Schedin v. Johnson & Johnson et al

Filing 233

ORDER unsealing the punitive damages 119 Order. Plaintiff's request to make public evidence introduced at trial is granted (Written Opinion). Signed by Judge John R. Tunheim on May 12, 2011. (DML)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
JOHN SCHEDIN,

Civil No. 08-5743 (JRT)
Plaintiff,
ORDER

v.
ORTHO-MCNEIL-JANSSEN
PHARMACEUTICALS, INC.,
Defendant.

Mikal C. Watts, WATTS LAW FIRM, LLP, 555 North Carancahua, Suite
1400, Corpus Christi, TX 78478; Ronald S. Goldser, ZIMMERMAN
REED, PLLP, 651 Nicollet Mall, Suite 501, Minneapolis, MN 55402; and
Lewis J. Saul, LEWIS SAUL & ASSOCIATES, 183 Middle Street, Suite
200, Portland, ME 04101, lead counsel for plaintiff Schedin.
John Dames and William V. Essig, DRINKER BIDDLE & REATH LLP,
191 North Wacker Drive, Suite 3700, Chicago, IL 60606; William H.
Robinson, Jr., LECLAIR RYAN, 1100 Connecticut Avenue N.W., Suite
600, Washington, DC 20036; and Tracy J. Van Steenburgh, NILAN
JOHNSON LEWIS, PA, 400 One Financial Plaza, 120 South Sixth Street,
Minneapolis, MN 55402, lead counsel for defendant.
Before the Court is plaintiff’s request to unseal the Court’s order granting
plaintiff’s motion to amend his complaint to assert a claim for punitive damages, as well
as documents that were admitted at the close of trial but not discussed during testimony
in open court. Because the Court finds defendant has not met its burden of persuasion to
overcome the presumption that such opinions and evidence be open to the public, the
Court lifts the protective order on those documents admitted at trial and unseals the

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punitive damages order. This ruling does not alter the confidential designation otherwise
remaining on documents covered by the protective order.

BACKGROUND
Plaintiff John Schedin was prescribed Levaquin for an upper respiratory infection
in February 2008 and, after eight days of consuming the drug, suffered bilateral Achilles
tendon ruptures. (Compl. ¶ 108, Docket No. 1.) At the time Schedin was prescribed
Levaquin, the drug contained a warning regarding tendon ruptures; however, Schedin
claimed this label alone was inadequate to warn him of the risk he was taking in using
Levaquin. He brought various state law claims, including failure to warn and violations
of the Minnesota Consumer Fraud Statute. After a trial, a jury found defendant OrthoMcNeil-Janssen Pharmaceuticals, Inc. (“Ortho-McNeil”) liable for Schedin’s injuries and
awarded him damages, including punitive damages.
Prior to trial, on October 6, 2010, this Court granted defendant’s motion to protect
the confidential designations in the Stipulated Confidentiality Agreement (“SCA”)
negotiated between the parties. (Docket No. 53.) During trial, many documents covered
by the SCA were discussed openly by counsel for both sides, referred to in depositions
that were presented in court, and admitted into evidence. Other such documents were
admitted into evidence at the close of trial en masse, although defense counsel objected to
these documents as lacking foundation. The Court admitted some 115 documents over
those objections.

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In the interim, this Court issued the punitive damages order (Docket No. 119) that
was filed under seal, as it referenced several documents that had been protected by the
earlier confidentiality ruling. Plaintiff now moves to allow publication of any documents
admitted as evidence at trial, regardless of whether they were discussed in court,1 and for
publication of the punitive damages order.

DISCUSSION
I.

