Slander claim dismissed; libel claim proceeds

"That's where they murdered our daughter," muttered Frank Lockwood during a visit to the medical facility where his daughter had stopped breathing weeks earlier during a routine, outpatient procedure.

Nobody heard his off-the-cuff comment except employees of the Nevada Imaging medical facility, but the company sued the grieving father for slander.

The words behind the lawsuit were not publicly revealed until Wednesday when a Review-Journal reporter was able to attend a hearing in a case previously kept secret from the public -- one of 115 sealed civil lawsuits identified in a recent investigation by the Review-Journal. The times and places of hearings in sealed cases are purposely left off the Clark County District Court docket, but the Review-Journal learned of this one.

After hearing arguments for summary judgment, District Judge Valorie Vega dismissed the slander claim over Lockwood's extemporaneous remark, saying the oral statement had not been overheard by a third party. But she allowed a separate libel claim over contents of a Web site and various letters to move forward.

Tina Lockwood McCarley, 44, stopped breathing while undergoing a CAT scan to diagnose back pain in January 2004 at the Nevada Imaging facility in Peccole Ranch. She was resuscitated but died several days later at a local hospice. McCarley's death was one of the rare cases in which the Clark County coroner's office listed the cause of death as "undetermined," making it unclear whether anyone was responsible for her death.

After noting that nobody outside the Nevada Imaging office heard Lockwood's "murder" remark during a visit in June 2004, Vega dismissed the slander claim.

Earlier in the hearing, Kevin Diamond, the Lockwoods' attorney, argued that the comment was Frank Lockwood's opinion rather than a statement of fact. "The Lockwoods can't be punished for giving their First Amendment opinion about what happened to their daughter," Diamond told the judge.

However, Vega did not dismiss a defamation claim that Nevada Imaging included in its lawsuit against Frank and Audrey Lockwood and their daughter's surviving sibling, Tammy Reed.

The company's attorney, Linda Rurangirwa, argued Wednesday that the elderly couple intentionally set out to ruin Nevada Imaging's reputation by mailing out to similar companies a package that included questions about medical procedures, such as the one performed on their daughter, and disparaging comments about Nevada Imaging's practices.

Some who received the Lockwoods' correspondence then posted comments on a Web site Tammy Reed established as a memorial, Rurangirwa said. The lawyer argued that the comments posted on the Internet hurt the company's reputation on a national level.

"This was clearly an effort to ruin the reputation of Nevada Imaging ..." Rurangirwa told the judge. "The statements made by the Lockwoods are statements of fact and not just opinion."

The case is expected to go to a settlement conference before the next court hearing scheduled for late June.

Diamond and Rurangirwa both declined to discuss the lawsuit.

They said they were prohibited from commenting because the case was sealed, and Diamond said he didn't know whether Vega should have excluded the press from Wednesday's hearing since an unknown judge ordered the case sealed the same day the lawsuit was filed in May 2005.

"I thought the judge was going to kick everyone out of the court hearing because that is what she is supposed to do when the case is sealed. We didn't want to be held in contempt of court" by commenting to the press on a sealed case, Diamond said after the hearing.

The lawsuit against the Lockwoods was one of several highlighted by the Review-Journal in a series published in February about Clark County District Court judges sealing from public view at least 115 lawsuits between 2000 and late 2006. Unlike many thousands of other lawsuits filed each year, no information about sealed lawsuits is available to the public, including the name of the judge who sealed the case or the dates of upcoming court hearings.

However, the Review-Journal was provided with the identities of litigants in each of the 115 cases. They include people and organizations that are wealthy or wield influence in politics, business, medicine and the courts.

The hearing in the Lockwood case comes at a time when state lawmakers are considering a proposal that would limit judges' authority to seal civil cases, and as the state Supreme Court has begun forming a committee to examine problems associated with the sealing of court records and public access to court records.

In the Lockwood case, Diamond and Rurangirwa said they didn't know which judge sealed the case two years ago, but they said it was Nevada Imaging that requested the case be sealed and that the Lockwoods were not allowed any input on that decision.

Rurangirwa said Nevada Imaging asked that its lawsuit against McCarley's survivors be sealed in order to protect the confidentiality of McCarley's medical records, even though McCarley had been dead more than a year when the lawsuit was filed. "We are being very careful," she said.

"That was done before we got involved with the case," Diamond said of the decision to seal the case.

With a reporter sitting in the front row of Vega's courtroom and a pending request to allow a newspaper photographer in the courtroom, the judge didn't mention that the case had been sealed from public view, and Nevada Imaging's attorney didn't ask the judge to remove the media from the hearing, which lasted approximately 20 minutes.