J.S. v. Whetzel, 2004 PA Super 406 (PA 10/20/2004)

• Decision Date: 20 October 2004
• Docket Number: No. 1649 MDA 2003.,1649 MDA 2003.
• Citation: 2004 PA Super 406
• Parties: J.S. AND C.S., HUSBAND AND WIFE, M.S., A MINOR AND J.S., A MINOR BY AND THROUGH THEIR PARENTS J.S. AND C.S., Appellees v. HARLAN S. WHETZEL, JR., Appellee APPEAL OF: PERRY A. EAGLE, M.D., Appellant.
• Court: Pennsylvania Supreme Court

Page 1

2004 PA Super 406

J.S. AND C.S., HUSBAND AND WIFE, M.S., A MINOR AND J.S., A MINOR BY AND THROUGH THEIR PARENTS J.S. AND C.S., Appellees v. HARLAN S. WHETZEL, JR., Appellee

APPEAL OF: PERRY A. EAGLE, M.D., Appellant.

No. 1649 MDA 2003.

Superior Court of Pennsylvania.

Filed: October 20, 2004.

Appeal from the Order entered September 17, 2003 In the Court of Common Pleas of York County Civil, No. 2000-SU-02362-01.

Before: DEL SOLE, P.J., KELLY, and CAVANAUGH,^* JJ.

OPINION BY KELLY, J.

¶ 1 Appellant, Perry A. Eagle, M.D. ("Dr. Eagle"), asks us to review the order entered in the York County Court of Common Pleas denying his motion for a protective order to shield his 1099 forms from discovery. We are asked to determine, inter alia, whether a party may obtain discovery of all sources and amounts of income received by the opposing party's expert witness. We hold that while a party may impeach an expert witness by examining his relationship with the counsel calling him and any previous participation in certain types of litigation, this inquiry must nevertheless be relevant to the main issue before the court. Because the court in the present case permitted production of Dr. Eagle's income documents that are unrelated to the current litigation, we vacate the order and remand for further proceedings.

¶ 2 The relevant facts and procedural history of this case are as follows. J.S., C.S., and their children, M.S. and J.S. ("Plaintiffs"), are the plaintiffs in the underlying personal injury action which arose from an automobile accident¹ with Harlan S. Whetzel ("Mr. Whetzel"), the defendant. Mr. Whetzel retained Dr. Eagle, an orthopedic surgeon, as an expert witness, and in December 2000, Dr. Eagle performed a medical examination on J.S. In May 2003, Plaintiffs served interrogatories on Dr. Eagle and requested certain financial information, including his 1099 tax forms² from 1999 to 2002 from any insurance company and/or attorney. Plaintiffs sought this information to impeach Dr. Eagle on an alleged bias for Mr. Whetzel's counsel and defendants generally. In response, Dr. Eagle provided a letter stating he had testified as an expert witness in 74 cases. Dr. Eagle estimated he was the treating physician in 7 of those cases and was not the treating physician in the remaining 67 cases. (Dr. Eagle's Letter, dated April 18, 2002; R.R. at 16).

¶ 3 In July 2003, Plaintiffs filed a motion to compel Dr. Eagle's answer to the interrogatories. The trial court heard oral arguments in motions court and directed the parties to submit written briefs. In August 2003, the trial court granted in part and denied in part Plaintiffs' motion to compel. In its order, the court directed Dr. Eagle to produce his 1099 tax forms from 1999 through 2002 from any insurance company and attorney. The court denied Plaintiffs' request as to the remaining interrogatories. In September 2003, Dr. Eagle filed a motion for a protective order to shield his 1099 forms from discovery. In the alternative, he offered to provide only the 1099 forms relevant to Mr. Whetzel's counsel and insurance company, and to prohibit disclosure except to the extent admitted at trial. The trial court denied Dr. Eagle's motion, and Dr. Eagle filed a timely notice of appeal on October 24, 2003. Dr. Eagle also filed an application to stay discovery of his financial records pending appeal.

¶ 4 In December 2003, Plaintiffs filed a motion for sanctions against Dr. Eagle, alleging he failed to comply with the August 2003 order. In January 2004, the trial court entered an order directing that Dr. Eagle would be excluded from testifying at trial as an expert so long as he refused to provide the requested discovery.

¶ 5 Dr. Eagle raises the following issues for our review:

WHETHER THE FINANCIAL RECORDS OF A NON-PARTY EXPERT WITNESS ARE DISCOVERABLE WHERE: (1) PA.R.C.P. 4003.5(A)(1) LIMITS THE SCOPE OF EXPERT DISCOVERY TO THE SUBSTANCE OF THE EXPERT'S

OPINIONS AND GROUNDS THEREFORE; AND (II) THE [PLAINTIFFS], AS A MATTER OF LAW, HAVE NOT SHOWN CAUSE FOR ADDITIONAL EXPERT DISCOVERY UNDER PA.R.C.P. 4003.5(A)(2)?

WHETHER THE DISCOVERY REQUESTS SEEKING THE FINANCIAL RECORDS OF A NON-PARTY EXPERT WITNESS ARE REASONABLY CALCULATED TO LEAD TO THE DISCOVERY OF ADMISSIBLE EVIDENCE WHERE EVIDENCE CONCERNING PAYMENTS MADE TO AN EXPERT WITNESS BY PERSONS OR FIRMS ENTIRELY UNRELATED TO THE PARTIES IS BEYOND THE SCOPE OF PERMISSIBLE CROSS-EXAMINATION?

