State ex rel. Brooks v. Zakaib

• Decision Date: 23 June 2003
• Docket Number: No. 31042.,31042.
• Citation: 214 W.Va. 253,588 S.E.2d 418
• Parties: STATE of West Virginia ex rel. Richard BROOKS, Petitioner, v. The Honorable Paul ZAKAIB, Jr., Judge of the Circuit Court of Kanawha County, Respondent.
• Court: West Virginia Supreme Court

588 S.E.2d 418

214 W.Va. 253

STATE of West Virginia ex rel. Richard BROOKS, Petitioner, v. The Honorable Paul ZAKAIB, Jr., Judge of the Circuit Court of Kanawha County, Respondent.

No. 31042.

Supreme Court of Appeals of West Virginia.

Submitted March 11, 2003.

Decided June 23, 2003.

Mary McQuain, Esq., Stuart Calwell, Esq., Law Offices of Stuart Calwell, PLLC, Charleston, West Virginia, Attorneys for the Petitioner.

The Honorable Paul Zakaib, Jr., Judge of the Circuit Court of Kanawha County, Charleston, West Virginia, Pro Se.

Chanin Wolfingbarger Krivonyak, Esq., James D. McQueen, Jr., Esq., McQueen, Harmon & Murphy, L.C., Charleston, West Virginia, Attorneys for the Respondent, Rakesh Wahi, M.D.

Robert P. Fitzsimmons, Esq., Russell Jay Guthrie, Esq., Fitzsimmons Law Offices, Wheeling, West Virginia, Attorneys for Amicus Curiae, Robert P. Fitzsimmons.

J. Michael Benninger, Esq., Paul T. Farrell, Jr., Esq., Wilson, Frame, Benninger & Metheney, PLLC, Morgantown, West Virginia, Attorneys for Amicus Curiae, West Virginia Trial Lawyers Association.

Richard D. Jones, Esq., Michelle L. Barker, Esq., Flaherty, Sensabaugh & Bonasso, PLLC, Charleston, West Virginia, Attorneys for the Respondent, Charleston Area Medical Center, Inc.

William S. Druckman, Esq., Madonna C. Estep, Esq., Salsbery & Druckman, Charleston, West Virginia, Attorneys for Amicus Curiae, Salsbery & Druckman.

James C. Peterson, Esq., Hill, Peterson, Carper, Bee & Deitzler, P.L.L.C., Charleston, West Virginia, Attorney for Amici Curiae, James C. Peterson and Hill, Peterson, Carper, Bee & Deitzler, P.L.L.C. DAVIS, Justice:

The petitioner herein, Richard Brooks [hereinafter referred to as "Mr. Brooks"], requests this Court to issue a writ of prohibition¹ against the respondent herein, the Honorable Paul Zakaib, Jr., Judge of the Circuit Court of Kanawha County. Specifically, Mr. Brooks desires this Court to prevent the circuit court from enforcing its December 18, 2002, order whereby it sealed certain documents, from a related matter, that Mr. Brooks' counsel had obtained from the Circuit Court of Grant County pursuant to a Freedom of Information Act request.² Upon a review of the parties' briefs, appendices, and arguments herein, we grant as moulded the requested writ. To the extent that the peer review documents contained in the Grant County jury trial record (1)(a) are available from an original source other than the peer review process or (b) are no longer protected by said privilege as a result of Dr. Wahi's waiver thereof and (2) have not been sealed by that tribunal, the petitioner may access such documents and make use thereof in his medical malpractice action against Dr. Wahi and CAMC. See generally W. Va.Code § 30-3C-3 (1980) (Repl.Vol.1998). Whether or not such documents are exempt from the privilege or were sealed by the Grant County Circuit Court must be determined by the Circuit Court of Kanawha County.

I. FACTUAL AND PROCEDURAL HISTORY

The lengthy and complex factual and procedural posture upon which the instant original jurisdiction proceeding is based may be summarized as follows. In 1995, Mr. Brooks sustained serious injuries in a motor vehicle accident and was transported to Charleston Area Medical Center [hereinafter referred to as "CAMC"] to receive medical treatment. In the course of said treatment, Dr. Wahi surgically repaired a tear in Mr. Brooks' aorta. During post-operative care, it became apparent that Mr. Brooks could not move his lower extremities and that, either as a result of his traumatic injuries or the surgery he had undergone, he had been rendered a T-6 paraplegic. Thereafter, Mr. Brooks obtained counsel and, on January 10,1997, instituted a medical malpractice action against Dr. Wahi and CAMC in the Circuit Court of Kanawha County.

