Britt v. Cusick , 231 N.C. App. 528 ( 2014 )

NO. COA13-387
NORTH CAROLINA COURT OF APPEALS
Filed: 7 January 2014
MARSHALL KELLY BRITT, JR., as
Administrator of the ESTATE OF
DANA ROBINSON BRITT,
Plaintiff,
v. Mecklenburg County
No. 11 CVS 18262
KATHLEEN CUSICK, et. al.,
Defendants.
Appeal by defendants from order entered 28 November 2012 by
Judge James W. Morgan in Mecklenburg County Superior Court. Heard
in the Court of Appeals 9 September 2013.
Conrad, Trosch & Kemmy, P.A., by William Conrad Trosch; and
Janet, Jenner & Suggs, LLC, by Kenneth M. Suggs, for
plaintiff-appellee.
Parker Poe Adams & Bernstein LLP, by Harvey L. Cosper and
John D. Branson, for defendants-appellants.
GEER, Judge.
Defendants Kathleen Cusick, the Charlotte-Mecklenburg
Hospital Authority, doing business as Carolinas Healthcare System
and doing business as Carolinas Medical Center, and Carolinas
Physician Network, Inc., doing business as Charlotte Obstetrics
and Gynecologic Associates, appeal from the trial court's order
granting the motion of plaintiff Marshall Kelly Britt, Jr., as
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administrator of the Estate of Dana Robinson Britt, to quash
defendants' notice of deposition and his motion for a protective
order. Defendants' interlocutory appeal is from a discovery order
that barred defendants from obtaining discovery by one means, but
expressly permitted defendants to both seek the discovery at issue
by another means and to move the trial court to modify the order
if necessary to further the interests of justice. Under these
circumstances, we hold that defendants' interlocutory appeal does
not affect a substantial right, and we, therefore, dismiss the
appeal.
Facts
On 30 September 2011, plaintiff filed an action against
defendants, asserting claims for medical negligence, wrongful
death, and "MISREPRESENTATION[,] FAILURE TO PRODUCE MEDICAL
RECORDS/SPOILATION," stemming from Ms. Britt's death following an
emergency caesarean section surgery. With respect to the claim
that defendants wrongfully failed to produce medical records, the
complaint alleged that during the course of plaintiff's law firm's
investigation into whether Ms. Britt's death was caused by
defendants' negligence, plaintiff's law firm repeatedly requested
medical records from defendants that defendants wrongfully failed
to produce, either intentionally or as a result of defendants'
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failure to exercise reasonable care in compiling medical records
and delivering them to plaintiff.
Many of the allegations relating to this claim were based
upon conversations between one of plaintiff's law firm's
paralegals and various employees of defendants. The complaint
alleged that plaintiff was entitled to "an inference that
Defendants withheld evidence and/or destroyed evidence because
that evidence . . . would have been adverse to Defendants." The
complaint further alleged that as a result of defendants' failure
to produce the requested medical records, in breach of certain
statutory duties owed to plaintiff, plaintiff had been damaged in
excess of $10,000.00.
On 5 December 2011, defendants filed an answer denying the
material allegations of the complaint and a motion to dismiss the
wrongful failure to produce medical records claim pursuant to Rule
12(b)(6) of the Rules of Civil Procedure. Apparently, defendants
subsequently served a notice of deposition for Beth Ferguson, the
paralegal with plaintiff's law firm, although the notice does not
appear in the record on appeal. On 20 September 2012, plaintiff
filed a motion to quash defendants' notice of deposition and for
a protective order pursuant to Rule 26(c) of the Rules of Civil
Procedure.
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In the motion, plaintiff alleged that Ms. Ferguson had
requested Ms. Britt's medical records from defendants and had
spoken with employees of defendants about the medical records "[o]n
a number of occasions." The motion further alleged that defendants
had served plaintiff's counsel with a notice of deposition for Ms.
