{ "id": 6788534, "name": "MARSHALL KELLY BRITT, JR., as Administrator of the ESTATE OF DANA ROBINSON BRITT, Plaintiff v. KATHLEEN CUSICK, et. al., Defendants", "name_abbreviation": "Britt v. Cusick", "decision_date": "2014-01-07", "docket_number": "No. COA13-387", "first_page": "528", "last_page": "533", "citations": [ { "type": "official", "cite": "231 N.C. App. 528" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "610 S.E.2d 280", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12632552 ], "year": 2005, "pin_cites": [ { "page": "282" } ], "opinion_index": 0, "case_paths": [ "/se2d/610/0280-01" ] }, { "cite": "533 S.E.2d 483", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "486" } ], "opinion_index": 0 }, { "cite": "139 N.C. App. 409", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9496862 ], "year": 2000, "pin_cites": [ { "page": "413" } ], "opinion_index": 0, "case_paths": [ "/nc-app/139/0409-01" ] }, { "cite": "161 S.E.2d 233", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "234" } ], "opinion_index": 0 }, { "cite": "1 N.C. App. 318", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552582 ], "year": 1968, "pin_cites": [ { "page": "319, 320" } ], "opinion_index": 0, "case_paths": [ "/nc-app/1/0318-01" ] }, { "cite": "231 S.E.2d 597", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 11, "year": 1977, "pin_cites": [ { "page": "623" }, { "page": "600" }, { "page": "620-21, 623" }, { "page": "599, 600" }, { "page": "625, 629" }, { "page": "601, 603" }, { "page": "629" }, { "page": "603" }, { "page": "625, 629" }, { "page": "601, 603" } ], "opinion_index": 0 }, { "cite": "291 N.C. 618", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558843 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/291/0618-01" ] }, { "cite": "169 N.C. App. 451", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8470902 ], "year": 2005, "pin_cites": [ { "page": "453" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0451-01" ] }, { "cite": "271 S.E.2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "page": "523" }, { "page": "524" } ], "opinion_index": 0 }, { "cite": "49 N.C. App. 446", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521977 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "447" }, { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/nc-app/49/0446-01" ] }, { "cite": "299 S.E.2d 777", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "780" } ], "opinion_index": 0 }, { "cite": "60 N.C. App. 331", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520808 ], "year": 1983, "pin_cites": [ { "page": "335" } ], "opinion_index": 0, "case_paths": [ "/nc-app/60/0331-01" ] }, { "cite": "526 S.E.2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "670", "parenthetical": "quoting Blackwelder v. State Dep't of Human Res., 60 N.C. App. 331, 335, 299 S.E.2d 777, 780 (1983)" } ], "opinion_index": 0 }, { "cite": "137 N.C. App. 138", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11092295 ], "year": 2000, "pin_cites": [ { "page": "142", "parenthetical": "quoting Blackwelder v. State Dep't of Human Res., 60 N.C. App. 331, 335, 299 S.E.2d 777, 780 (1983)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/137/0138-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-277", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1996, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "522 S.E.2d 577", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "page": "579", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 1-277(a) (1996)" } ], "opinion_index": 0 }, { "cite": "351 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1155801 ], "year": 1999, "pin_cites": [ { "page": "162", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 1-277(a) (1996)" } ], "opinion_index": 0, "case_paths": [ "/nc/351/0159-01" ] }, { "cite": "392 S.E.2d 735", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "736" } ], "opinion_index": 0 }, { "cite": "326 N.C. 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307026 ], "year": 1990, "pin_cites": [ { "page": "725" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0723-01" ] }, { "cite": "57 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1950, "pin_cites": [ { "page": "381" } ], "opinion_index": 0 }, { "cite": "231 N.C. 357", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629835 ], "year": 1950, "pin_cites": [ { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/nc/231/0357-01" ] } ], "analysis": { "cardinality": 656, "char_count": 12945, "ocr_confidence": 0.728, "pagerank": { "raw": 5.7150404661083105e-08, "percentile": 0.35860140880800384 }, "sha256": "2a1c1784467bb7b8da66f6c997b8436530deee073d6cffdbd8e7cedc53bd4e32", "simhash": "1:0beb0f6c36ea0d72", "word_count": 1970 }, "last_updated": "2023-07-14T19:32:40.304740+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge MARTIN and Judge STROUD concur." ], "parties": [ "MARSHALL KELLY BRITT, JR., as Administrator of the ESTATE OF DANA ROBINSON BRITT, Plaintiff v. KATHLEEN CUSICK, et. al., Defendants" ], "opinions": [ { "text": "GEER, Judge.