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In re Pedestrian Walkway Failure9/20/2005
records relating to Dr. Gieseke's treatment of Mrs. Hepler in 1995 were no longer available when Mrs. Hepler requested them. An MRI taken of Mrs. Hepler's back was among the documents that could no longer be produced.
Mrs. Hepler also failed to produce chiropractic records relating to treatment of a pinched nerve in her lower spine during the 1990's, and failed to produce records relating to treatment for back pain in 1994, including records arising from her admission to a hospital on 5 July 1994.
Tindall sought to have Mrs. Hepler precluded from introducing any evidence tending to show that the back injuries referenced in her complaint were the result of the pedestrian walkway failure. Judge Spainhour found that
he medical records that are missing, destroyed, or have not been produced from Dr. Gieseke and other providers who treated [Mrs. Hepler] for her history of back problems, particularly the MRI, were relevant to the defense of claims relating to her back[,] and such records should have been produced when first requested by Defendants in 2001. failure to obtain and produce such records requires that an appropriate remedy or sanction be entered.
After considering other available remedies and sanctions, Judge Spainhour ruled that Mrs. Hepler would be precluded from presentingany testimony or offering any exhibits or documents "that state, imply or infer that any back injury or problem . . . caused or developed as a result of the pedestrian walkway failure."
iv. The Motion to Compel
Tindall also sought a court order compelling production of additional medical records concerning the Heplers. In particular, Tindall sought previous mental health records, which were alleged to be important in defending Mrs. Hepler's claim that she suffered emotional distress as a result of the pedestrian walkway collapse. At the 1 April 2004 hearing, Judge Spainhour orally instructed Mrs. Hepler's attorney to produce these records " ithin 20 days" from the date of the hearing. In the order entered 22 April 2004, Judge Spainhour ruled that
Tammy Hepler has failed to identify all of her medical care providers and has failed to produce all of the medical records for herself . . . which she was required to produce by the Rules of Civil Procedure and the Case Management Orders. failures to do so have prejudiced Defendants in their ability to prepare the defense of her claims . . . , which are scheduled for trial beginning June 21, 2004.
The written order repeated Judge Spainhour's previous verbal order that "all such records should be produced and all identification should be made by [Mrs. Hepler] within 20 days of the date of the hearing on this matter."
From the order imposing sanctions and compelling production of medical records, Mrs. Hepler now appeals.
THE INTERLOCUTORY NATURE OF MRS. HEPLER'S APPEAL
The order from which Mrs. Hepler appeals is interlocutory. See Veazey v. Durham, 231 N.C. 357, 362, 57 S.E.2d 377, 381 (noting that an interlocutory order "does not dispose of the case, but leaves it for further action by the trial court in order to settle and determine the entire controversy"), reh'g denied, 232 N.C. 744, 59 S.E.2d 429-30 (1950). As a general rule, appeals from interlocutory orders will be dismissed by this Court unless the trial court has entered a certification pursuant to N.C. Gen. Stat. § 1A-1, Rule 54(b), or the appeal affects a substantial right. See N.C. Gen. Stat. § 1A-1, Rule 54(b) (2003) (making an interlocutory order immediately appealable when the trial court enters a final judgment as to one or more but fewer than all of the claims or parties and the
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