Perreault v. The Free Lance-Star (Va. Supreme Court)
Present: Hassell, C.J., Keenan, Koontz, Kinser, Lemons, Agee,1
and Goodwyn, JJ.
SUE CAROL PERREAULT, ADMINISTRATRIX AND
PERSONAL REPRESENTATIVE OF THE ESTATE OF
ALBERT L. PERREAULT, ET AL.
OPINION BY
v. Record No. 071978 JUSTICE LAWRENCE L. KOONTZ, JR.
September 12, 2008
THE FREE LANCE-STAR, ET AL.
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
Ann Hunter Simpson, Judge
This appeal arises from four separate wrongful death
actions brought pursuant to Code § 8.01-50 and ultimately
settled by the parties through mediation. The principal issue
we consider is whether the circuit court erred in requiring
the settling parties to those actions to file written
petitions reciting the financial terms of the compromise
settlements in order to obtain court approval of those
settlements pursuant to Code § 8.01-55. We also consider
whether the contents of such petitions remain subject to the
presumption of public access to court records mandated by Code
§ 17.1-208 notwithstanding the provisions of Code § 8.01-
581.22, which govern the confidentiality of mediation
1
Justice Agee participated in the hearing and decision of
this case prior to his retirement from the Court on June 30,
2008.
proceedings. Finally, we review the decision of the circuit
court denying a request to partially seal the records in these
cases by permitting the redaction of the monetary amounts of
the compromise settlements in the court records.
BACKGROUND
Sue Carol Perreault, Phyllis Ann Mulholland, Sue Ella C.
Musselman, and Dona J. Holt, each in her capacity as
administratrix of an estate (collectively, "the personal
representatives"), brought wrongful death actions in the
Circuit Court of Spotsylvania County against several
defendants including B. Braun Medical, Inc. and its subsidiary
Central Admixture Pharmacy Services (collectively, "CAPS").
With respect to the alleged liability of CAPS, each action
asserted that the decedent’s death resulted from the
administration during open-heart surgery of an improperly
formulated or contaminated cardioplegic solution manufactured
and distributed by CAPS.2
2
Cardioplegia is the medical term for the temporary
paralyzation of the heart muscle during cardiac surgical
procedures. Since the 1960s, the most common method of
protecting the heart during cardioplegia is the infusion of a
cold crystalloid solution into the heart. Hans J. Geissler
and Uwe Mehlhorn, Cold crystalloid cardioplegia, The
Multimedia Manual of Cardiothoracic Surgery (2006).
2
The personal representatives entered into mediation with
CAPS that resulted in compromise settlements of the wrongful
death claims. As expressed in the settlement agreements, a
principal concern of the personal representatives and CAPS was
the desire to keep the terms, and specifically the financial
terms, of the settlements confidential.
Thereafter, on a date not specified in the record,
Perreault, Mulholland, and Musselman applied to the circuit
court under Code § 8.01-55 for approval of their respective
compromise settlements by making oral motions to the court in
a closed, in camera hearing. Because no written petitions
seeking approval of the settlements were submitted to the
circuit court in these cases, the record originally provided
to this Court by the circuit court was unclear as to how this
hearing was docketed and whether notice was given to potential
"parties in interest" or that such parties were convened as
required by Code § 8.01-55.
By writ of certiorari entered May 21, 2008, this Court
directed the circuit court to forward the records of the
original actions filed by the personal representatives. An
examination of those records did not disclose any praecipe
for, or notice to any parties of, the in camera hearing. The
proceeding conducted during that hearing was not transcribed.
The record merely reflects that on February 16, 2007, the
3
circuit court entered orders approving the compromise
settlements in these three cases. The orders recite only the
fact that the claims against CAPS had been resolved by
compromise and that the personal representatives and statutory
beneficiaries of the decedent in each case agreed to and
approved the compromise.3
By letter from counsel to the circuit court dated
February 28, 2007, The Free Lance-Star, a newspaper published
in Fredericksburg, and Media General Operations, Inc.,
publisher of The Richmond Times-Dispatch (collectively, "the
newspapers"), complained of a "lack of transparency" in the
approval of the compromise settlements in the Perreault,
Mulholland, and Musselman cases. The newspapers contended
that a reporter for The Free Lance-Star had been barred from
attending the hearing concerning approval of the compromise
settlements and that the failure to require petitions setting
out the terms of the compromises was "inconsistent with" the
requirements of Code § 8.01-55. The newspapers further
3
There is no suggestion of any misconduct by any of the
personal representatives in these cases or that the compromise
settlements were not appropriate. We are confident in our
assumption that the circuit court was made fully aware of the
specific financial terms of the compromise settlement in each
case.
4
contended that under Shenandoah Publishing House, Inc. v.
Fanning, 235 Va. 253, 368 S.E.2d 253 (1988), petitions for
approval of compromise settlements of wrongful death claims
were judicial records subject to disclosure under Code § 17.1-
208.
On March 2, 2007, the newspapers filed a formal petition
to intervene in the Perreault, Mulholland, and Musselman
cases. The newspapers again asserted that approval of a
compromise settlement of a wrongful death claim pursuant to
Code § 8.01-55 required the filing of a petition that recited
the particulars of the settlement and, thus, that the circuit
court erred in approving the settlements in these cases based
on oral motions. The newspapers further asserted that, under
Shenandoah Publishing and Code § 17.1-208, such petitions were
judicial documents subject to inspection by the media and the
general public. The newspapers requested that Perreault,
Mulholland, and Musselman be required to file petitions "that
fully comply with [Code] Section 8.01-55." In response to the
petition to intervene, on March 8, 2007, the circuit court
entered orders suspending the February 16, 2007 orders
approving the compromise settlements. On May 2, 2007, the
court entered an order permitting the newspapers to intervene
in the Perreault, Mulholland, and Musselman cases.
5
On June 6, 2007, Holt filed in the circuit court a
written petition for approval of the compromise settlement of
her wrongful death action against CAPS. The petition noted
the fact of the compromise settlement and that "the reason for
the compromise is that the matter is highly contested,
liability is not admitted, there is uncertainty associated
with litigation, the time value of settlement versus trial
currently scheduled greater than one year from the date of the
Petition [to approve the settlement], and the best interests
of all parties concerned." However, no specific terms of the
settlement with regard to the consideration to be paid were
recited in the petition. An unexecuted copy of the settlement
agreement appended to the petition was redacted to remove all
references to payments to be made to the appropriate statutory
beneficiaries of the estate.
On June 11, 2007, the circuit court entered an order
requiring Perreault, Mulholland, and Musselman to file
petitions that "shall state as to each of the settled cases
the compromise, its terms and the reasons therefor." The
order further provided that "[t]he settling parties and the
newspaper[s]" would be permitted "to present evidence and to
otherwise be heard on the issue of whether the settling
parties can meet the burden imposed by law to permit the
petition[s] filed . . . to remain under seal."
