GABROS, M.D. v. SHORE MEDICAL CENTER et al

Filing 157

OPINION. Signed by Judge Noel L. Hillman on 10/13/2020. (dmr)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DAVID E. GABROS,
Plaintiff,

1:16-6135-NLH-JS
OPINION

v.
SHORE MEDICAL CENTER,
Defendant.
APPEARANCES:
TIMOTHY J. MCILWAIN
MCILWAIN, LLC
MCILWAIN PROFESSIONAL BUILDING
2020 NEW ROAD, SUITE A
LINWOOD, NJ 08221
Attorney for Plaintiff David E. Gabros, M.D.
KEVIN J. THORNTON
COOPER LEVENSON, P.A.
1125 ATLANTIC AVENUE
ATLANTIC CITY, NJ 08401
Attorney for Defendant Shore Medical Center.
HILLMAN, District Judge
Presently before the Court is Plaintiff’s motion for oral
argument, and two joint motions to seal certain docket entries
and the Court’s June 28, 2019 Opinion.

For the reasons stated

below, the Court will deny the Parties’ motion for oral argument
as moot.
seal.

The Court will deny the Parties’ joint motions to

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BACKGROUND
This case concerns the rescinding of privileges for
Plaintiff David E. Gabros, M.D., a physician at a New Jersey
hospital.

The facts of this case have been summarized by this

Court in previous rulings.1

Plaintiff filed a complaint against

Defendant Shore Medical Center (“SMC”) in March 2014.

This case

was dismissed in September 2016 without prejudice because
Plaintiff failed to properly serve the individuals named in that
matter.

1

In short, Plaintiff is an internal medicine physician who held
staff privileges medicine at Shore Medical Center (“SMC”) from
1999 to 2013. In 2009, 2010, and 2012, Plaintiff failed to meet
his obligations under SMC’s bylaws for three reasons: (1)
visiting patients after established hours; (2) taking illegible
notes on patient charts; and (3) being unreachable by telephone
in the event of a patient emergency.
When Plaintiff sought a status change in February 2013, he was
informed that instead of being moved to SMC’s active staff, he
was to be moved to referral status, meaning he had no clinical
privileges and could not admit or provide care for patients.
Shortly after this announcement was made, Plaintiff was accused
of slashing a colleague’s tires and received a precautionary
suspension. Though Plaintiff was prohibited from entering SMC’s
campus, he attempted to return to SMC and was stopped by
security. Plaintiff was charged with “Criminal Mischief.”
These charges were voluntarily dismissed.
Plaintiff’s conduct was reported to the relevant health care
entities. A number of hearings and panels were convened
regarding Plaintiff’s suspension privileges. Plaintiff then
filed a complaint alleging violations of the Sherman Act,
violations of Plaintiff’s civil rights, and violations of the
New Jersey Law Against Discrimination.
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Plaintiff appealed this ruling to the Third Circuit .
Court’s ruling was affirmed in February 2018.

This

In September

2016, while Plaintiff’s appeal was pending, Plaintiff filed
another complaint against SMC, Scott Strenger, M.D., Jeanne
Rowe, M.D., and Peter Jungblut, M.D.

In October 2016, Plaintiff

filed his First Amended Complaint, adding Defendant Genesis
Healthcare d/b/a/ Linwood Care Center.
2017.

SMC answered on February

In July 2017, Plaintiff and SMC stipulated to the

dismissal of Defendants Strenger, Row, and Jungblut.

Discovery

and motion practice ensued.
In August 2018, Defendant filed its First Motion for
Summary Judgment.
overlength.
Judgment.

The Court rejected this motion for being

Defendant then filed a Second Motion for Summary

In September 2018, Plaintiff filed a Motion to Strike

Defendant’s Motion for Summary Judgment.

On March 20, 2019, the

Parties jointly filed a motion requesting oral argument.
The Court ruled on Plaintiff’s Motion to Strike,
Defendant’s Motion for Summary Judgment, and the Parties’ Motion
for Oral argument on June 28, 2019.

At that time, the Court

also ordered that docket entries 86-33 and 124-1 be placed under
temporary seal.

