Morgan v. Wesley Medical Center, LLC et al

Filing 636

ORDER. No later than Noon tomorrow, Tuesday, February 9, 2021, counsel shall file unredacted copies of all settlement agreements for which they seek Court approval. Failing that, the Court will expect them to immediately contact the Special Master for technological assistance and participation in the trial on February 16, 2021. See Order for details. Signed by District Judge Kathryn H. Vratil on 2/8/2021. (as)

Case 2:18-cv-02158-KHV Document 636 Filed 02/08/21 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
D.M., a minor, by and through his next
friend and natural guardian,
KELLI MORGAN,

)
)
)
)
Plaintiff,
)
v.
)
)
BRIDGET GROVER, PA-C;
)
DR. GREGORY FAIMON; and
)
DR. BALA BHASKAR REDDY
)
BHIMAVARAPU,
)
)
Defendants. )
__________________________________________)

CIVIL ACTION
No. 18-2158-KHV

ORDER
This matter comes before the Court on the Joint Motion For Approval Of Settlements And
For Dismissal With Prejudice of Jennifer-Chambers-Daney, APRN, CEP America-KS LLC, Jamie
Borick, M.D., Connor Hartpence, M.D., and Stefanie White, M.D. (Doc. #631) filed February 8,
2021. The parties are well aware of the Court’s views about confidential settlement agreements
in this case. See Order To Show Cause (Doc. #469) entered June 18, 2020. Consequently the
Court attaches no weight to the claim that the parties bargained for a confidentiality agreement and
that a settlement agreement would not have been reached without it.1 To otherwise justify sealing
the terms of the settlement agree, the parties argue that (1) D. M. has privacy interests; (2) this case

1

Even aside from fact that the parties were on notice that the Court would not
approve a confidentiality agreement, this claim is facially baffling. From Plaintiff’s Brief In
Support Of Joint Motion For Approval Of Settlement (Doc. #634) filed February 8, 2021, it
appears that Chambers-Daney and Borick have agreed to a settlement in the amount of $1,500,000
in return for a dismissal of the five defendants identified in the motion. Plaintiff’s brief provides
a detailed analysis of plaintiff’s ultimate net recovery after reductions for attorney’s fees, expenses
and medical liens. With these matters now a matter of public record, it is not clear what
incremental value would be served if the settlement agreement itself remained confidential.

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gained past media attention in the Wichita area; (3) the public might make “certain unfair
judgments” based on the amount of the settlement; (4) the parties’ freedom to contract carries more
weight than the public’s right to transparency in judicial proceedings; and (5) other federal judges
have approved confidential settlement agreements.
The Court’s views apparently bear repeating:
Federal courts have long recognized a common-law right of access to judicial records.
United States v. Bacon, 950 F.3d 1286, 1292 (10th Cir. 2020). This right stems from the
fundamental public interest in understanding disputes that are presented to a public forum for
resolution. Crystal Grower’s Corp. v. Dobbins, 616 F.2d 458, 461 (10th Cir. 1980). Although this
right is not absolute, “there is a strong presumption in favor of public access.” Bacon, 950 F.3d at
1293 (citations omitted). The party seeking to overcome this presumption must therefore show
that countervailing interests “heavily outweigh” the public interests in access to judicial records.
Id. (citations omitted). That is, the party must articulate real and substantial interests that justify
depriving the public of access to records which inform the Court’s decision-making process. Gulf
Oil Co. v. Bernard, 452 U.S. 89, 102 n.16 (1981) (moving party must submit particular and specific
facts, not merely “stereotyped and conclusory statements”); Williams v. FedEx Corp. Servs., 849
F.3d 889, 905 (10th Cir. 2017); Colony Ins. Co. v. Burke, 698 F.3d 1222, 1241 (10th Cir. 2012).
In this case, the parties have not articulated reasons for confidentiality that “heavily
outweigh” the public interest in access to judicial records. The Court has already held that D. M.
does not have a legally protected privacy interest in keeping settlement amounts confidential. The
fact that this case has gained media attention in the Wichita area reflects public interest that
counsels in favor of full disclosure, not secrecy. Without even seeing the settlement agreement
which the parties have negotiated, the Court is certain that it contains no admission of liability by
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any defendant, and it is not clear what “judgments” the public might make or—given the issues in
this case—why they would be “unfair.” The parties cite no authority for the novel argument that
the parties’ freedom to contract trumps the public’s right to know. Finally, this Court does not
monitor whether or under what circumstances other federal district judges in Kansas have
approved confidential settlement agreements for minors in medical malpractice cases; its job is to
interpret and apply controlling authority from the Supreme Court of the United States and the
Tenth Circuit Court of Appeals. Having done so, the Court finds that the parties have not
articulated factors which together or in combination justify anything less than public disclosure of
the settlement agreements, in full.
It is unfortunate—and defies belief—that the parties would have conditioned their
settlement agreement on confidentiality, given the Court’s expressed views and practice in this
very case. That being the case, however, the Court questions the need to proceed with the
settlement approval hearings now set for February 10, 2021 at 10:00 a.m. Accordingly, no later
than noon tomorrow, Tuesday, February 9, 2021, counsel shall file unredacted copies of all
settlement agreements for which they seek Court approval. Failing that, the Court will expect
them to immediately contact the Special Master for technological assistance and participation in
the trial on February 16, 2021.
IT IS SO ORDERED.
Dated this 8th day of February, 2021 at Kansas City, Kansas.
s/ Kathryn H. Vratil
KATHRYN H. VRATIL
United States District Judge

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