6
Also on June 11, 2007, during a hearing on Holt’s
petition for approval of the compromise settlement in her
case, the newspapers appeared and made an oral motion to
intervene in that case as well. The circuit court directed
that Holt be required to file under seal an unredacted copy of
the settlement agreement. At the conclusion of the hearing,
the court entered an order, styled as a final order, approving
the settlement based upon the petition and the redacted
exhibit. The order, however, provided that the issue whether
Holt would be required to file an unredacted settlement
agreement would be subsequently reviewed.
In response to the circuit court’s order, Perreault,
Mulholland, and Musselman filed the requested petitions, which
were placed under seal. They also filed a joint motion to
permit the petitions to be filed with "limited redactions"
along with supporting affidavits by each of them and Michael
Koch, Vice President of Sales and Support Services for CAPS,
stating the reasons therefor. Holt filed an identical motion
supported by her own affidavit and that of Koch. Each motion
also contained exhibits showing the media coverage of wrongful
death actions involving the alleged misformulation or
contamination of cardioplegic solutions by CAPS.
The circuit court heard extensive argument on the issue
whether Code § 8.01-55 required a party seeking approval of a
7
compromise settlement in a wrongful death action to file a
petition, whether that petition was required to contain
comprehensive details of the compromise, and also whether the
contents of such petitions were subject to disclosure both
generally and in the present cases specifically. Apart from
the affidavits already submitted, no additional evidence was
received in the Perreault, Mulholland, and Musselman cases
with respect to the request to redact the compromise
settlements. Holt and two other beneficiaries under the
compromise settlement in that case did testify. Their
testimony was limited to explaining their decision to agree to
the compromise.
On June 29, 2007, the circuit court entered orders in the
four cases ruling that Code § 8.01-55 required the personal
representatives to file petitions for approval of the
compromise settlements and that the petitions must "includ[e]
the terms and conditions of each such settlement." The court
further ruled that "the settling parties have failed to meet
their burden to establish a compelling reason sufficient to
overcome the presumption of openness of such settlement
information." Accordingly, the court denied the motions to
permit the filing of redacted copies of the settlement
agreements. However, the court permitted the petitions and
the unredacted settlement agreements to remain under seal "for
8
the purpose of preserving the settling parties’ objections to
the [c]ourt’s ruling pending such appeal as they may choose to
take from this Order."4 In an order dated March 6, 2008, we
awarded the personal representatives in all four cases and
CAPS this appeal.
DISCUSSION
The personal representatives and CAPS (collectively, "the
settling parties") have asserted three assignments of error in
this appeal. First, they contend that the circuit court erred
in construing Code § 8.01-55 to require the filing of a
petition stating the particulars of a compromise settlement,
and specifically the financial terms of the compromise
settlement, in order for the court to approve the settlement
of a wrongful death action. Next, they contend that the
circuit court erred as a matter of law in these cases by
failing to give proper effect to the confidentiality
provisions of Code § 8.01-581.22. Finally, the settling
parties contend that even if the court did not err in its
application of Code § 8.01-55 as applied to court-approved
compromise settlements of wrongful death actions generally, it
4
In Holt’s case, the court also granted, nunc pro tunc to
June 11, 2007, the newspapers’ motion to intervene in that
case.
9
nonetheless erred in failing to find that the specific
circumstances of these cases warranted permitting the filing
of redacted settlement agreements. We will address these
issues seriatim, beginning with the challenge to the circuit
court’s interpretation of Code § 8.01-55.
Because the construction of a statute presents a pure
question of law, we apply a de novo standard of review to the
judgment of the circuit court, as here, that is based solely
on its interpretation of a statute. Logan v. City Council,
275 Va. 483, 492, 659 S.E.2d 296, 300 (2008). Code § 8.01-55
in relevant part, provides that:
The personal representative of the deceased may
compromise any claim to damages arising under or by
virtue of § 8.01-50, including claims under the
provision of a liability insurance policy, before or
after an action is brought, with the approval of the
court in which the action was brought, or if an
action has not been brought, with the consent of any
circuit court. Such approval may be applied for on
petition to such court, by the personal
representative, or by any potential defendant, or by
any interested insurance carrier . . . . The
petition shall state the compromise, its terms and
the reason therefor. The court shall require the
convening of the parties in interest . . . . The
parties in interest shall be deemed to be convened
if each such party (i) endorses the order by which
the court approves the compromise or (ii) is given
notice of the hearing and proposed compromise as
provided in § 8.01-296 if a resident of the
Commonwealth or as provided in § 8.01-320 if a
nonresident, or is otherwise given reasonable notice
of the hearing and proposed compromise as may be
required by the court.
(Emphasis added.)
10
The settling parties essentially contend that nothing in
Code § 8.01-55 requires the "petition" made to the court for
approval of a compromise of a wrongful death claim to be in
writing or to otherwise require disclosure of the financial
terms of that compromise in a public record. We disagree.
In resolving this issue, we consider the language of Code
§ 8.01-55 under the settled principle of statutory
construction that courts are bound by the plain meaning of
statutory language. Hicks v. Mellis, 275 Va. 213, 218, 657
S.E.2d 142, 144 (2008); Young v. Commonwealth, 273 Va. 528,
533, 643 S.E.2d 491, 493 (2007); Alliance to Save the
Mattaponi v. Commonwealth, 270 Va. 423, 439, 621 S.E.2d 78,
86-87 (2005). Under this principle, when the language of a
statute is plain and unambiguous, courts may not interpret
that language in a manner effectively holding that the General
Assembly did not mean what it actually stated. Hicks, 275 Va.
at 218, 657 S.E.2d at 144; Young, 273 Va. at 533, 643 S.E.2d
at 493; Alcoy v. Valley Nursing Homes, Inc., 272 Va. 37, 41,
630 S.E.2d 301, 303 (2006).
Initially, we note that in enacting Code § 8.01-55, the
General Assembly required that "settlements of wrongful death
claims must be approved by the courts." Shenandoah
Publishing, 235 Va. at 260, 368 S.E.2d at 256. In plain and
unambiguous language, Code § 8.01-55 requires that before a
11
circuit court may approve any settlement of a wrongful death
claim, the statutorily designated party must apply for such
approval by petition to the court. The usual and accepted
meaning of "petition" is "[a] formal written request presented
to a court or other official body." Black’s Law Dictionary
1182 (8th ed. 2004) (emphasis added). Moreover, Code § 8.01-
55 is equally unambiguous in its requirement that "[t]he
petition shall state the compromise, its terms and the reason
therefor." (Emphasis added.) Common sense dictates that the
most significant of the "terms" of any compromise settlement
of a wrongful death claim include the monetary provisions in
consideration of which the party with the right to seek
damages is compromising its right to sue for those damages.