LEGAL STANDARD
“It is clear that the courts of this country recognize a general right to inspect and

copy public records and documents, including judicial records and documents.” Nixon v.
Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (footnotes omitted). “[T]he decision
as to access is one best left to the sound discretion of the trial court, a discretion to be
exercised in light of the relevant facts and circumstances of the particular case.” Id. at
599. A party seeking to maintain the confidentiality of documents such as those at issue
here must overcome a presumption that favors public access. United States v. McDougal,
103 F.3d 651, 656 (8th Cir. 1996). Courts are often guided by a six factor test, first
articulated in United States v. Hubbard, 650 F.2d 293, 318 (D.C. Cir. 1980), to determine
if a party has overcome the presumption in favor of publication. Those factors are:
(1) the need for public access to the documents at issue; (2) the extent of
previous public access to the documents; (3) the fact that someone has
objected to disclosure, and the identity of that person; (4) the strength of
any property and privacy interests asserted; (5) the possibility of prejudice

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The parties concur that documents referenced in open court have lost any confidentiality
designation.
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to those opposing disclosure; and (6) the purposes for which the documents
were introduced during the judicial proceedings.
Doe v. Exxon Mobile Corp., 570 F. Supp. 2d 49, 52 (D.D.C. 2008); see also McDougal,
103 F.3d at 658 (noting a “compelling interest test in the context of determining whether
the qualified First Amendment right of public access attached to specific documents
which [the court] had found to be judicial records”).2

II.

EVIDENCE ADMITTED AT TRIAL
The Court recognizes that the documents at issue here have been, up until this

point, protected by an order of confidentiality. However, “[the] presumption [of public
access] applies with equal force in the face of a protective order, because once an
otherwise confidential record is entered into evidence at trial, it becomes part of a
presumptively public proceeding.” Rohrbough v. Hall, No. 4:07CV00996, 2010 WL
1998554, at *1 (E.D. Mo. May 19, 2010). Evaluating the evidence admitted at trial in
light of the Hubbard factors, the Court finds defendant has not met its burden to retain
the confidentiality of documents that were admitted into evidence even though some of
those documents were covered by a protective order.

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While the Eighth Circuit has more cursorily described the right to public records as
presumptively attaching absent “compelling reasons [to] justify non-disclosure[,]” see, e.g., In
re Neal, 461 F.3d 1048, 1053 (8th Cir. 2006), the Court evaluates the issue under the six factor
Hubbard test since it comports with Eighth Circuit precedent and more clearly articulates what
constitutes the “compelling reasons” this Court has considered.
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1.

Need for public access

This factor weighs against defendant’s request since evidence admitted at trial
“go[es] to the heart” of the case. Exxon Mobile Corp., 570 F. Supp. 2d at 52; see also
Rohrbough, 2010 WL 1998554, at *1.

2.

Prior public access

The Court considers this factor neutral since the particular exhibits at issue were
not discussed in open court, in deposition testimony presented in court, but rather were
submitted en masse with little to no individual attention paid to the particular documents.
Further, the documents at issue were subject to a protective order and therefore were not
available to the public at any prior time. However, courts have found that a prior
protective order is not dispositive as to later access to those documents, in large part since
a protective order is based largely on the parties’ representations of the confidential
nature of the documents. See McConnell v. Fed. Election Comm’n, 251 F. Supp. 2d 919,
927 (D.D.C. 2003) (“Under [the] logic [of relying on a protective order to oppose a
motion to unseal], each litigant would be free to decide for the Court what information is
or is not confidential. Such a conclusion would defy the principles laid down in Nixon v.
Warner . . . .”).

Furthermore, “previous access has been considered relevant to a

determination whether more liberal access should be granted to materials formerly
properly accessible on a limited basis through legitimate public channels and to a
determination whether further dissemination of already accessible materials can be

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restrained.” Hubbard, 650 F.2d at 318 (emphasis added) (footnotes omitted). This
factor, therefore, is less relevant in a case where no previous access has occurred. Id.

3.

Nature of objections and party objecting

“[A] [s]trong objection[] . . . [by a party] is an obvious but important
consideration.” Id. at 319. “[H]owever, . . . litigants to [a] proceeding have a lesser
claim to privacy than third parties . . . .” McConnell, 251 F. Supp. 2d at 932. Since the
documents at issue are the property of the defendant, the Court finds that this factor
weighs slightly in defendant’s favor.

4.

Property and privacy interests asserted

When the party opposing disclosure can point to specific private or public interests
such as “to protect trade secrets, or the privacy and reputation of victims of crimes, as
well as to guard against risks to national security interests, and to minimize the danger of
an unfair trial by adverse publicity[,]” this factor weighs towards protection. In re Nat.
Broad. Co., Inc., 653 F.2d 609, 613 (D.C. Cir. 1981).

