Opinion
CIVIL ACTION NO. 99-1767, SECTION "N"
January 10, 2002
ORDER AND REASONS
Before the Court is a Motion for Gag Order filed by the defendants. The Court heard oral argument on the motion on January 9, 2002. For the reasons that follow, the motion is DENIED.
I. BACKGROUND
On June 9, 1999, relators Mary Jane Stewart and Margaret Catherine McGinity filed this qui tam action against The Louisiana Clinic (the "Clinic") and several of its physicians, alleging violations of the False Claims Act, 31 U.S.C. § 3729-3733. Relators allege that defendants made false statements and claims to the United States Department of Health and Human Services ("HHS"), though the Health Care Financing Administration ("HCFA") and agents of HHS, for reimbursement of medical services provided to Medicare and Medicaid participants. On May 30, 2001, after three extensions of time to consider, the United States declined to intervene, and the Court ordered the record be unsealed.
The original complaint named Drs. Stuart Phillips, Bernard Manale, John O'Keefe, Ida Fattel, Robert Bernauer, Susan McSherry, and Stephen Flood. Relators added Dr. John Watermeier by amended complaint in July 1999.
II. LAW AND ANALYSIS
The defendants move for a gag order prohibiting the relators or their lawyers from (1) discussing this matter publicly, (2) making discrediting statements about any of the defendants, or (3) distributing any information about any of the defendants. They also ask the Court to issue an order directing relator's counsel to remove from its website any disparaging statements about any of the defendants.
Defendants' motion is directed to the Spring 2001 issue of Insurance Insight, a newsletter published by Chopin, Wagar, Cole, Richard, Reboul Kutcher ("Chopin Wagar"), the law firm of relators' counsel, Richard Chopin and Robed Kutcher. In this newsletter, Kevin Cole (a partner in the Chopin Wagar firm) discussed a worker's compensation ruling in which the administrative law judge found, among other things, that Dr. Stuart Phillips had performed unreasonable and unnecessary surgery. Chopin Wagar mailed the newsletter to approximately 1,000 clients (largely in the insurance industry) and posted it on the firm website, which receives an average of 54 hits per day. Based on this newsletter, defendants express concern that the relators and relators' lawyers will try to sway public opinion against the Clinic and its physicians, thereby tainting the pool from which any future jury venire will be drawn. They argue that a gag order is therefore necessary to preserve their right to a fair trial.
"Prior restraints — "predetermined judicial prohibition[s] restraining specified expressions — face a well-established presumption against their constitutionality." Id. at 424-25. United States v. Brown, 218 F.3d 415, 424 (5th Cir. 2000) (quoting Bernard v. Gulf Oil Co., 619 F.2d 459, 467 (5th Cir. 1980)), cert. denied, 531 U.S. 1111 (2001). "In general, a prior restraint . . . will be upheld only if the government can establish that "the activity restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest."' Id. at 425 (quoting Levine v. United States Dist. Court, 764 F.2d 590, 595 (9th Cir. 1985)). Here, as is often the case in the context of civil and criminal trials, the competing interest asserted is a party's interest in a fair trial by impartial jurors. Brown, 218 F.3d at 424. Where it is the press' First Amendment rights that are at issue, the "clear and present danger" standard remains the test for gag orders, even in the Fifth Circuit. Brown, 218 F.3d at 427 ("it seems plain that the "clear and present danger' test, and the variants thereof, are appropriate for protecting the unique role of the press"). However, where the restraint is on extrajudicial commentary by trial participants (i.e., parties, lawyers, and witnesses), the Fifth Circuit (unlike the Sixth, Seventh, and Ninth) now applies a less stringent test, one that "require[s] a lesser showing of potential prejudice." Id. at 427-28. In the Fifth Circuit, "a district may . . . impose an appropriate gag order on parties and/or their lawyers if it determines that extrajudicial commentary by those individuals would present a "substantial likelihood' of prejudicing the court's ability to conduct a fair trial." Id. at 427. The Brown court left for another day the determination of "whether a trial court may also impose a similar gag order based on a "reasonable likelihood' of prejudice." Id.
