Johnson & Johnson v. Kaufman

485 S.E.2d 525, 226 Ga. App. 77, 97 Fulton County D. Rep. 1524, 1997 Ga. App. LEXIS 458
Court of Appeals of Georgia·Decided March 20, 1997·No. A96A2468·Published·Cited by 37 cases

Opinions

Ruffin, Judge.

Gary Kaufman, individually and as executor of the estate of Amy Kaufman, his deceased wife, sued Johnson & Johnson (“J&J”) and Janssen Pharmaceutica, Inc. (“Janssen”), alleging that his wife died as the result of taking the drug Hismanal, an antihistamine prescribed to her for allergies. Janssen, which is a wholly owned subsidiary of J&J, manufactures, markets and distributes Hismanal in the United States. Hismanal is also manufactured and distributed internationally through numerous other J&J subsidiaries. Kaufman contends that at the time of his wife’s death, the defendants were aware [78] of serious dangers associated with Hismanal but failed to warn his wife of the dangers.

The subject of this appeal is a January 18, 1996 discovery order requiring J&J to provide virtually any document from any J&J foreign subsidiary concerning complaints about Hismanal, reports of adverse effects, marketing materials, post-marketing surveillance studies, packaging and labeling, alternative packaging options, risk utility analyses or similar studies, risk studies, drug and food interaction studies, and dosage level studies. The order requires J&J to produce the documents within 60 days and to supplement the production every 90 days. On January 19, 1996, the day after it issued the discovery order, the trial court also issued a protective order that restricted counsel for Kaufman from disseminating any confidential information obtained through discovery to anyone except individuals involved in the instant litigation or individuals involved in other pending litigation concerning Hismanal against the defendants.

J&J requested that the trial court issue a certificate of immediate review because of the sweeping nature of the discovery order. When the trial court failed to issue the certificate, J&J filed a direct appeal. In its appeal, J&J presents questions concerning the relevance of the discovery requests, the burden of producing the documents, and the interests of international comity where the laws of some countries prohibit the production of the requested documents by the foreign subsidiaries. J&J also asserts that the protective order does not adequately protect against widespread dissemination of confidential information.

As compelling as J&J’s assertions are, we must first deal with the issues presented by Kaufman’s motion to dismiss the appeal based on the argument that the discovery order was not directly appealable. Although we originally denied Kaufman’s motion to dismiss the appeal, Kaufman has since moved for reconsideration of that order. For the reasons stated below, we conclude that because the trial court’s discovery order was not directly appealable, the defendants’ appeal must be dismissed.

We note initially that discovery orders generally are interlocutory and therefore not directly appealable as final judgments. See OCGA § 5-6-34; see also Cornelius v. Finley, 204 Ga. App. 299 (418 SE2d 815) (1992). In Cohen v. Beneficial Indus. Loan Corp., 337 U. S. 541 (69 SC 1221, 93 LE 1528) (1949), however, the United States Supreme Court recognized an exception to the final judgment rule for appeal of “collateral orders.” Cohen was a shareholder derivative action in which the District Court refused to apply a state statute requiring plaintiffs in such actions to post security for costs to be incurred by defendants in the litigation. The Court found that because the trial court’s order was conclusive on the issue, the [79] defendant’s right to appeal at the conclusion of the case would arise too late to effectively review the order. Id. at 546. Specifically, the Court stated that the decision fell within that “small class” of orders “which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Id. The Court held the order appealable “because it [was] a final disposition of a claimed right which [was] not an ingredient of the cause of action and [did] not require consideration with it. . . . If the right were admitted or clear and the order involved only an exercise of discretion as to the amount of security, a matter the statute makes subject to reconsideration from time to time, appealability would present a different question.” Id. at 546-547.

The Supreme Court of Georgia adopted the collateral order exception to the final judgment rule in Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982). Patterson involved the trial court’s denial of the defendant’s plea of double jeopardy, and since that decision our appellate courts have applied the exception to only two other types of trial court orders. In two cases our Supreme Court allowed a direct appeal of trial court orders cancelling a notice of lis pendens. See Jay Jenkins Co. v. Financial Planning Dynamics, 256 Ga. 39, 41 (3) (343 SE2d 487) (1986); Scroggins v. Edmondson, 250 Ga. 430 (1) (297 SE2d 469) (1982). In another case, this Court applied the collateral order exception in allowing a direct appeal from the trial court’s order to produce attorney work product. Dept. of Transp. v. Hardaway Co., 216 Ga. App. 262 (454 SE2d 167) (1995).

In Hardaway Co., a party inadvertently included several pages of a discrepancy log in its response to a request for production of documents. Although the trial court found that the discrepancy log was work product prepared for other litigation, it ordered the party to produce the remainder of the log. We allowed a direct appeal from that order under the collateral order exception to the final judgment rule. As stated in Hardaway Co., the exception applies if the order: “(1) completely and conclusively resolves the issue appealed; (2) concerns an issue which is ‘substantially separate’ from the basic issues presented in the complaint; and (3) would result in the loss of an important right and is ‘effectively unreviewable on appeal.’ [Cit.]” Id. at 262 (1). Because we determined that the order in Hardaway Co. completely resolved the discovery issue, which was substantially separate from the main claim, and the discrepancy log, once produced, could not be returned to its previous confidential state, we found the exception applied and allowed a direct appeal.

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Johnson & Johnson v. Kaufman, 485 S.E.2d 525, 226 Ga. App. 77, 97 Fulton County D. Rep. 1524, 1997 Ga. App. LEXIS 458 (Ga. Ct. App. 1997).

485 S.E.2d 525 (Johnson & Johnson v. Kaufman) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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