Integra LifeSciences Corp. et al v. HyperBranch Medical Technology, Inc

Filing 826

MEMORANDUM ORDER regarding D.I. 816 MOTION to Intervene filed by Marteen Moore. Signed by Judge Christopher J. Burke on 1/25/2021. (dlb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
INTEGRA LIFESCIENCES CORP.,
INTEGRA LIFESCIENCES SALES LLC,
CONFLUENT SURGICAL, INC., and
INCEPT LLC,
Plaintiffs,
v.

HYPERBRANCH MEDICAL TECHNOLOGY,
INC.,
Defendant.

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Civil Action No. 15-819-LPS-CJB

MEMORANDUM ORDER
Pending before the Court in this now-closed patent litigation matter is a motion filed by
Marteen Moore (“Ms. Moore”), a non-party to this action, in which Ms. Moore seeks
“intervention and/or mandamus to request the unsealing of certain court records” in this action
(the “Motion”). (D.I. 816 at cover page) Plaintiffs Integra LifeSciences Corp., Integra
LifeSciences Sales LLC, Confluent Surgical, Inc. (“Confluent”) and Incept LLC (collectively,
“Plaintiffs”) oppose the Motion, as does Defendant HyperBranch Medical Technology, Inc.
(“Defendant” or “HyperBranch”). 1
I.

BACKGROUND
A.

Factual Background
1.

1

Ms. Moore’s Litigation

Defendant provided notice that it joined Plaintiffs’ arguments for denial of the
Motion by way of a filing, which was categorized on the docket as a motion seeking relief. (D.I.
823) The Court, which was referred that “motion” for resolution, (D.I. 825), will consider
Defendant’s filing simply to be a motion seeking permission to join in Plaintiffs’ arguments,
without filing separate briefing in support thereof. It thus GRANTS that motion.

Ms. Moore was the plaintiff in a medical malpractice and products liability action that
she filed in 2007; the case was brought against a number of different defendants including
Confluent, and it was filed in the United States District Court for the Central District of
California (the “Confluent Action”). (D.I. 822, ex. 3) That case related to Ms. Moore’s
participation in a pre-market clinical trial relating to Confluent’s DuraSeal® product. (Id., ex. 4
at 2) During a 2006 surgery, one of Ms. Moore’s surgeons, Confluent’s co-defendant Dr.
Michael Wang, applied DuraSeal on Ms. Moore’s spine. (Id.) Following that surgery, Ms.
Moore developed an infection and, after undergoing a subsequent surgery in 2007, she became
paralyzed. (Id. at 2-3) In the Confluent Action, Ms. Moore alleged, inter alia, that DuraSeal had
contributed to her post-surgical infection and her paralysis. (Id. at 4)
On September, 8, 2009, the District Judge in the Confluent Action granted Confluent’s
motion for summary judgment as to all claims against it. (Id. at 15) The Court found that Ms.
Moore had failed to produce any evidence establishing that DuraSeal had proximately caused her
injuries, which meant that all of Ms. Moore’s claims failed. (Id.) The Confluent Action was
closed on September 21, 2009, when the District Court entered Final Judgment against Ms.
Moore. (Id., ex. 5) Thereafter, in late 2009 and early 2010, the District Court considered and
denied Ms. Moore’s two post-judgment motions for reconsideration or clarification, and also
denied Ms. Moore’s post-judgment motion seeking sanctions against Confluent and its counsel.
(Id., ex. 3 at D.I. 291, D.I. 305, D.I. 339) After denying the latter motion, the District Court
ordered that “Plaintiff’s counsel is hereby warned that unreasonably multiplying the proceedings
in this case may result in the imposition of sanctions” and that “[t]he Court will not entertain any
further attempts by Plaintiff to revisit the Court’s decision to grant summary judgment in this
case.” (D.I. 822 ex. 3 at D.I. 339)

2

Ms. Moore thereafter appealed, inter alia, the District Court’s grant of Confluent’s
summary judgment motion, as well as the district court’s denial of her three post-trial motions
referenced above. (Id., ex. 6 at 2) The United States Court of Appeals for the Ninth Circuit
affirmed the District Court’s decisions on February 25, 2011, via a short memorandum opinion.
(Id. at 4) On May 5, 2011, the Ninth Circuit denied Ms. Moore’s petition for rehearing and for
rehearing en banc, (id., ex. 7), and on Oct. 3, 2011, the Supreme Court of the United States
denied Ms. Moore’s petition for certiorari, see Moore v. USC Univ. Hosp., Inc., 565 U.S. 884
(2011).
2.

