Hall v. Wilmington Health, PLLC

• Decision Date: 05 April 2022
• Docket Number: COA20-864
• Citation: 872 S.E.2d 347
• Parties: Susan B. HALL, Plaintiff, v. WILMINGTON HEALTH, PLLC, Defendant.
• Court: North Carolina Court of Appeals

872 S.E.2d 347

Susan B. HALL, Plaintiff,

v.WILMINGTON HEALTH, PLLC, Defendant.

No. COA20-864

Court of Appeals of North Carolina.

Filed April 5, 2022

Reiss & Nutt, PLLC, by Kyle J. Nutt, Wilmington, for plaintiff-appellee.

Walker, Allen, Grice, Ammons, Foy & Klick, LLP, by Norman F. Klick, Jr. and Jerry A. Allen, Jr., Greensboro, and Robinson, Bradshaw & Hinson, P.A., Charlotte, by Robert E. Harrington, for defendant-appellant.

STROUD, Chief Judge.

¶ 1 This case involves a discovery order intended to address concerns regarding safety and travel during the COVID-19 pandemic. The issue here arose at the very start of the pandemic, and since then, judges and attorneys have learned a great deal about COVID-19, proceedings by remote video-conference, and juggling the ever-changing guidelines, emergency orders, and recommendations regarding COVID-19. Hindsight is 20/20, and we recognize this Court has the benefit of hindsight but the trial court did not. Instead, the trial court was dealing with a discovery dispute in the context of an unprecedented public health emergency. But the Courts "shall be open" and the Constitution is not suspended by any pandemic or emergency directives.

¶ 2 Defendant, Wilmington Health, appeals from the trial court's order requiring all depositions to be taken by "remote videoconferencing in separate locations from the witness" and that "no counsel shall be physically present with the witness at any deposition." Under the Rules of Civil Procedure, the trial court generally has broad discretion in resolving discovery disputes and entering orders limiting or setting guidelines for discovery, but here, the trial court's order went beyond the relief requested by Plaintiff, Susan Hall, and imposed a limitation upon depositions of all witnesses which would also prevent Defendant's counsel from being present in person at depositions of Defendant's own witnesses and employees.

¶ 3 This wholesale ban on personal attendance of Defendant's counsel at depositions of its own employees and witnesses presented the constitutional issue Defendant asserts in this appeal and was not supported by existing law, emergency orders, or evidence. The trial court's order violated Defendant's constitutional right by prohibiting counsel from being physically present at depositions of its own employees and witnesses. We reverse and remand for further proceedings.

I. Background

¶ 4 This appeal arises from a discovery dispute in a medical malpractice action. On 29 April 2019, Plaintiff filed a complaint against Defendant alleging medical malpractice as defined by North Carolina General Statute § 90-21.11(2) (2017), asserting claims of negligence, gross negligence, and punitive damages, arising from Defendant's alleged failure to timely diagnose skin cancer

. Plaintiff alleged the delay in diagnosis and treatment of her cancer reduced her life expectancy. The issue presented here arises from the procedural history of the case and specifically from limitations placed upon depositions in the case, so we focus on that procedural history.

¶ 5 The trial court held a hearing regarding the discovery schedule in October 2019 and rendered its ruling regarding the deadlines for the Discovery Scheduling Order ("DSO") at the same time, but the DSO was not entered until 17 January 2020. Despite the delay in the issuance of the written order, the parties began complying with the schedule as set forth by the trial court in October 2019 prior to formal entry of the order. For example, the DSO required Plaintiff to designate her expert witnesses on or before 4 January 2020, and Plaintiff designated them on 3 January 2020. Under the DSO, the deadline for depositions of Plaintiff's expert witnesses was 4 March 2020. Due initially to scheduling conflicts for Defendant's counsel, the depositions of Plaintiff's designated experts did not take place by the 4 March 2020 deadline with Plaintiff instead offering the expert's availability on 27 May 2020.

