Rehm v. Clayton, 2003-SC-0533-MR.

• Decision Date: 22 April 2004
• Docket Number: No. 2003-SC-0533-MR.,2003-SC-0533-MR.
• Parties: Debbie Ellen REHM, Individually and as Executrix of the Estate of James David Rehm and Nicholas James Rehm and Christina Marie Rehm, by and through their Parent, Guardian, and Next Friend, Debbie Ellen Rehm, Appellants, v. Honorable Denise CLAYTON, Judge, Jefferson Circuit Court, Appellee, and Cardinal Insulation; Garlock; Ajax Magnathemic; General Electric and Former Defendants; Ford Motor Company; Philip Morris; and American Standard, Real Parties in Interest.
• Court: United States State Supreme Court — District of Kentucky

132 S.W.3d 864

Debbie Ellen REHM, Individually and as Executrix of the Estate of James David Rehm and Nicholas James Rehm and Christina Marie Rehm, by and through their Parent, Guardian, and Next Friend, Debbie Ellen Rehm, Appellants, v. Honorable Denise CLAYTON, Judge, Jefferson Circuit Court, Appellee, and Cardinal Insulation; Garlock; Ajax Magnathemic; General Electric and Former Defendants; Ford Motor Company; Philip Morris; and American Standard, Real Parties in Interest.

No. 2003-SC-0533-MR.

Supreme Court of Kentucky.

April 22, 2004.

Kenneth L. Sales, Joseph D. Satterley, Sales, Tillman & Wallbaum, Louisville, Counsel for Appellants.

Denise Clayton, Louisville, for Appellee.

Armer H. Mahan, Jr., Joseph P. Hummel, Lynch, Cox, Gilman & Mahan, PSC, Louisville, Counsel for Real Party in Interest, Cardinal Insulation.

John K. Gordinier, Pedley, Zielke & Gordinier, PLLC, Louisville, Counsel for Real Party in Interest, Garlock.

James M. Gary, Weber & Rose, PSC, Louisville, Counsel for Real Party in Interest, Ajax Magnathemic.

Scott T. Dickens, John David Dyche, Tachau, Maddox, Hovious & Dickens, PLC, Louisville, Counsel for Real Party in Interest, General Electric and Former Defendants.

Byron N. Miller, Thompson & Miller, PLC, Louisville, Counsel for Real Party in Interest, Ford Motor Company.

William D. Grubbs, David T. Schaefer, Woodward, Hobson & Fulton, LLP, Louisville, Counsel for Real Party in Interest, Philip Morris.

J. Mark Grundy, Melissa Norman Bork, Greenebaum, Doll & McDonald, Louisville, Counsel for Real Party in Interest, American Standard.

Opinion of the Court by Justice KELLER.

I. INTRODUCTION

Appellants appeal as a matter-of-right¹ from a Court of Appeals's order that denied their petition for a writ prohibiting the trial court from staying discovery in a civil action pending the outcome of the appeal of summary judgments, which had dismissed some of the defendants in the case. Appellants alleged that the discovery stay "causes irreparable injury to [Appellants] and [their] ability to properly prepare [their] case." The Court of Appeals denied the petition after finding that the trial court did not abuse its discretion in staying discovery.² We hold that the trial court's denial of discovery was an abuse of its discretion, and therefore, we reverse and remand the case to the Court of Appeals for it to issue a writ directing the trial court to permit discovery in the underlying case.

II. BACKGROUND

In February 2001, the Appellant Debbie Ellen Rehm and her now-deceased husband, James David Rehm, ("James Rehm")³ both individually and on behalf of their two minor children, filed an action against numerous defendants alleging that James Rehm had been injured by his exposure to asbestos-containing products at multiple job sites where he had worked while in the employment of Rapid Installation, which was in the business of manufacturing selling, installing, and maintaining industrial conveyor systems. The complaint and a subsequent amended complaint asserted both product liability and premises liability claims against one defendant, General Electric Company ("GE"), and either, but not both, product liability or premises liability claims against the other defendants. The product liability claims were based generally on allegations that the asbestos-containing products were designed, manufactured, distributed, sold, or installed by the product liability defendants on the premises liability defendants' property where James Rehm had worked as a Rapid Installation employee.

In May 2002, the trial court granted summary judgments, which were made final and appealable, to the premises liability defendants, including GE (but only as to the premises liability claim against it), on the basis of their "up-the-ladder" worker's compensation defenses⁴ and, accordingly, dismissed Appellant's premise liability claims. Appellants appealed the summary judgments and that appeal remains pending in the Court of Appeals.