\nDefendants Kathleen Cusick, the Charlotte-Mecklenburg Hospital Authority, doing business as Carolinas Healthcare System and doing business as Carolinas Medical Center, and Carolinas Physician Network, Inc., doing business as Charlotte Obstetrics and Gynecologic Associates, appeal from the trial court\u2019s order granting the motion of plaintiff Marshall Kelly Britt, Jr., as administrator of the Estate of Dana Robinson Britt, to quash defendants\u2019 notice of deposition and his motion for a protective order. Defendants\u2019 interlocutory appeal is from a discovery order that barred defendants from obtaining discovery by one means, but expressly permitted defendants to both seek the discoveiy at issue by another means and to move the trial court to modify the order if necessary to further the interests of justice. Under these circumstances, we hold that defendants\u2019 interlocutory appeal does not affect a substantial right, and we, therefore, dismiss the appeal.\nFacts\nOn 30 September 2011, plaintiff filed an action against defendants, asserting claims for medical negligence, wrongful death, and \u201cMISREPRESENTATION!,] FAILURE TO PRODUCE MEDICAL RECORDS/SPOILATION,\u201d stemming from Ms. Britt\u2019s death following an emergency caesarean section surgery. With respect to the claim that defendants wrongfully failed to produce medical records, the complaint alleged that during the course of plaintiff\u2019s law firm\u2019s investigation into whether Ms. Britt\u2019s death was caused by defendants\u2019 negligence, plaintiff\u2019s law firm repeatedly requested medical records from defendants that defendants wrongfully failed to produce, either intentionally or as a result of defendants\u2019 failure to exercise reasonable care in compiling medical records and delivering them to plaintiff.\nMany of the allegations relating to this claim were based upon conversations between one of plaintiff\u2019s law firm\u2019s paralegals and various employees of defendants. The complaint alleged that plaintiff was entitled to \u201can inference that Defendants withheld evidence and/or destroyed evidence because that evidence ... would have been adverse to Defendants.\u201d The complaint further alleged that as a result of defendants\u2019 failure to produce the requested medical records, in breach of certain statutory duties owed to plaintiff, plaintiff had been damaged in excess of $10,000.00.\nOn 5 December 2011, defendants filed an answer denying the material allegations of the complaint and a motion to dismiss the wrongful failure to produce medical records claim pursuant to Rule 12(b)(6) of the Rules of Civil Procedure. Apparently, defendants subsequently served a notice of deposition for Beth Ferguson, the paralegal with plaintiffs law firm, although the notice does not appear in the record on appeal. On 20 September 2012, plaintiff filed a motion to quash defendants\u2019 notice of deposition and for a protective order pursuant to Rule 26(c) of the Rules of Civil Procedure.\nIn the motion, plaintiff alleged that Ms. Ferguson had requested Ms. Britt\u2019s medical records from defendants and had spoken with employees of defendants about the medical records \u201c[o]n a number of occasions.\u201d The motion further alleged that defendants had served plaintiff\u2019s counsel with a notice of deposition for Ms. Ferguson, but that allowing an oral deposition of Ms. Ferguson would \u201cinevitably lead to the discovery of [plaintiff\u2019s] counsel\u2019s mental impressions and thought process.\u201d Such a deposition would, plaintiff alleged, constitute an \u201cunreasonable annoyance, embarrassment, oppression, undue burden, and/or expense\u201d and would violate the attorney client and work product privileges. Accordingly, plaintiff asked the court to enter an order quashing the deposition notice and prohibiting defendants from taking Ms. Ferguson\u2019s oral deposition or otherwise eliciting testimony regarding privileged information.