DEFENDANT EGHERMAN'S OPPOSITION TO PLAINTIFF'S MOTION TO PROCEED ANONYMOUSLY

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
ROE V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
DEFENDANT EGHERMAN'S OPPOSITION TO PLAINTIFF'S MOTION TO PROCEED ANONYMOUSLY

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CASE NO.: 99-850-CV-19-A

JANE ROE, II,
Plaintiff,
vs.
AWARE WOMAN CENTER FOR CHOICE, INC., a Florida corporation,
EDWARD W. WINDLE, JR.,
PATRICIA B. WINDLE and
WILLIAM P. EGHERMAN, M.D.,
Defendants.

DEFENDANT'S, WILLIAM P. EGHERMAN, M.D., MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF'S MOTION TO PROCEED ANONYMOUSLY

FACTS

On July 9, 1999, Plaintiff filed a complaint[1] against, among others, WILLIAM P. EGHERMAN, M.D. (hereinafter "DR. EGHERMAN"). According to Plaintiff's Complaint, on March 29, 1997, Plaintiff voluntarily entered AWARE WOMAN CENTER FOR CHOICE, INC., to have her fourth abortion performed. As the procedure was in progress, Plaintiff claims she experienced excessive pain in her abdomen. Shortly thereafter, Plaintiff alleges that she demanded she be taken to the emergency room, but was instead "forcibly held" against her will as DR. EGHERMAN performed the procedure. As a result, Plaintiff seeks relief for Defendants' alleged violations of the Freedom of Access to Clinic Entrances Act (hereinafter "FACE"), 18 U.S.C § 248. A motion to dismiss is pending.

On November 16, 1999, DR. EGHERMAN received Plaintiff's Motion to Proceed Anonymously.[2] In support of her motion, Plaintiff contends that DR. EGHERMAN is barred from objecting to this particular motion based on waiver, estoppel, FLA. STATS. § 794.026 and § 794.011(h), and the Physician-Patient privilege.

LAW

Plaintiff argues that because the defendant in Doe v. Frank, 951 F.2d 320 (11th Cir. 1992), objected to the plaintiff's use of a fictitious name via a Fed.R.Civ.P. 12(b)(6) motion to dismiss, and because Defendants in this case have filed two motions to dismiss Plaintiffs Complaint without alleging a violation of Fed.R.Civ.P. 10(a)[3], Defendants in this action "have waived their right to contest Plaintiff's anonymity." Plaintiff cites no case law, rule, nor statute supporting her contention. Such an argument is tantamount to "gotcha" tactics and should not be countenanced by this Court.

Rule 12(h), Federal Rules of Civil Procedure, governs the waiver or preservation of certain defenses. Violation of Fed.R.Civ.P. 10(a) is not listed as a waivable defense. Plaintiff moved to proceed in this suit anonymously. DR. EGHERMAN is responding and objecting to Plaintiff's motion. Defendants, including DR. EGHERMAN, have not waived their right to contest Plaintiff's anonymity in this case. Plaintiff's argument is without merit.

Plaintiff argues that Defendants are estopped from contesting to Plaintiff's request for anonymity because co-Defendants have sought relief from this Court in another suit on behalf of themselves and a patient at their clinic, who is utilizing the fictitious name "Poe". Judicial estoppel is inapplicable in subsequent proceedings in which the parties are different. See Markow v. Alcock, 356 F.2d 194, 198 (5th Cir. 1966).[4] The suit Plaintiff refers to in her motion has no bearing on this case.

In paragraph 5 of Plaintiff's Motion to Proceed Anonymously, she contends that in addition to a violation of her rights under FACE, she was the victim of sexual battery. Plaintiff makes this contention in an effort to conceal her identity, as is provided for in specific sections of Chapter Seven of the Florida Statutes. However, under Fed.R.Civ.P. 8:

A pleading which sets forth a claim for relief, ... shall contain ... a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgement for the relief a pleader seeks.

Nowhere in Plaintiff's Complaint does Plaintiff allege she was a victim of sexual battery, nor does Plaintiff seek relief for damages associated with sexual battery. As a result, Plaintiff's argument that she should be afforded certain entitlements pertaining to a sexual battery victim is of no moment. Again, such an argument raised in Plaintiff's motion, yet not even plead in her Complaint, reflects on the lack of merit to said motion.

Additionally, Plaintiff argues that she has not waived her privilege prohibiting the release of her name under the Physician-Patient relationship. To the contrary, Plaintiff has. In bringing this suit, Plaintiff has made the treatment she received by DR. EGHERMAN, in the course of a medical procedure an issue. The circumstances surrounding that incident have become the subject matter of this suit and any claim to privilege has been waived. See Argonaut Insurance Company v. Peralta, 358 So.2d 232, 233 (Fla. 3rd DCA 1978), reversed on different grounds; see also FLA. STAT. § 455.667 (6).

