Steiner, B. v. Hollingsworth & Vose Co. ( 2018 )

J-A16032-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BERNICE M. STEINER, INDIVIDUALLY : IN THE SUPERIOR COURT OF
AND AS PERSONAL REPRESENTATIVE : PENNSYLVANIA
OF THE ESTATE OF SAMUEL E. :
STEINER :
:
:
v. :
:
: No. 563 EDA 2018
HOLLINGSWORTH & VOSE COMPANY, :
LORILLARD TOBACCO COMPANY, :
INDIVIDUALLY AND AS SUCCESSORY :
IN THE INTEREEST TO P. LORILLARD :
CO. :
:
:
APPEAL OF: R.J. REYNOLDS :
TOBACCO COMPANY, AS :
SUCCESSOR-BY-MERGER TO :
LORILLARD TOBACCO COMPANY :
Appeal from the Order Entered February 6, 2018
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): February Term, 2016 No. 4932
BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 30, 2018
Appellant R.J. Reynolds Tobacco Company, as Successor-By-Merger to
Lorillard Tobacco Company (“Reynolds”), appeals from the order, entered in
the Court of Common Pleas of Philadelphia County, granting in part the motion
filed by Bernice Steiner, Administratrix of the Estate of Samuel Steiner,
Deceased (“Plaintiff”). After our review, we quash this appeal and vacate the
April 17, 2018 stay.
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On March 3, 2016, Plaintiff filed suit against Hollingsworth & Vose
Company (“Hollingsworth”), a manufacturer of asbestos-containing bulk filter
media. Hollingsworth sold that product to Reynolds, which used it to make
“micronite filters,” which were used in Kent cigarettes from 1952 to 1956.
See Complaint, 3/3/16, at ¶ 10. Plaintiff claims neither Hollingsworth nor
Reynolds provided warnings of the health hazards associated with asbestos
exposure and that Samuel Steiner (“Decedent”) was a consumer of Kent
cigarettes. Decedent smoked approximately one pack of Kent cigarettes from
1941 until he quit smoking in 1962; in 2014, over fifty years later, he was
diagnosed with mesothelioma. See Complaint, supra at ¶¶ 8-9.
On January 8, 2018, the court of common pleas entered an order
granting Plaintiff’s motion to compel discovery, ordering Reynolds to produce
two lists: Kent Mesothelioma Actions (like the instant consumer/smoker
claim); and Kent Worker Mesothelioma Actions (workers who allege making
the filters and cigarettes caused asbestos-related disease). The lists were
created in 2011 by counsel for Lorillard Tobacco Company (“Lorillord”),
Reynolds’ predecessor, by order of court in another lawsuit brought by an
individual who worked at a Lorillard facility, which action was pending in
Kentucky state court. Reynolds contends those lists were subject to a
protective order.
Reynolds filed a motion for reconsideration on January 24, 2018; in that
motion Reynolds sought, in the alternative, that the court amend the order
and certify it for immediate appeal. See 42 Pa.C.S. § 702(b); Pa.R.A.P. 1311.
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On February 6, 2018, the court denied the motion for reconsideration and it
denied certification of the order for immediate appeal.1
Reynolds filed a timely notice of appeal from the January 8, 2018 order
granting Plaintiff’s motion to compel. Reynolds filed an emergency motion for
stay pending appeal and, on April 16, 2018, a single motions judge of this
Court entered an order granting the stay. Reynolds raises the following issues
for our review:
1. Did the trial court err as a matter of law or abuse its
discretion in granting Plaintiff’s motion to compel production
of documents (created in 2011 by outside counsel for
Reynolds’ predecessor, Lorillard Tobacco Company, by order
of a Kentucky state court, and produced subject to a
protective order in that case), where producing these
documents would (1) violate the protective order of the
Kentucky court, and (2) violate the privacy and
confidentiality rights of former Lorillard employees by
revealing confidential medical information not previously
disclosed in a publicly-filed lawsuit or worker’ compensation
action?
2. Did the trial court commit an error of law or abuse its
discretion in refusing reconsideration of its order
compelling production, where the motion for
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1 Reynolds did not file a petition for review. See Pa.R.A.P. 1512; Toll v. Toll,
439 A.2d 712 (Pa. Super. 1981) (in event lower court refuses to amend order
to contain necessary certification to proceed with petition for permission to
appeal, aggrieved party may obtain appellate review by filing timely petition
for review). See also Pa.R.A.P. 1316. We note, however, that if an order
falls under the collateral order doctrine, see Pa.R.A.P. 313, which Reynolds
argues here, an immediate appeal may be taken as of right by filing a notice
of appeal. See Note-Pa.R.A.P. 313.
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reconsideration asked the trial court to limit
dissemination of the documents ordered produced?
Appellant’s Brief, at 8.
