Kan. Med. Mut. Ins. Co. v. Svaty

• Decision Date: 10 December 2010
• Docket Number: Nos. 102,075, 102,164.,s. 102,075, 102,164.
• Citation: 244 P.3d 642
• Parties: KANSAS MEDICAL MUTUAL INSURANCE COMPANY, Petitioner, v. The Honorable Ron SVATY, Respondent. and Jeanette Allen, Appellee, v. William Slater, M.D., Appellee, and Kansas Medical Mutual Insurance Company, Appellant.
• Court: Kansas Supreme Court

244 P.3d 642

KANSAS MEDICAL MUTUAL INSURANCE COMPANY, Petitioner,

v.The Honorable Ron SVATY, Respondent.andJeanette Allen, Appellee,

v.William Slater, M.D., Appellee,andKansas Medical Mutual Insurance Company, Appellant.

Nos. 102,075, 102,164.

Supreme Court of Kansas.

Dec. 10, 2010.

Syllabus by the Court

1. Whether jurisdiction exists is a question of law over which an appellate court's scope of review is unlimited.

2. An appellate court has a duty to dismiss an appeal when the record discloses a lack of jurisdiction.

3. Appellate jurisdiction is defined by statute; the right to appeal is neither a vested nor a constitutional right.

4. The Kansas Legislature has limited civil appeals to certain circumstances. These legislative categories of appeal include: (1) final decisions and certain court orders under K.S.A.2009 Supp. 60-2102(a) and (b), which are of right, and (2) interlocutory appeals under K.S.A.2009 Supp. 60-2102(c), which require findings that are within the discretion of a district court, and acceptance of the appeal by the Court of Appeals, which is a determination within its discretion.

5. The term "final decision" has been construed to mean one which finally decides and disposes of the entire merits of the controversy and reserves no further questions or directions for the future or further action of the court.

6. A discovery order is not a final disposition and is not a final decision.

7. An interlocutory appeal is not an appeal of right; rather, it is subject to the court's discretion and an order denying a request for interlocutory appeal is not itself an appealable order.

8. The collateral order doctrine was recognized by the United States Supreme Court as a very narrow exception to the final order requirement. The Court concluded that 28 U.S.C. § 1291 (2006), which limits appeals to "final decisions," allows federal courts of appeals to reach not only judgments that terminate an action, but also a small class of collateral rulings that, although they do not end the litigation, are appropriately deemed final.

9. Kansas has adopted the United States Supreme Court's collateral order doctrine. As that doctrine has been applied in Kansas, to be collaterally appealable, the order must (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment.

10. Discovery orders that do not impose a sanction on a nonparty do not qualify for appeal under the collateral order doctrine, even if the order is potentially adverse to a claim of privilege.

11. Mandamus is a proceeding to compel some inferior court, tribunal, board, or some corporation or person to perform a specified duty, which duty results from the office, trust, or official station of the party to whom the order is directed, or from operation of law.

12. Though a district court's discretion cannot be controlled by mandamus, where an order of the district court denies a right or privilege which exists as a matter of law, and there is no remedy by appeal, mandamus may be invoked.

13. Mandamus may also be invoked where a petition for mandamus presents a legal issue of great public importance and concern.

14. The two grounds for invoking mandamus—(1) a denial of a right or privilege that exists as a matter of law where there is no remedy on appeal or (2) an issue is of great importance—are alternative grounds for invoking mandamus jurisdiction.

15. The burden of showing a right to mandamus relief is on the petitioner.

16. Unless a mandamus respondent's legal duty is clear, the writ of mandamus should not issue.

17. Whether a writ of mandamus should issue is dependent on an interpretation of the applicable procedural and substantive statutes, over which this court has unlimited review.

18. When a claim of privilege, confidentiality, or irrelevance is raised in response to a discovery request, a district court has a duty to permit discovery of only relevant documents, thereby protecting against unnecessary and damaging disclosure of irrelevant confidential material.

19. K.S.A.2009 Supp. 60-226(b) defines the scope of discovery, stating that discovery is allowed of any matter, not privileged, which is relevant to the subject matter involved in the pending action. The scope of relevancy in a discovery proceeding is broader than the scope of relevancy at trial, and discovery is not objectionable because the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

20. If there is an objection to a discovery demand on the grounds that the documents are confidential or privileged, it must be determined whether the documents are relevant and then whether a privilege applies.

