FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:

ANDREW B. MILLER ESQ. EDWARD L. MURPHY, JR.

Starr Austen & Miller, LLP WILLIAM A. RAMSEY

Logansport, Indiana Murphy Ice & Koeneman LLP

Fort Wayne, Indiana

IN THE 

COURT OF APPEALS OF INDIANA

ANN RACHELLE JOHNSON, )

)

Appellant, )

)

 vs. ) No. 90A05-1109-PL-487

)

DR. A., DR. B., AND MEDICAL PROVIDER, )

)

Appellees. )

APPEAL FROM THE WELLS CIRCUIT COURT

The Honorable Kenton W. Kiracofe, Judge

Cause No. 90C01-0902-PL-1

August 28, 2012

OPINION – FOR PUBLICATION

BAILEY, Judge
2

Case Summary

Ann Rachelle Johnson (“Johnson”), an Indiana resident, filed a proposed 

complaint with the Indiana Department of Insurance (“Department of Insurance”), 

alleging medical malpractice by Dr. A, Dr. B, and their medical practice (collectively, 

“Defendants”), all of which are located in Indiana. Discovery disputes arose over the 

Defendants’ attempts to obtain discovery of records concerning the work history of Dr. 

Hansel M. DeBartolo, Jr. (“Dr. DeBartolo”), an Illinois-based physician retained by 

Johnson as an expert witness. Upon the Defendants’ motion, the trial court ordered Dr. 

DeBartolo to execute a release that requires him to indemnify one of his prior employers 

from liability that may result from inadvertent disclosure of confidential information 

(“the Release”). Johnson appeals the trial court’s order.

We dismiss.

Issues

Johnson’s appeal raises several issues, which we reframe as whether the trial court 

abused its discretion when it ordered Dr. DeBartolo to execute the indemnifying release. 

As threshold matters, the Defendants raise the following issues:

I. Whether this Court has jurisdiction to hear Johnson’s appeal; and

II. Whether, if the Court has jurisdiction to hear the appeal, Johnson has 

standing to pursue this appeal.1

 

1 Defendants also filed a motion for leave to file a reply to Johnson’s submission in opposition to the 

Motion to Dismiss. The Court disposes of this motion in a separate memorandum issued 

contemporaneously to our decision today.
3

Facts and Procedural History2

On December 4, 2008, Johnson filed a proposed complaint with the Department of 

Insurance, in which complaint she alleged that the Defendants were negligent in 

providing her medical care and treatment. See Ind. Code § 34-18-8-4. On February 19, 

2009, Johnson filed an anonymous complaint in the trial court against the Defendants, 

alleging the same negligent acts. See I.C. § 34-18-8-7. On March 5, 2009, the 

Defendants filed a motion to stay the proceedings except for determination of legal issues 

and discovery matters.3 See I.C. § 34-18-11-1. 

At some point in the proceedings, Johnson designated Dr. DeBartolo, who 

practiced medicine in Sugar Grove, Illinois, as an expert witness. The Defendants 

deposed Dr. DeBartolo for several hours on May 10, 2010. The deposition was 

adjourned and reconvened on June 29, 2010; the June 29, 2010 portion of the deposition 

was video-recorded. 

During the June 29, 2010, deposition, Dr. DeBartolo declined to sign documents 

authorizing disclosure to the Defendants “of records and documents concerning his 

education, background, and medical and surgical experience.” (Appellees’ App. at 3.) 

 

2 We held oral argument on Johnson’s appeal and the Defendants’ Motion to Dismiss on August 8, 2012. 

We thank the parties for their able advocacy.

3 Generally, plaintiffs in medical malpractice actions in Indiana must file proposed complaints with the 

Department of Insurance and wait for an opinion from a medical review panel before filing suit in a trial 

court against a defendant. Ind. Code § 34-18-8-4. However, a plaintiff “may commence an action in 

court for malpractice” while the proposed complaint is still being considered by a medical review panel, 

so long as the complaint does not “contain any information that would allow a third party to identify the 

defendant.” I.C. § 34-18-8-7(a)(1). The plaintiff may not pursue the claim at the trial court until after the 

medical review panel has issued its opinion, and the trial court’s actions upon the complaint are limited to 

dismissal of the action, making certain preliminary determinations, and overseeing portions of the 

discovery process. I.C. §§ 34-18-8-7(a) & (b), -8; I.C. § 34-18-11-1 et seq.
4

These included an authorization to obtain copies of Dr. DeBartolo’s academic records 

from medical school and surgical records and litigation-related documents of one of Dr. 