The Instant Action

Plaintiffs filed this suit (the “instant action”) in September 2015 against Defendant,
alleging that Defendant’s “Adherus” brand dural sealant and spinal sealant products infringed
certain of Plaintiffs’ patents. (D.I. 1) In the instant action, Plaintiffs alleged that the asserted
patents were necessary in order to make, use and sell their DuraSeal product line, which includes
DuraSeal Exact Spine Sealant. (D.I. 164 at 3, 5) The case was thereafter referred to the Court
by Chief United States District Judge Leonard P. Stark to resolve all matters up through and
including case dispositive motions. (D.I. 15)
In addition to the filing of their Complaint, Plaintiffs also filed a motion for preliminary
injunction (the “PI motion”), (D.I. 8), in which they sought to enjoin Defendant from
commercially using, selling and offering for sale within the United States Defendant’s allegedly
infringing sealant products, (D.I. 164 at 1). In a Report and Recommendation issued on August
12, 2016 (the “August 2016 R&R”), the Court recommended that the PI motion be denied. (Id.
at 61) The parties litigated the case through to a jury trial held in May and June 2018. After the
trial, the District Court entered a Judgment in favor of Defendant and against Plaintiffs on all

3

claims of infringement and invalidity that were addressed by the jury’s verdict, (D.I. 760); after
additional post-trial briefing, the District Court entered a Final Judgment on September 4, 2019,
which affirmed judgment in favor of Defendant as to all claims of infringement and invalidity,
(D.I. 815).
3.

Ms. Moore’s Subpoena

In 2017, Ms. Moore’s counsel performed a search of the national case index and
discovered that Confluent was a plaintiff in the instant action. (D.I. 816, Attachment at 1) Ms.
Moore’s counsel then searched the docket of the instant action and discovered and read the
August 2016 R&R. (Id. at 2) In September 2017 (while the instant action was still being
litigated), Ms. Moore issued a subpoena to counsel for HyperBranch, pursuant to Federal Rule of
Civil Procedure 45. (D.I. 822, ex. 8 at 1; id., ex. 9 at 2) The subpoena sought production of
declarations and documents referenced in the August 2016 R&R, which Ms. Moore asserted
would show that DuraSeal carried an increased risk of causing infection. (D.I. 821 at 5-6; D.I.
822, ex. 8 at 1) After Defendant served objections to the subpoena, Ms. Moore filed a motion
seeking to enforce the subpoena in the Confluent Action (a case that, by that time, had been
closed for over seven years). (D.I. 822, ex. 3 at D.I. 356) Confluent objected to that motion,
(id., ex. 8 at 1), and on February 12, 2019, the District Court in the Confluent Action denied Ms.
Moore’s motion on various grounds, including that the “documents that [Ms. Moore] now seeks
would not . . . show that Dura[S]eal more probably than not caused her injuries” and “would not
establish proximate causation” such that they “would not alter the outcome in this case[,]” (id. at
2-3). Ms. Moore appealed this decision to the Ninth Circuit as well, which affirmed the District
Court’s decision on April 27, 2020. (Id., ex. 9)
B.

Procedural Background

4

On July 6, 2020, the Clerk of Court received a cover letter and the instant Motion; the
Clerk filed the Motion on the docket that same day. (D.I. 816) 2 On July 28, 2020, Chief Judge
Stark referred the Motion to the Court for resolution, (D.I. 819), and briefing on the Motion was
completed on September 1, 2020, (D.I. 824). 3
II.

DISCUSSION
With her Motion, which the Court will consider to be a motion to intervene, Ms. Moore

seeks a Court order unsealing certain documents relating to Plaintiffs’ PI motion. (D.I. 816; D.I.
824) 4 Ms. Moore notes that she identified the list of documents at issue from the August 2016
R&R’s description of “several documents filed by the parties in the sealed record as relating to,
or containing evidence of bad practices or experiences of physicians, surgeons, consumers and
Confluent itself with the Duraseal[] [Ex]act Spinal Sealant.” (D.I. 824 at 15-16; see also, e.g.,

2

Prior to submitting the Motion to the Clerk’s Office, Ms. Moore’s counsel
apparently sent a letter dated June 3, 2020 directly to Chief Judge Stark, in which counsel sought
access to the documents that Ms. Moore had previously subpoenaed from HyperBranch. (D.I.
816, Attachment)
3

Ms. Moore’s Motion includes (as part of the same document) a brief in support of
the Motion. (D.I. 816) Ms. Moore also filed a reply brief. (D.I. 824) The content of the Motion
and the reply brief violate various aspects of, inter alia, District of Delaware Local Rule 7.1.3. It
is important that litigants and their counsel follow the Court’s Local Rules, and failure to do can
result in the Court declining to consider the substance of a litigant’s motion. That said, under the
circumstances here, the Court exercises its discretion to address the substance of the Motion,
despite these violations of the Court’s Local Rules.
4

Federal Rule of Civil Procedure 24(b) states in relevant part that “[o]n timely
motion, the court may permit anyone to intervene who . . has a claim or defense that shares with
the main action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1). Whether to grant a
motion for permissive intervention is discretionary. Brody By & Through Sugzdinis v. Spang,
957 F.2d 1108, 1124 (3d Cir. 1992). Courts have allowed parties to intervene for the limited
purpose of unsealing a judicial record, even “long after a case has been terminated.” Pansy v.
Borough of Stroudsburg, 23 F.3d 772, 778-79 (3d Cir. 1994); Leucadia, Inc. v. Applied
Extrusion Techs., Inc., 998 F.2d 157, 161 n.5 (3d Cir. 1993). The Court GRANTS Ms. Moore’s
request to intervene in this case for this limited purpose.
5

D.I. 816 at 16 (“The records that were sealed, according to [the August 2016 R&R], included
primarily documents obtained in discovery and attached to the declarations of Adam Pivovar,
Esq. and Karen Pascale, Esq. that relate [to] bad experiences with the Duraseal[] product in the
relevant time period.”)) According to Ms. Moore, if she had access to the content of these
documents, that might allow her to “move the district court in California to reopen the action for
discovery and for trial” as it will enable her to “contact surgeons who are identified therein as
having proof that Duraseal[] injured their patients” and to then “engage these surgeons as her
expert opinion witnesses, and to obtain the objective evidence of causation of her injuries to
other patients for a basis for expert opinion testimony.” (D.I. 816 at 3) More specifically, Ms.
Moore requests that the Court unseal the following “specific” documents: 5

5

Ms. Moore’s opening brief begins by requesting “the unsealing of the records of
the court filed in support of, and opposition to, the motion for preliminary injunction herein[,]”
which could be broadly read as requesting that all such records be unsealed. (D.I. 816 at 1; see
also id. at 17, 18) Indeed, that is how Plaintiffs appear to have interpreted Ms. Moore’s Motion.
(D.I. 821 at 3 (“Unsealing the entire preliminary injunction record in this action would
needlessly expose the parties’ Confidential and Highly Confidential discovery materials, causing
them competitive injury, with absolutely no countervailing benefit to Moore.”)) But in her reply
brief, Ms. Moore requests only that a certain “specific” subset of documents be unsealed (those
listed below)—a “middle ground between unsealing all of the documents or unsealing none of
the documents[.]” (D.I. 824 at 5, 16) Accordingly, the Court here focuses on Ms. Moore’s
narrowed request.
Ms. Moore’s opening brief had also expressly requested that the transcript from the
hearing on the PI motion be unsealed. (D.I. 816 at 1) (A redacted, publicly available version of
this transcript is and has been available on the docket at docket entry no. 174.). After Plaintiffs’
answering brief attached the redacted, publicly available version of that transcript as an exhibit,
(D.I. 822, ex. 1), Ms. Moore’s counsel then reviewed it, (D.I. 824 at 9 n.3). And Ms. Moore’s
reply brief does not appear to further press for the redacted portions of the transcript to be
unsealed. (D.I. 824) This is understandable, as those redacted portions amount to less than a
page of the 240-page transcript and had nothing to do with “bad experiences” with DuraSeal (as
presumably Ms. Moore’s counsel could tell from reviewing the redacted transcript, including the
text surrounding the redacted portions). (See D.I. 163; D.I. 821 at 11) So the Court will not
further consider the PI motion transcript issue here.

