James v. Jacobson
| Decision Date | 04 October 1993 |
| Docket Number | No. 92-2196,92-2196 |
| Citation | 6 F.3d 233 |
| Parties | 21 Media L. Rep. 2033 John JAMES; Mary James, Plaintiffs-Appellants, v. Cecil B. JACOBSON, Jr., M.D.; Reproductive Genetics Center, Limited, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
William O.P. Snead, III, Law Offices of William O.P. Snead, III, Fairfax, VA, argued (Mark A. Towery, Ann LaCroix Jones, Judith G. Ising, on brief), for plaintiffs-appellants.
Richard McMillan, Jr., Crowell & Moring, Washington, DC, argued (Scott L. Winkelman, Ian K. Sweedler, on brief), for defendants-appellees.
Before ERVIN, Chief Judge, and PHILLIPS and WILLIAMS, Circuit Judges.
This is an appeal by John and Mary James (pseudonyms) from an interlocutory order of the district court denying the Jameses' request that they be allowed to proceed anonymously in the trial of their medical malpractice/fraud action against Dr. Cecil Jacobson. Two questions are raised: whether the interlocutory order is appealable under the "collateral order" doctrine and, if so, whether the district court erred in denying the request for anonymity. We hold that the order is appealable and, on the merits, that the district court erred. Accordingly, we vacate the order and remand with instructions.
In 1980 the Jameses, a childless couple who wanted children, went to Dr. Jacobson, a medical doctor who specialized in the diagnosis and treatment of infertility, for consultation. Following diagnosis, they engaged his professional services to provide artificial insemination of Mary James with the sperm of John James. Dr. Jacobson performed several artificial insemination procedures, representing to the Jameses that the semen used was that of John James. As a result of the inseminations, Mary James became pregnant and had two children. Shortly thereafter, acting on the assumption that John James was the children's biological father and that they had fulfilled their desire to have children, Mary James underwent tubal ligation.
In 1991, the Jameses learned through media reports of criminal charges against Jacobson that, if some of the charges were true, Jacobson, not John James, might be the biological father of the two children. Laboratory tests conducted in preparation for the criminal prosecution then revealed that Jacobson almost certainly was their biological father.
The James parents testified, under pseudonyms, at Jacobson's criminal trial. Jacobson was convicted on various charges, including some that involved the fraudulent use of his own sperm rather than that of promised donors in impregnating patients. 1 See United States v. Jacobson, 785 F.Supp. 563 (E.D.Va.1992).
Concerned about the effect upon the children if they should learn that John James was not their biological father, the Jameses sought professional advice. Based upon that advice, they revealed to the children that due to a "mix-up" in the insemination procedure John James was not their biological father, but they did not and have not yet revealed the further fact that Jacobson almost certainly is.
In early 1992, the Jameses commenced this action under the diversity jurisdiction against Jacobson. Before filing their complaint, they obtained an ex parte protective order permitting them, inter alia, to use the pseudonyms, John James and Mary James, and did use them, revealed as such, in their original complaint. That complaint alleged a classic medical malpractice claim against Dr. Jacobson, specifically, that by his conduct he had, inter alia, breached the duty of care owed the Jameses as patients, thereby causing them physical and marital injuries, for which they sought damages.
After being served, Jacobson moved for revision of the ex parte protective order on the basis that, as framed, it was unfair to him in various respects. The district court then amended the order to provide that plaintiffs must file under seal an amended complaint revealing their true names; that if the signatory judge presided at trial, no party or witness should testify "except under his or her true name", but that this was subject to change if another judge presided at trial; and that the question of procedures to be followed by defense counsel in discovery and in investigative questioning of witnesses concerning the plaintiffs' allegations was to be left open pending further orders. J.A. at 93-94.
Plaintiffs then filed the required amended complaint under seal.
