Legal Notices

Financial Terms of Mediated Wrongful Death Settlements, To Be Court-Approved, Cannot be Confidential

Through mediation, four separate wrongful death actions were settled.  Each claim asserted that the decedent’s death resulted from the administration during open-heart surgery of an improperly formulated or contaminated solution manufactured and distributed by Central Admixture Pharmacy Services (“CAPS”).  All parties agreed, in the settlement agreements, to keep the terms, and specifically the financial terms, of the settlements confidential.  A Fredericksburg newspaper, however, petitioned to intervene, in an effort to obtain full information relating to the settlements.  The Supreme  Court of Virginia concluded in Perreault v. The Free Lance-Star, 276 Va. 375 (2008), that a party seeking approval of the compromise settlement of a wrongful death claim must file with the Court a written petition that includes the complete and un-redacted terms, including the financial terms, of the compromise settlement.

In reaching this decision, the Court addressed the interplay among the application of Code § 8.01-55, relating to court approval of wrongful death settlements; § 8.01-581.22, which provides for the confidentiality of mediation proceedings; and § 17.1-208, which provides that “any records and papers of every circuit court that are maintained by the clerk of the circuit court shall be open to inspection by any person….”  The Court concluded that the written petition, which must include the complete un-redacted terms of the parties’ compromise settlement, comes within the statutory presumption of openness to the public contained in Code § 17.1-208.  And the Court further determined that the confidentiality provisions allowed, but not required, by Code § 8.01-581.22 in mediation proceedings do not trump the requirement of Code § 8.01-55 for an un-redacted settlement petition and the statutory presumption of public openness provided by § 17.1-208, in the context of this case – in other words, the records of court approval of the compromise settlements of wrongful death claims achieved through mediation cannot be sealed, redacted, or confidential.

Thus, even though all parties to these wrongful death settlements desired and argued for confidentiality of the settlement agreements, the Supreme Court of Virginia adopted the arguments of the newspaper intervenor and remanded the case to the Circuit Court, with the direction that the records of the settlements be unsealed or that un-redacted versions of the settlements be entered into the record, as appropriate in each of the four cases.  In light of this Perreault decision, a Circuit Court can no longer approve a wrongful death settlement unless the petition seeking approval contains the complete terms, including the financial terms, of the parties’ compromise agreement – even if all parties request confidentiality.