In Re Accutane Litigation

NO. 13-754
NORTH CAROLINA COURT OF APPEALS
Filed: 8 April 2014
In re: ACCUTANE LITIGATION
Orange County
No. 13 CVS 265
Appeal by Dr. Michael D. Kappelman from order entered 16
April 2013 by Judge Robert H. Hobgood in Orange County Superior
Court. Heard in the Court of Appeals 8 January 2014.
Nelson Mullins Riley & Scarborough LLP, by Christopher J.
Blake, Joseph S. Dowdy, and T. Carlton Younger, III, for
Hoffman-LaRoche Inc., and Roche Laboratories, Inc.-
appellees.
Ashmead P. Pipkin for Dr. Michael D. Kappelman-appellant.
STEELMAN, Judge.
Where the defendant in a New Jersey mass tort litigation
subpoenas a North Carolina witness for a deposition, the North
Carolina trial court’s protective order was an interlocutory
order. Where the witness failed to allege any substantial right
that would be jeopardized absent immediate review, but instead
speculates that if certain fact scenarios occur in the future
his rights might be implicated, his appeal must be dismissed.
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I. Factual and Procedural Background
In the early 1980s Hoffmann-LaRoche, Inc., began marketing
Accutane, the brand name for the drug isotretinoin, which is
used to treat severe acne. Beginning in 2003, lawsuits were
filed alleging that the use of Accutane had caused inflammatory
bowel disease. In May 2005, the New Jersey Supreme Court ordered
that the litigation pertaining to Accutane be administered as a
mass tort, and as of “July 2012, there [were] nearly 8000 cases
listed on New Jersey’s Accutane mass tort list.” Sager v.
Hoffman-La Roche, Inc., 2012 N.J. Super. Unpub. LEXIS 1885 *9
fn2, petition for certification denied, 213 N.J. 568, 65 A.3d
835 (2013).
Dr. Kappelman is an Assistant Professor on the faculty of
the Medical School of the University of North Carolina at Chapel
Hill, whose duties include treating patients, conducting
research studies, and publishing the results of his studies.
This is primarily in the field of pediatric gastroenterology. He
is not a party in the Accutane litigation and has not consulted
with any of the parties. However, Dr. Kappelman was a co-author
of “A [Causal] Association between Isotretinoin and Inflammatory
Bowel Disease Has Yet to Be Established,” an article published
in 2009 in The American Journal of Gastroenterology (TAJG). Dr.
Kappelman discussed the article in a March 2010 interview
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published in the Gastroenterology & Hepatology journal. He was
also a co-author of “Isotretinoin Use and Risk of Inflammatory
Bowel Disease: A Case Control Study,” an article published in
September of 2010 in TAJG. This article resulted in a letter to
the editor by Hoffmann-LaRoche employees, published in TAJG in
May 2011, which criticized the methodology described in the
September 2010 article. This issue also contains a letter by Dr.
Kappelman responding to the criticisms. Plaintiffs in the
Accutane litigation have cited some of Dr. Kappelman’s work in
support of a causal link between Accutane and inflammatory bowel
disease. When Hoffmann-LaRoche sought to introduce other
writings by Dr. Kappelman to rebut plaintiffs’ evidence, New
Jersey trial judge Carol E. Higbee ruled that Hoffmann-LaRoche
could not introduce this evidence in documentary form but would
have to depose Dr. Kappelman.
Based upon a subpoena ad testificandum filed 15 February
2013 by the Superior Court of Atlantic County, New Jersey, the
Clerk of the Superior Court of Orange County, North Carolina,
issued a subpoena on 15 February 2013, for Dr. Kappelman to be
deposed on 14 March 2013 in Chapel Hill. On 5 March 2013 Dr.
Kappelman filed a motion to quash the subpoena and for a
protective order. The motion was heard on 8 April 2013, and on
16 April 2013 the trial court entered a protective order barring
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Hoffmann-LaRoche from deposing Dr. Kappelman as an “involuntary
non-fact” witness, but stating that he could be deposed as an
expert witness without violating the protective order. The order
states in relevant part:1
Applying a balancing test set forth in Anker
v. G.D. Searle & Co., 126 F.R.D. 515, 518
(M.D.N.C. 1989), the Court finds that Dr.