Plaintiff contends that "the case at hand presents an unusual situation in which the violence and abuse inflicted on the Plaintiff should be revealed to the public but the danger of harm to the Plaintiff and the sensitive and personal nature of the wrong require that her identity should not be disclosed publicly." (Plaintiff's Motion to Proceed Anonymously, ¶5). In support of her argument, Plaintiff, again, cites Doe v. Frank, 951 F.2d 320 (11th Cir. 1992), attempting to distinguish the facts in Frank from the facts in the instant action.

In Frank, the plaintiff, after being terminated from his position at the Florida Post Office, filed a complaint, under a fictitious name, against the Postal Service, alleging that he was "removed from employment because of his alcoholism, a physical handicap, in violation of the Rehabilitation Act of 1973, 29 U.S.C. §§ 791-794, and the Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act of 1970, 42 U.S.C. § 290dd." Id. at 322. Subsequent to the defendant's motion to dismiss based on plaintiff's violation of Fed.R.Civ. P. 10(a), plaintiff filed a motion to proceed under a fictitious name. See id. at 322. The district court denied the plaintiff's motion and the plaintiff appealed. See id.

The Eleventh Circuit reviewed the plaintiffs appeal and found that in determining whether a plaintiff should be permitted to proceed anonymously, in violation of Fed.R.Civ. P. 10(a), a court must determine whether said plaintiff has a "substantial privacy right which outweighs the 'customary and constitutionally-embedded presumption of openness in judicial proceedings.'" Id. at 323. The court went on to find that a plaintiff should be permitted to proceed anonymously:

only in those exceptional cases involving matters of a highly sensitive and personal nature, real danger of physical harm, or where the injury litigated against would be incurred as a result of the disclosure of the plaintiffs identity. The risk that a plaintiff may suffer some embarrassment is not enough, Id. at 324.

Consequently, the Eleventh Circuit found that the plaintiff was not in a position that warranted party anonymity.

It is a general principle of law that the identities of the parties involved in a cause of action should not be concealed. See Southern Methodist University Ass'n of Women Law Students v. Wynne & Jaffe, 599 F.2d 707, 712 (5th Cir. 1979). Public access to the names of the parties to a lawsuit is more than "a customary procedural formality; First Amendment guarantees are implicated when a court decides to restrict public scrutiny of judicial proceedings." See Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981). Courts have determined that there are three common factors in those cases where party anonymity outweighs the presumption of openness mandated by procedural custom. These common factors are:

1) plaintiffs seeking anonymity were suing to challenge governmental activity;

2) prosecution of the suit compelled plaintiffs to disclose information "of the utmost intimacy;" and

3) plaintiffs were compelled to admit their intention to engage in
illegal conduct, thereby risking criminal prosecution. Id. at 185.

With regard to the first factor enumerated, it has been established that most cases allowing plaintiffs to proceed anonymously involve actions challenging government activity. See Frank at 323. The reasoning behind this fact was explained by the Fifth Circuit in Wynne & Jaffe, at 713 (where plaintiffs attempted to proceed anonymously against two law firms in a sex discrimination case):

While such suits involve no injury to the Government's "reputation," the mere filing of a civil action against other private parties may cause damage to their good names and reputation and may also result in economic harm ... Basic fairness dictates that those among the defendants' accusers who wish to participate in this suit as individual party plaintiffs must do so under their real names.

Likewise, in the instant action Plaintiff has brought a suit against private individuals, not a governmental entity. Plaintiff seeks monetary compensation. She is not attempting to challenge the statutory, constitutional or regulatory validity of government action. See id. Like the defendants in Wynne & Jaffe, Defendants are private individuals with reputations at stake. So like the plaintiffs in Wynne & Jaffe, Plaintiff in this case should also be required to disclose her identity prior to continuing with this action in search of monetary relief.

The second factor enumerated concerns a plaintiff's disclosure of information of the utmost intimacy. Courts have held that information pertaining to mental illness, homosexuality, and transsexuality is considered information of the utmost intimacy. See Frank at 324. Sexual abuse of a child has also been considered enough to overcome the presumption of openness in court. See Does v. Covington County School Board, 884 F.Supp. 462, 465 (M.D Ala. 1995). It is because of the social stigma attached to the aforementioned positions and/or situations that courts find they are meritorious of anonymity. See Frank at 324. As history has shown us, homosexuals, transsexuals, and the mentally ill are often the subject of discrimination, hate crimes, and retaliatory action. Children of sexual abuse undergo severe emotional distress, as well as a phobia of their abuse being revealed, exceeding that of mere embarrassment.