Clearly, the settling parties’ contention that Code § 8.01-55
does not require a written petition to the circuit court or
that such petition need not state the financial terms of the
compromise settlement is not supported by the plain meaning of
the language of the statute.
Furthermore, in Ramey v. Bobbitt, 250 Va. 474, 481, 463
S.E.2d 437, 441 (1995), we held that "[t]hose portions of a
release that are not made part of a wrongful death compromise
settlement approved by a circuit court [under Code § 8.01-55]
are not binding on the parties to the release." Accordingly,
if the terms of a settlement were not made express in the
12
petition filed under Code § 8.01-55 or were not otherwise made
a part of the record, there would be no definite basis upon
which the court would later be able to determine what the
parties had bound themselves to in the compromise settlement
if a dispute subsequently arose regarding compliance with the
settlement.
For these reasons, we hold that the circuit court did not
err in construing Code § 8.01-55 to require a party seeking
approval of a compromise settlement of a wrongful death claim
to file in the court a written petition that includes the
complete and unredacted terms of the compromise settlement.
We now turn to the settling parties’ contention that the
circuit court erred by failing to give proper effect to the
confidentiality provisions of Code § 8.01-581.22. The
resolution of this contention necessarily invokes the
interplay among the applications of Code §§ 8.01-55, 8.01-
581.22 and 17.1-208.
In relevant part, Code § 17.1-208 provides that:
Except as otherwise provided by law, any
records and papers of every circuit court that are
maintained by the clerk of the circuit court shall
be open to inspection by any person and the clerk
shall, when requested, furnish copies thereof,
except in cases in which it is otherwise specially
provided.
In Shenandoah Publishing, we identified the "judicial
records" that ordinarily come within the ambit of this statute
13
as "the pleadings and any exhibits or motions filed by the
parties and all orders entered by the trial court in the
judicial proceedings leading to the judgment under review."
235 Va. at 257, 368 S.E.2d at 255. The petition required by
Code § 8.01-55 is clearly a pleading and comports with this
definition of a judicial record. Accordingly, the petition
comes within the statutory presumption of openness to the
public contained in Code § 17.1-208.
In relevant part, Code § 8.01-581.22 provides that:
All memoranda, work products and other
materials contained in the case files of a mediator
or mediation program are confidential. . . .
However, a written mediated agreement signed by the
parties shall not be confidential, unless the
parties otherwise agree in writing.
Confidential materials and communications are
not subject to disclosure in discovery or in any
judicial or administrative proceeding except (i)
where all parties to the mediation agree, in
writing, to waive the confidentiality, . . . or (ix)
as provided by law or rule.
The settling parties initially stress the undisputed fact
that the compromise settlements of the wrongful death claims
in these cases resulted from mediation and that the parties to
the mediation agreed that the terms of the settlements were to
remain confidential. Consequently, the settling parties
contend, notwithstanding the mandate of Code § 8.01-55 that
the terms of the compromise settlements be included in the
proper petitions to the circuit court for approval of the
14
settlements, that Code § 8.01-581.22 operates so as to ensure
the confidentiality of the terms of the mediated settlements.
The settling parties’ contention creates an unnecessary
tension between the provisions of Code §§ 8.01-55 and 8.01-
581.22 and is an unwarranted interpretation of the pertinent
statutory scheme. The thrust of their contention is that the
confidentiality provisions of Code § 8.01-581.22 require that
the provisions of Code § 8.01-55 be applied so that the
circuit court will be informed of the specific financial terms
of the compromise settlement but those terms would not be
included in the written petition so as to be subject to
disclosure to the public under Code § 17.1-208. On brief in
this appeal, the settling parties suggest that this could be
accomplished by permitting the circuit court "to conduct all
portions of the settlement approval petition in open court,
but permit the [s]ettling [p]arties to present (but not file)
a written document to the court that states the settlements’
dollar amount and distribution." We disagree.
In resolving this issue we acknowledge that within the
pertinent statutory scheme there exists at least a facial
tension between the "[e]xcept as otherwise provided by law"
provision contained in Code § 17.1-208 and the "as provided by
law or rule" provision contained in the confidentiality
provisions of Code § 8.01-581.22(ix). The former suggests a
15
limitation upon public access to judicial records whereas the
latter suggests a limitation upon otherwise confidential
mediated agreements. Because of the view we take in resolving
this case, we need not further address that issue.
The statutory scheme that provides for resolution of
civil disputes through mediation found in Code § 8.01-581.21
et seq., including the confidentiality provisions of Code
§ 8.01-581.22 at issue here, is one of general application to
all mediated settlements, not just to settlements of wrongful
death claims. By contrast, Code § 8.01-55 is a statute of
precise and specific application, dealing only with the
requirement for court approval of compromise settlements of
wrongful death claims. Cf. Peerless Ins. Co. v. County of
Fairfax, 274 Va. 236, 244, 645 S.E.2d 478, 483 (2007) (holding
that when one statute addresses a subject in a general manner
and another statute addresses part of the same subject in a
more specific manner, the differing statutes should be
harmonized if possible, but when they conflict the more
specific statute prevails); see also, Alliance to Save the
Mattaponi, 270 Va. at 439-40, 621 S.E.2d at 87; Capelle v.
Orange County, 269 Va. 60, 65, 607 S.E.2d 103, 105 (2005).
Undoubtedly, and consistent with the provisions of Code
§ 8.01-581.22, it may be common for settlements of various
types of civil claims to be achieved through mediation and,
16
yet, for the terms of such settlements not to be publicly
disclosed because the parties agree not to do so. In this
case, however, we must consider the harmonious application of
Code § 8.01-55 and Code § 8.01-581.22 in light of the fact
that the settling parties were required to obtain court
approval of the mediated settlements of these wrongful death
claims and to disclose the terms of those settlements in the
petitions to the court seeking such approval.
Although Shenandoah Publishing did not involve a mediated
settlement of a wrongful death claim, we nonetheless find the
rationale underlying the decision in that case to be
instructive. In Shenandoah Publishing, we stated that the
legislative purpose underpinning Code § 8.01-55 served the
public’s "societal interest in learning whether compromise
settlements are equitable and whether the courts are
administering properly the powers conferred upon them." 235
Va. at 260, 368 S.E.2d at 256. This is so because "the people
have a vital interest, one of personal and familial as well as
community concern, in cases involving claims of medical
malpractice on the part of licensed practitioners and other
health care providers." Id.