Kappelman is not a party to this litigation;
he is an independent researcher and has
demonstrated that he is [an] involuntary
non-fact witness who has substantially
demonstrated that his deposition would
result in undue hardship and would be
substantially burdensome to him as an
involuntary non-fact witness in the context
of the defendants’ mass tort litigation in
New Jersey involving 7,700 pending claims;
and, no party in that litigation has
retained Dr. Kappelman as an expert.
Therefore, Dr. Kappelman’s motion for a
protective order is granted with respect to
future subpoenas to Dr. Kappelman as an
involuntary non-fact witness.
Notwithstanding this ruling, defendants may
have subpoenas issued to Dr. Kappelman as an
expert witness without violating this
protective order, and Dr. Kappelman will be
required to appear for a deposition if he is
subpoenaed as an expert.
1
As Dr. Kappelman notes, the trial court did not rule on
his motion to quash the subpoena. At the time of the hearing on
Dr. Kappelman’s motion, the date set for his deposition had
passed. Furthermore, a North Carolina trial court lacks
authority to quash a subpoena issued by a New Jersey court. See
Capital Resources, LLC v. Chelda, Inc., __ N.C. App. __, __, 735
S.E.2d 203, 209 (2012) (“a superior court judge in this State
does not have any authority over the courts of other states, and
thus could not quash subpoenas issued by such courts”) (citing
Irby v. Wilson, 21 N.C. 568, 580 (1837)), cert. denied, __ N.C.
__, 736 S.E.2d 191 (2013).
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The parties agreed during the hearing that defendant had
subpoenaed Dr. Kappelman as a fact witness; however, the order
does not address whether Dr. Kappelman may be deposed as a fact
witness, but only bars defendants from deposing Dr. Kappelman as
“an involuntary non-fact witness.” And, although the most common
type of “non-fact witness” is an expert witness,2 the order also
states that the protective order would not bar Hoffmann-LaRoche
from issuing a subpoena for Dr. Kappelman as an expert witness.
As a result, the only legal effect of the protective order is to
prevent defendants from deposing Dr. Kappelman as an involuntary
non-fact lay witness. Dr. Kappelman argues in his response to
Hoffmann-LaRoche’s dismissal motion that the trial court’s order
is “muddled” and “self-contradictory.” However, Dr. Kappelman
did not file a motion seeking clarification of the order. See
Alston v. Fed. Express Corp., 200 N.C. App. 420, 423-24, 684
2
The order does not explain what this term means. There
appear to be no cases in North Carolina defining this term. A
“non-fact” witness may be an expert, see, Express One Int'l,
Inc. v. Sochata, No. 3-97 CV3121-M, 2001 U.S. Dist. LEXIS 25281,
at *2 (N.D. Tex. 2 March 2001) (noting that the “five non-fact
witnesses are traditional experts whose involvement is solely
for litigation to give opinions in their specific areas of
expertise”). However, in particular circumstances a person may
testify as a non-fact lay witness, see, e.g., Jones v Williams,
557 So. 2d 262, 263, 266 (La. App. 4 Cir. 1990) (parking manager
for defendant City of New Orleans and “plaintiff’s only non-fact
witness” testified regarding the City’s customary practice
regarding enforcement of parking regulations), cert. denied, 558
So. 2d 607, 1990 La. LEXIS 726 (La. 1990).
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S.E.2d 705, 707 (2009) (“Pursuant to Rule 60(b)(6)’s ‘grand
reservoir of equitable power,’ the trial court had jurisdiction
to revisit its order so that its intentions could be made
clear.”) (quoting In re Oxford Plastics v. Goodson, 74 N.C. App.
256, 259, 328 S.E.2d 7, 9 (1985)).
Dr. Kappelman appeals.
