Johnson & Johnson v. Kaufman

• Decision Date: 20 March 1997
• Docket Number: No. A96A2468,A96A2468
• Citation: 226 Ga.App. 77,485 S.E.2d 525
• Parties: , 97 FCDR 1524 JOHNSON & JOHNSON et al. v. KAUFMAN et al.
• Court: Georgia Court of Appeals

Page 525

485 S.E.2d 525

226 Ga.App. 77, 97 FCDR 1524

JOHNSON & JOHNSON et al. v. KAUFMAN et al.

No. A96A2468.

Court of Appeals of Georgia.

March 20, 1997.

Reconsideration Denied April 4, 1997.

Alembik, Fine & Callner, Lowell S. Fine, G. Michael Banick, Atlanta, Zoe I. Martinez, Dunwoody, for appellants.

Butler, Wooten, Overby & Cheeley, James E. Butler, Jr., Joel O. Wooten, Jr., Columbus, Downey & Cleveland, Y. Kevin Williams, Marietta, Smolar, Roseman, Brantley & Seifter, Yehuda Smolar, G. Grant Brantley, James I. Seifter, Atlanta, for appellees.

RUFFIN, Judge.

Gary Kaufman, individually and as executor of the estate of Amy Kaufman, his deceased wife, sued Johnson & Johnson ("J & J") and Janssen Pharmaceutica, Inc. ("Janssen"), alleging that his wife died as the result of taking the drug Hismanal, an antihistamine prescribed to her for allergies. Janssen, which is a wholly owned subsidiary of J & J, manufactures, markets and distributes Hismanal in the United States. Hismanal is also manufactured and distributed internationally through numerous other J & J subsidiaries. Kaufman contends that at the time of his wife's death, the defendants were aware of serious dangers associated with Hismanal but failed to warn his wife of the dangers.

The subject of this appeal is a January 18, 1996 discovery order requiring J & J to provide virtually any document from any J & J foreign subsidiary concerning complaints about Hismanal, reports of adverse effects, marketing materials, post-marketing surveillance studies, packaging and labeling, alternative packaging options, risk utility analyses or similar studies, risk studies, drug and food interaction studies, and dosage level studies. The order requires J & J to produce the documents within 60 days and to supplement the production every 90 days. On January 19, 1996, the day after it issued the discovery order, the trial court also issued a protective order that restricted counsel for Kaufman from disseminating any confidential information obtained through discovery to anyone except individuals involved in the instant litigation or individuals involved in other pending litigation concerning Hismanal against the defendants.

J & J requested that the trial court issue a certificate of immediate review because of the sweeping nature of the discovery order. When the trial court failed to issue the certificate, J & J filed a direct appeal. In its appeal, J & J presents questions concerning the relevance of the discovery requests, the burden of producing the documents, and the interests of international comity where the laws of some countries prohibit the production of the requested documents by the foreign subsidiaries. J & J also asserts that the protective order does not adequately protect against widespread dissemination of confidential information.

As compelling as J & J's assertions are, we must first deal with the issues presented by Kaufman's motion to dismiss the appeal based on the argument that the discovery order was not directly appealable. Although we originally denied Kaufman's motion to dismiss the appeal, Kaufman has since moved for reconsideration of that order. For the reasons stated below, we conclude that because the trial court's discovery order was not directly appealable, the defendants' appeal must be dismissed.

We note initially that discovery orders generally are interlocutory and therefore not directly appealable as final judgments. See OCGA § 5-6-34; see also Cornelius v. Finley, 204 Ga.App. 299, 418 S.E.2d 815 (1992). In Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), however, the United States Supreme Court recognized an exception to the final judgment rule for appeal of "collateral orders." Cohen was a shareholder derivative action in which the District Court refused to apply a state statute requiring plaintiffs in such actions to post security for costs to be incurred by defendants in the litigation. The Court found that because the trial court's order was conclusive on the issue, the defendant's right to appeal at the conclusion of the case would arise too late to effectively review the order. Id. at 546, 69 S.Ct. at 1225-1226. Specifically, the Court stated that the decision fell within that "small class" of orders "which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Id. The Court held the order appealable "because it [was] a final disposition of a claimed right which [was] not an ingredient of the cause of action and [did] not require consideration with it.... If the right were admitted or clear and the order involved only an exercise of discretion as to the amount of security, a matter the statute makes subject to reconsideration from time to time, appealability would present a different question." Id. at 546-547, 69 S.Ct. at 1226.

