Rutz v. Novartis Pharmaceuticals Corporation

Filing 166

ORDER. For the reasons explained in the attached order, Defendant's Motions in Limine at Doc. 153 , Doc. 163 , and Doc. 164 are DENIED as untimely. Defendant's Motion for Leave to File Under Seal (Doc. 152 ) is DENIED, and the Court DIRECTS the Clerk to DELETE Defendant's prematurely-sealed documents (Docs. 149--51) from the record. Signed by Judge Michael J. Reagan on 4/8/2013. (jls)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHRISTOPHER RUTZ,

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Plaintiff,
vs.
NOVARTIS PHARMACEUTICALS
CORP.,
Defendant.

Case No. 12–cv–0026–MJR–PMF

ORDER
REAGAN, District Judge:
In January 2012, this pharmaceuticals liability case was remanded to this district from
an MDL docket in the Middle District of Tennessee. On November 9, 2012, the undersigned judge
held a hearing on four motions challenging the admissibility of certain evidence under Federal Rule
of Evidence 702 and Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993). Those motions were
resolved by an order dated December 7, 2012.
Now Defendant has filed eleven motions in limine (Docs. 153–57, 159–64), plus a
motion to seal certain documents offered in support of its motion at Docket No. 154. The Court
will turn first to the motions in limine, then to the issue of whether the three documents identified
by Defendant should be sealed.
1. Motions in Limine requiring Daubert analysis: Denied as Untimely
Defendant’s motions at Docket Nos. 153, 163, and 164 each implicate Federal Rule
of Evidence 702 and Daubert. As the Court’s case management procedures clearly provide, all
Daubert “motions (seeking to exclude expert testimony / evidence) must be filed by the dispositive
motion

deadline,”

not

the

deadline

for

motions

in

limine

See

http://www.ilsd.uscourts.gov/documents/Reagan.pdf. Daubert motions are typically due at
the dispositive motion deadline so the Court has adequate time to research the issues presented,
hold a hearing, and formulate a ruling.
The instant motions in limine were filed on April 4, 2013, over ten months after the
May 29, 2012 deadline for Daubert motions. There is no time available on the Court’s congested
calendar to rule on additional Daubert motions before the May 28, 2013 trial. Defendants’ motions
in limine (Doc. 153, Doc. 163, Doc. 164) are therefore DENIED as untimely.
2. Motion to Seal: Denied
Defendant has moved to seal three exhibits (all of them e-mails or e-mail chains) that
is has submitted in support of its motion in limine at Docket No. 154. Defendant offers two general
reasons for keeping the documents from the public view: the Protective Order in the MDL case
contemplates sealing the documents, and that sealing would be “appropriate” under Federal Rule of
Civil Procedure 26 and Seventh Circuit caselaw, since the emails contain (respectively) “confidential
company research,” an “internal discussion dealing with regulatory issues,” and an internal
discussion that might prove embarrassing to one of Defendant’s sales representative. 1 According to
Defendants’ motion, Plaintiff has informed Defendant that, although he does not agree that the
documents are confidential, Plaintiff does “not wish to litigate that issue now.”
Unfortunately for Defendant, more than just Plaintiff’s interests are at stake here.
The public, which pays for the courts, has an interest in what goes on at all stages of a judicial
proceeding. Citizens First Nat’l Bank of Princeton v. Cincinnati Ins. Co. , 178 F.3d 943, 945
(7th Cir. 1999). Whether the parties consent to sealing the information is beside the point:
dispositive documents in any litigation enter the public record notwithstanding any earlier
In the “embarrassing” email at issue, the sales representative refers to a doctor as a “SCHMENDRICK” (emphasis in
original). According to the Oxford English Dictionary, the term “schmendrick” (alternatively spelled “schmendrik” or
“shmendrik” derives from the name of a character in an operetta by Abraham Goldfaden, and refers to a “contemptible,
foolish or immature person; an upstart, a ‘sucker.’” OXFORD ENGLISH DICTIONARY ONLINE,
http://www.oed.com/view/Entry/172445 (last visited Apr. 5, 2013).
1

agreement. Baxter Int’l, Inc. v. Abbott Labs. , 297 F.3d 544, 545 (7th Cir. 2002) (citing Grove