II. Hoffmann-LaRoche’s Motion to Dismiss Appeal
On 23 July 2013 Hoffmann-LaRoche filed a motion seeking
dismissal of Dr. Kappelman’s appeal, arguing that Dr. Kappelman
had appealed from an interlocutory order that did not affect a
substantial right. We agree.
A. Interlocutory Nature of Appeal
According to N.C. Gen. Stat. § 1A-1, Rule 54(a), a
“judgment is either interlocutory or the final determination of
the rights of the parties.” “‘An 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.’” Hill v.
StubHub, Inc., __ N.C. App. __, __, 727 S.E.2d 550, 553-54
(2012) (quoting Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d
377, 381 (1950)), disc. review denied, 366 N.C. 424, 736 S.E.2d
757 (2013).
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On appeal, Dr. Kappelman argues that we should treat the
trial court’s order as final based on his interpretation of the
statement in the trial court’s order that, notwithstanding the
court’s entry of a protective order, “defendants may have
subpoenas issued to Dr. Kappelman as an expert witness without
violating this protective order, and Dr. Kappelman will be
required to appear for a deposition if he is subpoenaed as an
expert.” Dr. Kappelman interprets this as a ruling in which the
trial court “unjustly compelled Dr. Kappelman to testify as an
expert without compensation or limitations on the scope of the
deposition.” He contends that if Hoffmann-LaRoche issues a
subpoena seeking to depose him as an expert witness, that he
will not be permitted to raise any objections to the subpoena or
the deposition and that the trial court’s order “forecloses” his
ability to challenge or seek a protective order, regardless of
the scope of the deposition or his circumstances at the time. We
disagree.
N.C. Gen. Stat. § 1A-1, Rule 26(c) provides in part that:
Upon motion by a party or by the person from
whom discovery is sought, and for good cause
shown, the judge of the court in which the
action is pending may make any order which
justice requires to protect a party or
person from unreasonable annoyance,
embarrassment, oppression, or undue burden
or expense[.] . . .
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In order to determine whether a party or deponent has shown
“good cause” for an order protecting him “from unreasonable
annoyance, embarrassment, oppression, or undue burden or
expense,” the trial court must consider the specific discovery
sought and the factual circumstances of the party from whom
discovery is sought. See, e.g., Guessford v. Pa. Nat’l Mut. Cas.
Ins. Co., 2013 U.S. Dist. LEXIS 71636, *9-10 (M.D.N.C., May 21,
2013) (“Rule 26(c)’s requirement of a showing of ‘good cause’ to
support the issuance of a protective order . . . contemplates a
particular and specific demonstration of fact”) (quoting Jones
v. Circle K Stores, 185 F.R.D. 223, 224 (M.D.N.C. 1999)
(internal quotation omitted)), partial summary judgment granted
in part and denied in part on other grounds, 2013 U.S. Dist.
LEXIS 150070 (M.D.N.C. Oct. 18, 2013). Given that the trial
court’s order addressed only the type of testimony for which Dr.
Kappelman might be deposed, and given that the trial court could
not know in advance what specific circumstances might exist at
the time of a future subpoena or what information Hoffmann-
LaRoche might be seeking, we conclude that the order’s statement
that “Dr. Kappelman will be required to appear for a deposition
if he is subpoenaed as an expert” is simply a reiteration of the
first part of the same sentence which states that “defendants
may have subpoenas issued to Dr. Kappelman as an expert witness
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without violating this protective order.” In other words, the
trial court was merely emphasizing that if Hoffmann-LaRoche
subpoenaed Dr. Kappelman as an expert witness, he could not
argue that this violated the protective order. We hold, however,
that in the event that Hoffmann-LaRoche seeks to depose Dr.
Kappelman as an expert witness, he may seek a protective order
under Rule 26(c), if appropriate.
We also reject Dr. Kappelman’s contention that we should
apply the reasoning of certain federal cases as a basis for
treating this as an appeal from a final order. Dr. Kappelman
cites several federal cases holding that, if a judge from a
different district than the location of the trial enters an
order denying discovery, the party seeking discovery may appeal,
given that the party will not be able to raise the issue as part
of an appeal from judgment in the case. Dr. Kappelman asserts,
without citation to authority, that “[t]his rationale should
apply equally to the appellant who is opposing discovery.”
