MATERIALS ANALYTICAL SERVICES, LLC v. JOHNSON & JOHNSON

Court of Appeals of the State of Georgia

ATLANTA,____________________ November 29, 2023

The Court of Appeals hereby passes the following order:

A24I0074. MATERIAL ANALYTICAL SERVICES LLC, et al v. JOHNSON & JOHNSON, et al.

This application for an interlocutory appeal arises out of a products liability action filed by Matthew Streck against Johnson & Johnson and Chattem, Inc. in Jefferson County, Kentucky. Streck alleged that he had suffered injuries caused by asbestos in Johnson’s Baby Powder (manufactured by Johnson & Johnson) and Gold Bond Foot Powder (manufactured by Chattem).«Exh. 5 at 32» Streck retained Materials Analytical Services, Inc. (“MAS”) to test samples of the products.«Exh. 5 at 33» He also retained Dr. William Longo, the principal owner of MAS, to provide expert testimony based on those test results.«Id.» When deposed, Dr. Longo testified that a MAS employee, Paul Hess, conducted tests on certain samples of the products manufactured by Chattem. «Exh. 4 at 35 (Longo Depo. at 49)» Given Longo’s testimony, Chattem moved to compel Hess’s deposition.«See Exh. 5 at 29» The Kentucky court denied that motion, stating that it “would not order [Streck] to produce Mr. Hess.”«Exh. 5 at 29» The Kentucky order further stated, however, that the court would “support any process [Chattem] wish[es] to utilize in an attempt to subpoena [Hess].”«Id.»

Chattem subsequently subpoenaed Hess for a deposition pursuant to the Uniform Interstate Deposition and Discovery Act, OCGA § 24-13-110, et seq.«Exh. 4 at 19» Because Hess is a resident of Cobb County, MAS filed a motion in Cobb County Superior Court seeking to quash the subpoena.1 Following a hearing, the trial court denied the motion to quash and ordered Hess to appear for a deposition on a date agreed upon by counsel. «Order at 2» The trial court granted MAS a certificate of immediate review, and MAS and Hess then filed this timely application for an interlocutory appeal. Under Georgia law, “a discovery order directed at a disinterested third party is treated as an immediately appealable final order because the third party presumably lacks a sufficient stake in the proceeding to risk contempt by refusing compliance.”Hickey v. RREF BB SBL Acquisitions, LLC, 336 Ga. App. 411, 413 (1) (785 SE2d 72) (2016) (punctuation omitted). See also Benchmark Rehabilitation Partners, LLC v. SDJ Logistics, LLC, 367 Ga. App. 203, 204 (2) (885 SE2d 224) (2023) (holding that an order denying a disinterested third party’s motion to quash a subpoena is directly appealable under the collateral order doctrine). Here, the parties seeking to appeal the trial court order (NAS and Hess) are disinterested third parties, as neither is a party to the underlying litigation. See Speedy Care Transportation v. George, 348 Ga. App. 325, 326, n.1 (822 SE2d 687) (2018) (identifying a disinterested third party as one who is not a party to the case in which discovery is sought). “This Court will grant a timely application for interlocutory review if the order complained of is subject to direct appeal and the applicants have not otherwise filed a notice of appeal.” Spivey v. Hembree, 268 Ga. App. 485, 486, n. 1 (602 SE2d 246) (2004). Accordingly, this interlocutory application is hereby GRANTED. Appellants

1 MAS asserted it was an interested party with respect to the subpoena because Hess was currently employed with the company. «Exh. 4. at 1, n.1» The day before the hearing on the motion, MAS filed a pleading in which it stated that the motion to quash was filed with the knowledge and consent of Hess, and that counsel for MAS was also representing Hess. «Exh. 6 at 14»

shall have ten days from the date of this order to file a notice of appeal in the trial court if they have not already done so. The clerk of the superior court is DIRECTED to include a copy of this order in the record transmitted to this Court.

Court of Appeals of the State of Georgia Clerk’s Office, Atlanta,____________________ 11/29/2023 I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written.

, Clerk .