\nOn 28 November 2012, the trial court entered an order granting plaintiff\u2019s motion to quash defendants\u2019 notice of deposition of Ms. Ferguson and motion for a protective order. The order provided that defendants\u2019 discovery of Ms. Ferguson was limited as follows: (1) \u201cPlaintiff shall produce Beth Ferguson\u2019s testimony in written form to the Defendants;\u201d (2) \u201c[a]fter receiving Ms. Ferguson\u2019s written form testimony, the Defendants may ask follow-up written questions to Ms. Ferguson[;]\u201d (3) \u201cPlaintiff shall promptly respond to these follow-up questions;\u201d and (4) \u201cMs. Ferguson may testify live at trial, but her testimony at trial shall be limited to information produced in her written form testimony and responses to Defendants [sic] follow-up written questions.\u201d The order further provided, \u201cThis Order may be modified by future Court Order if required in the interest of justice.\u201d Defendants appealed the trial court\u2019s order to this Court.\nDiscussion\nWe must first address this Court\u2019s jurisdiction over this appeal. \u201cAn interlocutory order is one made during the pendency of an action, which does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy.\u201d Veazey v. City of Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (1950). The appealed discovery order in this case is interlocutory because it fails to settle and determine the entire controversy.\n\u201cGenerally, there is no right of immediate appeal from interlocutory orders and judgments.\u201d Goldston v. Am. Motors Corp., 326 N.C. 723, 725, 392 S.E.2d 735, 736 (1990). However, \u201cimmediate appeal is available from an interlocutory order or judgment which affects a \u2018substantial right.\u2019 \u201d Sharpe v. Worland, 351 N.C. 159, 162, 522 S.E.2d 577, 579 (1999) (quoting N.C. Gen. Stat. \u00a7 1-277(a) (1996)). A substantial right is \u201c \u2018one which will clearly be lost or irremediably adversely affected if the order is not renewable before final judgment.\u2019 \u201d Turner v. Norfolk S. Corp., 137 N.C. App. 138, 142, 526 S.E.2d 666, 670 (2000) (quoting Blackwelder v. State Dep\u2019t of Human Res., 60 N.C. App. 331, 335, 299 S.E.2d 777, 780 (1983)).\nGenerally, \u201corders denying or allowing discovery are not appealable since they are interlocutory and do not affect a substantial right which would be lost if the ruling were not reviewed before final judgment.\u201d Dworsky v. Travelers Ins. Co., 49 N.C. App. 446, 447, 271 S.E.2d 522, 523 (1980). As this Court has explained: \u201cOur appellate courts have recognized very limited exceptions to this general rule, holding that an order compelling discovery might affect a substantial right, and thus allow immediate appeal, if it either imposes sanctions on the party contesting the discovery, or requires the production of materials protected by a recognized privilege.\u201d Arnold v. City of Asheville, 169 N.C. App. 451, 453, 610 S.E.2d 280, 282 (2005).\nAlthough neither of these exceptions apply in this case, defendants argue that their appeal affects a substantial right under Tennessee-Carolina Transp., Inc. v. Strick Corp., 291 N.C. 618, 231 S.E.2d 597 (1977), since the trial court\u2019s order, according to defendants, effectively precluded them from discovering highly material evidence through the oral deposition of the only witness with personal knowledge of the relevant matters.\nIn Tennessee-Carolina Transportation, the defendant sold 150 trailers to the plaintiff, and the plaintiff subsequently sued the defendant for breach of an implied warranty of fitness based upon allegations that certain metal in the trailers did not \u201cmeasure up to the proper degree of hardness.\u201d Id. at 623, 231 S.E.2d at 600. Prior to trial, the defendant appealed from the trial court\u2019s discovery order prohibiting the defendant from taking the deposition of an out-of-state expert witness who, at the plaintiff\u2019s request, had conducted tests on some of the trailers to determine the hardness of the relevant metal. Id. at 620-21, 623, 231 S.E.2d at 599, 600.\nThe Supreme Court held that the appealed order affected a substantial right of the defendant because the order \u201ceffectively preclude [d] the defendant from introducing evidence of the \u2018readings\u2019 concerning the hardness of the metal obtained by the tests which [the expert] made\u201d - evidence that was \u201chighly material to the determination of the critical question to be resolved\u201d at trial. Id. at 625, 629, 231 S.E.2d at 601, 603. The Court further noted that nothing in the record indicated that the taking of the expert\u2019s deposition would have delayed the trial or would have caused the plaintiff or the expert any unreasonable annoyance, embarrassment, oppression, or undue burden or expense. Id. at 629,231 S.E.2d at 603.