Powers v. Planned Parenthood of Northern New England

• Decision Date: 06 June 1996
• Docket Number: No. 7689,Docket No. F,7689
• Citation: Powers v. Planned Parenthood of Northern New England, 677 A.2d 534 (Me. 1996)
• Parties: Mary L. POWERS v. PLANNED PARENTHOOD OF NORTHERN NEW ENGLAND, et al. DecisionLawra 95 389.
• Court: Maine Supreme Court

Page 534

677 A.2d 534

Mary L. POWERS v.PLANNED PARENTHOOD OF NORTHERN NEW ENGLAND, et al.

Decision No. 7689.

Law Docket No. Fra 95 389.

Supreme Judicial Court of Maine.

Argued Jan. 2, 1996.

Decided June 6, 1996.

Todd S. Holbrook(orally), Bernstein, Shur, Sawyer & Nelson, Portland, for Appellant.

Paul R. Dumas, Jr.(orally), Joyce, Dumas, David and Hanstein, P.A., Mexico, for Appellees.

Before WATHEN, C.J., and ROBERTS, GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.

LIPEZ, Justice.

Planned Parenthood of Northern New England (Planned Parenthood) appeals from an order of the Superior Court(Franklin County, Delahanty, J.) granting Mary Powers's petition to perpetuate testimony pursuant to M.R.Civ.P. 27.¹We affirm the order.

At some point between January 1, 1994, and May 7, 1995, Mary Powers was diagnosed with cervical cancer.On May 7, 1995, Powers told her attorney, Paul Dumas, that she had six months to live.On May 21, Powers told Dumas that her prognosis had changed and that she only had two months to live.

On May 24, Dumas filed in Franklin County, Powers's county of residence, a petition to conduct discovery before action pursuant to M.R.Civ.P. 27 and a motion to expedite hearing on the petition.The petition was verified by Dumas.The court held a hearing on the petition that same day, with only Dumas present, and granted Powers's petition.Planned Parenthood first learned of the petition and the hearing on May 25, the day after the petition was granted.Planned Parenthood received notice of the deposition itself on May 24.

On June 1, Planned Parenthood filed a motion to dismiss Powers's petition and to vacate the court's order permitting her deposition, claiming that: (1) the petition did not show adequately that Powers presently was unable to bring an action; (2)the court had no jurisdiction to grant the petition because it was filed in the wrong county; (3) the petition was not properly verified; and (4) Planned Parenthood had no prior notice of the hearing.

On June 6, the court held a hearing on Planned Parenthood's motion to dismiss and to vacate.Defendant ICSL joined in the motion.After the court denied the motion the parties appealed.On June 16, Powers filed a notice of claim of medical malpractice against Planned Parenthood, ICSL, Northern Diagnostic Laboratories, and Cancer Screening Services.

Appealability of the court's order

As a threshold matter, we must determine whether the court's decision to permit the taking of a deposition prior to the filing of an action is subject to an appeal.Ordinarily, appeals must be from a final judgment.Lewellyn v. Bell, 635 A.2d 945, 946(Me.1993).Discovery orders generally are not subject to immediate appeal because the underlying litigation is ongoing, and the discovery order is not considered final.Hanley v. Evans, 443 A.2d 65, 66(Me.1982).Depositions authorized pursuant to M.R.Civ.P. 27 are not, however, considered a traditional discovery device.1 Field, McKusick & Wroth, Maine Civil Practice§ 27.1 (2d ed. Supp.1981);M.R.Civ.P. 27, Reporter's Notes (1959).Moreover, the federal courts, in interpreting F.R.Civ.P. 27, which is substantially similar to M.R.Civ.P. 27, have held that both the denial and grant of a petition to perpetuate testimony are appealable as final orders because such orders grant all the relief sought in the petition and fully dispose of that proceeding.SeeShore v. Acands, Inc., 644 F.2d 386, 388(5th Cir.1981);Mosseller v. United States, 158 F.2d 380, 383(2d Cir.1946).States that have an analogue to F.R.Civ.P. 27 and that have considered the appealability of Rule 27 orders have followed the federal rule.See, e.g., In re Burlington Bagel Bakery, Inc., 150 Vt. 20, 549 A.2d 1044, 1045(1988)(determination of finality of order denying a petition to perpetuate testimony pursuant to state rule of civil procedure is guided by federal caselaw).We therefore consider the merits of Planned Parenthood's appeal.

