Opinion
NO. COA11-54
08-16-2011
ZACHARY NOEL Plaintiff-Appellant, v. LEON DICKERSON, JR., M.D.; ORTHOCAROLINA, PA, a North Carolina professional corporation; PRESBYTERIAN ORTHOPEDIC HOSPITAL, LLC, a North Carolina limited liability corporation; and THE PRESBYTERIAN HOSPITAL, a North Carolina non-profit corporation, Defendants-Appellees.
Law Offices of Wade E. Byrd, P.A., by Wade E. Byrd, for Plaintiff-Appellant. Carruthers & Roth, P.A., by Norman F. Klick, Jr., for Defendants-Appellees Leon Dickerson, Jr., M.D. and OrthoCarolina, P.A. Shumaker, Loop & Kendrick, LLP, by Scott A. Hefner and Scott M. Stevenson, for Defendants-Appellees Presbyterian Orthopedic Hospital, LLC and The Presbyterian Hospital, Inc.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
Mecklenburg County No. 08 CVS 2322
Appeal by Plaintiff from orders entered 30 April 2010 by Judge Richard D. Boner in Superior Court, Mecklenburg County. Heard in the Court of Appeals 7 June 2011.
Law Offices of Wade E. Byrd, P.A., by Wade E. Byrd, for Plaintiff-Appellant.
Carruthers & Roth, P.A., by Norman F. Klick, Jr., for Defendants-Appellees Leon Dickerson, Jr., M.D. and OrthoCarolina, P.A.
Shumaker, Loop & Kendrick, LLP, by Scott A. Hefner and Scott M. Stevenson, for Defendants-Appellees Presbyterian Orthopedic Hospital, LLC and The Presbyterian Hospital, Inc.
McGEE, Judge.
Zachary Noel (Plaintiff) filed a complaint dated 11 September 2006, which alleged medical malpractice on the part of Leon Dickerson, Jr., M.D. (Dr. Dickerson). Plaintiff alleged in his complaint that the medical malpractice arose during treatment that Dr. Dickerson provided Plaintiff while Dr. Dickerson was an employee of OrthoCarolina, P.A. (OrthoCarolina). Plaintiff's complaint further alleged that the acts giving rise to Plaintiff's claims occurred on the premises of the Presbyterian Hospital, presently known as Presbyterian Orthopedic Hospital, which Plaintiff alleged was operated by the Presbyterian Hospital (collectively, Presbyterian) (together, with Dr. Dickerson and OrthoCarolina, Defendants). Plaintiff filed a notice of voluntary dismissal without prejudice of his complaint dated 19 February 2007. Plaintiff filed a second complaint against Defendants on 1 February 2008, again alleging his medical malpractice action.
The trial court entered a discovery order on 10 July 2008 (the first discovery order) in which Plaintiff was required to identify all expert witnesses by 28 February 2009 and set a trial date of 15 March 2010. The trial court entered a second discovery order on 18 September 2008 (the second discovery order) in which it set a peremptory trial date of 18 January 2010 and retained the 28 February 2009 deadline for identification of Plaintiff's expert witnesses. Plaintiff did not identify his expert witnesses by 28 February 2009, and on 20 March 2009, Presbyterian filed a motion for summary judgment. Plaintiff did file a "Designation of Expert Witnesses" dated 4 April 2009.
Plaintiff filed a motion on 15 May 2009 in which he requested that the trial court accept his 4 April 2009 designation of expert witnesses "as a modification by course of conduct of the [second] discovery . . . order[.]" Defendants filed a motion on 18 May 2009 to strike Plaintiff's designation of expert witnesses. In an order entered 10 June 2009, the trial court denied (1) Defendants' motion to strike, (2) extended the deadline to 31 July 2009 for Defendants to depose Plaintiff's expert witnesses, and (3) elected not to hear Defendants' motion for summary judgment at that time. The parties later voluntarily extended the deposition deadline to 15 September 2009.
Plaintiff filed a motion on 2 December 2009 to name additional expert witnesses. In response, Defendants filed a motion to exclude Plaintiff's expert witnesses because the witnesses had not been made available for depositions by 15 September 2009. The trial court entered an order on 29 December
2009 setting a peremptory trial date for 19 January 2010 and further stating that "[t]he trial of this case shall not be continued and it shall proceed . . . on" 19 January 2010. The trial court's 29 December 2009 order also stated that Plaintiff's additional expert witnesses must be made "available for deposition . . . between December 28 and December 31, 2009." The trial court's order further stated that: "Plaintiff is hereby prohibited from adding, changing or modifying expert witnesses in this case and no other witnesses shall testify as experts on behalf of . . . Plaintiff on issues of standard of care, causation and/or damages."
