Leonard v. Martin

• Citation: 38 F.4th 481
• Decision Date: 30 June 2022
• Docket Number: 21-30475
• Parties: Jennifer LEONARD, Plaintiff, v. Tyler MARTIN; Wadena Insurance Company, Defendants—Appellees, v. Joseph W. Turnipseed, M.D. ; The Spine Diagnostic & Pain Treatment Center, Interested Parties—Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

38 F.4th 481

Jennifer LEONARD, Plaintiff,

v.Tyler MARTIN; Wadena Insurance Company, Defendants—Appellees,

v.Joseph W. Turnipseed, M.D. ; The Spine Diagnostic & Pain Treatment Center, Interested Parties—Appellants.

No. 21-30475

United States Court of Appeals, Fifth Circuit.

FILED June 30, 2022

Timothy Gregory Schafer, Schafer & Schafer, L.L.P., New Orleans, LA, for Defendants—Appellees.

Jason Randall Cashio, Kean Miller, L.L.P., Baton Rouge, LA, Sean Thomas McLaughlin, Kean Miller, L.L.P., New Orleans, LA, for Interested Parties—Appellants.

Before Jones, Haynes, and Costa, Circuit Judges.

Edith H. Jones, Circuit Judge:

This appeal relates to a Fed. R. Civ. Pro. 45 subpoena issued to third party Dr. Joseph Turnipseed requiring him to perform patient record audits and generate data about how frequently he recommends a particular course of treatment. Turnipseed moved to quash the subpoena on undue burden grounds. The district court denied his motion to quash. He appealed. In the alternative, he sought a writ of mandamus ordering the district court to quash the subpoena. With misgivings about the district court's substantive ruling, we DISMISS Turnipseed's appeal for lack of jurisdiction and DENY his alternative petition for a writ of mandamus.

I.

This is a run-of-the-mill personal injury lawsuit arising out of a car accident. Plaintiff Jennifer Leonard alleges that Tyler Martin rear-ended her when she stopped in traffic. She sued Martin and his insurer, Wadena Insurance Company, in Louisiana state court seeking damages for injuries she allegedly sustained during the accident. Martin removed the lawsuit to federal court based on the existence of diversity jurisdiction.

Turnipseed, an anesthesiologist and pain management specialist, treated Leonard for neck and back pain allegedly caused by the accident. Among other treatments, Turnipseed performed a cervical radiofrequency neurotomy

on Leonard. A cervical radiofrequency neurotomy is a procedure done to reduce chronic back and neck pain that has not "improved with medications or physical therapy, or when surgery [is not] an option."¹ According to Turnipseed, Leonard responded favorably to the cervical neurotomy and he recommended that she undergo the procedure annually for the next five to six years. These future treatments make up a large percentage of Leonard's life care plan and alleged damages.

The defendants dispute the medical necessity of those expensive, future treatments. They suggest that Turnipseed frequently recommends annual cervical radiofrequency neurotomies

over the course of several years but that few patients follow through with the treatments. The subtext, of course, is that Turnipseed's recommendation is simply a means of inflating the amount of damages in personal injury litigation. The defendants therefore subpoenaed Turnipseed and his medical practice, The Spine Diagnostic & Pain Treatment Center, under Rule 45, seeking: (1) all records of patients in the past ten years who Turnipseed recommended undergo cervical neurotomies

for ten years, twenty years, and life; and (2) bills for services rendered and records produced in connection with (1). The subpoena specified that all patient health information should be redacted.

Turnipseed moved to quash the original subpoena. He argued that it was overly broad, unduly burdensome, and sought privileged information. The magistrate judge granted his motion in part and denied it in part. He agreed that the subpoena was overly broad because it requested the entirety of patient records and targeted patients that Turnipseed recommended cervical neurotomies

for periods of ten years, twenty years, and life, even though Turnipseed only recommended that Leonard undergo annual neurotomies for five to six years. The magistrate judge likewise agreed that the subpoena was overbroad in seeking ten years of data.

The magistrate judge, however, approved a narrower version of the subpoena that required production of only (1) the number of patients in the last five years that Turnipseed recommended get annual cervical neurotomies

over the course of five to six years; and (2) the number of known patients who actually underwent the procedures. That information is sufficiently relevant, the magistrate judge reasoned, because it bears on Turnipseed's credibility. Moreover, the magistrate judge rejected Turnipseed's objection, as he concluded that producing the information targeted by the narrower subpoena—raw numbers, rather than patient files—would not be unduly burdensome.

Turnipseed filed a Rule 72(a) motion to review the magistrate judge's ruling in the district court. The district court held that the magistrate judge expressly considered the relevant factors—the scope of the information requested, the importance of that information, the burden to Turnipseed, and the privacy rights of Turnipseed's patients—and tailored his ruling accordingly and, as a result, did not clearly err. Turnipseed appealed. He contends that district court abused its discretion in allowing the discovery to go forward.

