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2008-UP-274 - Estate of King v. Richland County and Prison Health Services

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


The Estate of George King by and through Margaret Coe King as the Duly Appointed Personal Representative, Respondent,

v.

Richland County and Prison Health Services, Inc., Defendants,

of whom Prison Health Services, Inc. is the Appellant.


Appeal From Richland County
 James R. Barber, Circuit Court Judge


Unpublished Opinion No. 2008-UP-274
Heard April 10, 2008 – Filed May 21, 2008


DISMISSED


Richard A. Harpootlian and Graham L. Newman, both of Columbia, for Appellant.

J. Edward Bell, III, and C. Carter Elliott, Jr., both of Georgetown, for Respondent.

PER CURIAM:  Prison Health Services, Inc. (Prison Health) appeals from two discovery orders.  We dismiss the appeal as interlocutory.

FACTS

On January 5, 2004, the Estate of George King (the Estate) brought claims for negligence and wrongful death against Richland County.  On February 28, 2005, the complaint was amended to include Prison Health as a defendant.  The complaint alleged Richland County and Prison Health failed to provide adequate medical care to King after he was injured while incarcerated at the Alvin S. Glenn Detention Center in Richland County, and King died as a result.  At the time, Prison Health provided medical services for the Detention Center.

On September 26, 2005, the Estate sent Rule 30(b)(5) and 30(b)(6) deposition notices to Prison Health, including requests for the production of documents at the deposition.  Subsequently, Prison Health filed motions to quash portions of the deposition notices, and the Estate responded by filing a motion to compel Prison Health to produce the requested documents and answers.  Following a hearing, Judge Reginald Lloyd denied Prison Health’s motions to quash, and granted the Estate’s motion to compel on January 31, 2006.

The Estate attempted to move forward with the depositions; however, the Estate contended the information Prison Health provided did not meet the requirements of Judge Lloyd’s order and subsequently filed a motion to enforce the court’s order.  On September 8, 2006, the matter was heard before Judge James R. Barber,[1] who requested the parties reach an agreement on the information to be provided by Prison Health; however, the parties were unable to agree.  Ultimately, Judge Barber issued an order granting the Estate’s motion.  Prison Health responded with a Rule 59(e) motion to alter or amend the order. 

On October 10, 2006, Judge Barber filed an amended order, as well as a qualified protective order.  The amended order required Prison Health to comply with Judge Lloyd’s initial order by providing all information and witnesses necessary to fully and completely respond to the Rule 30(b)(5) and 30(b)(6) deposition notices.  Additionally, the order required Prison Health to produce all materials by October 13, 2006.     

On October 20, 2006, Prison Health filed and served an amended notice of appeal.  Subsequently, the Estate responded by filing a motion to dismiss the appeal, which was denied with leave to argue the issue of appealability.  In response, the parties filed briefs arguing both the issue of appealability as well as the merits of the appeal itself.   

LAW/ANALYSIS

“The right of appeal arises from and is controlled by statutory law.”  Ex parte Capital U-Drive-It, Inc., 369 S.C. 1, 6, 630 S.E.2d 464, 467 (2006).  “An appeal ordinarily may be pursued only after a party has obtained a final judgment.”  Id.; S.C.Code Ann. § 14-3-330 (1976); Rule 72, SCRCP; Rule 201(a), SCACR.  “The determination of whether a party may immediately appeal an order issued before or during trial is governed primarily by S.C. Code Ann. § 14-3-330.”  Ex parte Capital U-Drive-It, Inc., at 6, 630 S.E.2d at 467.  “Absent a specialized statute, an order must fall into one of several categories set forth in Section 14-3-330 in order to be immediately appealable.”  Id.  Courts in South Carolina have generally held that orders directing a party to participate in discovery are interlocutory and not directly appealable under section 14-3-330.  See, e.g., Ex parte Whetstone, 289 S.C. 580, 580, 347 S.E.2d 881, 881 (1986); Patterson v. Specter Broadcasting, 287 S.C. 249, 335 S.E.2d 803 (1985); Lowndes Products, Inc. v. Brower, 262 S.C. 431, 205 S.E.2d 184 (1974).

