In re Accutane Litig.

• Decision Date: 08 April 2014
• Docket Number: No. 13–754.,13–754.
• Citation: 758 S.E.2d 13
• Court: North Carolina Court of Appeals
• Parties: In re ACCUTANE LITIGATION.

758 S.E.2d 13

In re ACCUTANE LITIGATION.

No. 13–754.

Court of Appeals of North Carolina.

April 8, 2014.

Appeal by Dr. Michael D. Kappelman from order entered 16 April 2013 by Judge Robert H. Hobgood in Orange County Superior Court. Heard in the Court of Appeals 8 January 2014.

Nelson Mullins Riley & Scarborough LLP, Raleigh, by Christopher J. Blake, Joseph S. Dowdy, and T. Carlton Younger, III, for Hoffman–LaRoche Inc., and Roche Laboratories, Inc.-appellees.

Ashmead P. Pipkin, for Dr. Michael D. Kappelman-appellant.

STEELMAN, Judge.

Where the defendant in a New Jersey mass tort litigation subpoenas a North Carolina witness for a deposition, the North Carolina trial court's protective order was an interlocutory order. Where the witness failed to allege any substantial right that would be jeopardized absent immediate review, but instead speculates that if certain fact scenarios occur in the future his rights might be implicated, his appeal must be dismissed.

I. Factual and Procedural Background

In the early 1980s Hoffmann–LaRoche, Inc., began marketing Accutane, the brand name for the drug isotretinoin, which is used to treat severe acne. Beginning in 2003, lawsuits were filed alleging that the use of Accutane had caused inflammatory bowel disease. In May 2005, the New Jersey Supreme Court ordered that the litigation pertaining to Accutane be administered as a mass tort, and as of “July 2012, there [were] nearly 8000 cases listed on New Jersey's Accutane mass tort list.” Sager v. Hoffman–La Roche, Inc., 2012 WL 3166630, *3 fn. 2, 2012 N.J.Super. Unpub. LEXIS 1885, *9 fn. 2,petition for certification denied,213 N.J. 568, 65 A.3d 835 (2013).

Dr. Kappelman is an Assistant Professor on the faculty of the Medical School of the University of North Carolina at Chapel Hill, whose duties include treating patients, conducting research studies, and publishing the results of his studies. This is primarily in the field of pediatric gastroenterology. He is not a party in the Accutane litigation and has not consulted with any of the parties. However, Dr. Kappelman was a co-author of “A [Causal] Association between Isotretinoin and Inflammatory Bowel Disease Has Yet to Be Established,” an article published in 2009 in The American Journal of Gastroenterology (TAJG). Dr. Kappelman discussed the article in a March 2010 interview published in the Gastroenterology & Hepatology journal. He was also a co-author of “Isotretinoin Use and Risk of Inflammatory Bowel Disease: A Case Control Study,” an article published in September of 2010 in TAJG. This article resulted in a letter to the editor by Hoffmann–LaRoche employees, published in TAJG in May 2011, which criticized the methodology described in the September 2010 article. This issue also contains a letter by Dr. Kappelman responding to the criticisms. Plaintiffs in the Accutane litigation have cited some of Dr. Kappelman's work in support of a causal link between Accutane and inflammatory bowel disease. When Hoffmann–LaRoche sought to introduce other writings by Dr. Kappelman to rebut plaintiffs' evidence, New Jersey trial judge Carol E. Higbee ruled that Hoffmann–LaRoche could not introduce this evidence in documentary form but would have to depose Dr. Kappelman.

Based upon a subpoena ad testificandum filed 15 February 2013 by the Superior Court of Atlantic County, New Jersey, the Clerk of the Superior Court of Orange County, North Carolina, issued a subpoena on 15 February 2013, for Dr. Kappelman to be deposed on 14 March 2013 in Chapel Hill. On 5 March 2013 Dr. Kappelman filed a motion to quash the subpoena and for a protective order. The motion was heard on 8 April 2013, and on 16 April 2013 the trial court entered a protective order barring Hoffmann–LaRoche from deposing Dr. Kappelman as an “involuntary non-fact” witness, but stating that he could be deposed as an expert witness without violating the protective order. The order states in relevant part: ¹

Applying a balancing test set forth in Anker v. G.D. Searle & Co., 126 F.R.D. 515, 518 (M.D.N.C.1989), the Court finds that Dr. Kappelman is not a party to this litigation; he is an independent researcher and has demonstrated that he is [an] involuntary non-fact witness who has substantially demonstrated that his deposition would result in undue hardship and would be substantially burdensome to him as an involuntary non-fact witness in the context of the defendants' mass tort litigation in New Jersey involving 7,700 pending claims; and, no party in that litigation has retained Dr. Kappelman as an expert. Therefore, Dr. Kappelman's motion for a protective order is granted with respect to future subpoenas to Dr. Kappelman as an involuntary non-fact witness.

