Ex parte Pfizer, Inc.
- Reporters:
- ,
- Before:
- Hooper, Maddox, Houston, See, Brown, Cook, Johnstone, Kennedy, Lyons
HOOPER, Chief Justice.
Two defendants, Pfizer, Inc., and Valleylab, Inc. (hеreinafter together referred to as “Valleylab“), have petitioned for a writ of mandamus directing the Circuit Court of Escambia County to vacate two rulings denying discovery sought by Valleylab in a medical-malpractice/products-liability case pending in that court. We deny the petition as it relates to discovery of the documents requested from an insurеr‘s investigative file, except Item 383. We grant the petition as to Item 383, finding that item to be discoverable. We also grant the petition as it relates to discovery of the medical records of circumcisions performed by the petitioners’ codefendant Dr. William E. Thomas from January 1986 through the present.
Facts
The plaintiff in this case, M.B., is a minor. On August 21, 1991, Dr. Thomas performed а circumcision on M.B., then seven years of age, at Atmore Community Hospital. During the procedure, Dr. Thomas used a medical device called an “electrosurgical unit,” or ESU, to cauterize bleeding blood vessels at the surgical site. An ESU is a general-purpose surgical device that utilizes a high-frequency electrical current. Valleylab manufacturеd the ESU the plaintiff alleges was used during the procedure. Valleylab was a wholly owned subsidiary of Pfizer, Inc., at the time of the acts giving rise to M.B.‘s lawsuit.
After the procedure was performed, infection and eventually gangrene developed around the surgical site. Three-fourths of M.B.‘s penis had to be removed because of the severity of the infection.
M.B., аcting through his next friend, filed a complaint on August 2, 1993, against Dr. Thomas and Atmore Community Hospital, alleging medical malpractice, and against Pfizer and Valleylab, alleging various claims grounded in products liability. Mutual Assurance, Inc., Dr. Thomas‘s liability insurer, compiled an investigative file regarding the incident.
Valleylab made a discovery request that extended to 22 documents contained in Mutual Assurance‘s investigative file. The trial court compelled production of 7 of the 22 documents, but denied discovery as to the other documents.
Valleylab argues that the circuit court abused its discretion (1) in its order denying discovery of 15 documents contained in the investigative file of Dr. Thomas‘s insurance carrier and (2) in its order denying Valleylab‘s request for discovery of medical records regarding other circumcisions performed by Dr. Thomas since January 1986.
Writ of Mandamus
The writ of mandamus is an extraordinary remedy, and one petitioning for that writ must show “(1) a clear legal right in the petitioner to the order sought; (2) an imperative duty on the resрondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.” Ex parte Alfab, Inc., 586 So.2d 889, 890 (Ala.1991); see also, Martin v. Loeb & Co., 349 So.2d 9 (Ala.1977); Ex parte Slade, 382 So.2d 1127 (Ala.1980); Ex parte Houston County, 435 So.2d 1268 (Ala.1983); Ex parte Johnson, 638 So.2d 772 (Ala.1994). “Mandamus is an extraordinary remedy and will lie to compel the exercise of discretion, but not to compel its exercise in a particular manner except where there is аn abuse of discretion.” State v. Cannon, 369 So.2d 32, 33 (Ala. 1979).
Discovery of the Investigative File
Valleylab first argues that the trial court abused its discretion when it denied Valleylab‘s requested discovery of 15 documents that are part of Mutual Assurance‘s investigative file on the incident. Mutual Assurance contends that the documents sought by Valleylab were prepared in anticipation of litigation and therefore are not subjeсt to discovery by Valleylab.
Valleylab served a notice of deposition on Mutual Assurance, together with a subpoena duces tecum, seeking testimony and production of documents concerning certain matters in Mutual Assurance‘s investigative file. Mutual Assurance, a nonparty as to this lawsuit, moved to quash the subpoena and the notice of deposition and also moved for a protective order. After conducting a hearing, the circuit court allowed discovery of 7 items, but denied Valleylab‘s request for discovery of 15 of the documents.
