Opinion
Nos. 97-C-1138, 97-C-1140.
September 17, 1997. Rehearing Denied October 31, 1997.
APPEAL FROM CIVIL DISTRICT COURT, PARISH OF ORLEANS, NOS. 95-12009, 96-16847, DIVISION "L", STATE OF LOUISIANA, HONORABLE MAX N. TOBIAS, J.
Sessions Fishman, L.L.P., Camilo K. Salas, III, New Orleans, and Spyridon, Koch, Psarellis, Wallace Palermo, L.L.C., R. Joshua Koch, Jr., Metairie, for Plaintiff.
Boggs, Loehn Rodrigue, Charles A. Boggs, Jedd S. Malish, New Orleans, for Southern Transplant Service, Inc.
Lemle Kelleher, C. William Bradley, Jr., Darryl J. Foster, New Orleans, for Franklin E. Minyard, Jr., M.D., Alvaro T. Hunt, M.D., Richard E. Tracy, M.D., John Gagliano and James Brown.
Before SCHOTT, C.J., and KLEES, BYRNES, JONES and MURRAY, JJ.
On the application of Dr. Frank E. Minyard, Coroner of the Parish of Orleans, and Southern Transplant Services, Inc., we grant certiorari in order to examine the validity of a judgment of the trial court determining that records sought by plaintiff from the Coroner are public records that must be disclosed to plaintiff's counsel and granting plaintiff's counsel the right to review Southern's documents subject to a protective order.
Plaintiff, Barbara Everett, alleges that when her son died of a gun shot wound, the Coroner performed an autopsy on his body, and immediately thereafter an employee of the Coroner and an employee of Southern removed pieces of the hip bones from the body and transported them to Southern's offices where they were processed and sent to a hospital for use in surgery. Plaintiff seeks to proceed with a class action on behalf of all survivors of decedents whose body parts were "harvested" by Southern and others with the cooperation of the Coroner, but without the consent of the survivors. The immediate issue in the lawsuit according to Southern is the numerosity issue, i.e., whether the class is so numerous that joinder is impracticable. C.C.P. art. 591.
Plaintiff served a subpoena duces tecum on the Coroner to produce, for discovery, the following documents:
7. A copy of any and all logs maintained by Orleans Parish Coroner's Office for the preceding nine (9) years reflecting identification or receipt for documents, wallets or other evidence found in clothing of any individuals prior to, during or following an autopsy.
8. A copy of all documents reflecting or relating to the policy of the Orleans Parish Coroner's office at all times during the preceding nine (9) years to be used in ascertaining the identity of any unknown individuals brought to the Coroner's office for autopsy.
9. Please produce a list of all individuals autopsied at the Coroner's office over the past nine (9) years.
10. Please produce a list of all individuals brought to the Coroner's office over the past nine (9) years for purpose of autopsy whose identity, at the time of autopsy, was not known by the Orleans Parish Coroner's Office.
11. Please produce a copy of the entire file of the Orleans Parish Coroner's Office and/or the office of Dr. Frank Minyard for each individual identified above.
In response to Item 7 above the Coroner stated that he does not maintain logs, but he does maintain a property book which lists items removed from deceased individuals. The Coroner contends this is confidential to family members of the deceased.
As to Item 8 the Coroner responded that there are no such documents and as to Items 9 and 10 he responded that there are no such lists.
As to Item 11 which the Coroner calls "the real item of contention" he states that his office has performed between 13,000 and 15,000 autopsies in the nine year period and since no bone tissue was removed in the "vast majority" of these cases, the "vast majority" of the files would be irrelevant. He contends that the public's "right to know" embodied in the Public Records Act must yield to privacy rights.
As to the Coroner the trial court found that his records are public records pursuant to R.S. 44:1 et seq. and R.S. 33:1563. As to Southern the court said the following:
Judgment is rendered granting plaintiff's counsel the right to review the documents produced for in camera inspection by Southern Transplant Service, Inc.; however, neither plaintiff, plaintiff's counsel or any other person acting on their behalf may contact any relative of any deceased person in such records without further specific court authorization or disclose the contents of such documents to anyone without specific court authorization.
Beginning with Southern's application, the object of the trial court's disclosure order is a sheaf of 120 consent forms which authorized Southern to remove bone tissue. In some of these cases, the identities of the bodies appear on the forms. Southern in its application offers to provide these forms to plaintiff, but with the names of the deceased deleted. Since these names are not relevant to the issue of numerosity there is no reason for plaintiff to have them at this stage of the proceedings. Furthermore, under the conditions imposed by the trial judge the names would be of no use to the plaintiff.
