WVU Hospitals seeks stay in bathroom camera lawsuit pending criminal trial
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MORGANTOWN - Legal counsel for West Virginia University Hospitals Inc. and West Virginia United Health System Inc. attest that the class action lawsuit brought against both after recording devices were found in hospital bathrooms should not proceed until the alleged perpetrator's criminal trial has concluded.
On June 26, hospital employees at Ruby Memorial Hospital discovered a digital recording device beneath a sink inside a staff restroom.
Following an examination of the device and additional investigative efforts, law enforcement identified physician Lance Parks as the individual who placed the device, which investigators determined contained video footage depicting eight hospital employees who had been unknowingly recorded while partially nude.
Days later, a second device was located in a clogged toilet in another nonpublic, staff restroom.
Parks was subsequently fired and arrested. He is facing eight misdemeanor counts of criminal invasion of privacy based on the footage found on the initial camera, and one felony count of distribution and exhibiting computer-generated child pornography tied to evidence turned up during the execution of a search warrant at his residence.
On Sept. 1, a class action lawsuit was filed against West Virginia University Hospitals Inc. and West Virginia United Health System Inc. by an individual identified only as P.J.P. on behalf of herself and other individuals who were unknowingly recorded by the bathroom devices.
The lawsuit presented eight causes of action: Invasion of privacy; breach of confidentiality; violation of the West Virginia Human Rights Act; violation of the West Virginia Constitution; negligent supervision, hiring and retention; negligent infliction of emotional distress; violation of the West Virginia Wiretapping and Electronic Surveillance Act; and negligence.
"The Defendants owed a duty to Plaintiff and other employees to provide a reasonably safe facility, to properly hire, train and supervise its employees, as well as to see that employees were not subjected to invasion of privacy or other such conduct while at their place of employment," the lawsuit states. "The Defendants negligently and grossly breached these duties by failing to provide a reasonably safe environment protected from breaches of privacy at Ruby Memorial to Plaintiff and other employees."
Legal counsel for the defendants has since filed a pair of motions in response to the lawsuit.
On Oct. 15, a motion was filed asking the court to stay the civil suit, including all discovery and the class-certification process, pending final resolution of the criminal proceedings against Parks.
The motion states that Parks, the central witness, will certainly invoke his privilege against self-incrimination in response to questioning in the civil suit, and that the core evidence at question in the case (cameras, recordings, etc.) is in the possession of law enforcement.
"Proceeding with discovery now would force Defendants to defend themselves without access to the evidence or the testimony of the one person whose conduct is at issue, invite duplicative and piecemeal discovery, and risk interference with the criminal process,” the motion states.
It later notes, "the criminal process controls the evidence on which discovery in this case depends. Law enforcement's forensic examination of the seized devices and media is the only way the parties can determine who, if anyone, the devices recorded. That determination goes to the heart of whether Plaintiff has suffered any injury at all, and to the definition of the putative class, which by its own terms consists only of persons 'recorded.'"
The following day, Oct. 16, a second motion was filed, this one seeking “a more definite statement.”
Legal counsel for the defendants points out that the plaintiff filed the action using only her initials but has not obtained leave of the court to proceed pseudonymously.
"As a result, neither Defendant knows Plaintiff's identity. Compounding that problem, the complaint consistently lumps both Defendants together as a single, undifferentiated unit, making it impossible for either Defendant to determine, among other things, whether it is the entity that allegedly employed Plaintiff or engaged in the conduct she attributes to ‘Defendants.’ Without knowing who Plaintiff is, neither Defendant can investigate those questions or reasonably admit or deny her allegations."
The motion also notes the defendant's claim included no facts identifying which restroom or restrooms she allegedly used, when she used them, the period during which she contends any recording occurred, or what recordings or images of her may exist, if any.
"Without a more definite statement, Defendants are left to guess at the allegations they must admit, deny or defend against."
According to the motion, the defense is not seeking to publicly expose the defendant's identity, but is asking the court to order the plaintiff to file a more definite statement that includes, at a minimum: The plaintiffs full legal name (even if filed under seal or disclosed subject to an appropriate protective order); the specific nonpublic restrooms in which plaintiff alleges she was recorded; the dates, or approximate time period, during which plaintiff alleges she was recorded; an answer as to whether the plaintiff alleges that she was in fact captured on a recording or merely believes she might have been recorded; and, if plaintiff alleges that she was recorded, how she was informed of any such recording.
“Without those foundational facts, Defendants cannot reasonably admit or deny the allegations, assess the viability of Plaintiff’s claims, or determine the defenses available to them.”