J-A16032-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 BERNICE M. STEINER, INDIVIDUALLY :          IN THE SUPERIOR COURT OF
 AND AS PERSONAL REPRESENTATIVE   :               PENNSYLVANIA
 OF THE ESTATE OF SAMUEL E.       :
 STEINER                          :
                                  :
                                  :
            v.                    :
                                  :
                                  :          No. 563 EDA 2018
 HOLLINGSWORTH & VOSE COMPANY, :
 LORILLARD TOBACCO COMPANY,       :
 INDIVIDUALLY AND AS SUCCESSORY :
 IN THE INTEREEST TO P. LORILLARD :
 CO.                              :
                                  :
                                  :
 APPEAL OF: R.J. REYNOLDS         :
 TOBACCO COMPANY, AS              :
 SUCCESSOR-BY-MERGER TO           :
 LORILLARD TOBACCO COMPANY        :

              Appeal from the Order Entered February 6, 2018
    In the Court of Common Pleas of Philadelphia County Civil Division at
                   No(s): February Term, 2016 No. 4932


BEFORE: BENDER, P.J.E., LAZARUS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                        FILED AUGUST 30, 2018

      Appellant R.J. Reynolds Tobacco Company, as Successor-By-Merger to

Lorillard Tobacco Company (“Reynolds”), appeals from the order, entered in

the Court of Common Pleas of Philadelphia County, granting in part the motion

filed by Bernice Steiner, Administratrix of the Estate of Samuel Steiner,

Deceased (“Plaintiff”). After our review, we quash this appeal and vacate the

April 17, 2018 stay.
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      On March 3, 2016, Plaintiff filed suit against Hollingsworth & Vose

Company (“Hollingsworth”), a manufacturer of asbestos-containing bulk filter

media. Hollingsworth sold that product to Reynolds, which used it to make

“micronite filters,” which were used in Kent cigarettes from 1952 to 1956.

See Complaint, 3/3/16, at ¶ 10. Plaintiff claims neither Hollingsworth nor

Reynolds provided warnings of the health hazards associated with asbestos

exposure and that Samuel Steiner (“Decedent”) was a consumer of Kent

cigarettes. Decedent smoked approximately one pack of Kent cigarettes from

1941 until he quit smoking in 1962; in 2014, over fifty years later, he was

diagnosed with mesothelioma. See Complaint, supra at ¶¶ 8-9.

      On January 8, 2018, the court of common pleas entered an order

granting Plaintiff’s motion to compel discovery, ordering Reynolds to produce

two lists:   Kent Mesothelioma Actions (like the instant consumer/smoker

claim); and Kent Worker Mesothelioma Actions (workers who allege making

the filters and cigarettes caused asbestos-related disease).   The lists were

created in 2011 by counsel for Lorillard Tobacco Company (“Lorillord”),

Reynolds’ predecessor, by order of court in another lawsuit brought by an

individual who worked at a Lorillard facility, which action was pending in

Kentucky state court.    Reynolds contends those lists were subject to a

protective order.

      Reynolds filed a motion for reconsideration on January 24, 2018; in that

motion Reynolds sought, in the alternative, that the court amend the order

and certify it for immediate appeal. See 42 Pa.C.S. § 702(b); Pa.R.A.P. 1311.

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On February 6, 2018, the court denied the motion for reconsideration and it

denied certification of the order for immediate appeal.1

       Reynolds filed a timely notice of appeal from the January 8, 2018 order

granting Plaintiff’s motion to compel. Reynolds filed an emergency motion for

stay pending appeal and, on April 16, 2018, a single motions judge of this

Court entered an order granting the stay. Reynolds raises the following issues

for our review:

          1. Did the trial court err as a matter of law or abuse its
             discretion in granting Plaintiff’s motion to compel production
             of documents (created in 2011 by outside counsel for
             Reynolds’ predecessor, Lorillard Tobacco Company, by order
             of a Kentucky state court, and produced subject to a
             protective order in that case), where producing these
             documents would (1) violate the protective order of the
             Kentucky court, and (2) violate the privacy and
             confidentiality rights of former Lorillard employees by
             revealing confidential medical information not previously
             disclosed in a publicly-filed lawsuit or worker’ compensation
             action?

          2. Did the trial court commit an error of law or abuse its
             discretion in refusing reconsideration of its order
             compelling    production,  where    the   motion    for


____________________________________________


1 Reynolds did not file a petition for review. See Pa.R.A.P. 1512; Toll v. Toll,
439 A.2d 712 (Pa. Super. 1981) (in event lower court refuses to amend order
to contain necessary certification to proceed with petition for permission to
appeal, aggrieved party may obtain appellate review by filing timely petition
for review). See also Pa.R.A.P. 1316. We note, however, that if an order
falls under the collateral order doctrine, see Pa.R.A.P. 313, which Reynolds
argues here, an immediate appeal may be taken as of right by filing a notice
of appeal. See Note-Pa.R.A.P. 313.




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J-A16032-18


              reconsideration asked the trial court to limit
              dissemination of the documents ordered produced?

Appellant’s Brief, at 8.