The Court ordered that the Parties file a joint

motion pursuant to Local Rule of Civil Procedure 5.3 addressing
whether the Court’s Opinion and docket entries should
permanently sealed.

The Parties filed two motions to seal on

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December 9, 2019.

This matter has been fully briefed and is

ripe for adjudication.
ANALYSIS
A. Subject Matter Jurisdiction
This Court has subject matter jurisdiction over this case
pursuant to 28 U.S.C. §§ 1331 and 1367.
B. Motion to Seal Standard
It is well-established that there is a “common law public
right of access to judicial proceedings on records. ”

In re

Cendant Corp., 260 F.3d 183, 192 (3d Cir.) (citation omitted).
Ordinarily, documents filed with the Court or utilized in
connection with judicial proceedings are part of the public
record with a presumptive right of public access.

Leucadta v.

Applied Extrusion Tech., Inc., 998 F.2d 157, 164 (3d Cir. 1993).
In some instances, “the strong common law presumption of access
must be balanced against the factors militating against access” .
Id. at 165.

When a party files a motion to seal, that party

must demonstrate that good cause exists for protection of the
material at issue.

Securimetrics, Inc. v. Iridian Techs., Inc.,

2006 WL 827889, at *2 (D.N.J. Mar. 30, 2006).

A party

demonstrates good cause by making a “particularized showing that
disclosure will cause a ‘clearly defined and serious injury to
the party seeking closure.’”

Id. (quoting Pansy v. Borough of

Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994)).

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In this District, Local Civil Rule 5.3 governs motions to
seal or otherwise restrict public access to materials filed with
the Court and in judicial proceedings.

To place a docket entry

under seal, the Rule requires that the motion to seal must be
publicly filed and describe: “(a) the nature of the materials or
proceedings at issue, (b) the legitimate private or public
interests which warrant the relief sought, (c) the clearly
defined and serious injury that would result if the relief
sought is not granted, and (d) why a less restrictive
alternative to the relief sought is not available.”
5.3(c)(2).

L.Civ.R.

The party moving to seal must submit a proposed

order that contains proposed findings of fact and conclusions of
law.

L.Civ.R. 5.3(c)(3).

C. Joint Motions to Seal
With the standard set out above in mind, the Court will now
turn to the parties’ joint motions to seal.
1. NPDB Report
The Parties seek to seal docket entry 142, a report by the
National Practitioner Data Bank (“NPDB”), submitted by Defendant
Shore Medical Center on June 18, 2015.

This report was a result

of the final adverse action taken by SMC to revoke Plaintiff’s
clinical privileges.
In 1986, Congress passed the Health Care Quality
Improvement Act of 1986 (“HCQIA”), 42 U.S.C. § 11101, et seq.

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The HCQIA requires that certain information regarding
malpractice payments, sanctions, and professional review actions
taken with respect to medical professionals be reported to the
federal government.

42 U.S.C. § 11131-7.

The regulations

promulgated pursuant to the HCQIA established the National
Practitioner Data Bank to collect and organize information
collected under the HCQIA.
The NPDB operates as a centralized clearinghouse for state
licensing boards, hospitals, and other health care entities to
obtain relevant background information about physicians.
Hospitals are required to request information from the NPDB with
respect to each physician or health care practitioner who
applies for staff membership or clinical privileges.
§ 11135.

42 U.S.C.

The NPDB makes the information it collects available

to “State licensing boards, to hospitals, and to other health
care entities (including health maintenance organi zations) that
have entered (or may be entering) in an employment or
affiliation relationship with the physician or practitioner or
to which the physician or practitioner has applied for clinical
privileges or appointment to the medical staff.”

42 U.S.C. §

11137(a).
Section 11137 also outlines the confidentiality provisions
applicable to the information collected under the HCQIA.
Specifically, it mandates:

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Information reported under this subchapter is
considered confidential and shall not be disclosed
(other than to the physician or practitioner involved)
except with respect to professional review activity .
. . or in accordance with regulations of the Secretary
promulgated pursuant to subsection (a) of this
section. Nothing in this subsection shall prevent the
disclosure of such information by a party which is
otherwise authorized, under applicable State law, to
make such disclosure. Information reported under this
subchapter that is in a form that does not permit the
identification of any particular health care entity,
physician, other health care practitioner, or patient
shall not be considered confidential.
42 U.S.C. § 11137(b)(1) (emphasis added).
As such, unless otherwise provided by state law, all
information collected by the NPDB and “reported under this
subchapter” is presumed confidential and is only released as
specifically mandated by the HCQIA.

