McKesson Corp. v. Green

• Citation: 648 S.E.2d 457,286 Ga. App. 110
• Decision Date: 25 June 2007
• Docket Number: No. A07A0415.,A07A0415.
• Parties: McKESSON CORPORATION et al. v. GREEN et al.
• Court: United States Court of Appeals (Georgia)

286 Ga. App. 110

648 S.E.2d 457

McKESSON CORPORATION et al. v. GREEN et al.

No. A07A0415.

Court of Appeals of Georgia.

June 25, 2007.

Morris, Manning & Martin, John H. Williamson, Simon R. Malko, Atlanta, for appellants.

Schklar, Wright & Henderson, Edwin J. Schklar, William B. Ney, Fellows, Johnson & La Briola, Henry D. Fellows, Jr., Dorothy Y. Kirkley, Atlanta, for appellees.

BARNES, Chief Judge.

McKesson Corporation and McKesson Information Solutions, Inc. appeal the trial court's order overruling their objection to the plaintiffs' voluntary dismissal without prejudice and their motion for attorney fees. For the reasons that follow, we affirm.

McKesson, a large, publicly traded health care supply management company, acquired McKesson Information Solutions, LLC, formerly known as HBO and Company (HBOC). The plaintiffs, Holcombe T. Green, HTG Corporation, and Hall Family Investments, L.P., owned stock in HBOC, which was converted to McKesson stock. After the merger, McKesson announced that, according to its audit, HBOC had overstated its pre-merger earnings, and McKesson's stock price plummeted.

The plaintiffs sued McKesson for fraud and RICO violations, contending that they were induced to hold their HBOC stock while the financial statements reflected inflated earnings, which became worth much less after McKesson announced the earnings overstatement. The parties conducted discovery, and the trial court denied McKesson's motion for summary judgment on the fraud claim, finding that the plaintiffs produced evidence creating material issues of fact on all elements of fraud. It granted McKesson's motion on the RICO claim, finding that the plaintiffs had no standing to make it. In the same order, the trial court determined that the plaintiffs' damages expert did not meet the federal Daubert standards imposed by OCGA § 24-9-67.1 and granted McKesson's motion in limine to exclude his testimony. The merits of those decisions are not before us. The trial court later denied the plaintiffs' motion to name a new expert on damages because the plaintiffs had agreed to serve their expert reports long ago; it had already allowed the plaintiffs to submit a fourth damages calculation before it ruled on the Daubert issue; and because the scheduling order precluded any additional damages opinions.

With the case set for trial but no expert witness on damages, the plaintiffs voluntarily dismissed their complaint without prejudice under OCGA § 9-11-41(a) and refiled it in another court. McKesson filed a motion objecting to the plaintiffs' voluntary dismissal without prejudice, contending that the dismissal should be with prejudice because it violated the purposes of the expert witnesses statute and constituted "forum shopping." McKesson also moved the court to award it attorney fees and costs under OCGA § 9-11-68, the proffer of settlement statute. The trial court denied both motions, and McKesson appeals.

1. The plaintiff-appellees have moved to dismiss this appeal, arguing that it was untimely because it was filed more than 30 days from the date they dismissed the lawsuit. They also argue that the trial court lacked jurisdiction to rule on McKesson's objection as the case was dismissed, and that the trial court's order denying the motions was not an appealable "final order" as contemplated by OCGA § 5-6-34(a).

First, the plaintiffs argue both that the dismissal itself was not a final order, and that the appeal was late because it was filed more than 30 days after the dismissal. McKesson argues not that the dismissal was a final decision, but that the trial court's order overruling its objection to the dismissal is a final decision, from which it properly appealed within 30 days. The plaintiffs contend that if this court allows an appeal from an order denying a motion objecting to a dismissal, we "would create a whole new class of appeals."

In addressing the propriety of voluntary dismissals, we have found no cases specifically analyzing a defendant's right to appeal a trial court's order upholding a plaintiff's dismissal. The cases that address the propriety of a voluntary dismissal assume that the issue is appealable and then analyze the propriety of the dismissal. We have concluded that a plaintiff cannot appeal his own voluntary dismissal. See Studdard v. Satcher, Chick, Kapfer, Inc., 217 Ga.App. 1, 3, 456 S.E.2d 71 (1995); Mitchell v. Wyatt, 192 Ga.App. 127, 129 384 S.E.2d 227 (1989). In Studdard, we held that the notice of appeal had to be not only final, but "appealable by the party filing the notice of appeal." The plaintiff in Studdard could not "use her own voluntary dismissal as the vehicle for appellate review of rulings entered by the trial court more than 30 days from the filing of the notice of appeal," and we thus dismissed her appeal.