Given the salutary purpose of Code § 8.01-55, we cannot
conceive that the General Assembly intended to permit the
confidentiality provisions allowed but not required by Code
17
§ 8.01-581.22 to trump the provisions of Code § 8.01-55 and,
consequently, the right of public access provided for by Code
§ 17.1-208 in the context of the records of court approval of
the compromise settlement of a wrongful death claim achieved
through mediation. Accordingly, we hold that the circuit
court did not err in ruling that in approving the compromise
settlements in the present cases, the court was not subject to
a de jure requirement under Code § 8.01-581.22 to place the
record, or at least that portion of it detailing the financial
terms of the compromise settlements, under seal.
Finally, we consider the settling parties’ assertion that
the circuit court erred in finding that the circumstances of
these particular cases did not warrant their being permitted
to redact from the record all references to the financial
terms of the compromise settlements. When the sealing of a
record or part thereof is not a duty imposed by law, the
decision whether to seal the record rests within the sound
discretion of the circuit court. See In re Worrell Enters.,
Inc., 14 Va. App. 671, 675, 419 S.E.2d 271, 274 (1992). In
Shenandoah Publishing, we said that in order to overcome the
strong presumption in favor of public access to judicial
records "the moving party must bear the burden of establishing
an interest so compelling that it cannot be protected
18
reasonably by some measure other than a protective order."
235 Va. at 259, 368 S.E.2d at 256.
On brief, the settling parties assert that under
Shenandoah Publishing, "when a court considers a motion to
seal records, or exclude the public from civil judicial
proceedings, . . .it may not base its decision on conclusory
assertions alone, but must make specific factual findings.’ "
Thus, they contend that the circuit court was required to make
express findings of fact supporting its decision not to permit
redaction of the records. We disagree.
The settling parties’ assertion wholly mischaracterizes
the holding in Shenandoah Publishing. The quotation that the
settling parties have drawn from the opinion appears only as a
parenthetical to a citation in the opinion of the Court. 235
Va. at 259, 368 S.E.2d at 256 (citing and quoting In re
Washington Post Co., 807 F.2d 383, 392 (4th Cir. 1986)).
Moreover, in context it is clear that the citation and its
explanatory parenthetical were supporting a proposition
directly contradictory of the position being asserted by the
settling parties in this case. When correctly interpreted,
Shenandoah Publishing requires that a court may not base its
decision to limit public access to court proceedings or
records upon the conclusory assertions of the party requesting
the closure. Id. Thus, the court must make specific factual
19
findings only to support a decision to restrict public access
to court records or proceedings. Because the presumption is
in favor of openness, a court need not make findings of fact
to justify a decision denying a request for closure of a
proceeding or record absent any applicable statute or Rule of
Court requiring such finding.
Similarly, the settling parties’ reliance on Richmond
Newspapers, Inc. v. Commonwealth, 222 Va. 574, 590, 281 S.E.2d
915, 924 (1981), to assert that the newspapers as "intervenors
. . . have the burden of showing that reasonable alternatives
to closure are available" is misplaced. That burden exists
only after the party seeking to restrict public access to
judicial proceedings or records has made an adequate showing
that it is entitled to such relief. Accordingly, our focus in
this appeal is limited to whether the circuit court abused its
discretion in finding that the settling parties failed to meet
their burden to establish a compelling reason sufficient to
overcome the presumption of public access to the records of
the compromise settlements in these cases.
In Koch’s affidavit submitted on behalf of CAPS, it is
asserted that if the terms of the compromise settlements were
made public, CAPS "could become the target of lawsuits by
individuals and/or businesses who might file lawsuits for the
sole purpose of extracting a . . .nuisance value’ settlement."
20
Koch further asserted that CAPS would not have entered into
the settlement agreements had it known that the terms would
not remain confidential and that an order requiring disclosure
of the financial terms of the settlement would "deprive the
CAPS defendants of one of the benefits it bargained for and
obtained in exchange for the consideration paid."
CAPS’s concern that disclosure of the financial terms of
the compromise settlements might subject it to further
litigation may be well founded. However, that concern
reflects no more than an unsupported conclusory assertion and
pales in view of the statutory presumption of public access to
judicial records contained in Code § 17.1-208.
CAPS’s assertion that the circuit court’s order denying
the request to redact the settlement agreements would deny it
the benefit of its bargain is based on the legally flawed
presumption that private parties can agree to deprive the
public of the right of access to judicial records guaranteed
by Code § 17.1-208. While CAPS may have anticipated that the
court would permit the petitions to approve the compromise
settlements of the wrongful death claims at issue here to be
made without disclosure of the financial terms of these
settlements, it did so at its own risk. Clearly it did not
lose any benefit of its bargains through the court’s decision
denying its request to redact the financial terms of the
21
settlement agreements. The personal representatives and the
beneficiaries to the settlements are still bound by their
agreements that they keep the terms thereof confidential, and
they fulfilled that duty by joining with CAPS in seeking to
have the records sealed. The court’s decision to not permit
redaction of the financial terms from the petitions does not
constitute a breach of that duty.
In their affidavits submitted to the circuit court, the
personal representatives stated various concerns they had with
respect to having the financial terms of the compromise
settlements made public. They asserted that the settlements
of their claims were "private matter[s] between [the
beneficiaries] and the defendants;" that they did not desire
to be subject to further publicity as this would cause them
"to re-live the trauma" associated with their decedents’
demise; and, that publicity concerning the financial terms of
the settlements might result in unwanted solicitations. Holt
further expressed concern that she might be targeted by
criminals and that she and her family "will be subject to
public ridicule, criticism, and embarrassment" for having
accepted the compromise settlement.
While we are not unmindful of the seriousness of the
concerns expressed by the personal representatives with
respect to the potential consequences of the financial terms
22
23
of their settlements being made public, concerns of emotional
damage or financial harm when stated "in the abstract, [do
not] constitute sufficient reasons to seal judicial records."
Shenandoah Publishing, 235 Va. at 259, 368 S.E.2d at 256.
"[T]he desire of the litigants is not sufficient reason to
override the presumption of openness." Id. Moreover, it is
not within the province of this Court to alter the pertinent
statutory scheme which otherwise might warrant amendment by
the legislature so as to preserve the confidentiality of the
mediated settlement terms involving wrongful death claims such
as those at issue here. Accordingly, we hold that the circuit
court did not err in denying the settling parties’ request to
have the financial terms of the compromise settlements
redacted in the court records.
CONCLUSION
For these reasons, we will affirm the judgment of the
circuit court. We will remand the cases to the circuit court
with direction that the records be unsealed in the Perreault,
Mulholland, and Musselman cases and that an unredacted version
of the settlement in the Holt case be entered into the record
in accord with the prior order of the court.