Appellants' product liability claims against the remaining defendants, including GE, were scheduled for trial in August 2003; however, in March of that year, on the motion of GE, the trial court stayed both the scheduled trial and all discovery "pending the outcome of the appeal of the dismissal of the premises liability defendants." Appellant then filed an original action in the Court of Appeals requesting a writ prohibiting the trial court from staying discovery. Appellants did not, however, request relief from the trial stay. The Court of Appeals denied Appellants' petition for a writ, and the Appellants appealed the denial to this Court. After reviewing the record and briefs filed by Appellants and the real parties in interest,⁵ we reverse and remand to the Court of Appeals for it to issue a writ vacating the trial court's stay of discovery.

III. ANALYSIS

"Due to the extraordinary nature of its relief—interlocutory intervention by an appellate court, the writ of prohibition remedy is reserved for exceptional circumstances and therefore should be granted only upon a showing that `... the lower court is about to act incorrectly, although within its jurisdiction, and there exists no adequate remedy by appeal or otherwise and great injustice and irreparable injury would result.'"<sup>6</sup> "If [these] procedural prerequisites for a writ are satisfied, `whether to grant or deny a petition for a writ is within the appellate court's discretion.'"⁷ And, appellate review of that decision is limited to an abuse-of-discretion inquiry, except for issues of law which are reviewed de novo.⁸

In the present case, although the Court of Appeals stated that it "[was] not persuaded that [Appellants] [had] demonstrated with reasonable specificity any harm of an irreparable nature they would suffer through the delay," it elected "to consider the merits of [the] original action." The Court then correctly noted that "[w]hether to postpone proceedings in an action rests within the sound discretion of a trial court." But, without any recitation of the trial court's findings or description of its rationale, the Court of Appeals concluded that "the trial court thoroughly analyzed the pros and cons of staying all proceedings, balanced the interests of all parties involved, and clearly articulated the rationale for its decision." It then held that the trial court did not abuse its discretion in deciding to stay discovery, stating "the trial court is the tribunal that is the most intimately familiar with the complexities and the ramifications of this large asbestos case and we shall not substitute our own judgment for it." Accordingly, the Court of Appeals denied the petition.

Because the Court of Appeals deferred to the trial court's rationale in its denial of Appellants' petition, our inquiry must, therefore, focus on the trial court's rationale in staying discovery. The trial court "recognize[d] that going forward with discovery in the products liability action while the premises liability action is on appeal could result in an additional burden on witnesses and defendants, especially GE, if the dismissal is reversed." But, the trial court further recognized that "this burden alone is not undue when considering the speculative nature of the appeal and when weighed against the risks of losing evidence and the financial and emotional hardships that a long, indeterminate delay would cause [Appellants] to endure[,]" and found—based on the parties' financial positions—that "under normal circumstances, ... GE is in a better position to absorb the burden and risks associated with going forward with discovery." Apparently, the trial court did not consider the circumstances before it to be normal because of the problems associated with the "application of apportionment principles" that it conceived would be created by a trial of Appellants' claims against the product liability defendants and a subsequent reversal of the summary judgments that had been granted in favor of the premises liability defendants. The trial court believed that "[t]he application of the principles of apportionment in this case creates substantial and unmanageable complications." It found that "[t]o hold this case in abeyance would cause a great and undue hardship on [Appellants]"; however, it also found that "going forward with the trial would create an undue burden on the numerous dismissed defendants, forcing them to defend themselves in a case in which they have been dismissed and essentially denying them [the] value of their summary judgments." Finding "no workable solution," the trial court reasoned that "[t]he only way for this case to be fairly resolved as to all parties is to hold it in abeyance pending the Court of Appeals decision." Thus, both discovery and trial were ordered stayed pending the outcome of the appeal. We disagree with the trial court's conclusion that a stay of discovery fairly resolved the matter.

First, we would note that although the Court of Appeals apparently assumed irreparable injury but nevertheless denied the petition on other grounds, a discovery stay as extensive as the one ordered by the trial court is likely to cause irreparable injury to the Appellants for which no adequate remedy by appeal exists. As this Court stated in Alvey v. Commonwealth,⁹ "[i]t is an unavoidable fact that, as time passes on, memories fade and witnesses become unavailable." And, we would add that, as time passes, evidence is destroyed or lost and physical conditions may change.

Two Kentucky cases are relevant to the issue in the present case. In Meredith v. Wilson,¹⁰ an action filed in the Boyle Circuit Court was dismissed for lack of proper venue, and the dismissal order was appealed by the plaintiffs. The plaintiffs in the Boyle Circuit Court action then filed an identical action against the same defendants in the Mercer Circuit Court. On the defendants' motion, the Mercer Circuit Court "entered an order prohibiting the taking of the...