Doe v. Rackliffe , 173 Conn. App. 389 ( 2017 )

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JAMES DOE ET AL. v. ROBERT RACKLIFFE
(AC 37681)
DiPentima, C. J., and Sheldon and Bishop, Js.
Argued January 19—officially released May 23, 2017
(Appeal from Superior Court, judicial district of
Hartford, Elgo, J.)
Pamela LeBlanc, with whom, on the brief, were Erin
E. Canalia and A. Ryan McGuigan, for the appel-
lants (plaintiffs).
Laura Pascale Zaino, with whom were William J.
Sweeney, Jr., and, on the brief, Richard C. Tynan and
Logan A. Forsey, and for the appellee (substitute
defendant).
Opinion
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 contin-
ued 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 main-
taining their anonymity that outweighed the public’s
interest in knowing the names of the parties. We dis-
agree and, accordingly, affirm the order of the trial
court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. The plaintiffs com-
menced 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 plain-
tiffs, 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, appre-
hension, 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 plain-
tiffs temporary permission to proceed under the pseud-
onyms ‘‘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 pseud-
onyms (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 eviden-
tiary 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 allega-
tions 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 com-
ments 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 affida-
vits 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 sup-
port of their motion, arguing that an evidentiary hearing
was not required because the allegations in their com-
plaint and the statements in their affidavits were suffi-
cient for the court to make the necessary finding under
Practice Book § 11-20A (h). In that supplemental memo-
randum, 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 contin-
ued that it ‘‘cannot reconcile how it can make findings
requiring it to consider the relative interests of the par-
ties 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 harass-
ment, 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, [900 A.2d 525] (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, unnec-
essary 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 out-
weighed 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 stan-
dard 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 deny-
ing such a request, the court employed its informed
discretion . . . . Inherent [therefore] in the concept of
judicial discretion is the idea of choice and a determina-
tion 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 is limited to whether the trial
court correctly applied the law and reasonably could
have concluded as it did. . . . Practice Book § 11-20A
provides the procedure courts must follow when con-
sidering . . . motions to permit parties to proceed
anonymously.’’ (Citations omitted; internal quotation
marks omitted.) Vargas v. Doe, supra, 96 Conn. App.
408–409.
Pursuant to Practice Book § 11-20A (h) (1), ‘‘[p]seud-
onyms 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.’’4 ‘‘The
procedure outlined in § 11-20A (h) (1) provides a road
map for what long has been understood as a high thresh-
old for granting applications to proceed anonymously
. . . . 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 out-
weighs the customary . . . presumption of openness
in judicial proceedings. . . . Furthermore, not all sub-
stantial privacy interests are sufficient to outweigh the
public’s interest in open judicial proceedings. The ulti-
mate test for permitting a [party] to proceed anony-
mously is whether the [party] has a substantial privacy
right which outweighs the customary and constitution-
ally-embedded presumption of openness in judicial pro-
ceedings. . . . 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. . . . The most compelling situations [for
granting a motion to proceed anonymously] involve
matters which are highly sensitive, such as social stig-
matization, 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].’’ (Citations omitted; internal quotation marks
omitted.) Vargas v. Doe, supra, 96 Conn. App. 410–11.
‘‘Because [l]awsuits are public events . . . [a] plaintiff
should be permitted to proceed anonymously only in
those exceptional cases involving matters of a highly
sensitive and personal nature . . . .’’ Doe v. Connecti-
cut Bar Examining Committee, 263 Conn. 39, 70, 818
A.2d 14 (2003).
Guided by the foregoing, we conclude that the court
did not abuse its discretion in denying the plaintiffs’
motion. We note that the relief sought by the plaintiffs
on appeal does not request a remand for an evidentiary
hearing but rather seeks a reversal of the trial court’s
denial of their motion for continued use of pseudonyms;
in the alternative, they ask that the case be remanded
so that ‘‘the trial court can make findings of fact based
on the full record, including the plaintiffs’ affidavits.’’
In reviewing the evidence before it and in accordance
with what the plaintiffs seek now on appeal, the trial
court correctly assumed that the plaintiffs were stead-
fastly5 opposed to an evidentiary hearing and relied
solely on their affidavits to support their motion. Thus,
the court was left with the plaintiffs’ affidavits only as
the bases for determining whether they had met their
burden of demonstrating substantial privacy interests
in maintaining their anonymity that outweighed the pub-
lic’s interest in knowing their names.6 See Practice Book
§ 11-20A (h) (1).
