Doe v. Union Pac. R.R. Co.

Jane DOE v. UNION PACIFIC RAILROAD CO.

95-682                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered February 5, 1996


1.   Appeal & error -- final, appealable judgment -- ARCP Rule
     54(b) allows interlocutory appeals under certain circumstances
     but not here. -- Arkansas Rule of Civil Procedure 54(b) allows
     interlocutory appeals under certain circumstances, but the
     supreme court ruled that those circumstances were not present
     here; by its express language, Rule 54(b) pertains to orders
     in which fewer that all claims or fewer than all parties are
     disposed of; the order in this case involved a ruling on a
     preliminary legal issue and did not dispose of one of several
     claims or one of several parties.

2.   Appeal & error -- final, appealable judgment -- Ark. R. App.
     P. 2 -- general rule of appealability -- circuit court's
     ruling was on preliminary matter. -- Under Ark. R. App. P. 2,
     for an order to be appealable, it must dismiss the parties
     from the court, discharge them from the action, or conclude
     their rights to the subject matter in controversy; the order
     must be of such a nature as not only to decide the rights of
     the parties but to put the court's directive into execution,
     ending the litigation or a separable part of it; the court's
     order in this case did not dismiss the parties from the court
     or conclude their rights to the subject matter in controversy; 
     the court's ruling was on a preliminary matter, unconnected
     with the merits of the litigation, and the order could not be
     considered as ending a separable branch of the litigation.

3.   Appeal & error -- final, appealable judgment -- supreme court
     declined to adopt amendment to Ark. R. App. P. 2 to allow
     appellant's interlocutory appeal -- considerations. -- The
     supreme court declined to adopt an amendment of Ark. R. App.
     P. 2 to allow appellant's interlocutory appeal where there was
     nothing to indicate that appellant would not or could not
     prosecute her action in the absence of anonymity, and she had
     the option to allow the issue to be decided on appellees'
     motion to dismiss; had the motion to dismiss been granted, a
     final order would have been in existence; the only showing
     before the appellate court was that it would be emotionally
     difficult for the appellant to pursue her lawsuit in her own
     name and that she would prefer not to do so; there was no
     showing that burdensome and meaningless litigation would
     result in the absence of an appeal.

4.   Appeal & error -- final, appealable order -- appeal was
     premature. -- The supreme court held that the appeal was
     premature and dismissed without prejudice.


     Appeal from Pulaski Circuit Court; Marion Humphrey, Judge;
appeal dismissed.
     Duncan & Rainwater, by: Philip J. Duncan and Neil Chamberlin,
for appellant.
     Friday, Eldredge & Clark, by:  William H. Sutton and John
Dewey Watson, for appellee Union Pac. R.R. Co.
     Friday, Eldredge & Clark, by:  Tonia P. Jones and Will Bond,
for appellee Michael Ramone, D.O.
     Wright, Lindsey & Jennings, by:  Sammye L. Taylor and Troy A.
Price, for appellees MoPac Employees Health Ass'n and MoPac
Employees Health Ass'n Trust.

     Bradley D. Jesson, Chief Justice. February 5, 1996 *ADVREP1*






JANE DOE,
                    APPELLANT,

V.

UNION PACIFIC RAILROAD CO., ET
AL.,
                    APPELLEES,




95-682


APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT,
NO. 94-2271,
HON. MARION HUMPHREY, JUDGE,




APPEAL DISMISSED.



                Bradley D. Jesson, Chief Justice



     
     This appeal is taken from the trial court's denial of the
appellant's motion to prosecute her lawsuit under the pseudonym
"Jane Doe."   We hold that the court's ruling is not a final,
appealable order.  Therefore, the appeal is dismissed.  
     The appellant visited the Oakwood Family Medical Center on
March 9, 1992, where she was examined by Michael Ramone, D.O.  The
Center purportedly was operated by Union Pacific Railroad Company,
the Missouri Pacific Employees Health Association and the
Association Trust.  According to her complaint, the appellant was
touched in an improper and sexually suggestive manner during the
course of the examination.  
     On March 4, 1994, the appellant filed suit against the
appellees seeking damages for negligence, medical malpractice,
outrage and invasion of privacy.  The caption to her complaint
contained the name "Jane Doe" as plaintiff, but listed all
defendants by name.  The appellant's true identity was furnished to
the appellees under separate cover.
     The appellees objected to the appellant's use of the pseudonym
and moved to dismiss the case.  The appellant asked the court for
leave to conceal her identity, citing the sensitive, private nature
of the allegations in the complaint.  The court denied the motion
and gave the appellant ten days to file an amended complaint in her
own name.  The appellant filed a subsequent motion which
incorporated a letter opinion from her psychologist.  The letter
stated that the appellant had been traumatized by the incident and
suffered various emotional problems as a result.  The trial court
reviewed the letter and considered the appellant's motion in light
of a number of federal court cases on the subject.  See, e.g., Doe
v. Frank, 951 F.2d 320 (11th Cir. 1992).  The court then denied the
motion, and entered an order finding that the appellant had not
shown that the information to be disclosed was of the utmost
privacy.  The following language, attempting to certify the case
for appeal, was also contained in the order:

     The Plaintiff's Motion for Certification for Appeal is
     granted.  This court's order with respect to the issue of
     the Plaintiff's Motion for Leave to File Under Seal is
     final because the disclosure of the Plaintiff's identity
     would divest her of a substantial right and it would be
     beyond the power of this court to place her in her former
     condition.  There is no just reason to delay appeal of
     this issue and a potential injustice would be alleviated
     by an immediate appeal.



