Castle v. Sherburne Corp.

Citation141 Vt. 157,446 A.2d 350
Decision Date06 April 1982
Docket NumberNo. 3-81,3-81
CourtUnited States State Supreme Court of Vermont

Bloomer & Bloomer, Rutland, for plaintiff.

Allan R. Keyes and John J. Zawistoski of Ryan, Smith & Carbine, Ltd., Rutland, for defendant.

Before BARNEY, C. J., HILL, UNDERWOOD and PECK, JJ., and SHANGRAW, C. J. (Ret.), Specially Assigned.

PECK, Justice.

This is a civil action in which the trial court granted plaintiff Shirley Castle permission to take an interlocutory appeal from a discovery order directing the production of certain medical documents. The tangled procedural history of this case demands that the facts be fully set forth.


In December 1977, plaintiff brought a personal injury action against the defendant ski area alleging negligence and breach of warranty in the rental of ski equipment. On April 28, 1978, defendant served plaintiff with a V.R.C.P. 34 request to produce seeking, inter alia :

Copies of medical records and reports of any doctors or hospitals who treated the Plaintiff for any problems Plaintiff is experiencing allegedly as a result of the accident, including but not limited to problems with her right leg and/or psychiatric or emotional difficulties and including, but not limited to, the records and reports of Doctors Vargas and Peltz.

Plaintiff promptly filed an objection to this request stating in essence that (1) reports made by physicians are discoverable only pursuant to V.R.C.P. 35(b), (2) the medical records of treating physicians and hospitals were not in her possession, custody or control, and (3) she had already provided defendant with authorization to examine the hospital records in question.

Defendant then moved to compel plaintiff to produce the requested documents. V.R.C.P. 37(a)(2). The motion was granted on December 28, 1978, whereupon plaintiff sought review of the discovery order by this Court. We dismissed the appeal for failure to comply with V.R.A.P. 5.

Plaintiff next sought and received the trial court's permission to file a V.R.A.P. 5(b) interlocutory appeal. Again plaintiff was met with a motion to dismiss by defendant, and again we dismissed the appeal on jurisdictional grounds.

On remand, defendant moved pursuant to V.R.C.P. 37(b)(2) for an order imposing sanctions on plaintiff, based on her failure to produce the requested documents. The motion was denied with leave to renew if plaintiff failed to produce the materials before March 15, 1980. No such compliance was forthcoming, and on March 18, 1980, defendant once again requested sanctions. Following an unrecorded conference with counsel, the trial court entered the order which generated this appeal:

[I]t is hereby ORDERED and ADJUDGED that the plaintiff shall produce the documents requested in Defendant's Request to Produce dated May 1, 1978 within fifteen (15) days of the filing date of this Order [June 11, 1980], or the plaintiff will be precluded at trial from introducing evidence relative to the plaintiff's medical condition.

The trial court then granted plaintiff's motion for interlocutory appeal and formulated what it deemed to be the controlling issues of law. Defendant moved to dismiss the appeal on the ground that permission to take it was improvidently granted. V.R.A.P. 5(b)(3). We reserved decision on defendant's motion until completion of briefing and oral argument on the merits.


As a threshold matter, we address defendant's claim that the interlocutory appeal should be dismissed as improvidently granted. V.R.A.P. 5(b) sets forth three criteria that must be satisfied before an interlocutory appeal may be permitted; the order must involve a controlling question of law, there must be substantial grounds for difference of opinion as to that question, and an immediate appeal must have at least the potential to materially advance the termination of the litigation. Furthermore, in interpreting these criteria the lower courts must be mindful of this Court's well-established policy of avoiding piecemeal appeals. Gay Brothers Fuel Service v. Travelers Indemnity Co., 133 Vt. 211, 212-13, 332 A.2d 806, 807-08 (1975); Isabelle v. Proctor Hospital, 129 Vt. 500, 501, 282 A.2d 837, 838 (1971). Having thus identified the V.R.A.P. 5 standards, the task of applying them to the facts of this case remains.

At times this Court has entertained interlocutory appeals with little or no discussion of the jurisdictional prerequisites. See, e.g., Bennett Estate v. Travelers Insurance Co., 140 Vt. 339, 438 A.2d 380 (1981); State v. Shop & Save Food Markets, Inc., 138 Vt. 332, 415 A.2d 235 (1980). On other occasions we have determined sua sponte the propriety of an interlocutory appeal, without, however, examining the three criteria of V.R.A.P. 5(b). See, e.g., State v. Carpenter, 138 Vt. 140, 412 A.2d 285 (1980); Gay Brothers Fuel Service, supra. Nevertheless, we have suggested that orders denying or directing discovery are ordinarily not subject to interlocutory review. Mattison v. Poulen, 134 Vt. 158, 164, 353 A.2d 327, 331 (1976). The rationale behind this rule is obvious. Even if such orders can be said to raise controlling questions of law, they will rarely have the potential to materially advance the termination of the litigation. On the contrary, interlocutory appeals from discovery orders will usually lead to piecemeal review and its attendant delays.