However:
The nonappealability of orders requiring the
production of evidence from witnesses has
long been established. In Alexander v.
United States, 201 U.S. 117, 50 L. Ed. 686,
26 S. Ct. 356 (1906) . . . The Supreme Court
held that the order directing the witnesses
to testify and produce documents was
interlocutory and could be challenged by the
witnesses only upon an appeal from an
adjudication of contempt. . . . [T]he
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Supreme Court has repeatedly held that an
order denying a motion to quash, or an order
compelling testimony or production of
documents, is not final and, hence, is not
appealable regardless of how the matter is
raised.
Micro Motion, Inc. v. Exac Corp., 876 F.2d 1574, 1576-77 (Fed.
Cir. 1989), appeal dismissed, 899 F.2d 1227 (Fed. Cir. 1990).
The Micro Motion court explained further:
We are mindful of the harshness inherent in
requiring a witness to place themself in
contempt to create a final appealable
decision. . . . However, it is all too
certain that the consequences of recognizing
a right to appeal all orders refusing to
quash a subpoena, even where such an order
‘ends’ ancillary proceedings against a non-
party, would be to “constitute the courts of
appeals as second-stage motion courts
reviewing pretrial applications of all non-
party witnesses alleging some damage because
of the litigation.” Thus, the courts, with
rare exceptions, have opted to require that
the contempt route be followed.
Micro Motion, 876 F.2d at 1577-78 (quoting Borden Co. v. Sylk,
410 F.2d 843, 846 (3d Cir. 1969)). Dr. Kappelman does not
distinguish cases such as this or cite any authority to the
contrary, and we conclude that “this issue would no more be
immediately appealable as a ‘collateral matter’ under the
federal test for interlocutory appeals than it is under the
substantial rights doctrine.” Frost v. Mazda Motor of Am., Inc.,
353 N.C. 188, 195 fn2, 540 S.E.2d 324, 328-29 fn2 (2000)
(quoting Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171-72, 40
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L. Ed. 2d 732, 744-45, 94 S. Ct. 2140 (1974) (internal quotation
omitted).
Dr. Kappelman also argues that the court’s order was final,
because it was “a final judgment as to [his] motion.” However,
“[a] final judgment is one which disposes of the cause as to all
the parties, leaving nothing to be judicially determined between
them in the trial court.” Veazey, 231 N.C. at 361-62, 57 S.E.2d
at 381 (citation omitted) (emphasis added). The trial court’s
order addressed only the ancillary issue of Dr. Kappelman’s
entitlement to a protective order limiting the scope of
deposition, and clearly did not resolve the case “as to all the
parties” involved in the litigation pertaining to Accutane. In
addition, all of Dr. Kappelman’s appellate arguments are
premised on the likelihood of future litigation in North
Carolina. We conclude that Dr. Kappelman has attempted to appeal
from an interlocutory order.
B. Substantial Right
“As a general rule, interlocutory discovery orders are not
immediately appealable.” K2 Asia Ventures v. Trota, 209 N.C.
App. 716, 718-19, 708 S.E.2d 106, 108 (2011) (citing Dworsky v.
Insurance Co., 49 N.C. App. 446, 447, 271 S.E.2d 522, 523 (1980)
(“orders denying or allowing discovery are not appealable since
they are interlocutory and do not affect a substantial right
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which would be lost if the ruling were not reviewed before final
judgment.”). However, N.C. Gen. Stat. § 7A-27(b)(3)(a) permits
immediate appeal from an interlocutory order that “[a]ffects a
substantial right.” See also § N.C. Gen. Stat. § 1-277(a) (“An
appeal may be taken from every judicial order or determination
of a judge . . . which affects a substantial right[.]”).