Ferguson, but that allowing an oral deposition of Ms. Ferguson
would "inevitably lead to the discovery of [plaintiff's] counsel's
mental impressions and thought process." Such a deposition would,
plaintiff alleged, constitute an "unreasonable annoyance,
embarrassment, oppression, undue burden, and/or expense" and would
violate the attorney client and work product privileges.
Accordingly, plaintiff asked the court to enter an order quashing
the deposition notice and prohibiting defendants from taking Ms.
Ferguson's oral deposition or otherwise eliciting testimony
regarding privileged information.
On 28 November 2012, the trial court entered an order granting
plaintiff's motion to quash defendants' notice of deposition of
Ms. Ferguson and motion for a protective order. The order provided
that defendants' discovery of Ms. Ferguson was limited as follows:
(1) "Plaintiff shall produce Beth Ferguson's testimony in written
form to the Defendants;" (2) "[a]fter receiving Ms. Ferguson's
written form testimony, the Defendants may ask follow-up written
questions to Ms. Ferguson[;]" (3) "Plaintiff shall promptly
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respond to these follow-up questions;" and (4) "Ms. Ferguson may
testify live at trial, but her testimony at trial shall be limited
to information produced in her written form testimony and responses
to Defendants [sic] follow-up written questions." The order
further provided, "This Order may be modified by future Court Order
if required in the interest of justice." Defendants appealed the
trial court's order to this Court.
Discussion
We must first address this Court's jurisdiction over this
appeal. "An interlocutory order is one made during the pendency
of an action, which does not dispose of the case, but leaves it
for further action by the trial court in order to settle and
determine the entire controversy." Veazey v. City of Durham, 231
N.C. 357, 362, 57 S.E.2d 377, 381 (1950). The appealed discovery
order in this case is interlocutory because it fails to settle and
determine the entire controversy.
"Generally, there is no right of immediate appeal from
interlocutory orders and judgments." Goldston v. Am. Motors Corp.,
326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). However, "immediate
appeal is available from an interlocutory order or judgment which
affects a 'substantial right.'" Sharpe v. Worland, 351 N.C. 159,
162, 522 S.E.2d 577, 579 (1999) (quoting N.C. Gen. Stat. § 1-
277(a) (1996)). A substantial right is "'one which will clearly
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be lost or irremediably adversely affected if the order is not
reviewable before final judgment.'" Turner v. Norfolk S. Corp.,
137 N.C. App. 138, 142, 526 S.E.2d 666, 670 (2000) (quoting
Blackwelder v. State Dep't of Human Res., 60 N.C. App. 331, 335,
299 S.E.2d 777, 780 (1983)).
Generally, "orders denying or allowing discovery are not
appealable since they are interlocutory and do not affect a
substantial right which would be lost if the ruling were not
reviewed before final judgment." Dworsky v. Travelers Ins. Co.,
49 N.C. App. 446, 447, 271 S.E.2d 522, 523 (1980). As this Court
has explained: "Our appellate courts have recognized very limited
exceptions to this general rule, holding that an order compelling
discovery might affect a substantial right, and thus allow
immediate appeal, if it either imposes sanctions on the party
contesting the discovery, or requires the production of materials
protected by a recognized privilege." Arnold v. City of Asheville,
169 N.C. App. 451, 453, 610 S.E.2d 280, 282 (2005).
Although neither of these exceptions apply in this case,
defendants argue that their appeal affects a substantial right
under Tennessee-Carolina Transp., Inc. v. Strick Corp., 291 N.C.
618, 231 S.E.2d 597 (1977), since the trial court's order,
according to defendants, effectively precluded them from
discovering highly material evidence through the oral deposition
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of the only witness with personal knowledge of the relevant
matters.
In Tennessee-Carolina Transportation, the defendant sold 150
trailers to the plaintiff, and the plaintiff subsequently sued the
defendant for breach of an implied warranty of fitness based upon
allegations that certain metal in the trailers did not "measure up
to the proper degree of hardness." Id. at 623, 231 S.E.2d at 600.
