MATERIALS ANALYTICAL SERVICES, LLC v. JOHNSON & JOHNSON ( 2023 )

Court of Appeals
of the State of Georgia
ATLANTA,____________________
November 29, 2023
The Court of Appeals hereby passes the following order:
A24I0074. MATERIAL ANALYTICAL SERVICES LLC, et al v. JOHNSON &
JOHNSON, et al.
This application for an interlocutory appeal arises out of a products liability
action filed by Matthew Streck against Johnson & Johnson and Chattem, Inc. in
Jefferson County, Kentucky. Streck alleged that he had suffered injuries caused by
asbestos in Johnson’s Baby Powder (manufactured by Johnson & Johnson) and Gold
Bond Foot Powder (manufactured by Chattem).«Exh. 5 at 32» Streck retained
Materials Analytical Services, Inc. (“MAS”) to test samples of the products.«Exh. 5
at 33» He also retained Dr. William Longo, the principal owner of MAS, to provide
expert testimony based on those test results.«Id.» When deposed, Dr. Longo testified
that a MAS employee, Paul Hess, conducted tests on certain samples of the products
manufactured by Chattem. «Exh. 4 at 35 (Longo Depo. at 49)» Given Longo’s
testimony, Chattem moved to compel Hess’s deposition.«See Exh. 5 at 29» The
Kentucky court denied that motion, stating that it “would not order [Streck] to
produce Mr. Hess.”«Exh. 5 at 29» The Kentucky order further stated, however, that
the court would “support any process [Chattem] wish[es] to utilize in an attempt to
subpoena [Hess].”«Id.»
Chattem subsequently subpoenaed Hess for a deposition pursuant to the
Uniform Interstate Deposition and Discovery Act, OCGA § 24-13-110, et seq.«Exh.
4 at 19» Because Hess is a resident of Cobb County, MAS filed a motion in Cobb
County Superior Court seeking to quash the subpoena.1 Following a hearing, the trial
court denied the motion to quash and ordered Hess to appear for a deposition on a
date agreed upon by counsel. «Order at 2» The trial court granted MAS a certificate
of immediate review, and MAS and Hess then filed this timely application for an
interlocutory appeal.
Under Georgia law, “a discovery order directed at a disinterested third party is
treated as an immediately appealable final order because the third party presumably
lacks a sufficient stake in the proceeding to risk contempt by refusing
compliance.”Hickey v. RREF BB SBL Acquisitions, LLC, 336 Ga. App. 411, 413 (1)
(785 SE2d 72) (2016) (punctuation omitted). See also Benchmark Rehabilitation
Partners, LLC v. SDJ Logistics, LLC, 367 Ga. App. 203, 204 (2) (885 SE2d 224)
(2023) (holding that an order denying a disinterested third party’s motion to quash a
subpoena is directly appealable under the collateral order doctrine). Here, the parties
seeking to appeal the trial court order (NAS and Hess) are disinterested third parties,
as neither is a party to the underlying litigation. See Speedy Care Transportation v.
George, 348 Ga. App. 325, 326, n.1 (822 SE2d 687) (2018) (identifying a
disinterested third party as one who is not a party to the case in which discovery is
sought).
“This Court will grant a timely application for interlocutory review if the order
complained of is subject to direct appeal and the applicants have not otherwise filed
a notice of appeal.” Spivey v. Hembree, 268 Ga. App. 485, 486, n. 1 (602 SE2d 246)
(2004). Accordingly, this interlocutory application is hereby GRANTED. Appellants
1
MAS asserted it was an interested party with respect to the subpoena because
Hess was currently employed with the company. «Exh. 4. at 1, n.1» The day before
the hearing on the motion, MAS filed a pleading in which it stated that the motion to
quash was filed with the knowledge and consent of Hess, and that counsel for MAS
was also representing Hess. «Exh. 6 at 14»
shall have ten days from the date of this order to file a notice of appeal in the trial
court if they have not already done so. The clerk of the superior court is DIRECTED
to include a copy of this order in the record transmitted to this Court.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
11/29/2023
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk .