McGraw, J., dissenting:
I fail to see how something that is no longer privileged, because it was
published, or a doctor waived his or her privilege, can ever become privileged again. While
the Circuit Court of Grant County theoretically could have sealed the information, if it did
not seal it, I do not believe the Circuit Court of Kanawha County would have that power in
Unless one entitled to a privilege assiduously guards it by requesting protective
orders when confidential information is used in open court, I cannot see how a second court
could recover the lost confidentiality. Simply stated, short of mass hypnosis, the genie
can't be put back in the bottle.
For the reasons stated, I must respectfully dissent.