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Carl v. Children's Hosp.

April 10, 1995


Appeal from the Superior Court of the District of Columbia. (Hon. Steffen W. Graae, Trial Judge).

Before Farrell and King, Associate Judges, and Mack, Senior Judge. Opinion for the court by Associate Judge King. Concurring opinion by Associate Judge Farrell. Dissenting opinion by Senior Judge Mack.

The opinion of the court was delivered by: King

KING, Associate Judge: This action arises out of the termination of the employment of Linda C. Carl, a probationary part-time nurse working in the Neonatal Intensive Care Unit ("NICU"), by appellee Children's Hospital ("Children's").


Children's hired Carl on October 14, 1991, with the understanding that she would be required to complete the NICU orientation program, which consisted of both clinical and classroom components, in order to be fully qualified to care for the infants in the unit, and to work a minimum of twenty hours per week. Following the commencement of her employment, Carl twice requested, and was granted, permission to defer attending orientation classes. At the time she was terminated, she had neither completed the program nor had she consistently met her minimum weekly hours.

In February 1992 Melinda Murray, one of Children's in-house counsel, met with Jacqueline Muir, Assistant Vice President of Nursing, to discuss Carl's employment status. This was followed by a meeting between Muir and Janice Berry, a clinical manager in NICU, to determine why Carl had failed to complete her orientation and to meet her minimum required work hours. On February 26, 1992, following these two meetings, Muir and two other Children's administrative executives met with two of Children's in-house counsel, Melinda Murray, Associate General Counsel, and Ilene Reid, Associate Counsel, to obtain legal advice concerning Carl's employment status. Thereafter, on March 20, 1992, Children's terminated Carl's employment citing both her failure to complete the NICU orientation and her failure to work the required twenty hours as reasons for the termination.

Carl maintains that she was fired because she acted as plaintiffs' expert witness in medical malpractice cases and also because of her testimony before the Council of the District of Columbia ("D.C. Council"), advocating a position anti-thetical to that of Children's regarding tort reform legislation. She filed a six-count complaint against Children's and Cathy J. Fonner, a nurse employed by Children's as a clinical educator, seeking recovery for economic, medical, personal, and professional damages stemming from her termination by Children's on theories of retaliatory discharge, promissory estoppel, defamation, intentional infliction of emotional distress, breach of contract, and intentional interference in contractual relations.

On December 11, 1992, the trial court dismissed Carl's retaliatory discharge, defamation, and intentional infliction of emotional distress claims, but ruled that Carl had sufficiently stated claims for promissory estoppel, breach of contract, and intentional interference in contractual relations. *fn1 Thereafter, the parties engaged in extensive discovery, following which Carl moved to compel Children's to answer certain deposition questions and to provide certain documents relating to the February 26, 1992, meeting between Children's administrative executives and its in-house counsel. The trial court denied Carl's motion to compel discovery on the ground of attorney-client privilege. Following this ruling, Carl voluntarily dismissed her remaining claims for promissory estoppel and breach of contract in order to test the discovery ruling in this court. In this appeal, Carl seeks reversal of the trial court's dismissal of her retaliatory discharge claim and the order denying the motion to compel discovery as it relates to the promissory estoppel claim.


In reviewing a motion to dismiss for failure to state a claim upon which relief can be granted, we construe the complaint in favor of the plaintiff, and accept its allegations as true. McBryde v. Amoco Oil Co., 404 A.2d 200, 202 (D.C. 1979). Thus construed, the complaint alleges that Carl was fired because she testified before the Council of the District of Columbia and served as plaintiffs' expert witness in medical malpractice cases. Carl claims her discharge contravened specific public policies adopted by the District of Columbia including: (1) a citizen's right to engage in political expression before the Council without fear of harassment or intimidation; *fn2 (2) a professional nurse's duty to participate in the legislative process, to advocate positions of public importance on behalf of patients, and to educate the legislature so that it can make informed public policy decisions; *fn3 and (3) the evidentiary rule requiring expert testimony to establish a prima facie case of negligence in a medical malpractice action. *fn4 The trial court, rejecting Carl's public policy arguments, dismissed the claim, apparently in reliance on Adams v. George W. Cochran & Co., 597 A.2d 28,32 (D.C. 1991), stating:

I really don't think there's much dispute about what the law is here ... that's a claim that only lies if, if there's a dismissal based on the refusal to perform an illegal act. And I don't think that's what we here ....

The employment-at-will principle applied by the trial court is well-settled in the District of Columbia, and we have consistently held that an at-will employee may be discharged at any time for any reason, or for no reason at all. See Wemhoff v. Investors Management Corp. of Am., 528 A.2d 1205, 1208 n.3 (D.C. 1987); Taylor v. Greenway Restaurant, Inc., 173 A.2d 211, 211 (D.C. 1961). In Adams, supra, this court reiterated its commitment to this principle, but created a very narrow exception because:

[it was] universally accepted that an employer's discharge of an employee for the employee's refusal to violate a statute is a wrongful discharge in violation of public policy[.]

Adams, 597 A.2d at 32(citations omitted). We thus permitted a fired at-will employee to maintain an action against the former employer for wrongful discharge "when the sole reason for the discharge was the employee's refusal to violate the law, as expressed in a statute or municipal regulation." Id. at 34 (emphasis added). Carl concedes, and we agree, that she does not meet this exception, but invites the court to expand Adams to encompass a claim such as the one alleged by her, arguing that D.C. Code § 1-224, *fn5 the national nursing code, and District of Columbia case law set forth clear public policy, the violation of which creates a wrongful discharge cause of action. See (supra) notes 2-4.

