It appears that the Pennsylvania Supreme Court is serious about cutting back on the collateral order doctrine. Now embodied in Pa. R.A.P. 313, the collateral order doctrine allows the immediate interlocutory appeal of disputes over judicial orders, usually but not exclusively involving discovery, that are: separable from the merits of the case itself, “too important to be denied review,” and would be “irreparably lost” if not immediately reviewed, Rule 313(a); see Bell v. Beneficial Consumer Discount, 348 A.2d 734, 734 (Pa. 1975).

For many years, Pennsylvania courts had been more liberal in their application of the collateral order doctrine than had been their counterparts in the federal judiciary, as in Commonwealth v. Harris, 32 A.3d 243, 249 (Pa. 2011) (adopting categorical approach to collateral order doctrine, contrary to federal practice). In Dougherty v. Heller, 138 A.3d 611 (Pa. 2016), this difference in application began to close. Dougherty was a defamation action brought by the business manager of a politically active labor union against a newspaper reporter. The collateral issue raised on appeal in Dougherty was a dispute over the conditions under which the plaintiff's deposition would be videotaped. The plaintiff demanded ironclad guarantees against public release of the videotape by the defendant newspaper, and the defendant refused to give them. The objections had a sandbagging element to them, as they were only raised at the deposition itself and not made during the extended prior period while the deposition had been scheduled.

The plaintiff's objections aborted the deposition and prompted motion practice. The Court of Common Pleas ordered the deposition to proceed, and the plaintiff appealed under the collateral order doctrine. The Superior Court, ultimately sitting en banc, ruled unanimously that the plaintiff's fear of possible adverse publicity satisfied the requirements of the collateral order doctrine, but affirmed the Common Pleas Court on the merits—ordering that the deposition proceed regardless of the conditions that the plaintiff sought to impose.

On further appeal to the Pennsylvania Supreme Court, the union's widespread influence in judicial elections led to a highly unusual situation, where fully five of the seven sitting justices recused themselves. They were replaced by a phalanx of intermediate appellate judges, mostly senior judges felt to be insulated from political retaliation.

In a splintered per curiam opinion (reading like it was authored largely by Chief Justice Thomas Saylor), Dougherty held that the order in question was not immediately appealable, as it fell outside of the collateral source doctrine. Both sitting justices and two of the temporary appointees agreed that the collateral order doctrine did not extend to any case involving “the mere assertion of a privacy interest related to discovery.” To preserve the “general policy against piecemeal appeals,” “the collateral order doctrine is to be administered narrowly.” Claims of “annoyance and embarrassment” must be concrete to support a collateral appeal: “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.”

In Dougherty, the plaintiff-appellant “had a legitimate interest (albeit not one rising to a constitutional dimension) in the discovery process not being abused to his detriment.” However, the record revealed no immediacy in the claimed threat—“no allegation of a media 'frenzy,' or 'circus-like atmosphere.'” The “mere possibility of dissemination of unknown content is insufficient to raise the type of issue which is 'too important to be denied review' under the collateral order doctrine.” See also, at 632, (the “asserted claims of harm are simply too speculative to evaluate”) (Leadbetter, Temp. J. concurring); (“failure to construe the doctrine narrowly results in scenarios like the instant one”) (Strassburger, Temp. J., concurring).

It remained to be seen whether the restrictive view of the collateral source doctrine enunciated in Dougherty would persist once the court's regular compliment of justices was restored. The recent decision in Shearer v. Hafer, ___ A.3d ___, No. 93 MAP 2016, (Pa. Jan. 18, 2018), seems to add substantial clarity to the situation, and that clarity does not bode well for expansive interpretations of the collateral source doctrine. By a 6-1 majority, the elected justices decided in Shearer that the doctrine did not apply to allow interlocutory appeal of a dispute over who is allowed to attend an independent medical examination (IME). After Shearer, it appears that the doctrine will only be available in discovery cases where the applicability of a privilege, or evidentiary equivalent, is at stake.

In Shearer the plaintiffs-appellants had their expert conduct his “cognitive evaluation” of the physically injured plaintiff “without [defense] counsel or any other third party present.” The defendant sought to conduct an IME under the same circumstances, but plaintiffs “demanded that the evaluation be audiotaped, and that their counsel, or other representative, be present.” After motion practice, the defendants-appellees obtained most of the relief they sought— specifically, exclusion of opposing counsel from the IME itself. Plaintiffs then sought collateral order review, which the Superior Court allowed. Finding that the loss of counsel's presence during the examination would be “irreparable,” the Superior Court held that an immediate appeal would lie under Rule 313, relying in large part on its decision in Dougherty, which as discussed above, has subsequently been reversed.

Again the Pennsylvania Supreme Court reversed, and again it decided in favor of limiting the collateral order doctrine. The six-justice majority reiterated the importance of unitary appellate review. “Considering issues only after a final order maintains distinctions between trial and appellate review, respects the traditional role of the trial judge, and promotes formality, completeness, and efficiency.” In addition “allowing nonfinal orders to be immediately appealable could be used as a tool of harassment, by extending the litigation process and increasing the opposing party's expenses.”

Thus, in Shearer the court recognized that Pennsylvania's previous categorical approach to collateral order appeals: must be tempered by an appreciation that the collateral order doctrine is to be narrowly construed in order to buttress the final order doctrine, and by the recognition that a party may seek an interlocutory appeal by permission pursuant to Pa. R.A.P. 312.

With these limits to the collateral order doctrine “in mind,” the court held that whether or not counsel attends an IME simply was not important enough to justify collateral order review:

First, the right to counsel in this instance does not implicate a constitutional right, but, rather, is rule-based … . Additionally, the right asserted is not solely one implicating legal representation, as the rule provides that counsel “or other representative” may be present … . Finally, it appears that only a discrete part of the broader psychological examination is at issue.

Thus, the discovery issue the court was being asked to decide was “largely limited, individualized, and fact-based.” Nor was any right “irreparably” lost, since were the exclusion of plaintiffs counsel from a defense IME eventually held improper, the relief would be to require an additional IME conducted under whatever limits were ultimately determined to be appropriate.

In light of Dougherty and Shearer, appellate practitioners should recalibrate their approach to the collateral order doctrine. The mere existence of an adverse collateral order, particularly one involving discovery, is no longer (if it ever was) a free pass to immediate appellate review. Instead, except in cases where a “bell” truly “cannot be unrung,”as in Harris, 32 A.3d at 249, such as disclosures of information subject to a privilege objection, appellate counsel should carefully consider the prerequisites of Rule 313, and whether a collateral appeal is likely to succeed. Dougherty and Shearer have, between them, restored teeth to the limits of the collateral source doctrine, and having an expensive and time-consuming appeal quashed serves nobody's interests.

James M. Beck, a member of the Reed Smith life sciences health industry group, focuses his practice on complex personal injury and products liability litigation. He has experience in developing legal defenses, master briefs and dispositive motions in numerous mass torts, and has prepared amicus briefs on behalf of a variety of national organizations.