Much of the questioning of Ninth Circuit nominee Carolyn Kuhl at her April 1, 2003 confirmation hearing focused on her disturbing ruling dismissing invasion of privacy claims in the case of Azucena Sanchez-Scott, a breast cancer survivor. As demonstrated below, Kuhl’s testimony about this case not only failed to address Senators’ concerns about her ruling but was grossly misleading.
In 1999, Kuhl dismissed invasion of privacy claims brought by Azucena Sanchez-Scott, a recovering breast cancer patient, whose doctor had brought another professionally attired man into the examination room without disclosing that the man was not a medical professional but a drug company salesman. The man then witnessed an examination of Ms. Sanchez-Scott’s breasts and abdomen during which she was half-naked. In a recent letter to Senator Hatch opposing Kuhl’s confirmation, Ms. Sanchez-Scott explained that “I felt violated because I had disrobed for my examination. . . As a cancer survivor, I trusted that my doctor would make decisions in my best interest.”1 Senator Durbin told Kuhl that he considered the Sanchez-Scott case “the most troubling of anything you have been involved in.”2 Senator Schumer stated, “I don’t think I have seen a more disturbing ruling from a judicial nominee since I have been in the Senate.” Id. at 108.
Specifically, Ms. Sanchez-Scott filed suit against the doctor, the drug company, and the salesman for invasion of privacy, with an additional claim against the doctor for professional negligence. Judge Kuhl granted a motion by the defendants to dismiss Ms. Sanchez-Scott’s invasion of privacy claims outright, effectively holding that there was no set of facts that Ms. Sanchez-Scott could prove that would entitle her to any relief on the invasion of privacy claims and precluding her from presenting those claims to a jury. According to Judge Kuhl’s ruling from the bench, since Ms. Sanchez-Scott had not specifically objected to the man’s presence, “I think it cannot be said that there was a reasonable expectation of privacy.”3
The California Court of Appeal unanimously reversed Kuhl’s ruling, holding that Ms. Sanchez-Scott’s complaint had alleged “highly offensive conduct,” and making it clear that she had a well established right to privacy.4 The court specifically noted that “[n]o decisional authority supports” the assertion that Ms. Sanchez-Scott had no legal grounds for her invasion of privacy charge.5 In other words, Judge Kuhl had no legal basis for throwing out Ms. Sanchez-Scott’s claim.
In light of these facts and the Court of Appeal’s unanimous reversal of Kuhl’s ruling, Senator Durbin asked Kuhl to explain her “concept of privacy, as it applies to that fact situation.” Kuhl Hearing, at 73. Senator Schumer, after reviewing the facts with Kuhl, stated that “I think most American would be horrified to hear that your view of privacy rights, particularly in that situation, depended on someone who was scared and upset having to ask questions.” Id. at 108. He asked Kuhl, “How do you explain the ruling issued in this case, and what can you tell us to assuage so many of my colleagues’ concerns that you have too narrow a view of privacy rights?” Id.
Kuhl’s testimony and the facts
Kuhl’s oral and written testimony about the Sanchez-Scott case reinforces the Senators’ concerns:
1. Although she denied this at her hearing, Kuhl has now admitted that she did in fact dismiss invasion of privacy claims against the doctor
At her hearing, Kuhl did not answer the critical questions about her ruling and her troubling view of privacy rights. Rather, she testified that Ms. Sanchez-Scott had not asserted any invasion of privacy claims against the doctor and that she had not dismissed Ms. Sanchez-Scott’s privacy claims against him.6 This testimony was completely incorrect, as Kuhl admitted a month later in a brief letter to Senator Hatch.7 Through this testimony, however, Kuhl had deflected Senators’ serious concerns about her disturbingly narrow and legally erroneous views of a medical patient’s privacy rights. Thus, to this day, Kuhl has not answered, for example, Senator Durbin’s question about her “concept of privacy, as it applies to” the facts of this case, or Senator Schumer’s question asking “what can you tell us to assuage so many of my colleagues’ concerns that you have too narrow a view of privacy rights?”
