104768445

104768445

IN THE COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO
JOHN BRICKEL ET AL Case No: CV-18-894332
Plaintiff
Judge: STUART A FRIEDMAN

UNIVERSITY HOSPITALS AHUJA MEDICAL

CENTER ET AL
Defendant
JOURNAL ENTRY

DEFENDANTS' MOTION FOR AN ORDER RESTRICTING PUBLIC EXTRAJUDICIAL STATEMENTS BY COUNSEL

RELATED TO PENDING LITIGATION (FILED 07/16/2018) IS GRANTED.

MEMORANDUM OF OPINION AND ORDER AS TO ALL CONSOLIDATED CASES ATTACHED.

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 IN THE COURT OF COMMON PLEAS
CUYAHOGA COUNTY, OHIO

JOHN AND KRISTINE BRICKEL ) CONSOLIDATED CASE

) NO. 894332
Plaintiffs, )
) MEMORANDUM OF OPINION
v. | ) AND ORDER AS TO ALL
) CONSOLIDATED CASES
UNIVERSITY HOSPITALS OF ! )
CLEVELAND, et al. )
)
Defendants. j )
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FRIEDMAN, J.: !
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{^jl.} Before the court is defendants;’ Motion for an Order Restricting Public
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Extrajudicial Statements by Counsel Related to Pending Litigation (commonly—but
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inaccurately—referred to as a “gag order”.) The court has reviewed both defendants’

motion and plaintiffs’ briefs, as well as the reply brief filed by defendants.1
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{^|2.} Limitations on lawyers’ speech is aimed at achieving two principal goals—to

prevent statements that are likely to influence the actual outcome of a trial, and to prevent
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statements that are likely to prejudicedhe jury pool. Gentile v. State Bar of Nevada, 501

U.S. 1030, 1075.

{*113.} Accordingly, the court is constrained to review the statements themselves, in

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order to determine whether they are “likely to materially prejudice” these proceedings, or

whether, as described by plaintiffs’ counsel, they mere reflect “ ‘points of view’ of

counsel for some plaintiffs in this actijon.”
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{TI4.} Counsel would have the courtjbelieve that language such as “Mother’s Day

massacre” is no more than a reflection of the attorney’s “point of view” as to defendants’

Although it was the court’s understanding that a joint brief in opposition was to be filed on behalf of all
plaintiffs, one of the attorneys representing some of the plaintiffs filed an additional brief, which the court
read and considered, along with all other materials presented.

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conduct. Clearly, at this early stage it must be a matter of conjecture and speculation

whether such remarks are “likely to materially prejudice”. However, to claim that these
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are simply anodyne expressions of counsel’s opinions simply cannot withstand the light

of day. Such statements are clearly intended to inflame the public—which itself can only

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be intended to poison potential jurors as to the issues presented.

{^|5.} As noted, we are still at the earliest stages of these cases: complaints continue to
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be filed even as I speak; some—but by no means all—answers have been filed; and

discovery is in its infancy. We simply cannot know whether, and to what extent, the

progress of this litigation will be materially prejudiced by the statements that already
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have been made. More to the point, however, we do not know what other torpedoes may

be chambered as these cases proceed towards resolution, and of course what, if any,

impact present or future statements mjay have—on potential jurors, to be sure, but equally

importantly upon the resoluteness of defendants to maintain a vigorous defense in the

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face of a public-relations media blitz, j

{TJ6.} Some fifty years ago my father spearheaded efforts at open discovery in civil
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litigation. I followed suit a number of| years ago with respect to criminal discovery. In
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both cases what lay at the heart of our efforts was the belief that justice was furthered by

avoiding trial by ambush. It is this court’s sincere belief that trial by media, in high-

profile cases such as these, may be more invidious and ultimately more dangerous—not
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only to the parties themselves, but more importantly to the justice system itself.

{f7.} It is noteworthy that the entry proposed by defendants would not impose any
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limits on the parties themselves (plaintiffs or defendants) as to what they may say in
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statements of whatever nature, whether to news media or social media. This court

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embraces the freedom of the media to report on controversial matters—and the record

already shows us that this definitely is a controversial one. It further will not impose any

limits at this time on parties (both plaintiffs and defendants) from expressing—by any

means available—their views on those1 issues. In keeping with its inherent obligation to

ensure that all parties receive a fair resolution of the issues, that is, to preserve “due

course of law” in the prosecution andjdefense of all issues, the court believes that justice

mandates certain limited restraints on'comments by counsel for all parties.

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{^|8.} “Few, if any, interests under the Constitution are more fundamental than the right

to a fair trial by impartial jurors, and an outcome affected by extrajudicial statements

would violate that fundamental right.” U.S. v. Brown. 218 F.3d 415, 423 (5th Cir. 2000).
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“Accordingly, trial courts have ‘an affirmative duty to minimize the effects of prejudicial

pretrial publicity.’” Id., citing Gannett Co. v. DePasquale. 443 U.S. 368 (1979).

{*119.} First Amendment freedoms arb not absolute, but must be analyzed in light of the

special characteristics of the [relevant] environment. Id. at 424. “[Although litigants do

not surrender their First Amendment rights at the courthouse door, those rights may be

subordinated to other interests that arise in the context of both civil and criminal trials.”

