Groover, Christie & Merritt v. LoBianco, No. 18394.
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
| Writing for the Court | PER CURIAM |
| Citation | 336 F.2d 969 |
| Parties | GROOVER, CHRISTIE & MERRITT, Applicant, v. Frank LoBIANCO, Jr., Administrator of the Estate of Madeline M. LoBianco, Alan R. Crain, Respondents. |
| Docket Number | No. 18394. |
| Decision Date | 14 August 1964 |
336 F.2d 969 (1964)
GROOVER, CHRISTIE & MERRITT, Applicant,
v.
Frank LoBIANCO, Jr., Administrator of the Estate of Madeline M. LoBianco, Alan R. Crain, Respondents.
No. 18394.
United States Court of Appeals District of Columbia Circuit.
August 14, 1964.
William E. Stewart, Jr., Washington, D. C., was on the pleadings for the applicant.
David G. Bress, Leonard Braman and Stanley Klavan, Washington, D. C., were on the pleadings for respondents.
Before DANAHER, BURGER and WRIGHT, Circuit Judges.
MEMORANDUM AND ORDER
PER CURIAM.
A timely application was filed pursuant to 28 U.S.C. § 1292(b) (1958) for permission to appeal from an interlocutory order. The District Court on January 22, 1964 had ordered the applicant (hereinafter referred to as defendant Groover) to produce and permit the respondent (hereinafter referred to as plaintiff LoBianco) "to inspect and copy the copy of Dr. Fred O. Coe's letter dated April 9, 1962 to the United States Fidelity & Guaranty Company." District Judge Hart certified that his order "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal * * * may materially advance the ultimate determination" of the litigation.1
Fully mindful of the well established policy opposed to the allowance of piecemeal appeals, and quite aware that only in the exceptional case have we permitted such an interlocutory appeal, we have the more carefully explored the subject matter. We are satisfied that the District Judge correctly discerned the importance of the issue, and in view of the record before us, we have decided to allow the appeal and to reverse summarily with directions.
The District Court will vacate its order to produce dated January 22, 1964, but if plaintiff shall so desire, without prejudice to consideration of a renewed motion to produce, for the amendment of which and for the filing of an amended opposition to which, leave shall be granted. The respective parties will be permitted to adduce such evidence as they
When filed in the District Court, the motion to produce was supported by an affidavit by plaintiff's counsel, accompanied by a Memorandum of Points and Authorities. The defendant Groover filed a memorandum in opposition.2 However, exhibited to the District Judge, discernible from the respective affidavits, were certain undisputed facts.3 It fairly appeared that on April 5, 1962, the plaintiff's decedent was a patient of defendant, Dr. Alan R. Crain. He had been authorized in writing to perform a discogram, an X-ray procedure. To that end, Dr. Crain made arrangements to utilize the X-ray laboratory of the defendant, Groover, Christie & Merritt, a partnership, of which Dr. Coe was a senior partner. At some point after the patient had been brought on a stretcher to the facilities maintained by the partnership, Dr. Crain decided to perform a myelogram. The procedure he selected involved the injection into the spinal canal of an allegedly highly toxic X-ray dye, identified as Hypaque. Within a few hours the patient died, allegedly as the result of a massive allergic reaction to the myelogram dye.
Present at least part of the time was a Dr. Russell L. Hughes, employed by the partnership. Also in attendance was an X-ray technician employee named Arnold Wilson. There is no suggestion that Dr. Coe had ever seen the plaintiff's decedent or that he had been present in the laboratory while the various procedures were being carried out.
Plaintiff LoBianco took the depositions of Drs. Hughes,4 Corley, Bickham and Dr. Coe, all either employed by or partners in the Groover partnership, and the deposition of the technician Wilson.
The Groover, Christie & Merritt partnership on April 5, 1962 was insured against liability by United States Fidelity & Guaranty Company. The insurance policy is not a part of the record, so that its exact terms as to the duty of the insurance carrier and the obligations of the insured seem not to have been considered by the District Judge. It is clear, however, that shortly after Dr. Crain had used the Hypaque dye in the myelogram procedure, Dr. Coe was advised of that fact. Undoubtedly he was soon apprised of the death of the patient. Counsel representing the Groover firm and Dr. Coe on brief in this court have set out that Dr. Coe thereafter had prepared and sent a letter to the insurance carrier which was
"obligated to defend Drs. Groover, Christie & Merritt in the event of any claim of malpractice against them. This letter admittedly relayed information to this insurance carrier respecting the events of April 5, 1962 and the investigation conducted thereafter by Dr. Coe for the protection of his own firm and for the record in the event of any attempt to involve Drs. Groover, Christie & Merritt in this unfortunate matter. The making of this report was in accordance with the policy of Drs. Groover, Christie &
Merritt to report any accident which took place in their facilities."
Counsel for plaintiff LoBianco submitted to the District Court an affidavit which recited in part that Dr. Corley of the Groover firm had informed counsel that Dr. Coe's letter "set forth the circumstances involving the use of Hypaque upon decedent in the course of a myelogram performed upon her on April 5, 1962 * * *." That letter had set out, according to the affidavit, "that 4 or 5 c.c.s. of Hypaque were used in the course of the myelogram performed upon decedent." Dr. Coe had retained in the Groover files a copy of the letter, apparently dated April 9, 1962, in which he reported to the insurance carrier the results of his investigation. That letter copy (not exhibited to the...
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Smith v. Schlesinger, No. 74-1440
...upon reconsideration did not so elect. 5 See 28 U.S.C. § 1292(b) (1970); Groover, Christie & Merritt v. LoBianco, 119 U.S.App.D.C. 50, 336 F.2d 969 6 Laird v. Smith, Misc. 3737 (D.C.Cir. Jan. 26, 1972), denying certification from Smith v. Laird, Civil No. 3386-70 (D.D.C. Dec. 23, 1971).......
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...of appeals from all final decisions of the district courts * * *. 7 Cf. Groover, Christie & Merritt v. LoBianco, 119 U.S.App.D.C. 50, 336 F.2d 969 (1964) (2-1 decision) (certified appeal under 28 U.S.C. § 1292(b)); Safeway Stores, Inc. v. Reynolds, 85 U.S. App.D.C. 194, 176 F.2d 476 (19......
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Foster v. U.S., No. 84-1741.
...conclude that Serio was the other man referred to in the confession. See also Greenwell v. United States, supra, 119 U.S.App.D.C. at 50, 336 F.2d at 969 (substitution of neutral term such as "named person" for codefendant's name was insufficient redaction since "with other evidence . . . co......
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American Express Warehousing, Ltd. v. Transamerica Ins. Co., No. 460
...of appeals from all final decisions of the district courts * * *. 7 Cf. Groover, Christie & Merritt v. LoBianco, 119 U.S.App.D.C. 50, 336 F.2d 969 (1964) (2-1 decision) (certified appeal under 28 U.S.C. § 1292(b)); Safeway Stores, Inc. v. Reynolds, 85 U.S. App.D.C. 194, 176 F.2d 476 (1949) ......
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