The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Here's a case I just ran across in doing research for my article on The Law of Pseudonymous Litigation; I'd love to hear what people think about it.
C.R.M. sued the government for medical malpractice, alleging "negligent fertility treatment at military medical facilities …, which resulted in a quintuplet pregnancy." "At 19 weeks gestational age, a spontaneous abortion of two fetuses occurred." The remaining three children "were born alive at only 23 weeks gestational age but died later that day due to extreme prematurity." The children's names were pseudonymized as a matter of course under Federal Rule of Civil Procedure 5.2, but pseudonymizing a parent's name in such situation requires special justification. Here is what the plaintiff argued (see the Plaintiff's Motion to Sue Anonymously in C.R.M. v. United States (E.D. Va. Apr. 10, 2020)):
First, C.R.M. does not seek anonymity merely to avoid "annoyance and criticism;" rather, she seeks it "to preserve privacy in a matter of sensitive and highly personal nature"—a soul shattering family tragedy. Second, this tragedy implicates the privacy of her family, including the now deceased minor children. Third, although this action is against a governmental agency, the public's interest is in monitoring the government's conduct, not in knowing the names of the victims of the government's alleged negligence. Cf. Doe v. Rector & Visitors of George Mason Univ., 179 F. Supp. 3d 583, 592-94 (E.D. Va. 2016) (allowing student to sue state university pseudonymously to balance his interest in privacy against the public's interest in monitoring litigation involving alleged misconduct by state actors). Finally, there is no risk of unfairness to the government, which already knows these identities and can mount all legal and factual defenses unimpeded. Accordingly, the factors strongly favor allowing C.R.M. to sue anonymously.
And the court granted the motion without detailed discussion.
Now of course everyone would sympathize with C.R.M.'s loss, and would understand that C.R.M. may find it very painful for the public to know about it. But if C.R.M. should prevail here, then I take it that any parent whose child has died should have the same entitlement; and then it's hard to see why it would be different for any wrongful death lawsuit, for instance when the plaintiff's beloved spouse has died prematurely. To be sure, there may well be emotional differences between the different situations; the death of a child may hit people especially hard; but I can't see how the law can draw a sharp distinction between, say, the death of several children and the death of one, or the death of a baby and the death of an adolescent, or even the death of a baby and the death of an adult spouse.
The logic of this decision—if applied evenhandedly—would thus sharply change the face of American civil litigation, with all (or at least most) wrongful death cases being litigated pseudonymously whenever the plaintiff so prefers. Indeed, lawsuits over permanently debilitating injuries that rise to the level of "soul shattering family tragedy" would be routinely pseudonymized as well.
Perhaps that's as it should be, and all or most civil litigation (or even criminal litigation)—at least if it involves individuals—should proceed under pseudonyms to protect the privacy and reputation of the parties. But that's not our system (I think for good reason); we view the access to court records, including the parties' identities, as generally valuable for the public's ability to supervise how the court system is functioning. And so long as it's not our system, it's hard for me to see how an exception can be made even in a sympathetic case such as C.R.M.'s.
But perhaps I'm mistaken; I'd love to hear what people think, especially since I'm still working on my article.