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Loboa v. Women's Health Alliance, P.A.

United States District Court, E.D. North Carolina, Western Division

October 24, 2019

WOMEN'S HEALTH ALLIANCE, P.A. f/k/a Atrium Obstetrics & Gynecology, P.A. d/b/a Atrium Obstetrics & Gynecology, UWH OF NORTH CAROLINA, LLP, ZOE BEATTY, M.D., a/k/a Zoe Pietrus, and TARA SEMLER Defendants.



         This matter comes now before the court on defendants' motion to stay the court's October 10, 2019, order compelling disclosure of statements made by defendant Zoe Beatty (“Beatty”) and Tara Semler (“Semler”) (DE 88), defendants' motion for extension of time to comply with the court's order compelling disclosure (DE 90), and plaintiffs' consent motion to amend the court's case management order (DE 91).[1] The issues raised have been fully briefed, and in this posture are ripe for ruling. For the reasons that follow, defendants' motion to stay is denied, defendants' motion for extension of time is allowed, and plaintiffs' consent motion for extension of time is allowed.


         This case concerns whether defendants were negligent or committed medical malpractice. During plaintiff Elizabeth Loboa's (“Loboa”) routine gynecological appointment on September 29, 2015, defendant Dr. Zoe Beatty (“Beatty”) applied a solution to plaintiff Loboa that defendant Tara Semler (“Semler”), a medical assistant, handed to her. It is alleged that, as part of the procedure, defendant Beatty should have applied a solution with an acid concentration of 3-5%, but instead used a solution with an acid concentration of around 80%.

         Shortly after the incident, Ruth White (“White”), defendant Women's Health Alliance, P.A.'s (“Atrium”) office manager, asked both defendants Beatty and Semler to prepare written statements about the incident. Plaintiffs filed motions to compel production of the statements. Defendants refused to produce the statements or answer questions regarding the contents of the statements at deposition, filing a protective order and invoking the work product doctrine. Upon full consideration of deposition testimony and other evidence shedding light on the creation of the statements, the court determined that defendants failed to establish that the statements were prepared in anticipation of litigation, rather than in the ordinary course of business. In pertinent part, the court ordered that defendants produce the statements by October 24, 2019, denied defendants' request for protective order to avoid deposition questions on the written statements, and allowed plaintiffs' request for additional deposition time.

         In response to the court's order, defendants jointly filed the instant motion to stay the court's ruling. Defendants intend to petition the United States Court of Appeals for the Fourth Circuit for writ of mandamus and ask this court to stay its ruling until the Fourth Circuit rules on the petition. In conjunction with the motion to stay, defendants jointly filed a motion for extension of time to respond to the court's October 10, 2019, order, asking for five days from the date the court disposes of the motion to stay to comply.

         Where the deadline for fact discovery had elapsed when the court entered its order on October 10, 2019, the court directed the parties to jointly propose amendments to the case management order. Plaintiffs filed the parties' proposed amendments to the court's case management order in its consent motion dated October 17, 2019.


         A. Defendants' Motion to Stay (DE 88)

         1. Standard of Review

         In determining whether to grant a stay pending appeal, the court must consider four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). “There is substantial overlap between these and the factors governing preliminary injunctions, . . . not because the two are one and the same, but because similar concerns arise whenever a court order may allow or disallow anticipated action before the legality of that action has been conclusively determined.” Id. (citing Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22-24 (2008)).

         2. Analysis

         With respect to the first stay factor, defendants are not likely to succeed on the merits. The basis for defendants' motion for stay is an anticipated petition for mandamus to the Fourth Circuit. “The remedy of mandamus is a drastic one, to be invoked only in extraordinary situations.” Kerr v. U.S. Dist. Court for N. Dist. of California, 426 U.S. 394, 402 (1976). “To ensure that mandamus remains an extraordinary remedy, petitioners must show that they lack adequate alternative means to obtain the relief they seek, and carry the burden of showing that [their] right to issuance of the writ is clear and indisputable.” Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 308-09 (1989) (internal citations and quotations omitted). “[E]ven if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.” Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 381 (2004).

         Turning to the first element of adequate alternative means, defendants cite the United States Supreme Court's decision in Mohawk Industries v. Carpenter for the proposition that mandamus is the appropriate avenue for challenging a court's discovery order rejecting a claim of privilege. 558 U.S. 100, 111 (2009). Mohawk undermines, rather than supports, defendants' request for stay. There, the Court held that “the collateral order doctrine does not extend to disclosure orders adverse to the attorney-client privilege. Effective appellate review can be had by other means.” Mohawk, 558 U.S. at 114. The Court explained that “[a]ppellate courts can remedy the improper disclosure of privileged material in the same way they remedy a host of other erroneous evidentiary rulings: by vacating an adverse judgment and remanding for a new trial in which the protected material and its fruits are excluded from evidence.” Id. at 109. While the court does mention mandamus as an avenue for immediate relief, the import of Mohawk is that ...

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