Jayakar MD et al v. Munster Medical Research Foundation Inc et al

Filing 91

OPINION AND ORDER GRANTING IN PART and DENYING IN PART 75 MOTION (Third Party) to Reopen Case to Unseal Docket Entries One Through Thirty-One by Miscellaneous Parties Raymond Kammer, Gloria Sargent, Nancy Gianetta. Court ORDERS that Raymond Kammer, Gloria Sargent and Nancy Gianetta are Intervenors in this cause of action. Clerk DIRECTED to UNSEAL Docket Entries 1 , 4 , 5 , 6 , 9 , 28 , 29 , 30 and 31 and to MAINTAIN UNDER SEAL Docket Entries 2 and 3 . Signed by Magistrate Judge Paul R Cherry on 9/6/16. (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA ex rel.
DAVID JAYAKAR, M.D. and BRIAN
DECKER, R.N.,
Plaintiffs,

)
)
)
)
)
v.
)
)
MUNSTER MEDICAL RESEARCH
)
FOUNDATION, INC., d/b/a THE
)
COMMUNITY HOSPITAL, CARDIOLOGY )
ASSOCIATES OF NORTHWEST INDIANA, )
P.C., and ARVIND GANDHI, M.D.,
)
Defendants.
)

CAUSE NO.: 2:08-CV-350-TLS-PRC

OPINION AND ORDER
This matter is before the Court on a Third-Party Motion to Reopen Case to Unseal Docket
Entries One Through Thirty-One [DE 75], filed by non-parties Raymond Kammer, Gloria Sargent,
and Nancy Gianetta on May 10, 2016. Defendants Cardiology Associates of Northwest Indiana, P.C.
(CANI) and Arvind Gandhi, M.D. filed a Response on May 24, 2016. Defendant The Community
Hospital filed a Response on May 25, 2016. The movants filed a Reply on June 3, 2016. The Court
ordered a Response from the Government, which was filed on June 24, 2016. The movants filed a
Reply to the Government’s Response on June 27, 2016.
Though styled as a motion to reopen the underlying case, the relief requested does not entail
reopening the merits of the case. Rather, the movants ask the Court to unseal documents filed in this
case. Consequently, the Court construes the Motion as a Motion to Unseal. Additionally, the
movants have withdrawn their request to unseal as to docket entries 7, 8, and 10-27. Thus, the issue
left for this Court to resolve is whether docket entries 1-6, 9, and 28-31 should be unsealed.

In the underlying qui tam litigation, it was alleged that Defendant Gandhi, with the
knowledge and assistance of Defendant Munster Medical Research Foundation, subjected many
residents of northwest Indiana to unnecessary heart surgeries and procedures. After the Government
intervened in the litigation, the case was settled on other grounds, and the cause of action was
dismissed without addressing the alleged unnecessary heart surgeries and procedures and their
associated billing.
The movants ask that certain docket entries be unsealed in order for the movants to be able
to verify the accuracy of deposition testimony given by Dr. Pastor Llobet and to obtain additional
information the defendants had in relation to the allegedly unnecessary heart surgeries and
procedures. The movants have filed medical malpractice actions against the defendants named in
the instant litigation, regarding those surgeries and procedures. As a part of discovery in the
movants’ medical malpractice actions, Llobet was deposed. At the deposition, Llobet denied
knowledge of wrongdoing by Gandhi and also denied having been a party in the instant litigation.
The movants believe Llobet’s testimony to be perjured based on testimony from Brian Decker, a
relator in the instant cause of action, and a document received in discovery that the movants believe
to be one of the initial—and currently sealed—filings in the instant litigation.
The documents at issue are:
•
•
•
•
•
•
•
•
•
•

Docket Entry 1: False Claims Act Complaint
Docket Entry 2: Memorandum of Investigation and Evidence
Docket Entry 3: Appendix to Memorandum of Investigation and Evidence
Docket Entry 4: Appearance by Attorney F. Anthony Paganelli
Docket Entry 5: Motion to Seal False Claims Act Complaint
Docket Entry 6: Order granting docket entry 5
Docket Entry 9: Amended False Claims Act Complaint
Docket Entry 28: P. Ramon Llobet’s Notice of Dismissal
Docket Entry 29: Relators’ Motion for Leave to Amend
Docket Entry 30: Order granting docket entry 29
2