(Dr. Eagle's Brief at 2).

¶ 6 Before we address the merits of Dr. Eagle's issues, we must first determine whether this appeal is properly before us as a collateral issue.

An appeal may be taken only from a final order unless otherwise permitted by statute or rule. A final order is ordinarily one which ends the litigation or disposes of the entire case; however, "[a]n appeal may be taken as of right from a collateral order of an administrative agency or lower court." Pa.R.A.P. 313(a).

Ben v. Schwartz, 556 Pa. 475, 481, 729 A.2d 547, 550 (1999). For an order to be collateral, and thus appealable, it must include the three factors defined in Rule 313(b): (1) the order is separable from the main cause of action; (2) the right involved is too important to be denied review; and (3) the claim would be irreparably lost if review is postponed. See Schwartz, supra; Pa.R.A.P. 313(b).

¶ 7 This "collateral order doctrine[³] is a specialized, practical application of the general rule that only final orders are appealable as of right." Melvin v. Doe, 575 Pa. 264, 272, 836 A.2d 42, 46-47 (2003). Rule 313 must be interpreted narrowly, and each of the above prongs must be clearly present for an order to be considered collateral. Id. The first prong is established by finding the issue surrounding the disputed order may be addressed without analyzing the ultimate issue in the underlying case.⁴ Dibble v. Penn State Geisinger Clinic, Inc., 806 A.2d 866, 869-70 (Pa.Super. 2002), appeal denied, 573 Pa. 666, 820 A.2d 705 (2003). As for the second prong, "it is not sufficient that the issue be important to the particular parties." Geniviva v. Frisk, 555 Pa. 589, 598, 725 A.2d 1209, 1213-14 (1999). Instead, the issue "must involve rights deeply rooted in public policy going beyond the particular litigation at hand." Id. A court may conduct a balancing test between the nature of the potentially unprotected right and the efficiency interest of the final judgment rule. Dibble, supra at 869-70 (citing Ben, supra).

¶ 8 Instantly, the August 2003 order from which Dr. Eagle appeals denied him protection of his 1099 forms. The admissibility of Dr. Eagle's 1099 forms, whether on procedural or evidentiary grounds, may be addressed without analyzing Mr. Whetzel's alleged negligence in the automobile accident. See Ben, supra. Thus, the issue of discovering Dr. Eagle's 1099 forms is separate from the merits of Plaintiffs' personal injury action. See id. Turning to the second prong, we note the current order requires Dr. Eagle to submit every 1099 form he received from any insurance company and/or attorney from 1999 through 2002. We agree Dr. Eagle's privacy interest in his income information raises a sufficiently important public policy concern. Finally, we note the instant order requires Dr. Eagle to immediately produce the requested 1099 income information. Any privacy interest Dr. Eagle may have in the 1099 forms will be irreparably violated if he complies with the order and produces the documents. Thus, the third prong of irreparable loss of claim is met. Accordingly, we conclude the present trial court order is a collateral order from which Dr. Eagle properly appeals. See Ben, supra.

¶ 9 We now address Plaintiffs' argument that Dr. Eagle's appeal is moot because the parties have agreed not to call Dr. Eagle as an expert witness at trial, nor use his medical examination report of J.S. in any way. Dr. Eagle disputes Plaintiffs' contention and claims the parties have not agreed to exclude him as a witness. Dr. Eagle contests certain letters from Plaintiffs' attorney to Mr. Whetzel's counsel that purport to memorialize such an oral agreement. Dr. Eagle contends his appeal is not moot because circumstances which would render this issue moot do not exist. Dr. Eagle maintains the trial court's January 2004 order, which commanded him to either provide his 1099 forms or withdraw from the case as an expert, was a mere reinforcement of the court's August 2003 order denying his motion for protective order. Dr. Eagle avers the January 2004 order does not resolve the issue of whether his 1099 forms are discoverable, and emphasizes his appeal from the August 2003 denial of his motion for protective order is still pending.

¶ 10 It is a well-established principle of law that moot questions will not be reviewed. Pap's A.M. v. City of Erie, 571 Pa. 375, 389, 812 A.2d 591, 599 (2002). The Pennsylvania Supreme Court summarized the mootness doctrine as follows:

The cases presenting mootness problems involve litigants who clearly had standing to sue at the outset of the litigation. The problems arise from events occurring after the lawsuit has gotten under way—changes in the facts or in the law—which allegedly deprive the litigant of the necessary stake in the outcome.

In re Gross, 476 Pa. 203, 209, 382 A.2d 116, 119 (1978). Moreover, this Court has stated:

Generally, an actual claim or controversy must be present at all stages of the judicial process for the case to be actionable or reviewable.... If events occur to eliminate the claim or controversy at any stage in the process, the case becomes moot.

In re Duran, 769 A.2d 497, 502 (Pa.Super. 2001) (citations omitted). An issue can become moot during the pendency of an appeal. In re Cain, 527 Pa. 260, 263, 590 A.2d 291, 292 (1991).

¶ 11 Instantly, the record reveals Dr. Eagle remains bound by the trial court's August 2003 order, the appeal from which is currently before this Court. The trial court's January 2004 order does not...