¶ 6 By early March, 2020, the COVID-19 pandemic reached our shores, abruptly changing daily life and even the legal system's processes. On 10 March 2020, Governor Roy Cooper entered Executive Order No. 116, the first of many emergency orders entered in response to the COVID-19 pandemic.¹ This order declared a state of emergency under North Carolina General Statute § 166A-19.3(6) and (19) based on "the public health emergency posed by COVID-19," and also pertinently: (1) created the "Governor's Novel Coronavirus Task Force on COVID-19"; (2) authorized state agencies to "cancel, restrict or postpone travel of state employees as needed to protect the wellbeing of others"; (3) ordered state and local health authorities to "implement public health surveillance and control measures" for people who "have been diagnosed with or are at risk of contracting COVID-19 in order to control or mitigate spread of the disease"; and (4) took a variety of other measures to secure and allocate resources to combat the spread of COVID-19 in the state. E.O. 116, Cooper, 2020, § 1 (state of emergency), § 10 (taskforce), § 11(b) (travel restrictions), § 12 (public health measures), §§ 5–9, 11(a), 13–22 (other measures). On 14 March 2020, Governor Cooper entered Executive Order No. 117, which, pursuant to his powers under North Carolina General Statute § 166A-19.30, prohibited "mass gatherings" of more than 100 people in certain locations, closed schools, and encouraged social distancing, hand washing and sanitizing, and the practice of "proper respiratory etiquette" in line with guidance from the Centers for Disease Control and Prevention (CDC). E.O. 117, Cooper, 2020, §§ 1–3.

¶ 7 On 1 June 2020, Plaintiff filed a motion to require depositions to be taken by telephonic or virtual means under North Carolina Rules of Civil Procedure 30(b)(7) and 26(c). Plaintiff based her motion upon the COVID-19 pandemic, specifically safety concerns regarding being in a room with several people for in-person depositions and the travel required to attend depositions. Plaintiff alleged depositions were set for 21 July 2020 of Dr. Steven Feldman in Wake Forest, North Carolina, and for 30 July 2020 of Dr. Jeffery Wayne, in Chicago, Illinois. Plaintiff further alleged in-person depositions would require air travel, putting people in close proximity in rooms for extended periods of time, and that masks may impair questioning and transcription of testimony. Plaintiff also noted Chief Justice Cheri Beasley had encouraged virtual depositions.² On 12 June 2020, Defendant moved to amend the Discovery Scheduling Order due to COVID-19 and responded to Plaintiff's motion for virtual depositions. Defendant specifically noted the parties had already agreed the deadline for Defendant to identify its expert witnesses would be extended from 15 June 2020 to 15 August 2020.

¶ 8 On 9 July 2020, Defendant filed a response to Plaintiff's motion for virtual depositions. Defendant noted it had requested amendment of the Discovery Scheduling Order and alleged there would be sufficient time to do in-person depositions when pandemic restrictions were lifted. Defendant also highlighted that Rule 30 provides that attendance at a deposition may be compelled and a deponent may be required to attend a deposition only in the county of residence. In addition, Defendant contended none of the Chief Justice's Emergency Directives prohibited standard in-person depositions. Defendant further noted civil jury trials were not being held and it was unknown when jury trials would resume, so the trial would not be able to proceed as scheduled on 8 February 2021.

¶ 9 By a remote videoconference hearing via WebEx, the trial court heard the Plaintiff's motion for virtual depositions on 9 July 2020. At the hearing, Plaintiff's counsel noted his concerns regarding his personal health and potential exposure to COVID-19 as well as restrictions on travel. He also discussed the various technologies available for remote videoconferencing. As to the deposition scheduled in Chicago, he noted that restrictions on travel had recently been imposed, requiring travelers entering Chicago to quarantine for a period of 14 days.³ Plaintiff's counsel also emphasized the need to proceed expeditiously with the case due to his contention Plaintiff's life expectancy may be limited due to her skin cancer

.

¶ 10 Defendant responded by noting Plaintiff's medical records did not indicate she was unlikely to survive until the trial date and her recent evaluations were favorable, according to Defendant's experts. He also noted depositions by videoconference in this case would be difficult due to the length of the depositions and need to refer to many exhibits. Defendant's counsel then discussed the difficulty the parties had in scheduling Plaintiff's deposition, which was delayed from April 2020 to July 2020 because she was not feeling well in April. He indicated the case is factually complex, and considering the progression of the pandemic and cancellation of jury trials across the state, the case would not be able to be heard in February 2021 as scheduled. Defendant argued that in-person depositions have inherent benefits lacking in the videoconference setting: "There is definitely an advantage to evaluating someone by meeting them in person. I think that's just common sense. If we all met our wives over a videoconference, things may have gone differently, and look what happened."

¶ 11 After the hearing, the trial court rendered a ruling on both Plaintiff's motion to hold depositions virtually and Defendant's motion to amend the Discovery Scheduling Order. The trial court noted there were:

two separate issues: One is defendant's motion to be able to take the deposition telephonically or by virtual means -- the plaintiff's motion, rather -- and then the defendant not only responds that I should not allow that, but also that we revisit the scheduling order.

The trial court further explained:

I think the chief justice's concern

...