Ex parte Pfizer, Inc.

• Decision Date: 04 June 1999
• Citation: 746 So.2d 960
• Parties: Ex parte PFIZER, INC., and Valleylab, Inc. (Re M.B., a minor, etc. v. Valleylab, Inc., et al.).
• Court: Alabama Supreme Court

746 So.2d 960

Ex parte PFIZER, INC., and Valleylab, Inc.

(Re M.B., a minor, etc. v. Valleylab, Inc., et al.).

1980155.

Supreme Court of Alabama.

June 4, 1999.

Rehearing Denied October 22, 1999.

Joseph S. Bird III and John E. Goodman of Bradley, Arant, Rose & White, L.L.P., Birmingham; Fred W. Ajax, Jr., and Susan Teale Couvillon of Smith, Howard & Ajax, L.L.P., Atlanta, GA; and Robert H. Smith of Galloway, Smith, Wettermark & Everest, L.L.P., Mobile, for petitioners.

Tom Dutton of Pittman, Hooks, Dutton & Hollis, P.C., Birmingham, for respondent M.B.

Norman E. Waldrop and Clifford C. Brady of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, L.L.C., Mobile, for respondent Dr. William E. Thomas.

A. Neil Hudgens and Thomas H. Nolan, Jr., of Brown, Hudgens, P.C., Mobile; and R. Alan Alexander of Helmsing, Lyons, Sims & Leach, Mobile, for respondent Atmore Community Hospital.

Walter W. Bates, Robert P. MacKenzie III, and W. Christian Hines III of Starnes & Atchison, L.L.P., Birmingham, for respondent Mutual Assurance, Inc.

HOOPER, Chief Justice.

Two defendants, Pfizer, Inc., and Valleylab, Inc. (hereinafter together referred to as "Valleylab"), have petitioned for a writ of mandamus directing the Circuit Court of Escambia County to vacate two rulings denying discovery sought by Valleylab in a medical-malpractice/products-liability case pending in that court. We deny the petition as it relates to discovery of the documents requested from an insurer's investigative file, except Item 383. We grant the petition as to Item 383, finding that item to be discoverable. We also grant the petition as it relates to discovery of the medical records of circumcisions performed by the petitioners' codefendant Dr. William E. Thomas from January 1986 through the present.

Facts

The plaintiff in this case, M.B., is a minor. On August 21, 1991, Dr. Thomas performed a circumcision on M.B., then seven years of age, at Atmore Community Hospital. During the procedure, Dr. Thomas used a medical device called an "electrosurgical unit," or ESU, to cauterize bleeding blood vessels at the surgical site. An ESU is a general-purpose surgical device that utilizes a high-frequency electrical current. Valleylab manufactured the ESU the plaintiff alleges was used during the procedure. Valleylab was a wholly owned subsidiary of Pfizer, Inc., at the time of the acts giving rise to M.B.'s lawsuit.

After the procedure was performed, infection and eventually gangrene developed around the surgical site. Three-fourths of M.B.'s penis had to be removed because of the severity of the infection.

M.B., acting through his next friend, filed a complaint on August 2, 1993, against Dr. Thomas and Atmore Community Hospital, alleging medical malpractice, and against Pfizer and Valleylab, alleging various claims grounded in products liability. Mutual Assurance, Inc., Dr. Thomas's liability insurer, compiled an investigative file regarding the incident.

Valleylab made a discovery request that extended to 22 documents contained in Mutual Assurance's investigative file. The trial court compelled production of 7 of the 22 documents, but denied discovery as to the other documents. Valleylab also sought discovery of medical records of all circumcisions performed by Dr. Thomas since January 1986; on May 21, 1997, the trial court ordered the production of these records, but with a privacy order. On September 14, 1998, on motion of Dr. Thomas and Atmore Community Hospital, the trial court vacated its May 21 order compelling discovery of these records, and denied that discovery. On October 13, 1998, Valleylab filed this mandamus petition.

Valleylab argues that the circuit court abused its discretion (1) in its order denying discovery of 15 documents contained in the investigative file of Dr. Thomas's insurance carrier and (2) in its order denying Valleylab's request for discovery of medical records regarding other circumcisions performed by Dr. Thomas since January 1986.