In addition, as Kuhl now admits in her letter to Senator Hatch, she indeed threw out of court in their entirety Ms. Sanchez-Scott’s invasion of privacy claims against all of the defendants — the doctor, the drug company, and the drug salesman. Had Kuhl’s ruling not been reversed on appeal, two of the wrongdoers, the drug company and the salesman, would have avoided all liability to Ms. Sanchez-Scott for their unconscionable actions, and the doctor likewise would not have been held liable on the invasion of privacy claim.
2. Kuhl created the misimpression that she had affirmatively “allowed” a claim against the doctor to go forward
At Kuhl’s hearing on April 1, Senator Sessions asked, “you allowed the lawsuit to go forward against the physician, but did not allow it to go forward against the third party who the doctor had allowed to come into the room.” Kuhl replied, “Yes, Senator.” Kuhl Hearing, at 80. In fact, the additional claim against the doctor for professional negligence was not the subject of the motion to dismiss before Kuhl, and Kuhl therefore had no choice as to whether that claim proceeded. It was thus misleading for Kuhl to testify that she had “allowed” that claim against the doctor to go forward in the sense that Kuhl had some choice or that she had affirmatively ruled in favor of Ms. Sanchez-Scott.8
Moreover, while Kuhl never mentioned this in her testimony or in her post-hearing answers, the remaining claim against the doctor for professional negligence was stayed during Ms. Sanchez-Scott’s appeal of her dismissal of the privacy claims,9 which took more than a year.10 Thus, not only would Kuhl’s ruling have eliminated Ms. Sanchez-Scott’s privacy claims in their entirety, but that ruling also substantially delayed the case and was a significant obstacle to Ms. Sanchez-Scott’s ability to obtain justice.
3. Kuhl’s testimony as to why she did not follow relevant precedent conflicts with her ruling in this case
In her testimony on April 1 and also in her April 15 letter to Senator Specter, Kuhl fostered the misimpression that California privacy law was unclear at the time of her ruling dismissing Ms. Sanchez-Scott’s claims. For example, she testified at her hearing that “I was trying to interpret California law. What was being cited to me was Michigan precedent [i.e., the Michigan Supreme Court’s decision in DeMay v. Roberts, in which a doctor brought along a man not connected with the medical profession to assist him in a childbirth]. I think that the Court of Appeal has clarified the law in this area.” Kuhl Hearing, at 74. 11 The implication of Kuhl’s testimony, that there was no California case law to follow and that she did not follow the “Michigan precedent” that was being cited to her because it would not help “interpret California law,” cannot withstand scrutiny.
In Kuhl’s ruling from the bench dismissing Ms. Sanchez-Scott’s privacy claims, Kuhl in fact acknowledged that the Michigan case had already been recognized by the California Supreme Court. As Kuhl stated, “[i]t’s a much more important case and much more significant case that the Supreme Court –- our Supreme Court has picked it up and cited it. There’s no question about it.” Sanchez-Scott Transcript, at 8. Kuhl’s “problem” with the Michigan case at the time was not that it was from Michigan but that she considered it factually distinguishable; according to Kuhl, “[t]he patient there was in labor, not undergoing a more routine medical examination . . . .” Id. at 3. In sharp contrast, the unanimous Court of Appeal decision reversing Kuhl not only found that “this case [Sanchez-Scott] is very much like the 1881 seminal case of DeMay v. Roberts . . . which first recognized a tortious invasion of privacy,” but also noted that “DeMay has been relied on by several California courts, including the Supreme Court, in analyzing propositions concerning the intrusion tort.” 86 Cal. App. 4th at 374.