DeBartolo’s former employers, Delnor Community Hospital (“the Authorization”). 

Consequently, on August 9, 2010, the Defendants filed a consolidated Motion for 

Preliminary Determination and Motion to Set Reasonable Expert Witness Fees and 

Motion to Compel (“Defendants’ First Motion to Compel”). In Defendants’ First Motion 

to Compel, the Defendants sought an order compelling “Dr. DeBartolo to sign any record 

authorizations.” (Appellees’ App. at 4.)

The parties’ dispute over discovery matters continued. On March 4, 2011, 

Johnson filed a Motion to Compel (“Plaintiff’s Motion to Compel”) requesting an order 

for the Defendants to provide signed authorizations for the release of records related to 

the Defendants’ credentials and professional histories. On April 14, 2011, the trial court 

conducted a hearing on the Defendants’ First Motion to Compel and Plaintiff’s Motion to 

Compel. After taking the motions under advisement, on May 12, 2011, the trial court 

entered numerous orders on the case; among them was an order compelling Dr. 

DeBartolo to execute releases to several hospitals at which he worked. Dr. DeBartolo 

complied with the order. 

On July 12, 2011, counsel for the Defendants communicated to counsel for 

Johnson that one of the hospitals at which Dr. DeBartolo had worked, Delnor Community 

Hospital (“Delnor”), “refus[ed] to provide the records Dr. DeBartolo authorized the 

hospital to provide” in the Authorization because of “fears that Dr. DeBartolo [would] 

institute legal proceedings against the hospital for complying.” (Appellant’s App. at 17.) 
5

In addition, counsel for Delnor had informed Defendants’ counsel that Dr. DeBartolo had 

previously filed an action in a Kane County, Illinois, court against Delnor. 

To “quell [Delnor’s] fear of your expert,” counsel for the Defendants submitted a 

release (“the Release”) to Johnson’s attorney for Dr. DeBartolo to execute. (Appellant’s 

App. at 17.) The Release provided that Dr. DeBartolo would

release, acquit and forever discharge [Delnor], and any other person firm or 

corporation as its agent from all actions, suits, causes of action, claims, or 

demands of any kind in nature whatsoever, whether known or unknown at 

this time, on account of Delnor or its agents’ compliance with [the 

Authorization] signed by [Dr. DeBartolo].

(Appellant’s App. at 18.) The Release also provided that, by signing, Dr. DeBartolo

agreed [to] indemnify and forever hold harmless [Delnor] and its agents 

against any expenses, costs, or payments of any kind, including court costs 

and attorneys’ fees, which they may be compelled to make or expend based 

on any litigation that I or any person or entity bring against Delnor 

regarding the Request Authorization for Access to Records or action taken 

by Delnor pursuant [to the Request].

(Appellant’s App. at 18.)

Dr. DeBartolo did not sign the Release provided to counsel for Plaintiff. On 

August 17, 2011, the Defendants filed a Motion to Enforce Order, contending that the 

Second Release “does not require Dr. DeBartolo to take any steps not ordered by the 

Court” and that “there is no reason for Dr. DeBartolo not to sign ... unless he plans on 

suing [Delnor] for complying with the Authorization.” (Appellant’s App. at 13.) To 

“ensure that the spirit of the Court’s Order of May 12, 2011, is followed,” the Defendants 

requested “an Order requiring Dr. DeBartolo to execute the Release.” (Appellant’s App. 

at 13.)
6

On September 1, 2011, the trial court entered an Order requiring Dr. DeBartolo to 

sign the Release and Authorization and return the signed documents to counsel for the 

Defendants within seven days (“the Order”). 