Fresh Distributors, Inc. v. Everfresh Juice Co. , 24 F.3d 893 (7th Cir. 1994)). The judge stands
as the primary representative of the public’s interest, and may only seal part of a case’s record if
good cause to do so exists. Citizens First Nat’l Bank , 178 F.3d at 945. Once documents have
been used in a court proceeding, they are presumptively open to public inspection unless they meet
the definition of trade secret or other categories of bona fide long-term confidentiality. Bond v.

Utreras , 585 F.3d 1061, 1075 (7th Cir. 2009).
Good cause does not exist here. The first email Defendant seeks to seal contains a
list of agenda items pertaining to a meeting to develop a follow-up form for osteonecrosis of the jaw
(ONJ) related to Zometa, the same drug at issue in this case. See Baxter Int’l , 297 F.3d at 547
(things “vital to claims made in litigation … must be revealed.”). The second, an internal
discussion of regulatory issues, describes an attempt between the FDA and Defendant to
synchronize database information.

And the third contains not only a sales representative’s

conclusion that a doctor is a schmendrick, but also that doctor’s opinion regarding the link between
ONJ and certain drugs.
Defendant’s conclusory contention that the e-mails are “internal analyses and
processes” that constitute “confidential business information” is not enough to outweigh the
citizenry’s interest in public litigation. See Baxter Int’l , 297 F.3d at 547 (“bald assertion” that
confidentiality promotes business interests was insufficient); id. (“[M]any litigants would
like to keep confidential the salary they make, the injuries they suffered, or the price they
agreed to pay under a contract, but when these things are vital to claims made in litigation
they must be revealed.”). Nor are Defendant’s invocations of Federal Rule 26 and the MDL
Court’s Protective & Confidentiality Order persuasive. The documents at issue here are no longer
part of discovery: a party has brought them to bear in seeking a ruling from this Court. Rule 26

governs only discovery matters, and the Seventh Circuit has clearly delineated between the interests
inherent in secrecy agreements during discovery (which expedite that process by avoiding
document-by-document analysis) and the interests triggered when a controversy comes before the
Court. See Baxter Int’l , 297 F.3d at 545 (“Secrecy is fine at the discovery stage, before the
material enters the judicial record. But those documents … that influence or underpin the
judicial decision are open to public inspection unless they meet the definition of trade
secrets or other categories of bona fide long-term confidentiality.”); Bond , 585 F.3d at 1075
(“The rights of the public kick in when material produced during discovery is filed with the
court.”).
Defendant’s Motion to Seal (Doc.

152) is therefore DENIED.

Rather than

ordering the already-submitted documents unsealed, the Court will DENY (Doc. 154) the motion
they are intended to support, and order the sealed documents (Docs 149–51) DELETED from the
record. Defendant is free to re-file (by the close of business on Tuesday, April 10) its motion in
limine, but if it chooses to support it with documentation, it must expose that documentation to the
public view. See id. (“How else are observers to know what the suit is about or assess the
judges’ disposition of it?”).
CONCLUSION
For the foregoing reasons, Defendant’s Motions in Limine (Doc. 153, Doc. 163, and
Doc. 164) are DENIED as untimely. Defendant’s Motion for Leave to File Under Seal (Doc. 152)
is DENIED, and the Court DIRECTS the Clerk to DELETE Defendant’s prematurely-sealed
documents (Docs. 149–51) from the record.
IT IS SO ORDERED.
DATE: April 8, 2013

/s/ Michael J. Reagan ___
MICHAEL J. REAGAN
United States District Judge