Although the conflict in many court decisions addressing gag orders is between freedom of speech and a criminal defendant's Sixth Amendment right to a trial "by an impartial jury, " U.S. Const. amend. VI, the Constitution likewise protects a civil litigant's right to a fair jury trial. U.S. Const. amend. VII ("the right of trial by jury shall be preserved"); see also Latiolais v. Whitley, 93 F.3d 205, 207 (5th Cir. 1996) ("It is well established . . ., that "[t]here is a constitutional right to a fair trial in a civil case."') (quoting Lemons v. Skidmore, 985 F.2d 354, 357 (7th Cir. 1993)). The "first amendment analysis does not vary in response to the competing seventh amendment purpose." Bailey v. Systems Innovation, Inc., 852 F.2d 93, 97 (3d Cir. 1988) ("conflict between freedom of speech and the right to a fair trial is no less troubling in the noncriminal context."); cf. Brown, 218 F.3d at 424 (litigants' First Amendment "rights may be subordinated to other interests that arise in the context of both civil and criminal trials") (internal quotations omitted).
The Brown court rested its holding on Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), reasoning that "Gentile appears to have foreclosed applicability of those [clear and present danger] tests to the regulation of speech by trial participants." 218 F.3d at 427.
Brown arose out of the criminal prosecution of state insurance commissioner Jim Brown and two related cases, including the criminal prosecution of former Louisiana governor, Edwin Edwards. The Fifth Circuit found that the "enormous local and national publicity surrounding the cases" created a "heightened and somewhat unique danger" that extrajudicial commentary would taint at least one of the three juries — either the "unsequestered jury already impaneled in Edwards," or "the pool from which the juries in the other two [related] cases would be drawn." Brown, 218 F.3d at 429. Exacerbating the "carnival atmosphere" of this high-profile case was "the parties' self-proclaimed willingness to seize any opportunity to use the press to their full advantage." Id. (internal quotations omitted). Given these unusual circumstances, the Fifth Circuit upheld the gag order, finding that "there was at least a "substantial likelihood' that allowing further extrajudicial statements by the parties would materially prejudice the court's ability to conduct a fair trial." Id. Unusual circumstances also influenced the court in United States v. Davis, 904 F. Supp. 564 (E.D. La. 1995), where the defendant (a police officer) was facing two separate trials and the New Orleans community had been barraged repeatedly by news stories on police corruption in the twelve months before the trial.
No such circumstances exist here. The defendants point to no wide-spread or pervasive media coverage of this case, only to the Spring 2001 edition of the Chopin Wagar newsletter, which is targeted to a limited readership in the insurance industry. Although the defendants make much of the fact that the website averages 54 hits per day, thereby reaching thousands over time, they have failed to demonstrate any threat that the statements will reach a significant portion of the general public beyond the firm's clientele. Applying the Brown standard, the Court finds that the defendants have failed to show a "substantial likelihood" or even a "reasonable likelihood" that extrajudicial commentary by the relators or their lawyers will undermine this court's ability to conduct a fair trial. Accordingly, the Court need not reach the questions of whether the order sought is "narrowly drawn" or the "least restrictive means available" for ensuring a fair trial.
The Court cautions, however, that the conduct of counsel for both sides in this matter is governed by the local rules of this Court, which has adopted Louisiana's Rules of Professional Conduct as its own. Among these rules is Rule 3.6. which prohibits lawyers from making any "extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding." La. Rev. Stat. Title 37, Chap. 4, Appendix, Art. XVI, Rule 3.6. A statement is considered "likely to have such an effect" when it refers to "a civil matter triable to a jury" and the statement includes the "character, credibility, [or] reputation . . . of a party." Id. Without specifically determining at this time whether the Chopin Wagar newsletter statements fall within this category, the Court notes that the defendants may reurge their motion if the facts change to show a more expansive dissemination of the newsletter or other similar statements.
See Local Rule LR83.2.4E ("This court hereby adopts the Rules of Professional Conduct of the Louisiana State Bar Association, as hereafter may be amended from time to time by the Louisiana Supreme Court, except as otherwise provided by a specific rule or general order of a court.").
Accordingly, for the foregoing reasons, IT IS ORDERED that the defendants' Motion for Gag Order is DENIED.