The Corner

Another Myth Debunking

From the Committee for Justice, again:


Sen. Barbara Boxer (D-CA):

“This case [Sanchez-Scott v. Alza] shows she [Carolyn Kuhl] is outside the legal mainstream.”


From CFJ’s report, “Carolyn B. Kuhl: Brining Balance to the Ninth Circuit.”

Sanchez-Scott v. Alza Pharmaceuticals, reveals Judge Kuhl’s commitment to the rule of law. Judge Kuhl’s detractors evidently believe that, because the plaintiff in Sanchez-Scott was a sympathetic figure, Judge Kuhl should have ignored the requirements of the law and ruled in her favor. That would mean the end of the rule of law. In order for judges to apply the law fairly and even-handedly, they must interpret legal rules without regard to their emotions or any sympathy they feel for a party. That is why the appellate judge who later reversed Judge Kuhl has written a letter enthusiastically supporting her nomination, and explaining that her ruling was reasonable and unbiased:

“With all respect to those who have criticized Judge Kuhl as being insensitive or biased because of my opinion in Sanchez-Scott, they are simply incorrect.” Indeed, the appellate judge has since conceded that Judge Kuhl’s ruling may have been right, after all: “a strong argument can be made that [Judge Kuhl] 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.”

Everyone agrees that the plaintiff in Sanchez-Scott was not treated appropriately by her physician; the doctor admitted as much in a later letter of apology. But the legal issue was not whether the plaintiff was treated badly, but whether she had a legal claim against a third party who was not responsible for the doctor’s misbehavior. During a scheduled appointment, the plaintiff’s doctor entered the examining room with another gentleman, who was introduced as Mr. Martinez, “a person . . . who was looking at Dr. Polonsky’s work.” (Martinez was a pharmaceutical salesman who was participating in a mentorship program, which even the appellate court agreed was a “well-established and accepted method of providing training to therapeutic sales specialists.”) The plaintiff alleged in her complaint that during the exam, she became flushed and began to fan herself. The doctor took the fan from her and gave it to Mr. Martinez, explaining that it would “give him something to do.” The plaintiff later explained that she became uncomfortable with the situation. But at the time, she did not inform her doctor of her discomfort, and allowed Mr. Martinez to remain in the room for the entire exam. Judge Kuhl therefore found that, the presence of the mentorship participant in the exam room did not meet the standard for an invasion of privacy claim against the pharmaceutical company.

Judge Kuhl’s ruling had nothing to do with the claims against the doctor, and would have allowed to go forward the plaintiff’s tort claim against the doctor for failing to obtain informed consent. Nor did Sanchez-Scott in any way involve an issue of the constitutional right to privacy. Rather, Judge Kuhl was faced with several issues of first impression under California law relating only to the tort of intrusion. When looking to precedent for guidance, Judge Kuhl found that the California Supreme Court had not established a firm rule on the issue of intrusion. The court had suggested that judges must weigh the facts in each individual case: “privacy, for purposes of the intrusion tort, is not a binary, all-or-nothing characteristic.

There are degrees and nuances to societal recognition of our expectations of privacy.” The appellate judge likewise acknowledged in his letter that, “[i]n ruling on the demurrer, Judge Kuhl was required to apply what the California Supreme Court has characterized as degreed and nuanced rules of law involving relative concepts.”

Ultimately, Judge Kuhl concluded that the pharmaceutical representative did not invade the patient’s privacy for two principal reasons. First, Martinez was participating in a mentorship program, whose purpose was to improve the delivery of health care. Second, the patient had effectively consented to the representative’s presence in the exam room. In so ruling, Judge Kuhl carefully applied governing precedent from the California Supreme Court, which had held:

Moreover, the plaintiff in an invasion of privacy case must have conducted himself or herself in a manner consistent with an actual expectation of privacy, i.e., he or she must not have manifested by his or her conduct a voluntary consent to the invasive actions of defendant. If voluntary consent is present, a defendant’s conduct will rarely be deemed “highly offensive to a reasonable person” so as to justify tort liability.

Reasonable people certainly can disagree about whether Judge Kuhl reached the right result in the Sanchez-Scott case—indeed, the appellate judge who reversed her now thinks that she may have been correct. But there can be no disagreement that her ruling represents a scrupulous, reasonable effort to apply a complex and ambiguous body of law. The California Supreme Court has recognized that “the common law right of privacy is neither absolute nor globally vague, but is carefully confined to specific sets of interests that must inevitably be weighed in the balance against competing interests before the right is judicially recognized.” It should come as no surprise that reasonable minds can, and often do, disagree when applying such a shifting standard.


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