In Re Accutane Litigation
233 N.C. App. 319
| N.C. Ct. App. | 2014Background
- Hoffmann‑LaRoche sought to depose Dr. Michael D. Kappelman, a UNC pediatric gastroenterologist who co‑authored articles on isotretinoin (Accutane) and IBD, in ongoing New Jersey Accutane mass tort litigation.
- A New Jersey subpoena prompted the Orange County, NC clerk to issue a local subpoena for a March 14, 2013 deposition in Chapel Hill.
- Dr. Kappelman moved to quash and for a protective order; after a hearing the NC superior court issued a protective order (Apr. 16, 2013) barring deposition of Kappelman as an “involuntary non‑fact” witness but permitting subpoenas and depositions if he were subpoenaed as an expert.
- The order did not quash the subpoena (trial court lacked authority to quash out‑of‑state subpoenas) and did not rule on fees or potential privilege questions.
- Kappelman appealed the protective order, arguing it was a final order affecting substantial rights (compulsion to testify as an uncompensated expert and loss of journalistic privilege).
- Hoffmann‑LaRoche moved to dismiss the appeal as interlocutory and not affecting a substantial right; the Court of Appeals dismissed the appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appealability of the protective order (interlocutory or final) | Order is final because it compels him to testify as an expert and forecloses future objections | Order is interlocutory; it addressed only deposition scope and left the main litigation unresolved | Order is interlocutory; not final because it does not dispose of the case as to all parties |
| Whether the order affects a "substantial right" permitting immediate appeal | Compelled expert testimony without compensation; journalistic privilege could be denied in future subpoenas | No present deprivation: fee and privilege issues are speculative and not yet presented | No substantial right shown; hypothetical future harms are not ripe for review |
| Whether the order precludes future Rule 26(c) protective motions | Order language forces future compliance and bars objections | Trial court statement only means the protective order does not bar subpoenas for expert testimony; future motions remain available | Court held Kappelman may seek a Rule 26(c) protective order if subpoenaed as an expert in the future |
| Applicability of federal precedents allowing immediate appeal in inter‑district discovery disputes | Federal cases support immediate appeal when discovery orders cross districts | Federal authority generally rejects interlocutory appeals by nonparties; contempt route is the remedy | Federal authorities cited favor dismissal; NC follows restrictive substantial‑rights doctrine and requires contempt/appeal from final judgment |
Key Cases Cited
- Anker v. G.D. Searle & Co., 126 F.R.D. 515 (M.D.N.C. 1989) (balancing test for protective orders in mass‑tort discovery)
- Micro Motion, Inc. v. Exac Corp., 876 F.2d 1574 (Fed. Cir. 1989) (orders compelling testimony/subpoena quashings are generally interlocutory; contempt route required)
- Alexander v. United States, 201 U.S. 117 (1906) (order to testify/produce documents is interlocutory and not immediately appealable)
- Veazey v. Durham, 231 N.C. 357 (1950) (definition of interlocutory order vs. final judgment)
- Frost v. Mazda Motor of Am., Inc., 353 N.C. 188 (2000) (discussing limits on interlocutory appeals and federal collateral‑order parallels)