     The appellant argues first that the trial court's order is
appealable because it complies with ARCP Rule 54(b).  That rule
allows interlocutory appeals under certain circumstances, but those
circumstances are not present here.  By its express language, Rule
54(b) pertains to orders in which fewer that all claims or fewer
than all parties are disposed of.  The order in this case involves
a ruling on a preliminary legal issue.  It does not dispose of one
of several claims or one of several parties.
     Rather than analyze the appealability of the trial court's
order under Rule 54(b), we refer to Rule 2 of the Arkansas Rules of
Appellate Procedure.  That rule contains a list of the types of
orders from which an appeal may be taken.  We note at the outset
that Rule 2 does not expressly allow an appeal from a ruling which
denies a party the right to prosecute her case in anonymity.      
What might be termed the general rule regarding appealability is
stated in ARAP Rule 2(a)(2):

     (a) An appeal may be taken from a circuit, chancery or
     probate court to the Arkansas Supreme Court from:

     2. An order which in effect determines the action and
     prevents a judgment from which an appeal might be taken,
     or discontinues the action.

  

     We have interpreted this portion of Rule 2 to mean that, for
an order to be appealable, it must dismiss the parties from the
court, discharge them from the action, or conclude their rights to
the subject matter in controversy.  The order must be of such a
nature as to not only decide the rights of the parties, but to put
the court's directive into execution, ending the litigation or a
separable part of it.  Kelly v. Kelly, 310 Ark. 244, 835 S.W.2d 869
(1992).  Certainly the court's order in this case did not dismiss
the parties from the court or conclude their rights to the subject
matter in controversy.  The court's ruling was on a preliminary
matter, unconnected with the merits of the litigation.  The order
cannot be considered as ending a separable branch of the
litigation. 
     The appellant urges us to employ an exception to Rule 2 as we
have done in the cases of Omni Farms, Inc. v. Arkansas Power &
Light Co., 271 Ark. 61, 607 S.W.2d 363 (1980) and Gipson v. Brown,
288 Ark. 422, 706 S.W.2d 369 (1986).  In Omni Farms, the trial
court entered an order approving condemnation of the appellant's
land.  The order would have allowed AP&L to begin immediate
construction on the land, even though the issue of the amount of
compensation remained to be decided.  In Gipson, church members
brought suit to obtain financial data from the church management. 
The trial court entered a discovery order which had the effect of
requiring the church to turn over much of the requested
information.  We allowed appeals in both instances, stating in Omni
Farms:

     At the oral argument counsel for A.P.&L. conceded that if
     construction is allowed to proceed, it will be impossible
     in the event of a reversal for Omni's land to be restored
     to its previous condition.  We conclude that this is one
     of the comparatively rare instances, foreseen by some of
     our earlier opinions, in which an order must be regarded
     as appealable because otherwise the order would divest a
     substantial right in such a way as to put it beyond the
     power of the court to place the party in its former
     condition.



     In both of the above-cited cases, the trial court's ruling,
while technically interlocutory in nature, had the practical effect
of a final ruling on the merits of the case.  That is not the
situation here.  This case is more analogous to Scheland v.
Chilldres, 313 Ark. 165, 852 S.W.2d 791 (1993), in which the trial
court rendered a decision on an important issue but did not, from
a practical standpoint, conclude the merits of the case.  Scheland
involved an order requiring the appellant in a paternity action to
undergo a blood test.  We held that, while the issue might be an
important one, an appeal was premature.
     Finally, the appellant urges us to adopt an amendment of Rule
2 to allow this type of interlocutory appeal.  We took this
approach in the cases of Herron v. Jones, 276 Ark. 493, 637 S.W.2d 569 (1982) and Ford Motor Credit Co. v. Nesheim, 285 Ark. 253, 686 S.W.2d 777 (1985).  In Herron, we declared that an order
disqualifying counsel would be made appealable by amendment to Rule
2.  In Nesheim, we did the same for an order certifying a case as
a class action.  However, the considerations which were present in
those cases do not exist here.  If a party's counsel is
disqualified, the litigant is deprived of the counsel of his
choice, must pursue his lawsuit with other counsel, and, if the
trial court's order is later reversed, is entitled to start again
with his original counsel.  Similarly, if a class action,
ordinarily a complicated and lengthy process, is allowed to proceed
to its conclusion before being reviewed on appeal, the parties have
again gone through a useless process in the event of reversal.  In
this case, there is nothing to indicate that the appellant would
not or could not prosecute her action in the absence of anonymity. 
We should also point out that she had the option to allow the issue
to be decided on the appellees' motion to dismiss.  Had the motion
to dismiss been granted, a final order would have been in
existence.  The only showing before this court at this time is that
it would be emotionally difficult for the appellant to pursue her
lawsuit in her own name and that she would prefer not to do so. 
There is no showing, as there was in Herron and Nesheim, that
burdensome and meaningless litigation would result in the absence
of an appeal.
     We hold that the appeal is premature and dismiss without
prejudice to raise this issue upon the entry of a final order.
     Appeal dismissed.
     Corbin, Brown and Roaf, JJ., dissent.  Associate Justice Robert L. Brown
February 5, 1996 *ADVREP1-A*






