Cronin v. Strayer

Decision Date17 July 1984
Citation467 N.E.2d 143,392 Mass. 525
PartiesRobert J. CRONIN et al. 1 v. Luther M. STRAYER, III.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Edwin J. Carr, Boston, (Walter L. Landergan, Jr., and Stephen M. Kane, Boston, with him), for Massachusetts Medical Soc. & another.

Samuel Adams, Boston, (Michael L. Blau, Boston, with him), for plaintiffs.

Before WILKINS, LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

ABRAMS, Justice.

The plaintiffs brought this action seeking damages for defamation, intentional infliction of emotional distress, unfair trade practices, interference with contractual relations, and violation of the plaintiff Robert J. Cronin's civil rights. One of the claims is that the defendant defamed the plaintiff Robert J. Cronin by falsely writing to the Impaired Physician Committee (I.P.C.) of the Massachusetts Medical Society (society) that Dr. Cronin was an impaired physician. 2 As a part of the discovery proceedings, the plaintiffs served deposition subpoenae duces tecum on the society and on Charles H. Montgomery, a member of the I.P.C. 3 The subpoenae sought a letter from the defendant to the I.P.C., 4 the records of the I.P.C. investigation, and documents 5 concerning the investigation of the plaintiff made by the I.P.C. at the request of the defendant. Pursuant to Mass.R.Civ.P. 26(c), 365 Mass. 772 (1974), and 45(b), 365 Mass. 809 (1974), the society and the I.P.C., through its chairman, moved to quash the subpoenae on the grounds that the documents were privileged and confidential. After a hearing, a judge of the Superior Court denied the request for a protective order and declined to report his decision. The society and the I.P.C. appeal from the judge's order declining to quash the subpoenae. We granted the society's and Dr. Montgomery's application for direct appellate review. The plaintiffs ask us to dismiss the appeal because discovery orders are interlocutory and therefore not appealable. We agree. Thus, this appeal is not properly before us. We think, however, that we should express our views. Wellesley College v. Attorney Gen., 313 Mass. 722, 731, 49 N.E.2d 220 (1943). We believe that there was no error in the judge's denial of the society's motion to quash the subpoenae.

We summarize the procedural background. The plaintiff Robert J. Cronin and the defendant are licensed physicians, specializing in the practice of orthopaedic surgery and are members in good standing of the medical staff of Cape Cod Hospital. The plaintiff joined the hospital staff in 1979; the defendant joined approximately ten years earlier. The complaint alleges a number of acts of the defendant not here relevant and also alleges that, in the spring or summer of 1982, the defendant wrote the I.P.C. "falsely charging that Dr. Cronin's ability to practice medicine is impaired by the use of drugs and/or alcohol."

After investigation, on July 16, 1982, the I.P.C. declined to make a "judgment on the case per se." The I.P.C. stated that "at this point [the case] is best investigated on a local level; and should our services be needed in the future, consultation or referral back to us would be welcome."

On October 7, 1982, the Cape Cod Hospital through its chief of staff informed Dr. Cronin that its investigation on other charges against him commenced as a result of a request by the defendant was closed. On March 4, 1983, the plaintiffs filed their complaint, and on the same day, the plaintiffs notified the defendant that the custodian of records of the society and Dr. Charles H. Montgomery of the I.P.C. would be deposed on April 7, 1983.

The society and Dr. Montgomery applied for a protective order. The affidavit accompanying the application disclosed that the society is a voluntary association of physicians, and that it is regulated by its own by-laws, rules, and procedures. The affidavit states that in 1978, the society established the I.P.C. "to deal with matters relating to impaired or disabled physicians." In order to encourage referrals, the I.P.C. adopted a policy of strict confidentiality. "[W]ritten referrals to the Committee and information developed by the Committee in the course of its work are kept confidential and are not exhibited to or provided to third persons." The I.P.C. "believe[s] that only by assuring the confidentiality of information provided to it and maintaining the anonymity of persons cooperating with the Committee can it promote the trust and reliance which is essential to the Committee's work." Accordingly, the society and the chairman of the I.P.C. ask that the "[s]ubpoenae be quashed and that their respective depositions ... not be had."

The judge denied the society's motion. In his memorandum and order, the judge noted that "G.L. c. 231, § 85N does grant such Committees immunity from liability for good faith actions." But the judge concluded that the statute does not "grant either the defendant ... or the Committee immunity from discovery." The judge further noted that "[t]he Board of Registration of Medicine has a similar function to that of the [I.P.C.]," and that Board of Registration in Medicine complaints and complaint files are public records, subject to exceptions not here applicable. See 243 Code Mass.Regs. § 1.02 8(a)(1) (1979). The judge ordered that discovery or information obtained as a result of discovery not be disclosed to persons other than the parties or their counsel or except in the course of further judicial proceedings in the case. The judge expressly left open the question of the admissibility of evidence obtained as a result of this discovery.

