Depositions kept from public gaze in hepatitis cases

By Jeff German (contact)

Friday, July 31, 2009 | 2 a.m.

At a time when the Nevada Supreme Court is calling for more transparency in the courts, Las Vegas attorney Floyd Hale apparently doesn’t get it.

Hale’s not just another lawyer with a sideline opinion. He holds a part-time, quasi-judicial job overseeing the collection of evidence in the massive litigation stemming from last year’s hepatitis scare.

Some 5,000 former patients, including more than 200 who allege they were infected with the potentially deadly hepatitis C virus, are suing the Endoscopy Center of Southern Nevada over sloppy medical practices that caused them great stress.

And yet, as some of those cases head toward trial in October, Hale, as “special master” for the case, has recommended that District Judge Allan Earl keep confidential the sworn depositions that might shed light on not only what happened to the patients, but also how local and state officials initially handled the cases.

Ten weeks ago the plaintiffs’ lawyers filed a motion asking Earl to lift his year-old confidentiality order. That order allowed the endoscopy center and other defendants to designate the depositions as private. Very little justification was required to keep the depositions secret.

When questioned under oath, endoscopy center physicians and nurses asserted their Fifth Amendment rights against self-incrimination and refused to answer any questions. Dr. Dipak Desai, the center’s owner, was apparently too sick to show up for his deposition. He had one of his attorneys take the Fifth for him. But other depositions bear the testimony of public health officials, physicians and other witnesses who may have provided valuable insight into the unprecedented hepatitis scare. Attached to some of those depositions are more revealing documents also being withheld from the public.

The plaintiffs’ lawyers complain that the overly broad order has made it more difficult to carry out their fact-finding mission. But the clampdown also has kept the public in the dark about one of the valley’s biggest-ever medical calamities.

Officially, the depositions haven’t been filed with the court yet, so they are not considered part of the court record. That has contributed to the ease with which the depositions have been withheld from the public.

Supreme Court rules say that before a judge can order a document in the court record sealed, he has to weigh the competing private and public interests. Had that same standard been applied when considering whether to keep the depositions confidential, it’s highly unlikely that any of the lawyers would be complaining right now.

In his four-page recommendation, Hale defends the confidentiality order imposed by Earl — the judge who appointed Hale as special master at the recommendation of, ironically, the lawyers for the defendants.

Hale, who is paid by parties to the litigation and not taxpayers, notes that Earl initially crafted the confidentiality order in part to protect the Fifth Amendment rights of some of the defendants being deposed. After the Sun reported last year that the endoscopy center’s office manager, Tanya Rushing, had taken the Fifth in her deposition and refused to answer more than 200 questions, Earl threatened to sanction any lawyer he caught violating his gag order.

Hale takes things a step further in his recommendation, suggesting that “the publication of newspaper articles regarding the assertion of Fifth Amendment rights can easily challenge the ability of the district court to have an impartial jury.”

But the special master makes no mention of the rights of victims and the public to learn what really happened here.

The plaintiffs’ lawyers lodged an objection to Hale’s recommendation, noting: “Public access to the evidence that supports each party’s position is not only crucial to the truth-finding function of these proceedings, but also to public confidence that justice has (been) meted out fairly,” the lawyers wrote in court papers.

In other words, the defendants’ private interest in keeping the depositions under wraps should not be allowed to override the public’s interest in gaining access to them.

Earl had scheduled an Aug. 17 hearing on the matter. But that’s on hold until he gets a green light from the Bankruptcy Court judge handling the endoscopy center’s Chapter 7 filing. So, on Aug. 19, a Bankruptcy Court hearing is to hash out the question of whether the District Court endoscopy litigation can move forward.

As for transparency in the court system, it has been pushed down the list of priorities in this case.