       Before we reach these issues,2 we address the issue of jurisdiction. See

Roman v. McGuire Memorial, 127 A.3d 26, 31 (Pa. Super. 2015) (subject

matter jurisdiction is non-waivable and can be raised at any time by any party

and court sua sponte). Generally, discovery orders are deemed interlocutory

and not immediately appealable, because they do not dispose of the litigation.

Branham v. Rohm and Haas Co., 19 A.3d 1094, 1101 (Pa. Super. 2011).

See T.M. v. Elwyn, Inc., 950 A.2d 1050 (Pa. Super. 2008); Jones v. Faust,

852 A.2d 1201 (Pa. Super. 2004).               However, discovery orders requiring

disclosure of privileged materials generally are appealable under Rule 313

where the issue of privilege is separable from the underlying issue. See Ben

v. Schwartz, 729 A.2d 547, 551–53 (Pa. 1999); see also Price v. Simakas

Co., Inc., 133 A.3d 751, 755 (Pa. Super. 2016) (order denying motion to

quash subpoena for deposition appealable under Pa.R.A.P. 313 when

information sought is privileged under federal health and safety regulations).

       In its Statement of Jurisdiction, Reynolds states that the order granting

Plaintiff’s motion to compel discovery is a collateral order and thus appealable

as of right. See Pa.R.A.P. 313(a) (“An appeal may be taken as of right from
____________________________________________


2 We point out that both issues directly implicate the second prong of the
collateral order doctrine test. See Rae v. Pennsylvania Funeral Directors
Ass'n, 977 A.2d 1121 (Pa. 2009) (holding collateral order rule’s three-
pronged test must be applied independently to each distinct legal issue over
which appellate court is asked to assert jurisdiction).


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J-A16032-18



a collateral order of an administrative agency or lower court.”).       Reynolds

claims that the documents are privileged and producing them would violate

“privacy and confidentiality rights of former Lorillard employees” as well as

the protective order of the Kentucky court. Appellant’s Brief, at 1.

      “Collateral review is appropriate, despite the general directive that

appellate courts conduct review only of final orders, if an order is (1) separable

from and collateral to the main cause of action, (2) implicates rights which are

too important to be denied review, and (3) the appellant’s claim as to that

order will be lost if postponed until final judgment.” Rae v. Pennsylvania

Funeral Directors Ass'n, 977 A.2d 1121, 1124 (Pa. 2009), citing Ben,

supra and Pa.R.A.P. 313. The collateral order doctrine is a “specialized,

practical [exception to] the general rule that only final orders are appealable

as of right.” McGrogan v. First Commonwealth Bank, 74 A.3d 1063, 1076

(Pa. Super. 2013).    Thus, the rule must be narrowly interpreted and each

prong of the rule must be “clearly present” before an order may be considered

collateral. Melvin v. Doe, 836 A.2d 42, 47 (Pa. 2003); see also Shearer v.

Hafer, 177 A.3d 850, 858 (Pa. 2018); Geniviva v. Frisk, 725 A.2d 1209,

1214 (Pa. 1999); Amerisource Bergan Corp. v. Does, 81 A.3d 921 (Pa.

Super. 2013).    Accordingly, where an order satisfies the three-pronged test

of Rule 313- separability, importance, and irreparability- we may exercise

appellate jurisdiction. If the test is not met, however, and in the absence of

another exception to the final order rule, we have no jurisdiction to consider




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an appeal of such an order. Shearer, 177 A.3d at 858; Rae, 977 A.2d at

1125.

        First, Reynolds claims that this Court can decide whether the documents

are sufficiently sensitive/personal so as to preclude production, separate and

apart from the issue of liability for Plaintiff’s injuries. We agree.

        In Ben, supra, the Pennsylvania Supreme Court held that an appeal

from a discovery order raising a question of the application of a privilege is

separable from the underlying issue, so long as the issue of privilege may be

addressed by an appellate court without analysis of the underlying issue.

Schwartz, 729 A.2d at 551–52.         Here, the issue can be resolved without

analysis of the underlying merits of the case.      Whether the lists contained

privileged information or are subject to a protective order are issues peripheral

to the ultimate resolution of the underlying negligence and strict liability issues

in this case. See Kelley v. Pittman, 150 A.3d 59, 64 (Pa. Super. 2016)

(“This Court may examine issues of privilege without analyzing underlying

claims of negligence). Reynolds, therefore, has met the severability prong of

the collateral order test.

        Turning to the second prong, a right is important “if the interests that

would potentially go unprotected without immediate appeal are significant

relative to the efficiency interests served by the final judgment rule[,]”

Geniviva v. Frisk, 725 A.2d 1209, 1213 (Pa. 1999), and are “deeply rooted

in public policy.” Shearer, 177 A.3d at 859. See also Berkeyheiser v. A–

Plus Investigations, Inc., 936 A.2d 1117, 1123–24 (Pa. Super. 2007)

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(“Pennsylvania courts have held that discovery orders involving potentially

confidential and privileged materials are immediately appealable as collateral

to the principal action.”).      Reynolds claims the documents contain medical

information and implicate certain constitutional concerns, including the right

to privacy. We find that Reynolds has failed to evoke the importance prong.