Id.
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{^]10.} In the case sub judice, defendants move for a restraining order directed at counsel
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only, not the trial participants, not the media. The Supreme Court has recognized that the

speech of those participating before tile courts could be limited, a “distinction between

participants in the litigation and strangers to it” Id. at 425, citing Gentile, supra, at 1072-
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1073. “Gag orders on trial participants are evaluated under a less stringent standard than

gag orders on the press.” Id.

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{^11.} The partial basis of the Supreme Court’s distinction originated here in Cleveland

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when the Supreme Court found that the bedlam that had reigned in the courthouse and
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press during the trial of Dr. Sam Sheppard deprived Dr. Sheppard of his due process

rights. Sheppard v. Maxwell. 384 U.S. 333 (1966). The Gentile court held that prior
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precedent, including Sheppard, showed that “the speech of lawyers representing clients
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may be regulated under a less demanding standard that that established for regulation of
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the press.” Gentile, supra, at 1073.
{^|12.} If this court determines that thlere is a “substantial likelihood” that extrajudicial

commentary by counsel will undermine a fair trial, this court is permitted to impose a gag
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order as long as that order is narrowly-tailored and involves the least restrictive means
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possible.2 I

Substantial Likelihood of Prejudice

{^13.} The Gentile court found that attorneys, in their unique role as officers of the court,

are subject to ethical restrictions on speech to which an ordinary citizen would not be
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during pending litigation. Gentile, supra, at 1071. “An attorney’s ethical obligations to
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refrain from making prejudicial comments about a pending case will exist whether a gag

order is in place or not.” Brown, supra, at 428. See Prof. Cond. Rule 3.6(a).3

{^[14.} The court is concerned that, unless restricted, future prejudicial statements by

counsel may serve to increase the volume of pretrial publicity. More importantly, the

court is concerned that any future inflammatory statements will taint the potential jury

2 Brown, supra, at 428.

3 A lawyer who is participating . .. in the . . . jlitigation of a matter shall not make an extrajudicial statement
that the lawyer knows or reasonably should know will be disseminated by means of public communication
and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

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pool. As the Gentile court noted, “even extensive voir dire may not be able to filter out
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all of the effects of pretrial publicity.” Gentile, supra, at 1075.

{^]15.} Although this matter is still inj its early stages, both national4 and local news

coverage is already significant.5 As the Supreme Court stated in Sheppard, “trial judges

have a responsibility to avoid the creation of a carnival atmosphere in high-profile cases.”

Sheppard, supra, at 358. As discussed above, statements by counsel clearly demonstrate

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an intention to manipulate media coverage in order to gain favorable consideration for

their clients. Accordingly, the court finds that there is a substantial likelihood that
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permitting any future extrajudicial comments by counsel will materially prejudice the

court’s ability to hold a fair trial. I

: Conclusion

{^jl 6.} When considering how to ‘cure’ the effects of pretrial publicity, a trial court’s

overriding object must be to institute “those remedial measures that will prevent the

prejudice at its inception.” (Emphasis added.) Sheppard, supra, at 363. This task is, by

its nature, difficult and speculative as jit involves the weighing “of factors unknown and

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unknowable.” Brown at 431. However, based upon the reasons discussed, the court grants
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defendants’ motion for an order restricting public extrajudicial statements by counsel

related to pending litigation. The extrajudicial comments by counsel are constrained by

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the conditions in the following order.!

4 NBC Today and CNN have run news stories.

5 The court in no way implies any criticism of the news media, which is merely doing its job to report any
developments. !
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IN THE COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO

JOHN AND KRISTINE BRICKEL ) CONSOLIDATED CASE

) NO. 894332
Plaintiffs, )
) ORDER AS TO ALL
v. ) CONSOLIDATED CASES
i )
UNIVERSITY HOSPITALS OF ! )
CLEVELAND, et al. i )
i )
Defendants. )

As this court has found that ;there exists a substantial likelihood that permitting
any future public extrajudicial comments by counsel will materially prejudice the court’s

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ability to hold a fair trial, in the interest of maintaining the integrity of these proceedings

and protecting the rights of all parties to a fair trial by an impartial jury, the court orders

that all counsel and their law firms shall refrain from the following conduct:
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1. Counsel shall not make, give, or disseminate any extrajudicial statement or

interview to any communications media6 that could (a) interfere with a fair trial or

(b) prejudice any party or the administration of justice.

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2. In particular, statements or jinformation intended to influence public opinion
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regarding the conduct of any party or the merits of this case are specifically
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designated as information that could interfere with a fair trial or prejudice a party.

3. Exceptions. Counsel are permitted to discuss:

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a. Information that is public record;
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b. Scheduling information;

c. The general nature of any allegations or defenses;

6 Including, but not limited to, broadcast andiprint media, radio, television, electronic communication
including email, websites, social media, and voicemail.

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 d. A decision or order ofithis court that is a public record;

e. The contents or substance of any motion filed to the extent that the motion
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is a public record. •

IT IS SO ORDERED.

DGE STUART A. FRIEDMAN

SERVICE

Pursuant to Civ.R. 58(B), the Clerk of Courts is directed to serve this judgment in
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a manner prescribed by Civ.R. 5(B). The Clerk must indicate on the docket the names

and addresses of all parties, the method of service, and the costs associated with this
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service. '

JUDGE STUART A. FRIEDMAN