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In re Pedestrian Walkway Failure9/20/2005
trial court certifies in the judgment that there is no just reason to delay the appeal); N.C. Gen. Stat. § 1-277(a) (2003) (permitting an appeal from an interlocutory order "which affects a substantial right claimed in any action or proceeding").
Judge Spainhour's 22 April 2004 order performs two functions: it imposes sanctions for discovery violations, and it also requires Mrs. Hepler to comply with previous oral rulings and written orders governing discovery. Generally, discovery orders, including orders compelling production, are not immediately appealable. Sharpe v. Worland, 351 N.C. 159, 163, 522 S.E.2d 577, 579 (1999). However, "when [a discovery] order is enforced by sanctions pursuant to . . . Rule 37(b), the order is appealable," Walker v. Liberty Mut. Ins. Co., 84 N.C. App. 552, 554, 353 S.E.2d 425, 426 (1987),and the appeal tests the validity of both the discovery order and the sanctions imposed, Benfield v. Benfield, 89 N.C. App. 415, 420, 366 S.E.2d 500, 503 (1988).
In the instant case, Mrs. Hepler appeals from the sanctions imposed pursuant to discovery orders without contesting the validity of the underlying discovery orders themselves. Therefore, it is questionable whether she has any right to immediately appeal from the portion of the interlocutory order imposing sanctions. Further, she undoubtedly has no immediate right of appeal from the portion of the interlocutory order compelling production.
Rule 2 of the North Carolina Rules of Appellate Procedure permits this Court to suspend or vary the requirements of the Rules " o prevent manifest injustice to a party, or to expedite decision in the public interest." Rule 21(a)(1) of the North Carolina Rules of Appellate Procedure provides that " he writ of certiorari may be issued in appropriate circumstances by appellate court to permit review . . . when no right of appeal from an interlocutory order exists . . . ." This Court has discretion under Rule 2 to "treat purported appeal as a petition for writ of certiorari and address the merits [of the arguments presented to this Court]." Mack v. Moore, 91 N.C. App. 478, 480, 372 S.E.2d 314, 316 (1988), disc. review denied, 323 N.C. 704, 377 S.E.2d 225 (1989).
Given the number of parties, and trials, involved in the pedestrian walkway cases, the need for finality and certainty in this complex and "exceptional" litigation, and the likelihood thatdismissing the present appeal would only delay this Court's ultimate review of the subject matter now at issue, we are persuaded that a disposition on the merits in the instant case would "expedite decision in the public interest." See N.C. R. App. P. 2 (2005). Accordingly, we exercise our authority under Rule 2 to consider Mrs. Hepler's appeal as a petition for certiorari, and we grant certiorari to review Judge Spainhour's 22 April 2004 order.
I.
In her first set of arguments, Mrs. Hepler contends that Judge Spainhour erred by excluding the testimony of her expert toxicologist, Dr. Bederka, and by precluding her from contradicting the subject matter contained in the requests for admissions concerning the drugs found in Mr. Hepler's body during an autopsy.
A.
We first address Mrs. Hepler's arguments concerning the exclusion of Dr. Bederka's testimony. These arguments lack merit.
"If a party . . . fails to obey an order to provide or permit discovery . . . the court in which the action is pending may make such orders in regard to the failure as are just, and among others . . . n order . . . prohibiting [the disobedient party] from introducing designated matters in evidence . . . ." N.C. Gen. Stat. § 1A-1, Rule 37(b)(2)(b) (2003). The imposition
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