Plaintiff filed a motion to continue the trial, dated 11 January 2010. In an order entered 12 January 2010, the trial court denied Plaintiff's motion. The parties agree in their briefs that "because no judge was available for the 19 January 2010 setting, the trial was administratively recalendared for 5 April 2010."
Plaintiff's attorney, Karen Zaman (Ms. Zaman), filed a motion on 10 March 2010 to withdraw as counsel and to continue the trial. In her motion to withdraw, Ms. Zaman stated she suffered from post-traumatic stress disorder and was incapable of continuing to represent Plaintiff. The trial court entered an order: (1) granting Ms. Zaman's motion to withdraw on condition she surrender her State Bar license, (2) granting Plaintiff thirty days to obtain new counsel, and (3) continuing the trial to a date to be determined at a status conference to be held 12 April 2010.
Plaintiff retained attorney Wade Byrd (Mr. Byrd), who contacted and retained new expert witnesses, in preparation for the 12 April 2010 conference. Mr. Byrd made a limited appearance at the 12 April 2010 conference, stating that he was unwilling to represent Plaintiff unless Plaintiff was allowed to change his expert witnesses. Mr. Byrd requested that the trial court modify its second discovery order to the extent that the order required Plaintiff to designate expert witnesses by 28 February 2009. Mr. Byrd also requested that the trial court modify its 29 December 2009 order insofar as that order prohibited Plaintiff from changing expert witnesses. The trial court denied Mr. Byrd's requests to modify either order.
Plaintiff filed a motion on 27 April 2010 and requested that the trial court reconsider its ruling at the 12 April 2010 status conference. The trial court entered two orders on 30 April 2010: one order that denied Plaintiff's motion to modify the trial court's second discovery order and one order that denied Plaintiff's motion asking the trial court to reconsider its ruling at the 12 April 2010 status conference. The trial court again set a peremptory trial date for 1 June 2010. Plaintiff filed notice of appeal from the two 30 April 2010 orders.
Plaintiff's Attorneys
At the time of the 28 May 2009 hearing on Defendants' motions for summary judgment, Plaintiff was represented by Ms. Zaman. The North Carolina State Bar Disciplinary Hearing Commission (the DHC) entered a consent order regarding Ms. Zaman on 29 May 2009, in which it found that, as a result of Ms. Zaman's condition, her conduct caused "significant harm to the administration of justice" and "potential significant harm to her clients[.]" As a result of these findings, the DHC suspended Ms. Zaman's license for two years, but stayed the suspension for three years on condition that Ms. Zaman comply with a number of requirements, including that she "[a]rrange for a member of the North Carolina State Bar to serve as her law practice monitor." As a result of the DHC's order, Ms. Zaman associated with attorney William Elam (Mr. Elam) in several cases Ms. Zaman was working with. Mr. Elam participated in the selection of some of Plaintiff's expert witnesses identified in Plaintiff's 4 April 2009 designation of expert witnesses, and also defended the depositions of the witnesses. At a 10 March 2010 hearing on Ms. Zaman's motion to withdraw, there was testimony that "Mr. Elam handled all of the expert discovery[,]" and that "Mr. Elam handled all of [the depositions.]"
A later disagreement over trial strategy in another case in which Ms. Zaman and Mr. Elam had associated prompted Mr. Elam to file motions to withdraw as counsel in all of the cases in which the two were associated. Mr. Elam thereafter indicated to Plaintiff that he intended to disassociate from Ms. Zaman and asked Plaintiff whether Plaintiff would continue to employ Ms. Zaman or Mr. Elam. Plaintiff chose to retain Ms. Zaman. Mr. Elam then filed a motion on 13 November 2009 for leave to withdraw as counsel for Plaintiff. The trial court granted Mr. Elam's motion to withdraw.
Ms. Zaman thereafter continued to represent Plaintiff, but was unable to do so effectively. Ms. Zaman filed her motion to withdraw as Plaintiff's counsel and to continue the trial on 10 March 2010. In support of her motion to continue the trial, Ms. Zaman stated that she "spent significant time attempting to find competent co-counsel willing to represent . . . [P]laintiff and try this case, but given the immediacy of the trial date, no other attorneys were willing to get involved without the case being continued."
