OSSIM et al v. ANULEX TECHNOLOGIES, INC. et al

Filing 35

ENTRY on Plaintiffs' Motion for Leave - the Plaintiffs' Motion for Leave to File Documents Identifying Defendants ABC, Inc. and John Doe, MD, under Seal (Filing No. 26 ) is DENIED. Accordingly, Filing No. 34 , the proposed exhibit file d under seal, is stricken. The Plaintiffs' response to the pending motion to dismiss is due no later than September 23, 2014. Defendants' reply (if any) is due no later than September 29, 2014. Signed by Judge Tanya Walton Pratt on 9/9/2014. (TRG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

JOHN OSSIM,
KRISTEN OSSIM,
Plaintiffs,
vs.
ANULEX TECHNOLOGIES, INC.,
ABC INC.,
JOHN DOE, M.D.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

Case No. 1:14-cv-00254-TWP-DKL

ENTRY ON PLAINTIFFS’ MOTION FOR LEAVE
This matter is before the Court on Plaintiffs’, John Ossim and Kristen Ossim (“the
Ossims”), Motion for Leave to File Documents Identifying Defendants ABC, Inc., and John Doe,
MD, Under Seal (Filing No. 26). In essence, this is a motion to reconsider the Court’s decision to
retain jurisdiction over the case, and it will be treated as such. For the reasons set forth below, the
Motion for Leave and accompanying request to reconsider remand is DENIED.
I. BACKGROUND
The following background was set forth in the Court’s Entry on the Ossims’ motion for
remand. The Ossims’ claims arise out of a surgery performed by an anonymous doctor at an
anonymous hospital. The surgery involved the use of Anulex’s product, the Xclose Tissue Repair
System. Indiana’s Medical Malpractice Act, I.C. § 34-18-8-4, provides that a court action cannot
be filed against qualified medical care providers in their own names until a Medical Review Panel
issues an opinion in accordance with the Indiana Medical Malpractice Act (“the Act”). However,
the Act permits filing a lawsuit under the condition that the plaintiff’s “complaint filed in court

may not contain any information that would allow a third party to identify the [healthcare]
defendant.” Ind. Code § 34-18-8-7. Thus, simultaneously to filing the action before the Medical
Review Panel, the Ossims filed their lawsuit in state court. Thereafter, Anulex filed a notice of
removal (Filing No. 1). The identities of the anonymous doctor and hospital are known to the
Ossims, Anulex, and the Medical Review Panel, but have not been made known to the Court.
On June 24, 2014 the Court denied the Motion to Remand finding that “[r]emand is not
appropriate here where the identities are not known on the record and the medical review panel
outcome is uncertain.” Filing No. 22, at ECF p. 3. The Ossims have filed the current motion
seeking to name the anonymous defendants under seal, and urge the Court to remand the case to
state court.
II. DISCUSSION
The Ossims wish to file documents, including admissions of Defendant Anulex, identifying
the anonymous defendants as Indiana citizens, thus defeating diversity jurisdiction and requiring
remand. The Court declines to allow the Ossims to file their documents under seal. In Miller v.
Anonymous Corp., No. 1:12-cv-562-TWP-DML, 2012 WL 3236304, at *2 (S.D. Ind. Aug. 7,
2012), the Court found that when “a healthcare provider defendant who was named ‘anonymous’
in the complaint only because of the Act but whose identity becomes known (and is indeed
disclosed in public filings with the court) is not ‘fictitious’ and its citizenship cannot be
disregarded.” The Court acknowledges that the Ossims have let the “cat out of the bag,” Filing
No. 33, at ECF p. 2, but they have ignored a crucial distinction of Miller. In that case, the
healthcare defendants identified themselves and actively participated in the case by filing public
documents. The current situation of plaintiffs filing identifying documents under seal is a

compelling distinction in that the anonymous Defendants’ have not identified themselves in public
filings or otherwise. With that backdrop in mind, the Court must DENY the Ossims’ motion.
III. CONCLUSION
As stated above, the Plaintiffs’ Motion for Leave to File Documents Identifying Defendants
ABC, Inc. and John Doe, MD, under Seal (Filing No. 26) is DENIED. Accordingly, Filing No.
34, the proposed exhibit filed under seal, is stricken. The Plaintiffs’ response to the pending motion
to dismiss is due no later than September 23, 2014. Defendants’ reply (if any) is due no later than
September 29, 2014.
SO ORDERED.
Date: 9/9/2014

Distribution:
Robert Thomas Dassow
HOVDE DASSOW & DEETS LLC
[e-mail]
Dina M. Cox
LEWIS & WAGNER
[e-mail]
Janelle P. Kilies
LEWIS WAGNER LLP
[e-mail]