Opinion
MMXCV186020250
05-01-2018
Ashley Wescott v. Middlesex Hospital
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Aurigemma, Julia L., J.
MEMORANDUM OF DECISION ON MOTION FOR PERMISSION TO USE A PSEUDONYM (#101) AND MOTION TO SEAL PLEADINGS AND MOTIONS (#103)
Aurigemma, J.
The plaintiff, Ashley Wescott, has moved for permission to use a pseudonym in this action and to " seal the summons complaint, motion and memorandum to use a pseudonym and motion and memorandum to seal." The defendant, Middlesex Hospital, has objected to the plaintiff’s use of pseudonym and to the motion to seal.
Factual and Procedure History
The complaint alleges that the plaintiff is a 34-year-old woman who has been diagnosed with Bipolar Disorder and Schizoaffective Disorder who was involuntarily medicated with psychotropic medication while she was a patient at the defendant hospital. The first count of the complaint alleges that Connecticut General Statutes § 17a-543(d) (which provides that " [a] facility may establish an internal procedure governing decisions concerning involuntary medication treatment for inpatients" and sets forth six requirements of that procedure) is unconstitutional based on the violation of the plaintiff’s due process rights. The plaintiff seeks, inter alia, a permanent injunction prohibiting the use of internal hospital procedures authorized under § 17a-543(d).
The second count of the complaint alleges that the defendant’s failure to follow proper procedures in an internal hearing to determine whether to involuntarily medicate the plaintiff was tortious conduct. The third count of the complaint alleges that the defendant " intentionally and maliciously administered involuntary psychiatric drugs to Ms. Wescott without the informed consent of her conservator in violation of § § 17a-543(a) and 17a-543(e)(1)(B)," which caused the plaintiff severe emotional injury.
Use of Pseudonym
The plaintiff filed an ex-parte motion to use pseudonym pursuant to Practice Book § 11-20A(h)(2) on February 9, 2018. That motion was denied and on February 12, 2018, the plaintiff served the complaint on the defendant using the plaintiff’s name.
The plaintiff has not appended any affidavits to her motions, and did not seek to present any evidence at the hearing on the motions. She argues that " [t]he right to privacy in mental health treatment and the strong state policy of confidentiality in mental health treatment and the psychiatrist-patient relationship is greater on balance than the public’s right to open judicial process and prosecution in one’s actual name." Motion for Permission to Use Pseudonym, p. 2. The plaintiff further argues that hearings before the probate court, which concern involuntary commitment or medication are not public hearings and that the Connecticut General Statutes provide that the patient-medical provider relationship is confidential, see Connecticut General Statutes § § 52-146d-146j.
The defendant argues as follows: 1) the plaintiff has failed to provide the court with any evidence upon which it can rely to support the conclusion that the plaintiff should be permitted to proceed anonymously; 2) if there is any evidence in connection with the plaintiff’s motion, it fails to establish that the plaintiff’s privacy interest overrides the public’s interest in the openness of courts; and 3) the plaintiff waived her privacy right when she filed this action using her real name.
Practice Book § 11-20A(h)(1) provides in pertinent part: " (h)(1) Pseudonyms may be used in place of the name of a party or parties only with the prior approval of the judicial authority and only if the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public’s interest in knowing the name of the party or parties."
" The presumption of openness of court proceedings ... is a fundamental principle of our judicial system." Doe v. Connecticut Bar Examining Committee, supra, 263 Conn. at 65, 818 A.2d 14. This policy of openness is not to be abridged lightly.
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" The principle of openness of judicial proceedings includes the question of whether one may proceed anonymously therein, because the question of who is using the judicial system is ordinarily as much a part of that principle as why it is being used." (Emphasis in original.) Doe v. Connecticut Bar Examining Committee, supra, 263 Conn. at 68, 818 A.2d 14. For this reason, our Supreme Court has stated that " [t]he privilege of using fictitious names in actions should be granted only in the rare case where the nature of the issue litigated and the interest of the parties demand it and no harm can be done to the public interest." Buxton v. Ullman, 147 Conn. 48, 60, 156 A.2d 508 (1959), appeal dismissed sub nom. Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961).
The disclosure of who is using our judicial system is an integral part of judicial openness.