The 15 documents now sought by Valleylab consist of handwritten notes made by claims representatives, including incident reports and documentation of investigative activities and notes from interviews of witnesses. Valleylab argues that the attorney-client privilege does not apply to these documents; it contends that the notes and documents that are part of Mutual Assurance‘s investigative file regarding M.B.‘s case were not prepared in anticipation of litigation and are not privileged. Specificаlly, Valleylab seeks to discover specific notes made by the insurer‘s claims representative concerning nurse Carol Miller‘s account of the events that occurred during the circumcision.
“Subject to the provisions of subdivision (b)(4) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that other party‘s representative (including the other party‘s attorney, consultant, surety, indemnitor, insurer or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the party‘s
case and that the pаrty is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.”
With respect to discovery matters, this Court has stated that the trial court has very broad discretion and that “its ruling on discovery matters will not be reversed absent a clear abuse of discretion.” Ex parte Wal-Mart Stores, Inc., 682 So.2d 65, 67 (Ala.1996). Except as to Item 383, Valleylab has shown no clear abuse of discretion on the part of the circuit judge in his order denying discovery of the 15 itеms in Mutual Assurance‘s investigative file. Item 383 is a letter written by attorney Tom Dutton in reply to a January 18, 1993, letter from attorney Boyd Reeves. This letter was from counsel for one party to opposing counsel. Therefore, it was not the work product of the insurer. This letter is not covered by the work-product rule and is discoverable by Valleylab.
As to the other documents requested from the investigative file, it appears that Valleylab has had ample opportunities to interview, depose, and question Carol Miller. Valleylab will suffer no undue hardship in gaining, through other means, the information it says it believes would be gained by examining documents in the insurance company‘s investigative file. Valleylab would like to discover additiоnal information regarding notes taken by the insurance investigators regarding the testimony given by Miller in her depositions. Miller‘s account of the events differs from the accounts given by the other operating-room personnel. The mere fact that Miller‘s account of the incident differs from the accounts of other witnesses is insufficient to mandate discovery оf the insurance company‘s investigative file. The parties have deposed Miller over 10 times to properly ascertain her version of the events. The record before us indicates no reason why Valleylab could not have obtained from other sources the information it seeks from the insurer‘s file. The fact that witnesses disagree on the events in question in a lawsuit is no reason to violate the work-product doctrine.
The insurer contends that on the day after the incident was reported to it, it contacted its legal counsel regarding the incident because it assessed M.B.‘s case as one that would be litigated. Mutual Assurance was notified soon after the incident that a well-known plaintiffs’ lawyer hаd requested M.B.‘s medical records. The contents of the investigative file Valleylab seeks were related to, and were prepared in anticipation of, litigation, with the exception of Item 383. Valleylab should have been able to ascertain the information it seeks through other methods that would not cause it undue hardship.
Valleylab seeks discovery of the 15 documents in question because it says it believes these documents may contain further information concerning Miller‘s account of the events that took place during the circumcision. This Court can determine no reason why Valleylab, through its extensive depositions, interviews, and interrogations of both Miller and the other personnel involved, could not ascertain the varying accounts of what happened during the circumcision. Valleylab has not shown that it will incur an undue hardship if it has to secure through other means the information contained in the investigative file. There appears to be no reason why Valleylab could not gain this information through its own questioning of witnesses.
As to the materials in the insurer‘s investigative file, we conclude that the circuit court should have ordered the discovery of Item 383, but otherwise we see no
Discovery of Medical Records
Valleylab also argues that the trial court abused its discretion in denying discovery of medical records of other circumcisions performed by Dr. Thomas. Valleylab argues that its defense rests on determining whether M.B.‘s injuries were due solely to acts or omissions of medical negligence; or were due solely to the effects caused by a defective product; or were due to a combination of medical negligencе and the effects of a defective product.
Pfizer, Valleylab, Dr. Thomas, and Atmore Community Hospital are all defendants in M.B.‘s medical-malpractice/products-liability action. M.B. is the plaintiff.