JANE DOE,
                    APPELLANT,

V.

UNION PACIFIC RAILROAD CO., ET
AL,
                    APPELLEES,

95-682




APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT,
NO. 94-2271,
HON. MARION HUMPHREY, JUDGE,




DISSENTING OPINION.






     I would accept this appeal and decide the issue under the test
employed in Omni Farms, Inc. v. Arkansas Power & Light Co., 271
Ark. 61, 607 S.W.2d 363 (1980) and Gipson v. Brown, 288 Ark. 422,
706 S.W.2d 369 (1986).
     What Jane Doe requested in her briefs and at oral argument is
that the style of this case, as contained in the permanent record,
not reflect her real name.  She has made her actual name available
to counsel for Dr. Ramone.  She is available for discovery and will
appear at trial to testify in public.  Any enterprising news
reporter could ferret out her real name.  Her true name may
actually be used at trial; that is unclear.  Her concern is history
and whether the style of this case will permanently reflect her
correct name.
     The majority states the Omni Farms analysis that I would use
in this case:
     At the oral argument counsel for A.P.& L. conceded that
     if the construction is allowed to proceed, it will be
     impossible in the event of a reversal for Omni's land to
     be restored to its previous condition.  We conclude that
     this is one of the comparatively rare instances, foreseen
     by some of our earlier opinions, in which an order must
     be regarded as appealable because otherwise the order
     would divest a substantial right in such a way as to put
     it beyond the power of the court to place the party in
     its former condition.
271 Ark. at 63, 607 S.W.2d  at 364.  Using the Omni standard, we
should decide (1) whether a substantial right is involved, and (2)
whether it will be lost if we fail to correct the matter before
trial.
     What I take issue with in the majority opinion is that it
closes the door to appeals in all instances where going to trial
would violate a party's utmost privacy rights.  We should leave the
door cracked for such rare appeals, even when a final order has not
been rendered in the matter.  This case differs from Scheland v.
Chilldres, 313 Ark. 165, 852 S.W.2d 791 (1993).  The Scheland case
involved taking a blood test to establish paternity.  Here, we are
concerned with allegations of sexual invasion which are
categorically different in terms of privacy considerations.
     Other jurisdictions have accepted appeals of anonymity issues
where utmost privacy was the question to be resolved.  See, e.g.,
James v. Jacobson, 6 F.3d 233 (4th Cir. 1993) (artificial
insemination by physician's sperm - anonymity allowed); Doe v.
Frank, 951 F.2d 320 (11th Cir. 1992) (alcoholism - anonymity not
allowed); Doe v. Bodwin, 119 Mich. App. 264, 326 N.W.2d 473 (1982). 
The Fourth Circuit Court of Appeals stated in James v. Jacobson:
          The decision whether to permit parties to proceed
     anonymously at trial is one of many involving management
     of the trial process that for obvious reasons are
     committed in the first instance to trial court
     discretion.  This implies, among other things, that
     though the general presumption of openness of judicial
     proceedings applies to party anonymity as a limited form
     of closure, see Stegall, 653 F.2d  at 185, it operates
     only as a presumption and not as an absolute,
     unreviewable license to deny.  The rule rather is that
     under appropriate circumstances anonymity may, as a
     matter of discretion, be permitted.  This simply
     recognizes that privacy or confidentiality concerns are
     sometimes sufficiently critical that parties or witnesses
     should be allowed this rare dispensation.  A necessary
     corollary is that there is a judicial duty to inquire
     into the circumstances of particular cases to determine
     whether the dispensation is warranted.
6 F.3d  at 238.
     In Doe v. Bodwin, the complaint was made that a psychologist
had had sexual intercourse with the plaintiff, his patient, during
therapy.  A complaint was filed and a fictitious name invoked.  The
trial court ordered the plaintiff to identify herself publicly, but
on appeal, the Michigan Court of Appeals reversed and remanded for
reconsideration of whether utmost privacy rights were violated.
     We should do the same analysis and determine whether a right
of utmost privacy would be lost by going to trial rather than
merely dismissing the matter for lack of a final order.
     I respectfully dissent. 
     Corbin and Roaf, JJ., join.