In an analogous case involving privileged information, the supreme court held a discovery order was not immediately appealable because “an order compelling discovery does not ordinarily involve the merits of the case.” Tucker v. Honda of South Carolina Mfg., Inc., 354 S.C. 574, 577, 582 S.E.2d 405, 406 (2003).  Furthermore, the court explained “[s]ince a contempt order is final in nature, an order compelling discovery may be appealed only after the trial court holds a party in contempt.” Id. at 577, 583 S.E.2d at 406-07.  “Thus, a party may comply with the order and waive any right to challenge it on appeal or refuse to comply with the order, be cited for contempt, and appeal.”  Id. at 577, 582 S.E.2d at 407. 

Notwithstanding the holdings of the cases above, Prison Health argues the order is appealable because 1) it requires the production of privileged and confidential material and 2) compliance with the order would prevent an appeal of the issues.  As explained in the Tucker case, Prison Health may appeal if it is held in contempt.  Furthermore, section 14-3-330(2)(a), which applies to orders affecting substantial rights which “in effect determine[] the action and prevent[] a judgment from which an appeal might be taken or discontinues the action,” does not apply to the present case. (emphasis added).  The limited civil cases in which section 14-3-330(2)(a) has been applied to discovery orders are distinguishable because in those cases the subject matter of the entire litigation was the protection of information; therefore, the discovery orders compelling the production of the information effectively determined the actions and ended the litigation as moot.  See, e.g., Knight Pub. Co. v. Univ. of South Carolina, 295 S.C. 31, 32, 367 S.E.2d 20, 21 (1988) (“The appealed order allows discovery of documents that respondents ultimately seek disclosed as the subject of these FOIA actions. This order is directly appealable under S.C. Code Ann. § 14-3-330(2)(a) (1976) because it in effect determines the action and prevents an appealable judgment.”), overruled on other grounds, Simpson v. Sanders, 314 S.C. 413, 445 S.E.2d 93 (1994).   

The discovery order in the instant case, however, does not effectively meet the requirements for immediate appealability.  The Estate’s causes of action for negligence and wrongful death are not so intimately associated with the production of the requested documents that the order itself determines the subject matter of the action.  Indeed, regardless of whether the documents are actually produced, the Estate’s action would proceed to further stages of the litigation. Therefore, section 14-3-330(2)(a) does not provide for immediate appeal of the order.  Prison Health’s appeal is interlocutory and premature.  Since Prison Health has not refused to comply with the order and has not been found in contempt, the discovery order remains interlocutory and unappealable. 

Furthermore, the order about which Prison Health complains affords a mechanism by which Prison Health can seek additional protection for information believed to be protected under HIPPA or more stringent state law.  Judge Barber’s order specifically states that all materials covered by HIPPA “shall be produced without redaction unless required by HIPPA or a state statute which is more stringent than HIPPA.”  Moreover, the order provides an additional opportunity to seek a subsequent court order if a determination is made that the information requested is additionally protected by state law.  Further, in the event Prison Health refuses to turn over information it deems protected, it will have the opportunity to show cause before the trial court why it is not in contempt.  Therefore, the discovery order at issue herein is not immediately appealable.[2]

Finally, any assertion that Judge Barber improperly enforced or altered Judge Lloyd’s order, or that a final order had not yet been issued by Judge Lloyd, does not convert this matter from an interlocutory order to a final order.

Accordingly, Prison Health’s appeal is interlocutory and hereby

DISMISSED.

HEARN, C.J., PIEPER, J., and GOOLSBY, A.J., concur.


[1] In the time between Judge Lloyd’s initial order and the Estate’s motion, Judge Lloyd had left the bench. 

[2] In McGee v. Bruce Hospital System, 312 S.C. 58, 439 S.E.2d 257 (1993), the Supreme Court reviewed on appeal a discovery order pertaining to the Peer Review Statute and that decision was relied upon by a panel of this court in Wieters v. Bon-Secours-St. Francis Xavier Hosp., Inc., Op. No. 4374 (S.C. Ct. App. filed April 23, 2008) (Shearouse Adv. Sh. No. at 16 at 75).  However, we find McGee distinguishable since that case was being reviewed by the Supreme Court pursuant to a writ of certiorari and any issue of the interlocutory nature of the order was not addressed.  Moreover, the discovery orders at issue in McGee and Wieters were unlike the order in the case sub judice which clearly allowed for the withholding of HIPPA information further protected by state law and additionally provided for further court review if necessary to obtain such information.  The open-ended nature of the order herein clearly makes it interlocutory.