“When the language of a statute is plain and unambiguous, as in this case, courts must enforce the statute as written by giving the words of the statute their ordinary plain meaning—they must interpret that language to mean exactly what it says and thus give effect to the apparent intent of the Legislature.” Ex parte T.B., 698 So.2d 127, 130 (Ala.1997). Justice Houston wrote the following for this Court in DeKalb County LP Gas Co. v. Suburban Gas, Inc., 729 So.2d 270 (Ala.1998):
“In determining the meaning of a statute, this Court looks to the plain meaning of the words as written by the legislature. As we have said:
“`“Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language tо mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.“’
Blue Cross & Blue Shield v. Nielsen, 714 So.2d 293, 296 (Ala.1998) (quoting IMED Corp. v. Systems Eng‘g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992)); see also Tuscaloosa County Comm‘n v. Deputy Sheriffs’ Ass‘n, 589 So.2d 687, 689 (Ala.1991); Coastal States Gas Transmission Co. v. Alabama Pub. Serv. Comm‘n, 524 So.2d 357, 360 (Ala. 1988); Alabama Farm Bureau Mut. Cas. Ins. Co. v. City of Hartselle, 460 So.2d 1219, 1223 (Ala.1984); Dumas Brothers Mfg. Co. v. Southern Guar. Ins. Co., 431 So.2d 534, 536 (Ala.1983); Town of Loxley v. Rosinton Water, Sewer & Fire Protection Auth., Inc., 376 So.2d 705, 708 (Ala.1979). It is true that when looking at a statute we might sometimes think that the ramifications оf the words are inefficient or unusual. However, it is our job to say what the law is, not to say what it should be. Therefore, only if there is no rational way to interpret the words as stated will we look beyond those words to determine legislative intent. To apply a different policy would turn this Court into a legislative body, and doing that, of course, would be utterly inconsistent with the doсtrine of separation of powers. See Ex parte T.B., 698 So.2d 127, 130 (Ala.1997).”
The circuit court gave no reason for denying discovery of the 15 documents sought by Valleylab, nor did it give a reason for denying discovery of the medical records of Dr. Thomas‘s other circumcision рatients. As to the discovery request concerning the records of other circumcisions performed by Dr. Thomas from January 1986 through the present, we grant the petition for a writ directing the circuit court to vacate its order denying discovery. We note the specific language of
If the circuit court, in denying Valleylab‘s requested discovery of the circumcision records, was relying solely upon
Conclusion
We deny the petition for the writ of mandamus as it relates to the requested discovery of documents contained in the insurance company‘s investigative file, except as to Item 383. As to Item 383, we grant the petition and issue thе writ of mandamus directing the trial court to vacate its order denying discovery; that item is discoverable by Valleylab.
We also grant the petition insofar as it relates to the circuit court‘s order denying Valleylab‘s requested production of the medical records concerning other circumcisions performed by Dr. Thomas from January 1986 through the present, and we direct the circuit court to vacate its order denying that discovery. The circuit court is directed to reconsider Valleylab‘s request for discovery of those records and to do so without reference to
PETITION GRANTED IN PART AND DENIED IN PART; WRIT ISSUED.
MADDOX, HOUSTON, SEE, and BROWN, JJ., concur.
COOK and JOHNSTONE, JJ., concur in part and concur in thе result in part.
KENNEDY, J., concurs in the result.
LYONS, J., recuses himself.
COOK, Justice (concurring in part and concurring in the result in part).
I concur in that portion of the opinion designated “Discovery of the Investigative
In that latter portion, the majority appears to be setting forth an ironclad rule, namely, that, under no circumstances would M.B., the plaintiff, be able to discovеr evidence of “any other act or omission,”
JOHNSTONE, Justice (concurring in part and concurring in the result in part).
I concur with the discovery rulings of the main opinion regarding materials in the investigative file of Mutual Assurance. I concur only in the result of the ruling of the main opinion regarding discovery of other circumcisions рerformed by Dr. Thomas.
I must note with regard to the treatment of