A federal judge in Connecticut has ruled that an attorney-plaintiff, who filed a lawsuit identifying herself as “Jane Doe,” cannot pursue the litigation without revealing her identity.
U.S. District Judge Vanessa Bryant of the District of Connecticut said she was “personally sympathetic” to the attorney’s concerns, but found Jane Doe had failed to make a compelling case for anonymity under the Federal Rules of Civil Procedure. Bryant gave the plaintiff three weeks to identify herself in court documents.
Her ruling came in a products liability lawsuit against Irvine, California-based eye health care supplier Bausch & Lomb and Canadian multinational specialty pharmaceutical company Valeant Pharmaceuticals, which has U.S. headquarters in Bridgewater, New Jersey. Bausch & Lomb Surgical Inc. was absorbed in a merger with Valeant. The surviving entity, Bausch & Lomb Inc., is among the world’s largest suppliers of contact lenses and other eye-related products.
Plaintiffs Jane Doe and Joseph Doe, a wife and husband from Connecticut, sued after Jane Doe faced complications following cataract surgery in September 2017. Though surgeries to both eyes appeared to have been conducted successfully, the patient was later diagnosed with asymetric vaulting, also known as Z syndrome, in both eyes.
This resulted in “eighth painful and ultimately unsuccessful surgical, medical and other interventions, more than 40 visits to specialists and more than 100 tests and other procedures” in trying to correct ongoing problems, including “a sea of floaters, flashes of lights and shadows that continuously impair her visual field,” the plaintiffs stated in their complaint.
The companies hired Miami-based Big Law firm Greenberg Traurig to handle the defense. Their attorneys, New York shareholder Toby Soli and Atlanta shareholder Lori Cohen, filed a successful motion to compel the lawyer to reveal her identity.
Doe initially filed suit in California over an alleged botched cataract surgery. She later moved the case to Connecticut. She maintained she developed complications after the surgery and was diagnosed with asymmetric vaulting, also known as Z syndrome, in both eyes. She accused the Bausch & Lomb of failure to warn consumers about alleged defects in its Trulign lenses.
The attorney and her husband, identified as Joseph Doe, sued the eye care companies, but requested anonymity because they said full disclosure would affect her earning capacity. They suggested revealing Jane Doe’s “extreme visual impairment” would affect her ability to attract clients as an attorney, and harm family members who depend on her income. They also cited privacy issues related to Doe’s medical records and noted she had three minor daughters and a disabled son.
“Despite the challenges she faces from the significant vision loss, Mrs. Doe has remained working (with support from adaptive equipment) to care for her family,” the plaintiffs wrote. “She is extremely concerned that she will completely lose her ability to see in the future and will be unable to support or care for her family.”
But Bryant ruled Doe did not meet the criteria for exemption under Rule 10(a) of the Federal Rules of Civil Procedure, which requires complaint titles to name all parties. She found Doe’s argument presented “a purely economic reason” that was insufficient to allow her to proceed under a pseudonym.
“Plaintiff states with no particularity why the disclosure of her name in litigation would cause her children emotional harm,” Bryant wrote in a Wednesday ruling granting Bausch & Lomb’s motion to compel the plaintiffs to reveal their identity.
If Doe wants to continue the litigation, she’ll have to file an amended complaint by June 6.
Workplace Discrimination Unlikely
Details about Doe’s practice area and firm size were unavailable by press time, but legal experts and law and employment specialists doubt law firms would discriminate based on disability or health issues.
“I have never heard of anyone being able to proceed anonymously under the circumstances as alleged in the lawsuit,” said attorney Jamie Sullivan, managing partner with Howard, Kohn, Sprague & FitzGerald in Hartford.
Cases that go forward with anonymous plaintiffs often deal with sex assault, Sullivan said. Doe’s concerns “are legitimate, but they do not rise to the level where you can proceed with anonymity,” he said.
Frederick Freedman, a former superior and appellate court judge who is currently counsel to Halloran & Sage in Westport, agreed.
“Years ago, [anonymity] was common in a divorce case,” said Freedman, who began practicing law in 1957. “It is not common anymore just because judges are looking for transparency. Transparency today is much more important than protecting someone from embarrassment, because litigation … itself becomes something that is a public record.”
Other attorneys told the Connecticut Law Tribune they doubt that Doe’s employment will be negatively affected if she reveals her name.
Stephen Bourtin, an employment and labor attorney who heads The Boyd Law Group’s Connecticut offices, said Thursday he believes law firms are especially understanding of people with disabilities or health issues because they understand federal labor law protections.
“You simply can’t claim ignorance of the law if you are a law firm,” Bourtin said. “Someone running a restaurant business might not know how the ADA works, but if you work at a law firm, that is something you understand.”
Lieff Cabraser Heimann & Bernstein partners Sarah London and Wendy Fleishman and associate Melissa Gardner represented the Does. They did not respond to a request for comment Thursday. Their Connecticut counterparts are Hugh Cuthbertson and Glenn Duhl of Zangbari Cohn Cuthbertson Duhl & Grello of New Haven.
Corporate representatives for the defendants were unavailable for comment by press time. Bausch & Lomb spokeswomen Kristy Marks and Teresa Panas and Valeant’s Lainie Keller did not respond to requests.