Jewish Hospital's "strike back" lawsuit took another bizarre twist this past week with the hospital seeking to prohibit the plaintiff's lawyers from talking to the press.
Last week it was reported that the Jewish Hospital's lawyers were apparently surprised when the lawyers representing the two lawyers (Joe White and Michael O'Connell) were going to address the original lawsuit's claims regarding their good faith belief in the existence of the hospital infections and the facts upon which they based that belief.
Now, the hospital wants a "gag" order after the hospital and its lawyers have already been discussing the case frequently with the press. Should anyone have copies of these motions in PDF format, then please email them to us and we would gladly share them with the local lawyers at this site.
At first blush, this motion by the hospital seems unprecedented in Kentucky within the context of avoiding potential embarassment of a corporate litigant rather than protecting a potential jury; and does not appear to be warranted within this context under existing cases and rules. Worse yet, attempting to silence the other party and their counsel who have not violated any ethical rule or court order after you have already had your "way" with the press is not only too late but unfair to those to be "gagged". There are not trade secrets or internal policies at risk of exposure; just the facts of the case.
It looks like Jewish Hospital and its attorneys have learned that talking to the press is not a one-way street and is not without its risks that the entire story may be told and not just yours! Here is the Andrew Wolfson story at the Courier-Journal. You are encouraged to click on the heading and read the entire story.
In an unusual move for a plaintiff in a lawsuit, Jewish Hospital has asked a Jefferson circuit court judge to bar lawyers on either side from discussing its suit against two lawyers who unsuccessfully sued the hospital over allegedly unsanitary conditions.
Responding in court papers, Gary Weiss, who represents one of the lawyers, called the motion hypocritical, noting that the hospital already has twice commented to the media on its suit, including for a story in The Courier-Journal.
"The dread of having press coverage at that time did not dawn on the hospital because one of its media people was all too happy to be freely quoted about the alleged horrors perpetrated on Jewish Hospital by Joe White and Mike O'Connell," Weiss said.
Weiss also claimed the proposed gag order is designed to spare the hospital from ridicule and bad publicity, not to prevent a jury from being tainted, which is why such orders are usually issued. * * *
Click on heading above for rest of story by Courier Journal writer Andrew Wolfson.
Previous stories regarding hospital and medical mistakes and infections:
A quick search of Kentucky appellate decisions on "gag orders" all deal with these restraints on free speech within the context of a "higher right" to be protected and would include the context of a fair trial and protecting the jury; not avoiding embarassment to a litigant.
- Roman Catholic Diocese of Lexington v. Noble,
92 S.W.3d 724, 31 Media L. Rep. 1321, Ky., November 21, 2002
Within the context of examining a trial judge's order to seal records, Justice Johnstone compared sealing records with a "gag order" - "In order to overcome the presumption in favor of access to court records, the party opposing access must demonstrate by substantial evidence, and the trial court must determine, “that there is a substantial probability that the right ... to a fair trial ... will be otherwise irreparably damaged.” Such a determination requires specific, on-the-record findings, that, much like the decision to issue a “gag order,” should follow careful consideration of alternative means of protecting a litigant's right to a fair trial . . . ." - James v. Hines, 63 S.W.3d 602, 607-08, Ky.App.,1998.
In an appeal arising from restrictions imposed upon the parents of the slain childre and their attorneys in the litigation arising from the case against Michael Carneal in which Judge Hines, sua sponte, enjoined attorneys representing the parties in the criminal action against Carneal, persons working for these attorneys, police officers, potential witnesses, and attorneys and individuals contemplating civil litigation from releasing or authorizing the release of extrajuducial statements related to Commonwealth v. Carneal, Indictment No. 97-CR-350.
"Prior to issuing a permanent injunction which prohibits the dissemination of information by parties, counsel and witnesses, the court should hold an evidentiary hearing at which all potentially enjoined persons are given a right to be heard. See Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 226 (6th Cir.1996) (holding that ex parte orders restraining free speech have “no place” in the “First Amendment realm” where no showing is made that it is impossible to notify the interested parties and give them an opportunity to be heard). See also Capital Cities Media, Inc. v. Toole, 463 U.S. 1303, 1305-07, 103 S.Ct. 3524, 3526-27, 77 L.Ed.2d 1284, 1287-89 (Brennan, Circuit Justice 1983) (granting stay of order prohibiting release of juror names and addresses where order was entered without a hearing and without findings of fact justifying it). The court should make clearly articulated findings of fact addressing the probability that the defendant's right to a fair trial or his constitutional rights would be irreparably damaged. Young, 522 F.2d at 239. The injunction must identify less restrictive alternatives for eliminating the prejudice, such as sequestration or voir dire, and explicitly state why they are inadequate in the present case. Dow Jones, 842 F.2d at 611. Finally, the injunction must be narrowly drawn, and must address only those actions by counsel or witnesses which would materially prejudice the defendant's right to a fair trial.
And Supreme Court Rule 3.130 (Rule 1.6) - Trial Publicity already addresses attorneys' communications with the media:
(a) A lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding. * * *
(c) . . . [A] lawyer involved in the investigation or litigation of a matter may state without elaboration:
(1) The general nature of the claim or defense;
(2) The information contained in a public record;
(3) That an investigation of the matter is in progress, including the general scope of the investigation, the offense or claim or defense involved and, except when prohibited by law, the identity of the persons involved;
(4) The scheduling or result of any step in litigation;
(5) A request for assistance in obtaining evidence and information necessary thereto;
(6) A warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; . . . .
- Lexington Herald-Leader Co., Inc. v. Meigs
660 S.W.2d 658, Ky.,1983 (addressing "gag order" prohibiting revealing of names of potential jurors by newspaper).
And, here are some "generic" internet stories and postings on "gag" orders in trials and their potential for abuse:
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