6

1.

Declaration of John Tew M.D. filed with the court in
connection with the motion for preliminary injunction, esp.
¶¶ 4, 6-8, 9, 10-11, 13 [“Tew Declaration”];

2.

Deposition transcript of John Tew M.D. [“Tew
Deposition”] . . . ;

3.

Declarations of Alexander West M.D. [“West Declaration”]
. . . ;[ 6]

4.

Deposition transcript of Alexander West M.D. [the “West
Deposition”] . . . [;]

5.

First Declaration of Adam Pivovar, and Ex[hibit] M
thereto[;]

6.

Second Declaration of Adam Pivovar, and Exhibits FF,
HH, KK, MM thereto[;]

7.

First Declaration of Karen Pascale, and [] [E]xhibit 3 [(the
“Lenox Declaration”)] thereto[; and]

8.

Second Declaration of Karen Pascale, and Exhibit 8 [(the
“Lucas Declaration”)] thereto.

(D.I. 824 at 16-17)
Ms. Moore’s Motion is premised on the notion that the above documents are sealed.
However, most of the documents listed above—all of those except for (5) and (6)—are not
sealed on the docket, as is set out below:
•

The Tew Declaration is docket entry no. 98, and it is not
sealed;

•

The Tew Deposition is docket entry no. 184, exhibit 3, and
it is not sealed;

6

Ms. Moore’s briefing refers to “Declarations” of Alexander West M.D.[,]” (D.I.
824 at 17), but there is only one declaration of Dr. West. The portion of the August 2016 R&R
that Ms. Moore cites in support of her request for this document refers to only one declaration of
Dr. West. (D.I. 164 at 49-50 (cited in D.I. 824, Attachment at 1))

7

•

The West Declaration is docket entry no. 99, and it is not
sealed;

•

The West Deposition is docket entry no. 184, exhibit 4, and
it is not sealed;

•

The Lenox Declaration is docket entry no. 10, exhibit 3,
and it is not sealed (nor is the First Declaration of Karen
Pascale, to which the Lenox Declaration is attached); and

•

The Lucas Declaration is docket entry no. 184, exhibit 8
and it is not sealed (nor is the Second Declaration of Karen
Pascale, to which the Lucas Declaration is attached).

Ms. Moore’s Motion is thus DENIED AS MOOT with respect to these documents.
The remaining two sets of documents listed above are sealed on the docket of the instant
action: Exhibit M of the First Declaration of Adam Pivovar (found at docket entry no. 102) and
Exhibits FF, HH, KK and MM of the Second Declaration of Adam Pivovar (found at docket
entry no. 151). The Court will first set out the legal standard applicable to the unsealing of
judicial records, and will then turn to these documents.
A.

Legal Standard

It is well-settled that the public has a common law right of access to judicial proceedings
and records. See Littlejohn v. BIC Corp., 851 F.2d 673, 677–78 (3d Cir. 1988) (noting that the
public’s right to such access is “beyond dispute”) (internal quotation marks and citation omitted);
accord United States v. Martin, 746 F.2d 964, 968 (3d Cir. 1984). The public’s right of access
extends beyond the ability to attend court proceedings, and includes the right to inspect and copy
public records, including judicial records (i.e., those documents filed with the court, or
documents otherwise incorporated into a court’s adjudicatory proceedings). In re Cendant
Corp., 260 F.3d 183, 192 (3d Cir. 2001). The United States Court of Appeals for the Third
Circuit has explained that this common law right of access, which carries with it a “strong

8

presumption” in favor of public access to judicial records, applies to pretrial motions of a
nondiscovery nature and the material filed therewith. Id. at 192-93; Leucadia, Inc. v. Applied
Extrusion Techs., Inc., 998 F.2d 157, 164-65 (3d Cir. 1993) (explaining that the presumptive
right to public access applies to material submitted in conjunction with a motion for preliminary
injunction).
A district court has the power to unseal previously-sealed documents through its general
discretionary powers. United States v. Wecht, 484 F.3d 194, 211 (3d Cir. 2007); United States v.
Smith, No. 3:02-CR-00221, 2020 WL 4353565, at *2 (M.D. Pa. July 29, 2020). The common
law right of access is not absolute, however, and may be rebutted. In re Avandia Mktg., Sales
Practices & Prods. Liability Litig., 924 F.3d 662, 672 (3d. Cir. 2019). “Despite the presumption
[of public access], courts may deny access to judicial records, for example, where they are
sources of business information that might harm a litigant’s competitive standing.” Littlejohn,
851 F.2d at 678. The party seeking to overcome the presumption of access to maintain the seal
has the burden of showing that the “interest in secrecy outweighs the presumption.” Avandia,
924 F.3d at 672 (internal quotation marks and citation omitted); see also, e.g., Dobson v. Milton
Hershey Sch., 434 F. Supp. 3d 224, 234 (M.D. Pa. 2020). In doing so, the party must show that
the “material is the kind of information that courts will protect and that disclosure will work a
clearly defined and serious injury to the party seeking closure.” Avandia, 924 F.3d at 672
(internal quotation marks and citation omitted). The Court must then determine if the harm from
the articulated injury outweighs the presumption of access. Pa. Nat’l Mut. Casualty Ins. Grp. v.
New Eng. Reins. Corp., — F. App’x —, 2020 WL 7663878, at *1 (3d Cir. Dec. 24, 2020). To
overcome the strong presumption of public access, courts must identify “the compelling,
countervailing interests to be protected, make specific findings on the record concerning the

9

effects of disclosure, and provide[] an opportunity for interested third parties to be heard.”
Avandia, 924 F.3d at 672-73 (internal quotation marks and citation omitted). “[A] person’s
motive for inspecting or copying judicial records is irrelevant under the common law right of
access.” Id. at 677.
B.

Sealed Documents

Ms. Moore requests that Exhibit M of the First Declaration of Adam Pivovar (found at
docket entry no. 102) be unsealed. 7 As described in the August 2016 R&R, this document is a
“March 2013 Covidien DuraSeal Sealant Applicator Market Assessment[.]” (August 2016 R&R
at 51 (cited in D.I. 824, Attachment at 2)) Ms. Moore also requests that Exhibits FF, HH, KK
and MM of the Second Declaration of Adam Pivovar (found at docket entry no. 151) be
unsealed. 8 As described in the August 2016 R&R, these documents constitute e-mail exchanges
between Covidien employees discussing problems associated with DuraSeal. (Id. at 11 (cited in
D.I. 824, Attachment at 2)) Covidien is Confluent’s prior owner (the company has subsequently
been acquired by Medtronic, Inc. (“Medtronic”)); it is not a party to the instant action. (Id. at 3
& n.1)
There has been no showing that public disclosure of these particular documents would
work a clearly defined and serious injury to anyone. 9 (D.I. 821; D.I. 823) Indeed, in the August

7

To the extent Ms. Moore also requests that the actual First Declaration of Adam
Pivovar be unsealed, (D.I. 824 at 17), it is located on the docket, in unsealed form, at docket
entry no. 599.
8

To the extent Ms. Moore also requests that the actual Second Declaration of
Adam Pivovar be unsealed, (D.I. 824 at 17), it is located on the docket in unsealed form at
docket entry no. 609.
9

The thrust of Plaintiffs’ answering brief in opposition to Ms. Moore’s Motion is
that the documents requested to be unsealed are irrelevant to the Confluent action. (See D.I. 821
at 3, 8-9) Indeed, the District Court in the Confluent Action has suggested that documents such
as those at issue here would not make a difference in the outcome of that case. (D.I. 822, ex. 4 at
10