Procedural defects of Powers's petition

M.R.Civ.P. 27(a) provides that any person who desires to perpetuate testimony by deposition prior to the commencement of an action may file a verified petition in the Superior Court of the county of the residence of the expected adverse party seeking an order allowing such perpetuation.M.R.Civ.P. 27(a)(1).²If there is more than one expected adverse party, the petitioner may file in any county in which one of the expected adverse parties resides.Id.The rule further requires certain items to be set forth in detail:

(i) that the petitioner expects to be a party to an action cognizable in a court of the state but is presently unable to bring it or cause it to be brought, (ii) the subject matter of the expected action and the petitioner's interest therein, (iii) the facts which the petitioner desires to establish by the proposed testimony ... and the petitioner's reasons for desiring to perpetuate ... it, (iv) the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known, and (v) the names and addresses of the persons to be examined ... and the substance of the testimony ... which the petitioner expects to elicit....

Id. Rule 27 also contains a notice requirement which provides, in relevant part:

The petitioner shall thereafter serve a notice upon each person named in the petition as an expected adverse party, together with a copy of the petition, stating that the petitioner will apply to the court, at a time and place named therein, for the order described in the petition.At least 20 days before the date of hearing the notice shall be served either within or without the state in the manner provided in Rule 4(d), (e), or (j) for service of summons; but if such service cannot with due diligence be made upon any expected adverse party named in the petition, the court may make such order as is just for service....

M.R.Civ.P. 27(a)(2).Planned Parenthood raises several objections to Powers's petition to perpetuate her own testimony, all of which focus on her alleged failure to comply with the requirements of M.R.Civ.P. 27(a).The standard of review for orders granting or denying petitions to perpetuate testimony is an abuse of discretion.Shore v. Acands, Inc., 644 F.2d at 386(discussingF.R.Civ.P. 27).

Powers's inability to bring an action cognizable in court

Planned Parenthood contends that Powers's unsubstantiated statement in her petition that she"is presently unable to bring this action or cause it to be brought as she learned only Sunday that the Doctors give her a prognosis of having less than two months to live," is insufficient to satisfy the inability-to-bring-suit requirement of Rule 27(a)(1).We disagree.

Although a bare assertion that the moving party is gravely ill is generally insufficient to satisfy the inability prong of Rule 27(a)(1), cf. Wright, Miller & Marcus, Federal Practice and Procedure: Civil2d § 2072(1994)(discussingF.R.Civ.P. 27), it was sufficient in this case.Before Powers could bring a medical malpractice action against Planned Parenthood and the other expected adverse parties, she was required by statute to file a notice of claim setting forth her negligence claim and wait for the medical malpractice prelitigation screening panel to render a decision.See24 M.R.S.A. § 2903(1990 & Pamph.1995).³This prelitigation screening procedure is mandatory, unless the parties agree to proceed directly with a lawsuit.See24 M.R.S.A. § 2853(5).⁴In the absence of such an agreement, potential plaintiffs in medical malpractice litigation are barred from pursuing their claims in court until the prelitigation screening panel has rendered a decision.Language elsewhere in the Health Security Act to the effect that a malpractice action commences with the filing of a written notice of claim, see24 M.R.S.A. § 2853(1)(Pamph.1995)("A person may commence an action for professional negligence by: ... Filing a written notice of claim...."), refers only to commencement for purposes of tolling the statute of limitations ⁵ and initiating discovery during the prelitigation screening process.The filing of a notice of a medical malpractice claim is not equivalent to the bringing of an action in court as that phrase is used in Rule 27.⁶

County of filing

A petition to perpetuate testimony may be filed in the county of the residence of any expected adverse party.M.R.Civ.P. 27(a)(1).Powers should have filed her petition in Cumberland County, where Planned Parenthood resides, instead of Franklin County, where she resides.Recognizing that Powers filed her petition in a county in which no expected adverse party resides, Planned Parenthood contends that the Superior Court did not have jurisdiction over the petition.

The jurisdiction of a court to entertain a motion to perpetuate testimony is supported by the grounds of jurisdiction that will support the expected action when it is brought.Cf.4 James W. Moore et al., Moore's Federal Practicep 27.03 (2d ed. 1994)(discussingF.R.Civ.P. 27).If the court in which the petition is filed would have jurisdiction over the anticipated action, that court also has jurisdiction to entertain the petition.A medical malpractice action is cognizable in the Superior Court, a statewide court of general jurisdiction.The Superior Court had jurisdiction to entertain Powers's petition.

Although Powers's filing of her petition in Franklin County does not create a jurisdictional defect, it does present a venue problem.On appeal, Planned Parenthood cites 14 M.R.S.A. § 501(1980), that provides in relevant part: "Improper venue may be raised by the defendant by motion or by answer, and if it is established that the action was brought in the wrong county, it shall be dismissed and the defendant allowed double costs."Planned Parenthood argues that this statutory provision required the Superior Court to dismiss the petition.

Improper venue is an...