During the hearing on Ms. Zaman's motion to continue, attorney Martin Rosenberg (Mr. Rosenberg) appeared as Ms. Zaman's law practice monitor. The trial court asked Mr. Rosenberg whether he would take over Plaintiff's representation, but Mr. Rosenberg declined, stating "I know very little about this case . . . I haven't looked at the file . . . I don't even know if it's meritorious."
Attorney William Herlong, one of the attorneys Ms. Zaman contacted, testified at the 10 March 2010 hearing on Ms. Zaman's motion to withdraw that
[a]ny lawyer is going to want to configure these things and put the case together in the way that they are comfortable with. And I'm sure that would be true for any other lawyer who would take a look at it. . . . I expect any other lawyer with some experience in this kind of thing would do the same thing. If Ms. Zaman is dismissed from this case or allowed to withdraw, [Plaintiff] would have no counsel. And unless the discovery order and those things were opened up, no lawyer is going to step in and handle the case.
Defendants argued in opposition to reopening discovery and allowing new expert witnesses, asserting that Mr. Elam had participated in the expert discovery process and was competent to represent Plaintiff during that process even if Ms. Zaman was not. Defendants argued that, because the expert discovery was conducted by a competent attorney, there was no need to designate new expert witnesses. In his appellate brief for Plaintiff, Mr. Byrd stated: "Nevertheless, like Mr. Herlong and all the other lawyers asked to take over the reins in the wake of Ms. Zaman's departure, undersigned counsel will not represent Plaintiff without the ability to name other experts."
Interlocutory Appeal
We must first address whether Plaintiff's appeal is properly before this Court. "Interlocutory orders and judgments are those 'made during the pendency of an action which do not dispose of the case, but instead leave it for further action by the trial court to settle and determine the entire controversy.'" Sharpe v. Worland, 351 N.C. 159, 161, 522 S.E.2d 577, 578 (1999) (citations omitted). "Generally, there is no right of immediate appeal from interlocutory orders and judgments." Id. Interlocutory orders are immediately appealable in two circumstances: "First, . . . [where] the trial court . . . certifies there is no just reason for delay[;] [and] "[s]econd, immediate appeal is available from an interlocutory order or judgment which affects a 'substantial right.'" Id. at 161-62, 522 S.E.2d at 579 (citation omitted). "A substantial right is 'one which will clearly be lost or irremediably adversely affected if the order is not reviewable before final judgment.'" Turner v. Norfolk S. Corp., 137 N.C. App. 138, 142, 526 S.E.2d 666, 670 (2000) (citation omitted). "Our courts have generally taken a restrictive view of the substantial right exception." Id.
In Sharpe, our Supreme Court noted that: "An order compelling discovery is generally not immediately appealable because it is interlocutory and does not affect a substantial right that would be lost if the ruling were not reviewed before final judgment." Sharpe, 351 N.C. at 163, 522 S.E.2d at 579. However, the Sharpe Court also held that when "a party asserts a statutory privilege which directly relates to the matter to be disclosed under an interlocutory discovery order, and the assertion of such privilege is not otherwise frivolous or insubstantial, the challenged order affects a substantial right[.]" Id. at 166, 522 S.E.2d at 581. Another exception to the general rule that interlocutory discovery orders are not immediately appealable was set forth in Willis v. Power Co., 291 N.C. 19, 229 S.E.2d 191 (1976), in which our Supreme Court held
that when a civil litigant is adjudged to be in contempt for failing to comply with an earlier discovery order, the contempt proceeding is both civil and criminal in nature and the order is immediately appealable for the purpose of testing the validity both of the original discovery order and the contempt order itself where, as here, the contemnor can purge himself of the adjudication of contempt only by, in effect, complying with the discovery order of which he essentially complains.Id. at 30, 229 S.E.2d at 198. In Wright v. Smith, an unpublished opinion of this Court, we recognized that the above-discussed exceptions are the only "two narrow exceptions to the rule against direct appeal from discovery orders: where such orders include a finding of contempt or other sanctions, . . . or where a party asserts a statutory privilege which directly relates to the matter to be disclosed under an interlocutory discovery order." Wright v. Smith, 177 N.C. App. 289, 628 S.E.2d 259, 2006 WL 997776 at *2 (2006) (unpublished opinion) (citations omitted). We have been unable to find any other exceptions to this rule and agree with the observation in Wright that there are "two narrow exceptions" to the general rule against direct appeal from discovery orders.