2016 R&R, the Court quoted extensively from these documents, particularly as to portions of the
documents that discuss problems with Duraseal. Before the August 2016 R&R became publicly
available, Plaintiffs moved the Court to redact these references to the documents from the
Court’s opinion (the “motion to redact”). (D.I. 167, ex. A at 11, 50-52) In doing so, Plaintiffs
explained that “[b]ecause the [August 2016 R&R] is under seal, counsel for Medtronic/Covidien
have not been permitted access to it, and therefore Medtronic/Covidien has had no opportunity to
present its objections to the public disclosure of its highly confidential information quoted and
described therein” and that therefore “Plaintiffs’ requested redactions . . . include[d]
Medtronic/Covidien highly confidential information[.]” (D.I. 166 at 3) The Court thereafter
denied Plaintiffs’ motion to redact and gave Plaintiffs one final chance to make a stronger
showing with respect to any requested redactions regarding the August 2016 R&R. (August 24,
2016 Oral Order) Additionally, the Court entered an order permitting Plaintiffs to provide
counsel for Medtronic/Covidien a copy of the August 2016 R&R, so that Medtronic/Covidien
could have the opportunity to seek any redactions it felt were warranted by law. (D.I. 168)
Plaintiffs subsequently filed a revised motion to redact portions of the August 2016 R&R, in
which they “re-evaluated and substantially reduced their requested redactions” after receiving
input from, inter alia, counsel for Medtronic/Covidien. (D.I. 180 at 2) These requested
redactions no longer included the August 2016 R&R’s references to the above documents at
issue. (Id., ex. A) Thus, the Court’s references to (and quotations from) these exhibits in the
August 2016 R&R were unredacted in the publicly available version of that opinion. (D.I. 179)

15; id., ex. 8 at 2-3) The Third Circuit, however, has instructed that a party’s motive for seeking
to unseal judicial records is irrelevant under the common law right of access. Avandia, 924 F.3d
at 677; Leucadia, 998 F.2d at 167. The Court therefore declines to consider this “relevance”
argument in assessing the Motion.
11

On this record, then, the Court cannot conclude that any harm from disclosure of the
documents at issue outweighs the “strong presumption” in favor of public access to judicial
records. Cf. In re Application of Storag Etzel GmbH, Misc. C.A. No. 19-mc-209-CFC, 2020 WL
2949742, at *29 (D. Del. Mar. 25, 2020) (“After material appears unsealed on the a court’s
docket, and therefore in the public domain, there are little, if any, plausible justifications for
subsequently sealing the same material.”). That said, the Court is cognizant that the documents
at issue are Medtronic/Covidien’s documents, and that the documents contain material other than
that excerpted in the Court’s August 2016 R&R. Fairness dictates that Medtronic/Covidien be
given some opportunity to weigh in before the entirety of those documents is unsealed, in the
event that Medtronic/Covidien is unaware of this Motion. See Avandia, 924 F.3d at 672-73
(noting that in assessing disputes over the common law right of access, the Court must “provide[]
an opportunity for interested third parties to be heard”) (internal quotation marks and citation
omitted). In its order below, the Court will allow for that opportunity.
III.

CONCLUSION
For the reasons set out above, the Court ORDERS that Ms. Moore’s Motion be

GRANTED-IN-PART and DENIED-IN-PART as MOOT. As to the documents at issue in the
Motion that are already publicly available, the Court need take no further action. As to Exhibit
M of the First Declaration of Adam Pivovar (found at docket entry no. 102) and Exhibits FF,
HH, KK and MM of the Second Declaration of Adam Pivovar (found at docket entry no. 151),
the Court ORDERS that, absent any further order of the Court in the interval, on February 26,
2021, the Clerk of Court should take action that results in these documents being made publicly
available on the docket. In the interval, counsel for Plaintiffs and Defendant are directed to
jointly provide a copy of this Memorandum Order to counsel for Medtronic/Covidien by no later

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than January 27, 2021. If Medtronic/Covidien seeks to maintain any portion of these
documents under seal, then by no later than February 3, 2021, it shall file with the Court: (1) a
one-page motion seeking such relief; and (2) a letter brief, of no more than four (4) single-spaced
pages, setting out support for such a position, in line with the legal precedent set out above. To
the extent that Medtronic/Covidien does so, any party to this Motion may file a response to
Medtronic/Covidien’s position via a letter brief of no more than four (4) single-spaced pages, by
no later than February 10, 2021. Medtronic/Covidien may file a reply letter brief, of no more
than two single-spaced pages, by no later than February 16, 2021.

Dated: January 25, 2021

____________________________________
Christopher J. Burke
UNITED STATES MAGISTRATE JUDGE

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