Before we reach these issues,2 we address the issue of jurisdiction. See
Roman v. McGuire Memorial, 127 A.3d 26, 31 (Pa. Super. 2015) (subject
matter jurisdiction is non-waivable and can be raised at any time by any party
and court sua sponte). Generally, discovery orders are deemed interlocutory
and not immediately appealable, because they do not dispose of the litigation.
Branham v. Rohm and Haas Co., 19 A.3d 1094, 1101 (Pa. Super. 2011).
See T.M. v. Elwyn, Inc., 950 A.2d 1050 (Pa. Super. 2008); Jones v. Faust,
852 A.2d 1201 (Pa. Super. 2004). However, discovery orders requiring
disclosure of privileged materials generally are appealable under Rule 313
where the issue of privilege is separable from the underlying issue. See Ben
v. Schwartz, 729 A.2d 547, 551–53 (Pa. 1999); see also Price v. Simakas
Co., Inc., 133 A.3d 751, 755 (Pa. Super. 2016) (order denying motion to
quash subpoena for deposition appealable under Pa.R.A.P. 313 when
information sought is privileged under federal health and safety regulations).
In its Statement of Jurisdiction, Reynolds states that the order granting
Plaintiff’s motion to compel discovery is a collateral order and thus appealable
as of right. See Pa.R.A.P. 313(a) (“An appeal may be taken as of right from
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2 We point out that both issues directly implicate the second prong of the
collateral order doctrine test. See Rae v. Pennsylvania Funeral Directors
Ass'n, 977 A.2d 1121 (Pa. 2009) (holding collateral order rule’s three-
pronged test must be applied independently to each distinct legal issue over
which appellate court is asked to assert jurisdiction).
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a collateral order of an administrative agency or lower court.”). Reynolds
claims that the documents are privileged and producing them would violate
“privacy and confidentiality rights of former Lorillard employees” as well as
the protective order of the Kentucky court. Appellant’s Brief, at 1.
“Collateral review is appropriate, despite the general directive that
appellate courts conduct review only of final orders, if an order is (1) separable
from and collateral to the main cause of action, (2) implicates rights which are
too important to be denied review, and (3) the appellant’s claim as to that
order will be lost if postponed until final judgment.” Rae v. Pennsylvania
Funeral Directors Ass'n, 977 A.2d 1121, 1124 (Pa. 2009), citing Ben,
supra and Pa.R.A.P. 313. The collateral order doctrine is a “specialized,
practical [exception to] the general rule that only final orders are appealable
as of right.” McGrogan v. First Commonwealth Bank, 74 A.3d 1063, 1076
(Pa. Super. 2013). Thus, the rule must be narrowly interpreted and each
prong of the rule must be “clearly present” before an order may be considered
collateral. Melvin v. Doe, 836 A.2d 42, 47 (Pa. 2003); see also Shearer v.
Hafer, 177 A.3d 850, 858 (Pa. 2018); Geniviva v. Frisk, 725 A.2d 1209,
1214 (Pa. 1999); Amerisource Bergan Corp. v. Does, 81 A.3d 921 (Pa.
Super. 2013). Accordingly, where an order satisfies the three-pronged test
of Rule 313- separability, importance, and irreparability- we may exercise
appellate jurisdiction. If the test is not met, however, and in the absence of
another exception to the final order rule, we have no jurisdiction to consider
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an appeal of such an order. Shearer, 177 A.3d at 858; Rae, 977 A.2d at
1125.
First, Reynolds claims that this Court can decide whether the documents
are sufficiently sensitive/personal so as to preclude production, separate and
apart from the issue of liability for Plaintiff’s injuries. We agree.
In Ben, supra, the Pennsylvania Supreme Court held that an appeal
from a discovery order raising a question of the application of a privilege is
separable from the underlying issue, so long as the issue of privilege may be
addressed by an appellate court without analysis of the underlying issue.
Schwartz, 729 A.2d at 551–52. Here, the issue can be resolved without
analysis of the underlying merits of the case. Whether the lists contained
privileged information or are subject to a protective order are issues peripheral
to the ultimate resolution of the underlying negligence and strict liability issues
in this case. See Kelley v. Pittman, 150 A.3d 59, 64 (Pa. Super. 2016)
(“This Court may examine issues of privilege without analyzing underlying
claims of negligence). Reynolds, therefore, has met the severability prong of
the collateral order test.
Turning to the second prong, a right is important “if the interests that
would potentially go unprotected without immediate appeal are significant
relative to the efficiency interests served by the final judgment rule[,]”
Geniviva v. Frisk, 725 A.2d 1209, 1213 (Pa. 1999), and are “deeply rooted
in public policy.” Shearer, 177 A.3d at 859. See also Berkeyheiser v. A–
Plus Investigations, Inc., 936 A.2d 1117, 1123–24 (Pa. Super. 2007)
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(“Pennsylvania courts have held that discovery orders involving potentially
confidential and privileged materials are immediately appealable as collateral
to the principal action.”). Reynolds claims the documents contain medical
information and implicate certain constitutional concerns, including the right
to privacy. We find that Reynolds has failed to evoke the importance prong.