Ripeness of the appeal. The appellants do not challenge the general rule that the discovery orders are interlocutory and not appealable. See Borman v. Borman, 378 Mass. 775, 781-782, 393 N.E.2d 847 (1979). See also Beit v. Probate & Family Court Dep't, 385 Mass. 854, 858, 434 N.E.2d 642 (1982). Rather, they argue that, because this appeal is brought by two nonparty witnesses and involves a matter of substantial concern, the rule should not apply. They acknowledge that a "non-party witness can obtain appellate review of an order compelling discovery by disobeying such order and appealing from the subsequent contempt order." See, e.g., Matter of Roche, 381 Mass. 624, 625 n. 1, 411 N.E.2d 466 (1980).

The appellants assert that we should permit this appeal because no legitimate purpose is served by requiring witnesses to invite contempt in order to obtain appellate review. We do not agree. " 'Orders compelling the testimony of witnesses are among the most common of everyday incidents to the process of disposing of cases, and objections on the ground of privilege ... are frequently raised,' ... 4 Moore's Federal Practice par. 26.83, at 26-599 (2d ed. 1979)," Borman v. Borman, 378 Mass. 775, 784, 393 N.E.2d 847 (1979), and therefore "acceptance of [the appellants'] position would open the door to countless appeals from orders heretofore uniformly deemed interlocutory, thereby swelling appellate dockets already too large and delaying trial calendars already too slow," United States v. Fried, 386 F.2d 691, 695 (2d Cir.1967). "To accept the [appellants'] view is to invite the inundation of appellate dockets with what have heretofore been regarded as nonappealable matters. It would constitute the courts of appeals as second-stage motion courts reviewing pretrial applications of all non-party witnesses alleging some damage because of the litigation." Borden Co. v. Sylk, 410 F.2d 843, 846 (3d Cir.1969). See, e.g., Honig v. E.I. duPont de Nemours & Co., 404 F.2d 410 (5th Cir.1968); United States v. Fried, supra. But see Covey Oil Co. v. Continental Oil Co., 340 F.2d 993 (10th Cir.), cert. denied, 380 U.S. 964, 85 S.Ct. 1110, 14 L.Ed.2d 155 (1965). 6

Moreover, "[c]onfining the right to get appellate review of discovery orders to cases where the party [or witness] against whom the order was directed cared enough to incur a sanction for contempt is a crude but serviceable method ... of identifying the most burdensome discovery orders and in effect waiving the finality requirement for them." Marrese v. American Academy of Orthopaedic Surgeons, 726 F.2d 1150, 1158 (7th Cir.1984). See United States v. Arthur Andersen & Co., 623 F.2d 720, 724 (1st Cir.), cert. denied, 449 U.S. 1021, 101 S.Ct. 588, 66 L.Ed.2d 483 (1980) ("Well established doctrine regarding the appealability of interlocutory orders suggests that the burden of incurring a contempt citation is not an unreasonable one to impose on a party [or a witness] seeking review of a question that will otherwise become moot"). "The remedy ... of the non-party witness is to refuse to answer and subject himself to civil or criminal contempt." Kaufman v. Edelstein, 539 F.2d 811, 814 (2d Cir.1976). Because the policy of not reviewing interlocutory matters "stems from the burdensome nature of piecemeal appellate review," Cappadona v. Riverside 400 Function Room, Inc., 372 Mass. 167, 169, 360 N.E.2d 1048 (1977), we decline to adopt a construction of our rules which would permit nonparty witnesses to appeal discovery orders. The appeal is dismissed. 7

The claim of privilege. The appellants ask that we weigh "the clear public need for candid, vigorous and effective peer review against the need for pre-trial discovery" and conclude that the records and documents of the I.P.C. should be kept confidential. The issue is whether any reports, minutes, or other documents generated by the I.P.C. as a result of the defendant's complaint are discoverable. The principal case in support of the appellants' position is Bredice v. Doctors Hosp., Inc., 50 F.R.D. 249 (D.D.C.1970), aff'd 479 F.2d 920 (D.C.Cir.1973). In Bredice, the Federal District Court judge created a qualified privilege for the minutes and reports of the medical staff committee of a hospital which had investigated allegations of malpractice against a member of the staff. The judge...

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