Writ of Mandamus

The writ of mandamus is an extraordinary remedy, and one petitioning for that writ must show "(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court." Ex parte Alfab, Inc., 586 So.2d 889, 890 (Ala.1991); see also, Martin v. Loeb & Co., 349 So.2d 9 (Ala.1977); Ex parte Slade, 382 So.2d 1127 (Ala.1980); Ex parte Houston County, 435 So.2d 1268 (Ala.1983); Ex parte Johnson, 638 So.2d 772 (Ala.1994). "Mandamus is an extraordinary remedy and will lie to compel the exercise of discretion, but not to compel its exercise in a particular manner except where there is an abuse of discretion." State v. Cannon, 369 So.2d 32, 33 (Ala. 1979).

Discovery of the Investigative File

Valleylab first argues that the trial court abused its discretion when it denied Valleylab's requested discovery of 15 documents that are part of Mutual Assurance's investigative file on the incident. Mutual Assurance contends that the documents sought by Valleylab were prepared in anticipation of litigation and therefore are not subject to discovery by Valleylab.

Valleylab served a notice of deposition on Mutual Assurance, together with a subpoena duces tecum, seeking testimony and production of documents concerning certain matters in Mutual Assurance's investigative file. Mutual Assurance, a nonparty as to this lawsuit, moved to quash the subpoena and the notice of deposition and also moved for a protective order. After conducting a hearing, the circuit court allowed discovery of 7 items, but denied Valleylab's request for discovery of 15 of the documents.

The 15 documents now sought by Valleylab consist of handwritten notes made by claims representatives, including incident reports and documentation of investigative activities and notes from interviews of witnesses. Valleylab argues that the attorney-client privilege does not apply to these documents; it contends that the notes and documents that are part of Mutual Assurance's investigative file regarding M.B.'s case were not prepared in anticipation of litigation and are not privileged. Specifically, Valleylab seeks to discover specific notes made by the insurer's claims representative concerning nurse Carol Miller's account of the events that occurred during the circumcision.

Rule 26(b)(3), Ala.R.Civ.P., sets out the "work-product doctrine":

"Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party's case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation."

With respect to discovery matters, this Court has stated that the trial court has very broad discretion and that "its ruling on discovery matters will not be reversed absent a clear abuse of discretion." Ex parte Wal-Mart Stores, Inc., 682 So.2d 65, 67 (Ala.1996). Except as to Item 383, Valleylab has shown no clear abuse of discretion on the part of the circuit judge in his order denying discovery of the 15 items in Mutual Assurance's investigative file. Item 383 is a letter written by attorney Tom Dutton in reply to a January 18, 1993, letter from attorney Boyd Reeves. This letter was from counsel for one party to opposing counsel. Therefore, it was not the work product of the insurer. This letter is not covered by the work-product rule and is discoverable by Valleylab.

As to the other documents requested from the investigative file, it appears that Valleylab has had ample opportunities to interview, depose, and question Carol Miller. Valleylab will suffer no undue hardship in gaining, through other means, the information it says it believes would be gained by examining documents in the insurance company's investigative file. Valleylab would like to discover additional information regarding notes taken by the insurance investigators regarding the testimony given by Miller in her depositions. Miller's account of the events differs from the accounts given by the other operating-room personnel. The mere fact that Miller's account of the incident differs from the accounts of other witnesses is insufficient to mandate discovery of the insurance company's investigative file. The parties have deposed Miller over 10 times to properly ascertain her version of the events. The record before us indicates no reason why Valleylab could not have obtained from other sources the information it seeks from the insurer's file. The fact that witnesses disagree on the events in question in a lawsuit is no reason to violate the work-product doctrine.

The insurer contends that on the day after the incident was reported to it, it contacted its legal counsel regarding the incident because it assessed M.B.'s case as one that would be litigated. Mutual Assurance was notified soon after the incident that a well-known plaintiffs' lawyer had requested M.B.'s medical records. The contents of the investigative file Valleylab seeks were related to, and were prepared in anticipation of, litigation, with the exception of Item 383. Valleylab should have been able to ascertain the information it seeks through other methods that would not cause it undue...