In their affidavits, the plaintiffs describe acts of sex-
ual 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 psychologi-
cal anguish.’’
These affidavits, however, do not set forth any spe-
cific facts or evidence to support the plaintiffs’ conclu-
sory statements as to the harm they would suffer if they
could not proceed anonymously. See generally Stuart
v. Freiberg, 316 Conn. 809, 828–29, 116 A.3d 1195 (2015)
(conclusory averments in affidavit inadequate to defeat
motion for summary judgment); see also Vargas v. Doe,
supra, 96 Conn. App. 410 (burden on movants ‘‘to show
why they should be permitted to proceed anony-
mously’’); see, e.g., Doe v. Diocese Corp., 43 Conn. Super. Ct.
152, 161, 647 A.2d 1067 (1994) (court allowed plaintiff
to use pseudonym in case where testimony of plaintiff
expressed ‘‘real concern and fear of shame and humilia-
tion if he received public exposure,’’ and testimony
of plaintiff’s therapist stated that he would ‘‘strongly
[recommend] against public exposure . . . [as] it
would create real problems with the plaintiff’s ther-
apy’’); Doe v. Firn, Superior Court, judicial district of
Ansonia-Milford, Docket No. CV-06-5001087-S (Septem-
ber 22, 2006) (court allowed plaintiff to use pseudonym
in case where testimony of plaintiff ‘‘revealed that she
ha[d] received psychological and psychiatric treatment
related to the alleged assaults on fifteen or twenty occa-
sions, and that she continue[d] to receive such counsel-
ing’’). 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 per-
sonal nature’’; (internal quotation marks omitted) Doe
v. Connecticut Bar Examining Committee, supra, 263
Conn. 70; that a party should be permitted to use pseud-
onyms in the underlying civil action.
Here, the plaintiffs assert that their case involves
matters of a highly sensitive and personal nature. See
id.; see also Vargas v. Doe, supra, 96 Conn. App. 410–11.
In particular, the plaintiffs’ affidavits allege that they
had substantial privacy interests in maintaining their
anonymity in this case because they likely will suffer
social stigmatization, due particularly to the nature of
their allegation that the defendant, their pediatrician,
had sexually assaulted them multiple times over ten
years when they were minors. Although this court pre-
viously has recognized that ‘‘when allegations of sexual
assault are involved, those who are alleged to be vic-
tims, especially minors, may have strong privacy inter-
ests in having the allegations and surrounding
circumstances concealed from public scrutiny, the pro-
cedures that our rules of practice provide do not permit
automatic approval of the use of pseudonyms by the
party or parties involved. Rather, the rules of practice
provide an intricate procedure that the court must fol-
low prior to permitting the use of pseudonyms in any
given case.’’ Vargas v. Doe, supra, 96 Conn. App. 413.
In particular, a prerequisite for a party to proceed anon-
ymously under Practice Book § 11-20A (h) (1) is that
the trial court must ‘‘determine the existence of a sub-
stantial privacy interest that outweighs the public inter-
est in open judicial proceedings and . . . articulate any
factual findings that would support such a conclusion.’’
Id., 412.
Because the plaintiffs’ affidavits merely stated the
general nature of the privacy interests they asserted
without providing factual or evidentiary support for
that assertion,7 we cannot conclude, on the basis of
the record, that the court reasonably could only have
determined that the plaintiffs’ substantial privacy inter-
ests in maintaining their anonymity outweighed the pub-
lic’s interest in knowing their names.8 We therefore
conclude that the court did not abuse its discretion in
denying the plaintiffs’ motion.
The order is affirmed.
In this opinion the other judges concurred.
1
Practice Book § 11-20A (h) (2) provides: ‘‘The judicial authority may grant
prior to the commencement of the action a temporary ex parte application for
permission to use pseudonyms pending a hearing on continuing the use of
such pseudonyms to be held not less than fifteen days after the return date
of the complaint.’’ In addition, § 11-20A (h) (3) further provides in relevant
part: ‘‘After commencement of the action, a motion for permission to use
pseudonyms shall be placed on the short calendar to be held not less than
fifteen days following the filing of the motion . . . so that notice to the
public is given of the time and place of the hearing on the motion and to
afford the public an opportunity to be heard on the motion under consider-
ation. . . .’’