The Supreme Court of Georgia adopted the collateral order exception to the final judgment rule in Patterson v. State, 248 Ga. 875, 287 S.E.2d 7 (1982). Patterson involved the trial court's denial of the defendant's plea of double jeopardy, and since that decision our appellate courts have applied the exception to only two other types of trial court orders. In two cases our Supreme Court allowed a direct appeal of trial court orders cancelling a notice of lis pendens. See Jay Jenkins Co. v. Financial Planning Dynamics, 256 Ga. 39, 41(3), 343 S.E.2d 487 (1986); Scroggins v. Edmondson, 250 Ga. 430(1), 297 S.E.2d 469 (1982). In another case, this Court applied the collateral order exception in allowing a direct appeal from the trial court's order to produce attorney work product. Dept. of Transp. v. Hardaway Co., 216 Ga.App. 262, 454 S.E.2d 167 (1995).

In Hardaway Co., a party inadvertently included several pages of a discrepancy log in its response to a request for production of documents. Although the trial court found that the discrepancy log was work product prepared for other litigation, it ordered the party to produce the remainder of the log. We allowed a direct appeal from that order under the collateral order exception to the final judgment rule. As stated in Hardaway Co., the exception applies if the order: "(1) completely and conclusively resolves the issue appealed; (2) concerns an issue which is 'substantially separate' from the basic issues presented in the complaint; and (3) would result in the loss of an important right and is 'effectively unreviewable on appeal.' [Cit.]" Id. at 262(1), 454 S.E.2d 167. Because we determined that the order in Hardaway Co. completely resolved the discovery issue, which was substantially separate from the main claim, and the discrepancy log, once produced, could not be returned to its previous confidential state, we found the exception applied and allowed a direct appeal.

Although the decision in Hardaway Co. appears consistent with the Supreme Court of Georgia's earlier applications of the collateral order exception, conspicuously absent from the discussion in Hardaway Co. are any references to the numerous United States Supreme Court cases which address the issue of whether such discovery orders are directly appealable. As our Supreme Court noted in Scroggins, the collateral order exception applies to only "the small class of cases that Cohen has placed beyond the confines of the final-judgment rule." (Citation and punctuation omitted.) Scroggins, supra at 432(1)(c), 297 S.E.2d 469. Because the issue has not been previously decided by the Supreme Court of Georgia, we must now decide whether, like orders of lis pendens, the discovery orders at issue in Hardaway Co. and the instant case also fall within this small class of cases. In Scroggins, the Court looked to federal authority for assistance in applying the collateral order exception. Inasmuch as we adopted the collateral order exception from the United States Supreme Court's decision in Cohen, supra, we likewise believe that a discussion of the Court's cases which specifically address the appealability of discovery orders is both instructive and necessary to determine whether such discovery orders are directly appealable under Georgia law.

Two of the earlier cases in which the Court addressed the appealability of discovery orders were United States v. Ryan, 402 U.S. 530, 91 S.Ct. 1580, 29 L.Ed.2d 85 (1971) and Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940). In both cases the Court cited numerous policy considerations underlying the final judgment rule and held that discovery orders are not directly appealable. In Cobbledick, the Court found that the final judgment rule avoids "the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment. To be effective, judicial administration must not be leaden-footed. Its momentum would be arrested by permitting separate reviews of the component elements in a unified cause." Cobbledick, supra at 325, 60 S.Ct. at 541.

The Court found that discovery orders are not final orders within the meaning of the final judgment rule and that a party who has been ordered to comply with a discovery request is not without remedy: " 'In a certain sense finality can be asserted of [discovery] orders..., so, in a certain sense, finality can be asserted of any order of a court. And such an order may coerce a witness, leaving to him no alternative but to obey or be punished.... Let the court go further and punish the witness for contempt of its order, then arrives a right of review, and this is adequate for his protection without unduly impeding the progress of the case....' [Cit.]" Id. at 327, 60 S.Ct. at 542.

The rationale...