See Medical Soc. of New

Jersey v. Mottola, 320 F.Supp.2d 254, 259 (D.N.J. 2004).
The Parties contend that federal law prohibits disclosure
of National Practitioner Data Bank reports.

The Parties

highlight that the purpose of the NPDB and its reports is to
improve health care quality, protect the public, and reduce
health care fraud and abuse in the United States.

According to

the Parties, if NPDB reports were available to the public,
reporting entities would lose confidence in the NPDB’s
confidentiality protections.

The Parties argue that this lack

of confidence would lead to a decline in voluntary or optional
reports regarding problematic officials and would ultimately

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hinder the reliability and effectiveness of the NPDB in serving
its public policy goals.
The Court has closely reviewed the documents the parties
ask the Court to seal and does not find a legitimate private or
public interest warranting sealing, nor a serious injury that
would result from a failure to seal.

While there is no doubt a

generalized public benefit from a confidential reporting system
allowing medical employers to share information about the
qualifications of licensed medical professionals, that interest
must fall away when those reports are themselves evidence in a
matter pending in federal court or any court.

The alternative

is that medical employers and professionals may generate false
or truthful information about each other material to their
dispute and the potential claims of injured third parties under
a regime where that information never sees the light of day.
It is hard to imagine how that benefits the public at large
and begs the question why a federal court should aid in such
secrecy absent clear statutory direction.

What the parties

really envision is a system that always shields the airing of
claims of incompetency and malfeasance by medical professionals
and the medical institutions that hire them.

This lack of

transparency and absolute immunity is as likely to cause false
reports as it is to foster candor.

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Nor does the relevant statute create such an absolute
private world immune from outside scrutiny.

It is one thing to

say that information should be confidential between the parties
for regulatory purposes and quite another to say that
information can never be revealed when disputes arise over the
content of such reports.

The only law cited by the parties

actually authorizes disclosure for purposes of litigation when
the system breaks down as envisioned. See 45 C.F.R.
60.18(a)(1)(v) (allowing use of NPDB reports in medical
malpractice litigation where hospital failed to request
information from the NPDB).
Moreover, there can be no better example of the overbreadth
of the parties’ argument for sealing than this case.
Plaintiff’s case hinges on allegations that NPDB reports about
him were false and he demands a jury trial.
7.a.

See ECF No. 1, ¶

Plaintiff would have his allegations litigated in a star

chamber with a jury of ordinary citizens presumably barred from
discussing the case after their service in a closed courtroom.
There is no precedent for such a proceeding in federal court
except in those rare cases which might involve classified
information or national secrets and even in those cases
redactions and sanitized versions allow for public access.
In sum, the Court is unpersuaded by the parties’ arguments
that denying their motion to seal the NPDB reports will have a

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chilling effect on reporting.

Moreover, there is nothing in

binding case law or the relevant statute itself expressly
forbidding disclosure of these reports in the context of the
claims brought by this Plaintiff.

Moreover, and perhaps most

importantly, this Court has repeatedly emphasized the public
interest in the disclosure of materials filed on this Court’s
docket, which often outweighs private interests in
confidentiality.
This Court is funded by the public and does not sit, in
general, to resolve private disputes in secret.

Finding that

the parties lack a legitimate justification to warrant sealing
the identified information, the Court will deny the parties’
joint motion to seal with regard to the NPDB reports.
2. June 28, 2019 Opinion and Other Documents
The Parties also seek to seal several docket entries,
including: (a) docket entry 86-33, a National Practitioner Data
Bank report from August 9, 2013; (b) portions of docket entries
124-1, 92-30, and 92-33, referred to collectively as “DCA
Reports”; and (c) docket entry 130, the Court’s June 28, 2019
Opinion.