“‘Essentially a two-part test has developed — the right
itself must be substantial and the deprivation of that
substantial right must potentially work injury . . . if not
corrected before appeal from final judgment.’” Braun v. Trust
Dev. Group, LLC, 213 N.C. App. 606, 609, 713 S.E.2d 528, 530
(2011) (quoting Goldston v. American Motors Corp., 326 N.C. 723,
726, 392 S.E.2d 735, 736 (1990)). “A substantial right is ‘one
which will clearly be lost or irremediably adversely affected if
the order is not reviewable before final judgment.’ . . . Our
courts generally have taken a restrictive view of the
substantial right exception. . . . The burden is on the
appellant to establish that a substantial right will be affected
unless he is allowed immediate appeal from an interlocutory
order.” Embler v. Embler, 143 N.C. App. 162, 165-66, 545 S.E.2d
259, 262 (2001) (quoting Turner v. Norfolk S. Corp., 137 N.C.
App. 138, 142, 526 S.E.2d 666, 670 (2000) (internal quotation
omitted), and citing Blackwelder v. Dept. of Human Resources, 60
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N.C. App. 331, 335, 299 S.E.2d 777, 780 (1983), and Jeffreys v.
Raleigh Oaks Joint Venture, 115 N.C. App. 377, 444 S.E.2d 252(1994)).
Dr. Kappelman identifies two “substantial rights” that he
contends are implicated by the trial court’s order: his alleged
right under the federal and state constitutions to be paid for
expert testimony, and a right, based on Dr. Kappelman’s
contention that he qualifies as a “journalist,” to refuse to
divulge information that is protected by journalistic privilege.
Dr. Kappelman speculates that Hoffmann-LaRoche may subpoena him
as an expert witness in the future; that if this occurs,
Hoffmann-LaRoche may be unwilling to pay him for his time,3 or
Hoffmann-LaRoche might seek information that Dr. Kappelman
believes is privileged based on his assertion that he is a
“journalist.” It is undisputed that neither of these scenarios
has yet occurred. Therefore, any opinion we might offer as to
3
Dr. Kappelman does not discuss N.C. Gen. Stat. § 7A-305(d),
which “sets out the costs that the trial court is ‘required to
assess.’ Under . . . N.C. Gen. Stat. § 7A-305(d)(11), a trial
court is required to assess costs for ‘[r]easonable and
necessary fees of expert witnesses solely for actual time spent
providing testimony at trial, deposition, or other
proceedings.’” Springs v. City of Charlotte, 209 N.C. App. 271,
282, 704 S.E.2d 319, 327 (2011) (quoting Lord v. Customized
Consulting Specialty, Inc., 164 N.C. App. 730, 734, 596 S.E.2d
891, 895 (2004). “However, a trial court may tax expert witness
fees as costs only when that witness is under subpoena.” Peters
v. Pennington, 210 N.C. App. 1, 26, 707 S.E.2d 724, 741 (2011)
(citing Jarrell v. Charlotte-Mecklenburg Hosp. Auth., 206 N.C.
App. 559, 563, 698 S.E.2d 190, 193 (2010)).
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(1) Dr. Kappelman’s right, if any, to a particular fee for his
testimony; (2) whether Dr. Kappelman qualifies as a “journalist”
or; (3) whether specific information is subject to a
journalist’s privilege would be entirely hypothetical and
speculative. It is well-established that “‘courts have no
jurisdiction to determine matters purely speculative, enter
anticipatory judgments, declare social status, deal with
theoretical problems, give advisory opinions, answer moot
questions, adjudicate academic matters, provide for
contingencies which may hereafter rise, or give abstract
opinions.’” Baxter v. Jones, 283 N.C. 327, 332, 196 S.E.2d 193,
196 (1973) (quoting Little v. Trust Co., 252 N.C. 229, 243, 113
S.E. 2d 689, 700 (1960)).
We conclude that the trial court’s order was interlocutory,
that Dr. Kappelman has not identified any substantial right that
would be jeopardized by delay of appeal, and that the issues
raised by Dr. Kappelman all pertain to possible ramifications of
a hypothetical subpoena that might or might not ever be issued,
and thus do not present issues that are ripe for review. For
these reasons, we conclude that Dr. Kappelman’s appeal must be
dismissed.
DISMISSED.
Judges STEPHENS and DAVIS concur.