Affirmed and remanded.
and Goodwyn, JJ.
SUE CAROL PERREAULT, ADMINISTRATRIX AND
PERSONAL REPRESENTATIVE OF THE ESTATE OF
ALBERT L. PERREAULT, ET AL.
OPINION BY
v. Record No. 071978 JUSTICE LAWRENCE L. KOONTZ, JR.
September 12, 2008
THE FREE LANCE-STAR, ET AL.
FROM THE CIRCUIT COURT OF SPOTSYLVANIA COUNTY
Ann Hunter Simpson, Judge
This appeal arises from four separate wrongful death
actions brought pursuant to Code § 8.01-50 and ultimately
settled by the parties through mediation. The principal issue
we consider is whether the circuit court erred in requiring
the settling parties to those actions to file written
petitions reciting the financial terms of the compromise
settlements in order to obtain court approval of those
settlements pursuant to Code § 8.01-55. We also consider
whether the contents of such petitions remain subject to the
presumption of public access to court records mandated by Code
§ 17.1-208 notwithstanding the provisions of Code § 8.01-
581.22, which govern the confidentiality of mediation
1
Justice Agee participated in the hearing and decision of
this case prior to his retirement from the Court on June 30,
2008.
proceedings. Finally, we review the decision of the circuit
court denying a request to partially seal the records in these
cases by permitting the redaction of the monetary amounts of
the compromise settlements in the court records.
BACKGROUND
Sue Carol Perreault, Phyllis Ann Mulholland, Sue Ella C.
Musselman, and Dona J. Holt, each in her capacity as
administratrix of an estate (collectively, "the personal
representatives"), brought wrongful death actions in the
Circuit Court of Spotsylvania County against several
defendants including B. Braun Medical, Inc. and its subsidiary
Central Admixture Pharmacy Services (collectively, "CAPS").
With respect to the alleged liability of CAPS, each action
asserted that the decedent’s death resulted from the
administration during open-heart surgery of an improperly
formulated or contaminated cardioplegic solution manufactured
and distributed by CAPS.2
2
Cardioplegia is the medical term for the temporary
paralyzation of the heart muscle during cardiac surgical
procedures. Since the 1960s, the most common method of
protecting the heart during cardioplegia is the infusion of a
cold crystalloid solution into the heart. Hans J. Geissler
and Uwe Mehlhorn, Cold crystalloid cardioplegia, The
Multimedia Manual of Cardiothoracic Surgery (2006).
2
The personal representatives entered into mediation with
CAPS that resulted in compromise settlements of the wrongful
death claims. As expressed in the settlement agreements, a
principal concern of the personal representatives and CAPS was
the desire to keep the terms, and specifically the financial
terms, of the settlements confidential.
Thereafter, on a date not specified in the record,
Perreault, Mulholland, and Musselman applied to the circuit
court under Code § 8.01-55 for approval of their respective
compromise settlements by making oral motions to the court in
a closed, in camera hearing. Because no written petitions
seeking approval of the settlements were submitted to the
circuit court in these cases, the record originally provided
to this Court by the circuit court was unclear as to how this
hearing was docketed and whether notice was given to potential
"parties in interest" or that such parties were convened as
required by Code § 8.01-55.
By writ of certiorari entered May 21, 2008, this Court
directed the circuit court to forward the records of the
original actions filed by the personal representatives. An
examination of those records did not disclose any praecipe
for, or notice to any parties of, the in camera hearing. The
proceeding conducted during that hearing was not transcribed.
The record merely reflects that on February 16, 2007, the
3
circuit court entered orders approving the compromise
settlements in these three cases. The orders recite only the
fact that the claims against CAPS had been resolved by
compromise and that the personal representatives and statutory
beneficiaries of the decedent in each case agreed to and
approved the compromise.3
By letter from counsel to the circuit court dated
February 28, 2007, The Free Lance-Star, a newspaper published
in Fredericksburg, and Media General Operations, Inc.,
publisher of The Richmond Times-Dispatch (collectively, "the
newspapers"), complained of a "lack of transparency" in the
approval of the compromise settlements in the Perreault,
Mulholland, and Musselman cases. The newspapers contended
that a reporter for The Free Lance-Star had been barred from
attending the hearing concerning approval of the compromise
settlements and that the failure to require petitions setting
out the terms of the compromises was "inconsistent with" the
requirements of Code § 8.01-55. The newspapers further
3
There is no suggestion of any misconduct by any of the
personal representatives in these cases or that the compromise
settlements were not appropriate. We are confident in our
assumption that the circuit court was made fully aware of the
specific financial terms of the compromise settlement in each
case.
4
contended that under Shenandoah Publishing House, Inc. v.
Fanning, 235 Va. 253, 368 S.E.2d 253 (1988), petitions for
approval of compromise settlements of wrongful death claims
were judicial records subject to disclosure under Code § 17.1-
208.
On March 2, 2007, the newspapers filed a formal petition
to intervene in the Perreault, Mulholland, and Musselman
cases. The newspapers again asserted that approval of a
compromise settlement of a wrongful death claim pursuant to
Code § 8.01-55 required the filing of a petition that recited
the particulars of the settlement and, thus, that the circuit
court erred in approving the settlements in these cases based
on oral motions. The newspapers further asserted that, under
Shenandoah Publishing and Code § 17.1-208, such petitions were
judicial documents subject to inspection by the media and the
general public. The newspapers requested that Perreault,
Mulholland, and Musselman be required to file petitions "that
fully comply with [Code] Section 8.01-55." In response to the
petition to intervene, on March 8, 2007, the circuit court
entered orders suspending the February 16, 2007 orders
approving the compromise settlements. On May 2, 2007, the
court entered an order permitting the newspapers to intervene
in the Perreault, Mulholland, and Musselman cases.
5
On June 6, 2007, Holt filed in the circuit court a
written petition for approval of the compromise settlement of
her wrongful death action against CAPS. The petition noted
the fact of the compromise settlement and that "the reason for
the compromise is that the matter is highly contested,
liability is not admitted, there is uncertainty associated
with litigation, the time value of settlement versus trial
currently scheduled greater than one year from the date of the
Petition [to approve the settlement], and the best interests
of all parties concerned." However, no specific terms of the
settlement with regard to the consideration to be paid were
recited in the petition. An unexecuted copy of the settlement
agreement appended to the petition was redacted to remove all
references to payments to be made to the appropriate statutory
beneficiaries of the estate.
On June 11, 2007, the circuit court entered an order
requiring Perreault, Mulholland, and Musselman to file
petitions that "shall state as to each of the settled cases
the compromise, its terms and the reasons therefor." The
order further provided that "[t]he settling parties and the
newspaper[s]" would be permitted "to present evidence and to
otherwise be heard on the issue of whether the settling
parties can meet the burden imposed by law to permit the
petition[s] filed . . . to remain under seal."