21. A district court may limit discovery pursuant to K.S.A.2009 Supp. 60-226(c) by making any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.

22. In supervising discovery and resolving disputes regarding whether discovery would cause annoyance, embarrassment, oppression, or undue burden or expense, a district court should weigh factors such as the nature of the proceeding, whether the discovery is requested from a party, whether the information that is sought is available from other sources, whether the information sought goes to the heart of the claim, the degree of harm that would be caused by disclosure, the type of controversy before the court, and the public interest in protecting the confidentiality of a particular document or information.

23. If confidential or privileged documents are ordered to be produced in response to a discovery demand, the district court has a duty to limit the availability and use of the documents by utilizing protective provisions.

24. Under Supreme Court Rule 6.02 (2010 Kan. Ct. R. Annot. 38) an appellate brief must include specific citations to the record. Facts must be keyed to the record on appeal by volume and page number so as to make verification reasonably convenient. Any material statement made without such a reference may be presumed to be without support in the record. Also, each issue should begin with citation to the appropriate standard of appellate review and a reference to the specific location in the record on appeal where the issue was raised and ruled upon.

25. A party asserting an argument on appeal has the responsibility for providing a record on appeal sufficient to support the argument.

26. In general, evidence of bias is always relevant, as is evidence that a witness bears a prejudice, hostility, or improper motive.

27. Discovery requests for a medical malpractice insurance company's records are not reasonably calculated to lead to the discovery of admissible evidence of bias of an expert witness when the materiality of that evidence is premised on the fact that the physician defendant and the defendant's physician expert practice within the same state and therefore purchase insurance in the same market.

28. Under K.S.A.2009 Supp. 60-245(d)(2), if information subject to a subpoena is withheld on a claim of privilege the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim. Additionally,a party or nonparty objecting to discovery must provide precise reasons for the objection.

29. District courts are granted general supervisory powers over discovery and should apply K.S.A.2009 Supp. 60-226(c) by making any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Further, under K.S.A.2009 Supp. 60-245(c)(1) reasonable steps should be taken to avoid undue burden and expense on a person subject to a subpoena. Finally, K.S.A.2009 Supp. 60-245(c)(3) explicitly authorizes the quashing or modification of a subpoena as a means of protecting a witness from misuse of subpoena power. More specifically, K.S.A.2009 Supp. 60-245(c)(3)(A)(iii) and (iv) provide that the district court shall quash or modify the subpoena if it requires disclosure of privileged or other protected matter and no exception or waiver applies or if it subjects a person to undue burden.

30. Any objection stating that discovery is unduly burdensome must contain a factual basis for the claim, and the objecting party or nonparty must provide an affidavit or other evidentiary proof of the time and expense involved in responding to the discovery request.

31. A party or nonparty objecting to discovery on the grounds of undue burden or expense must meet the burden of showing not only undue burden or expense, but that the burden or expense is unreasonable in light of the benefits to be secured from the discovery.

Greg L. Musil, of Polsinelli Shughart PC, of Overland Park, argued the cause, and Lisa A. Weixelman and Lauren E. Tucker McCubbin, of the same firm, of Kansas City, Missouri, were on the brief for petitioner/appellant Kansas Medical Mutual Insurance Company.

Larry W. Wall, of Larry Wall Trial Law, of Wichita, argued the cause, and Terri Fahrenholtz, of Brennan Law Group P.A., of Wichita, was with him on the brief for appellee Jeanette Allen.

James R. Howell and Derek S. Casey, of Prochaska, Giroux & Howell, of Wichita, were on the brief for amicus curiae Kansas Association for Justice.

The opinion of the court was delivered by LUCKERT, J.:

This case arises from the consolidation of an original action in mandamus and a collateral order appeal, both filed by Kansas Medical Mutual Insurance Co. (KaMMCO). KaMMCO seeks relief from a discovery order entered in a pending medical malpractice action. KaMMCO, which is not a party in the underlying medical malpractice action and does not insure the malpractice defendant, argues that the district court...