On September 13, 2011, Johnson filed her Notice of Appeal, pursuing 

interlocutory appeal of the Order and citing as the basis for our jurisdiction Appellate 

Rule 14(A)(2). On November 4, 2011, the Defendants filed a Motion to Dismiss in this 

Court. The Motion to Dismiss argued that the Order is not of the type required to create 

interlocutory appellate jurisdiction under Appellate Rule 14(A)(2)4and that Johnson 

lacked standing to bring the appeal. Johnson filed her response to the Defendants’ 

Motion to Dismiss on December 8, 2011. On December 6, 2011, the Defendants filed 

their Motion for Leave to File Reply to Johnson’s responsive briefing on the Motion to 

Dismiss.

On January 20, 2012, this Court held in abeyance both the Defendants’ Motion to 

Dismiss and their Motion for Leave to File Reply.

Discussion and Decision

Defendants argue in their Motion to Dismiss that this Court lacks jurisdiction over 

this appeal. This Court has jurisdiction “in all appeals from Final Judgments of Circuit, 

Superior, Probate, and County Courts,” Ind. Appellate Rule 5(A), and has jurisdiction 

“over appeals of interlocutory orders under [Appellate] Rule 14,” App. R. 5(B), except 

for certain appeals over which our Supreme Court holds sole appellate jurisdiction. 

 

4 Appellate Rule 14(A) provides the types of orders from which an appellant may seek review of a trial 

court’s order as of right prior to the entry of final judgment in a case. Among the orders from which a 

party may pursue interlocutory appeal as a matter of right is an order “[t]o compel the execution of any 

document.” Ind. Appellate Rule 14(A)(2).
7

“Judgments or orders as to less than all of the issues, claims, or parties remain 

interlocutory until expressly certified as final by the trial judge,” Berry v. Huffman, 643 

N.E.2d 327, 329 (Ind. 1994), except as authorized by the Indiana Constitution, statutes, 

and rules of court. Allstate Ins. Co. v. Scroghan, 801 N.E.2d 191, 193 (Ind. Ct. App. 

2004) [hereinafter Scroghan I], trans. denied. We must dismiss “any attempt to perfect 

an appeal without such authorization.” Id. (citing Anthrop v. Tippecanoe Sch. Corp., 257 

Ind. 578, 277 N.E.2d 169, 171 (1972)).

Here, Johnson sought interlocutory review of the trial court’s Order of September 

1, 2011 under Appellate Rule 14(A)(2), which provides for interlocutory appeal as of 

right from orders “[t]o compel the execution of any document.” Defendants in their 

Motion to Dismiss argue that the appealed Order, which required Dr. DeBartolo to 

execute the Release, is not an order to compel the execution of a document as 

contemplated by Appellate Rule 14(A)(2) because it is a discovery order and not 

appealable as of right.

While Defendants’ conclusion is consistent with prior decisions of this Court and 

our Supreme Court, these decisions have all addressed the case of a party seeking to 

avoid its own direct participation in discovery. Such disputes have generally centered on 

the party’s refusal to execute a medical release or to otherwise participate in discovery on 

a matter in dispute. See Cua v. Morrison, 600 N.E.2d 951, 952-53 (Ind. Ct. App. 1992)

trans. denied (concluding that a party ordered to execute a medical release form does not 

have a right to seek interlocutory appeal under the predecessor to App. R. 14(A)(2)); 

State v. Hogan, 582 N.E.2d 824, 825 (Ind. 1991) (stating that “matters which are 
8

appealable as of right ... involve trial court orders which carry financial and legal 

consequences akin to those more typically found in final judgments”); also Rausch v. 

Finney, 829 N.E.2d 985 (Ind. Ct. App. 2005) (dismissing an interlocutory appeal seeking 

review under App. R. 14(A)(2) of a discovery order requiring a party’s execution of a 

medical release).