4. Kuhl’s misplaced reliance on a letter from Justice Paul Turner
At her hearing on Apri1 1 and in her letter to Senator Specter, Kuhl cited a letter favorable to her sent to members of the Judiciary Committee by Justice Paul Turner, the author of the Court of Appeal’s decision that unanimously reversed her dismissal of Ms. Sanchez-Scott’s common law invasion of privacy claim. While it is not surprising that Justice Turner may now want to assist his judicial colleague in her quest for a lifetime seat on the federal bench, his letter is erroneous in significant respects and the best evidence of what he thought about this case and Kuhl’s ruling remains his own contemporaneous opinion overturning Kuhl’s ruling on behalf of a unanimous Court of Appeal.
Turner’s letter now suggests that Kuhl’s ruling was “a trial judge making a tough call in the context of competing legal interests . . . . ”12 Significantly, however, Kuhl’s ruling never identified any such “competing legal interests.” Her ruling was based solely on her belief that Ms. Sanchez-Scott had no claim for invasion of privacy as a matter of law because she had never asked why the unidentified man was there or objected to his presence. Sanchez-Scott Transcript, at 2, 3. As Justice Turner’s opinion for the unanimous appellate court demonstrates, neither he nor his colleagues had any problem overturning Kuhl’s ruling; there was no dissent, and no indication in the opinion that it was a “tough call.”
To the contrary, the Court of Appeal’s opinion made clear that every patient has a “legally well-established expectation of privacy,” and further noted that the defendants had failed to cite “any authority which permits a male drug salesperson to be present in an examination room during the examination of a partially disrobed woman.” 86 Cal. App. 4th at 375-76 (emphasis added). In great contrast to his recent letter, Turner’s ruling for the Court of Appeal never identified or sought to balance a so-called “competing legal interest” to Ms. Sanchez-Scott’s privacy rights. In the plainest of language belying any claim now that this case was a “tough call,” Justice Turner wrote in the court’s decision:
A breast cancer patient who goes into an oncologist’s office to be examined does not, nor should she, take a risk that what goes on in the examination room will be seen or heard by anyone other than medical personnel. She does not take a risk that a drug salesperson will be a part of the process during which her breasts will be examined.
86 Cal. App. 4th at 376. The Court of Appeal’s opinion reversing Kuhl continued, “we conclude that jurors could conclude a breast cancer patient such as plaintiff had an objectively reasonable expectation of privacy in the medical examination room of her oncologist. No decisional authority supports a contrary conclusion.” Id. (emphasis added).
The Turner letter ends by asserting that “Judge Kuhl concluded that the mentorship program, which was designed to improve treatment for breast cancer patients, was a sufficient justification for allowing the drug salesperson to be present during the examination… [A] strong argument can be made that she correctly assessed the competing societal interests the California Supreme Court requires all jurists in this state to weigh in determining whether the tort of intrusion has occurred.” Turner Letter, at 2-3. This statement has no basis whatsoever in Judge Kuhl’s ruling or that of the Court of Appeal.
As the transcript of the hearing before Kuhl makes clear, Kuhl never “assessed” any “competing societal interests” nor discussed the purpose of the drug company’s so-called “mentorship program” that put its salesman in the exam room. To the contrary, Kuhl’s ruling was premised solely on her legally erroneous belief that there could be no invasion of privacy as a matter of law because Ms. Sanchez-Scott had not affirmatively objected to the man’s presence or asked why he was there. Sanchez-Scott Transcript, at 2. As far as Judge Kuhl was concerned, the man could have been a janitor in a white lab coat.
