Britt v. Cusick

• Decision Date: 07 January 2014
• Docket Number: No. COA13–387.,COA13–387.
• Citation: 753 S.E.2d 351
• Court: North Carolina Court of Appeals
• Parties: Marshall Kelly BRITT, Jr., as Administrator of the Estate of Dana Robinson Britt, Plaintiff, v. Kathleen CUSICK, et al., Defendants.

753 S.E.2d 351

Marshall Kelly BRITT, Jr., as Administrator of the Estate of Dana Robinson Britt, Plaintiff,

v.Kathleen CUSICK, et al., Defendants.

No. COA13–387.

Court of Appeals of North Carolina.

Jan. 7, 2014.

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., Charlotte, by William Conrad Trosch; and Janet, Jenner & Suggs, LLC, by Kenneth M. Suggs, for plaintiff-appellee.

Parker Poe Adams & Bernstein LLP, Charlotte, 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 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 substantialright, 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' 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.

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 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 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 ...