6
Also on June 11, 2007, during a hearing on Holt’s
petition for approval of the compromise settlement in her
case, the newspapers appeared and made an oral motion to
intervene in that case as well. The circuit court directed
that Holt be required to file under seal an unredacted copy of
the settlement agreement. At the conclusion of the hearing,
the court entered an order, styled as a final order, approving
the settlement based upon the petition and the redacted
exhibit. The order, however, provided that the issue whether
Holt would be required to file an unredacted settlement
agreement would be subsequently reviewed.
In response to the circuit court’s order, Perreault,
Mulholland, and Musselman filed the requested petitions, which
were placed under seal. They also filed a joint motion to
permit the petitions to be filed with "limited redactions"
along with supporting affidavits by each of them and Michael
Koch, Vice President of Sales and Support Services for CAPS,
stating the reasons therefor. Holt filed an identical motion
supported by her own affidavit and that of Koch. Each motion
also contained exhibits showing the media coverage of wrongful
death actions involving the alleged misformulation or
contamination of cardioplegic solutions by CAPS.
The circuit court heard extensive argument on the issue
whether Code § 8.01-55 required a party seeking approval of a
7
compromise settlement in a wrongful death action to file a
petition, whether that petition was required to contain
comprehensive details of the compromise, and also whether the
contents of such petitions were subject to disclosure both
generally and in the present cases specifically. Apart from
the affidavits already submitted, no additional evidence was
received in the Perreault, Mulholland, and Musselman cases
with respect to the request to redact the compromise
settlements. Holt and two other beneficiaries under the
compromise settlement in that case did testify. Their
testimony was limited to explaining their decision to agree to
the compromise.
On June 29, 2007, the circuit court entered orders in the
four cases ruling that Code § 8.01-55 required the personal
representatives to file petitions for approval of the
compromise settlements and that the petitions must "includ[e]
the terms and conditions of each such settlement." The court
further ruled that "the settling parties have failed to meet
their burden to establish a compelling reason sufficient to
overcome the presumption of openness of such settlement
information." Accordingly, the court denied the motions to
permit the filing of redacted copies of the settlement
agreements. However, the court permitted the petitions and
the unredacted settlement agreements to remain under seal "for
8
the purpose of preserving the settling parties’ objections to
the [c]ourt’s ruling pending such appeal as they may choose to
take from this Order."4 In an order dated March 6, 2008, we
awarded the personal representatives in all four cases and
CAPS this appeal.
DISCUSSION
The personal representatives and CAPS (collectively, "the
settling parties") have asserted three assignments of error in
this appeal. First, they contend that the circuit court erred
in construing Code § 8.01-55 to require the filing of a
petition stating the particulars of a compromise settlement,
and specifically the financial terms of the compromise
settlement, in order for the court to approve the settlement
of a wrongful death action. Next, they contend that the
circuit court erred as a matter of law in these cases by
failing to give proper effect to the confidentiality
provisions of Code § 8.01-581.22. Finally, the settling
parties contend that even if the court did not err in its
application of Code § 8.01-55 as applied to court-approved
compromise settlements of wrongful death actions generally, it
4
In Holt’s case, the court also granted, nunc pro tunc to
June 11, 2007, the newspapers’ motion to intervene in that
case.
9
nonetheless erred in failing to find that the specific
circumstances of these cases warranted permitting the filing
of redacted settlement agreements. We will address these
issues seriatim, beginning with the challenge to the circuit
court’s interpretation of Code § 8.01-55.
Because the construction of a statute presents a pure
question of law, we apply a de novo standard of review to the
judgment of the circuit court, as here, that is based solely
on its interpretation of a statute. Logan v. City Council,
275 Va. 483, 492, 659 S.E.2d 296, 300 (2008). Code § 8.01-55
in relevant part, provides that:
The personal representative of the deceased may
compromise any claim to damages arising under or by
virtue of § 8.01-50, including claims under the
provision of a liability insurance policy, before or
after an action is brought, with the approval of the
court in which the action was brought, or if an
action has not been brought, with the consent of any
circuit court. Such approval may be applied for on
petition to such court, by the personal
representative, or by any potential defendant, or by
any interested insurance carrier . . . . The
petition shall state the compromise, its terms and
the reason therefor. The court shall require the
convening of the parties in interest . . . . The
parties in interest shall be deemed to be convened
if each such party (i) endorses the order by which
the court approves the compromise or (ii) is given
notice of the hearing and proposed compromise as
provided in § 8.01-296 if a resident of the
Commonwealth or as provided in § 8.01-320 if a
nonresident, or is otherwise given reasonable notice
of the hearing and proposed compromise as may be
required by the court.
(Emphasis added.)
10
The settling parties essentially contend that nothing in
Code § 8.01-55 requires the "petition" made to the court for
approval of a compromise of a wrongful death claim to be in
writing or to otherwise require disclosure of the financial
terms of that compromise in a public record. We disagree.
In resolving this issue, we consider the language of Code
§ 8.01-55 under the settled principle of statutory
construction that courts are bound by the plain meaning of
statutory language. Hicks v. Mellis, 275 Va. 213, 218, 657
S.E.2d 142, 144 (2008); Young v. Commonwealth, 273 Va. 528,
533, 643 S.E.2d 491, 493 (2007); Alliance to Save the
Mattaponi v. Commonwealth, 270 Va. 423, 439, 621 S.E.2d 78,
86-87 (2005). Under this principle, when the language of a
statute is plain and unambiguous, courts may not interpret
that language in a manner effectively holding that the General
Assembly did not mean what it actually stated. Hicks, 275 Va.
at 218, 657 S.E.2d at 144; Young, 273 Va. at 533, 643 S.E.2d
at 493; Alcoy v. Valley Nursing Homes, Inc., 272 Va. 37, 41,
630 S.E.2d 301, 303 (2006).
Initially, we note that in enacting Code § 8.01-55, the
General Assembly required that "settlements of wrongful death
claims must be approved by the courts." Shenandoah
Publishing, 235 Va. at 260, 368 S.E.2d at 256. In plain and
unambiguous language, Code § 8.01-55 requires that before a
11
circuit court may approve any settlement of a wrongful death
claim, the statutorily designated party must apply for such
approval by petition to the court. The usual and accepted
meaning of "petition" is "[a] formal written request presented
to a court or other official body." Black’s Law Dictionary
1182 (8th ed. 2004) (emphasis added). Moreover, Code § 8.01-
55 is equally unambiguous in its requirement that "[t]he
petition shall state the compromise, its terms and the reason
therefor." (Emphasis added.) Common sense dictates that the
most significant of the "terms" of any compromise settlement
of a wrongful death claim include the monetary provisions in
consideration of which the party with the right to seek
damages is compromising its right to sue for those damages.