•

Docket Entry 31: Remark that docket entry 30 was sent to counsel
ANALYSIS

The Community Hospital, CANI, and Dr. Gandhi oppose the motion to unseal. Combined,
the reasons provided for the opposition are: (1) the movants failed to move to intervene under
Federal Rule of Civil Procedure 24, and, relatedly, the movants lack standing to intervene, and (2)
the documents may reveal confidential patient information, may reflect unfounded accusations, and
will not show that Llobet was a relator. The Court will address the issues of intervention and
standing before turning to the substantive issue of whether the documents should be unsealed.
A. Intervention
Federal Rule of Civil Procedure 24 governs intervention. A motion to intervene must be
served on the parties, state the grounds for intervention, and must be accompanied by a pleading that
sets out the merits of the intervenor’s claims. Fed. R. Civ. P. 24(c).
It is undisputed that the movants did not file a motion under Rule 24 titled as a motion to
intervene in the instant litigation. However, the Seventh Circuit Court of Appeals has indicated that
a motion need not be labeled as a motion to intervene to be construed as such. See Bunge
Agribusiness Singapore Pte. Ltd. v. Dalian Gualiang Enter. Grp. Co., 581 F. App’x 548, 551 (7th
Cir. 2014) (construing a “cross-complaint” as a motion to intervene); Shevlin v. Schewe, 809 F.2d
447, 450 (7th Cir. 1987) (We do not advocate a strict interpretation of [Rule 24] in all circumstances
. . . but that does not mean that intervenors may totally ignore the rule . . . .”).
Here, the movants filed a motion that was served on the parties. This motion identifies what
the movants seek and presents their argument for it. While a motion to intervene would have been
a more appropriate approach, see, e.g., Griffith v. Univ. Hosp., LLC, 249 F.3d 658, 661 (7th Cir.

3

2001), the Court finds that strict interpretation of Rule 24 is not necessary in this case and construes
the motion to unseal as a motion to intervene as permissive intervenors under Rule 24(b).
Precedent from the Seventh Circuit Court of Appeals indicates that Rule 24 permissive
intervention is proper when a movant seeks access to court documents. Jessup v. Luther, 227 F.3d
993, 997 (7th Cir. 2000) (“The right to intervene to challenge a closure order is rooted in the public’s
well-established right of access to public proceedings.”).
The Court must also “consider whether the intervention will unduly delay or prejudice the
adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3). There will be no undue delay
here because the case has already been resolved. Regarding prejudice, CANI and Dr. Gandhi urge
the Court to consider Bond v. Utreras, 585 F.3d 1061 (7th Cir. 2014), in which the Seventh Circuit
Court of Appeals noted that Rule 24(b)(3) “suggests that intervention postjudgment—which
necessarily disturbs the final adjudication of the parties’ rights—should generally be disfavored.”
Id. at 1071. However, Bond is distinguishable. In Bond, the would-be intervenor sought materials
disclosed in discovery that were subject to a protective order. The documents sought here have been
filed with the Court, not merely exchanged in discovery. Further, the purpose of the intervention
here is not to disturb the case’s resolution or reopen the case on the merits. See Goodman v. Tatton
Enterprises, Inc., No. 10-60624-CIV, 2012 WL 1886529, at *2 (S.D. Fla. May 23, 2012) (“The
simple act of unsealing a document does not reopen the merits of closed litigation or affect the
terms of settlement.”). Consequently, any prejudice to the adjudication of the original parties’ rights
will be negligible. Having considered the potential for undue delay or prejudice, the Court finds that
neither provides a just reason to deny intervention.