The situation before us is different. The plaintiffs could not have appealed their voluntary dismissal because they filed it themselves. The defendants, on the other hand, objected to the dismissal and sought a ruling from the trial court. Pretermitting whether the plaintiffs' dismissal itself was a "final order" from which McKesson could appeal directly, the trial court's subsequent order on McKesson's objection to the dismissal is appealable. When the trial court ruled, final judgment had issued. The defendants were not precluded from filing an appeal from this judgment because they were the parties opposing the dismissal rather than the parties who filed the dismissal.

The plaintiff-appellees' motion to dismiss the appeal is denied.

2. McKesson argues that the trial court erred in overruling its objection to the plaintiffs' voluntary dismissal without prejudice, contending that the dismissal should be with prejudice. The company asserts that the plaintiffs' right to voluntarily dismiss their complaint is limited by the expert witness statute, OCGA § 24-9-67.1, because the legislature intended to prevent forum shopping by plaintiffs and the statute requires resolution of any Daubert motions before the final pretrial conference. McKesson also argues that allowing the plaintiffs to dismiss without prejudice conflicts with OCGA § 9-11-16, which expressly permits trial courts to limit the number of expert witnesses.

OCGA § 9-11-41(a)(1)(A) provides that, "[s]ubject to the provisions of subsection (e) of Code Section 9-11-23 [(class actions)], Code Section 9-11-66 [(action with appointed receiver)], and any statute, an action may be dismissed by the plaintiff, without order or permission of court . . . [ ] by filing a written notice of dismissal at any time before the first witness is sworn." In Chatham Orthopaedic, etc. v. Ga. Alliance, etc., 262 Ga.App. 353, 585 S.E.2d 700 (2003),¹ this court held that a plaintiff's right to voluntarily dismiss a case without prejudice was subject to the provisions of the Anti-Strategic Lawsuits Against Public Policy (Anti-SLAPP) statute, OCGA § 9-11-11.1. The Anti-SLAPP statute provides that

[f]or any claim against a person . . . arising from an act . . . which could reasonably be construed as an act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern,

the plaintiff and the plaintiff's attorney must contemporaneously file a written verification under oath, stating essentially that the claim was not made for an improper purpose. OCGA § 9-11-11.1(b). If the verification is not filed with the complaint, the complaint "shall be stricken" within ten days after the omission is called to the attention of the complaining party. (Emphasis supplied.) Id.

In Chatham Orthopaedic, we held that the plaintiffs could not voluntarily dismiss and refile their lawsuit because their failure to timely verify the original lawsuit within the ten-day period constituted a nonamendable defect, which required automatic dismissal with prejudice of the original lawsuit under OCGA § 9-11-11.1(b). The appellants' right to voluntarily dismiss without prejudice under OCGA § 9-11-41(a) was thus limited by the provisions of the Anti-SLAPP statute, and we concluded that the trial court did not err in ruling that the voluntary dismissal was with prejudice by operation of law. Chatham Orthopaedic, supra, 262 Ga.App. at 358, 585 S.E.2d 700.

McKesson contends that OCGA § 24-9-67.1 similarly limits the plaintiffs' right to dismiss voluntarily without prejudice in two ways. First, it argues, one of the express purposes of the statute is to prevent forum shopping, which results if the plaintiffs are allowed to dismiss and refile in another court. Subsection (f) provides

It is the intent of the legislature that, in all civil cases, the courts of the State of Georgia not be viewed as open to expert evidence that would not be admissible in other states. Therefore, in interpreting and applying this Code section, the courts of this state may draw from the opinions of the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 [113 S.Ct. 2786, 125 L.Ed.2d 469] (1993); General Electric Co. v. Joiner, 522 U.S. 136 [(118 S.Ct. 512, 139 L.Ed.2d 508)] (1997); Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 [(119 S.Ct. 1167, 143 L.Ed.2d 238)] (1999); and other cases in federal courts applying the standards announced by the United States Supreme Court in these cases.

Although the statute itself addresses forum shopping among states, McKesson argues that "it is inconceivable" that the legislature would be concerned about forum shopping from other states but not from within the state.

Second, McKesson argues that the expert witness statute limits the plaintiffs' right to dismiss voluntarily without prejudice because it requires the trial court to rule on a Daubert motion "no later than the final pretrial conference," OCGA § 24-9-67.1(d), and...