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The procedure outlined in § 11-20A(h)(1) provides a road map for what long has been understood as " a high threshold for granting applications to proceed anonymously ..." Doe v. Connecticut Bar Examining Committee, supra, 263 Conn. at 69, 818 A.2d 14. The question the court first must address when considering such an application is " whether, given the presumption of openness in all judicial proceedings, the [party] has a substantial privacy right which outweighs the customary ... presumption of openness in judicial proceedings." (Internal quotation marks omitted.) Id., at 69-70, 818 A.2d 14. The burden, therefore, was not on the plaintiff in this case to show why the motion should not be granted, but rather the burden was on the defendants to show why they should be permitted to proceed anonymously. Furthermore, regardless of the plaintiff’s position in reference to the defendants’ motion to proceed by pseudonym, the defendants had to shoulder this burden. The privilege to proceed anonymously " is not a right the parties have as against each other; the court must determine the question as against the demands of the public interest." Doe v. Diocese Corp., 43 Conn.Supp. 152, 158, 647 A.2d 1067 (1994) .
Furthermore, not all substantial privacy interests are sufficient to outweigh the public’s interest in open judicial proceedings. " The ultimate test for permitting a [party] to proceed anonymously is whether the [party] has a substantial privacy right which outweighs the customary and constitutionally-embedded presumption of openness in judicial proceedings." (Internal quotation marks omitted.) Id., at 159, 647 A.2d 1067. " A [party’s] desire to avoid economic and social harm as well as embarrassment and humiliation in his professional and social community is normally insufficient to permit him to appear without disclosing his identity." (Internal quotation marks omitted.) Doe v. Connecticut Bar Examining Committee, supra, 263 Conn. at 70, 818 A.2d 14. " The most compelling situations [for granting a motion to proceed anonymously] involve matters which are highly sensitive, such as social stigmatization, real danger of physical harm, or where the injury litigated against would occur as a result of the disclosure of the [party’s] identity ... There must be a strong social interest in concealing the identity of the [party]." (Internal quotation marks omitted.) Doe v. Diocese Corp., supra, 43 Conn.Supp. at 159, 647 A.2d 1067.Vargas v. Doe, 96 Conn.App. 399, 406, 407, 410-11, 900 A.2d 525 (2006).
Superior Court cases have shown a willingness to grant the privilege to proceed anonymously in matters involving sexual abuse or assault of minors. See Doe v. Rackliffe, supra, 173 Conn.App. 400 (" when allegations of sexual assault are involved, those who are alleged victims, especially minors, may have strong privacy interests" [internal quotation marks omitted] ); see, e.g., Doe v. Super 8 Motels, Inc., Superior Court, judicial district of New Haven, Docket No. CV-06-5004427-S (August 3, 2006, Pittman, J.) (41 Conn.L.Rptr. 784) (mentally disabled minor allowed to proceed anonymously in an action alleging sexual assault by multiple men); Doe v. East Haven Assn., Superior Court, judicial district of New Haven, Docket No. CV-04-0490161-S (August 4, 2004, Pittman, J.) (minor plaintiff allowed to use pseudonym in connection to alleged sexual assault by employee of defendant). In the context of sexual abuse and assault, courts have also considered the movant’s psychological and psychiatric health. See e.g., Doe v. Annulli, Superior Court, judicial district of Waterbury, Docket No. CV-14-6022790-S (October 3, 2014, Brazzel-Massaro, J.) (holding that plaintiff could use pseudonym, which was necessary to prevent any further psychological harm, given the ongoing psychological treatment that she was receiving regarding alleged sexual abuse that she received when she was a minor); Doe v. Firn, Superior Court, judicial district of Ansonia-Milford, Docket No. CV-06-5001087-S (September 22, 2006, Fischer, J.) (allowing plaintiff to use pseudonym wherein testimony of plaintiff revealed that she had received, and continued to receive, psychological and psychiatric treatment related to alleged sexual abuse she received while a minor by her basketball coach); Doe v. Johnson, Superior Court, judicial district of New Haven, Docket No. CV- 03-0483186-S (December 2, 2003, Arnold, J.) (36 Conn.L.Rptr. 101, 105) (holding that plaintiff, who was allegedly victim of sexual abuse and assault by her stepfather, could use a pseudonym because not doing so " could only subject the plaintiff to additional psychological harm and distress" ); Doe v. Diocese Corp., 43 Conn.Supp. 152, 161, 647 A.2d 1067 (1994) (allowing plaintiff to use pseudonym where testimony of plaintiff " express[ed] real concern and fear of shame and humiliation if he received public exposure" and testimony of plaintiff’s therapist " recommend[ed] against public exposure ... [as] it would create real problems with the plaintiff’s therapy" ).
The plaintiff is not a minor who has been sexually assaulted. Therefore, the precedents for granting her pseudonym status are limited to non-existent. The plaintiff’s position is, essentially, that her right to keep her psychiatric issues private in and of itself allows her to proceed via pseudonym. Courts have granted pseudonym status to those with psychiatric issues. See, i.e., Doe v. Town of West Hartford, 328 Conn. 172 (2018). However, in the foregoing Doe case, no one objected to pseudonym status and the issue was not addressed.
In Doe v. Rackliffe, 173 Conn.App. 389, 164 A.3d 1 (2017), the trial court terminated the plaintiffs’ ex parte pseudonym status after a hearing at which it found that the plaintiffs had not provided an adequate evidentiary basis for the court to permit the continued use of pseudonyms.
On appeal, the Court held that the trial court had not abused its discretion in denying continued pseudonym status because:
In their affidavits, the plaintiffs describe acts of sexual assault committed against them, as minors, by the defendant over the course of ten years while they were his patients. Both affidavits state that the plaintiffs had " suffered physical injury, extreme distress, and likely permanent psychological pain and mental anguish" as a result of the defendant repeatedly sexually assaulting them. The affidavits further provide that if the plaintiffs were not able to continue using a pseudonym in this case, they would " suffer harassment, ridicule, severe humiliation, and even further emotional and psychological anguish."
These affidavits, however, do not set forth any specific facts or evidence to support the plaintiffs’ conclusory statements as to the harm they would suffer if they could not proceed anonymously ...
We are particularly mindful of the presumption set forth in Practice Book § 11-20A(a) that documents filed with the court should be available to the public. In light of that presumption, it is " only in those exceptional cases involving matters of a highly sensitive and personal nature" ; (internal quotation marks omitted) Doe v. Connecticut Bar Examining Committee, supra, 263 Conn. at 70, 818 A.2d 14; that a party should be permitted to use pseudonyms in the underlying civil action ...
Because the plaintiffs’ affidavits merely stated the general nature of the privacy interests they asserted without providing factual or evidentiary support for that assertion, we cannot conclude, on the basis of the record, that the court reasonably could only have determined that the plaintiffs’ substantial privacy interests in maintaining their anonymity outweighed the public’s interest in knowing their names. We therefore conclude that the court did not abuse its discretion in denying the plaintiffs’ motion.Doe v. Rackliffe, 173 Conn.App. at 399-401. Emphasis added.
This court interprets Doe v. Rackliffe, supra, as preventing a court from assuming a privacy interest which outweighs the public’s right to know about court proceedings without some evidence to support that assumption. The plaintiff here has not even presented an affidavit. Based on the foregoing, the motion to proceed anonymously is denied.
Sealing the File
The Motion to Seal requests that the court " seal the summons complaint motion and memorandum to use a pseudonym and motion and memorandum to seal." The plaintiff bases this motion on the same arguments advanced with respect to the use of pseudonym. The defendant’s arguments in opposition are largely the same as those relating to the use of pseudonym: the plaintiff’s failure to overcome the presumption of openness of court proceedings.
The law with respect to openness of court proceedings applies to sealing a file just as it applies to pseudonym status. The plaintiff has not presented the court with any evidence to support her claim that her privacy interests outweighs the presumption of openness.
At oral argument, the plaintiff’s attorney mentioned the production of psychiatric records. When a party complies with a request for production of documents, she does not file them with the court. Therefore, there is no danger of those records becoming part of the court file. If such records are filed in relation to a motion, affidavit, etc., then they will be sealed upon motion by a party.
Based on the foregoing, the Motion to Seal is denied.