4

Because the underlying litigation is closed, the movants must meet the requirements of
standing under Article III of the United States Constitution in addition to the requirements for
permissive joinder under Rule 24. Bond, 585 F.3d at 1065.
“Article III standing requires an injury-in-fact capable of being redressed by a favorable
decision of the court.” Id. at 1072-73 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61)
(1992)). A litigant must have a colorable claim to the right that the litigant asserts has been
infringed. Id. at 1073.
“It is beyond dispute that most documents filed in court are presumptively open to the public;
. . . the public may bring third-party challenges to protective orders that shield court records and
court proceedings from public view.” Id. at 1073 (citing Jessup, 227 F.3d at 997). The public’s right
to access court materials comes from the common law principle of open courts, which has since been
codified at 28 U.S.C. § 452. Id. Restraints on access to court materials are subject to the First
Amendment to the United States Constitution. Id. “[T]he general right of public access to judicial
records is enough to give members of the public standing to attack a protective order that seals this
information from public inspection.” Id. at 1074 (citing Jessup, 227 F.3d at 997-98; In re Associated
Press, 162 F.3d 503, 506-09 (7th Cir. 1998); Grove Fresh Distribs., Inc. v. Everfresh Juice Co., 24
F.3d 893, 897-98 (7th Cir. 1994)).
The documents to which movants seek access were filed with the Court, albeit under seal
pursuant to the False Claims Act and Order of this Court. As the Court will address below, the False
Claims Act anticipates the unsealing of complaints and, through its silence, leaves authority with
the courts to decide whether to unseal the other documents filed under seal in False Claims Act
cases.

5

CANI and Dr. Gandhi again cite to Bond in support of their position that the movants lack
standing. However, in that case, the movant sought “access to discovery materials that [had] never
been filed with the court and [had] never influenced the outcome of a judicial proceeding.” Id.
Unlike materials filed with a court, material exchanged in discovery but not admitted into the record
is not a traditionally public source of information. See id. (quoting Seattle Times Co. v. Rhinehart,
467 U.S. 20, 33 (1984)).
The Community Hospital would have the Court determine that the documents are not judicial
records because the “true” litigation of this case did not begin until the Government filed its Notice
of Election to Intervene. In support, The Community Hospital reasons that, because courts often
analogize to discovery documents in determining whether to unseal qui tam filings, these filings
should not be considered judicial records for the purpose of determining the movants’ standing. See
United States ex rel. Yannacopolous v. Gen. Dynamics, 457 F. Supp. 3d 854, 858 (N.D. Ill. 2006)
(“Courts have analogized motions to unseal or retain the seal of FCA documents to discovery
matters considered under Rule 26(c) . . . .” (citations omitted)). However, though courts use a similar
standard in resolving the merits of motions to unseal these documents, the Court is currently at the
stage of determining standing, and the analogy to discovery materials does not apply here. Unlike
City of Greenville, Ill. v. Syngenta Crop Protection, LLC, 764 F.3d 695 (7th Cir. 2014), another case
cited in opposition to the motion, the Court has at no time explicitly declined to consider these
documents, and in some cases, has explicitly considered them, such as the motions at docket entries
5 and 29, which the Court later granted. The Court finds that the documents that the movants seek
to have unsealed, which were filed on the docket, are judicial records.

6

The Court finds that the movants have standing and grant their request, as construed, to
intervene. The Court now turns to the question of whether the documents should be unsealed.
B. Sealed Documents
Pursuant to the False Claims Act, the complaint in a qui tam action must be filed under seal.
31 U.S.C. § 3730(b)(2). The purpose of initially sealing qui tam suits is to allow the government to
study and evaluate, out of public view, the relator’s information for the purpose of possible
intervention or overlapping criminal investigation. Yannacopolous, 457 F. Supp. 2d at 857 (citing
United States ex rel. Bagley v. TRW Inc., 212 F.R.D. 554, 555 (C.D. Cal. 2003)). Although the False
Claims Act specifically provides for the unsealing of the complaint after intervention, it does not
consider whether other materials filed in the case should be unsealed. Id. at 858. Because the False
Claims Act does not address these other documents, courts retain the authority to determine whether
the documents should be unsealed. Id. at 859.
In deciding whether to unseal the documents, the Court will balance the need for the
information in the documents with the risk of harm due to that information’s disclosure, and, if the
risk outweighs the need, the documents will be maintained under seal. Id. at 858; see also United
States ex rel. Erickson v. Univ. of Wash. Physicians, 339 F. Supp. 2d 1124, 1126 (W.D. Wash. 2004)
(collecting cases that resolved decisions whether to maintain the seal on qui tam filings “based on
a pragmatic balancing of the need for and harm risked by, [sic] disclosures sought”).
When deciding whether to unseal documents filed in a qui tam action, courts have considered
unsealing improper “if unsealing would disclose confidential investigative techniques, reveal
information that would jeopardize an ongoing investigation, or injure non-parties.” Yannacopolous,
F. Supp. 2d at 858. It may also be proper to redact documents to protect sensitive information. Id.

