United States District Court, N.D. Georgia, Atlanta Division
CHRISTINA NICOLE ADAMS AND CHRISTOPHER L. ADAMS, Plaintiffs,
LABORATORY CORPORATION OF AMERICA, Defendant.
OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Defendant Laboratory Corporation of America's ("Defendant") Motion for Order Governing Pretrial Publicity  ("Motion").
This is a negligence action against Defendant for alleged misinterpretation of five (5) Pap smear tests taken by Ms. Adams' physician from January 2006 through September 2008. In August 2009, Ms. Adams was diagnosed with cervical cancer. Plaintiffs Christina Nicole Adams and Christopher L. Adams ("Plaintiffs") allege that Defendant is liable for the negligence of its employees or agents who misinterpreted the tests and reported inaccurate test results to Ms. Adams' physician. Plaintiffs argue that these alleged misinterpretations delayed the diagnosis of Ms. Adams' cancer, which permitted the cancer to metastasize. Plaintiffs seek damages for injuries suffered by Ms. Adams and for Mr. Adams' loss of consortium.
On September 7, 2010, Plaintiffs filed their Complaint in the State Court of DeKalb County, Georgia. On October 14, 2010, the Defendant removed the DeKalb action to this Court. On November 24, 2014, Thomas John Chapman ("Chapman") and Sean Christopher Domnick ("Domnick, and together, "Florida Counsel"), filed their applications for admission pro hac vice on behalf of Plaintiffs. (Docket Nos. 136, 137). The Clerk approved Florida Counsel's applications on December 4, 2014. Florida Counsel are not licensed in Georgia.
On November 25, 2014, Defendant filed its Motion, requesting that the Court enter an order preventing the parties, their counsel, and their agents from discussing this case with the media or making statements to the media or on the internet, including social media, other than matters of public record. Defendant contends such communications or discussions could interfere with a fair trial, or prejudice one or more of the parties.
Defendant asserts that it filed the Motion in response to the applications for admission pro hac vice filed by Florida Counsel, who Defendant asserts released statements and other highly prejudicial information about the Defendant in another case pending against Defendant in the United States Court for the Southern District of Florida (the "Florida Court") entitled Wisekal v. Laboratory Corporation of America, Case No. 9:12-cv-80806 (the "Wisekal Action"). Defendant cited to several internet links that provide video news segments and articles where Dominick, his client, or both provided allegedly prejudicial statements and information to the public concerning the Wisekal Action.
For example, Defendant refers to a segment named "South Florida Family Claims Lab Misinterpreted Woman's Pap Smear Test, Resulting In Her Death, " (the "South Florida Story"). Motion at 2. The South Florida Story, posted in March 2014, included a video and an article concerning the Wisekal Action. In the article, John Wisekal - the plaintiff and personal representative of the Estate of Darian Wisekal - claimed that the Defendant provided two false negative results on Pap smears that, if performed correctly, would have detected the cervical cancer that ultimately killed Darian. Domnick also is quoted as saying "They misread not only one pap smear slide, but two... I think there's no doubt this happens more than people know about." South Florida Story at 1.
In another segment entitled "Family Blames Medical Lab for Mother's Death, " (the "Family Blames Story"),  Domnick stated that he had the two slides tested again and "[l]o and behold, the slide from 2008 had high-grade abnormalities undisputed by LabCorp" and the 2010 slide "was riddled with cancer. LabCorp missed not one, but two slides." (Family Blames Story at 1). John Wisekal is quoted as saying "I would like to see them change their policies so this does not happen. It's the biggest mistake someone can make. It cost someone their life and two young girls their mother." (Id.).
In an article entitled "False Negative, " Domnick stated "[w]hat [Defendant] should have done was identif[y] the high-grade lesions that were on the slide." (False Negative at 1). In a news segment entitled "Husband Blames Lab for Wife's Death, " ("Husband Blames") Domnick discussed the 2008 and 2010 Pap smear slides, again stating:
We had the slide from 2008 and the slide from 2010 looked at, and lo and behold, the slide from 2008 had high-grade abnormalities on it, undisputed by [Defendant, and the slide from 2010 was] riddled with cancer, so [Defendant] missed not one but they missed two slides.
(Husband Blames at 1:35-1:57).
These news segments and articles were broadcast or released in March 2014, several weeks before jury selection and the beginning of the trial in the Wisekal Action. Defendant identifies additional articles and segments where Domnick, Wisekal, or both provided statements to the media that are allegedly prejudicial. Defendant also asserts that Domnick described the 2010 Pap smear slide, which was ruled inadmissible by the Florida Court.
On December 2, 2014, Plaintiffs filed their Response in Opposition  to the Motion, asserting that Defendant's Motion is unnecessary, as counsel for Plaintiffs agree that Rule 3.6 of the Georgia Rules of Professional Conduct apply in this case. Plaintiffs argue that Defendant merely seeks to prejudice the Court against Florida Counsel. Plaintiffs assert that Defendant did not file any motions in the Wisekal Action regarding Wisekal or Domnick's statements to the media, and that only one potential juror had seen anything with regard to the case and that no jurors were excused based upon pretrial publicity. Plaintiffs assert also that the motion in limine regarding the 2010 Pap smear slide was denied on February 24, 2014, see Wisekal Action at Docket No. 202, and was only revisited by ...