Justice Turner’s opinion for the Court of Appeal likewise did not “assess” “competing societal interests” or evaluate the purposes of the “mentorship program,” which was factually irrelevant to the Court of Appeal’s ruling. There was no legitimate purpose for the salesman to be in the exam room, and the court’s opinion never identified one. To the contrary, Justice Turner’s opinion states that “[w]hen the totality of the circumstances of the intrusion is examined . . . we conclude that the complaint alleges highly offensive conduct involving a cancer patient whose breasts were observed by a drug salesperson, whose occupation was never disclosed, during an examination inside the confines of a physician’s office. It bears emphasis that there are specific allegations that plaintiff was never advised as to [the drug salesman’s] role, other than that he was there to watch.” 86 Cal. App. 4th at 377-78 (emphasis added). Justice Turner’s opinion reversing Kuhl’s ruling in Sanchez-Scott remains the best evidence of his and the Court of Appeal’s view of the law and of Kuhl’s unjustifiable dismissal of Ms. Sanchez-Scott’s privacy claim.
1 Letter from Azucena Sanchez-Scott to Senator Orrin Hatch (Mar. 3, 2003). Ms. Sanchez-Scott’s letter goes on to state that she was “shocked and dismayed” by Judge Kuhl’s ruling. Id.
2 Committee on the Judiciary, Nomination of Carolyn B. Kuhl of California to be Circuit Judge for the Ninth Circuit, Unofficial Transcript of Proceedings (Apr. 1, 2003) (hereafter “Kuhl Hearing”), at 72.
3 Reporter’s Transcript, Azucena Sanchez-Scott v. Alza Pharmaceuticals, No. BC 214585 (LA Superior Court, Oct. 12, 1999) (hereafter “Sanchez-Scott Transcript”), at 3.
4 Sanchez-Scott v. Alza Pharmaceuticals, 86 Cal. App. 4th 365, 375-78 (2001).
5 Id., 86 Cal. App. 4th at 376.
6 For example, Kuhl testified that “[t]he claims against the doctor were tort claims for failure to obtain consent from the woman in the examining room that was the doctor’s examination room. . . . And the claim against the third party who came into the room was an invasion of privacy claim.” Kuhl Hearing, at 123. And Kuhl answered “[t]hat is correct” when Senator Hatch asked her “It is my understanding that the particular motion to dismiss that you had granted had nothing to do with the claims against the doctor and that your ruling would have allowed the claims against the doctor to go forward. Is that right?” Kuhl Hearing, at 122-23 (emphasis added). Similarly, in a post-hearing letter to Senator Arlen Specter dated April 15, 2003, Kuhl described the invasion of privacy claim against the drug company as a “separate claim” from the claim against the doctor. Letter from Carolyn B. Kuhl to Hon. Arlen Specter (Apr. 15, 2003)(hereafter “Kuhl Letter to Sen. Specter”), at 2.
7 Letter from Carolyn B. Kuhl to Hon. Orrin B. Hatch (Apr. 29, 2003), at 1 (hereafter “Kuhl Letter to Sen. Hatch”).
8 In her April 15 letter to Senator Specter, Kuhl stated “It is very important to note that my decision allowed that claim [the “tort action against the doctor”] to proceed.” Kuhl Letter to Sen. Specter, at 2. In her more recent letter to Senator Hatch, Kuhl more accurately stated that her dismissal of the privacy claims “left the tort claim for failure to obtain consent against the doctor remaining for trial.” Kuhl Letter to Sen. Hatch, at 1.
9 See Superior Court Case Summary, available at http://www.lasuperiorcourt.org/civilCaseSummary/
10 Kuhl dismissed Ms. Sanchez-Scott’s privacy claims on Oct. 12, 1999; the Court of Appeal’s decision reversing that ruling was issued on Jan. 17, 2001.
11 Similarly, in her letter to Senator Specter, Kuhl stated, “I had to determine [Ms. Sanchez-Scott’s] rights under California law. California law clearly gave her a tort action against the doctor whose responsibility it was to obtain her consent before he invited any other person into the examining room. . . Regarding the separate claim against the drug company representative, the law was less clear . . .” Kuhl Letter to Sen. Specter, at 2.
12 Letter from Justice Paul Turner to Senator Patrick J. Leahy (Mar. 17, 2003) (hereafter “Turner Letter”), at 1.