Bjornberg v. Powell

Bjornberg v. Powell (99-181); 169 Vt. 586; 733 A.2d 84

[Filed 01-Jun-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 99-181

                              APRIL TERM, 1999


Sharon Bjornberg	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Chittenden Superior Court
                                       }	
Douglas Powell and the Burton	       }
Corporation	                       }	DOCKET NO. S257-98CnC


             In the above-entitled cause, the Clerk will enter:

       Because the issues defendant seeks to have reviewed do not make this
  one of those rare  cases in which extraordinary relief is an appropriate
  means for challenging a pretrial discovery  order on the ground that the
  trial court abused its discretion, defendant's petition for extraordinary 
  relief is denied.  See Chrysler Corp. v. Makovec, 157 Vt. 84, 88-89, 596 A.2d 1284, 1287  (1991); Monti v. State, 151 Vt. 609, 611, 563 A.2d 629,
  630 (1989).  Further, because defendant  has failed to demonstrate that the
  superior court abused its discretion in denying permission to  appeal,
  defendant's request for interlocutory appeal is denied.



       DOOLEY, J., dissenting.  Although phrased as an interlocutory appeal,
  or a petition for  extraordinary relief, this is a true collateral order
  appeal.  The superior court has ordered that  plaintiff provide defendant's
  counsel copies of certain mental health and other medical records,  but
  that defendant's counsel "must keep records in his office and not
  duplicate."  Arguing that the  limitation on use is not supported by the
  record in this case, defendant seeks review of that  limitation.  Our test
  for whether a collateral order appeal is appropriate is whether the ruling
  to  be appealed "conclusively determines a disputed question," "resolves an
  important issue  completely separate from the merits of the action" and
  "will be effectively unreviewable on  appeal."  V.R.A.P. 5.1(a).  I doubt
  there is any dispute that this appeal meets that test.

       Although we once treated collateral order appeals as
  non-discretionary, our most recent  decisions make clear that "collateral
  appeals are discretionary interlocutory appeals."  In re J.G.,  160 Vt.
  250, 252, 627 A.2d 362, 363 (1993).  This does not mean, however, that our
  discretion  is standardless or unlimited, as if we were a certiorari court. 
  See id. at 255, 627 A.2d  at 365.  J.G. involved review of a decision to
  transfer a juvenile delinquency decision to district court to  proceed as
  an ordinary criminal case, despite the age of the defendant.  We held:

 

     The crucial inquiry is whether the transfer decision will be effectively 
     unreviewable.  Deciding this question requires an examination of 
     whether the stigma that would result from a public hearing and the 
     potential for incarceration outweighs this Court's policy against 
     piecemeal review and the injustice that would result from delay of the 
     proceedings on the merits of the case.

  Id. (citations omitted).

       The interests weighing against taking the appeal, as explained in
  J.G., involve the  disruption of the hearing and appellate process that may
  result while this Court considers an issue  collateral to the merits.  The
  disruption occurs because the case must be stayed pending the  decision of
  the collateral order appeal.  Here, there would be no stay and no delay in
  processing  the merits of the case.  No interest weighs against collateral
  order review.

       The lack of disruption of the trial process is exactly why the
  standard used by the majority  is inapplicable in this case.  In Castle v.
  Sherburne Corp., 141 Vt. 157, 163, 446 A.2d 350, 352-53 (1982), we held
  that discovery orders are ordinarily not subject to interlocutory review 
  because:


     Even if such orders can be said to raise controlling questions of law, 
     they will rarely have the potential to materially advance the termination 
     of the litigation.  On the contrary, interlocutory appeals from discovery 
     orders will usually lead to piecemeal review and its attendant delays.

  Understanding that Castle foreclosed interlocutory review, the plaintiff in
  Ley v. Dall, 150 Vt.  383, 553 A.2d 562 (1988) attempted to get a discovery
  dispute before this Court by a petition for  extraordinary relief.  We
  stressed that extraordinary relief cannot be used to end run the 
  appropriate limit on interlocutory review and thus must be available only
  sparingly in these  circumstances.  Id. at 385, 553 A.2d  at 563.  From that
  policy, we adopted the high threshold for  the use of extraordinary relief
  in discovery disputes applied by the majority here.  Id. at 386, 553 A.2d 
  at 564.

       In this case, defendant is not attempting to end run the appropriate
  limits on the availability  of interlocutory review.  The applicable
  interlocutory review standard plainly authorizes appellate  review in this
  unusual circumstance because there will be no delays caused by piecemeal
  review.  We do not have to get into restrictive extraordinary relief law,
  and the standard for when  extraordinary relief is available does not
  apply.

       Although I cannot find a reason to refuse to take this appeal, there
  are many reasons to take  it.  The protective order was issued in this case
  because plaintiff's counsel alleged that the  insurance carrier funding the
  defense of the case kept medical records in a "computerized  nationwide
  data stockpile" for use in other cases and for sharing with other carriers. 
  If this is a  ground for a protective order in this case, it is also a
  ground in any other case in which the carrier  is involved.  Rather than
  ducking the question and leaving it to endless protective order disputes, 
  we should review the decision in this case.  Indeed, if we conclude that
  the protective 

 

  order was appropriate, we should consider a rule amendment on the use of
  discovery material,  rather than continuing case-by-case resolution.

       Other than using an inapplicable standard to determine whether to take
  this case, the  majority has not told us why it is denying review, and I
  cannot find a proper reason.   Accordingly, I dissent from the decision to
  deny the appeal.



                                BY THE COURT:


  Dissenting:
                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice
  _______________________________
  John A. Dooley, Associate Justice
                                       _______________________________________
                                       James L. Morse, Associate Justice
  _______________________________
  Denise R. Johnson, Associate Justice
                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice