Rufer v. Abbott Laboratories

• Decision Date: 30 June 2005
• Docket Number: No. 75116-1.,75116-1.
• Court: Washington Supreme Court
• Parties: Jennifer RUFER and David Rufer, individually, and as husband and wife, Petitioners, v. ABBOTT LABORATORIES, University of Washington Medical Center, and Hisham Tamimi, M.D., Respondents.

114 P.3d 1182

154 Wash.2d 530

Jennifer RUFER and David Rufer, individually, and as husband and wife, Petitioners, v. ABBOTT LABORATORIES, University of Washington Medical Center, and Hisham Tamimi, M.D., Respondents.

No. 75116-1.

Supreme Court of Washington, En Banc.

Argued February 8, 2005.

Decided June 30, 2005.

Paul Nicholas Luvera, Joel Dean Cunningham, J. Andrew Hoyal, David Merritt Beninger, Luvera Barnett Brindley Beninger, et al., Evy F. McElmeel, Howard Mark Goodfriend, Catherine Wright Smith, Edwards Sieh Smith & Goodfriend PS, Seattle, for Petitioners.

Bradley S. Keller, Kimberly Ann Boyce, Michael Barr King, Lane Powell Spears Lubersky LLP, Seattle, Lara Levitan, Abbott Laboraties, Abbott Park, IL, William James Leedom, Bennett Bigelow Leedom PS, Seattle, Thomas Durkin, Sheila Finnegan, Javier Rubinstein, Mayer Brown Rowe & Maw, Chicago, IL, for Respondents.

Gregory Mann Miller, Seattle, James C. Martin, Paul D. Fogel, Raymond Cardozo, Reed, Smith, Corsby, Heafey, San Francisco, CA, for Amicus Curiae Advanced Medical Technology Ass'n.

Christopher W. Tompkins, Betts Patterson & Mines PS, Seattle, Robert N. Weiner, Arnold & Porter, Washington, DC, Hugh F. Young, Product Liability Advisory Council, Inc., Reston, VA, for Amicus Curiae Product Liability Advisory Council, Inc.

Stewart Andrew Estes, Keating Bucklin & McCormack, Shilpa Bhatia, Wilson Smith Cochran Dickerson, Stephen H. Goodman, Graham & Dunn PC, Seattle, for Amicus Curiae Washington Defense Trail Lawyers.

Bryan Patrick Harnetiaux, Debra Leigh Williams Stephens, Spokane, for Amicus Curiae Washington State Trial Lawyers Ass'n.

FAIRHURST, J.

¶ 1 Jennifer and David Rufer sued the University of Washington Medical Center (UWMC) and Abbott Laboratories for medical malpractice and product liability, respectively, after Jennifer underwent lung surgery, a hysterectomy, and chemotherapy — none of which turned out to be medically warranted. The Rufers were ultimately successful in their lawsuit but now ask this court to review the Court of Appeals decision on two discrete issues. First, the Rufers dispute the Court of Appeals decision regarding the proper standard for sealing records in a civil case. Second, the Rufers and UWMC¹ ask this court to find that the Court of Appeals improperly relieved Abbott of its postjudgment interest obligation for the time period that a motion to supplement the record was being pursued by UWMC and the Rufers.

¶ 2 We hold that documents filed with the court will presumptively be open to the public unless compelling reasons for closure exist consistent with the Seattle Times Co. v. Ishikawa, 97 Wash.2d 30, 640 P.2d 716 (1982), standards. We also hold that the Court of Appeals did not have authority to toll the accrual of Abbott's postjudgment interest obligation during consideration of the motion to supplement.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 3 The facts underlying the merits of the Rufers' lawsuit are not relevant to the present issues, but we briefly summarize them for context. After complaining of abdominal pain and vaginal bleeding, Jennifer's medical providers tested her blood to confirm a probable diagnosis of an ectopic pregnancy. The continued indication of a presence of abnormal levels of human chroionic gonadotropin (hCG) in Jennifer's blood led to the eventual diagnosis of a deadly cancer known as gestational trophoblastic disease (GTD). In an effort to combat this diagnosis, Jennifer underwent increased courses of chemotherapy, a hysterectomy, and had part of her lung removed. Jennifer's GTD diagnosis was solely based on the hCG levels detected through a test manufactured by Abbott. Some time later, UWMC determined that Jennifer did not have — nor did she ever have — GTD. The tests were yielding false positives.

¶ 4 The Rufers sued UWMC for malpractice and Abbott for product liability, alleging in part that Abbott failed to warn physicians of the known history of false positives resulting in unnecessary treatment for misdiagnosed GTD.

¶ 5 Before trial commenced, Abbott moved for an order protecting confidential proprietary information produced during discovery. The motion was granted pursuant to CR 26(c). After summary judgment motions were filed, the Rufers asked the court to make public all pleadings filed in connection with the pending summary judgment motions. Judge William L. Downing denied the motion, but stated:

Documents containing information designated as "confidential" in accordance with the provisions of the prior Order may continue to be filed under seal per the authority of that Order until such time as a jury is sworn to try this cause. Thereafter, all documents filed and exhibits utilized in these proceedings will be accorded the usual presumption of openness. A heavy burden will be placed on any party seeking to deny public access to the facts and allegations upon which this case is being adjudicated.

Clerk's Papers (CP) at 2539-40. Following an extensive trial, the jury rendered a verdict awarding $16 million to the Rufers and allocating 50 percent fault each to UWMC and Abbott.

¶ 6 At the close of trial, Abbott moved the court to seal one trial exhibit (Exhibit 168), several pretrial and deposition exhibits, and selected portions of deposition testimony. Abbott relied heavily on the affidavit of Dr. Beth Schodin (an Abbott employee) in its motion to seal which identified portions of depositions published at trial, deposition exhibits, and a trial exhibit as containing "highly sensitive, trade secret and proprietary information." CP at 2506.

¶ 7 The Rufers and UWMC opposed the motion and additionally requested that the pretrial confidentiality order be dissolved. With respect to the trial exhibit at issue (Exhibit 168), the Rufers argued that the document "was the subject of extensive trial testimony by Abbott's witnesses." CP at 2617. With respect to depositions, initially the Rufers opposed the motion to seal any depositions of witnesses who testified at trial. However, they have since conceded in their briefing and oral argument before this court that depositions which were never used at trial (for impeachment or as substantive evidence) may properly remain sealed for good cause shown. They stress, however, that any depositions or deposition excerpts "which were submitted in support of or in opposition to summary judgment motions, or motions in limine which were considered by the trial court, or depositions or deposition excerpts used at trial in any way" should be subject to the compelling interest standard. Pet'r's Suppl. Br. at 18, n.13.

¶ 8 In reviewing these motions, Judge Downing recognized three categories of records the parties were asking the court to seal or open:

In the involved law offices, judicial chambers and clerk's storage areas, there now exists a great deal of information contained in a staggering volume of documents.... Each of these documents, access to which is now the issue before the Court, fits into one or more of three sets.

[1] An uncommonly large set of evidence was put before the jury during the testimony of the 51 witnesses with the accompanying presentation of hundreds of trial exhibits. [2] An additional body of evidence, some appearing in the trial record and some not, was contained in the similarly large set of documents put before the Court in connection with the various trial and pretrial motions. [3] Finally, the largest set of all would presumably be that constituting the discovery materials that were exchanged in counsel's preparation of the case for trial.

CP at 2848. The court took the liberty of reformulating the issues the parties presented in their respective motions as the following:

1. Should certain documents considered by the Court and discussed openly during these proceedings (both trial and pretrial) be permitted to be filed under seal?

2. Should the depositions, limited portions of which were utilized at trial, and which were technically "published" at that time, be permitted to be filed partially under seal?

3. Should the Court now dissolve the Protective Order that governed the parties' exchange of documents and information during the discovery phase of these proceedings?

CP at 2848-49. Judge Downing answered the first two questions by ordering that all exhibits, briefs, and memoranda filed with the court be made open and available for public inspection because the "sealing of court records can only be done under compelling circumstances where justice so requires." CP at 2849 (internal quotation omitted).² Judge Downing could not "find there to be a sufficient demonstration of circumstances that would override the public interest and compel denial of access," noting

There is nothing before the Court to support any reasonable conclusion that an Abbott competitor stands poised to gain unfair economic advantage through such access. Nor is there any showing of foreseeable misuse of the documents compelling the Court to such denial. The fact that a party might consider information as "confidential" or even "proprietary" and prefer that documents not become public is too obviously insufficient to merit discussion.

CP at 2850.

¶ 9 All of the parties appealed. While the appeal was pending, Abbott notified the other parties and the court that it had discovered documents not previously produced that would have been responsive to prior discovery requests. UWMC and the Rufers moved to supplement the appellate record with the newly discovered documents pursuant to RAP 9.11 and to delay briefing pending further discovery. The appeal was delayed for about nine months during the consideration of this motion. The motion was ultimately denied, although the Court of Appeals commissioner did find that there was a "potential inequity in completely ignoring the new information. But for Abbott's oversight in pre-trial discovery, the jury might have been presented a more accurate background regarding the history of false...