\nIn contrast, here, the trial court\u2019s order did not \u201ceffectively preclude\u201d defendants from discovering relevant information from Ms. Ferguson. Rather, the trial court\u2019s order expressly provided for discovery from Ms. Ferguson, but, because Ms. Ferguson was a paralegal for plaintiffs counsel, delimited the manner of discovery by providing that plaintiff would produce Ms. Ferguson\u2019s intended testimony in writing and then she would be required to respond to written questions submitted by defendants. Importantly, however, the order further provided that it \u201cmay be modified by future Court Order if required in the interest of justice.\u201d Thus, if the written discovery proved inadequate, defendants could then move the trial court to modify the protective order to .allow an oral deposition of Ms. Ferguson or other appropriate discovery under the circumstances.\nBecause defendants have not pursued the discovery authorized by the trial court, they cannot show that this order regulating the manner of discovery, but not prohibiting it, \u201ceffectively preclude [d] the defendants] from introducing evidence\u201d that was \u201chighly material to the determination of the critical question to be resolved\u201d at trial. Id. at 625, 629, 231 S.E.2d at 601, 603.\nThis Court has previously held that an order denying an overly broad request for discovery does not affect a substantial right under Tennessee-Carolina Transportation when the record does not specifically show what \u201crelevant and material information\u201d the appellant was barred from obtaining as a result of the discovery order. Dworsky, 49 N.C. App. at 448, 271 S.E.2d at 524. Implicit in Dworsky is that the appellant could submit a request that did not amount to a fishing expedition. Id.\nHere, similarly, defendants have not shown what relevant and material information they would obtain in an oral deposition that they cannot obtain using the procedure adopted by the trial court. While such a showing might be possible after completing the discovery allowed by the trial court, defendants cannot yet make that showing. Accordingly, as in Dworsky, Tennessee-Carolina Transportation does not apply here. We, therefore, dismiss defendants\u2019appeal as interlocutoiy. See also Carolina Overall Corp. v. E. Carolina Linen Supply, Inc., 1 N.C. App. 318, 319, 320, 161 S.E.2d 233, 234 (1968) (dismissing, as interlocutory, order denying in part defendant\u2019s motion for production and inspection of documents but permitting defendants \u201c \u2018to come again and re-apply for production and inspection of documents specifying in more and greater detail the items sought to be discovered,\u2019 \u201d when order \u201cadequately protected the rights of all parties in this matter and no substantial right of the defendant was prejudiced\u201d). Cf. Norris v. Sattler, 139 N.C. App. 409, 413, 533 S.E.2d 483, 486 (2000) (holding interlocutory discovery order barring defendant hospital from ex parte contact with plaintiff\u2019s treating physician regarding plaintiff\u2019s case did not affect substantial right since order did not preclude defendant from seeking discovery of physician through \u201cmulti-varied discovery methods detailed in Rule 26\u201d of Rules of Civil Procedure).\nDismissed.\nChief Judge MARTIN and Judge STROUD concur.", "type": "majority", "author": "GEER, Judge." } ], "attorneys": [ "Conrad, Trosch & Kemmy, P.A., by William Conrad Trosch; and Janet, Jenner & Suggs, LLC, by Kenneth M.. Suggs, for plaintiff-appellee.", "Parker Poe Adams & Bernstein LLP, by Harvey L. Gosper and John D. Branson, for defendants-appellants." ], "corrections": "", "head_matter": "MARSHALL KELLY BRITT, JR., as Administrator of the ESTATE OF DANA ROBINSON BRITT, Plaintiff v. KATHLEEN CUSICK, et. al., Defendants\nNo. COA13-387\nFiled 7 January 2014\nAppeal and Error \u2014 interlocutory orders and appeals \u2014 no substantial right\nDefendants\u2019 appeal in a medical negligence and wrongful death case from an interlocutory order was dismissed. Defendants\u2019 appeal was from a discovery order that barred them from obtaining discovery by one means, but expressly permitted them to both seek the discovery at issue by another means and to move the trial court to modify the order if necessary to further the interests of justice. Under these circumstances, defendants\u2019 appeal did not affect a substantial right.\nAppeal by defendants from order entered 28 November 2012 by Judge James W. Morgan in Mecklenburg County Superior Court. Heard in the Court of Appeals 9 September 2013.\nConrad, Trosch & Kemmy, P.A., by William Conrad Trosch; and Janet, Jenner & Suggs, LLC, by Kenneth M.. Suggs, for plaintiff-appellee.\nParker Poe Adams & Bernstein LLP, by Harvey L. Gosper and John D. Branson, for defendants-appellants." }, "file_name": "0528-01", "first_page_order": 538, "last_page_order": 543 }