Appeals court orders Idaho hospitals to respond to secrecy claim

adutton@idahostatesman.comJanuary 17, 2014 

An appeals court has ordered hospitals involved in a federal antitrust trial to respond to claims by Idaho news organizations that testimony and documents in the trial have been unjustly kept from the public.

Judges from the U.S. Court of Appeals for the 9th Circuit filed an order Thursday giving St. Luke's Health System, Saint Alphonsus Health System and other parties in the trial 14 days to respond. The court said news organizations' complaint about secrecy in the trial "raises issues that warrant a response."

"This means they find our concerns are at least legitimate and well-founded and deserve to be addressed," said Charles Brown, the Idaho attorney for the news groups.

The appeals court said U.S. District Judge B. Lynn Winmill, who oversaw the trial, "may file a response if [he] so desires."

Before the trial last fall, Winmill allowed the hospitals, health insurance companies and private employers to designate parts of the court proceedings "attorneys' eyes only."

St. Luke's Health System is accused of building a monopoly on health care in the Nampa area by buying Saltzer Medical Group and employing its doctors — a deal St. Luke's opponents say harmed competition for primary health care in that area.

The lawsuit was filed last year by St. Luke's competitor Saint Alphonsus Health System and a Boise surgical center, Treasure Valley Hospital. The Federal Trade Commission and Idaho Attorney General Lawrence Wasden later joined the lawsuit.

During the trial, which ran from late September to early November, news organizations — including the Idaho Statesman, the Associated Press, the Times-News in Twin Falls, the Idaho Press-Tribune in Nampa, the Lewiston Tribune and the Idaho Press Club — filed a request to open testimony and documents, saying more than half of the first week of testimony happened behind closed doors, and even when doors were open some testimony and documents were blocked from public view.

Winmill considered that request and decided the attorneys in the trial must explain why certain parts of the trial needed to be sealed to protect trade secrets. He said "trade secrets" include documents and testimony that could reveal how a health insurance company, hospital or physician practices makes and negotiates contracts, how much a company pays and its future plans.

The businesses that filed "attorneys' eyes only" designations included Micron Technology, Primary Health Medical Group and private health insurance companies. Those businesses opposed the news organizations' request, saying they were not parties in the lawsuit and had revealed trade secrets when they testified and showed documents to the court.

The news organizations determined that Winmill had not enforced his ruling. The organizations appealed to the 9th Circuit after the trial had ended.

The arguments "routinely just set forth the entity's desires and opinions as to what it wants to be removed from public view, but none of them reveal to this court nor the lower court 'compelling reasons' to do so," Brown wrote to the appeals court.

He noted that more than 575 exhibits were sealed and argued that consumers should be given a window into the health care industry.

Audrey Dutton: 377-6448, @IDS_Audrey

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