This case does not present such a situation. Rather, here a nonparty has been 

ordered by a trial court to execute a broad Release with significant and unexplored legal 

consequences for that nonparty, and that order comes dangerously close to the type of 

“‘fishing expedition’” our discovery rules are intended to foreclose. Crawford v. State, 

948 N.E.2d 1165, 1168 (Ind. 2011) (quoting State v. Cline (in re WTHR-TV), 693 

N.E.2d 1, 6 (Ind. 1998). In such circumstances—and especially where the nonparty is 

not otherwise subject to the jurisdiction of an Indiana court—we think that Appellate 

Rule 14(A)(2) permits an interlocutory appeal as of right.

We nevertheless conclude we cannot exercise jurisdiction in this matter because 

Johnson’s appeal was not properly perfected. As we observed in Allstate Ins. Co. v. 

Scroghan, 851 N.E.2d 317 (Ind. Ct. App. 2006) [hereinafter Scroghan II], though “we do 

not condone the practice of intentionally violating discovery orders to obtain appellate 

review ... we recognize that such a practice can act as an important ‘safety valve,’ which 

relieves parties from generally non-appealable discovery orders.” Scroghan II, 851 

N.E.2d at 322 (citing Marrese v. Am. Acad. of Orthopaedic Surgeons, 726 F.2d 1150, 

1157 (7th Cir. 1984), rev’d on other grounds, 470 U.S. 373 (1985), and quoting Marrese

for the proposition, “incur[ring] a sanction for contempt is a crude but serviceable 
9

method, well established in case law, of identifying the most burdensome discovery 

orders and in effect waiving the finality requirement for them”). Thus, unless there is 

some sanctioning action against a party by the trial court resulting from failure to comply 

with the Order that Dr. DeBartolo execute the release, or alternately the denial of a 

motion by Johnson seeking a protective order under Trial Rule 26(C), we cannot 

conclude that the Order gives rise to an interlocutory appeal as of right.

In other words, absent a clear showing of prejudice5in a failed attempt to obtain a 

protective order, or the entry of an order making it clear that some sanction will be 

imposed upon a party or the nonparty subject to the order, an appeal from an order 

compelling a nonparty’s execution of a document is not properly perfected.

We only very rarely issue advisory opinions, though we observe that on at least 

one occasion, this Court has issued an opinion reversing a trial court’s order on a pretrial 

matter where it appeared that the court’s interpretation of a prior order would clearly 

prejudice parties not immediately affected by the appealed-from order. See Travelers 

Indem. Co. v. P.R. Mallory & Co., 772 N.E.2d 479 (Ind. Ct. App. 2002). Here, however, 

Johnson has not yet been subject to any order that has actively prejudiced her case. We 

therefore cannot conclude that Johnson’s appeal is properly perfected.

Yet neither are we certain that the Defendants’ decision to pursue the Order and 

the trial court’s grant of the Order are acceptable discovery practices under our Trial 

Rules. The Release would shift the liability risks associated with the discovery 

participation of one Illinois-resident nonparty (Delnor) onto another Illinois-resident 

 

5 This might under some circumstances encompass a ruling in limine that failure of a nonparty to comply 

with a discovery order would result in exclusion at trial of evidence from that nonparty.
10

nonparty (Dr. DeBartolo). Yet our trial rules provide that the party seeking production 

from a nonparty must provide that indemnification. T.R. 34(C)(3). Our trial rules also 

provide a defined path for seeking discovery from an out-of-state nonparty, whereby the 

party seeking discovery may obtain an order compelling participation in discovery from 

the Indiana trial court and pursue the appropriate form of action in the courts of the outof-state nonparty to enforce the Indiana discovery order. T.R. 28(D).

It thus seems that the appropriate route for the Defendants here is to pursue an 

order from the trial court compelling Delnor to produce documents and then to use the 

appropriate Illinois process to obtain that production. However inefficient it may have 

been to follow the discovery procedures set forth in our Trial Rules—and whatever 

common practice among litigants may be—it is not clear to us that the trial court could 

sanction Johnson for Dr. DeBartolo’s failure to comply with the Order without abusing 

its discretion.

Nevertheless, because Johnson does not yet face actual prejudice from the trial 

court’s order, we dismiss her appeal.

Dismissed.

ROBB, C.J., and MATHIAS, J., concur.