Clearly, the settling parties’ contention that Code § 8.01-55
does not require a written petition to the circuit court or
that such petition need not state the financial terms of the
compromise settlement is not supported by the plain meaning of
the language of the statute.
Furthermore, in Ramey v. Bobbitt, 250 Va. 474, 481, 463
S.E.2d 437, 441 (1995), we held that "[t]hose portions of a
release that are not made part of a wrongful death compromise
settlement approved by a circuit court [under Code § 8.01-55]
are not binding on the parties to the release." Accordingly,
if the terms of a settlement were not made express in the
12
petition filed under Code § 8.01-55 or were not otherwise made
a part of the record, there would be no definite basis upon
which the court would later be able to determine what the
parties had bound themselves to in the compromise settlement
if a dispute subsequently arose regarding compliance with the
settlement.
For these reasons, we hold that the circuit court did not
err in construing Code § 8.01-55 to require a party seeking
approval of a compromise settlement of a wrongful death claim
to file in the court a written petition that includes the
complete and unredacted terms of the compromise settlement.
We now turn to the settling parties’ contention that the
circuit court erred by failing to give proper effect to the
confidentiality provisions of Code § 8.01-581.22. The
resolution of this contention necessarily invokes the
interplay among the applications of Code §§ 8.01-55, 8.01-
581.22 and 17.1-208.
In relevant part, Code § 17.1-208 provides that:
Except as otherwise provided by law, any
records and papers of every circuit court that are
maintained by the clerk of the circuit court shall
be open to inspection by any person and the clerk
shall, when requested, furnish copies thereof,
except in cases in which it is otherwise specially
provided.
In Shenandoah Publishing, we identified the "judicial
records" that ordinarily come within the ambit of this statute
13
as "the pleadings and any exhibits or motions filed by the
parties and all orders entered by the trial court in the
judicial proceedings leading to the judgment under review."
235 Va. at 257, 368 S.E.2d at 255. The petition required by
Code § 8.01-55 is clearly a pleading and comports with this
definition of a judicial record. Accordingly, the petition
comes within the statutory presumption of openness to the
public contained in Code § 17.1-208.
In relevant part, Code § 8.01-581.22 provides that:
All memoranda, work products and other
materials contained in the case files of a mediator
or mediation program are confidential. . . .
However, a written mediated agreement signed by the
parties shall not be confidential, unless the
parties otherwise agree in writing.
Confidential materials and communications are
not subject to disclosure in discovery or in any
judicial or administrative proceeding except (i)
where all parties to the mediation agree, in
writing, to waive the confidentiality, . . . or (ix)
as provided by law or rule.
The settling parties initially stress the undisputed fact
that the compromise settlements of the wrongful death claims
in these cases resulted from mediation and that the parties to
the mediation agreed that the terms of the settlements were to
remain confidential. Consequently, the settling parties
contend, notwithstanding the mandate of Code § 8.01-55 that
the terms of the compromise settlements be included in the
proper petitions to the circuit court for approval of the
14
settlements, that Code § 8.01-581.22 operates so as to ensure
the confidentiality of the terms of the mediated settlements.
The settling parties’ contention creates an unnecessary
tension between the provisions of Code §§ 8.01-55 and 8.01-
581.22 and is an unwarranted interpretation of the pertinent
statutory scheme. The thrust of their contention is that the
confidentiality provisions of Code § 8.01-581.22 require that
the provisions of Code § 8.01-55 be applied so that the
circuit court will be informed of the specific financial terms
of the compromise settlement but those terms would not be
included in the written petition so as to be subject to
disclosure to the public under Code § 17.1-208. On brief in
this appeal, the settling parties suggest that this could be
accomplished by permitting the circuit court "to conduct all
portions of the settlement approval petition in open court,
but permit the [s]ettling [p]arties to present (but not file)
a written document to the court that states the settlements’
dollar amount and distribution." We disagree.
In resolving this issue we acknowledge that within the
pertinent statutory scheme there exists at least a facial
tension between the "[e]xcept as otherwise provided by law"
provision contained in Code § 17.1-208 and the "as provided by
law or rule" provision contained in the confidentiality
provisions of Code § 8.01-581.22(ix). The former suggests a
15
limitation upon public access to judicial records whereas the
latter suggests a limitation upon otherwise confidential
mediated agreements. Because of the view we take in resolving
this case, we need not further address that issue.
The statutory scheme that provides for resolution of
civil disputes through mediation found in Code § 8.01-581.21
et seq., including the confidentiality provisions of Code
§ 8.01-581.22 at issue here, is one of general application to
all mediated settlements, not just to settlements of wrongful
death claims. By contrast, Code § 8.01-55 is a statute of
precise and specific application, dealing only with the
requirement for court approval of compromise settlements of
wrongful death claims. Cf. Peerless Ins. Co. v. County of
Fairfax, 274 Va. 236, 244, 645 S.E.2d 478, 483 (2007) (holding
that when one statute addresses a subject in a general manner
and another statute addresses part of the same subject in a
more specific manner, the differing statutes should be
harmonized if possible, but when they conflict the more
specific statute prevails); see also, Alliance to Save the
Mattaponi, 270 Va. at 439-40, 621 S.E.2d at 87; Capelle v.
Orange County, 269 Va. 60, 65, 607 S.E.2d 103, 105 (2005).
Undoubtedly, and consistent with the provisions of Code
§ 8.01-581.22, it may be common for settlements of various
types of civil claims to be achieved through mediation and,
16
yet, for the terms of such settlements not to be publicly
disclosed because the parties agree not to do so. In this
case, however, we must consider the harmonious application of
Code § 8.01-55 and Code § 8.01-581.22 in light of the fact
that the settling parties were required to obtain court
approval of the mediated settlements of these wrongful death
claims and to disclose the terms of those settlements in the
petitions to the court seeking such approval.
Although Shenandoah Publishing did not involve a mediated
settlement of a wrongful death claim, we nonetheless find the
rationale underlying the decision in that case to be
instructive. In Shenandoah Publishing, we stated that the
legislative purpose underpinning Code § 8.01-55 served the
public’s "societal interest in learning whether compromise
settlements are equitable and whether the courts are
administering properly the powers conferred upon them." 235
Va. at 260, 368 S.E.2d at 256. This is so because "the people
have a vital interest, one of personal and familial as well as
community concern, in cases involving claims of medical
malpractice on the part of licensed practitioners and other
health care providers." Id.