Following consultations between counsel, agreement was reached as to most aspects of a procedure for preserving the plaintiffs' anonymities during pretrial investigation and discovery. Remaining areas of dispute were resolved by the district court after a hearing. A resulting order forbade disclosure by defendants and their counsel or representatives of any information that directly or indirectly identified plaintiffs or their children to any person unless that person first executed a non-disclosure agreement enforceable by the contempt sanction; required that all papers filed with the court or disseminated to any person who had not executed a non-disclosure agreement should use the "James" pseudonym in reference to plaintiffs and required that any document that identified plaintiffs or the children either directly or indirectly be filed under seal, with redacted copies to be placed in the public files; required defendants to disclose to plaintiffs' counsel all insurance company personnel to whom the plaintiffs' true identities had been or would be disclosed, and required plaintiffs in turn to disclose to defendants' counsel the names and addresses of all persons to whom plaintiffs had confided matters alleged in their pleadings; forbade defendants' representatives during investigation to reveal, either directly or indirectly, the true identities of plaintiffs to any person other than those insurance company personnel already aware, unless the person first signed a non-disclosure agreement; required defendants to obtain leave from a designated magistrate judge, on prior notice to plaintiffs, to contact any person thought to have relevant information about the case, with opportunity for plaintiffs to be heard before leave was granted; allowed defendants to notice and depose witnesses using the "James" pseudonyms in notices and subpoenas, with depositions to be conducted using pseudonyms when the witnesses were unacquainted with plaintiffs, and using actual names when the witnesses were acquainted with the Jameses and had knowledge of the matters alleged by plaintiffs, and with pseudonyms to be used in any transcriptions of depositions. J.A. at 309-315 (order).
Investigations and discovery then proceeded under these conditions. As the end of the discovery period neared, defendants sought to subpoena both of the "James" children for depositions and to require both the plaintiffs to submit to "mental" examinations pursuant to Fed.R.Civ.P. 35. When the plaintiffs moved to quash the subpoenas and resisted the motion to compel their submission to mental examinations, a magistrate judge granted the motion to quash the subpoenas but ordered the plaintiffs to submit to mental examinations.
As the trial date approached, the plaintiffs, citing the uncertainty created by the court's extant order that precluded their use of pseudonyms at trial if the signatory judge presided but left the matter open if another judge presided, moved for a "final, appealable" order resolving the matter without regard to the identity of the trial judge. In their supporting memorandum, the plaintiffs expressly repeated their earlier representations that if they were not permitted to proceed anonymously at trial, they would voluntarily dismiss the action. J.A. at 105-06. Following a hearing, the district court ordered that, without regard to the identity of the trial judge, plaintiffs should not be allowed to testify anonymously at trial. The court then declined to certify the order for appeal under 28 U.S.C. Sec. 1292(b).
The Jameses then filed a notice of appeal from the non-anonymity order, and moved unsuccessfully in the district court for a stay of proceedings in that court pending the appeal. When Jacobson then moved in this court for dismissal of the appeal on the basis that the order was a nonappealable interlocutory one, we reserved decision on the motion pending hearing on the merits and stayed proceedings in the district court. 2
We first address the question of the appealability of the non-anonymity order. There is no dispute that as an uncertified interlocutory order it is appealable only if it falls within the familiar collateral order doctrine of Cohen v. Beneficial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).
In this court's formulation, that doctrine allows appeal of such an order only if it "conclusively determines the question in the trial court, resolves an important question independent of the subject matter of the litigation, is effectively unreviewable on appeal from a final judgment ..., and presents a serious and unsettled question upon appeal." Taylor v. Nelson, 788 F.2d 220, 224 (4th Cir.1986).
There is no question that the anonymity-at-trial question was an important one that was conclusively determined by the district court. Indeed, its importance was recognized by all involved, and its conclusive resolution was the sought and avowed purpose of the order. Neither is there any question that the order will be effectively unreviewable on appeal from a final judgment. The parties in fact agree on these two points and only contend over whether the order resolves an important question independent of the merits of the litigation, and whether it presents a serious and unsettled question on appeal. We hold that it meets both these criteria as well as those upon which the parties agree and hence is appealable.
The requirement that the order resolve an important question independent of...
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