Notwithstanding this ruling, defendants may have subpoenas issued to Dr. Kappelman as an expert witness without violating this protective order, and Dr. Kappelman will be required to appear for a deposition if he is subpoenaed as an expert.

The parties agreed during the hearing that defendant had subpoenaed Dr. Kappelman as a fact witness; however, the order does not address whether Dr. Kappelman may be deposed as a fact witness, but only bars defendants from deposing Dr. Kappelman as “an involuntary non-fact witness.” And, although the most common type of “non-fact witness” is an expert witness,² the order also states that the protective order would not bar Hoffmann–LaRoche from issuing a subpoena for Dr. Kappelman as an expert witness. As a result, the only legal effect of the protective order is to prevent defendants from deposing Dr. Kappelman as an involuntary non-fact lay witness. Dr. Kappelman argues in his response to Hoffmann–LaRoche's dismissal motion that the trial court's order is “muddled” and “self-contradictory.” However, Dr. Kappelman did not file a motion seeking clarification of the order. See Alston v. Fed. Express Corp., 200 N.C.App. 420, 423–24, 684 S.E.2d 705, 707 (2009) ( “Pursuant to Rule 60(b)(6)'s ‘grand reservoir of equitable power,’ the trial court had jurisdiction to revisit its order so that its intentions could be made clear.”) (quoting In re Oxford Plastics v. Goodson, 74 N.C.App. 256, 259, 328 S.E.2d 7, 9 (1985)).

Dr. Kappelman appeals.

II. Hoffmann–LaRoche's Motion to Dismiss Appeal

On 23 July 2013 Hoffmann–LaRoche filed a motion seeking dismissal of Dr. Kappelman's appeal, arguing that Dr. Kappelman had appealed from an interlocutory order that did not affect a substantial right. We agree.

A. Interlocutory Nature of Appeal

According to N.C. Gen.Stat. § 1A–1, Rule 54(a), a “judgment is either interlocutory or the final determination of the rights of the parties.” “ ‘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.’ ” Hill v. StubHub, Inc., ––– N.C.App. ––––, ––––, 727 S.E.2d 550, 553–54 (2012) (quoting Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950)), disc. review denied,366 N.C. 424, 736 S.E.2d 757 (2013).

On appeal, Dr. Kappelman argues that we should treat the trial court's order as final based on his interpretation of the statement in the trial court's order that, notwithstanding the court's entry of a protective order, “defendants may have subpoenas issued to Dr. Kappelman as an expert witness without violating this protective order, and Dr. Kappelman will be required to appear for a deposition if he is subpoenaed as an expert.” Dr. Kappelman interprets this as a ruling in which the trial court “unjustly compelled Dr. Kappelman to testify as an expert without compensation or limitations on the scope of the deposition.” He contends that if Hoffmann–LaRoche issues a subpoena seeking to depose him as an expert witness, that he will not be permitted to raise any objections to the subpoena or the deposition and that the trial court's order “forecloses” his ability to challenge or seek a protective order, regardless of the scope of the deposition or his circumstances at the time. We disagree.

N.C. Gen.Stat. § 1A–1, Rule 26(c) provides in part that:

Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the judge of the court in which the action is pending may make any order which justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, or undue burden or expense[.] ...

In order to determine whether a party or deponent has shown “good cause” for an order protecting him “from unreasonable annoyance, embarrassment, oppression, or undue burden or expense,” the trial court must consider the specific discovery sought and the factual circumstances of the party from whom discovery is sought. See, e.g., Guessford v. Pa. Nat'l Mut. Cas. Ins. Co., 2013 WL 2242988, *3, 2013 U.S. Dist. LEXIS 71636, *9–10 (M.D.N.C., May 21, 2013) (“Rule 26(c)'s requirement of a showing of ‘good cause’ to support the issuance of a protective order ... contemplates a particular and specific demonstration of fact”) (quoting Jones v. Circle K Stores, 185 F.R.D. 223, 224 (M.D.N.C.1999) (internal quotation omitted)), partial summary judgment granted in part and denied in part on other grounds,––– F.Supp.2d ––––, 2013 WL 5708053 (M.D.N.C. Oct. 18, 2013). Given that the trial court's order addressed only the type of testimony for which Dr. Kappelman might be deposed, and given that the trial court could not know in advance what specific circumstances might exist at the time of a future subpoena or what information Hoffmann–LaRoche might be seeking, we conclude that the order's statement that “Dr. Kappelman will be required to appear for a deposition if he is subpoenaed as an expert” is simply a reiteration of the first part of the same sentence which states that “defendants may have subpoenas issued to Dr. Kappelman as an expert witness without violating this protective order.” In other words, the...