T.M. v. Elwyn, Inc.

Decision Date04 June 2008
Docket NumberNo. 1002 EDA 2007.,No. 805 EDA 2007.,805 EDA 2007.,1002 EDA 2007.
Citation950 A.2d 1050
PartiesT.M., as parent and legal guardian for D.M., a minor, Appellee v. ELWYN, INC. and Elwyn Alternative School and Markeith Eugene Aikens Appeals of Elwyn, Inc. and Elwyn Alternative School, Appellants.
CourtPennsylvania Superior Court

John J. Hare, Philadelphia for appellants.

Patricia V. Pierce, Philadelphia and Robert T. Tomlinson, Richboro, for appellees.

Before BENDER, TAMILIA and COLVILLE*, JJ.

OPINION BY BENDER, J.:

¶ 1 Elwyn, Inc. and Elwyn Alternative School (collectively, "Elwyn") appeal from two discovery orders, both dated March 23, 2007, and docketed on March 26, 2007. For the following reasons, we hold that the discovery orders at issue are immediately appealable pursuant to the collateral order doctrine and that the trial court failed to provide an adequate analysis to justify the breadth of the discovery orders. Accordingly, we vacate the orders and remand to the trial court for further proceedings consistent with this opinion.

¶ 2 T.M., as parent and legal guardian of her minor son, D.M., commenced this action against Elwyn in December of 2005. In her complaint filed subsequently in March of 2006, T.M. asserted that Elwyn Alternative School "is designed to handle and educate children with mental and behavioral issues." Complaint, 3/16/06, at ¶ 12. According to the complaint, D.M. was sexually assaulted by a school counselor, Markeith Eugene Aikens,1 on several occasions while D.M. was a student at the Elwyn Alternative School. Id. at ¶¶ 12, 24-53. T.M. asserted claims of, inter alia, negligent hiring, training, and supervision against Elwyn based on the conduct of its employee, Aiken. Later, in April of 2006, an amended complaint was filed in which D.M. was substituted as the sole plaintiff because, by that point, he was an adult individual.2

¶ 3 On October 10, 2006, D.M. filed a motion indicating that during the course of discovery, he learned of several other lawsuits against Elwyn involving allegations of sexual assault by Elwyn employees on and off school grounds. Plaintiff's Motion, 10/10/06, at ¶ 3. Accordingly, D.M. served the following Requests for Admissions on Elwyn:

Defendant Elwyn, Inc. has had students other than [D.M.] accuse their teachers and/or employees of sexually assaulting and/or abusing the students.

Defendant Elwyn, Inc. has been sued by students other than [D.M.] because of sexual abuse.

Defendant Elwyn, Inc. has been sued by students other than [D.M.] because of negligent supervision.

Defendant Elwyn, Inc. has been sued by students other than [D.M.] because of battery.

Defendant Elwyn, Inc. is currently being sued by other students/parents other than [D.M.] because of sexual abuse.

Defendant Elwyn, Inc., has an excess insurance policy that is applicable to [D.M.'s] lawsuit.

Defendant Elwyn, Inc., has an excess insurance policy is for [sic] $50,000,000.00 (fifty million dollars) that is applicable to [D.M.'s] lawsuit.

Id. at ¶ 6. For each proffered admission, D.M. requested, inter alia, that Elwyn provide "all relevant pleadings and/or discovery" related to other cases of sexual abuse, battery, and negligent supervision. D.M. argued that he "has a right to learn about other lawsuits that are similar to his lawsuit." Id. at ¶ 9. D.M. "sought this information to establish evidence of habit, negligent hiring, negligent supervision, notice, and other important elements of [his] claim...." D.M.'s brief at 4.

¶ 4 With regard to all but the last two requests for admissions, Elwyn objected on the basis that the documents requested were privileged (i.e., Elwyn asserted the attorney client privilege, any other applicable privilege, and protection by various statutes such as: the Health Insurance Portability and Accountability Act of 1996 (HIPAA), at Pub.L. No. 104-191, 110 Stat. 1936 (1996); the Family Educational Rights and Privacy Act of 1974 (FERPA), at 20 U.S.C. § 1232g; the Mental Health Procedures Act (MHPA), at 50 P.S. §§ 7101-7116; and various child protection statutes). Elwyn further objected on the basis that the requests were irrelevant to the case at hand (because, e.g., Elwyn runs various programs and facilities other than the Elwyn Alternative School at issue), and on the basis that compliance with the overly-broad requests would be unduly burdensome. Additionally, Elwyn's defense attorneys sought to quash a subpoena that had been served on them by D.M. seeking all "documents, correspondence, pleadings, discovery requests, [and] discovery responses for and current lawsuits against Elwyn, Inc. in Philadelphia" including cases under other specified docket numbers, which request had been premised on D.M.'s contention that the same law firm defended each case. Elwyn objected to D.M.'s requests, characterizing them as a "fishing expedition."

