Lawyer: secrecy needed to preserve customer confidence in defendants’ medical company
‘It’s simply a family matter between three people, who all agree [the file] should be sealed,’ said the plaintiff’s lawyer, Timothy S. Brignole, who is jointly supporting the bid for secrecy.
By Thomas B. Scheffey
Law Tribune Staff Writer
On May 2, the lawyer for an Enfield couple who founded a $10 million-a-year medical company urged Hartford Superior Court Judge Robert E. Beach Jr. to completely seal a civil case brought by their allegedly abused son, who is seeking $250 million in damages.
The bid for secrecy isn’t to protect the parents’ individual reputations as much as it is to protect customer confidence in their company’s products, which their clientele need for their survival, defense lawyer Patrick Tomasiewicz insisted.
Tomasiewicz, of West Hartford’s Fazzano, Tomasiewicz & Paulding, described young Miroslav Colburn’s claims against Donald E. Colburn and his wife, Kathy Ann Keeney, as “extremely harmful allegations of the worst kind-if proven to be true.”
Tomasiewicz said the couple’s business is a unique New England medical service serving a community that, “if they don’t get the products they need, they will die.” Exposing the case against Donald Colburn and Keeney to public view, he argued, could cause customers and employees of the company to “lose confidence, lose faith,” and diminish loyalty to the company. People might question “whether the medical products are safe or whether my client is competent to run the company,” he said.
An Internet search disclosed that Donald Colburn and Keeney founded American Homecare Foundation, or AHS. Its extensive web site says it distributes clotting factor supplies to customers with hemophilia. Donald Colburn is described as a severe hemophiliac, who has parlayed a lifetime of national activism in the bleeding disorder community into the nation’s “most imitated” company distributing clotting factor supplies.
Hartford lawyer Timothy S. Brignole represents Miroslav Colburn. He said the case was originally filed listing all the parties’ names at the request of the son. “He was angry about what happened and wanted every newspaper in the state to be able to see it,” said Brignole. He declined to disclose the nature of allegations, but said the complaint and request for a prejudgment remedy lien are supported by affidavits explaining the allegations “in minute detail.”
“I think the judge is going to agree to seal the file,” Brignole predicted. “It’s simply a family matter between three people, who all agree it should be sealed.”
The case was provisionally sealed when it came to Beach in his role as the judge who handles emergency ex parte motions. The judge opened the May 2 hearing on the motion to seal the file by asking, “Mr. Tomasiewicz, tell me why you think the private interest in confidentiality overrides the public interest in disclosure, and whether there are any less restrictive means,” such as redaction of certain materials, sealing of individual documents or use of pseudonyms.
Tomasiewicz replied that the dollar figure being sought in the PJR is “an eight-figure amount, in excess of $100 million-a small percentage of our federal budget.” He said that in family matters, such as the divorce of former General Elctric Co. CEO Jack Welch, financial affidavits had been “routinely sealed” for reasons less compelling.
In truth, before court rule changed in 2003, financial affidavits in CT divorce cases were not routinely sealed. Welch’s much-publicized affidavit is exhibit A for that.
Without identifying his clients’ company directly, Tomasiewicz emphasized its importance to its customers, and the role it plays in supplying a “unique” service. Beach asked, “How would disclosure of the file threaten the business?” “Oh my goodness!” Tomasiewicz responded. He said the company could lose its customers’ loyalty, faith and confidence, and its “standing” to deliver medical products. Furthermore, the amount in demand, he said, “is like an antitrust action against the phone company.”
Beach asked whether a suit arising from a car wreck, with enormous dollar damages, would be comparable: “Would we be sealing any auto case?”
“Unequivocally, no”, Tomasiewicz replied.
Beach said he understood “the allegations in the complaint are a little unusual,” and that they could arguably diminish confidence in the company. On the other hand, “Why shouldn’t customers and the public have that information available, if it’s true? Isn’t that some small part of the reason our proceedings are presumptively public?”
Tomasiewicz cited the sealed court file of former state Rep. Jeggerson Davis, of Pomfret. In that 2003 decision, Davis sought to have 17 paragraphs of a 70-paragraph arrest warrant affidavit redacted. They supported his arrest for sexual assault and risk of injury to a minor placed in his care by the state Department of Children and Families. Windham Superior Court Judge Francis J. Foley III concluded that the only way Davis could be guaranteed a fair trial-and the minor victim could be protected-was to seal the arrest warrant affidavit in its entirety.
Tomasiewicz’s final argument was that the file should be sealed because the parties have agreed to do so. The son’s change of heart about whether the file should be public or sealed occurred when the couple agreed to make support payments to the young man while the litigation is pending. “This protective order was contracted to,” he said, and if the file isn’t sealed, it could “unravel the agreement to attach assets. Not only did they contract for it, the entire family unit is asking for it,” Tomasiewicz said.
Beach, who has yet to act on the request, still had reservations. “Sealing a file is a pretty drastic step,” he said.