Given the salutary purpose of Code § 8.01-55, we cannot
conceive that the General Assembly intended to permit the
confidentiality provisions allowed but not required by Code
17
§ 8.01-581.22 to trump the provisions of Code § 8.01-55 and,
consequently, the right of public access provided for by Code
§ 17.1-208 in the context of the records of court approval of
the compromise settlement of a wrongful death claim achieved
through mediation. Accordingly, we hold that the circuit
court did not err in ruling that in approving the compromise
settlements in the present cases, the court was not subject to
a de jure requirement under Code § 8.01-581.22 to place the
record, or at least that portion of it detailing the financial
terms of the compromise settlements, under seal.
Finally, we consider the settling parties’ assertion that
the circuit court erred in finding that the circumstances of
these particular cases did not warrant their being permitted
to redact from the record all references to the financial
terms of the compromise settlements. When the sealing of a
record or part thereof is not a duty imposed by law, the
decision whether to seal the record rests within the sound
discretion of the circuit court. See In re Worrell Enters.,
Inc., 14 Va. App. 671, 675, 419 S.E.2d 271, 274 (1992). In
Shenandoah Publishing, we said that in order to overcome the
strong presumption in favor of public access to judicial
records "the moving party must bear the burden of establishing
an interest so compelling that it cannot be protected
18
reasonably by some measure other than a protective order."
235 Va. at 259, 368 S.E.2d at 256.
On brief, the settling parties assert that under
Shenandoah Publishing, "when a court considers a motion to
seal records, or exclude the public from civil judicial
proceedings, . . .it may not base its decision on conclusory
assertions alone, but must make specific factual findings.’ "
Thus, they contend that the circuit court was required to make
express findings of fact supporting its decision not to permit
redaction of the records. We disagree.
The settling parties’ assertion wholly mischaracterizes
the holding in Shenandoah Publishing. The quotation that the
settling parties have drawn from the opinion appears only as a
parenthetical to a citation in the opinion of the Court. 235
Va. at 259, 368 S.E.2d at 256 (citing and quoting In re
Washington Post Co., 807 F.2d 383, 392 (4th Cir. 1986)).
Moreover, in context it is clear that the citation and its
explanatory parenthetical were supporting a proposition
directly contradictory of the position being asserted by the
settling parties in this case. When correctly interpreted,
Shenandoah Publishing requires that a court may not base its
decision to limit public access to court proceedings or
records upon the conclusory assertions of the party requesting
the closure. Id. Thus, the court must make specific factual
19
findings only to support a decision to restrict public access
to court records or proceedings. Because the presumption is
in favor of openness, a court need not make findings of fact
to justify a decision denying a request for closure of a
proceeding or record absent any applicable statute or Rule of
Court requiring such finding.
Similarly, the settling parties’ reliance on Richmond
Newspapers, Inc. v. Commonwealth, 222 Va. 574, 590, 281 S.E.2d
915, 924 (1981), to assert that the newspapers as "intervenors
. . . have the burden of showing that reasonable alternatives
to closure are available" is misplaced. That burden exists
only after the party seeking to restrict public access to
judicial proceedings or records has made an adequate showing
that it is entitled to such relief. Accordingly, our focus in
this appeal is limited to whether the circuit court abused its
discretion in finding that the settling parties failed to meet
their burden to establish a compelling reason sufficient to
overcome the presumption of public access to the records of
the compromise settlements in these cases.
In Koch’s affidavit submitted on behalf of CAPS, it is
asserted that if the terms of the compromise settlements were
made public, CAPS "could become the target of lawsuits by
individuals and/or businesses who might file lawsuits for the
sole purpose of extracting a . . .nuisance value’ settlement."
20
Koch further asserted that CAPS would not have entered into
the settlement agreements had it known that the terms would
not remain confidential and that an order requiring disclosure
of the financial terms of the settlement would "deprive the
CAPS defendants of one of the benefits it bargained for and
obtained in exchange for the consideration paid."
CAPS’s concern that disclosure of the financial terms of
the compromise settlements might subject it to further
litigation may be well founded. However, that concern
reflects no more than an unsupported conclusory assertion and
pales in view of the statutory presumption of public access to
judicial records contained in Code § 17.1-208.
CAPS’s assertion that the circuit court’s order denying
the request to redact the settlement agreements would deny it
the benefit of its bargain is based on the legally flawed
presumption that private parties can agree to deprive the
public of the right of access to judicial records guaranteed
by Code § 17.1-208. While CAPS may have anticipated that the
court would permit the petitions to approve the compromise
settlements of the wrongful death claims at issue here to be
made without disclosure of the financial terms of these
settlements, it did so at its own risk. Clearly it did not
lose any benefit of its bargains through the court’s decision
denying its request to redact the financial terms of the
21
settlement agreements. The personal representatives and the
beneficiaries to the settlements are still bound by their
agreements that they keep the terms thereof confidential, and
they fulfilled that duty by joining with CAPS in seeking to
have the records sealed. The court’s decision to not permit
redaction of the financial terms from the petitions does not
constitute a breach of that duty.
In their affidavits submitted to the circuit court, the
personal representatives stated various concerns they had with
respect to having the financial terms of the compromise
settlements made public. They asserted that the settlements
of their claims were "private matter[s] between [the
beneficiaries] and the defendants;" that they did not desire
to be subject to further publicity as this would cause them
"to re-live the trauma" associated with their decedents’
demise; and, that publicity concerning the financial terms of
the settlements might result in unwanted solicitations. Holt
further expressed concern that she might be targeted by
criminals and that she and her family "will be subject to
public ridicule, criticism, and embarrassment" for having
accepted the compromise settlement.
While we are not unmindful of the seriousness of the
concerns expressed by the personal representatives with
respect to the potential consequences of the financial terms
22
23
of their settlements being made public, concerns of emotional
damage or financial harm when stated "in the abstract, [do
not] constitute sufficient reasons to seal judicial records."
Shenandoah Publishing, 235 Va. at 259, 368 S.E.2d at 256.
"[T]he desire of the litigants is not sufficient reason to
override the presumption of openness." Id. Moreover, it is
not within the province of this Court to alter the pertinent
statutory scheme which otherwise might warrant amendment by
the legislature so as to preserve the confidentiality of the
mediated settlement terms involving wrongful death claims such
as those at issue here. Accordingly, we hold that the circuit
court did not err in denying the settling parties’ request to
have the financial terms of the compromise settlements
redacted in the court records.
CONCLUSION
For these reasons, we will affirm the judgment of the
circuit court. We will remand the cases to the circuit court
with direction that the records be unsealed in the Perreault,
Mulholland, and Musselman cases and that an unredacted version
of the settlement in the Holt case be entered into the record
in accord with the prior order of the court.
Affirmed and remanded.
Topics:
Categories:
Type:
