Doe v. Rackliffe

173 Conn.App. 389

164 A.3d 1

James DOE, et al.

v.Robert RACKLIFFE

AC 37681

Appellate Court of Connecticut.

Argued January 2017

Officially released May 19, 2017

Pamela LeBlanc, New Haven, with whom, on the brief, were Erin E. Canalia and A. Ryan McGuigan, Hartford, for the appellants (plaintiffs).

Laura Pascale Zaino, Hartford, with whom were William J. Sweeney, Jr., New Britain, and, on the brief, Richard C. Tynan and Logan A. Forsey, Hartford, and for the appellee (substitute defendant).

DiPentima, C.J., and Sheldon and Bishop, Js.

DiPENTIMA, C.J.

The plaintiffs, James Doe and John Doe, appeal from the order of the trial court denying their motion for continued use of pseudonyms in their underlying civil action against the defendant, Robert Rackliffe, a pediatrician. On appeal, the plaintiffs claim that the court erred in denying their motion for continued use of pseudonyms (1) by requiring the plaintiffs to present live testimony at an evidentiary hearing as a prerequisite to permitting them to use pseudonyms and (2) because the existing record showed that the plaintiffs had substantial privacy interests in maintaining their anonymity that outweighed the public's interest in knowing the names of the parties. We disagree and, accordingly, affirm the order of the trial court.

The following facts and procedural history are relevant to our resolution of this appeal. The plaintiffs commenced this action alleging, in a four count complaint dated May 1, 2014, that they were sexually assaulted as minors by the defendant. The first and third counts allege that the defendant sexually assaulted the plaintiffs, as minors, while they were his patients. The second and fourth counts allege negligence by the defendant in the care and treatment of the plaintiffs. All four counts further allege that as a direct and proximate result of the actions of the defendant, the plaintiffs have suffered physical injury, extreme emotional distress, fear, apprehension, and likely permanent psychological pain and mental anguish.

Simultaneously with filing their complaint on May 1, 2014, the plaintiffs filed an ex parte application for permission to use pseudonyms to commence their action against the defendant pursuant to Practice Book § 11–20A(h).¹ The court, Robaina, J. , granted the plaintiffs temporary permission to proceed under the pseudonyms "James Doe and John Doe," pending a hearing on the continued use of those pseudonyms. The hearing was scheduled originally for July 14, 2014, and then continued to July 28, 2014. On May 1, 2014, the plaintiffs filed a motion for the continued use of those pseudonyms (motion), to which the defendant objected on July 23, 2014.

In the defendant's objection, he asserted that the motion should be denied because the court did not have sufficient facts before it to support a finding under Practice Book § 11–20A(h) that the continued use of pseudonyms was necessary, and therefore "an evidentiary hearing on the motion should be held for the court to make the necessary finding ...." The defendant further noted that the plaintiffs' motion also should be denied because they had publicized their lawsuit to news media outlets "to advance their claim, to seek other plaintiffs and in general to bring their case public without having to stand up and identify themselves as is normally required under our constitutional right to an open court system."

On July 28, 2014, the plaintiffs filed a reply to the defendant's objection, in which they asserted that an evidentiary hearing was not required because the allegations in their complaint were sufficient for the court to make the necessary finding under Practice Book § 11–20A(h). The plaintiffs further responded that their comments on the case to news media outlets did not amount to a forfeiture of their right to have their identities protected from the public.

On July 28, 2014, the court, Berger, J. , continued the hearing and scheduled an evidentiary hearing for October 8, 2014, in order to allow the parties to present evidence on the motion.² The plaintiffs submitted affidavits on September 19, 2014, and September 22, 2014, which described acts of sexual assault committed against them by the defendant. On September 24, 2014, the plaintiffs filed a supplemental memorandum in support of their motion, arguing that an evidentiary hearing was not required because the allegations in their complaint and the statements in their affidavits were sufficient for the court to make the necessary finding under Practice Book § 11–20A(h). In that supplemental memorandum, the plaintiffs specifically asserted that "[i]t is [the] plaintiffs' position that such evidentiary hearing should not be held in the instant matter because a hearing at this stage of the litigation would serve no other purpose than to subject the plaintiffs to further ridicule in a public forum, and exacerbate their severe emotional and psychological distress."