II.

This court cannot reach the question whether the district court abused its discretion until we first "assure ourselves of our own federal subject matter jurisdiction." Keyes v. Gunn , 890 F.3d 232, 235 n.4 (5th Cir. 2018). We requested supplemental briefing addressing the basis for appellate jurisdiction to review an order denying a nonparty's motion to quash. Turnipseed posits that this court has jurisdiction under the collateral order doctrine. Alternatively, Turnipseed suggests that the court may treat his appeal as a petition for a writ of mandamus. Martin, by contrast, disagrees that we have jurisdiction and contends that, even if the court were to treat this appeal as a petition for a writ of mandamus, the criteria for mandamus relief are not satisfied. We conclude that an order denying this nonparty's motion to quash is not reviewable under the collateral order doctrine and that, although we may treat Turnipseed's appeal as a petition for a writ of mandamus, he fails to meet the requirements for such extraordinary relief.

A. Collateral Order Doctrine

With few exceptions not applicable here, appellate jurisdiction is statutorily confined to review of "final decisions." 28 U.S.C. § 1291. The archetypal final decision is one that "ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment." Digit. Equip. Corp. v. Desktop Direct, Inc. , 511 U.S. 863, 867, 114 S. Ct. 1992, 1995, 128 L.Ed.2d 842 (1994) (quoting Catlin v. United States , 324 U.S. 229, 233, 65 S. Ct. 631, 633, 89 L.Ed. 911 (1945) ). Nevertheless, the Supreme Court "has long given" § 1291 a "practical rather than a technical construction." Cohen v. Beneficial Indus. Loan Corp. , 337 U.S. 541, 546, 69 S. Ct. 1221, 1226, 93 L.Ed. 1528 (1949). Section 1291 encompasses not only the final decisions that terminate an action, "but also a ‘small class’ of collateral rulings that, although they do not end the litigation, are appropriately deemed ‘final.’ " Mohawk Indus., Inc. v. Carpenter , 558 U.S. 100, 106, 130 S. Ct. 599, 605, 175 L.Ed.2d 458 (2009) (quoting Cohen , 337 U.S. at 545-46, 69 S. Ct. at 1225-26 ).

To fit within the small class of immediately appealable collateral rulings, 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." Vantage Health Plan, Inc. v. Willis-Knighton Med. Ctr. , 913 F.3d 443, 448 (5th Cir. 2019) (quoting Henry v. Lake Charles Am. Press, L.L.C. , 566 F.3d 164, 171 (5th Cir. 2009) ). For an order to be appealable under the collateral order doctrine, the "justification for immediate appeal must ... be sufficiently strong to overcome the usual benefits of deferring appeal until litigation concludes." Mohawk Indus. , 558 U.S. at 107, 130 S. Ct. at 605. Critically, the Supreme Court has repeatedly admonished lower courts that the collateral order doctrine must "never be allowed to swallow the general rule that a party is entitled to a single appeal, to be deferred until final judgment has been entered." Digit. Equip. Corp. , 511 U.S. at 868, 114 S. Ct. at 1996 (citation omitted).

An order is not "effectively unreviewable" just because it "may burden litigants in ways that are only imperfectly reparable by appellate reversal of a final district court judgment." Digit. Equip. Corp. , 511 U.S. at 872, 114 S. Ct. at 1998. The "decisive consideration is whether delaying review until the entry of final judgment ‘would imperil a substantial public interest’ or ‘some particular value of a high order.’ " Id. (quoting Will v. Hallock , 546 U.S. 345, 352-53, 126 S. Ct. 952, 959, 163 L.Ed.2d 836 (2006) ); see also Lauro Lines S.R.L. v. Chasser , 490 U.S. 495, 502, 109 S. Ct. 1976, 1980, 104 L.Ed.2d 548 (1989) (Scalia, J., concurring) ("The importance of the right asserted has always been a significant part of our collateral order doctrine."). Generally, this is only the case "where the order at issue involves ‘an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.’ " Midland Asphalt Corp. v. United States , 489 U.S. 794, 489 U.S. 794, 109 S. Ct. 1494, 103 L.Ed.2d 879 (1989) (quoting United States v. MacDonald , 435 U.S. 850, 860, 98 S. Ct. 1547, 1552, 56 L.Ed.2d 18 (1978) ). A court must make this determination "on a categorical basis, looking only at whether ‘the class of claims, taken as a whole, can be vindicated by other means’ than immediate appeal." Martin v. Halliburton , 618 F.3d 476, 483 (5th Cir. 2010) (quoting Mohawk Indus. , 558 U.S. at 107, 130 S. Ct. at 605 ).

Turnipseed posits that collateral order appeals are necessary to ensure effective review of orders requiring nonparty physicians to conduct patient audits and generate statistical materials. He claims that the only alternative means...