Britt v. Cusick

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
 -2-
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'
 -3-
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.
 -4-
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
 -5-
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
 -6-
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
 -7-
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
 -8-
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.
 -9-
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
 -10-
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.