       In Pennsylvania, “a party may obtain discovery of any matter, not

privileged, which is relevant to the subject matter involved in the pending

action,” Pa.R.C.P. 4003.1(a), or is “reasonably calculated to lead to the

discovery of admissible evidence.”             Pa.R.C.P. 4003.1(b).   See Pa.R.C.P.

4009.1 (Production of Documents and Things. General Provisions). Keeping

in mind that we must narrowly construe the doctrine, we are not convinced

that Reynolds’ claim of privilege outweighs our need to consider the judicial

inefficiency and waste of resources in piecemeal litigation. Reynolds’ mere

assertion that the documents are privileged because they implicate medical

issues does not, without more, render those documents privileged. First, in

its request for production of documents, Plaintiff sought “non-privileged

documents” related to claims or contentions by persons who smoked or were

exposed to asbestos while making Kent cigarettes – essentially litigation

documents. Further, to the extent Reynolds claimed privilege, the Plaintiff

agreed to a “privilege log.”3          Although at first glance the reference to

“confidential medical information” and “privacy rights” is appealing, Reynolds
____________________________________________


3Plaintiff does not explain the details of this log, but redaction of the claimants’
names would be anticipated.

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J-A16032-18



fails to support these bare assertions.     Our Supreme Court has cautioned

against finding that the mere assertion of a privacy interest related to

discovery implicates “as-of-right interlocutory appellate review.” Dougherty

v. Heller, 138 A.3d 611, 628 (Pa. 2016). The Dougherty Court stated:

      [W]e cannot accept that any assertion of an attendant privacy
      concern should transform a discovery order that otherwise is not
      appealable by right into a collateral order subject to as-of-right
      interlocutory appellate review. Instead, we find that the specific
      privacy concern in issue must be evaluated and adjudged to
      satisfy the importance requirement. In this regard, we make the
      distinction among different orders of privacy interests, such as
      those of a constitutional magnitude or recognized as such by
      statute, as compared with lesser interests. Again, we believe that
      a contrary approach would unduly impinge upon the general final
      judgment rule.

Id. at 536-37 (footnote omitted).

      Unlike claims of attorney-client privilege, see Meyer-Chatfield Corp.

v. Bank Financial Services Group, 143 A.3d 930 (Pa. Super. 2016),

statutory privacy interests in federal tax returns, Cooper v. Schoffstall, 905

A.2d 482 (Pa. 2006), confidential communications to psychiatrists or licensed

psychologists, Farrell v. Regola, 150 A.3d 87 (Pa. Super. 2016), spousal

privilege, Cap Glass, Inc. v. Coffman, 130 A.3 783 (Pa. Super. 2016), or

information protected by First Amendment rights, Melvin v. Doe, 836 A.2d

42 (Pa. 2003), Reynolds’ claim that the litigation lists rise to the level of

constitutional or statutory privilege is unsupported. Plaintiff is not seeking

sensitive medical health records or histories, nor is Plaintiff seeking settlement

information subject to confidentiality agreements. Plaintiff seeks only


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claimants’ names,4 attorneys’ names and disposition of those claims, all of

which could “lead to the discovery of admissible evidence.”            Pa.R.C.P.

4000.1(b).

        Finally, we are unable to conclude that the rights involved implicate

interests deeply rooted in public policy. The documents sought are litigation

documents, and Reynolds has failed to establish that they are in fact subject

to a protective order. In the transcript of the May 2, 2011 discovery hearing

in the Kentucky case, which Reynolds has included as part of the certified

record, there is no indication that the lists are subject to a protective order.

See Response to Plaintiff’s Motion to Compel of Defendant R.J. Reynolds

Tobacco Company, as Successor-By-Merger to Lorillard Tobacco Company,

12/18/17, Exhibit A.5 Furthermore, even if they were, we agree with Plaintiff’s

____________________________________________


4   See supra at note 3.

5 We note that the trial judge in the Kentucky case stated that he would not
seal the record, but acknowledged counsel’s ethical duty to contact the
claimants’ attorneys, and not the claimants:

        [W]e’re not talking about sealing the record here of all the stuff
        that may come out. We’re talking about is it anybody else’s
        business that so and so filed a claim, and frankly if somebody
        wants to know it that bad they could go and check, it’d be a matter
        of public record. . . . [With respect to settlement agreements] I’m
        comfortable with keeping it confidential except for the fact that
        the claim was brought.

See Discovery Hearing, McGuire v. Hollingsworth & Vose, et al.,
included in Response to Plaintiff’s Motion to Compel of Defendant R.J.
Reynolds Tobacco Company, as Successor-By-Merger to Lorillard Tobacco
Company, 12/18/17, Exhibit A.


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argument that the Kentucky state court cannot determine the discoverability

or admissibility of evidence in an unrelated action in Pennsylvania.       We

conclude that the second prong of the collateral order doctrine is not “clearly

present,” and, therefore, we quash this appeal. Melvin, supra.

      Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/30/18




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