7

The Government partially objected to the motion to unseal on the grounds that certain
documents would reveal confidential investigative techniques. The movants have withdrawn the
motion to unseal as to those documents. The investigation in this case is complete, and there is no
indication that an ongoing investigation would be jeopardized if the Court lifts the seal on the
documents still at issue. The Court must consider injury to non-parties in making its decision,
especially regarding patient information protected under HIPAA.
The Court will also consider the objections raised in opposition to the instant motion. The
opponents argue that the motion should be denied because the documents in question contain
unfounded accusations, because disclosure would violate HIPAA, and because they will not show
that Llobet was a relator.
The Seventh Circuit Court of Appeals recognizes and gives considerable weight to the
public’s interest in keeping court records publicly available. The public’s interest is tied to both
interest in the subject matter of the litigation and the ability to monitor judicial performance. Jessup,
277 F.3d at 928.
The following documents contain no accusations not already openly filed on the docket,
contain no confidential patient information, and indicate that Llobet was a relator.
•
•
•
•
•
•

Docket Entry 4: Appearance by Attorney F. Anthony Paganelli
Docket Entry 5: Motion to Seal False Claims Act Complaint
Docket Entry 6: Order granting docket entry 5
Docket Entry 28: P. Ramon Llobet’s Notice of Dismissal
Docket Entry 29: Relators’ Motion for Leave to Amend
Docket Entry 30: Order granting docket entry 29

Accordingly, the risk of harm as argued by the opponents is minimal. The injury to non-parties is
limited. Further, any injury to Llobet is outweighed by the movants’ need for these documents in

8

order to impeach his testimony in the movants’ malpractice litigation. As a result, the Court grants
the motion as to these documents.
Docket entries 1 and 9 are the Complaint and Amended Complaint. After comparison of
these documents with the Second Amended Complaint, the Court finds that the only information
contained in either of the first two versions of the complaint that is not included in the Second
Amended Complaint is information about Llobet. This information contains no accusations against
Defendants and contain no confidential patient information. Potential non-party injury is once again
limited and outweighed by the interests of the movants and the public. Because the need outweighs
the risk of harm, the Court grants the motion to unseal these documents.
Docket entry 31 is a court only remark that the order at docket entry 30 was sent to counsel.
None of the arguments in opposition to the instant motion provide reason to maintain this document
under seal, so the Court will grant the motion as to this docket entry. However by nature of this
docket entry being a court only remark, it may not be visible from the public docket even when
unsealed.
Docket entries 2 and 3 are a Memorandum of Investigation and Evidence and an Appendix
to the Memorandum, respectively. These documents were filed by the relators, including Llobet. The
Government does not argue that these documents contain confidential investigative techniques.
Because this cause of action has closed, there is no harm to consider regarding ongoing investigation
of this case. However, docket entries 2 and 3 contain patient information protected under HIPAA,
though the movants are willing to pay to have a third party redact patient identifying material from
the docket entries before the entries are unsealed. Further, there are accusations against Defendants
in docket entry 2 which Defendants have had no opportunity to respond to. The harm risked by

9

disclosure of these documents is higher than the risk of harm for the documents previously
discussed.
Additionally, the benefit to the movants if the documents were unsealed is lower. The
movants attached four pages of the document filed at docket entry 2 as an attachment to the instant
motion. It is not clear whether movants have received a full copy of both documents. The public
interest in these documents remains the same. However, given that these documents were filed by
the relators, the movants know who these relators are, and the movants have been at least partially
successful in obtaining these documents through discovery, the Court finds that the risk of harm to
Defendants and to non-parties in unsealing these documents outweighs the benefit that the public
and the movants would receive if the documents were unsealed. Therefore, the Court denies the
request to unseal docket entries 2 and 3.
CONCLUSION
Based on the foregoing, the Court hereby GRANTS in part and DENIES in part the ThirdParty Motion to Reopen Case to Unseal Docket Entries One Through Thirty-One [DE 75]. The
Court ORDERS that Raymond Kammer, Gloria Sargent, and Nancy Gianetta are intervenors in this
cause of action and DIRECTS the Clerk of Court to UNSEAL docket entries 1, 4, 5, 6, 9, 28, 29,
30, and 31 and to MAINTAIN UNDER SEAL docket entries 2 and 3.
SO ORDERED this 6th day of September, 2016.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT

10