Federal decisions involving interlocutory review of discovery orders under 28 U.S.C. § 1292(b) 1 support the position taken in Mattison v. Poulen, supra. The three criteria to be applied in determining the propriety of an interlocutory appeal under V.R.A.P. 5(b) are taken virtually verbatim from § 1292(b), and the central purpose of both provisions is to promote greater judicial efficiency. See generally Reporter's Notes, V.R.A.P. 5; Note, Interlocutory Appeals in the Federal Courts Under 28 U.S.C. § 1292(b), 88 Harv.L.Rev. 607, 611 (1975). The federal circuit courts have determined that this objective is ordinarily not served by allowing interlocutory appeals from discovery orders of the district courts. E.g., Evanson v. Union Oil Co., 619 F.2d 72, 74 (Temp.Emer.Ct.App.), cert. denied, 449 U.S. 832, 101 S.Ct. 102, 66 L.Ed.2d 38 (1980) (interlocutory appeal of discovery sanctions would not materially advance ultimate termination of the litigation); United States v. Salter, 421 F.2d 1393, 1394 (1st Cir. 1970) (discovery order not a controlling question of law); United States v. Woodbury, 263 F.2d 784, 788 (9th Cir. 1959) (order to produce documents over claim of privilege not controlling question of law). This is not to say that such appeals have invariably been rejected. See Groover, Christie & Merritt v. LoBianco, 336 F.2d 969 (D.C.Cir.1964), where the court considered on interlocutory appeal a "work product" objection to a discovery order. We believe, however, that the dissenting opinion of Circuit Judge Wright in Groover states the better rule.

Interlocutory appeal is permissible only where the issue raised presents a "controlling question of law" and such appeal will "advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b). No controlling question of law is presented by this review of the District Court's ruling on a discovery motion. To permit review here is to "open the floodgates to a vast number of appeals from interlocutory orders in ordinary litigation." And rather than advance the ultimate termination of this litigation, the dilatory tactics demonstrated by this record, including this interlocutory appeal, have already been the cause of significant delay.

Id. at 974 (citations omitted).

We conclude that this appeal does not satisfy the criteria of V.R.A.P. 5(b). First, plaintiff's claims are by their very nature collateral to the basic issues of this personal injury action. Discovery rulings are necessarily entrusted to the trial court's broad discretion. John v. Medical Center Hospital of Vermont, Inc., 136 Vt. 517, 394 A.2d 1134 (1978). Such orders do not, absent exceptional circumstances, present controlling questions of law within the meaning of the rule. See Comment, Developments in the Law--Discovery, 74 Harv.L.Rev. 940, 992-1000 (1961). Secondly, the trial judge erred in finding that interlocutory review of the discovery order will materially advance the termination of this litigation. In fact plaintiff's efforts to secure appellate review have had just the opposite result. Over three years have passed since the court initially ordered her to produce the documents in question. During this period the action has been stalled at the discovery stage while plaintiff sought review by this Court. Finally, as is discussed at length below, we seriously question whether there exists substantial ground for difference of opinion as to the claims raised by plaintiff. We therefore hold that permission to appeal pursuant to V.R.A.P. 5(b) was improvidently granted. The question remains, however, whether good cause exists to suspend the requirements of Rule 5(b) pursuant to V.R.A.P. 2 and consider the issues posed by the trial judge. We believe it does.

The course of this litigation has been delayed long enough. Defendant's request to produce was served on April 28, 1978. The present appeal is the third plaintiff has attempted. Dismissal of it could conceivably result in yet another appeal, from final judgment, if one is ever reached. Furthermore, the merits of the "controlling questions of law" have been fully briefed and argued. Valuable time has been expended by the Court and its personnel in preparing for this case. Thus dismissing the appeal as improvidently granted would not best serve the interests of judicial economy. Therefore we have decided to suspend the rule, V.R.A.P. 2, and answer the questions found to be controlling by the trial judge. See In re Smith, 131 Vt. 24, 25, 298 A.2d 823, 825 (1972). We emphasize, however, that this decision should not be interpreted as a...

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  • State v. Badger
    • United States
    • Vermont Supreme Court
    • July 13, 1982
    ...criteria of V.R.A.P. 5(b) were satisfied. See In re Pyramid Co., 141 Vt. 294, ---, 449 A.2d 915, 922 (1982); Castle v. Sherburne Corp., 141 Vt. 157, ---, 446 A.2d 350, 354 (1982); cf. State v. Karcz, 134 Vt. 187, 188, 352 A.2d 687, 688-89 (1976) (holding interlocutory appeal inappropriate u......
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    ...unjust to dismiss the case and require defendant to start anew with a post-conviction relief proceeding. Cf. Castle v. Sherburne Corp., 141 Vt. 157, 165, 446 A.2d 350, 354 (1982). Further, nothing would be accomplished by this procedure. The issues are fully briefed here and no further fact......
  • Matthews v. Riley, 93-562
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    • July 22, 1994
    ...Court may suspend appellate rules "[i]n the interest of expediting decision, or for other good cause shown"); Castle v. Sherburne Corp., 141 Vt. 157, 165, 446 A.2d 350, 354 (1982) (suspending appellate rules pursuant to V.R.A.P. 2 and addressing controlling questions of law in interest of j......
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    ...none of these criteria. V.R.A.P. 5(b) is based upon 28 U.S.C. § 1292(b) (1976) and F.R.A.P. 5. See Castle v. Sherburne Corp., 141 Vt. 157, --- n.1, 446 A.2d 350, 353 n.1 (1982); V.R.A.P. 5, Reporter's Notes (1971). Consequently, the policies and rationales underlying the federal statute pro......
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