As to the Coroner the question is whether one may have access to all of his autopsy reports as he has access to public records in general. Let us suppose that a member of one's family dies or is killed, the body is taken into custody by the Coroner, and an autopsy is performed. The family claims the body and buries it. If the autopsy revealed that the decedent had AIDS or some other venereal disease or that his body contained cocaine or some other illegal drug why should a member of the public have the right to know this? We are not persuaded that the legislature intended this result with the Public Records Act.
While we find no direct statutory authority for this position, R.S. 33:1564 (C), in providing for the release to the public of information pending a final diagnosis, requires prior notification of next of kin of the deceased or where no identification has been made, a showing that the Coroner has made reasonable efforts to identify the person. This demonstrates that the legislature was sensitive to privacy concerns.
In addition, there is no showing by plaintiff that she needs to see all these autopsy reports at this stage of the proceedings. At this time a class action has not been certified. If this occurs, the plaintiff will have to justify the invasion of the privacy rights of these thousands of next to kin in order to find out who may be among the class of those whose family members' body parts were removed. At this time the blanket exposure to plaintiff's counsel of this sensitive, private information is premature at best.
Accordingly, the judgment against the Coroner is vacated and set aside. The judgment against Southern is affirmed, but amended to permit Southern to delete the names from the forms.
JUDGMENT VACATED IN PART; AND AMENDED IN PART.
BYRNES, J., concurs.
JONES, J., concurs in part and dissents in part.
MURRAY, J., dissents in part and concurs in part.
I agree entirely with the well reasoned opinion of the majority. I concur only for the purpose of expressing additional concerns about the merits of discovering the information requested under the facts of this case.
The courts have defined claims of the type asserted by plaintiff-respondent as claims for emotional distress. Green v. Southern Transplant Service, Inc., 97-C-1133 (La.App. 4 Cir. 8/13/97), 698 So.2d 699; Blanchard v. Brawley, 75 So.2d 891 (La.App. 1 Cir. 1954); French v. Ochsner Clinic, 200 So.2d 371 (La.App. 4 Cir. 1967), writ refused, 251 La. 34, 202 So.2d 652 (1967). Such distress does not occur without knowledge of the desecration. The injury is not the physical damage to the body of the decedent as the decedent is no longer a legal person capable of sustaining personal injury. Rather, the injury is to the survivors in the form of emotional distress arising out of the knowledge that the desecration has occurred. Therefore, it is highly unlikely that there will be a class unless plaintiff attempts to notify the class. In order words, "but for" notification of this litigation, the members of the class experience no grief — in fact, it will be the notification that creates the class!
If what plaintiff alleges occurs actually does occur on a recurring basis in practice, it must be stopped. But I do not believe that the rules on class actions and discovery, liberal though they are in Louisiana, were intended to intrude upon the private grief of the intended members of this alleged class. We should allow them to rest in peace.
As I do not feel that class action process is appropriate under the facts as they appear at this stage of the proceedings, I do not share the due process and equal protection concerns expressed by my learned colleague, Judge Jones, in his concurring opinion.
I agree with the majority when we amend and affirm as amended the judgment as to Southern Transplant Services, Inc. However, I must dissent when the majority vacates and sets aside the judgment against Dr. Frank E. Minyard, Coroner for the Parish of Orleans.
The privacy concerns expressed by the majority are absolutely insufficient in the case sub judice to deny access to Public Records. These privacy concerns may be easily resolved by having the trial court, or a third party agreed upon by the litigants, excise the non essential and embarrassing information from any autopsy report at issue.
Clearly in the case sub judice, the sole issue is the number of cases similar to that of plaintiff Barbara Everett and her son. The majority today denies unto these persons due process and equal protection of the law.
I agree with the majority that the judgment as to Southern Transplant should be amended, and affirmed as amended. However, based on the clear expression of the Supreme Court in Capital City Press v. East Baton Rouge Parish Metropolitan Council, 96-1979 (La. 7/1/97), 696 So.2d 562, I respectfully dissent with regard to vacating the judgment as to the Coroner. I agree with J. Jones that the privacy concerns expressed by the majority can be addressed by means other than a denial of plaintiffs access to Public Records.