Shortly after the incidents described above, Dr. Wahi left CAMC and moved to Grant County, West Virginia. At approximately the same time, CAMC undertook a peer review investigation of Dr. Wahi, due, in part, to the unfortunate outcome of Mr. Brooks' surgery and as a result of the unanticipated surgical outcomes of other patients treated by Dr. Wahi.³ After the conclusion of such peer review proceedings, an article was published in the Charleston Gazette newspaper which allegedly re-printed verbatim the contents of certain peer review documents in spite of the privilege that usually attaches to such records.⁴ In response to this article, Dr. Wahi filed a defamation action, in the Circuit Court of Grant County, against the Daily Gazette Company and CAMC claiming that the published information questioning his skill as a cardiothoracic surgeon jeopardized his ability to practice medicine in this State.

During the course of the Grant County proceedings, both Dr. Wahi and CAMC⁵ introduced into evidence the peer review documents alleged to have been divulged in the newspaper article; these documents, as well as other peer review records, were also admitted into evidence by the circuit court and published to the jury. Ultimately, the jury concluded that Dr. Wahi had not proven the elements of his defamation claim and ruled in favor of the remaining defendant, CAMC. Although the peer review documents placed in evidence in support of the parties' respective positions were ostensibly protected by the peer review privilege following the conclusion of the jury trial,⁶ there is no evidence before this Court to indicate that any party made a written motion to seal the record of the trial proceedings or that the Circuit Court of Grant County issued a written order placing such record under seal. Although not apparent from the party's appendices in the instant proceeding, Dr. Wahi and CAMC nevertheless maintain that the Circuit Court of Grant County sealed the subject trial record by verbal order.

Thereafter, on October 8, 2002, Dr. Wahi and CAMC moved for dismissal of Mr. Brooks' Kanawha County malpractice action due to failure to prosecute.⁷ While defending this motion, Dr. Brooks' counsel filed a Freedom of Information Act [hereinafter referred to as "FOIA"] request,⁸ on October 11, 2002, with the Circuit Clerk of Grant County to obtain information from Dr. Wahi's defamation action. Specifically, attorneys for Mr. Brooks requested

a. The Complaint filed in Civil Action No: 00-C-61, Wahi v. CAMC filed in the Grant County Circuit Court;

b. The Answer or Answers filed by CAMC in this matter;

c. A transcript of the trial proceedings; [and]

d. The docket sheet for this Civil Action [00-C-61][.]

Counsel further asked that

[i]f access to these records [is] being denied pursuant to a Court Order, please provide a copy of that Order. Also please provide a copy of the Motion entered requesting the Court deny access to the record. If any other requested writings are withheld by your office, please provide a detailed description of the writings which the Court claims are exempt from disclosure and provide an itemized explanation specifying and indexing the exemption or exemptions of the West Virginia FOIA your office maintains are the basis for exempting each writing from disclosure with the description of the writings withheld.

(Citations omitted).

In response to such request, the Grant County Circuit Clerk sent Mr. Brooks' counsel all of the requested documents except for the jury trial transcript because no transcript had yet been requested or prepared. Upon being apprised of this fact, counsel then requested copies of the electronic recordings of the Grant County proceedings and the exhibits therein, for which payment was tendered. During the fulfillment of this request, Mary Comer, the certified court reporter who had recorded the Grant County proceedings, discussed the release of such records with the Honorable Andrew N. Frye, Jr., Chief Judge of the Circuit Court of Grant County, who had presided over said trial. In her affidavit, Ms. Comer related that

[i]n a conversation with Judge Frye of Grant County on or about the last week of October or first week of November of 2002, [I] was advised that any documents which were a part of the court record were to be considered public records because there was never any order entered to seal the records or make the[m] confidential.

As a result, copies of both the jury trial exhibits and electronic recordings of the proceedings were forwarded to Mr. Brooks' counsel, who had said recordings transcribed by another certified court reporter.

On November 25, 2002, the Circuit Court of Kanawha County held a hearing on CAMC's and Dr. Wahi's motions to dismiss Mr. Brooks' malpractice lawsuit for inaction and failure to prosecute his case. Prior to said hearing, counsel for Mr. Brooks filed the pleadings, exhibits, and trial transcript of the Grant County proceedings in the Circuit Court of Kanawha County in support of his claims that Dr. Wahi had acted negligently in his treatment of Mr. Brooks and that CAMC knew of Dr. Wahi's alleged incompetence as a thoracic surgeon. By order entered December 18, 2002, the circuit court denied the defendants' motion to dismiss "finding that the plaintiff had engaged in sporadic activity since this Court ruled on an earlier motion to dismiss three years ago, and further finding that the harsh remedy defendants seek is not justified under the circumstances of this case." However, during the course of said hearing,

counsel for defendant Wahi made an oral motion to the Court, joined by defendant CAMC, to seal the transcript of the November 25, 2002, hearing in this case, as well as the recent pleadings and exhibits filed by the plaintiff prior to the hearing, which pleadings and exhibits make reference to Dr. Wahi and the trial exhibits and trial testimony in ... Wahi v. CAMC, Civil Action No. 00-C-61, in the Circuit Court of Grant County, West Virginia. After hearing argument of counsel on that issue, the Court, over the objection of plaintiff's counsel, GRANTED Dr. Wahi's request and ordered that the records and

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