In Pennsylvania, “a party may obtain discovery of any matter, not
privileged, which is relevant to the subject matter involved in the pending
action,” Pa.R.C.P. 4003.1(a), or is “reasonably calculated to lead to the
discovery of admissible evidence.” Pa.R.C.P. 4003.1(b). See Pa.R.C.P.
4009.1 (Production of Documents and Things. General Provisions). Keeping
in mind that we must narrowly construe the doctrine, we are not convinced
that Reynolds’ claim of privilege outweighs our need to consider the judicial
inefficiency and waste of resources in piecemeal litigation. Reynolds’ mere
assertion that the documents are privileged because they implicate medical
issues does not, without more, render those documents privileged. First, in
its request for production of documents, Plaintiff sought “non-privileged
documents” related to claims or contentions by persons who smoked or were
exposed to asbestos while making Kent cigarettes – essentially litigation
documents. Further, to the extent Reynolds claimed privilege, the Plaintiff
agreed to a “privilege log.”3 Although at first glance the reference to
“confidential medical information” and “privacy rights” is appealing, Reynolds
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3Plaintiff does not explain the details of this log, but redaction of the claimants’
names would be anticipated.
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fails to support these bare assertions. Our Supreme Court has cautioned
against finding that the mere assertion of a privacy interest related to
discovery implicates “as-of-right interlocutory appellate review.” Dougherty
v. Heller, 138 A.3d 611, 628 (Pa. 2016). The Dougherty Court stated:
[W]e cannot accept that any assertion of an attendant privacy
concern should transform a discovery order that otherwise is not
appealable by right into a collateral order subject to as-of-right
interlocutory appellate review. Instead, we find that the specific
privacy concern in issue must be evaluated and adjudged to
satisfy the importance requirement. In this regard, we make the
distinction among different orders of privacy interests, such as
those of a constitutional magnitude or recognized as such by
statute, as compared with lesser interests. Again, we believe that
a contrary approach would unduly impinge upon the general final
judgment rule.
Id. at 536-37 (footnote omitted).
Unlike claims of attorney-client privilege, see Meyer-Chatfield Corp.
v. Bank Financial Services Group, 143 A.3d 930 (Pa. Super. 2016),
statutory privacy interests in federal tax returns, Cooper v. Schoffstall, 905
A.2d 482 (Pa. 2006), confidential communications to psychiatrists or licensed
psychologists, Farrell v. Regola, 150 A.3d 87 (Pa. Super. 2016), spousal
privilege, Cap Glass, Inc. v. Coffman, 130 A.3 783 (Pa. Super. 2016), or
information protected by First Amendment rights, Melvin v. Doe, 836 A.2d
42 (Pa. 2003), Reynolds’ claim that the litigation lists rise to the level of
constitutional or statutory privilege is unsupported. Plaintiff is not seeking
sensitive medical health records or histories, nor is Plaintiff seeking settlement
information subject to confidentiality agreements. Plaintiff seeks only
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claimants’ names,4 attorneys’ names and disposition of those claims, all of
which could “lead to the discovery of admissible evidence.” Pa.R.C.P.
4000.1(b).
Finally, we are unable to conclude that the rights involved implicate
interests deeply rooted in public policy. The documents sought are litigation
documents, and Reynolds has failed to establish that they are in fact subject
to a protective order. In the transcript of the May 2, 2011 discovery hearing
in the Kentucky case, which Reynolds has included as part of the certified
record, there is no indication that the lists are subject to a protective order.
See Response to Plaintiff’s Motion to Compel of Defendant R.J. Reynolds
Tobacco Company, as Successor-By-Merger to Lorillard Tobacco Company,
12/18/17, Exhibit A.5 Furthermore, even if they were, we agree with Plaintiff’s
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4 See supra at note 3.
5 We note that the trial judge in the Kentucky case stated that he would not
seal the record, but acknowledged counsel’s ethical duty to contact the
claimants’ attorneys, and not the claimants:
[W]e’re not talking about sealing the record here of all the stuff
that may come out. We’re talking about is it anybody else’s
business that so and so filed a claim, and frankly if somebody
wants to know it that bad they could go and check, it’d be a matter
of public record. . . . [With respect to settlement agreements] I’m
comfortable with keeping it confidential except for the fact that
the claim was brought.
See Discovery Hearing, McGuire v. Hollingsworth & Vose, et al.,
included in Response to Plaintiff’s Motion to Compel of Defendant R.J.
Reynolds Tobacco Company, as Successor-By-Merger to Lorillard Tobacco
Company, 12/18/17, Exhibit A.
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argument that the Kentucky state court cannot determine the discoverability
or admissibility of evidence in an unrelated action in Pennsylvania. We
conclude that the second prong of the collateral order doctrine is not “clearly
present,” and, therefore, we quash this appeal. Melvin, supra.
Appeal quashed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/30/18
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