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M.B. v. Valleylab Inc.6/4/1999
Rel:06/04/1999Pfizerv.Valleylab
NOTICE: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 242-4621), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
OCTOBER TERM, 1998-99
Ex parte Pfizer, Inc., and Valleylab, Inc.
PETITION FOR WRIT OF MANDAMUS
Two defendants, Pfizer, Inc., and Valleylab, Inc. (hereinafter 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 insurer'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' co-defendant 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 a 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 manufactured 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., acting 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 also sought discovery of medical records of all circumcisions performed by Dr. Thomas since January 1986; on May 21, 1997, the trial court ordered the production of these records, but with a privacy order. On September 14, 1998, on motion of Dr. Thomas and Atmore Community Hospital, the trial court vacated its May 21 order compelling discovery of these records, and denied that discovery. On October 13, 1998, Valleylab filed this mandamus petition.
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
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