January 22, 2019, Respondents filed an amended complaint for
a pure bill of discovery against Petitioners, seeking to
compel Petitioners to identify whether certain Medicare
beneficiaries were implanted with pelvic mesh products sold
by Petitioners, and whose healthcare costs were subsequently
paid by a Medicare Advantage Organization. On May 3, 2019,
Petitioners moved to dismiss the amended complaint, arguing
that Respondents had failed to state a valid claim for a pure
bill of discovery and that Respondents lacked standing to
bring such a claim.
9, 2019, the trial court held a hearing on Petitioners'
motion to dismiss the amended complaint and stated that it
was denying Petitioners' motion to dismiss. The hearing
transcript reflects that the trial court, in denying the
motion, confirmed with the parties that the next step in the
proceeding was for Petitioners to answer to the amended
complaint; but, at Petitioners' request, the trial court
agreed to stay the lower proceeding should Petitioners decide
to seek appellate review of its order denying the motion to
dismiss. The next day, July 10, 2019, the trial court entered
the challenged order denying Petitioners' motion to
dismiss. While the order requires Petitioners to answer to
Respondents' amended complaint within thirty days, the
order does not require Petitioners to produce any discovery
material. The order also provides that the case shall be
stayed pending resolution of any timely appeal or petition.
August 9, 2019, Petitioners timely filed the instant petition
in this Court seeking certiorari review of the trial
court's order denying Petitioners' motion to dismiss.
Respondents responded to the petition and, in the same
filing, moved to dismiss the petition. Specifically, noting
both that the trial court merely ordered Petitioners to
answer the amended complaint, and that Petitioners have not
yet been ordered to produce any discovery sought therein,
Respondents argue that Petitioners cannot demonstrate the
requisite irreparable harm that would vest this Court with
the jurisdiction to determine whether there has been a
departure from the essential requirements of the law.