2
The October 8, 2014 date was selected to accommodate the plaintiffs,
who reside out of state.
3
The defendant moved to dismiss the appeal, and this court denied that
motion but ordered the parties to file supplemental briefs addressing
whether the appeal should be dismissed for lack of a final judgment. After
the parties briefed the final judgment issue, this court issued an order
determining that ‘‘[t]he trial court order denying a motion for continued use
of pseudonyms in this case is an appealable final judgment pursuant to the
second prong of State v. Curcio, 191 Conn. 27, 31–36 [463 A.2d 566] (1983).
See Sabanovic v. Sabanovic, 108 Conn. App. 89, 90 n.1 [946 A.2d 1288]
(2008).’’
4
Practice Book § 11-20A (h) (1) further provides: ‘‘The judicial authority
shall first consider reasonable alternatives to any such order and any such
order shall be no broader than necessary to protect such overriding interest.
The judicial authority shall articulate the overriding interest being protected
and shall specify its findings underlying such order and the duration of
such order. If any findings would reveal information entitled to remain
confidential, those findings may be set forth in a sealed portion of the record.
The time, date, scope and duration of any such order shall forthwith be
reduced to writing and be signed by the judicial authority and be entered
by the court clerk in the court file. The judicial authority shall order that
a transcript of its decision be included in the file or prepare a memorandum
setting forth the reasons for its order. An agreement of the parties that
pseudonyms be used shall not constitute a sufficient basis for the issuance
of such an order. The authorization of pseudonyms pursuant to this section
shall be in place of the names of the parties required by Section 7-4A.’’
5
We note that the plaintiffs continued to insist that the court could make
the necessary finding under Practice Book § 11-20A (h) (1) based on their
affidavits and therefore a full evidentiary hearing was not required.
6
The plaintiffs also relied on their complaint to meet their burden of
demonstrating that their substantial privacy interests in maintaining their
anonymity outweighs the public’s interest in knowing the names of the
parties, and insisted that the statements therein were sufficient for the court
to make the necessary finding under Practice Book § 11-20A (h). Their
complaint, however, does not demonstrate how their substantial privacy
interests in maintaining their anonymity outweighed the public’s interest in
knowing the names of the parties.
According to the plaintiffs’ complaint, it alleges that the plaintiffs were
patients of the defendant for over ten years. The complaint further alleges
that during their visits to him for treatment the defendant sexually assaulted
the plaintiffs by digital anal penetration and fondling their genitalia. The
complaint also alleges that as a direct and proximate result of being sexually
assaulted by the defendant, the plaintiffs have suffered, and will suffer,
physical injury, extreme emotional distress, fear and apprehension, and
psychological pain and mental anguish that required them to seek psychologi-
cal and psychiatric treatment and prescription medication, that will continue
in the future.
7
In addition, we note that the court, in determining that the plaintiffs’
affidavits did not provide a sufficient evidentiary basis for it to make the
necessary finding under Practice Book § 11-20A (h) (1), afforded the plain-
tiffs an opportunity to present evidence beyond their affidavits in support
of their motion at an evidentiary hearing. The plaintiffs, however, declined
this opportunity. Therefore, to the extent that the plaintiffs claim that the
court required them to present ‘‘live’’ testimony at an evidentiary hearing
as a prerequisite to permitting them to use pseudonyms, that argument rests
on a faulty assumption.
8
Both parties and the court allude to the plaintiffs’ publicizing the facts
of this case to news media outlets. We acknowledge that ‘‘[w]here the public
already is aware of the circumstances sought to be kept private and readily
can identify the individuals involved in those circumstances, the privacy
interest at stake may become substantially less weighty.’’ Vargas v. Doe,
supra, 96 Conn. App. 414 n.11. We need not discuss this further, however,
as we have previously concluded in this opinion that, even without this
evidence, we are not persuaded by the plaintiffs’ claim that the trial court
abused its discretion in not finding that they have substantial privacy inter-
ests in maintaining their anonymity that outweigh the public’s interest in
knowing their names.