As stated above, the Court previously placed docket

entries 86-33 and 124-1 under temporary seal and ordered the
Parties to file a joint motion pursuant to Local Rule 5.3.

The

Court will assess the Parties’ motion to seal with respect to
these entries in turn.

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a. NPDB Reports
Docket entry 86-33 is a NPDB report submitted by Defendant
SMC on August 9, 2013, concerning Plaintiff’s summary suspension
of clinical privileges from SMC.

The Parties repeat their

arguments for sealing docket entry 142 discussed above.
For the same reasons discussed above, the Court will deny
the Parties’ joint motion to seal docket entry 86-33.
b. DCA Reports
Docket entry 124 contains various NPDB reports and
information related to the dissemination of the reports as well
as information related to the New Jersey Health Care
Professional Responsibility and Reporting Enhancement Act.
Docket entries 92-30 and 92-33 also contain DCA reports that the
Parties request be placed under permanent seal.
In the words of the New Jersey Division of Consumer Affairs
(“DCA”), the purpose of the New Jersey Health Care Professional
Responsibility and Reporting Enhancement Act is to “strengthen
patient protections by assuring that the health care
professionals who have demonstrated impairment or incompetence
or engaged in professional misconduct become known to their
licensing boards.” 42 N.J.R. 2577(a).

As such, this Act grants

health care entities the ability to request DCA forms submitted
by other health care entities for the purpose of evaluating a
health care professional for hiring, continued employment, or

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continued privileges.

See N.J.A.C. 13:45E-6.1.

According to

the Parties, these forms are “not considered government records
under the Open Public Records Act” and the DCA regulations do
not contemplate that any portion of a report would be publicly
available.

N.J.A.C. 13:45-5.1(b).

The Parties argue that similar to the NPDB reports,
permitting DCA forms and reports to be available to the public
would chill health care entities’ willingness to provide
information.

The Parties further assert that allowing these

forms to be publicly available is inconsistent with New Jersey’s
Health Care Professional Responsibility and Reporting
Enhancement Act.
As with the NPDB reports, the Court is unpersuaded that
denying the joint motion to seal will result in a serious
chilling effect on health care entities’ willingness to
participate in reporting and providing information.

Again, the

parties have not pointed to case law or a statute that expressly
forbids disclosure of these reports.

In the absence of case law

or a statute expressly forbidding disclosure of these reports,
the Court will again decline to seal these documents.
Because the parties have failed to meet the standard set by
Local Rule of Civil Procedure 5.3, the Court will deny the joint
motion to seal docket entry 124.

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c. The Court’s June 2019 Opinion
In the course of this case, Defendant filed a Second Motion
for Summary Judgment on August 31, 2018.

The Court ruled on

this issue in an Opinion dated June 28, 2019.
The Parties argue that because the Court’s Opinion “recites
the content of the NPDB and DCA Reports verbatim,” allowing
public access to this opinion is “tantamount to allowing the
public to review the reports themselves.” ECF No. 155-5 at 7.
Having reviewed the Court’s June 2019 Opinion, the Court
notes that this Opinion does not contain any personally
identifiable information or sensitive information that would
justify granting the parties’ joint motion to seal.

And as the

Court has noted, that the Opinion recites certain content from
the NPDB and DCA is an insufficient reason to seal it.

Finally,

while this Court’s decisions are binding on no one except the
parties, the development of the federal case law requires that
the reasoning of the Court in interpreting statutes be widely
available to be considered by sister courts as persuasive
authority or not.

The Court’s 52-page opinion discusses the

statute of limitations for defamation claims arising from NPDB
reports, the scope of immunity under the HCQIA, and the reach of
analogous claims under state statutory law.

The development of

the law would be stymied if Courts issue secret rulings known
only to the parties.

In short, because the Court does not make

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its decisions in secret, the Court finds it is in the public
interest to allow the June 2019 Opinion containing the
resolution of certain issues in this case to made public.
Because the parties have failed to meet the standard set by
Local Rule of Civil Procedure 5.3, the Court will deny the joint
motion to seal docket entry 130.
CONCLUSION
For the reasons stated above, the Court will deny the
Parties’ joint motions to seal.

An appropriate Order will be

entered.

Date: October 13, 2020
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

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