In four separate decisions since Adams, beginning with Gray v. Citizens Bank of Washington, 602 A.2d 1096, 1097 (D.C.), opn. reinstated on denial of reh'g, 609 A.2d 1143 (D.C. 1992), we have considered and rejected efforts to expand the Adams exception to the at-will doctrine. *fn6 In Gray, we held that "only the en banc court may undertake the extension appellant urges on us." Therefore, we must affirm the trial court because "a division of this court is not free to expand the Adams exception...." Gray, (supra) , 602 A.2d at 1096.


The remaining issue involves the trial court's denial of a motion to compel in which Carl sought discovery of certain information, which the trial Judge denied on the ground of the attorney-client privilege. As a preliminary matter, we must resolve a jurisdictional question concerning whether this issue has been preserved, and whether we can consider it on this record.

During discovery of the promissory estoppel claim, Carl undertook depositions and document discovery to determine the reasons for her termination. Having learned that the decision to fire her was made during a February 26, 1992, meeting of senior administrative officials at which two of the hospital's in-house counsel were present, Carl sought to depose the administrators and attorneys who participated in the meeting. The deponents refused to answer questions or to produce documents relating to that meeting, contending that the information sought was protected by the attorney-client privilege. The trial court upheld Children's characterization of the information being sought, and denied Carl's motion to compel discovery. Carl contended that the trial court's order frustrated her ability to proceed to trial on the promissory estoppel claim, and she therefore sought to dismiss the remaining claims -- promissory estoppel and breach of contract -- for the purpose of taking an appeal in order to challenge that order in this court. On October 22, 1993, the parties stipulated to a dismissal with prejudice of those two claims. We will now resolve the question of whether we have jurisdiction to hear an appeal of this issue, and, if so, whether the trial court erred, as Carl contends, in denying the motion to compel. We conclude that we do have jurisdiction and that the trial court committed no error.


Jurisdiction is vested in this court to hear appeals from "all final orders and judgments of the Superior Court..." disposing of the entire case with respect to all parties. D.C. Code § 11-721 (a)(1) (1989); see Mills v. Cosmopolitan Ins. Agency, 442 A.2d 151, 152 (D.C. 1982). Although we have never been called upon to determine whether a stipulated dismissal with prejudice is an appropriate means of obtaining the finality necessary for appellate review, that procedure is an accepted practice in the federal court system for perfecting an appeal. See Dorse v. Armstrong World Indus., Inc., 798 F.2d 1372, 1374-77 (11th Cir. 1986). *fn7 We endorse the authorities that recognize the practice, and accordingly conclude that we have jurisdiction to hear an appeal of this case.

We are particularly persuaded by the reasoning in Dorse, where the court analyzed the rationale of various jurisdictions that exercised appellate jurisdiction, as well as those that refused to exercise jurisdiction, under these circumstances. The court held that it had jurisdiction because the stipulated dismissal expressly recognized the party's intent to appeal from the final judgment. Dorse, supra, 798 F.2d at 1377. The same is true here. Moreover, the specter of piecemeal appeals is absent because a ruling on the merits by the appellate court adverse to the appellant terminates the litigation. See Trevino-Barton, supra, 919 F.2d at 878. We hold, therefore, as do the federal authorities cited, that an order dismissing with prejudice all the claims of a complaint pursuant to a stipulation of dismissal for the purpose of appealing an adverse ruling is final and appealable. *fn8 See also Summers, supra, 925 F.2d at 454 (Court of Appeals for the District of Columbia Circuit recommended this approach as an appropriate means of achieving finality).


Having determined that we have jurisdiction, we now turn to Carl's contention that the trial court erred in denying her motion to compel discovery with respect to the substance of the February 26, 1992, meeting ("meeting"). The decision whether or not to grant a motion to compel discovery, pursuant to Super. Ct. Civ. R. 37 (a), is within the discretion of the trial court and we will not disturb such a decision "unless there has been an abuse of discretion resulting in prejudice." Haynes v. District of Columbia, 503 A.2d 1219, 1224 (D.C. 1986) (citation omitted). In this case, the trial court's denial of Carl's motion to compel discovery rested on the attorney-client privilege which, if sustainable, constitutes a legitimate basis for denial. *fn9 See generally In re Arthur Treacher's Franchisee Litig., 92 F.R.D. 429 (E.D. Pa. 1981) ("Arthur Treacher's").

The attorney-client privilege is designed to promote frank and unabridged communication between clients and attorneys in order that attorneys may render informed and sound legal advice. Upjohn Co. v. United States, 449 U.S. 383, 389, 66 L. Ed. 2d 584, 101 S. Ct. 677 (1981). It is the oldest of the privileges for confidential communications known to the common law, id., and assumes that:

if the client knows that damaging information could more readily be obtained from the attorney following disclosure than from himself in the absence of disclosure, the client would be more reluctant to confide in his lawyer and it would be difficult to obtain fully informed legal advice.

Western Trails, Inc. v. Camp Coast To Coast, Inc., 139 F.R.D. 4, 8 (D.D.C. 1991) (citation omitted). In summary:

The privilege applies only if (1) the asserted bolder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of the bar of a court or his subordinate and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client.

In re Sealed Case, 237 U.S. App. D.C. 312, 316-17, 737 F.2d 94, 98-99 (1984). The privilege also protects communications from attorney to client if they "rest on confidential information obtained from the client"; or (2) if the party invoking the privilege demonstrates with reasonable certainty that "the lawyer's communication rested in significant and inseparable part on the ...

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