DANIEL C. ROEHM, SR., M.D., APPELLANT,
v.
DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, APPELLEE
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Dr. Roehm appealed a nonfinal agency order from the Board of Medical Examiners requiring him to make his expert witness available for deposition after he refused to do so unless a specified witness fee was paid in advance. The court dismissed the appeal as premature, holding that no irreparable harm would result that could not be redressed in a subsequent appeal.
The court dismissed the appeal as premature because Dr. Roehm had neither shown nor could show harm from the order that could not subsequently be redressed on appeal after the administrative proceeding concludes.
[1] An appeal from a nonfinal agency order is premature when the appellant has not shown and cannot show harm that cannot be redressed after a final judgment.
[2] A party's refusal to make an expert available for a deposition, after agreeing to do so, may warrant sanctions.
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 issue of the amount of witness fee to be paid being the proper subject for resolution by the Hearing Officer in the absence of agreement by the parties, and it being evident that the expert should be made available for deposition in the area of his residence”
Establishes that the hearing officer properly determined witness fee disputes and that expert availability for deposition is mandatory
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Join FLexlaw to unlock all legal intelligenceThe Board's hearing officer entered an order on January 9, 1987, following a telephonic conference in which the parties had agreed to allow deposition…
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PER CURIAM.
This is an appeal from a nonfinal agency order which reads, for the most part, as follows:
On January 9, 1987, subsequent to a telephonic conference motion hearing in which all pertinent parties hereto participated, the undersigned entered an Order incorporating therein the terms and agreements reached between the parties and specific rulings by the undersigned on other matters in controversy. Among the items agreed upon by counsel for the parties were the taking of depositions including one of Respondent’s expert.
Notwithstanding the purported agreement between counsel which framed the basis for the undersigned’s granting of a continuance to allow this deposition to be taken, Respondent now refuses to make the expert available for deposition as agreed except on advance further agreement to pay a specified sum certain to the expert as a witness fee. The issue of the amount of witness fee to be paid being the proper subject for resolution by the Hearing Officer in the absence of agreement by the parties, and it being evident that the expert should be made available for deposition in the area of his residence, and Respondent having failed to respond to Petitioner’s Motion for Sanctions, it is, therefore,
ORDERED THAT:.
The Motion for Sanctions is Granted. Counsel for Respondent will work with counsel for Petitioner to make the expert in issue here available for deposition at a mutually convenient time, at his area of residence, sufficiently in advance of hearing to be effective. Failure to comply with the terms of this Order by Respondent will result in the testimony of this expert being excluded.
We dismiss the appeal as premature and hold that appellant neither has shown nor can show harm to him that will arise from the order which cannot subsequently be redressed.
HERSEY, C.J., and LETTS and GLICKSTEIN, JJ., concur.