¶ 5 On May 12, 2006, D.M. filed a motion to strike Elwyn's objections and non-responses to D.M.'s request for admissions. The parties engaged in motions practice with associated responsive pleadings on these discovery issues throughout most of 2006, which also included a motion for sanctions against Elwyn, filed by D.M.

¶ 6 Finally, on March 26, 2007, the trial court entered the following order:

... it is hereby ORDERED and DECREED that upon consideration of Plaintiff's Motion to Strike Defendants' Objections and Non-Responses to Plaintiff's Requests for Admissions, and Defendants' Response thereto, that said Motion is GRANTED, and Defendants shall fully answer, without objections, Plaintiff's Request for Admissions which were served on August 18, 2006, within twenty (20) days of the date of this order.

Order "A," 3/26/07. The court also entered the following order on the same date, to address D.M.'s motion for sanctions:

... upon consideration of Plaintiff's Motion for Sanctions, filed November 28, 2006, and Defendants' response thereto, the following is ORDERED:

1. Within thirty (30) days of the date of this Order, Defendants, at their own expense, shall re-produce for depositions Defendants' employees, James Ziegler, Thomas Fitti, [etc.]....

2. Defendants shall produce for depositions Defendants' employees: Dennis Ritrovato, Frank Guthridge, [etc.]....

3. Defendants' objections to Plaintiff's Subpoenas are sustained in part and denied in part. Plaintiffs may issue Subpoenas and obtain all publicly filed pleadings and any documents falling within the scope of ¶ 4.

4. Within the next 30 days, Defendants shall produce any and all reports, documents, complaints, pleadings, e-mails, correspondence, expert reports, discovery responses, and any other documents concerning or relating to sexual contact between any residents and/or clients of Elwyn, Inc., and between residents and/or clients of Elwyn, Inc. and any employee, contractor, consultant, volunteer or other custodian which was alleged to have occurred within the 10 years preceding April 15, 2004, including but not limited to all related incident report forms, witness statements, investigatory reports, supervisor logs, shift logs, e-mails, correspondence, internal memoranda, risk management analysis, root cause analysis, and remedial measures taken. The information which must be produced pursuant to this order includes, but is not limited to, the kind required to be kept for all of Elwyn's clients and reported pursuant to 42 C.F.R. § 483.420 pertaining to the protection of clients' rights. The information shall be produced regardless of whether the particular Elwyn client is considered to be a participant in an intermediate care facility, a residential treatment program or facility, a "day student" or any other classification of Elwyn, Inc. or is categorized as a mentally retarded or mental health client for internal, funding, or other purposes. The information to be produced shall be limited to allegations of sexual contact. This order applies to Elwyn, Inc., and each Elwyn subsidiary, program, division, and department located in Pennsylvania and New Jersey. All identifying information is to be redacted and replaced with an identifier number.

Order "B," 3/26/07.

¶ 7 Elwyn sought to have the trial court amend the discovery orders to include a statement that the orders involved "a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter[.]" 42 Pa.C.S. § 702(b). However, since the trial court did not take any action on this request for appellate certification, it was deemed denied by operation of law after the expiration of thirty days. Pa.R.A.P. 1311(b). Accordingly, Appellants filed petitions for review with our Court as per the procedures in Chapter 15 of our Rules of Appellate Procedure. See Pa.R.A.P. 1311 note (indicating that where trial court refuses to certify order for appeal pursuant to 42 Pa.C.S. § 702(b), the proper mode of "determining whether the case is so egregious as to justify prerogative appellate correction of the exercise of discretion" by the trial court is by filing a petition for review with the appellate court). Contemporaneously, however, Elwyn filed notices of appeal in which it purported to take appeals as of right from the discovery orders pursuant to the collateral order doctrine and Pa.R.A.P. 313. Those notices of appeal were pending when our Court, upon examination of the petitions for review, issued orders stating, in their entirety: "[t]he court hereby DENIES the petition for review." Order, 7/19/07; Order 8/10/07. Now, D.M. argues that, pursuant to the law of the case doctrine, our Court's denial of the petitions for review "compels the conclusion" that our Court "implicitly" held that the discovery orders did not involve a claim or right "too important to be denied appellate review" for purposes of a collateral appeal under Pa.R.A.P. 313.

¶ 8 We disagree with D.M.'s argument. The...

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