Prior to trial, the defendant appealed from the trial court's
discovery order prohibiting the defendant from taking the
deposition of an out-of-state expert witness who, at the
plaintiff's request, had conducted tests on some of the trailers
to determine the hardness of the relevant metal. Id. at 620-21,
623, 231 S.E.2d at 599, 600.
The Supreme Court held that the appealed order affected a
substantial right of the defendant because the order "effectively
preclude[d] the defendant from introducing evidence of the
'readings' concerning the hardness of the metal obtained by the
tests which [the expert] made" -- evidence that was "highly
material to the determination of the critical question to be
resolved" at trial. Id. at 625, 629, 231 S.E.2d at 601, 603. The
Court further noted that nothing in the record indicated that the
taking of the expert's deposition would have delayed the trial or
would have caused the plaintiff or the expert any unreasonable
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annoyance, embarrassment, oppression, or undue burden or expense.
Id. at 629, 231 S.E.2d at 603.
In contrast, here, the trial court's order did not
"effectively preclude" defendants from discovering relevant
information from Ms. Ferguson. Rather, the trial court's order
expressly provided for discovery from Ms. Ferguson, but, because
Ms. Ferguson was a paralegal for plaintiff's counsel, delimited
the manner of discovery by providing that plaintiff would produce
Ms. Ferguson's intended testimony in writing and then she would be
required to respond to written questions submitted by defendants.
Importantly, however, the order further provided that it "may be
modified by future Court Order if required in the interest of
justice." Thus, if the written discovery proved inadequate,
defendants could then move the trial court to modify the protective
order to allow an oral deposition of Ms. Ferguson or other
appropriate discovery under the circumstances.
Because defendants have not pursued the discovery authorized
by the trial court, they cannot show that this order regulating
the manner of discovery, but not prohibiting it, "effectively
preclude[d] the defendant[s] from introducing evidence" that was
"highly material to the determination of the critical question to
be resolved" at trial. Id. at 625, 629, 231 S.E.2d at 601, 603.
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This Court has previously held that an order denying an overly
broad request for discovery does not affect a substantial right
under Tennessee-Carolina Transportation when the record does not
specifically show what "relevant and material information" the
appellant was barred from obtaining as a result of the discovery
order. Dworsky, 49 N.C. App. at 448, 271 S.E.2d at 524. Implicit
in Dworsky is that the appellant could submit a request that did
not amount to a fishing expedition. Id.Here, similarly, defendants have not shown what relevant and
material information they would obtain in an oral deposition that
they cannot obtain using the procedure adopted by the trial court.
While such a showing might be possible after completing the
discovery allowed by the trial court, defendants cannot yet make
that showing. Accordingly, as in Dworsky, Tennessee-Carolina
Transportation does not apply here. We, therefore, dismiss
defendants' appeal as interlocutory. See also Carolina Overall
Corp. v. E. Carolina Linen Supply, Inc., 1 N.C. App. 318, 319,
320, 161 S.E.2d 233, 234 (1968) (dismissing, as interlocutory,
order denying in part defendant's motion for production and
inspection of documents but permitting defendants "'to come again
and re-apply for production and inspection of documents specifying
in more and greater detail the items sought to be discovered,'"
when order "adequately protected the rights of all parties in this
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matter and no substantial right of the defendant was prejudiced").
Cf. Norris v. Sattler, 139 N.C. App. 409, 413, 533 S.E.2d 483, 486
(2000) (holding interlocutory discovery order barring defendant
hospital from ex parte contact with plaintiff's treating physician
regarding plaintiff's case did not affect substantial right since
order did not preclude defendant from seeking discovery of
physician through "multi-varied discovery methods detailed in Rule
26" of Rules of Civil Procedure).
Dismissed.
Chief Judge MARTIN and Judge STROUD concur.