In the instant action, Plaintiff claims that Defendants physically injured her, causing damages. Plaintiff's action is similar to a battery claim. A battery does not fall under the auspices of information classified as being of utmost intimacy. As mentioned above, Florida law does make some allowances for anonymity in cases involving sexual battery, however, because Plaintiff does not allege sexual battery in her Complaint, said exceptions do not apply.

Although abortions are admittedly a controversial issue, they are not the subject of social stigma. Persons who have had this procedure performed are not categorized as a group of people known to be the subject of discrimination or hate crimes, nor are they members of a suspect class.

Much like the plaintiff in Frank, Plaintiff in the instant action is attempting to sever all ties with a subject matter that causes her embarrassment. However, as we have established, embarrassment is not enough to overcome a presumption of openness in judicial proceedings. See Frank at 324. In Plaintiff's Motion to Proceed Anonymously, she argues that she differs from the plaintiff in Frank because the plaintiff in that case was suffering from alcoholism, a self-inflicted condition. It is apparent, however, that Plaintiff was seeking an abortion of her own free will. Plaintiff entered AWARE WOMAN CENTER FOR CHOICE, INC., signed a consent form, and agreed to have her fourth abortion performed. Plaintiff's rationale for concealing her identity is not founded upon valid legal grounds.

Lastly, Plaintiff claims that because of the alleged incident she experienced she is in danger of harm and should not be ordered to reveal her identity. The threat of "hostile public reaction to a lawsuit, standing alone, will only with great rarity warrant public anonymity." See Stegall at 186 (where the court granted anonymity based on extensive record evidence that plaintiffs had been subjected to "violent reprisals" and excessive harassment) (Emphasis added). Threats of violence in conjunction with additional factors arc generally needed to warrant anonymity. See id. Plaintiff has not provided this Court with any evidence that she bas been harassed or subjected to violent threats.

Whatever her reasons for concealing her identity may be, Plaintiff's arguments do not achieve a level overcoming the constitutionally grounded presumption of judicial openness. The mechanics of non- disclosure would only complicate the handling of this case, See Wynne & Jaffe at 710, and prejudice DR. EGHERMAN.

Should Plaintiff's motion be granted, Defendants' ability to conduct discovery and investigate this case would be severely frustrated. The taking of a person's deposition would be hindered and limited to said person's familiarity with the character Plaintiff has created, not Plaintiff's true identity, making it impossible to obtain any information relevant to this case. Obtaining relevant records and documents would also be impossible. Documents of any importance would be found under Plaintiff's real name, and hence, would not surface under the guise of Plaintiff's fictional name. Without that necessary information, Defendants' formulation of a defense would be seriously impaired.

In addition to the problems related to discovery and investigation surrounding Plaintiff's motion, the fairness and impartiality experienced by a witness or juror must also be explored. If Plaintiff were allowed to proceed in this case anonymously, neither of the parties would be able to properly select a jury. A potential juror could not be asked if they were familiar with the Plaintiff, thus avoiding any possible bias. Nor could a witness be examined to reveal any biases with regards to Plaintiff. Without a fair and impartial jury, DR. EGHERMAN will not receive a fair trial, and will be utterly prejudiced.

In short, DR. EGHERMAN will not be able to formulate a defense without great expense, time and prejudice that is not warranted by the facts of this case.

For the aforementioned reasons, DR. EGHERMAN respectfully requests that this Honorable Court deny Plaintiff's Motion to Proceed Anonymously.

WE HEREBY CERTIFY that a true copy of the foregoing was mailed November 30, 1999 to: Christopher F. Sapp, Esquire, Post Office Box 1012, Lehigh Acres, FL 33970; Andrew Menyhart, Esquire, Post Office Box 541760, Merritt Island, FL 32954-1760.

WICKER, SMITH, TUTAN, O'HARA, McCOY, GRAHAM, & FORD, P.A. Attorneys for DR. EGHERMAN
Post Office Box 2753
Orlando, FL 32802-2753
Phone: 407.843.3939

By: RICHARDS H. FORDS <signed>
Florida Bar No. 0715026

FOOTNOTES

[1] As is noted in the title of the instant action, Plaintiff filed her Complaint under a fictitious name.

[2] This motion was proposed by Plaintiff's counsel during the Case Management meetings and hearing.

[3] Fed.R.Civ.P. 10(a) provides as follows:
Caption; Names of Parties. Every pleading shall contain a caption setting forth the name of the court, the title of the action, the file number, and a designation as in Rule 7(a). In the complaint the title of the action shall include the names of all parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties. (Emphasis added).

[4] In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.