On October 8, 2014, the date for which an evidentiary hearing had been scheduled, the court, Elgo, J. , heard the arguments of the parties pertaining to the motion. A significant part of the arguments focused on whether an evidentiary hearing was required. Specifically, the defendant argued that an evidentiary hearing was required under Practice Book § 11–20A(h) because the record was insufficient to support any finding that the use of pseudonyms is necessary to preserve any interest that outweighed the public's interest in knowing the names of the parties. In turn, the plaintiffs insisted that the court could grant their motion based on their sworn affidavits, and indicated that no additional evidence would be proffered in support of their motion at the scheduled hearing.

On February 9, 2015, the court, Elgo, J. , held a hearing to make the requisite finding of notice required under Practice Book § 11–20A(h)(3). At that hearing, the court stated that the plaintiffs had not provided an adequate evidentiary basis for the court to permit the continued use of pseudonyms. The court also expressed its concern about the representations the plaintiffs had made to news media outlets pertaining to the case.

The court issued a written order on February 11, 2015, in which it concluded: "In the absence of an evidentiary hearing and based solely on the claims in the affidavits submitted by the plaintiffs, this court cannot find that the plaintiffs have met their burden of demonstrating that their privacy interests outweigh the public interest in knowing the names of the parties." The court continued that it "cannot reconcile how it can make findings requiring it to consider the relative interests of the parties and the public without considering the credibility and weight of the evidence being put forward to support the plaintiffs' claims that they will suffer future harassment, social stigmatization, and exacerbation of their emotional distress and psychological trauma if forced to reveal their identities." The court further noted: "Those factors, especially the claim that emotional distress and psychological trauma would be exacerbated, if proven after an evidentiary hearing, might have been enough to overcome the public's interest in open proceedings. Vargas v. Doe , 96 Conn.App. 399, (2006) (while embarrassment and humiliation in one's professional and social community is normally insufficient, the most compelling situations include 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), [cert. denied, 280 Conn. 923, 908 A.2d 546 (2006) ]. An affidavit, however, while appropriate for ex parte relief, is inadequate at this stage." The court also noted: "Even if there were a full evidentiary hearing, also troubling to this court is the undisputed claim that the plaintiffs have brought this lawsuit to the attention of the news media. While the court assumes that their identities were not revealed, this lawsuit remains to be litigated and tried in open court. To call public attention to the fact of the litigation against the defendant also subjects the plaintiffs, and the testimony they must inevitably share in open court, to increased media attention, undermining to some extent their claim that they hope to limit further, unnecessary exposure, emotional distress and psychological trauma to themselves." Accordingly, the court denied the plaintiffs' motion. This appeal followed.³ Additional facts will be set forth as necessary.

We address the two claims the plaintiffs raise on appeal together because they both rest on the plaintiffs' contention that the court was presented with sufficient evidence to conclude that they had substantial privacy interests in maintaining their anonymity that outweighed the public's interest in knowing the names of the parties. Specifically, the plaintiffs argue that the allegations of their complaint and averments in their affidavits left no room for the court to conclude other than that their privacy interests outweighed the public's interest in knowing the names of the parties, even with the media attention surrounding the case.

We begin by setting forth our well established standard of review and the relevant legal principles that guide our resolution of this claim. "We review a trial court's decision granting or denying a motion to seal to determine whether, in making the decision, the court abused its discretion. ... Likewise, we review a trial court's decision on whether to permit a party to proceed anonymously to determine whether, in granting or denying such a request, the court employed its informed discretion .... Inherent [therefore] in the concept of judicial discretion is the idea of choice and a determination between competing considerations. ... A court's discretion must be informed by the policies that the relevant statute is intended to advance. ... When reviewing a trial court's exercise of the legal discretion vested in it, our review...