We note that Plaintiff appeals orders denying a motion to modify a discovery order and a motion to reconsider. Therefore, the orders appealed by Plaintiff concern Plaintiff's selection of expert witnesses and neither order: (1) imposes contempt as contemplated in Willis; nor (2) relates to an asserted statutory privilege as contemplated in Sharpe. Therefore, neither of the orders from which Plaintiff appeals is of the type governed by either exception to the general rule - that discovery orders are not immediately appealable.
Nevertheless, Plaintiff contends that the orders from which he appeals affect his substantial rights for two reasons. First, citing Transportation, Inc. v. Strick Corp., 291 N.C. 618, 231 S.E.2d 597 (1977), Plaintiff argues that "an order forbidding a party from presenting expert witnesses on the ground that the deadline for designating experts has expired affects a substantial right." Next, Plaintiff also argues that "under the circumstances of the present case, the order amounts, in practical effect, to a denial of counsel."
We are not persuaded by Plaintiff's argument that Transportation, Inc. states that a substantial right is affected in these circumstances. In his brief, Plaintiff summarizes the holding of Transportation, Inc. as: "Court of Appeals erred in dismissing appeal from order refusing to allow defendant to present testimony of additional expert after close of discovery because the order affected a substantial right and thus was immediately appealable[.]" Reviewing Transportation, Inc., however, we find our Supreme Court noted that
[t]he order of the Superior Court prohibiting the taking of the deposition of [an out of state witness] by the defendant effectively precludes the defendant from introducing evidence of the "readings" concerning the hardness of the metal obtained by the tests which [the witness] made. Thus, the order affects a substantial right of the defendant and is appealable.Transportation, Inc., 291 N.C. at 625, 231 S.E.2d at 601. Further, the Transportation, Inc. Court noted that "the 'readings' obtained upon the tests made by [the witness] are quite material in the determination of the critical question remaining for decision and are not merely cumulative evidence." Id. at 624, 231 S.E.2d at 600.
We find the circumstances in the present case distinguishable from Transportation, Inc. While Transportation, Inc. involved an order that prohibited the deposition of an out-of-state witness who was the only source of material evidence, the present case involves a request to conduct further discovery regarding expert witnesses in a case where experts were already designated. In the present case, Plaintiff was allowed to designate expert witnesses selected by Ms. Zaman and Mr. Elam. The depositions of the expert witnesses were overseen and conducted by Mr. Elam, and the discovery process was "handled by" Mr. Elam. Plaintiff is simply prohibited from arranging new expert witnesses at this point in the pre-trial procedure. Because we find Transportation, Inc. distinguishable, Plaintiff's argument is without merit.
We next address Plaintiff's argument that "under the circumstances of the present case, the order [denying Plaintiff's motion to amend discovery] amounts, in practical effect, to a denial of counsel." Plaintiff contends that he will be unable to retain an attorney to represent him in this matter unless the discovery orders are modified because no attorney will take Plaintiff's case unless the attorney is allowed to conduct his or her own discovery. Plaintiff asserts that "[a]n order disqualifying counsel, although interlocutory, is immediately appealable because it affects a substantial right." However, we note that neither of the orders from which Plaintiff appeals disqualified his counsel. As stated above, the orders from which Plaintiff appeals were (1) an order denying the modification of a discovery schedule and (2) an order denying the reconsideration of that order. Further, Plaintiff's two attorneys became uninvolved in this matter after they moved to withdraw as counsel. Mr. Elam was allowed to withdraw by the trial court in an order entered 13 November 2009; Ms. Zaman was allowed to withdraw by order entered 15 March 2010.
We do note that, at the 10 March 2010 hearing, some attorneys were reluctant to become Plaintiff's counsel and that discovery was among the reasons cited by those attorneys. However, we are not persuaded by Plaintiff to interpret his difficulty in finding a replacement attorney for Ms. Zaman -after having chosen not to remain with Mr. Elam - as giving the trial court's discovery orders the effect of denying Plaintiff representation. On these facts, we are not persuaded to expand the two narrow exceptions to the rule against direct appeal from discovery orders. We must therefore dismiss Plaintiff's appeal as interlocutory.
Dismissed.
Judges ERVIN and McCULLOUGH concur.
Report per Rule 30(e).