Defendant has argued the

possibility of adverse publicity. However, since the jury has already rendered a verdict in
this case, any adverse publicity for future cases must contend primarily with this verdict
and the damages award. As a result, the Court finds this factor only slightly weighs in
favor of defendant.

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5.

The possibility of prejudice to those opposing disclosure

Defendant opposes publication of the documents at issue, citing a general
prejudice to ongoing litigation, as above. Noting that cursory arguments are difficult to
address, the Court determines that this factor does not heavily weigh in favor of retaining
the confidentiality of these documents. See Upshaw v. United States, No. 09-00664,
2010 WL 4985878, at *4 (D.D.C. Dec. 9, 2010) (dismissing the factor of prejudice in part
since the argument was cursory and not specific to the documents at issue); Friedman v.
Sebelius, 672 F. Supp. 2d 54, 60 (D.D.C. 2009). The Court is aware that defendant faces
some potential prejudice moving forward based on the jury verdict against it in this
litigation, however, “[t]he Court, quite simply, is neither empowered nor inclined to
delete the fact of this litigation from the pages of history.” Upshaw, 2010 WL 4985878,
at *4. As a result, the Court finds this factor is neutral.

6.

The purposes for which the documents were introduced during the judicial
proceedings

While courts have found this factor weighs against disclosure when documents are
simply obtained through discovery, “if the documents sought to be sealed are entered as
evidence during a trial, there is a strong presumption against sealing because a trial is a
public event and what transpires in the court room is public property.”

Friedman,

672 F. Supp. 2d at 61 (internal quotation marks omitted). Although not discussed during
the trial, the documents here were admitted at the trial as evidence. This factor weighs in
favor of disclosure.

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In sum, the Court finds that two of the Hubbard factors are neutral, two weigh in
favor of plaintiff, and two only slightly favor defendant.

As a result, the Court

determines that defendant has not met its burden to overcome the presumption in favor of
publication of the evidence submitted at trial.
III.

PUNITIVE DAMAGES ORDER
The presumption for public access to court documents is “especially strong” as it

relates to judicial opinions.

Exxon Mobile Corp., 570 F. Supp. 2d at 51 (internal

quotation marks omitted). Indeed, “[a] court’s . . . orders[] are the quintessential business
of the public’s institutions.” E.E.O.C. v. Nat. Children’s Ctr., Inc., 98 F.3d 1406, 1409
(D.C. Cir. 1996).

The Supreme Court has noted that “[j]udicial precedents are

presumptively correct and valuable to the legal community as a whole. They are not
merely the property of private litigants . . . .” U.S. Bancorp Mortg. Co. v. Bonner Mall
P’ship, 513 U.S. 18, 27 (1994) (internal quotation mark omitted). As a result, even in the
case of redaction, courts presume disclosure rather than confidentiality. Pepsico, Inc. v.
Redmond, 46 F.3d 29, 30 (7th Cir. 1995). A review of the punitive damages order reveals
that few of the protected documents relied upon in the order retained their confidential
status as the trial progressed as they were either introduced at trial or openly discussed in
recorded depositions presented at trial.

Further, several references in the punitive

damages order to other documents protected by the SCA merely acknowledge their
existence without revealing their substantive content. Certainly, none of the references
rise to the level of trade secrets, personal information of crime victims, or national

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security interests. In re Nat. Broad. Co., Inc., 653 F.2d at 613; see also Pepsico, Inc., 46
F.3d at 30. As a result, the Court finds the punitive damages order should be unsealed
and available in the public domain without redaction.

ORDER
Based on the foregoing, and the records, files, and proceedings herein, IT IS
HEREBY ORDERED that the Court’s Punitive Damages Order [Docket No. 119] be
unsealed. Plaintiff’s request to make public evidence introduced at trial is GRANTED.

DATED: May 12, 2011
at Minneapolis, Minnesota.

____s/
____
JOHN R. TUNHEIM
United States District Judge

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